[Cite as State v. McCaulley, 2023-Ohio-1711.]
IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT LAKE COUNTY
STATE OF OHIO, CASE NO. 2022-L-105
Plaintiff-Appellee, Criminal Appeal from the - vs - Court of Common Pleas
DEON MCCAULLEY, II, Trial Court No. 2021 CR 001037 Defendant-Appellant.
OPINION
Decided: May 22, 2023 Judgment: Affirmed
Charles E. Coulson, Lake County Prosecutor, and Jennifer A. McGee, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
Aaron A. Schwartz, Joseph C. Patituce, and Catherine A. Purdum, Patituce & Associates, LLC, 16855 Foltz Parkway, Strongsville, OH 44149 (For Defendant- Appellant).
JOHN J. EKLUND, P.J.
{¶1} Appellant, Deon McCaulley, II, appeals his convictions in the Lake County
Court of Common Pleas for Operating a Motor Vehicle While Under the Influence of
Alcohol, a Drug of Abuse, or Combination of Them (OVI), a first-degree misdemeanor, in
violation of R.C. 4511.19(A)(1)(a), and Improperly Handling Firearms in a Motor Vehicle,
a fourth-degree felony, in violation of R.C. 2923.16(D)(1). Appellant raises three
assignments of error which assert: (1) the trial court erred by failing to admit the arresting
officer’s police report under Evid.R. 803(8)(b); (2) the trial court erred by admitting testimony about the vertical gaze nystagmus (VGN) test; and (3) that appellant’s
convictions were not supported by sufficient evidence.
{¶2} Having reviewed the record and the applicable caselaw, we find appellant’s
assignments of error to be without merit. First, the statements contained in the police
report appellant sought to admit through Evid.R. 803(8)(b) were statements made by
appellant’s healthcare providers and were not based on the arresting officer’s own
firsthand knowledge or observations and the healthcare providers were under no duty to
report the information. Second, appellant did not file a motion to suppress the evidence
of the VGN test and has waived a challenge to whether the test was performed in
substantial compliance with relevant standards and procedures on appeal and appellant
suffered no harm from the admission of the evidence because the results of the test were
negative. Finally, the State produced sufficient evidence to convict appellant of all
charges.
{¶3} Therefore, we affirm the judgment of the Lake County Court of Common
Pleas.
Substantive and Procedural History
{¶4} On June 13, 2021, appellant crashed his vehicle into a ditch on Prouty Road
in Lake County. He was indicted on four counts arising from the incident: Count 1,
Violation of a Protection Order, a third-degree felony in violation of R.C. 2919.27(A)(1);
Count 2, Improperly Handling Firearms in a Motor Vehicle, a fourth-degree felony in
violation of R.C. 2923.16(B); Count 3, Improperly Handling Firearms in a Motor Vehicle,
a fourth-degree felony in violation of R.C. 2923.16(D)(1); and Count 4, Operating a
Case No. 2022-L-105 Vehicle Under the Influence of Alcohol, a Drug of Abuse, or a Combination of Them (OVI),
a first degree-misdemeanor in violation of R.C. 4511.19(A)(1)(a).
{¶5} Appellant pled not guilty to the charges and the matter proceeded to jury
trial. On the morning of trial, the State dismissed Counts 1 and 2.
{¶6} The following evidence was adduced at trial:
{¶7} The Ohio State Highway Patrol received a report of a reckless driver in the
area of I-90 at mile post 197. The vehicle was described as blue with a partial license
plate “JIA.” Greg Smith testified that later he was driving on Ravenna Road in Lake
County. At the intersection of Ravenna Road and Prouty Road he saw a blue sedan
driving at a high rate of speed with “tires almost screeching.” He turned onto Prouty Road
and followed the vehicle where he continued to watch the vehicle’s erratic maneuvering
as it nearly struck a car in the oncoming lane of travel. Smith, who drives for a living,
described it as the most dangerous driving he had ever seen. At the time, he believed the
driver was either intoxicated or suffering from a medical emergency and planned to call
911 to report the driver.
{¶8} Smith then saw the vehicle crest a hill at a curve in the road and as he
followed over the hill, saw that it had crashed into the ditch on the oncoming side of the
road. Smith called 911 to report the crash and said he believed the driver was intoxicated.
Smith testified he saw appellant throwing glass bottles (which he assumed were beer
bottles) out of the car window into the woods near the ditch. He approached appellant to
check his condition and smelled the odor of alcohol. Appellant got out of the vehicle and
Smith noticed him staggering and unable to speak coherently.
Case No. 2022-L-105 {¶9} Lieutenant Michael Fearing of the Concord Township Fire Department
responded to the scene of the accident. When Fearing approached appellant, he said
that appellant was seated in his vehicle with the door open and was talking on his cell
phone. Fearing heard appellant talking on the cell phone and noticed he had slurred
speech and seemed “out of it.” Fearing said he saw no indication of trauma which would
cause this response from appellant. He believed appellant “was under the influence of
something.”
{¶10} Appellant handed Fearing his phone and said, “dad’s cell.” Fearing took the
phone, began talking to an individual on the line and walked around the back of the vehicle
to assess the scene. Fearing continued walking around the vehicle and approached the
passenger side. Now at the passenger door, Fearing looked in the window and saw
appellant holding a gun in his right hand. He ran to a safe distance and radioed that
appellant had a weapon.
{¶11} Deputy Robert Rowland of the Lake County Sheriff’s Office responded to
the scene shortly after Fearing radioed about the presence of the gun. When Rowland
arrived, he saw appellant standing on the driver’s side of the vehicle near the trunk. He
was about 70 to 100 yards away. Rowland said appellant complied with his directions to
walk away from the vehicle unarmed. Officers detained appellant and determined he was
unarmed. Rowland then searched appellant’s vehicle and discovered a cloth holster on
the driver’s side floor and recovered the loaded handgun from the vehicle’s glove box.
The gun was later test fired and found to be operational.
{¶12} Firefighter Sterling Black assessed appellant for injuries after he was
detained. Black performed an alertness test on appellant and found him to be alert and
Case No. 2022-L-105 oriented but noted he was slurring his words and was hard to understand. Black asked
appellant if he had consumed alcohol and appellant said, “Yes, I had a little bit of some
Henny earlier” referring to Hennessey brand liquor. After Black performed appellant’s
patient assessment, appellant refused further treatment from EMS and transport to the
hospital.
{¶13} Trooper John Kronander of the Ohio State Highway Patrol testified that he
has conducted approximately 100 OVI investigations and that he received training in
alcohol and drug detection in individuals. Kronander initially responded to the call of an
erratic vehicle on I-90 but did not make contact. He was later called to the scene of
appellant’s crash and verified appellant’s vehicle matched the partial plates for the
reported erratic driver.
{¶14} Kronander assessed the crash scene and observed appellant had struck a
mailbox on the right side of the road, overcorrected, lost control of the vehicle and crashed
into the ditch in the oncoming lane of travel. He did not observe any signs of braking.
Kronander then made contact with appellant and noted mumbled speech, a slight odor of
alcoholic beverage and bloodshot, glassy eyes.
{¶15} Kronander then administered Standardized Field Sobriety Tests (SFSTs).
He testified that SFSTs are standardized tests designed by the National Highway Traffic
Safety Administration (NHTSA) used to detect whether someone is under the influence
of alcohol, drugs, or a combination of both. He said he received training in the
administration of the Horizontal Gaze Nystagmus (HGN), the One Leg Stand (OLS), and
the Walk and Turn (WAT) tests. Kronander testified to the procedure for administering
each test and said he administered the tests in accordance with his training.
Case No. 2022-L-105 {¶16} Kronander said the HGN test has a pre-test and three parts, which require
the subject to follow a stimulus with their eyes. Kronander said the purpose of the pre-
test check is to assess whether a head injury or eye issues in general would indicate a
subject cannot perform the test.
{¶17} At trial, Kronander explained the three phases of the HGN. He said the first
phase of the HGN is to check for lack of smooth pursuit as the subject’s eyes follow the
stimulus moved horizontally back and forth 12-15 inches slight above the subject’s eye
level. The administrator looks for nystagmus – the involuntarily movement of the eyes –
which looks like a jerking movement similar to a windshield wiper on a dry windshield.
The second phase of the test is distinct and sustained nystagmus at maximum deviation.
During this phase, the administrator of the test moves the stimulus as far as the person
can track with their eye and holds it in that position for four seconds to observe if
nystagmus remains. The third phase of the test is onset of nystagmus prior to 45 degrees.
Here, the administrator moves the stimulus to a 45-degree angle to see if the onset of
nystagmus occurs prior to reaching the 45-degree angle. If it does occur before 45-
degrees, the stimulus is held at that point for 4 seconds and if nystagmus continues, it
constitutes a clue.
{¶18} Kronander said the pre-test did not show any reason why appellant could
not perform the HGN. He observed appellant to have six out of six clues present, which
he said indicates a high probability of intoxication.
{¶19} Kronander also performed a Vertical Gaze Nystagmus (VGN) test, which
he said does not count as a clue on the HGN but is used as an observation to help gauge
a person’s relative intoxication. Kronander explained the procedure for administering the
Case No. 2022-L-105 VGN test involves the subject tracking a stimulus 12-15 inches above eye level. The
administrator moves the stimulus vertically until the subject cannot look up any farther. If
the subject has nystagmus, this observation indicates the person has consumed a high
amount of alcohol for that person’s tolerance level.
{¶20} Appellant objected to the admission of Kronander’s testimony on the VGN.
However, the trial court overruled the objection and Kronander testified that appellant did
not have VGN present. Appellant performed the WAT and OLS tests and Kronander
observed multiple clues during each of those tests which indicated appellant was
intoxicated.
{¶21} Kronander arrested appellant and took him to the Lake County Jail,
however, appellant was refused entry due to injuries from his accident. Kronander brought
appellant to TriPoint Hospital. While there, Kronander asked appellant to submit to a urine
test, but appellant refused.
{¶22} Appellant sought to admit a statement that Kronander heard at the hospital
that appellant had a fractured hip. The trial court ruled that this statement was hearsay
and inadmissible. Appellant argued that Evid.R. 803(8) was an exception that would allow
admission of the medical statement through Kronander’s written police report. The trial
court inquired of Kronander and he stated he could not specifically remember who told
him that appellant had a fractured hip, but he believed it was one of appellant’s healthcare
providers. The trial court concluded that a certified medical record or other non-hearsay
source of appellant’s medical diagnosis would be admissible but said it would not admit
the hearsay statement contained in Kronander’s report because Kronander did not have
personal knowledge of appellant’s medical condition. Appellant made a proffer for the
Case No. 2022-L-105 record that he would have asked Kronander how his knowledge of appellant’s injuries
would affect his assessment of appellant’s performance of the WAT and OLS tests.
{¶23} On cross-examination, defense counsel asked Kronander about appellant’s
ability to perform SFSTs. Kronander said that appellant had been cleared by EMTs and
appellant denied having any problems to prevent him from performing them. He said the
first time appellant complained of hip pain was in his cruiser on the way to the jail. He also
acknowledged that appellant was discharged from the hospital with crutches.
{¶24} The State rested and appellant made a Crim.R. 29 Motion for Acquittal,
which the trial court denied.
{¶25} Appellant called one witness, his father, Deon McCaulley Sr., to testify in
his case in chief. McCaulley Sr. testified that appellant called to tell him he had been in
an accident and McCaulley Sr. went to the scene. When he arrived, appellant was being
treated by EMTs. McCaulley Sr. said appellant was speaking clearly with no delay in his
responses and there was no odor of alcohol. He also said he had previously seen
appellant while under the influence of alcohol and did not believe he was intoxicated at
the time. On cross-examination, McCaulley Sr. acknowledged that he did not see
appellant at the crash scene while he was standing up.
{¶26} Appellant rested and renewed his Crim.R. 29 motion, which the trial court
denied. The jury returned a guilty verdict on both counts.
{¶27} On September 29, 2022, the trial court sentenced appellant to 45 days jail,
one year community control, and a one-year license suspension.
{¶28} Appellant timely appealed and raises three assignments of error.
Case No. 2022-L-105 Assignments of Error and Analysis
{¶29} Appellants first assignment of error states:
{¶30} “[1.] THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
DEFENDANT IN FAILING TO PERMIT THE DEFENSE TO ENTER THE TROOPER’S
POLICE REPORT AS EVIDENCE UNDER EVIDENCE RULE 803(8)(b), AND THAT
REFUSAL CONSTITUTES A DENIAL OF THE RIGHT TO PRESENT A DEFENSE.”
{¶31} Appellant argues that the trial court should have allowed the admission of
Kronander’s police report, which indicated appellant suffered from a fractured hip after
his accident. Appellant believes this information was necessary to his defense because
his injury undermined the reliability of the OLS and WAT SFSTs.
{¶32} This court has held that whether evidence constitutes inadmissible hearsay
is a question of law subject to de novo review. Morford v. Morford, 2018-Ohio-3439, 118
N.E.3d 937, ¶ 12 (11th Dist.). “Determining whether the evidence is offered for an
impermissible purpose does not involve the exercise of discretion * * *, an appellate court
should scrutinize the [trial court's] finding under a de novo standard of review.” State v.
Hartman, 161 Ohio St. 3d 214, 2020-Ohio-4440, 161 N.E.3d 651, ¶ 22, citing State v.
Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 17. This is because
Evid.R. 802 specifically provides that “hearsay is not admissible.” Therefore, “the trial
court’s decision to admit hearsay is not governed by the test of abuse of discretion, which
the Supreme Court applies to instances where the trial court's evidentiary rulings relate
to matters expressly or implicitly within its discretion, as in rulings on relevancy (Evid.R.
402 and 403) or expert testimony (Evid.R. 702).” State v. Sorrels, 71 Ohio App.3d 162,
165, 593 N.E.2d 313 (1st Dist.1991). We review the trial court’s decision relating to
Case No. 2022-L-105 hearsay “in light of Evid.R. 103(A) and the standard established in Crim.R. 52(A),
providing that such errors are harmless unless the record demonstrates that the errors
affected a party's substantial right.” Id.
{¶33} Hearsay is defined as a “statement, other than one made by the declarant
while testifying at trial, offered in evidence to prove the truth of the matter
asserted.” Evid.R. 801(C). It is well established that police reports are generally
inadmissible hearsay. State v. Williams, 11th Dist. Trumbull No. 2005-T-0123, 2006-Ohio-
6689, ¶ 23, citing State v. Leonard, 2104 Ohio St.3d 54, 818 N.E.2d 229, 2003-Ohio-
6235, ¶ 111. Evid.R. 803(8)(b) is one exception to this general rule. Id.
{¶34} Evid.R. 803(8)(b) provides the following public records, reports, and
statements are not hearsay, even though the declarant is available as a witness:
matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, unless offered by defendant, unless the sources of information or other circumstances indicate lack of trustworthiness.
{¶35} Under this rule a police report is potentially admissible evidence and the
statements are not hearsay if the observations in the report are the firsthand observations
of the official making the report or the observations of a person with a duty to report to a
public official. State v. Gau, 11th Dist. Lake No. 2000-L-109, 2002-Ohio-4216, ¶ 19, citing
Petti v. Perna, 86 Ohio App.3d 508, 514, 621 N.E.2d 580 (3rd Dist.1993). “‘All persons
furnishing and recording information must be under an official duty to do so.’” Gau at ¶
19, quoting State v. York, 115 Ohio App.3d 245, 248, 685 N.E.2d 261 (4th Dist.1996). “‘If
the supplier of information is not under a duty to do so, an essential link in Evid.R.
803(8)(b) is broken.’” Id. This rule does not embrace statements made by private citizens.
Case No. 2022-L-105 Gau, citing Cincinnati Ins. Co. v. Volkswagen of America, Inc., 41 Ohio App.3d 239, 242,
535 N.E.2d 702 (10th Dist.1987).
{¶36} A statement in a police report from a person who does not have a duty to
make a report and acting as a private citizen is not admissible. Id. at ¶ 20. This is because
it breaks an essential link in the analysis under Evid.R. 803(8)(b). Id. Evid.R. 803(8)(b)
provides an exception which allows the defendant to admit statements in a report
involving “matters observed by police officers and other law enforcement personnel” if
there is no indication of a lack of trustworthiness. Id. at ¶ 21. However, this exception
does not apply to statements in a report where the information is not based on firsthand
observations of the officer. Id.
{¶37} Here, the statements appellant sought to introduce at trial were made by
appellant’s healthcare providers and recorded in Kronander’s police report. During the
evidence proffer, Kronander was unable to identify who specifically told him appellant had
a fractured hip. This out of court statement was offered to prove the truth of the matter
asserted – that appellant had been diagnosed with a hip fracture.
{¶38} Kronander did not record appellant’s fractured hip in his report based on his
own firsthand knowledge. Gau at ¶ 21. He included appellant’s medical diagnosis in his
report as he received it from appellant’s healthcare professionals rather than his own
observations.
{¶39} Further, we are unaware of any authority – and appellant cites none – which
indicates that a healthcare provider has a duty to report a patient’s medical status to the
police. As York explained, this lack of duty to report breaks an essential link in the Evid.R.
Case No. 2022-L-105 803(8)(b) analysis. York, supra, at 248. Therefore, even though appellant offered the
report, it was not admissible. Id.
{¶40} Assuming arguendo that the statements about appellant’s medical
diagnosis should have been admitted, we would still find no reversible error. Where, as
here, the defendant has objected to a claimed error in the trial court, an appellate court
reviews error under a harmless error standard set forth in Crim.R. 52(A). State v. Perry,
101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 15; Sorrels, 71 Ohio App.3d 162,
165, 593 N.E.2d 313.
{¶41} The harmless error standard is “‘significantly more favorable to the
defendant.’” Id., quoting United States v. Curbelo, 343 F.3d 273, 286 (4th Cir. 2003).
Under a harmless error standard, the government bears the burden of demonstrating that
the error did not affect the substantial rights of the defendant. Id. “An appellate court must
reverse a conviction if the government does not satisfy this burden * * *.” Id. “Whether the
defendant's substantial rights were affected depends on whether the error was prejudicial,
i.e., whether it affected the outcome of the trial.” State v. Jones, 160 Ohio St.3d 314,
2020-Ohio-3051, 156 N.E.3d 872, ¶ 18, citing State v. Fisher, 99 Ohio St.3d 127, 2003-
Ohio-2761, 789 N.E.2d 222, ¶ 7. Where the State fails to meet its burden, the appellate
court must reverse the conviction. Perry at ¶ 15.
{¶42} Although evidence of appellant’s hip fracture could have undermined the
reliability of the OLS and WAT tests, this would not warrant reversal. Appellant refused
transport to the hospital and was only taken to the emergency room because the jail
refused to admit him until he had been medically cleared. Kronander’s dash camera
shows that he asked appellant if “you have any problems with your legs at all?” Further,
Case No. 2022-L-105 appellant did not begin to complain of hip pain until after his arrest. While appellant claims
that his OLS test was compromised by him supporting his weight on his fractured hip, the
OLS test allows the subject to choose either leg to stand on and Kronander instructed
appellant to choose whichever leg he felt more comfortable with using for the test. This
undermines appellant’s claim that his hip fracture was so severe that he could not perform
these tests and that their reliability was compromised.
{¶43} One factor tending to undermine the reliability of the OLS and WAT tests
was that appellant was discharged from the hospital with crutches. However, the jury was
made aware of this through Kronander’s testimony. Therefore, regardless of whether
appellant’s specific medical diagnosis was made part of the record, testimony made the
jury aware of his need for crutches and thus the potential that his injuries compromised
the reliability of the OLS and WAT tests. This ameliorates much of appellant’s concern
that the jury assessed his performance on the WAT and OLS tests without regard to
injuries sustained in the crash.
{¶44} More importantly, the totality of the evidence was indicative of appellant’s
impairment. Appellant was driving so erratically that Smith described it as the worst he
had ever seen, and he believed appellant was intoxicated. Smith said he saw appellant
throwing glass bottles from the car after he crashed. Appellant admitted consuming
Hennessey to Black. Several witnesses stated he had an odor of alcoholic beverage
emanating from his person, had glassy, bloodshot eyes, and seemed “out of it.” Further,
the HGN test revealed six out of six possible clues which indicates a high probability of
intoxication. These factors indicate exclusion of the police report offered by appellant was
harmless.
Case No. 2022-L-105 {¶45} Accordingly, appellant’s first assignment of error is without merit.
{¶46} Appellant’s second assignment of error states:
{¶47} “[2.] THE TRIAL COURT ERRED IN PERMITTING THE STATE OF OHIO
TO INTRODUCE EVIDENCE OF THE VERTICAL GAZE NYSTAGMUS TEST AFTER
THE STATE OF OHIO FAILED TO ESTABLISH SUBSTANTIAL COMPLIANCE
PURUSUANT TO R.C. 4511.19.”
{¶48} Appellant argues that the trial court erred by allowing Kronander to testify
as to appellant’s VGN results. He asserts that Kronander’s testimony about the purpose
of the test was incorrect by suggesting that a positive VGN result could be indicative that
an individual had consumed a large amount of alcohol based on that person’s tolerance
level.
{¶49} R.C. 4511.19(D)(4)(b) requires the State to show by clear and convincing
evidence that a law enforcement officer administering field sobriety tests “administer the
test in substantial compliance with the testing standards for any reliable, credible and
generally accepted field sobriety tests that were in effect at the time the tests were
administered, including, but not limited to, any testing standards then in effect that were
set by the national highway traffic safety administration[.]” If the State meets its burden,
then the officer may testify concerning the results of the SFST, the State may introduce
the results of the SFST, and the admissible evidence or testimony shall be admitted and
given appropriate weight by the trier of fact. R.C. 4511.19(D)(4)(b).
{¶50} However, we are unable to assess whether Kronander’s description of the
VGN was accurate or not because the NHTSA Manual, which Kronander was trained on
and which describes the purpose and methodology of each of the SFSTs, was not
Case No. 2022-L-105 admitted into evidence. Appellant offers no basis for us to conclude that Kronander’s
description was incorrect based on the testing standards for reliable field sobriety tests in
effect at the time the tests were administered. Although appellant cites several trial court
decisions suggesting the VGN is not an appropriate test to assess alcohol consumption,
each of those cases was decided more than twenty years ago. In State v. Wright, 11th
Dist. No. 2013-L-088, 2015-Ohio-2600, 38 N.E.3d 485, we concluded that where an
officer substantially complied with the procedures for performing the VGN outlined in the
NHTSA manual, the results of the VGN are admissible. Id. at ¶ 67.
{¶51} More importantly, appellant did not challenge the admissibility of the VGN
test in a pre-trial motion to suppress. The proper method to challenge the admissibility of
the State’s evidence to prove an OVI charge, claiming the State did not procure evidence
according to applicable standards or regulations, is through a Crim.R. 12(C)(3) motion to
suppress evidence. State v. Beavers, 11th Dist. Ashtabula No. 2019-A-0028, 2020-Ohio-
69, ¶ 15; City of Defiance v. Kretz, 60 Ohio St.3d 1, 5, 573 N.E.2d 32 (1991). As applied
to the HGN test, a defendant who “seeks to challenge whether the test was administered
in substantial compliance with NHTSA standards * * * has waived that challenge by not
filing a motion to suppress.” Beavers at ¶ 17; See State v. French, 72 Ohio St.3d 446,
450, 650 N.E.2d 887 (1995) (holding that a failure to challenge the admissibility of a
chemical test through a pretrial motion waives the requirement on the State to lay a
foundation for the admissibility of the test results at trial.) We see no reason why the same
standard should not similarly apply to the VGN portion of the SFSTs, resulting in
appellant’s waiver.
Case No. 2022-L-105 {¶52} At trial, Kronander testified as to how to administer the VGN test and stated
he administered all of the SFSTs based on his training in accordance with NHTSA
standards. He also said the VGN test is used as “more of just an observation than a clue,”
that the VGN does not factor into the administration of the HGN test, and that he did not
observe any nystagmus while performing the VGN. Therefore, assuming arguendo the
trial court erred in admitting testimony about the VGN, such error would be harmless.
{¶53} Accordingly, appellant’s second assignment of error is without merit.
{¶54} Appellant’s third assignment of error states:
{¶55} “[3.] APPELLANT WAS CONVICTED UPON INSUFFICIENT EVIDENCE
TO DETERMINE HE WAS UNDER THE INFLUENCE OF ALCOHOL WHILE
OPERATING A MOTOR VEHICLE, AND THUS WAS NOT CARRYING A FIREARM
IMPROPERLY.”
{¶56} “‘Sufficiency’ is a term of art meaning that legal standard which is applied to
determine whether the case may go to the jury or whether the evidence is legally sufficient
to support the jury’s verdict as a matter of law.” State v. Thompkins, 78 Ohio St.3d 380,
386, 678 N.E.2d 541 (1997), citing Black's Law Dictionary (6 Ed.1990) 1433. The
appellate court’s standard of review for sufficiency of evidence is to determine, after
viewing the evidence in a light most favorable to the prosecution, whether a rational trier
of fact could find the essential elements of the crime proven beyond a reasonable doubt.
State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶57} When evaluating the sufficiency of the evidence, we do not consider its
credibility or effect in inducing belief. Thompkins at 387. Rather, we decide whether, if
believed, the evidence can sustain the verdict as a matter of law. Id. This naturally entails
Case No. 2022-L-105 a review of the elements of the charged offense and a review of the State’s evidence.
State v. Richardson, 150 Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶ 13.
{¶58} R.C. 4511.19(A)(1)(a) provides: “No person shall operate any vehicle,
streetcar, or trackless trolley within this state, if, at the time of the operation, any of the
following apply: (a) The person is under the influence of alcohol, a drug of abuse, or a
combination of them.”
{¶59} R.C. 2923.16(D)(1) provides: “No person shall knowingly transport or have
a loaded handgun in a motor vehicle if, at the time of that transportation or possession,
any of the following applies: (1) The person is under the influence of alcohol, a drug of
abuse, or a combination of them.”
{¶60} Here, a rational trier of fact could find the essential elements of each count
proven beyond a reasonable doubt. The elements of each offense were supported by the
testimony of multiple witnesses and those witnesses’ testimony was further bolstered by
the corroborating dash camera and body camera evidence which demonstrated
appellant’s state of impairment and that he transported a handgun in his vehicle while
impaired.
{¶61} As described under our analysis of the first assignment of error, appellant’s
driving was erratic, and Smith believed he was intoxicated. Smith said he saw appellant
throwing glass bottles from the car after he crashed, and appellant admitted to consuming
alcohol. The HGN test revealed six out of six possible clues, which indicates a high
probability of intoxication. The evidence demonstrates appellant operated a motor vehicle
while under the influence of alcohol, a drug of abuse, or a combination of both. Further,
Case No. 2022-L-105 the State presented evidence that appellant had a loaded, operable, firearm which he
transported in his vehicle while under the influence.
{¶62} Accordingly, appellant’s third assignment of error is without merit.
{¶63} For the foregoing reasons, the judgment of the Lake County Court of
Common Pleas is affirmed.
MARY JANE TRAPP, J.,
EUGENE A. LUCCI, J.,
concur.
Case No. 2022-L-105