[Cite as State v. Soto, 2026-Ohio-1775.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 115582
v. :
JUAN SOTO, :
Defendant-Appellant. : _______________________________________
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: May 14, 2026
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-24-696908-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Jeffrey S. Schnatter and Michael J. Stechschulte, Assistant Prosecuting Attorneys, for appellee.
Edward F. Borkowski, Jr., for appellant.
TIMOTHY W. CLARY, J.:
Defendant-appellant Juan Soto (“Soto”) appeals from his convictions
and sentencing following a jury trial. For the following reasons, we affirm. I. Factual and Procedural History
This case stems from an April 22, 2024 automobile accident where
Soto’s Toyota Tundra truck collided with a vehicle driven by Gilmarie Rios (“Rios”).
Rios died due to blunt-force injuries sustained in the accident, and her sister H.P.
who was a front-seat passenger, sustained serious injuries.
On April 30, 2024, in Cuyahoga C.P. No. CR-24-691470-A (“Case
691470”), a Cuyahoga County Grand Jury indicted Soto on eight counts related to
the automobile accident. Soto pleaded not guilty to the charges, and the case
proceeded to trial on November 4, 2024. During voir dire, Soto made an oral motion
to retain new counsel, defense counsel made a motion to withdraw, and the court
granted both motions. On November 7, 2024, Soto retained new counsel — attorney
Christopher Rivero (“attorney Rivero”). The State dismissed the case without
prejudice.
On November 19, 2024, Soto was reindicted in Cuyahoga C.P. No. CR-
24-696908-A (“Case 696908”). Count 1 charged Soto with involuntary
manslaughter in violation of R.C. 2903.04(A) and further charged that Rios’s death
was the proximate result of Soto committing or attempting to commit aggravated
vehicular assault in violation of R.C. 2903.08(A)(1)(a), while under the influence of
alcohol (“OVI”).1 Count 1 also included a furthermore clause. Count 2 charged Soto
with involuntary manslaughter in violation of R.C. 2903.04(A) and further charged
1 The OVI offense was in violation of R.C. 4511.19. that Rios’s death was the proximate result of Soto recklessly committing or
attempting to commit vehicular assault in violation of R.C. 2903.08(A)(2)(b).
Counts 3 and 4 charged Soto with aggravated vehicular assault in violation of R.C.
2903.08(A)(1)(a) against Rios and H.P., respectively, as a proximate result of
violating the OVI statute. Counts 5 and 6 charged that Soto recklessly caused serious
physical harm to Rios and H.P., respectively, and thereby committed vehicular
assault in violation of R.C. 2903.08(A)(2)(b). Count 7 charged Soto with OVI in
violation of R.C. 4511.19(A)(1)(a). On November 26, 2024, Soto pleaded not guilty
to all charges.
After numerous pretrials, the case proceeded to a jury trial on August
4, 2025. The State introduced testimony from H.P., Michael Schneider
(“Schneider”), Gregory Hyde (Hyde”), Patrolman Anthony Bolivar (“Patrolman
Bolivar”), Detective Charles Moten (“Detective Moten”), and Dr. Kaitlin Weaver
(“Dr. Weaver”).
A. H.P
H.P. testified about the events of April 22, 2024, and her subsequent
injuries. Between 11:00 p.m. and 12:00 a.m. on April 21, 2024, H.P. and her sister,
Rios, drove in Rios’s four-door sedan to a dance club where they met friends. H.P.
stated that each sister consumed approximately three alcoholic drinks; H.P. did not
think either of them was intoxicated, and she denied that they consumed marijuana
that evening. Soto, who was known to Rios, approached the sisters when they first
arrived at the club and gave each of them a teddy bear and flowers. According to H.P., the three of them each drank a shot of Hennessy together, and then Soto
whispered a derogatory statement to Rios about her boyfriend before walking away.
The sisters did not interact any further with Soto at the club, and the sisters left when
the club closed, between 2:15 and 2:30 a.m.
After leaving the club, the sisters and their friends met in a nearby
parking lot to consider their next stop. Soon, another friend — who had a
confrontation with Soto while leaving the club — pulled into the parking lot and
stated that “somebody popped her tires” at the club. Tr. 562. Suddenly, “Soto
stormed in, like, in his truck but driving like a maniac.” Id. H.P. further stated:
Okay. So we were all in the parking lot. We were all hanging out. And [Soto] turned in, like, aggressively and was, like, speeding towards, like, all of us. He didn’t hit anybody or anything, but he aggressively turned in.
And then that’s when everybody was like, okay, it’s time to go, it’s time to wrap it up, and everyone got in their car.
Me and [Rios] got in her car, and everyone else got in their car as well.
Tr. 563-564. H.P. testified that she did not know where Soto’s truck was situated
when she and Rios left the parking lot and headed to a gas station. H.P. recalled
turning left into the gas station and stated that her next memory was waking up at
the hospital.
H.P. did not recall the details related to the automobile accident with
Soto, but most of the events were captured on street cameras and the gas station
camera, and the recordings were shown at trial. The recordings showed Rios
traveling northbound on Fulton Road, with Soto driving behind her in the same direction and several cars driving between them. The recordings also showed that
as Rios attempted to turn left into a Marathon gas station, situated at the southwest
corner of the Fulton Road and Clark Avenue intersection, Soto unsuccessfully
attempted to pass to the left of the two cars and Soto’s vehicle and struck Rios’s
vehicle. The force of the impact propelled both vehicles through the intersection of
Clark Avenue and Fulton Road, and Rios’s vehicle came to rest, in flames, in the
Rally’s restaurant situated at the northwest corner of the intersection.
H.P. testified that she sustained a gash in the back of her head,
second-degree burns on the left side of her face, third-degree burns on her right arm
and back, scarring from the burns, and a fractured leg and pelvis. H.P. further stated
that she underwent multiple surgeries and skin grafts, anticipated several future
surgeries, and experienced “[a] great amount of pain” that continued for more than
a year after the accident. Tr. 569. H.P.’s medical records related to her injuries were
introduced as an exhibit.
B. Schneider
On the date of the accident, Schneider was the manager at the Rally’s
restaurant with which Rios’s vehicle impacted. Schneider testified that he used a
fire extinguisher to help put out the fire on Rios’s vehicle as other individuals pulled
the two women from the vehicle. Per Schneider, there were two males in Soto’s
truck; one attempted to help the victims in the car while Soto asked people in the
vicinity if he could borrow their car keys. Schneider stated that he believed Soto
wanted to borrow someone’s car keys so that he could flee the scene of the accident. Schneider further stated that once Soto realized the police and emergency services
had arrived, he helped extract Rios and P from their vehicle. Schneider further
stated that at one point he and Soto were face-to-face and he thought Soto was
intoxicated:
ASSISTANT PROSECUTING ATTORNEY [“APA”]: All . . . Right. Did you notice anything else about [Soto] or was —
SCHNEIDER: You could definitely tell [Soto] was intoxicated.
APA: How is it that you could tell that?
SCHNEIDER: Well, my father’s an alcoholic, so I am used to being around people that drink, plus of the strong hint smell of liquor that was on his breath and just the way he was acting. Like, he was fidgety. Like, he wanted to get away from it because he knows that he was drunk and what he did was wrong.
Tr. 506.
C. Hyde
Hyde, a paramedic for 36 years with the city of Cleveland’s Division
of Emergency Medical Services (“EMS”), treated Soto at the accident scene. Hyde
stated that while fulfilling his job duties he had encountered many patients under
the influence of alcohol, and he explained that glassiness in the eyes, a change of
speech pattern, aggressive behavior, disproportionately giddy behavior, and lack of
focus during a conversation were indicators that a patient was under the influence
of alcohol or other narcotics.
Soto informed Hyde that he had consumed three beverages prior to
the accident. Although Soto did not specify if he drank alcoholic beverages, Hyde testified that it was his impression that Soto was referencing alcoholic beverages.
Hyde testified that Soto’s glassy eyes, distinct odor of alcohol, and speech pattern —
slurred speech or a “kind of hesitancy” — indicated that he was under the influence
of alcohol. Tr. 524. Hyde denied that Soto’s unusual speech pattern or glassy eyes
were caused by a physical injury he sustained in the automobile accident.
D. Patrolman Bolivar
When Patrolman Bolivar with the Cleveland Division of Police
responded to the accident scene, emergency medical personnel and firefighters were
already on the scene. Patrolman Bolivar testified that he observed Rios’s vehicle,
which was “totaled,” and Soto’s pickup truck at the Rally’s restaurant at the corner
of Fulton Road and Clark; he further testified that both Rios’s vehicle and the Rally’s
restaurant were on fire. Rios had already been declared deceased when Patrolman
Bolivar arrived at the scene.
Patrolman Bolivar testified that Soto approached him and stated the
deceased woman was his sister. Patrolman Bolivar and Soto communicated at the
accident scene in both English and Spanish; Patrolman Bolivar testified about their
conversation:
APA: And what did [Soto] tell you?
PATROLMAN BOLIVAR: So he said that they were — I don’t know. Again, excuse me for cussing. But he said, [“]These bitches were drunk and they crashed.[”] Yeah. But he said it in Spanish, cabrónas, which means bitches. And that’s what he said, [“]These bitches were drunk and they crashed.[”]
APA: Did he describe how that crash occurred? PATROLMAN BOLIVAR: That they were speeding and then they crashed.
Tr. 475. During cross-examination, Patrolman Bolivar also testified that the term
“cabrónas” is used frequently in Puerto Rico as a substitute for “dude,” “bro,” or
“sis.” According to Patrolman Bolivar, Soto was alone in his vehicle when the
accident occurred; Soto denied that he had been speeding; and Soto told the officer
to review the street cameras to observe his speed at the time of the accident.
Patrolman Bolivar’s body-camera video recording, which depicted his arrival at the
scene and his exchange with Soto, was played at trial.
Patrolman Bolivar testified that in his capacity as an officer it is
common for him to interact with individuals who have been drinking alcohol and he
received training at the police academy on standardized field sobriety tests (“SFST”).
Patrolman Bolivar also stated that the odor of alcohol, glassy and red eyes, and
slurred speech are indicators that a person has been drinking.
Patrolman Bolivar testified that he immediately smelled alcohol on
Soto’s breath and observed his glassy eyes although he did not observe Soto slurring
his speech. Patrolman Bolivar further testified that he would have administered an
SFST at the scene, but he did not do so because it was very hectic and Soto was busy
being examined by EMS.
Patrolman Bolivar further stated that he helped transport Soto to
MetroHealth Hospital where the officer completed a BMV form also referred to as
an Operating A Vehicle While Intoxicated Checklist. The checklist required Patrolman Bolivar to ask Soto if he wanted to submit to a urine or blood test, and
Soto refused to submit to either test:
APA: And what is that? The BMV form, what is that?
PATROLMAN BOLIVAR: It’s — it’s a form where if they’re given an OVI, operating a vehicle while intoxicated, it’s — you know, there’s like a checklist of what we have to basically do. Like, we seize their ID or their driver’s license. If they’re — if they wanted to take a urine test or a blood test, we will check it.
APA: And was that done here?
PATROLMAN BOLIVAR: At Metro?
APA: Yes.
PATROLMAN BOLIVAR: Yes.
APA: Okay. And did you do that personally?
APA: All right. And was a blood test ever done?
PATROLMAN BOLIVAR: Negative.
APA: Was a urine test ever done?
APA: Why is that?
PATROLMAN BOLIVAR: Soto refused.
Tr. 490-491.
E. Detective Moten
As a member of the Accident Investigation Unit (“AIU”) of the
Cleveland Division of Police, Detective Moten investigates accidents where a fatality occurred. Detective Moten testified that he had received training in accident
reconstruction and crash data retrieval.
According to Detective Moten, Soto was already in custody when he
was assigned to the case and began his investigation. Detective Moten stated that
his initial review of the first responding officers’ reports led him to conclude the
accident happened as follows:
Well, my understanding is that the white Toyota Tundra was operating at a high speed northbound on Fulton, and it went left of center, but entered into a turn lane as the other vehicle was turning and struck the vehicle, pushing it across the intersection into the Rally’s restaurant causing it to go up in flames.
Tr. 627-628. Detective Moten testified that he never considered an alternate suspect
or an alternate theory of the case.
Detective Moten described the Fulton Road and Clark Avenue
intersection where the accident occurred. There is one lane in each direction for the
northbound and southbound traffic on Fulton Avenue, with a posted speed limit of
35 miles per hour. As the northbound Fulton Road traffic nears the intersection of
Clark Avenue, a left turn lane develops that provides vehicles access to turn left —
either just before the intersection into a Marathon gas station or at the intersection
onto Clark Avenue.
As part of his investigation, Detective Moten reviewed the real-time
camera footage from street cameras positioned on Sackett Avenue and Fulton Road;
the real-time camera footage obtained from the intersection of Fulton Road and
Clark Avenue; and the video-camera footage recorded by the Marathon gas station situated at the southwest corner of the intersection. The real-time camera footage
showed Rios’s and Soto’s vehicles traveling northbound on Fulton Road, less than a
quarter of a mile from where the accident occurred, with Rios’s vehicle in the lead
followed by two unknown motorists and then Soto’s truck. Detective Moten further
described the recordings. Detective Moten stated that as Rios neared the Fulton and
Clark intersection, she entered the left-hand turn lane and began to turn into the
Marathon gas station; at the same time, Soto drove his truck left of center, across a
double solid line, entered the left-hand turn lane, and struck Rios’s vehicle. The
force of the impact pushed Soto’s truck and Rios’s vehicle through the Fulton and
Clark intersection, with Rios’s vehicle erupting into flames and coming to rest in the
Rally’s restaurant.
The recordings supported Detective Moten’s testimony although they
do not depict whether Soto crossed a solid double line. Detective Moten further
testified that the video did not show Soto attempting to flee the scene after the
accident or attempting to secure keys from people in the area; he stated that the
video showed that Soto remained at the scene and, after the victims were extracted
from the car, he helped pull them away from the burning car.
Detective Moten also testified about the crash data recorded on Soto’s
truck and the report generated to reflecting that information; the report was
admitted at trial. According to Detective Moten, Soto drove approximately 94
m.p.h. prior to colliding with Rios’s vehicle, and he did not apply his truck’s brakes
prior to impact. F. Weaver
Dr. Weaver, a forensic pathologist with the Cuyahoga County Medical
Examiner’s office, completed the autopsy of Rios and determined she died from
blunt-force injuries caused by the motor vehicle accident. According to Dr. Weaver,
the alcohol in Rios’s body cavity “[wa]s teetering right on the edge of what is
considered to be the legal limit in the State of Ohio; but, again, with a margin of
error that can put her either below or above.” Tr. 601.
The blood collected from Rios’s body cavity was also positive for
amphetamines that could include prescription medication such as Adderall; the
amount was not “significant or lethal” but “therapeutic if [Rios] was prescribed that
class of drugs.” Tr. 600. Dr. Weaver conceded that she did not have any information
that Rios was prescribed this class of drug. The blood toxicology was also positive
for nicotine, presumably from cigarettes, and marijuana.
G. Crim.R. 29 Motion for Acquittal
Following the State’s case-in-chief, Soto made a Crim.R. 29 motion
for acquittal, and the trial court denied the motion. After the defense rested without
introducing any additional evidence, Soto presented a renewed Crim.R. 29 motion
that was again denied.
H. Jury Verdict and Sentencing
The jury returned a verdict finding Soto guilty of all charges, and the
court referred Soto for a presentence-investigation report. The court conducted a
sentencing hearing on August 27, 2025. The court heard from counsel for both parties, Soto, and a relative of Rios and H.P., and the court reviewed letters provided
by defense counsel. The parties agreed that Counts 1, 2, 3, and 5 would merge, and
Counts 4 and 6 would merge. The State elected to sentence Soto on Counts 1 and 4.
On Count 1, involuntary manslaughter, the court sentenced Soto to
ten to 15 years on the base charge. The court also sentenced Soto to three years on
Count 4, aggravated vehicular assault, and six months in county jail on Count 7, OVI.
The court assessed Soto with a fine, driver’s license suspension, and points on his
driver’s license. Counts 1 and 4 were to run consecutively to each other, and Count
7 was to run concurrently to Counts 1 and 4, for an aggregate prison term of 13 to 18
years.
On September 16, 2025, Soto filed a notice of appeal, and he now
presents four assignments of error:
Assignment of Error I: The trial court abused its discretion by denying [defense] counsel’s motion to withdraw and for a continuance.
Assignment of Error II: Appellant’s convictions were against the manifest weight of the evidence.
Assignment of Error III: Appellant’s convictions were unsupported by sufficient evidence.
Assignment of Error IV: The trial [court] abused its discretion by giving the jury an instruction on appellant’s refusal to submit to chemical testing. II. Legal Analysis
A. Withdrawal of Counsel
In his first assignment of error, Soto contends that the trial court
abused its discretion when it denied his request for a continuance of the trial to allow
him to retain new counsel.
A criminal defendant has a right to counsel pursuant to the Sixth
Amendment of the United States Constitution and Section 10, Article I of the Ohio
Constitution. State v. Milligan, 40 Ohio St.3d 341 (1988), paragraph one of the
syllabus. “[T]he right to choose one’s counsel is not absolute, and ‘the essential aim
of the Amendment is to guarantee an effective advocate for each criminal defendant
rather than to ensure that a defendant will inexorably be represented by the lawyer
whom he [or she] prefers.’” State v. Keenan, 2008-Ohio-807, ¶ 30 (8th Dist.),
quoting Wheat v. United States, 486 U.S. 153, 159 (1988). Further, the United States
Supreme Court has “recognized a trial court’s wide latitude in balancing the right to
counsel of choice . . . against the demands of its calendar.” United States v.
Gonzalez-Lopez, 548 U.S. 140, 152 (2006). “The trial court’s difficult responsibility
of assembling witnesses, lawyers, and jurors for trial ‘counsels against continuances
except for compelling reasons.’” State v. Nettles, 2024-Ohio-4910, ¶ 21 (8th Dist.),
quoting Morris v. Slappy, 461 U.S. 1, 11 (1983).
Thus,
“[a] defendant has only a presumptive right to employ his own chosen counsel.” State v. Keenan, 81 Ohio St.3d 133, 137, 1998-[Ohio-]459, 689 N.E.2d 929 (1998). Factors to consider in deciding whether a trial court erred in denying a defendant’s motion to substitute counsel include “the timeliness of the motion; the adequacy of the court’s inquiry into the defendant’s complaint; and whether the conflict between the attorney and client was so great that it resulted in a total lack of communication preventing an adequate defense.” United States v. Jennings, 83 F.3d 145, 148 (6th Cir.1996). In addition, courts should “balance * * * the accused’s right to counsel of his choice and the public’s interest in the prompt and efficient administration of justice.” Id.
State v. Lindsey, 2019-Ohio-782, ¶ 34 (8th Dist.). As to the timing of the motion,
“[a] motion for new counsel made on the day of trial ‘intimates such motion is made
in bad faith for the purposes of delay.’” Id. at ¶ 35, quoting State v. Haberek, 47
Ohio App.3d 35, 41 (8th Dist. 1988).
This court reviews a trial court’s decision on a motion to withdraw as
counsel for an abuse of discretion. State v. Stewart, 2018-Ohio-684, ¶ 14 (8th Dist.),
citing State v. Williams, 2003-Ohio-4396, ¶ 135. An abuse of discretion occurs if
the court’s attitude in reaching its decision was arbitrary, unreasonable, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). An abuse
of discretion also occurs if a court exercises its judgment in an unwarranted way
regarding a matter over which it has discretionary authority. Johnson v. Abdullah,
2021-Ohio-3304, ¶ 35.
Soto was arraigned in Case 691470 in May 2024, and retained
counsel. After 11 pretrials and on the second day of trial, the court granted Soto’s
oral motion to retain new counsel, and one day later Soto retained attorney Rivero
as new counsel. Case 691470 was dismissed without prejudice, and Soto was
reindicted in Case 696908; attorney Rivero’s representation continued in the reindicted case. Throughout the pendency of Case 696908, the court conducted 13
pretrials and a final pretrial and granted a joint motion for continuance of trial on
June 11, 2025. The court held two additional pretrials and a final pretrial, and trial
commenced on August 4, 2025. On August 5, 2025, prior to the start of voir dire,
defense counsel made an oral motion to continue the trial and a motion for attorney
Rivero to withdraw as counsel. This was the trial court’s first notice of any issues
between Soto and his attorney.
Attorney Rivero initially told the court that “some fundamental
disagreements” arose between him and Soto on the morning of trial, and Soto “made
mention of new counsel” although attorney Rivero did not know if Soto wanted new
legal counsel. Tr. 34. Attorney Rivero also stated that he might have a problem
zealously representing Soto.
When asked by the court to explain the problem, attorney Rivero
stated that since the inception of the case, Soto had voiced his concern about the
APA prosecuting the case because the APA previously prosecuted a case against Soto
in which Soto was sentenced to five years in prison. Soto felt that the APA was biased
against him and his participation would prevent Soto from receiving a fair trial.
Attorney Rivero stated that the APA had not acted in an improper manner and,
therefore, he refused to file what he considered a frivolous motion seeking the
recusal of the APA. Attorney Rivero and Soto disagreed on whether a motion should
have been filed to seek the APA’s recusal. The trial court engaged in discussions with the APA and attorney
Rivero. The court stated that the court did not dictate who was assigned to prosecute
a case and the APA would be the prosecuting attorney regardless of whether attorney
Rivero withdrew as counsel; accordingly, the trial court denied attorney Rivero’s
motion to withdraw. Soto then stated that he did not want attorney Rivero as his
attorney, and the trial court responded, “Well, you picked him as your attorney. You
selected him, and he’s your second lawyer.” Tr. 38.
Trial resumed the next day, and the court had a detailed discussion
about plea offers; Soto declined the offered plea agreement. When the court
indicated that the jury would be brought in, Soto stated, “I don’t think — well, I don’t
feel comfortable with [the APA].” Tr. 55. Another lengthy discussion ensued
between Soto, the trial court, the APA, the APA’s supervisor, and attorney Rivero
regarding Soto’s concerns about the APA’s involvement with the case. Soto made
no mention of any concern relating to his own attorney. The trial court ultimately
informed Soto that the APA would be prosecuting the case.
The record demonstrates that Soto freely voiced his concerns to the
trial court about the APA. Outside of Soto’s single statement that he did not want
attorney Rivero as his counsel, all of Soto’s dialogue with the court centered on the
APA. Soto had an opportunity to verbalize concerns about attorney Rivero, but he
did not do so. These conversations were consistent with defense counsel’s initial
statement that Soto’s reservations with him stemmed from attorney Rivero’s refusal
to seek the APA’s recusal. After reviewing the record, we find no basis to conclude that the trial
court abused its discretion when it denied attorney Rivero’s motion to withdraw.
The case had been pending since November 2024, numerous pretrials and final
pretrials had taken place, and the motion was made on the first day of trial.
According to attorney Rivero, the disagreement between Soto and him stemmed
from trial strategy and whether a motion should have been filed seeking the recusal
of the APA. Disagreements over strategy do not establish good cause to allow
counsel to withdraw, particularly where the case has been pending for over a year
and the motion is made on the day of trial. Nettles, 2024-Ohio-4910 at ¶ 29 (8th
Dist.) (“Disagreements over strategy do not suffice to establish good cause to allow
counsel to withdraw, especially here where the case has been pending for over a year
and the motion was filed just days before trial.”). Moreover, even if the trial court
granted defense counsel’s motion, the APA — the source of Soto’s concerns — would
have remained as prosecutor.
Soto also contends that the trial court abused its discretion when it
denied his motion for continuance. Specifically, Soto, who had become eligible for
bond in June, requested additional time to “get out and work, acquire more funds
to hire additional counsel and possibly an investigator.” Tr. 80. We cannot find that
the trial court abused its discretion when it denied Soto’s motion for continuance
where the case had been pending for over a year, the court had conducted numerous
pretrial hearings, had continued the trial on several occasions, and counsel was
prepared and ready to proceed to trial. For the foregoing reasons, the trial court did not abuse its discretion
when it denied counsel’s motion to withdraw or Soto’s related motion for
continuance. The first assignment of error is overruled.
B. Sufficiency of the Evidence
In his second and third assignments of error, Soto contends that his
convictions were against the manifest weight of the evidence and unsupported by
sufficient evidence, respectively. For ease of discussion, we will address these
assigned errors in reverse order.
1. Merger
We initially note that for sentencing purposes, the trial court merged
Counts 1, 2, 3, and 5 and sentenced Soto on Count 1, and the court merged Counts 4
and 6 and sentenced Soto on Count 4. This court has previously found that with
merged offenses, if there is sufficient evidence to support the offense on which the
State elected to have the defendant sentenced, the reviewing court need not consider
the sufficiency of the evidence or manifest weight of the evidence on the merged
counts because any error would constitute harmless error. State v. Ramos, 2016-
Ohio-7685, ¶ 14 (8th Dist.), citing State v. Powell, 49 Ohio St.3d 255, 263 (1990),
and Ramos at ¶ 15, citing State v. Worley, 2016-Ohio-2722, ¶ 23 (8th Dist.). Thus,
pursuant to Ramos, we will not consider Counts 2, 3, 5, and 6 in our evaluation of
the sufficiency of the evidence and the manifest weight of the evidence assigned
errors. 2. Standard of Review
Where a party challenges the sufficiency of the evidence supporting a
conviction, a determination of whether the State has met its burden of production
at trial is conducted. State v. Hunter, 2006-Ohio-20, ¶ 41 (8th Dist.), citing State v.
Thompkins, 1997-Ohio-52, ¶ 33. An appellate court reviewing sufficiency of the
evidence must determine “‘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. Leonard, 2004-
Ohio-6235, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of
the syllabus. With a sufficiency inquiry, an appellate court does not review whether
the State’s evidence is to be believed but whether, if believed, the evidence admitted
at trial supported the conviction. State v. Starks, 2009-Ohio-3375, ¶ 25 (8th Dist.),
citing Thompkins at ¶ 36. A sufficiency-of-the-evidence argument is not a factual
determination, but a question of law. Id.
In a sufficiency inquiry, we also assume that the State’s witnesses
testified truthfully and evaluate whether that testimony, along with any other
evidence introduced at trial, satisfies each element of the offense. In re D.R.S., 2016-
Ohio-3262, ¶ 23 (8th Dist.). The elements of an offense may be proven by direct
evidence, circumstantial evidence, or both. See, e.g., State v. Wells, 2021-Ohio-
2585, ¶ 25 (8th Dist.), citing State v. Durr, 58 Ohio St.3d 86 (1991). Circumstantial
evidence and direct evidence have the same probative value. State v. Jenks at
paragraph one of the syllabus. Similarly, Crim.R. 29(A) mandates that the trial court issue a
judgment of acquittal where the State’s evidence is insufficient to sustain a
conviction for an offense. Crim.R. 29(A). Accordingly, we apply the same standard
of review to a trial court’s denial of a defendant’s motion for acquittal as we use when
reviewing sufficiency of the evidence. State v. Taylor, 2014-Ohio-3134, ¶ 22-23 (8th
Dist.), citing Cleveland v. Pate, 2013-Ohio-5571 (8th Dist.) (“Crim.R. 29(A) and
sufficiency of the evidence review require the same analysis.”).
3. Analysis
(a) OVI
Soto argues that the State failed to introduce sufficient evidence that
he was under the influence of alcohol at the time of the accident. While Soto
admitted to EMS that he consumed three drinks on the night of the accident and he
allegedly smelled of alcohol, he argues that such evidence was insufficient to
establish that his consumption of alcohol affected him to the point that it noticeably
impaired his ability to operate his truck. Soto contends there was no evidence that
he was physically impaired at the scene of the accident. Soto further argues that
drinking alcohol and then driving does not automatically demonstrate that he was
driving under the influence. Taking into consideration that the OVI conviction was
a predicate offense for aggravated vehicular assault and aggravated vehicular assault
was a predicate offense for Count 1, involuntary manslaughter, Soto argues that
absent sufficient evidence to support an OVI conviction against him, there was also
insufficient evidence to support the involuntary-manslaughter convictions. Accordingly, Soto contends that the trial court erred when it denied his Crim.R. 29
motion at the close of the State’s case.
The OVI convictions against Soto stemmed from R.C.
4511.19(A)(1)(a) that states no person shall operate a vehicle while “under the
influence of alcohol, a drug of abuse, or a combination of them.” This court has
recognized that “to prove impaired driving ability, the [S]tate can rely not only on
coordination tests such as the field sobriety tests but also on physiological factors
such as slurred speech, bloodshot eyes, and the odor of alcohol.” Solon v. Hrivnak,
2014-Ohio-3135, ¶ 18 (8th Dist.), citing State v. Clark, 2007-Ohio-3777, ¶ 13 (8th
Dist.), State v. Simms, 2008-Ohio-4848, ¶ 6 (9th Dist.), and State v. Holland, 1999
Ohio App. LEXIS 6143 (11th Dist. Dec. 17, 1999). “‘Generally, any lay witness,
including a police officer, may testify whether an individual appeared intoxicated.”’
Cleveland v. Clark, 2024-Ohio-4491, ¶ 41 (8th Dist.), quoting Clark, citing State v.
Schmitt, 2004-Ohio-37, ¶ 12, citing Columbus v. Mullins, 162 Ohio St. 419, 421
(1954). “‘Other factors that the [S]tate may use to show intoxication include
evidence that the defendant caused an accident, refused to submit to a field-sobriety
or chemical test, or exhibited a belligerent or combative demeanor.’” Clark at ¶ 41,
quoting State v. Yared Fitsum Assefa, 2023-Ohio-385, ¶ 20 (1st Dist.). “‘Field-
sobriety tests are not required to prove an OVI conviction.”’ Id., quoting Hrivnak
at ¶ 17, citing State v. Strebler, 2006-Ohio-5711, ¶ 17 (9th Dist.).
Patrolman Bolivar testified that he did not conduct SFSTs at the
accident scene because it was too hectic. He further testified that Soto refused to submit to a blood alcohol test or urine screen at the hospital. Absent test results on
Soto’s alcohol consumption, the State presented evidence of Soto’s physiological
characteristics following the accident. Patrolman Bolivar testified that he smelled
alcohol on Soto and noticed he had glassy, red eyes. Patrolman Bolivar did not
observe Soto using slurred speech. EMS worker Hyde testified that Soto smelled of
alcohol, had glassy eyes, and delayed responses to Hyde’s questions that indicated
he had been drinking. Additionally, Soto admitted to Hyde that he had consumed
three drinks, and Hyde believed Soto was referring to alcoholic beverages.
Schneider testified that based upon his years of living with an alcoholic father, and
Soto’s behavior, he could discern that Soto was intoxicated.
H.P. testified that she drank a shot with Soto at the club. H.P. also
testified that after leaving the club and before the automobile accident, Soto drove
“aggressively” and like a “maniac.” The evidence further established that Soto
crashed into Rios’s vehicle when he attempted to pass her on the left; Soto was
driving 94 miles per hour in a 35 miles per hour zone and he did not apply his brakes
prior to impact.
When viewing this evidence in a light most favorable to the State, any
rational trier of fact could have found Soto was impaired and driving under the
influence. While the State did not introduce either a SFST or chemical test
demonstrating Soto was intoxicated, the record contains sufficient testimony of
Soto’s alleged intoxication. Thus, the trial court did not err when it denied Soto’s
Crim.R. 29 motion on the issue of OVI. (b) Recklessness
Soto next contends that the trial court erred when it denied his
Crim.R. 29 motion on Counts 2, 5, and 6 that require a finding of recklessness.
Specifically, Soto argues that the evidence was insufficient to show that he recklessly
caused harm to Rios and H.P. He claims that driving over the speed limit, even if
coupled with driving over a solid lane marker, constituted negligence not
recklessness.
Because Counts 2, 5, and 6 — that required a showing of recklessness
— merged for purposes of sentencing, we need not address this issue. Counts 2 and
5 were sentenced under Count 1, and Count 6 was sentenced under Count 4. A
finding of recklessness was not required to prove Count 1, involuntary
manslaughter, Count 1’s predicate offense of aggravated vehicular assault, OVI— the
predicate offense for aggravated vehicular assault — or Count 4, a second charge of
aggravated vehicular assault. Thus, we find that a sufficiency-of-the-evidence
analysis related to recklessness is not necessary because any error would constitute
harmless error. See above Section II (B)(1), merger.
For the foregoing reasons, Soto’s third assignment of error is
overruled. C. Manifest Weight of the Evidence
In his second assignment of error, Soto argues that his OVI
convictions and findings of recklessness were against the manifest weight of the
evidence.
1. Standard of Review
A manifest-weight challenge questions the credibility of the evidence
presented and examines whether the State met its burden of persuasion at trial.
State v. Whitsett, 2014-Ohio-4933, ¶ 26 (8th Dist.), citing Thompkins, 1997-Ohio-
52 at ¶ 24; State v. Bowden, 2009-Ohio-3598, ¶ 13 (8th Dist.), citing Thompkins at
¶ 33.
“‘Weight of the evidence concerns “the inclination of the greater
amount of credible evidence, offered in a trial, to support one side of the issue rather
than the other. . . . Weight is not a question of mathematics, but depends on its effect
in inducing belief.”’” (Emphasis omitted.) Eastley v. Volkman, 2012-Ohio-2179,
¶ 12, quoting Thompkins at ¶ 24, quoting Black’s Law Dictionary (6th Ed. 1990). A
reviewing court “weighs the evidence and all reasonable inferences, considers the
credibility of witnesses and determines whether in resolving conflicts in the
evidence, the jury 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.
Martin, 20 Ohio App.3d 172 (1st Dist. 1983), paragraph three of the syllabus. When
considering an appellant’s claim that a conviction is against the manifest weight of
the evidence, the court of appeals sits as a “thirteenth juror” and may disagree with the factfinder’s resolution of the conflicting testimony. Thompkins at ¶ 25, citing
Tibbs v. Florida, 457 U.S. 31, 42 (1982). “A conviction should be reversed as against
the manifest weight of the evidence only in the most ‘exceptional case in which
evidence weighs heavily against conviction.’” State v. Crenshaw, 2020-Ohio-4922,
¶ 24 (8th Dist.), quoting Thompkins at ¶ 25.
2. Analysis
In Soto’s second assignment of error, he argues that his OVI
convictions were against the manifest weight of the evidence. Specifically, Soto
argues that there were no SFSTs or chemical tests to demonstrate he was under the
influence of alcohol and that the only evidence was the testimony of the State’s
witnesses who were not credible. Soto appears to find the State’s witnesses lacked
credibility because some of their testimony was inconsistent. For instance, Soto
claims that Patrolman Bolivar testified to Soto’s glassy, red eyes but denied Soto
slurred his speech whereas Hyde testified that Soto exhibited slurred speech and
glassy eyes. Additionally, Schneider stated Soto tried to borrow bystanders’ keys so
that he could flee the accident scene, but this testimony was not corroborated by any
other witness or by the video-camera recording played at trial. Soto also contends
that Patrolman Bolivar’s body-camera footage did not show him unsteady on his
feet, slurring his speech, or exhibiting bloodshot or glassy eyes. Therefore, Soto
contends there was not credible evidence to find he was under the influence of
alcohol while operating his vehicle. “‘“[C]ircumstantial evidence and direct evidence inherently possess
the same probative value.”’” Cleveland v. Imrie, 2021-Ohio-308, ¶ 18 (8th Dist.),
quoting State v. Hartman, 2008-Ohio-3683, ¶ 37 (8th Dist.), quoting Jenks, 61 Ohio
St.3d 259 (1991), at paragraph one of the syllabus. “Accordingly, the State was not
obligated to produce direct evidence that [Soto was driving while under the
influence of alcohol]; circumstantial evidence permitting an inference of the same
was all that was required.” State v. Pettaway, 2025-Ohio-1181, ¶ 24 (8th Dist.).
Further, a defendant is not entitled to a reversal on manifest-weight
grounds merely because inconsistent evidence was presented at trial. State v.
Medley, 2018-Ohio-1391, ¶ 20 (8th Dist.), citing State v. Raver, 2003-Ohio-958,
¶ 21 (10th Dist.). The jury “is free to believe all, some, or none of the testimony of
each witness appearing before it.” State v. Maldonado, 2020-Ohio-5616, ¶ 40 (8th
Dist.), citing State v. Ellis, 2013-Ohio-1184, ¶ 18 (8th Dist.). And a conviction is not
against the manifest weight of the evidence simply because the factfinder believed
the prosecution’s witness. State v. Wherry, 2026 Ohio App. LEXIS 1296, *5 (1st
Dist. Apr. 8, 2026) citing State v. Brown, 2025-Ohio-2351, ¶ 18 (1st Dist.).
As discussed above, the State presented evidence — including the
testimony of Patrolman Bolivar, Hyde, Schneider, H.P., and Detective Moten — that
Soto was under the influence of alcohol. After reviewing the entire record, weighing
the evidence and all reasonable inferences, considering the witnesses’ credibility and
deferring to the trier of fact’s credibility assessment, we are unable to conclude that the jury lost its way and created a manifest injustice. This is not an exceptional case
in which the evidence weighs heavily against conviction.
For these reasons, Soto’s second assignment of error is overruled.2
D. Jury Instruction
Soto contends in his fourth assignment of error that the trial court
abused-its-discretion when it instructed the jury on Soto’s refusal to submit to
chemical testing.
A trial court’s decision to provide a specific jury instruction is within
the sound discretion of the court, and such a decision will be reviewed under an
abuse-of-discretion standard. Robinson v. Turoczy Bonding Co., 2016-Ohio-7397,
¶ 28 (8th Dist.), citing Sicklesmith v. Hoist, 2006-Ohio-6137, ¶ 62 (7th Dist.).
“Requested jury instructions should ordinarily be given if they are
correct statements of law, if they are applicable to the facts in the case, and if
reasonable minds might reach the conclusion sought by the requested instruction.”
State v. Adams, 2015-Ohio-3954, ¶ 240, citing Murphy v. Carrollton Mfg. Co., 61
Ohio St.3d 585, 591 (1991).
Here, the trial court provided the following instruction to the jury:
Refusal to submit to test. Evidence has been introduced indicating the defendant was asked but refused to submit to a chemical test of his blood and/or urine to determine the amount of alcohol, drug of
2 Soto also argued that the jury’s finding of recklessness was against the manifest
weight of the evidence. As stated previously, a finding of recklessness was not required to prove the counts upon which Soto was sentenced — Count 1 and its predicate offenses or Count 4 — and, accordingly, a manifest-weight-of-the-evidence analysis related to recklessness is unnecessary because any error would constitute harmless error. See above Section II (B)(1), merger. abuse and/or alcohol and a drug of abuse in his system for the purpose of suggesting that the defendant believed he was under the influence of alcohol, drug of abuse and/or alcohol and a drug of abuse.
If you find the defendant refused to submit to said test, you may, but are not required to, consider this evidence along with all the other facts and circumstances in evidence in deciding whether the defendant was under the influence of alcohol, drug of abuse and/or alcohol and a drug of abuse.
Tr. 777-778.
The Ohio Supreme Court has stated that it is “permissible for a trial
judge to instruct a jury that the defendant’s refusal to submit to a chemical test is
evidence of his or her intoxication at the time of the taking of the test.” Maumee v.
Anistik, 1994-Ohio-157, ¶ 14. The Anistik Court stated that after an individual has
been arrested for suspected OVI and is requested by a police officer to submit to a
chemical test and he or she refuses to take the test, courts may instruct the jury as
the trial court did in this matter. Id. at ¶ 16. The “refusal to submit” jury instruction
provides juries with a degree of neutrality and allows them “to consider the totality
of the circumstances involving a defendant’s choice to decline testing.” Parma v.
Benedict, 2015-Ohio-3340, ¶ 37 (8th Dist.), citing Anistik at ¶ 16.
Patrolman Bolivar testified that he handcuffed Soto to the gurney
while Soto was treated at the accident scene by the EMS vehicle. Patrolman Bolivar
also testified that after Soto was transported to MetroHealth Hospital, the officer
followed a BMV checklist utilized after an individual is charged with an OVI offense
and asked whether Soto would submit to a urine or blood test. According to
Patrolman Bolivar, Soto refused to submit to either test. Here, the court’s “refuse to submit” jury instruction conformed with
the instruction sanctioned by the Ohio Supreme Court in Anistik. We cannot say
that the trial court abused its discretion in instructing the jury on the element of
refusal and, accordingly, Soto’s fourth assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
______________________ TIMOTHY W. CLARY, JUDGE
LISA B. FORBES, P.J., and KATHLEEN ANN KEOUGH, J., CONCUR