[Cite as State v. Sanders, 2023-Ohio-2092.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
City of Toledo Court of Appeals No. L-21-1260
Appellee Trial Court No. TRC-20-02916
v.
Marouise L. Sanders DECISION AND JUDGMENT
Appellant Decided: June 23, 2023
*****
Rebecca Facey, City of Toledo Chief Prosecuting Attorney, and Jimmie L. Jones, Assistant Prosecuting Attorney, for appellee.
Autumn D. Adams, for appellant.
ZMUDA, J.
I. Introduction
{¶ 1} Appellant, Marouise Sanders, appeals the judgment of the Toledo Municipal
Court, sentencing her to 30 days in jail and two years of probation after she was found
guilty of one count of operating a motor vehicle under the influence of alcohol and/or
drugs (hereinafter “OVI”). For the reasons that follow, we find no error in the trial
court’s denial of appellant’s pretrial motion to suppress, and we therefore affirm. A. Facts and Procedural Background
{¶ 2} On February 20, 2020, a complaint was filed charging appellant with one
count each of OVI in violation of R.C. 4511.19(A)(1)(a), a misdemeanor of the first
degree, driving under suspension in violation of R.C. 4510.111, an unclassified
misdemeanor, and open container in violation of R.C. 4301.62, a minor misdemeanor.
The charges arose after law enforcement officers found appellant asleep and apparently
intoxicated in the driver’s seat of a vehicle that was disabled along the side of the road.
{¶ 3} Appellant pled not guilty to the aforementioned offenses, and the matter
proceeded through pretrial discovery and motion practice. On December 21, 2020,
appellant filed his request for discovery and motion to preserve evidence. On January 14,
2021, the state responded to appellant’s discovery request and informed him that a
discovery packet was available for retrieval at the prosecutor’s office.
{¶ 4} Three months later, on April 12, 2021, appellant filed a motion to suppress
seeking the suppression of “any and all testimony of the arresting officers * * * due to the
state’s failure to preserve evidence that is material to guilt or innocence.” In his motion,
appellant recognized that the state had responded to his discovery request by providing
discovery in the form of police reports, but failed to provide any bodycam or dash cam
footage of appellant’s arrest. According to his motion, bodycam and dashcam video
footage of appellant’s arrest was recorded, but the state acknowledged that the footage
“does not exist as a result of the Toledo Police Department migrating their video to a
2. cloud system.” As such, appellant insisted that he was entitled to suppression of any
testimony from the arresting officers.1
{¶ 5} The matter proceeded to a hearing on appellant’s motion to suppress on June
24, 2021.2 At the outset of the hearing, the parties stipulated that arresting officer’s,
Heather Smith, bodycam footage was deleted following a data migration procedure in
October 2020, two months prior to appellant’s discovery request. Additionally, the trial
court found that appellant had the burden of demonstrating that the evidence was
materially exculpatory because the discovery request occurred after the evidence was
lost.
{¶ 6} In response, appellant’s counsel explained to the court that its delay in
requesting discovery was attributable to the fact that appellant “went bench warrant for a
while.” Counsel went on to insist that the discovery request was filed as soon as the
public defender’s officer was appointed to the case, and maintained that “we did it as
soon as we could as far as from our point of view. So I’d offer that to the Court if that
would change the Court’s mind.” The court was not persuaded to change its ruling based
upon counsel’s remarks.
1 In this appeal, appellant’s challenge to the trial court’s denial of his motion to suppress is based entirely upon the lost bodycam footage. Appellant raises no argument concerning any dashcam footage that was lost as a consequence of the October 2020 data migration malfunction. 2 The state did not file a written memorandum in opposition to appellant’s motion to suppress.
3. {¶ 7} Thereafter, appellant called his first witness, sergeant Alanna Pepitone of the
Toledo Police Department. As the officer in control of the Toledo Police Department’s
Court Liaison Unit, Pepitone is responsible for handling subpoenas and managing
discovery.
{¶ 8} Specific to this case, Pepitone testified that there were three videos
containing bodycam footage of appellant’s February 20, 2020 arrest on the police
department’s G-Tech cloud-based storage system. Pepitone stated that the video footage,
which was taken from Smith, was no longer available in the saved files. Upon attempting
to view the footage, Pepitone observed only “a black screen, it has the white word G-
Tech written across it. Below it it (sic) has arrest evidence, I believe it’s in blue,
underneath it. And that’s it.” Pepitone confirmed that the black screen with white
lettering meant that the video evidence was originally saved but later “permanently
deleted.”
{¶ 9} Pepitone had no personal knowledge as to how the footage was deleted, but
she testified that one of the computer technology officers informed her that “there was an
issue with the – there was a breakdown in one of the, like, a tower. * * * And while it was
being transferred from a server up to the Cloud, during that process there was an error
and it was lost.” Pepitone went on to explain that the scope of the data loss was “vast”
and encompassed more video evidence than merely that which is at issue in this case.
{¶ 10} When asked about the Toledo Police Department’s procedure for
preserving bodycam footage, Pepitone explained that officers have the option of
4. categorizing their bodycam footage as either arrest evidence, traffic stop evidence, or
transport evidence. According to Pepitone, “different categorizations have different
retention levels.” Specifically, the Toledo Police Department retains arrest evidence for a
period of three years. Pepitone confirmed that Smith properly categorized the bodycam
footage at issue as arrest evidence.
{¶ 11} As his next witness at the suppression hearing, appellant called Smith.
Smith testified that on the evening of February 20, 2020, she and her partner, Ashley
Reneau, were returning to the Toledo Safety Building at the end of their shift when they
noticed a disabled vehicle resting upon a curb in the roundabout at the intersection of
Cherry Street and Manhattan Boulevard. According to Smith, there was damage to the
front wheel on the passenger side of the vehicle. Smith and Reneau stopped their cruiser
and approached appellant’s vehicle. A tow truck driver also approached appellant’s
vehicle immediately after Smith and Reneau arrived. It is unclear from the record who
summoned the tow truck to tow appellant’s vehicle.
{¶ 12} As Smith approached the vehicle to investigate, she noticed that “there was
an open container of alcohol underneath the vehicle kind of spilt.” She testified that as
she peered inside the vehicle, she found appellant “passed out sleeping behind the wheel
of the vehicle with the engine running.” Thereafter, a second unit comprised of officers
Nick Linthicum and Dillan Young arrived on the scene to assist.
{¶ 13} Smith proceeded to knock on the door to try to awaken appellant, but he
did not respond. Thereafter, Smith opened the unlocked driver’s door, handcuffed
5. appellant, turned off the vehicle’s ignition, and attempted to wake appellant from his
sleep by rubbing his sternum. After appellant woke up, Smith detained him in her
cruiser. Smith searched appellant’s vehicle and discovered another alcoholic beverage in
a plastic bag on the floor in the back of appellant’s vehicle. Ultimately, appellant was
arrested and his vehicle was impounded. Smith testified that no field sobriety testing was
conducted out of safety concerns, and appellant refused to submit to a breath test upon
arrival at the police station.
{¶ 14} During her testimony, Smith confirmed that she recorded the entire incident
on her body camera and proceeded to save the footage as arrest evidence. She stated that
she uploaded the bodycam footage to the Toledo Police Department’s database “either
that night or the next day.” Smith could not confirm whether the other officers on the
scene at the time also recorded the incident. Moreover, Smith testified that she never
watched the bodycam recording and was thus unaware whether the recording depicted
anything of value in this case.
{¶ 15} Following Smith’s testimony, appellant called Reneau as his final witness.
Reneau reiterated Smith’s testimony as to how she came into contact with appellant on
February 20, 2020. She stated that she recorded her encounter with appellant on her body
camera, but she acknowledged that she “forgot to categorize it.” According to Reneau,
when an officer fails to categorize bodycam footage, the footage is saved “under a test.”
Reneau was unaware of how long such footage is stored in the Toledo Police
6. Department’s database, but she indicated that her bodycam footage of the February 20,
2020 encounter with appellant was deleted because it was categorized as a test.
{¶ 16} At the close of Reneau’s testimony, the matter proceeded to closing
arguments with no witnesses called by the state. For his part, appellant noted that
Smith’s bodycam footage was not kept for three years as required under the Toledo
Police Department’s evidence retention policy. Further, appellant referred to Reneau’s
testimony that her bodycam footage was deleted based upon her failure to categorize it in
a manner that would ensure its preservation as evidence. As a consequence of the loss of
this evidence, appellant argued that he was “deprived of exculpatory material. This was
the entire stop. * * * Body cam does not have a motive, it does not have a bias. It just
tells you exactly what’s here, and in order – that makes it a very unique piece of evidence
that we can’t get any other way.”
{¶ 17} In response, the state argued that appellant had not met his burden of
demonstrating that the lost bodycam footage contained materially exculpatory evidence.
Indeed, the state asserted that appellant could not establish that the video contained
exculpatory material since nobody viewed the video footage prior to its deletion.
Additionally, the state argued that appellant failed to demonstrate that the loss of the
bodycam footage was attributable to bad faith on the part of anyone involved in the
collection and retention of the evidence.
{¶ 18} Upon consideration of the parties’ arguments and the evidence presented at
the hearing, the trial court determined that appellant failed to meet his burden to show
7. that the bodycam footage contained materially exculpatory evidence not able to be
obtained by any other means. In support, the court referenced the remaining evidence
available to appellant, including the physical evidence recovered from the scene (the
impounded vehicle, the tow truck paperwork, and the alcoholic beverages that were
recovered from outside and inside the vehicle) and the testimony of the officers and the
tow truck driver who arrived on the scene during the encounter. Consequently, the trial
court denied appellant’s motion to suppress.
{¶ 19} Thereafter, the matter proceeded to a bench trial on July 8, 2021. During
the trial, Smith and Reneau each testified as to several indicators of appellant’s
intoxication. They indicated that there were alcohol containers inside and outside of
appellant’s vehicle and appellant was visibly impaired. Specifically, the officers testified
that they detected a strong odor of alcohol emanating from appellant after waking him up
and removing him from the cruiser and appellant was unsteady on his feet, slurring his
speech, and behaving in a belligerent fashion.
{¶ 20} At the conclusion of the trial, the trial court found appellant guilty of OVI,
but rendered a directed verdict in appellant’s favor as to the remaining charges of driving
under suspension and open container. The court ordered the preparation of a presentence
investigation report and continued the matter for sentencing.
{¶ 21} Appellant’s sentencing hearing was held on July 29, 2021. After receiving
statements in mitigation, the court sentence appellant to 365 days in jail, with all but 30
8. days suspended, and placed appellant on probation for a period of two years. Appellant’s
timely notice of appeal followed.
B. Assignments of Error
{¶ 22} On appeal, appellant assigns the following errors for our review:
1. The failure of the Trial Court to suppress the officers’ statements after
the City failed to preserve materially exculpatory evidence violated
Sanders’ Due Process rights under the Fourteenth Amendment.
2. The weight of the evidence did not support a conviction for OVI.
II. Analysis
A. Suppression Issue
{¶ 23} In his first assignment of error, appellant argues that the trial court’s failure
to suppress the arresting officers’ testimony at trial after the state lost the officers’
bodycam video footage of the arrest violated his due process rights.
{¶ 24} Our review of the trial court’s denial of appellant’s motion to suppress
“presents a mixed question of law and fact.” State v. Wesson, 137 Ohio St.3d 309, 2013-
Ohio-4575, 999 N.E.2d 557, ¶ 40, quoting State v. Burnside, 100 Ohio St.3d 152, 2003-
Ohio-5372, 797 N.E.2d 71, ¶ 8. We must accept the trial court’s factual findings if they
are supported by competent credible evidence, and “independently determine, without
deference to the conclusion of the trial court, whether the facts satisfy the applicable legal
standard.” Wesson at ¶ 40, quoting Burnside at ¶ 8.
9. {¶ 25} Appellant’s motion to suppress in this case stems from the state’s loss of
bodycam video footage depicting his arrest. “The Due Process Clause of the Fourteenth
Amendment to the United States Constitution protects an accused from being convicted
of a crime when the [s]tate either fails to preserve materially exculpatory evidence or
destroys, in bad faith, potentially useful evidence.” State v. Nastick, 2017-Ohio-5626, 94
N.E.3d 139, ¶ 8 (9th Dist.), citing California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct.
2528, 81 L.Ed.2d 413 (1984); Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333,
102 L.Ed.2d 281 (1988). “Specific tests are applied to determine whether the state’s
failure to preserve evidence rises to the level of a due process violation. The test depends
on whether the lost or destroyed evidence involves ‘material exculpatory evidence’ or
‘potentially useful evidence.’” State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577,
971 N.E.2d 865, ¶ 73.
{¶ 26} “Evidence is constitutionally material when it possesses ‘an exculpatory
value that was apparent before the evidence was destroyed, and [is] of such a nature that
the defendant would be unable to obtain comparable evidence by other reasonably
available means.’” Id. at ¶ 74, quoting Trombetta at 489. Evidence is materially
exculpatory “‘only if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different. A
“reasonable probability” is a probability sufficient to undermine confidence in the
outcome.’” State v. Johnston, 39 Ohio St.3d 48, 61, 529 N.E.2d 898 (1988), quoting
United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). “The
10. mere possibility that an item of undisclosed information might have helped the defense,
or might have affected the outcome of the trial, does not establish ‘materiality’ in the
constitutional sense.” (Quotations omitted.) Toledo v. Zapata, 6th Dist. Lucas No. L-14-
1181, 2015-Ohio-3946, ¶ 9, citing State v. Jackson, 57 Ohio St.3d 29, 33, 565 N.E.2d 549
(1991), quoting United States v. Agurs, 427 U.S. 97, 109, 96 S.Ct. 2392, 49 L.Ed.2d 342
(1976). When the state fails to preserve material exculpatory evidence, it per se violates
a defendant’s right to due process. Powell at ¶ 74, citing Trombetta at 489.
{¶ 27} By contrast, evidence is potentially useful if “no more can be said than that
it could have been subjected to tests, the results of which might have exonerated the
defendant.” Youngblood at 57. Where the state’s failure to preserve concerns potentially
useful evidence, a due process violation will only be found where the defendant
demonstrates that the state acted in bad faith. State v. Geeslin, 116 Ohio St.3d 252, 2007-
Ohio-5239, 878 N.E.2d 1, ¶ 10. “Bad faith generally requires something more than bad
judgment or negligence; it requires dishonesty, conscious wrongdoing, ulterior motive, or
ill will.” State v. Daoust, 6th Dist. Lucas No. L-21-1055, 2021-Ohio-4400, ¶ 33, citing
Powell at ¶ 81.
{¶ 28} In his appellate brief, appellant only asserts that the bodycam footage from
Smith and Reneau was material exculpatory evidence. Appellant does not claim that the
evidence was potentially useful, and he advances no argument as to the issue of bad faith
on the part of the state. Thus, the issue of bad faith is not before us in this appeal, and the
11. success of appellant’s first assignment of error hinges upon whether the bodycam footage
is, as he claims, material exculpatory evidence.
{¶ 29} Before advancing his argument that the bodycam footage was material
exculpatory evidence, appellant first argues that the trial court abused its discretion in
holding that it was his burden to prove that the evidence was materially exculpatory.
{¶ 30} Ordinarily, a defendant bears the burden of demonstrating that the lost
evidence was materially exculpatory or, in the case of potentially useful evidence, that
the state acted in bad faith. Id. at ¶ 35, citing Powell at ¶ 74, 77. However, a narrow
exception to this rule applies where a defendant makes a specific request to have the
evidence preserved, and the evidence is lost or destroyed after the prosecution is put on
notice of the defendant’s request. Id. In that case, the burden shifts to the state to show
that the evidence was not materially exculpatory. Id., citing State v. Benton, 136 Ohio
App.3d 801, 805, 737 N.E.2d 1046 (6th Dist.2000).
{¶ 31} In Daoust, we examined the applicability of this narrow exception under
procedural circumstances that were strikingly similar to those involved in the present
case. Indeed, the state’s loss of evidence in that case stemmed from the same
technological issue that caused the loss of Smith’s bodycam footage in this case, namely
the October 2020 malfunction that occurred when the Toledo Police Department was
migrating its data to the G-Tech storage system. Id. at ¶ 36. Daoust, like appellant, filed
a motion for preserve evidence in December 2020. Id. Because his motion to preserve
12. evidence was filed after the state lost the evidence, we held that “the burden of proving
that the video was exculpatory remained with Daoust.” Id.
{¶ 32} Applying Daoust to the case sub judice, we conclude that the trial court
properly determined that appellant bears the burden of showing that the lost bodycam
evidence was materially exculpatory. Appellant insists that Daoust is distinguishable
because “one officer in [this] case negligently failed to label the footage.” Appellant’s
focus on the manner in which the evidence was lost is misguided as it concerns the
application of the burden-shifting exception recognized in Daoust.
{¶ 33} The applicability of the burden-shifting exception is a question of timing,
not culpability. That is, the inquiry is whether the evidence was lost or destroyed
(regardless of the circumstances) before or after the defendant moves to have the
evidence preserved. If the loss or destruction takes place prior to the defendant’s motion,
the exception does not apply and the burden does not shift from the defendant to the state.
{¶ 34} Just like in Daoust, appellant failed to establish that he filed his motion to
preserve evidence prior to the loss of the bodycam evidence. At the suppression hearing
in this case, there was no dispute that Smith’s bodycam footage was destroyed in October
2022. Indeed, the parties stipulated to that fact at the outset of the hearing. There was no
evidence to establish precisely how long Reneau’s evidence was stored before it was
automatically deleted after being improperly categorized as “test” evidence. However,
appellant bears the burden of establishing that he requested preservation of the evidence
prior to its destruction. Having failed to introduced any evidence to show that he filed his
13. motion to preserve evidence before Reneau’s bodycam footage was deleted, and given
the undisputed fact that appellant filed his motion to preserve evidence two months after
Smith’s bodycam footage was lost, we find that the burden of demonstrating that the
evidence is materially exculpatory remained with appellant, and the trial court did not err
in so concluding.
{¶ 35} Next, appellant argues that the bodycam footage was material exculpatory
evidence, because it constituted unique evidence that was unobtainable by any other
means. In support, appellant cites Benton, supra, 136 Ohio App.3d 801, 805, 737 N.E.2d
1046 (6th Dist.2000).
{¶ 36} In Benton, we examined whether destroyed video and audio footage of an
OVI-related traffic stop constituted material exculpatory evidence. At the outset of our
analysis, we determined that the burden-shifting exception was applicable and thus the
state, not Benton, had the burden of demonstrating that the destroyed evidence was not
materially exculpatory. Id. at 806. We then went on to evaluate the evidence, stating:
Given the record in this case, it is equally possible that the tape would have
been exculpatory as inculpatory. We also hold that the evidence is unique
and not obtainable by other means. Because appellant testified that he
disputes much of the testimony that the officer gave at the suppression
hearing, the tape would have provided the only possible objective evidence
of the events as they happened on the night that appellant was stopped.
Id.
14. {¶ 37} Ultimately, we held that the state failed to meet its burden of demonstrating
that the destroyed evidence was not materially exculpatory. Id. As a consequence, we
found that Benton’s due process rights were violated when the state destroyed the
evidence. Id.
{¶ 38} As we stated above, appellant bears the burden of demonstrating that the
bodycam footage at issue in this case was material exculpatory evidence. This is an
important point of distinction from Benton, where we held that it was the state’s burden
to show that the evidence was not materially exculpatory. We did not make a definitive
statement in Benton as to whether the destroyed audio/video evidence was materially
exculpatory. Rather, we held that the state failed to meet its burden of showing that the
evidence was not materially exculpatory. Given the fact that the state had the burden in
Benton, and given our reliance upon that fact in reaching our ultimate conclusion as to the
due process issue, we find Benton distinguishable.
{¶ 39} Nonetheless, Benton is useful in this case to some extent, albeit not in a
manner favorable to appellant’s argument. As was true of the destroyed evidence in
Benton, the bodycam footage in this case could have exculpated appellant, but it also
could have inculpated him. One potentiality is not more likely than the other, especially
where, as here, the record demonstrates that nobody viewed the bodycam footage prior to
deletion. See State v. Fox, 2012-Ohio-4805, 985 N.E.2d 532, ¶ 38 (4th Dist.) (“If no one
has reviewed the videotape, a defendant will generally be unable to show that the missing
footage contained materially exculpatory evidence.”) Therefore, we have no way of
15. knowing what the footage depicts, and “the possibility that evidence could have
exculpated the defendant if preserved or tested is not enough to satisfy the standard of
constitutional materiality.” State v. Spencer, 8th Dist. Cuyahoga No. 106881, 2018-
Ohio-5351, ¶ 34, citing State v. Durham, 8th Dist. Cuyahoga No. 92681, 2010-Ohio-
1416, ¶ 12.
{¶ 40} Furthermore, Smith and Reneau’s testimony was the only testimony
offered by either party to establish the facts of the traffic stop in this case. The officers
testified consistently with one another and their testimony contained no exculpatory
material.
{¶ 41} In light of the record before us, we find appellant’s claim that the evidence
was exculpatory is purely speculative and inconsistent with the evidence that was
introduced through the largely undisputed testimony of Smith and Reneau. Therefore,
appellant has not met his burden of demonstrating that the bodycam footage was material
exculpatory evidence. See Durham at ¶ 21 (“In the present case, no one viewed the
videotape before it was erased; therefore, Durham cannot show that the evidence was
materially exculpatory. The tape may have supported Durham’s version of events at the
jail, but like Durham, we are left with the inability to say that the videotape would show a
clear set of facts that would either support a full dismissal or a limitation on the testimony
surrounding the events.”); State v. Arnett, 2d Dist. Miami No. 2018-CA-3, 2018-Ohio-
4227, ¶ 20 (rejecting the defendant’s claim that missing portion of a video recording was
materially exculpatory, “because there was no evidence of what the video showed”);
16. State v. McClain, 2016-Ohio-838, 60 N.E.3d 783, ¶ 42 (2d Dist.) (concluding that the
record did not support a conclusion that a missing traffic stop video was materially
exculpatory where the only evidence in the record came from a police officer’s testimony
as to the defendant’s apparent intoxication and there was no evidence to suggest the video
would contradict that testimony).
{¶ 42} Accordingly, appellant’s first assignment of error is not well-taken.
B. Manifest Weight of the Evidence
{¶ 43} In his second assignment of error, appellant argues that his OVI conviction
was against the manifest weight of the evidence.
{¶ 44} When reviewing a manifest weight claim, we sit as a “thirteenth juror.”
State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). That is, we review
the entire record, weigh the evidence and all reasonable inferences, and consider the
credibility of witnesses. Id. Our role is to 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.” Id.
We reverse a conviction on manifest weight grounds for only the most “exceptional case
in which the evidence weighs heavily against the conviction.” Id. at 387.
Here, appellant acknowledges that the state provided evidence of appellant’s
unusual driving (being found in a running vehicle in a roundabout), being
unconscious in a running vehicle, grogginess, confusion, odor of alcoholic
beverages, slurred speech, watery glassy eyes, unsteadiness in gait and on
17. his feet, evidence of empty beer cans, his anger at being arrested, falling off
[a] bench, [and] falling asleep in the police station.
{¶ 45} Nonetheless, appellant contends that the trial court’s determination of guilt
on his OVI offense was against the manifest weight of the evidence because it “ignored
the officers’ admissions that they were concerned Sanders suffered a medical
emergency/condition and they failed to have him checked out.”
{¶ 46} At trial, Smith and Reneau provided testimony consistent with their
suppression hearing testimony. Specifically, they each testified that they (1) approached
appellant’s vehicle, (2) noticed that the vehicle was running and appellant was asleep at
the wheel, (3) observed alcohol outside the vehicle and inside the passenger
compartment, and (4) detected a strong odor of alcohol emanating from appellant after
waking him up and removing him from the cruiser, and (5) observed that appellant was
unsteady on his feet, slurring his speech, and behaving in a belligerent fashion.
{¶ 47} This evidence, taken together, supports the trial court’s determination of
appellant’s guilt as to OVI. Moreover, the officers explained at trial that they were
initially concerned about a medical emergency when they approached the vehicle and
found appellant slumped over behind the wheel with the vehicle running. However, the
officers’ concerns were alleviated once they woke appellant up, spoke with him, and
observed all of the foregoing indicators of intoxication. Given this testimony, we find no
merit to appellant’s medical emergency argument.
18. {¶ 48} Having reviewed the record in its entirety, we find that this is not the
exceptional case in which the evidence weighs heavily against appellant’s conviction.
Accordingly, we find appellant’s second assignment of error not well-taken.
III. Conclusion
{¶ 49} In light of the foregoing, the judgment of the Toledo Municipal Court is
affirmed. The costs of this appeal are assessed to appellant under App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Gene A. Zmuda, J. ____________________________ JUDGE Myron C. Duhart, P.J. ____________________________ Charles E. Sulek, J. JUDGE CONCUR. ____________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
19.