[Cite as State v. Terry, 2017-Ohio-2686.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Appellate Case No. 27102 Plaintiff-Appellee : : Trial Court Case No. 15-TRC-5733 v. : : (Criminal Appeal from Kettering AMANDA L. TERRY : Municipal Court) : Defendant-Appellant : :
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OPINION
Rendered on the 5th day of May, 2017.
JOHN D. EVERETT, Atty. Reg. No. 0069911, City of Kettering Prosecutor’s Office, 2325 Wilmington Pike, Kettering, Ohio 45420 Attorney for Plaintiff-Appellee
FRANK M. BATZ, Atty. Reg. No. 0078151, 126 North Philadelphia Street, Dayton, Ohio 45403 Attorney for Defendant-Appellant
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BROGAN, V.J. -2-
{¶ 1} Defendant-appellant Amanda Terry appeals from her conviction and
sentence for failure to maintain continuous lanes in violation of City of Kettering ordinance
432.08, operating a vehicle while intoxicated (with a prior offense) in violation of R.C.
4511.19(A)(1)(a), and OVI test refusal in violation of R.C. 4511.19(A)(2).
{¶ 2} Kettering Police Officer, Matthew Burian, was on routine patrol on August 10,
2015. At approximately 2:20 a.m., he was at the intersection of Stroop Road and Far
Hills Avenue, when he observed a vehicle traveling east on Stroop. He observed the
vehicle abruptly cross over the lane markers so that it was straddling the lane marker for
the through-lane and the left turn lane. The vehicle then returned to the through lane,
and continued traveling on Stroop Road crossing Far Hills Avenue. Burian followed the
vehicle. As it approached the intersection with Shroyer Road, Burian observed the
vehicle drift into the right lane by approximately three tire widths before drifting back into
the left lane of travel. The vehicle then turned left onto Shroyer Road. Burian initiated a
traffic stop.
{¶ 3} Burian approached the driver, identified as Terry, and asked for her driver’s
license and proof of insurance. Burian detected a strong odor of alcohol emanating from
Terry. He also noted that her eyes appeared glassy and watery, and that her speech
was slurred. Terry began sifting through a wallet, and Burian observed numerous items
from the wallet fall into her lap. Terry attempted to give Burian a debit card, which he
rejected. She then gave him her driver’s license, but was unable to provide proof of
insurance. Burian asked Terry where she had been, at which time she stated she had
dropped a friend off and was heading to her home. Burian noted that she was traveling -3-
in the wrong direction, away from her home, at which time Terry stated that she was
stopping at the Shell gas station. Burian noted she had passed the station which was
located at the intersection of Stroop Road and Far Hills.
{¶ 4} Burian ran Terry’s license through his cruiser computer. He observed that
Terry had two prior OVI convictions, at which time he requested backup. Officer Thomas
Engles arrived on the scene. Burian then returned to the Chevy, and asked Terry to step
out of the vehicle. Burian escorted Terry to a flat driveway. She was unsteady on her
feet, and swaying, as she walked. He asked her if she had any physical conditions that
would prevent her from performing field sobriety tests. Terry informed him that she had
suffered a head trauma approximately ten years earlier, and that she suffered from PTSD
as well as a spinal cord condition. Although Burian asked for more specificity, he did not
receive any more information from Terry. Terry confirmed that she had no issues with
standing or walking normally, and that she did not wear contact lenses.
{¶ 5} Burian proceeded to conduct the horizontal gaze nystagmus (HGN) test,
which indicated impairment. He then conducted the Walk and Turn test, as well as the
One-Legged Stand test. Both tests indicated impairment. Burian then administered a
finger to nose test that is standard for the Kettering Police Department. Again, the test
indicated impairment. At that point, Burian placed Terry under arrest. She was
transported to the Kettering Police Department jail. Burian asked her to submit to a
breathalyzer test, and read her the BMV Form regarding such tests. Terry refused to
submit to the test. She was advised that her license would be suspended, at which point
she refused to be interviewed further. -4-
{¶ 6} Terry filed a motion to suppress which was overruled by the trial court on
September 30, 2015. She subsequently filed a subpoena seeking to have a Veteran’s
Administration Staff Psychologist testify at trial. On December 31, 2015, the VA sent a
letter to Terry’s counsel indicating that Terry needed to sign a release for medical records,
and that she needed to submit a written request and affidavit to the VA in order to have
staff testify at trial. On Jaunary 5, 2016, Terry filed a motion for a continuance of the trial
that was set for January 6. The trial court granted the motion, and trial was reset for
February 24, 2016.
{¶ 7} On February 17, 2016, Terry reissued a subpoena seeking to have the VA
psychologist, as well as a VA medical doctor, testify at trial. On the same day, she filed
a motion to compel or to dismiss arguing that the trial court should compel the VA staff to
testify at trial, and in the absence of such an order, dismiss the case against her.
Attached to the motion was a copy of a notarized note indicating that Terry was unable to
perform a breathalyzer test that required her to lock her mouth around a tube. The note
was signed by a VA psychologist. Also attached to the motion was a document entitled
Request and Demand for Testimony and Records. The request indicated that it was
hand-delivered to the Kettering Prosecuting Attorney, but does not indicate a date of
service. The motion was overruled.
{¶ 8} On February 22, Terry filed a waiver of trial by jury. A trial to the court was
conducted on February 24, 2016. At that time, the parties stipulated that medical records
presented by Terry would be admitted into the record. Additionally, defense counsel
stated that the VA would not allow its staff to appear at trial. The trial court then noted
that the motion to compel or dismiss had been overruled because the records that would -5-
have been testified to were being admitted by stipulation.
{¶ 9} At trial, Terry testified that on the date of the arrest, she had been asleep
when an acquaintance called her at approximately 1:45 a.m. asking her for a ride. Terry
gave the individual a ride to an address behind the Shell Gas Station located at the corner
of Stroop Road and Far Hills Avenue. She testified that she was on her way home, when
the acquaintance called to inform her that she had left her purse in Terry’s car. Terry
testified that she turned around to return to the Shell station when she was stopped. She
testified that she informed Burian of her reason for heading back toward the Shell station.
Terry denied consuming any alcohol. She testified that she had suffered an assault ten
years in the past which damaged her eye sockets, eye muscles and spinal cord. She
testified that these injuries prevented her from performing the field sobriety tests. She
further testified that she informed Burian that she could not perform a breathalyzer test,
and that she had a note to that effect. She testified that she did not refuse to take the
breathalyzer. On cross-examination, she admitted that she is able to walk in high heels,
and that the psychologist who wrote the note regarding the breathalyzer did not test her
actual ability to take such a test.
{¶ 10} Burian testified that Terry did not inform him about returning to the Shell
station to return a purse. He further testified that she never mentioned a note regarding
her inability to perform a breathalyzer test. He stated that Terry did make comments that
indicated she did not understand why she had been stopped or was having to undergo
field sobriety tests. Burian testified that Terry kept interrupting him while he read her the
Ohio BMV Form 2255 regarding breathalyzer testing, but that she was merely claiming
that the breathalyzer was not legal because it was not administered before her arrest. -6-
{¶ 11} Officer Engles testified that he observed Terry swaying as she walked. He
testified that she stated that she could not be arrested because she had not taken a
breathalyzer test. Engles testified he told her that she would be able to take that test at
the jail, to which she responded that she looked forward to it. He testified that she did
not mention any note regarding the breathalyzer test or the inability to perform a breath
test.
{¶ 12} Terry appeals from her convictions for OVI and refusing a breath test,
claiming that they were against the manifest weight of the evidence and based on
insufficient evidence. “A sufficiency of the evidence argument disputes whether the
State has presented adequate evidence on each element of the offense to allow the case
to go to the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist.
Montgomery No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d
380, 386, 678 N.E.2d 541 (1997). When reviewing whether the State has presented
sufficient evidence to support a conviction, the relevant inquiry is whether any rational
finder of fact, after viewing the evidence in a light most favorable to the State, could have
found the essential elements of the crime proven beyond a reasonable doubt. State v.
Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997). A guilty verdict will not be
disturbed on appeal unless “reasonable minds could not reach the conclusion reached by
the trier-of-fact.” Id.
{¶ 13} In contrast, “a weight of the evidence argument challenges the believability
of the evidence and asks which of the competing inferences suggested by the evidence
is more believable or persuasive.” Wilson at ¶ 12. When evaluating whether a
conviction is against the manifest weight of the evidence, the appellate court must review -7-
the entire record, weigh the evidence and all reasonable inferences, consider witness
credibility, 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.” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d
541, citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 14} Because the trier of fact sees and hears the witnesses at trial, we must defer
to the factfinder's decisions whether, and to what extent, to credit the testimony of
particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL
476684 (Aug. 22, 1997). The fact that the evidence is subject to different interpretations
does not render the conviction against the manifest weight of the evidence. Wilson at ¶
14. A judgment of conviction should be reversed as being against the manifest weight of
the evidence only in exceptional circumstances. Martin, 20 Ohio App.3d at 175, 485
N.E.2d 717.
{¶ 15} Terry claims that her inablility to perform the field sobriety tests was due to
her medical conditions. She further contends that she informed Burian that her past
facial/head trauma prevented her from being able to perform a breathalyzer test. In
support, she submitted medical records indicating that she suffered an attack in 2006
which broke bones in her face. Included therein is a letter from a social worker which
mentions that Terry is unable to concentrate. The letter went on to state that it was not
known whether the concentration problem was related to her diagnosis of PTSD following
the attack, or to traumatic brain injury suffered during the attack. Terry also presented a
note from a Veteran’s Administration Staff Psychologist which indicated that Terry had
facial trauma which rendered her unable to use any standard breathalyzer because she -8-
cannot lock her mouth around a tube.
{¶ 16} A review of the medical records submitted at trial reveals that Terry did in
fact suffer an assault that resulted in her serious physical injury as well as psychological
injury. However, there are no medical records supporting a diagnosis of traumatic brain
injury. While there was evidence to support a finding that Terry suffers from PTSD, the
medical evidence does not support a claim that this rendered her incapable of
concentrating or understanding the field sobriety instructions. Indeed, an August 2012
record suggests that Terry suffered no limitations of understanding or memory. The
record also notes that she follows complex commands.
{¶ 17} While the psychologist’s note indicates that Terry was, as of October 2013,
unable to perform a breathalyzer test, there was no medical evidence to corroborate this
claim or to indicate that the condition continued as of the current offense date, almost two
years later. Likewise, there is evidence in the records that as of December 2013, Terry
suffered from left-sided numbness with evidence of cervical cord compression.
However, the record indicates that the doctor recommended that she engage in physical
therapy which, if successful, would eliminate the need for surgery. The record contains
no evidence that this injury affects her ability to walk or stand. Further, there is no
indication whether the problem still exists. There is also evidence that she suffered a
fracture to the bones around the right eye. However, there was no evidence that this
resulted in any issues with vision.
{¶ 18} In sum, the medical records submitted by Terry corroborate injury, but they
do not corroborate any issues that would impede her ability to perform a field sobriety
test. Thus, we cannot say that the evidence was insufficient to convict the defendant, -9-
nor can we say that the convictions are against the manifest weight of the evidence.
{¶ 19} Terry next claims that the trial court committed prejudicial error by violating
her Sixth Amendment right to obtain witnesses in her favor. Specifically, she contends
that the trial court’s refusal to compel a VA doctor and psychologist to testify prevented
her from presenting witnesses in support of her current medical condition. She claims that
the VA witnesses were necessary to build a foundation for the admission of Terry’s
medical records, which records support her claim that her medical conditions prevented
her from performing the field sobriety tests and the breathalyzer test.
{¶ 20} Pursuant to 5 U.S.C. Section 301, a federal agency may enact regulations
governing testimony by its employees. The Veterans’ Administration regulations for
subpoenaing its employees are set forth at 38 C.F.R. 14. While a federal employee is
not exempt from appearing pursuant to subpoena, a state court “may not hold a federal
employee in contempt for refusing to comply with a subpoena when he acts in accordance
with a validly enacted agency regulation * * *.” Renfrow v. Norfolk S. Ry. Co., 140 Ohio
St.3d 371, 2014-Ohio-3666, 18 N.E.3d 1173, ¶ 30.
{¶ 21} Terry does not deny that the VA required the submission of a signed
medical release, as well as a request for testimony setting forth the necessity of such
testimony before its employees would be permitted to testify. See 38 C.F.R. 14.804 and
14.805. But she contends that she complied with the requirements. In support, she
notes that attached to her motion to compel was a copy of a document entitled Request
and Demand for Testimony and Records.
{¶ 22} As stated above, the VA originally sent Terry a letter regarding subpoena
requirements on December 31, 2015. The trial court continued the trial, at Terry’s -10-
request, due to the need to comply with the VA’s requirements. The record indicates
that she made no attempt to meet those requirements until just one week prior to the new
trial date, approximately a month and a half after the letter from the VA was issued.
Further, the copy of the document requesting testimony and records contains no
signature or date, and does not indicate that it was ever provided to the VA. There is
nothing in the record, other than counsel’s statement at the beginning of trial, that the VA
refused to provide the employees for trial. From the record before us, it is impossible to
tell whether the VA employees were available to testify, or whether Terry’s counsel simply
chose not to call them to the stand.
{¶ 23} “[T]he constitutional issue of whether these [type of federal] regulations
deny defendants a Sixth Amendment right to call and cross-examine witnesses is not
reached until the defendants follow the procedures and then have their demands denied.”
State v. Hudson, 8th Dist. Cuyahoga No. 91803, 2009-Ohio-6454, ¶ 32. From this
record, we cannot say that Terry complied with the requirements of the VA so that the
agency could consider the request and determine whether to grant permission for the
testimony. Therefore, we do not reach the claim that the trial court violated Terry’s Sixth
Amendment rights.
{¶ 24} Further, we can find no prejudice. Terry asserts that the medical employee
testimony was necessary to lay a foundation for the introduction of Terry’s medical
records. But, as noted, medical records were stipulated to by the parties, and made a
part of the record. Terry does not claim that any medical records she desired to present
were not made a part of the record.
{¶ 25} The decision whether to grant a motion to compel is entrusted to the -11-
discretion of the trial court. Sojic v. Karp, 2015-Ohio-3692, 41 N.E.3d 888, ¶ 16 (2d
Dist.). We cannot conclude that the trial court abused its discretion by denying the
motion to compel in this action.
{¶ 26} Finally, Terry contends that the trial court erred by denying her motion to
suppress. In support, she argues that the evidence shows that because she had medical
impairments, Burian did not perform the field sobriety tests in substantial compliance with
prodecures set by the National Highway Traffic Safety Adminstration. Thus, she
contends that Burian did not have probable cause to arrest her.
{¶ 27} “Appellate review of a motion to suppress presents a mixed question of law
and fact. When considering a motion to suppress, the trial court assumes the role of trier
of fact and is therefore in the best position to resolve factual questions and evaluate the
credibility of witnesses.” State v. Koon, 2d Dist. Montgomery No. 26296, 2015-Ohio-
1326, ¶ 13, quoting State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d
71, ¶ 8. “Consequently, an appellate court must accept the trial court's findings of fact if
they are supported by competent, credible evidence. Accepting these facts as true, the
appellate court must then independently determine, without deference to the conclusion
of the trial court, whether the facts satisfy the applicable legal standard.” Id. The
application of the law to the trial court's findings of fact is subject to a de novo standard
of review. State v. Gordon, 5th Dist. Fairfield No. 14–CA–13, 2014-Ohio-5027, ¶ 14,
citing Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).
{¶ 28} The Fourth Amendment to the United States Constitution protects
individuals from unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 88
S.Ct. 1868, 20 L.Ed.2d 889 (1968). Under Terry, police officers may briefly stop and/or -12-
temporarily detain individuals in order to investigate possible criminal activity if the officers
have a reasonable, articulable suspicion that criminal activity may be afoot. State v.
Martin, 2d Dist. Montgomery No. 20270, 2004-Ohio-2738, ¶ 10, citing Terry. We
determine the existence of reasonable suspicion by evaluating the totality of the
circumstances, considering those circumstances “through the eyes of the reasonable and
prudent police officer on the scene who must react to events as they unfold.” State v.
Heard, 2d Dist. Montgomery No. 19323, 2003-Ohio-1047, ¶ 14, quoting State v. Andrews,
57 Ohio St.3d 86, 87–88, 565 N.E.2d 1271 (1991). “A police officer may stop and detain
a motorist when he has a reasonable and articulable suspicion that the motorist has
committed, is committing, or is about to commit any criminal offense, including a traffic
offense, and no independent reasonable and articulable suspicion of other criminal
activity is required under Terry.” State v. Chase, 2d Dist. Montgomery No. 25323, 2013-
Ohio-2347, ¶ 17.
{¶ 29} At the hearing on the motion to suppress, Burian testified that he observed
Terry make two lane violations prior to initiating a traffic stop. Terry, who also testified
at the hearing, did not refute this claim. Thus, we conclude that the trial court did not err
in finding that Burian had a reasonable suspicion that Terry was committing a traffic
offense when he initiated the stop.
{¶ 30} We next note that the testimony at the hearing indicates, and was not
refuted by Terry, that Burian conducted the field sobriety tests in accordance with the
appropriate regulations. Thus, the issue here is not substantial compliance. Instead,
Terry’s argument goes to the weight of the evidence submitted at the hearing, and
whether that evidence demonstrates that Terry’s medical conditions rendered her -13-
incapable of performing the tests so as to mandate exclusion thereof.
{¶ 31} Terry testified at the suppression hearing regarding her medical conditions,
and her claim that they rendered her incapable of performing the field sobriety tests.
However, no medical records or testimony was presented to corroborate her claims.1
Burian testified that, while Terry did convey the fact that she had suffered a head trauma,
she did not inform him that she was incapable of performing the tests or that she had any
ongoing medical condition that would impair her performance. Indeed, she indicated that
she had no difficulty standing or walking. Both Burian and Engles testified that Terry did
not give them any indication that she was unable to perform a breathalyzer test. The
trial court was entitled to give more credence to the testimony of the officers than to Terry.
{¶ 32} On these facts we have little difficulty concluding that sufficient indicia of
impairment existed to cause a prudent officer to conclude that Terry was impaired: two
separate lane violations; glassy/watery eyes; strong odor of alcohol; slurred speech;
fumbled papers; attempt to give Burian a debit card rather than an operator’s license;
prior OVI; and performance on the field-sobriety tests. Taken together, these indicia
established probable cause to believe that Terry was driving under the influence. Thus,
we conclude that the trial court did not err in overruling the motion to suppress.
{¶ 33} Based upon the record before us, we overrule all of Terry’s Assignments of
Error, and affirm the judgment of the trial court.
1 At the time of the suppression hearing, Terry had taken no steps to obtain or introduce any medical information. -14-
HALL, P.J. and WELBAUM, J., concur.
(Hon. James A. Brogan, Retired from the Second District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).
Copies mailed to:
John D. Everett Frank M. Batz Hon. Frederick W. Dressel