[Cite as State v. Rabe, 2014-Ohio-2008.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2013-09-068
: OPINION - vs - 5/12/2014 :
DAVID L. RABE, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2012CR00531
D. Vincent Faris, Clermont County Prosecuting Attorney, Judith A. Brant, 76 South Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee
The Farrish Law Firm, Michaela M. Stagnaro, 810 Sycamore Street, 6th Floor, Cincinnati, Ohio 45202, for defendant-appellant
PIPER, J.
{¶ 1} Defendant-appellant, David Rabe, appeals his convictions and sentence in the
Clermont County Court of Common Pleas for two counts of operating a vehicle while under
the influence of alcohol (OVI), along with counts of failing to stop after an accident and
driving under an OVI suspension.
{¶ 2} During the evening hours of June 13, 2012, Deputy Chris Allen was dispatched Clermont CA2013-09-068
to the scene of an accident reported by a 911 caller. The caller stated that he observed a
white work van with ladders attached to the roof hit two vehicles and flee the scene. The 911
caller followed the van to a side-street near an apartment complex, and got out of his vehicle
to approach the van. At that point, the white work van drove toward the caller, and the
ladders attached to the van's roof hit the caller's vehicle causing damage. The caller, who
had ducked out of the way of the ladders and was not injured, watched the van enter the
apartment complex and park haphazardly.
{¶ 3} The caller approached the driver, later identified as Rabe, and tried to speak to
him. During the interaction, the caller smelled alcohol on Rabe and observed Rabe acting as
if he was intoxicated. Rabe began telling other people in the parking lot that the caller had
just hit his work van, and then he walked into an apartment building.
{¶ 4} After the interaction with Rabe, the caller waited for Deputy Allen to arrive.
Once Deputy Allen arrived at the apartment complex, the 911 caller described Rabe and
identified the white van he had followed from the scene of the accident. The 911 caller
directed Deputy Allen to the specific building of the apartment complex he saw Rabe enter
after their interaction.
{¶ 5} Deputy Allen approached the white work van, which had ladders attached to the
roof, and observed "significant rear damage." Deputy Allen also noticed several people near
the van who were working on a vehicle. Deputy Allen asked the people if they were familiar
with the owner of the white work van, and they stated that they were. The people working on
the vehicle directed Deputy Allen to a specific apartment in building 68, and informed Deputy
Allen that the driver of the white van was named Dave. Deputy Allen approached the
apartment, knocked on the door, and was greeted by a woman later identified as Rabe's
girlfriend. When Deputy Allen asked to speak to the owner of the white work van, the woman
told Deputy Allen to "hold on a second," and then loudly called for Rabe. Rabe did not -2- Clermont CA2013-09-068
respond so Rabe's girlfriend permitted Deputy Allen to enter the apartment. Once in the
apartment, Deputy Allen found Rabe making toast in the kitchen.
{¶ 6} Deputy Allen observed that Rabe's eyes were bloodshot and glassy and that his
speech was somewhat slurred. Rabe had difficulty maintaining his balance, and another
deputy, who had since arrived at the apartment, had to help Rabe keep his balance. When
questioned by the deputies, Rabe stated that he had not driven the van that day, but could
not tell the deputies how the van was damaged or who could have been driving it at the time
of the accident. Deputy Allen informed Rabe of his belief that Rabe was the driver of the van
at the time of the accident. Deputy Allen informed Rabe that he was "going to take him into
custody * * *." Deputy Allen placed Rabe, who had become "uncooperative and upset," in
handcuffs and placed him in the back of his police cruiser until the highway patrol arrived. As
he placed Rabe in his cruiser, Deputy Allen noticed a "significant smell of alcohol coming
from [Rabe's] person."
{¶ 7} Trooper Drew Untied of the highway patrol arrived at the scene of the accident
and was told that a white van had caused the accident and then had fled the scene. The
drivers of the two vehicles hit by the white work van informed Trooper Untied that the van had
turned left in front of one vehicle, crashed into it, and then came to a stop. The white van
then backed up suddenly, hitting the other vehicle in the process. The van then drove over
the curb and fled the scene. The drivers told Trooper Untied that the white work van suffered
heavy damage to its rear, and that a witness to the accident had followed the white van after
it fled the scene.
{¶ 8} Police dispatch informed Trooper Untied that the driver of the white work van
had been detained at the apartment complex, and Trooper Untied went to the complex to
investigate further once he had finished investigating the scene of the accident. Once at the
complex, Trooper Untied observed that Rabe's van had extensive damage on the rear panel -3- Clermont CA2013-09-068
and bumper. Other officers at the scene informed Trooper Untied that Rabe's girlfriend had
given a statement that Rabe arrived at the apartment shortly before Deputy Allen knocked on
the door, and that Rabe was driving the white work van that day. Once he had all of the
pertinent information, Trooper Untied questioned Rabe.
{¶ 9} Trooper Untied opened the door to Deputy Allen's police cruiser to speak to
Rabe, and Trooper Untied detected a strong odor of alcohol coming from inside the cruiser.
Trooper Untied also observed that Rabe's eyes were "very bloodshot and glassy" and that
Rabe's speech was slightly slurred.
{¶ 10} Trooper Untied began the process of administering field sobriety tests, and
questioned Rabe about the incident. Rabe denied drinking and also stated that he was not
aware of what happened to his van. Rabe told Trooper Untied that he had an inner ear
problem that caused ringing in his ear and left him unbalanced. Rabe also told Trooper
Untied that he had an injured rotator cuff, a bulging disc in his lower back, a pinched nerve,
and had taken a prescribed sleeping pill prior to the officers coming to his home. Trooper
Untied then administered a horizontal gaze nystagmus (HGN) test and found that Rabe
exhibited six out of a possible six clues of impairment. Trooper Untied also administered a
walk-and-turn test and found five out of a possible eight clues, as well as a one-leg-stand test
with three out four clues indicating impairment. Trooper Untied then asked Rabe to recite
portions of the alphabet and to count backwards, and Rabe had difficulty doing both. Officer
Untied then informed Rabe that he would conduct a portable breath test, and Rabe refused
to cooperate in the testing and subsequently refused to take the Breathalyzer test.
{¶ 11} Rabe was indicted on two counts of OVI, and counts of failing to stop after an
accident and driving under an OVI suspension. Rabe filed a motion to suppress, arguing that
his arrest, by either Deputy Allen or Trooper Untied, was not based upon probable cause.
The trial court held a hearing on Rabe's motion, and heard testimony from Trooper Untied, -4- Clermont CA2013-09-068
Deputy Allen, and Rabe's girlfriend. The court overruled Rabe's motion to suppress, and the
matter was scheduled for trial.
{¶ 12} Ten days before the trial, Rabe filed a motion to substitute appointed counsel.
The trial court granted Rabe's motion, and issued an entry on March 20, 2013 stating that
Rabe was not permitted to use any additional witnesses or evidence at trial unless it could be
shown that the evidence could not have, in good faith, been discovered prior to the date of
the entry, March 20, 2013. Rabe later filed a motion in limine to prohibit the state from
introducing photos taken of Rabe's van on the day of the incident, some of which depicted
beer cans inside the van. The trial court overruled Rabe's motion, and the matter proceeded
to a two-day jury trial.
{¶ 13} The jury found Rabe guilty of all counts, and the trial court sentenced Rabe to
an aggregate three-year sentence, as well as a fine of $1,375, court costs, and restitution.
Rabe now appeals his convictions and sentence, raising the following assignments of error.
{¶ 14} Assignment of Error No. 1:
{¶ 15} THE TRIAL COURT ERRED AS A MATTER OF LAW BY OVERRULING
APPELLANT'S MOTION TO SUPPRESS.
{¶ 16} Rabe argues in his first assignment of error that the trial court erred in
overruling his motion to suppress.
{¶ 17} Appellate review of a ruling on a motion to suppress presents a mixed question
of law and fact. State v. Cochran, 12th Dist. Preble No. CA2006-10-023, 2007-Ohio-3353.
Acting as the trier of fact, the trial court is in the best position to resolve factual questions and
evaluate witness credibility. Id. Therefore, when reviewing the denial of a motion to
suppress, a reviewing court is bound to accept the trial court's findings of fact if they are
supported by competent, credible evidence. State v. Oatis, 12th Dist. Butler No. CA2005-03-
074, 2005-Ohio-6038. "An appellate court, however, independently reviews the trial court's -5- Clermont CA2013-09-068
legal conclusions based on those facts and determines, without deference to the trial court's
decision, whether as a matter of law, the facts satisfy the appropriate legal standard."
Cochran at ¶ 12.
{¶ 18} Rabe argues that the motion to suppress should have been granted because
(1) there was not probable cause to arrest him, (2) he was held for an unreasonable amount
of time in Deputy Allen's cruiser until Trooper Untied arrived to investigate and administer the
field sobriety tests, and (3) the field sobriety tests were not properly performed.
{¶ 19} In order to arrest a person without a warrant, an officer must have probable
cause. State v. Aslinger, 12th Dist. Preble No. CA2011-11-014, 2012-Ohio-5436, ¶ 13, citing
Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225 (1964). The test for establishing probable
cause to arrest without a warrant is whether the facts and circumstances within an officer's
knowledge were sufficient to warrant a prudent individual in believing that the defendant had
committed or was committing an offense. Id. A probable cause determination is based upon
the totality of the facts and circumstances. State v. Oglesby, 12th Dist. Clinton No. CA2004-
12-027, 2005-Ohio-6556, ¶ 17.
{¶ 20} During the motion to suppress hearing, the trial court heard ample evidence to
establish that both Deputy Allen and Trooper Untied had probable cause to arrest Rabe.
Both officers testified to smelling alcohol coming from Rabe, that Rabe's eyes were bloodshot
and glassy, and that Rabe was slurring his speech and having difficulty with his balance. The
officers were also given information that the white work van with ladders attached to the roof,
which was owned by Rabe, had caused the accident. The officers observed extensive
damage to Rabe's van, indicative of being involved in the accident with the two vehicles. The
officers also had information from Rabe's girlfriend that Rabe had been driving the van on the
day of the accident, and that he had only arrived at the apartment moments before Deputy
Allen arrived to question Rabe. Based upon the totality of the circumstances, the officers -6- Clermont CA2013-09-068
were warranted in believing that Rabe had driven under the influence and had left the scene
of the accident. Therefore, Rabe's arrest was supported by probable cause and the trial
court properly overruled that aspect of the motion to suppress.
{¶ 21} Rabe also argues that his motion to suppress should have been granted
because Trooper Untied did not question him until approximately an hour after Deputy Allen
placed him in the police cruiser. Rabe suggests that absent probable cause to arrest for the
OVI-related crimes, all Deputy Allen had was a reasonable suspicion of criminal activity so
that Deputy Allen could have only detained Rabe for a reasonable time for a more in-depth
investigation. Rabe contends that the hour-long detention before Trooper Untied questioned
him was unreasonable.
{¶ 22} If during an initial detention, an officer ascertains reasonably articulable facts
giving rise to a suspicion of criminal activity, the officer may then further detain and
implement a more in-depth investigation of the suspect. State v. Smith, 12th Dist. Warren
No. CA2012-03-022, 2012-Ohio-5962, citing State v. Robinette, 80 Ohio St.3d 234,
241(1997). Reasonable articulable suspicion exists when there are specific and articulable
facts which, taken together with rational inferences from those facts, reasonably warrant the
intrusion. State v. Bobo, 37 Ohio St.3d 177, 178 (1988).
{¶ 23} The record is clear that Deputy Allen had probable cause, not merely an
articulable suspicion, to detain Rabe for further investigation. During the time that Rabe sat
in the back of Deputy Allen's police cruiser, the police continued their investigation of the
accident site, as well as questioned witnesses to further develop the facts. Trooper Untied
remained at the crash site until he had investigated properly and had ensured that the
damaged vehicles were safely removed from the road. At that point, Trooper Untied went to
the apartment complex, where he received additional information and confirmed facts
indicating that Rabe was the driver of the white work van that had caused the accident and -7- Clermont CA2013-09-068
fled the scene.
{¶ 24} These facts, as already discussed above, indicated that Rabe was intoxicated,
had arrived at the apartment shortly before Deputy Allen arrived, and that Rabe was driving
the white work van. The time it took Trooper Untied to appear at the apartment complex was
reasonable, and he did nothing to delay the investigation and fact-gathering process. As
such, Trooper Untied's questioning was proper, and the motion to suppress was in this
regard also properly overruled.
{¶ 25} Rabe also argues that his motion to suppress should have been granted
because Trooper Untied failed to administer the field sobriety tests in compliance with the
guidelines set forth by the National Highway Traffic Safety Association (NHTSA).
Specifically, Rabe argues that Trooper Untied did not comply with the standards because he
did not take into account how Rabe's medical conditions would affect his ability to comply
with the field sobriety tests.
{¶ 26} In order for field sobriety testing evidence to be admissible, the state is not
required to show strict compliance with testing standards, but must instead demonstrate that
the officer substantially complied with NHTSA standards. R.C. 4511.19(D)(4)(b); and State v.
Clark, 12th Dist. Brown No. CA2009-10-039, 2010-Ohio-4567. "A determination of whether
the facts satisfy the substantial compliance standard is made on a case-by-case basis."
State v. Fink, 12th Dist. Warren Nos. CA2008-10-118, CA2008-10-119, 2009-Ohio-3538, ¶
26; State v. Selvage, 12th Dist. Clermont No. CA2011-08-058, 2012-Ohio-2149.
{¶ 27} After reviewing the record, we find that Trooper Untied substantially complied
with the NHTSA requirements when administering the field sobriety tests. Trooper Untied
testified at the motion to suppress hearing, and the state presented a video recording of
Rabe performing the field sobriety tests. A review of Trooper Untied's testimony and the
video demonstrates that Trooper Untied properly explained the testing to Rabe, and properly -8- Clermont CA2013-09-068
directed Rabe in taking each test. Trooper Untied followed NHTSA guidelines by discussing
any possible medical conditions with Rabe, and Rabe informed Trooper Untied that he had
inner ear problems, an injured rotator cuff, and bulging disks in his back. Rabe also informed
Trooper Untied that he had taken a sleeping pill that evening.
{¶ 28} Trooper Untied's testimony and the video demonstrate that Trooper Untied took
Rabe's medical impairments into consideration when conducting the field sobriety tests. For
example, at one point during the one-leg-stand test, Trooper Untied gave Rabe the option of
using either leg on which to balance because Rabe complained that his pinched nerve made
it difficult to stand on his right leg. However, at no other time did Rabe state that he was
unable to perform any of the tests because of his medical conditions, other than stating that
his back hurt during the one-leg-stand test. There is no indication in the record that Rabe
was unable to perform the tests or that Rabe's alleged medical conditions made the results of
the tests unreliable or skewed.
{¶ 29} Based on the facts of this case, the state carried its burden to demonstrate
substantial compliance with the NHTSA requirements so that the tests were admissible and
Rabe's motion to suppress was properly overruled. Therefore, Rabe's first assignment of
error is overruled.
{¶ 30} Assignment of Error No. 2:
{¶ 31} THE TRIAL COURT ERRED BY RESTRICTING APPELLANT FROM
INTRODUCING ANY EVIDENCE AND/OR WITNESSES THAT HAD NOT BEEN
DISCLOSED PRIOR TO MARCH 20, 2013.
{¶ 32} Rabe argues in his second assignment of error that the trial court erred by
closing discovery as of March 20, 2013, the day the trial court appointed Rabe new counsel.
{¶ 33} According to Crim.R. 16(L)(1), a trial court "may make orders regulating
discovery * * *." A trial court's decision regarding a discovery order will not be reversed -9- Clermont CA2013-09-068
absent an abuse of discretion. State v. Cartwright, 12th Dist. Preble No. CA2012-03-003,
2013-Ohio-2156. An abuse of discretion occurs when a trial court's decision is arbitrary,
unconscionable or unreasonable. State v. Smith, 12th Dist. Butler No. CA2008-03-064,
2009-Ohio-5517, ¶ 31.
{¶ 34} The record indicates that ten days before Rabe's jury trial was scheduled to
begin, he moved the court to appoint new counsel. Five days later, the trial court held a
hearing on Rabe's motion to appoint new counsel. Rabe told the trial court that he wanted
different representation because his original counsel was not preparing adequately for the
upcoming trial, was too intent upon Rabe pleading guilty to the charges, and was not
pursuing the evidence that Rabe claimed he had that established his innocence. The trial
court asked Rabe what more his counsel could be doing for him, and what evidence or
witnesses existed that Rabe's counsel was not pursuing. Rabe responded that the only
witness he intended to call was his girlfriend, and he was unaware of any other evidence.
{¶ 35} The trial court granted Rabe's motion to appoint new counsel, but also ordered
that discovery would be closed as of that date, March 20, 2013. The trial court reasoned that
Rabe acknowledged that he had no other evidence or witnesses to present on his behalf,
other than which was already discovered during the time of representation by Rabe's original
trial counsel. We do not find that the trial court's decision was an abuse of discretion.
{¶ 36} The trial court's order limited Rabe to the evidence that was already collected
during the normal discovery period before trial was scheduled to begin. Rabe untimely
moved for substitution of counsel, and the matter was heard only five days prior to the
scheduled commencement of Rabe's jury trial. The trial court's decision to close discovery
as of the date of substitution of counsel did not foreclose the possibility of using newly
discovered evidence, so long as the evidence could not have been, in good faith, discovered
before the substitution of counsel occurred. - 10 - Clermont CA2013-09-068
{¶ 37} Moreover, Rabe has not pointed to a single piece of evidence he was denied
from admitting, and has not stated any prejudice by the trial court's order. Rabe did not
proffer any evidence or witnesses he was foreclosed from presenting at trial because of the
trial court's order, and he has not argued on appeal that there was any such evidence
available to him after the date discovery was closed. As such, the trial court's decision to
close discovery was not an abuse of discretion, and Rabe's second assignment of error is
overruled.
{¶ 38} Assignment of Error No. 3:
{¶ 39} APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN
VIOLATION OF HIS CONSTITUTIONAL RIGHTS THUS PREJUDICING HIS RIGHT TO A
FAIR TRIAL.
{¶ 40} Rabe argues in his third assignment of error that his trial counsel was
ineffective for failing to successfully advance the motion to suppress, and for not objecting to
a photograph's admission at trial.
{¶ 41} Rabe first argues that his trial counsel was ineffective for not offering a more
specific argument regarding the field sobriety tests within his motion to suppress and at the
motion to suppress hearing. While the field sobriety tests were made an issue at the hearing
on the motion to suppress, Rabe argues that his counsel did not fully explore the issue, and
that if he had, the results of the hearing "may" have been different.
{¶ 42} In order to prove ineffective assistance of counsel, an appellant must establish
that first, "his trial counsel's performance was deficient; and second, that the deficient
performance prejudiced the defense to the point of depriving the appellant of a fair trial."
State v. Myers, 12th Dist. Fayette No. CA2005-12-035, 2007-Ohio-915, ¶ 33, citing Strickland
v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052 (1984). Regarding the first prong, an
appellant must show that his counsel's representation "fell below an objective standard of - 11 - Clermont CA2013-09-068
reasonableness." Strickland, 466 U.S at 688. The second prong requires the appellant to
show "a reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Id. at 694.
{¶ 43} Therefore, in order to establish that his trial counsel was ineffective, Rabe must
demonstrate that the trial court would have granted the motion to suppress based upon an
invalidity of the field sobriety tests. However, Rabe submits only that the results "may" have
been different and is otherwise unable to demonstrate that the tests were performed in an
improper manner.
{¶ 44} As previously discussed within Rabe's first assignment of error, Trooper Untied
substantially complied with NHTSA standards when administering the tests. Despite Rabe's
contention that further questioning of Trooper Untied would have revealed that he did not
take Rabe's medical conditions into consideration during the testing, Trooper Untied's
testimony and the video demonstrate otherwise. There is no indication in the record that any
further or more intensive questioning during the motion to suppress hearing would have
resulted in a different outcome. As such, Rabe cannot show that his trial counsel was
ineffective in arguing the motion to suppress.
{¶ 45} Rabe next contends that his trial counsel was ineffective for not objecting to the
admission of a photograph during the trial, which depicted beer cans in Rabe's van on the
day of the accident. The record demonstrates that Rabe's trial counsel moved the court in a
motion in limine to preclude the state from offering the photo at trial because the photograph
of the beer cans in the van was irrelevant and likely to lead to unfair prejudice and confusion
to the jury. However, the trial court overruled the motion, instead finding that the photograph
was relevant and that its probative value was not outweighed by any potential prejudicial
value.
{¶ 46} During the jury trial, Rabe's counsel did not object to the admission of the - 12 - Clermont CA2013-09-068
photograph at the time the state discussed the photograph with Trooper Untied during his
direct testimony.1 Rabe now argues that the lack of an objection rendered his assistance of
counsel ineffective. However, the record demonstrates that even if counsel had objected to
the admission of the photograph at the time the photograph was first discussed, such
objection would have been overruled because the photograph was admissible.
{¶ 47} "It is well-established that the admission or exclusion of evidence rests within
the sound discretion of the trial court." State v. Jones, 12th Dist. Butler No. CA2012-04-077,
2013-Ohio-654, ¶ 54. Absent an abuse of discretion, an appellate court will not disturb a trial
court's ruling as to the admissibility of evidence. State v. Isham, 12th Dist. Butler No.
CA2013-07-123, 2014-Ohio-1689.
{¶ 48} Evid.R. 401 defines relevant evidence as "evidence having any tendency to
make the existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence." According to Evid.R.
403(A), relevant evidence is not admissible "if its probative value is substantially outweighed
by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury."
{¶ 49} The record indicates that the photograph in question was admissible. The
photograph was relevant because it permitted the jury to see that Rabe's van contained
empty beer cans at the time of the accident, which could be probative of the fact that Rabe
had consumed alcohol prior to driving that day and that he was under the influence of alcohol
when he drove.
{¶ 50} The record does not demonstrate that the probative value of the photograph
was outweighed by any possible prejudicial effect it may have had. While it is true that some
1. Rabe's counsel objected to the admission of the photographs after the state called its last witness and the parties discussed which exhibits were being offered into evidence. Rabe's counsel objected to the photographs showing the beer, and the trial court overruled the objection, finding that the photographs were relevant, were not unduly prejudicial, and would not confuse the jury.
- 13 - Clermont CA2013-09-068
of the cans were located in the rear of the van and therefore could not be accessed by Rabe
while he drove, such a fact would speak to the weight of the evidence, rather than to its
admissibility. There was no indication that the jury would be, or was, confused by the
photograph, or that the photograph was misleading to the jury in any manner. Therefore, the
photograph was admissible, and any objection to its admissibility would have been properly
overruled by the trial court.
{¶ 51} Having found that the results of the motion to suppress hearing would not have
been different and that the photograph was admissible, Rabe has failed to demonstrate that
his trial counsel's performance was ineffective. As such, Rabe's third assignment of error is
{¶ 52} Assignment of Error No. 4:
{¶ 53} THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW AND/OR
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE TO SUSTAIN APPELLANT'S
CONVICTIONS.
{¶ 54} Rabe argues in his fourth assignment of error that his convictions are not
supported by sufficient evidence and are against the manifest weight of the evidence.
{¶ 55} A manifest weight challenge examines the inclination of the greater amount of
credible evidence, offered at a trial, to support one side of the issue rather than the other.
State v. Wilson, 12th Dist. Warren No. CA2006-01-007, 2007-Ohio-2298.
In determining whether a conviction is against the manifest weight of the evidence, the court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines whether in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.
State v. Cummings, 12th Dist. Butler No. CA2006-09-224, 2007-Ohio-4970, ¶ 12.
{¶ 56} While appellate review includes the responsibility to consider the credibility of - 14 - Clermont CA2013-09-068
witnesses and weight given to the evidence, "these issues are primarily matters for the trier of
fact to decide since the trier of fact is in the best position to judge the credibility of the
witnesses and the weight to be given the evidence." State v. Walker, 12th Dist. Butler No.
CA2006-04-085, 2007-Ohio-911, ¶ 26. Therefore, an appellate court will overturn a
conviction due to the manifest weight of the evidence only in extraordinary circumstances to
correct a manifest miscarriage of justice, and only when the evidence presented at trial
weighs heavily in favor of acquittal. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).
{¶ 57} When reviewing the sufficiency of the evidence underlying a criminal conviction,
an appellate court examines the evidence in order to determine whether such evidence, if
believed, would support a conviction. Wilson, 2007-Ohio-2298. "The relevant inquiry is
whether, after viewing the evidence in a light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime proven beyond a
reasonable doubt." State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus,
superseded on other grounds.
{¶ 58} Rabe was convicted of OVI in violation of R.C. 4511.19(A)(1)(a), which
provides, "no person shall operate any vehicle * * * if, at the time of the operation, any of the
following apply: the person is under the influence of alcohol, a drug of abuse, or a
combination of them." Rabe was also convicted of failing to stop after an accident or collision
in violation of R.C. 4549.02, which prohibits a person from leaving the scene of an accident.
Rabe was also convicted of operating a motor vehicle with a suspended license, in violation
of R.C. 4510.14(A), which prohibits a person from driving while under an OVI-related
suspension.
{¶ 59} After reviewing the record, each of Rabe's convictions was supported by
sufficient evidence and was not against the manifest weight of the evidence. During the trial,
the state presented testimony from the two drivers whose vehicles were hit by Rabe's white - 15 - Clermont CA2013-09-068
work van, who testified that Rabe turned left in front of the first vehicle, causing the first
vehicle to slam into the rear passenger portion of Rabe's work van. After Rabe's van had
come to a stop, Rabe backed his van into the second vehicle, also hitting it and causing more
damage to the back of the white work van. Both of the drivers testified that Rabe fled the
scene without stopping.
{¶ 60} The state also presented testimony from the 911 caller who had witnessed the
accident and followed Rabe once he fled the scene. The caller testified that he witnessed
the accident and began to follow Rabe once Rabe left the scene. The caller testified that he
exited his car once Rabe had turned near the apartment complex and the van came to a
stop. The caller testified that upon exiting his vehicle to check on the driver of the white van,
the van began driving toward him, and that the ladders on top of the white work van hit his
own vehicle and caused damage. The caller then watched Rabe turn into the apartment
complex and watched him exit the van. The two had an exchange wherein Rabe accused
the caller of hitting his vehicle.
{¶ 61} The caller testified that after Rabe accused him of hitting his vehicle, he
remained at the apartment complex until Deputy Allen arrived. The caller testified that during
his exchange with Rabe, he smelled alcohol coming from Rabe and that Rabe exhibited
behavior indicative of intoxication. The caller also made an in-court identification of Rabe as
the driver he saw cause the accident and flee from the scene.
{¶ 62} The state also presented testimony from Deputy Allen regarding his
investigation of the incident and of Rabe. Deputy Allen testified that he was dispatched in
response to a 911 call wherein the caller reported the accident and that the driver fled the
scene. Deputy Allen approached the apartment complex once he received an update that
the caller had followed Rabe to the specific apartment building. Deputy Allen arrived at the
apartment complex, spoke to the 911 caller, and observed extensive damage to the rear- - 16 - Clermont CA2013-09-068
passenger side of Rabe's white work van. Deputy Allen then conversed with the people who
were working nearby on their vehicle, and confirmed that the driver's name was Dave and
that he lived in a particular apartment within the complex.
{¶ 63} Deputy Allen testified that upon his approach to the apartment, he knocked on
the door and met a woman who was later identified as Rabe's girlfriend. The woman allowed
Deputy Allen to enter the apartment, where he came into contact with Rabe in the kitchen.
Deputy Allen testified that Rabe's eyes were bloodshot and glassy, and that he was slurring
his speech. Deputy Allen also testified that Rabe had difficulty balancing and was "swaying
back and forth" as the two conversed. Deputy Allen testified that he continued to question
Rabe, and that Rabe denied having been the driver of the van.
{¶ 64} Once Rabe became belligerent and agitated, Deputy Allen handcuffed Rabe
and escorted him out of his apartment and into the back of the police cruiser. Deputy Allen
testified that once he came into contact with Rabe in order to handcuff him, he could smell
the odor of alcohol coming from Rabe's breath. Deputy Allen also testified that he and
another officer had to physically assist Rabe in walking because Rabe was so unsteady on
his feet and they were afraid that he "was going to topple over" if they did not assist his
walking.
{¶ 65} The state also presented the testimony of Trooper Untied who relayed how he
had investigated the scene of the accident, and was told by the drivers and witnesses that a
white work van with ladders attached to the top had caused the accident and fled the scene.
Trooper Untied testified that once he investigated the scene of the accident, he went to the
apartment complex. There, he observed the white work van that belonged to Rabe, and saw
that it had extensive damage to the rear passenger area consistent with what the witnesses
to the accident described. Trooper Untied testified that other officers gave him information
about the investigation, including a statement from Rabe's girlfriend that Rabe had only - 17 - Clermont CA2013-09-068
arrived at the apartment moments before Deputy Allen knocked on the door and that Rabe
had been the driver of the van that day.
{¶ 66} Trooper Untied then testified about speaking with Rabe, and asking him
questions. Trooper Untied testified that he immediately detected "a strong odor of an
alcoholic beverage coming from inside the cruiser," that Rabe's eyes were "very bloodshot
and glassy," and that Rabe slurred his speech. Trooper Untied further testified about
administering the field sobriety tests, and indicated to the jury his belief that Rabe was
"absolutely under the influence" based upon his interaction with Rabe and the results of the
tests.
{¶ 67} Near the conclusion of Trooper Untied's direct examination, the state played the
video of Trooper Untied's interaction with Rabe during which time the field sobriety tests were
conducted. Rabe can be seen in the video, having difficulty performing the tests, and
Trooper Untied can be heard speaking into his microphone and indicating every time that
Rabe fails to perform the tests in an unimpaired manner. Trooper Untied then testified
regarding Rabe's refusal to submit to the portable breath test, and also testified that he was
informed during his conversation with Rabe that Rabe's license had been suspended
because of a previous OVI conviction.
{¶ 68} After viewing the foregoing evidence in a light most favorable to the
prosecution, we find that the jury could have found the essential elements of the crimes
proven beyond a reasonable doubt. Therefore, the jury did not create a manifest miscarriage
of justice through its guilty verdicts, and the evidence did not weigh heavily in favor of
acquittal. As such, Rabe's convictions are supported by sufficient evidence and are not
against the manifest weight of the evidence, and his fourth assignment of error is overruled.
{¶ 69} Assignment of Error No. 5:
{¶ 70} THE TRIAL COURT ERRED AS A MATTER OF LAW BY IMPROPERLY - 18 - Clermont CA2013-09-068
SENTENCING APPELLANT.
{¶ 71} Rabe argues in his final assignment of error that the trial court's sentence was
improper.
{¶ 72} Rabe first argues that the trial court erred in ordering him to pay restitution
because it did not consider his present and future ability to pay the sanction.
{¶ 73} According to R.C. 2929.18(A)(1), a trial court may sentence the defendant to a
financial sanction as part of the defendant's felony sentence. "Before imposing a financial
sanction under section 2929.18 of the Revised Code * * * the court shall consider the
offender's present and future ability to pay the amount of the sanction or fine." R.C.
2929.19(B)(5).
{¶ 74} "Although preferable for appellate review, a trial court need not explicitly state in
its judgment entry that it considered a defendant's ability to pay a financial sanction. Rather,
courts look to the totality of the record to see if this requirement has been satisfied." State v.
Dehner, 12th Dist. Clermont No. CA2012-12-090, 2013-Ohio-3576, ¶ 47, quoting State v.
Henderson, 4th Dist. Vinton No. 07CA659, 2008-Ohio-2063, ¶ 7. There are no express
factors that must be considered or specific findings made regarding the offender's ability to
pay. State v. Dandridge, 12th Dist. Butler No. CA2003-12-330, 2005-Ohio-1077, ¶ 6. R.C.
2929.19(B)(5) requires only that the trial court consider the offender's present or future ability
to pay. Id. citing State v. Martin, 140 Ohio App.3d 326, 327 (4th Dist.2000).
{¶ 75} During sentencing, the trial court discussed the restitution to be paid to each
victim, and did so having considered whether or not Rabe had the present or future ability to
pay. The record indicates that the trial court abided by the statutory requirement to consider
Rabe's present and future ability to pay because the trial court specifically stated its belief
that when Rabe is released from prison he would be able to obtain employment. This
statement is indicative of the trial court's reasoning that while Rabe may not have the present - 19 - Clermont CA2013-09-068
ability to pay as an incarcerated inmate, Rabe would have the future ability to pay the
sanction because he would be able to obtain employment at that time. Therefore, the record
indicates that the trial court fulfilled its statutory obligation before sentencing Rabe to a
financial sanction.
{¶ 76} Rabe next argues that his sentence was improper because the trial court
imposed its sentence without first considering the purposes and principles of sentencing or
any of the factors set forth in the sentencing statute.
{¶ 77} "The standard of review set forth in R.C. 2953.08(G)(2) shall govern all felony
sentences." State v. Crawford, 12th Dist. Clermont No. CA2012-12-088, 2013-Ohio-3315, ¶
6, quoting State v. A.H., 8th Dist. Cuyahoga No. 98622, 2013-Ohio-2525, ¶ 7. As pertinent to
this case, an appellate court will only reverse a felony sentence if the court "clearly and
convincingly finds" that the trial court's sentence is contrary to law. State v. Durham, 12th
Dist. Warren No. CA2013-03-023, 2013-Ohio-4764, ¶ 43.
{¶ 78} A sentence is not clearly and convincingly contrary to law where the trial court
considers the purposes and principles of R.C. 2929.11, as well as the factors listed in R.C.
2929.12, and sentences appellant within the permissible statutory range. Crawford at ¶ 9;
State v. Elliott, 12th Dist. Clermont No. CA2009-03-020, 2009-Ohio-5926, ¶ 10.
{¶ 79} Despite Rabe's arguments, the record demonstrates that the trial court
considered the statutory factors and sentenced Rabe within the permissible statutory range.
During the sentencing hearing, the trial court expressly noted that it had considered the
"purposes and principles of sentencing under 2929.11 and .12," and began to discuss how
those factors related to Rabe and to the circumstances of the case. The trial court noted that
Rabe was a repeat offender and had a previous OVI in the past, and that he showed little
concern for the victims or remorse generally. The court also noted that the circumstances
surrounding the crash were disturbing and required a prison sentence. Additionally, the trial - 20 - Clermont CA2013-09-068
court's judgment entry of sentence specifically states that it had reviewed "and considered
the purposes and principles of sentencing under R.C. 2929.11 and 2929.12 * * *."
{¶ 80} After reviewing the record, the trial court properly considered the statutory
requirements before sentencing Rabe as it did. Therefore, Rabe's final assignment of error is
{¶ 81} Judgment affirmed.
RINGLAND, P.J., and M. POWELL, J., concur.
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