State v. Ross

2024 Ohio 2251

• Court: Ohio Court of Appeals
• Decided: June 12, 2024
• Docket: 30810
• Status: Published

Opinion

[Cite as State v. Ross, 2024-Ohio-2251.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 30810

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE DONNIE ROSS COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 22 07 2542

DECISION AND JOURNAL ENTRY

Dated: June 12, 2024

STEVENSON, Presiding Judge.

{¶1} Defendant-Appellant Donnie Ross appeals the judgment of the Summit County

Common Pleas Court that found him guilty of operating a vehicle under the influence of alcohol

(“OVI”). This Court affirms.

I.

{¶2} Mr. Ross was charged with two counts of OVI in violation of R.C.

4511.19(A)(1)(a)/(G)(1)(e) and R.C. 4511.19(A)(2)(a)/(A)(2)(b)/(G)(1)(e)(OVI with refusal to

submit to chemical test), felonies of the third degree, and criminal damaging or endangering in

violation of R.C. 2909.06(A)(1)/(B), a misdemeanor of the second degree. Counts one and two

included a specification for a prior felony OVI within 20 years.

{¶3} The matter proceeded to trial. The State presented the testimony of three police

officers as well as body camera footage from two of the officers. The jury found Mr. Ross guilty 2

on the two counts of OVI. Count three was dismissed. The trial court merged counts one and two

for purposes of sentencing, and at the State’s election, sentenced Mr. Ross on count one.

{¶4} Mr. Ross timely appealed and asserts one assignment of error for our review.

II.

ASSIGNMENT OF ERROR I

THE STATE PRODUCED INSUFFICIENT EVIDENCE TO SUPPORT MR. ROSS’S CONVICTION AND HIS CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶5} Mr. Ross argues in his single assignment of error that his convictions are against

both the sufficiency and manifest weight of the evidence. In presenting those arguments, Mr. Ross

has not separately argued sufficiency and manifest weight. We have recently stated the following

on this subject:

“[S]ufficiency and manifest weight are separate and distinct questions, and this Court has repeatedly noted that it is not appropriate to combine sufficiency and manifest weight arguments within a single discussion.” State v. Zappa, 9th Dist. Wayne No. 20AP0025, 2022-Ohio-243, ¶ 6, *** See also App.R. 12(A)(2) (“The court may disregard an assignment of error presented for review if the party raising it fails to * * * argue the assignment separately in the brief[.]”); ***. “Moreover, ‘these concepts differ both qualitatively and quantitatively.’” Zappa at ¶ 6, quoting State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶ 25.

State v. Mingo, 9th Dist. Summit No. 30588, 2024-Ohio-543, ¶ 28. “To aid the administration of

justice, however, we choose to exercise our discretion and will separately consider [Mr. Ross’s]

combined arguments.” Id.

Sufficiency of the Evidence

{¶6} Whether a conviction is supported by sufficient evidence is a question of law, which

we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In carrying out this review,

our “function * * * is to examine the evidence admitted at trial to determine whether such evidence,

if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt.” 3

State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. “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.”

Id.

{¶7} Mr. Ross argues that his convictions for OVI are not supported by sufficient

evidence because there was no evidence that: (1) he was operating his vehicle, and (2) that he was

under the influence. Mr. Ross does not raise as error whether he was offered and refused a

chemical test under count two, nor does he contest the special finding of a prior OVI.

{¶8} R.C. 4511.19(A)(1)(a) prohibits operating a vehicle under the influence of alcohol

and provides that “[n]o person shall operate any vehicle * * * if, * * * [t]he person is under the

influence of alcohol * * * .” Mr. Ross argues that the evidence was insufficient that he was

operating a vehicle because the only evidence supporting that fact was the testimony of the officer

that made initial contact with him. He maintains that as that officer did not supply body or dash

camera video footage, the jury impermissibly inferred that he was operating a vehicle.

{¶9} Officer Jeff Shields, a retired reserve officer with the Akron Police Department,

testified that he was working a side job for a construction company at the corner of Russell Avenue

and Manchester Road in Akron, Ohio. At some point during his shift, he observed Mr. Ross

driving a white SUV reverse to traffic, eastbound in the westbound lane on Russell Avenue. The

SUV turned onto Manchester Road, then shortly afterwards “it came back through again and it did

so multiple times[,]” driving around the five-foot tall barricades. Thereafter, the SUV stopped,

facing reverse to traffic and blocking the entire road. Officer Shields then approached the SUV

and made contact with Mr. Ross, explaining to him that the road was closed. 4

{¶10} Mr. Ross got back into the SUV and drove away. A few minutes later, Mr. Ross

returned to the construction site in the same SUV. He drove around the barricade and pulled into

the driveway of a home located a few houses away on Russell Avenue. Officer Shields recognized

Mr. Ross from his previous trips through the area during a 15-20 minute time frame. Officer

Shields then drove his cruiser to the driveway and blocked the SUV so Mr. Ross could not back

out onto the road.

{¶11} From the foregoing, after viewing the evidence in the light most favorable to the

State, we conclude that the jury could have found beyond a reasonable doubt that Mr. Ross

operated his vehicle on the day in question.

{¶12} Regarding whether Mr. Ross was under the influence, this Court has previously

spoken about the type of evidence required to support a conviction under R.C. 4511.19(A)(1):

“[I]n DUI prosecutions, the state is not required to establish that a defendant was actually impaired while driving, but rather, need only show an impaired driving ability. State v. Zentner, 9th Dist. No. 02CA0040, 2003–Ohio–2352, at ¶ 19, citing State v. Holland (Dec. 17, 1999), 11th Dist. No. 98–P–0066. ‘To prove impaired driving ability, the state can rely on physiological factors (e.g., odor of alcohol, glossy or bloodshot eyes, slurred speech, confused appearance) to demonstrate that a person's physical and mental ability to drive was impaired.’ Holland, [supra], citing State v. Richards (Oct. 15, 1999), 11th Dist. No. 98–P–0069[ ].

State v. Peters, 9th Dist. Wayne No. 08CA0009, 2008-Ohio-6940, ¶ 5.

{¶13} Officer Shields testified that when he first stopped Mr. Ross to advise him of the

road closure, Mr. Ross was very disheveled looking and cursing. Officer Shields believed Mr.

Ross was intoxicated because of his slurred speech, unsteady gait, which included leaning on the

vehicle rather than standing upright, and his uncooperative demeanor. A few minutes later, right

after Officer Shields blocked Mr. Ross’s vehicle from leaving the driveway of the residence on

Russell, Officers Gramley, Muhlenkamp, and Jaskolka arrived on the scene as Officer Shields had 5

called for back-up. At that point, Mr. Ross had begun walking towards the construction site so

Officer Gramley handcuffed Mr. Ross to secure him.

{¶14} Officer Muhlenkamp testified that when she arrived on the scene, wearing a body

camera, she observed Mr. Ross stumbling, leaning on one of the other officers, not being

cooperative, slurring his words, and emanating an odor of alcohol. The footage from her body

camera was played for the jury. In that footage, Mr. Ross said he had been drinking that day.

{¶15} Officer Gramley testified that when he arrived, wearing a body camera, he spoke

briefly to Officer Shields then walked over to Mr. Ross. Officer Gramley’s body camera footage

was played for the jury. Officer Gramley testified that he believed Mr. Ross was intoxicated

because Mr. Ross’s breath smelled of alcohol, his eyes were bloodshot and glassy, he was slurring

his speech, and was being combative.

{¶16} Ross argues that the officers’ testimony is not sufficient to establish that he was

impaired during the time that Officer Shields observed him driving. We disagree. From the

foregoing, the State provided evidence which could convince the jury that Mr. Ross was under the

influence of alcohol when he was operating his vehicle. Officer Shields testified that Mr. Ross

exhibited signs of intoxication when he first spoke with him, then Mr. Ross got back into his SUV

and drove away. From this the jury could have found that Mr. Ross was intoxicated both before

Officer Shields approached him and when he returned to his vehicle and drove away. When

Officers Gramley and Muhlenkamp arrived just a few minutes later, after hearing over the dispatch

that Mr. Ross had been driving through the area and speaking with Officer Shields, they also

observed physiological indications of impairment from Mr. Ross. As Officers Gramley and

Muhlenkamp observed these indications of intoxication a short time after Officer Shields observed 6

him driving, the jury could have found that he was impaired while driving. In addition, Mr. Ross

admitted to drinking earlier that day.

{¶17} Accordingly, we conclude that the evidence, when viewed in the light most

favorable to the State, would convince the average mind beyond a reasonable doubt that Mr. Ross

operated his vehicle while under the influence of alcohol and was sufficient to sustain his OVI

convictions. Mr. Ross’s sufficiency argument is overruled.

Manifest Weight of the Evidence

{¶18} As previously noted, even though Mr. Ross did not separately argue his sufficiency

and manifest weight challenges, in the exercise of discretion, this Court is nonetheless separately

considering those challenges.

{¶19} When considering a challenge to the manifest weight of the evidence, this Court is

required to consider the entire record, “weigh the evidence and all reasonable inferences, consider

the credibility of witnesses and determine 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).

“A reversal on this basis is reserved for the exceptional case in which the evidence weighs heavily

against the conviction.” State v. Croghan, 9th Dist. Summit No. 29290, 2019-Ohio-3970, ¶ 26.

{¶20} It is well-established that “a trier of fact enjoys the best position to assess the

credibility of witnesses.” State v. Tyus, 9th Dist. Summit No. 29520, 2020-Ohio-4455, ¶ 57. See

also Prince v. Jordan, 9th Dist. Lorain No. 04CA008423, 2004-Ohio-7184, ¶ 35 (“the jury is free

to believe all, part, or none of the testimony of each witness.”). This Court “‘will not overturn a

conviction as being against the manifest weight of the evidence simply because the trier of fact

chose to believe the State's version of events over another version.’” State v. Tolliver, 9th Dist. 7

Lorain No. 16CA010986, 2017-Ohio-4214, ¶ 15, quoting State v. Barger, 9th Dist. Medina No.

14CA0074-M, 2016-Ohio-443, ¶ 29.

{¶21} Mr. Ross maintains that his vehicle was inoperable on the day in question and

incapable of being driven. He testified that it had been towed to the residence on Russell the day

before due to transmission problems and argues that he would not have paid to have his vehicle

towed if he could have driven it. He further testified that he was already present at the residence

on Russell, which belonged to the mother of his children, pulling weeds for several hours prior to

his encounter with the officers. This contradicts the testimony of Officer Shields that Mr. Ross

drove through the area multiple times before pulling into the driveway of the residence.

{¶22} The jury was free to disbelieve Mr. Ross’s testimony that his vehicle was inoperable

and that he had not been driving. Similarly, the jury was free to believe Officer Shields’ testimony,

despite not having a body camera, that Mr. Ross had made multiple trips through the area in his

SUV prior to stopping at the residence, including driving against traffic. The woman at the

residence corroborated Officer Shields’ testimony that Mr. Ross drove his SUV into the driveway

and that he had not been present hours before. The jury was within its purview to find Officer

Shields credible and Mr. Ross not credible as to whether Mr. Ross was operating his vehicle.

{¶23} Regarding whether Mr. Ross was impaired, he argues that without chemical

evidence, the testimony of Officers Gramley and Muhlenkamp is unreliable because it is based on

Officer Shields’ uncorroborated statements to them that he was impaired. He contends that the

officers should have transported him to a hospital and subjected him to a blood test to confirm that

he was under the influence. Mr. Ross has not provided any law which places a burden on police

officers to transport drivers who refuse a breath alcohol test to the hospital for testing and we will

not judicially craft such a requirement. 8

{¶24} Furthermore, this case entails not only Mr. Ross’s behavioral indications of

impairment and lack of body control as observed by the officers, but Mr. Ross’s specific admission

of alcohol use that day. Officer Shields observed Mr. Ross as manifesting signs of impairment.

Officers Gramley and Muhlenkamp testified as to their independent observations of Mr. Ross’s

intoxication. The body camera footage reflected that Mr. Ross admitted to drinking that day and

showed that he was slurring his speech, was unsteady on his feet, exhibited glassy eyes, and

behaved in an uncooperative manner consistent with the testimony of all three officers. Moreover,

due to the closeness in time of Officer Gramley and Officer Muhlenkamp’s observations of Mr.

Ross to Officer Shields’ same observations when he stopped Mr. Ross the first time, the testimony

of Officers Gramley and Muhlenkamp corroborated Officer Shields’ testimony that Mr. Ross was

under the influence while driving.

{¶25} The jury heard the foregoing testimony and watched the body camera footage.

Upon our thorough review of the entire record, we conclude that the jury, in resolving any conflicts

in the evidence, did not clearly lose its way and create a manifest miscarriage of justice requiring

a reversal of Mr. Ross’s convictions for OVI. See Otten, 33 Ohio App.3d at 340; Thompkins, 78

Ohio St.3d at 387. Mr. Ross’s manifest weight of the evidence argument is overruled.

III.

{¶26} Accordingly, based on the foregoing, Mr. Ross’s single assignment of error is

overruled. The judgment of the Summit County Court of Common Pleas that found Mr. Ross

guilty of OVI is affirmed.

Judgment affirmed. 9

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

Costs taxed to Appellant.

SCOT STEVENSON FOR THE COURT

HENSAL, J. FLAGG LANZINGER, J. CONCUR.

APPEARANCES:

STEPHEN M. GRACHANIN, Attorney at Law, for Appellant.

ELLIOT KOLKOVICH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant Prosecuting Attorney, for Appellee.