[Cite as State v. Frazier , 2021-Ohio-2945.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO Plaintiff-Appellee

v. JUSTIN T. FRAZIER Defendant-Appellan t : : : : : : : : : : Appellate Case No. 28988

Trial Court Case No. 2017-CR-3307 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 27th day of August, 2021.

. . . . . . . . . . . MATHIAS H. HECK, JR. by ELIZABETH A. ELLIS, Atty. Reg. No. 0074 332, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Ap pellate Division, Montgomery County Courts Building, 301 West Third Street, 5th F loor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee KRISTIN L. ARNOLD, Atty. Reg. No. 0088794, 120 West Second Stre et, Suite 1717, Dayton, Ohio 45402 Attorney for Defendant-Appellant

. . . . . . . . . . . . .-2- HALL, J. {¶ 1} Justin T. Frazier appeals from his conviction following a no-co ntest plea to one count of felony operating a vehicle while under the influen ce of alcohol and refusing a breath test in violation of R.C. 4511.19(A)(2). {¶ 2} In his sole assignment of error, Frazier challenges the trial c ourt’s denial of his motion to suppress field-sobriety test results. He argues t hat a trooper administering the tests failed to conduct them in substantial compliance with National Highway Traffic Safety Administration (NHTSA) standards. {¶ 3} The record reflects that Ohio State Highway Patrol Trooper Eric Frost initiated a traffic stop after Frazier made a wide left turn an d changed lanes without signaling. Upon approaching Frazier’s vehicle, Frost detected a strong odor of alcohol and noticed signs of impairment. Frazier’s speech was slow and slurred. He also “fumbled through his wallet” as if he lacked dexterity in his fingers. F razier appeared to be “struggling with normal movements.” He admitted to the trooper that he had consumed

some alcohol. {¶ 4} Trooper Frost proceeded to have Frazier perform three field-sob riety tests: the horizontal-gaze-nystagmus (HGN) test, the walk-and-turn tes t, and the one-leg-stand test. Based on Frazier’s performance, Frost arrested him for op erating a vehicle while under the influence of alcohol. A grand jury subsequently indic ted Frazier on two counts: (1) operating a vehicle while under the influence of alcohol in violation of R.C. 4511.19(A)(1)(a); and (2) operating a vehicle while under the i nfluence of alcohol and refusing a breath test in violation of R.C. 4511.19(A)(2). Beca use Frazier had three prior OVI convictions within 10 years, the charges were fourth-degree felonies under R.C.-3- 4511.19(G)(1)(d). {¶ 5} Frazier moved to suppress the field-sobriety test results, argu ing among other things that Trooper Frost failed to conduct the tests in substantial compliance with NHTSA standards. The trial court overruled the motion following a January 19, 2018 hearing. Frost then entered a no-contest plea to count two in e xchange for the dismissal of count one. The trial court accepted the plea and made a find ing of guilt. It sentenced Frazier to community-control sanctions that included a 120-day jail sentence. {¶ 6} On appeal, Frazier challenges the trial court’s suppression rul ing. He argues

that the HGN test and the walk-and-turn test were administered improperly and, therefore, that the results of those two tests should have been suppressed . With regard to the HGN test, Frazier contends Trooper Frost violated NHTSA standards b y (1) failing to test for or to identify whether Frazier had “resting gaze nystagmus,” (2) u sing a finger as a stimulus, and (3) holding a flashlight in Frazier’s face. As for the walk -and-turn test, Frazier claims the trooper violated NHTSA standards by (1) failing to tell him how to stand while instructions were being given and (2) failing to tell him to co unt out loud as he walked. {¶ 7} As Frazier correctly recognizes, the applicable legal requireme nt for admission of field-sobriety test r esults is whether the tests w ere conducted in substantial compliance with NHTSA standards. State v. Davis , 2d Dist. Clark No. 2008-CA-65, 2009- Ohio-3759, ¶ 14-15. Substantial compliance “is a legal standard for a court’s

determination.” Id . at 18. “We defer to the trial court’s factual findings and in dependently determine whether they demonstrate substantial compliance” with NHTSA standards. Id

. {¶ 8} Here the trial court rejected each of Frazier’s arguments about deficiencies

in the HGN test. It reasoned:-4- The Court is not persuaded by Frazier’s argument that Trooper F rost did not perform the tests in substantial compliance because he did not specify that he tested Frazier’s resting nystagmus, he shone th e flashlight on Frazier’s forehead, and used his finger as a stimulus. The N HTSA manual does not specify that there is a test of resting nystagm us, which involves an involuntary jerking of the eyes as they gaze straig ht ahead. Def. Exh. C. Trooper Frost testified that he did not observe this re sting nystagmus in Frazier. The NHTSA manual also does not specify wh ere a light is to be shone in order to see a stimulus at night, and d oes not explain what type of stimulus is to be used. Def. Exs. B-E. Therefore, Trooper Frost administered the HGN and VGN tests in substantial compliance wi th the

NHTSA manual. (April 9, 2018 Decision, Order and Entry at 8.) {¶ 9} Upon review, we see no error in the trial court’s decision. The trial court correctly noted that the NHTSA manual does not prescribe a part icular “test” for observing resting nystagmus, and Trooper Frost testified that he did chec k for it, finding “equal pupil size and no resting nystagmus.” (Tr. at 10.) The NHTSA manual a lso does not prohibit using a finger as a stimulus for a driver to track with his eye s. In fact, page 18 of “Session

3” of NHTSA’s 2018 “DWI Detection and Standardized Field Sobrie ty Testing Refresher” participant manual states that an appropriate stimulus “can be a pen, eraser on a pencil, the tip of a penlight, the tip of your finger, or any similar s mall object.” Likewise, page 39 of “Session 8” of NHTSA’s full 2018 participant manual states t hat “[t]he stimulus may be the eraser on a pencil, the tip of a penlight, the tip of your finger, or any similar small-5- object.” Finally, the trial court observed that the NHTSA manua l does not specify where a light should be shined when illuminating a stimulus. Trooper Frost explicitly testified that he did not shine a light in Frazier’s eyes when performing the HGN test, and the trial court made a factual finding that the light shined on Frazier’s foreh ead. (Tr. at 30; April 9, 2018 Decision, Order and Entry at 2.) Having reviewed the record, we agree with the trial court’s determination that Trooper Frost performed the HGN test in subs tantial compliance with

NHTSA standards. {¶ 10} With regard to the walk-and-turn test, the NHTSA manual divides the test into two stages: (1) the instruction stage and (2) the walking stage. For the first stage, the manual states that a driver is to be told to position his feet heel-to-toe with his hands at his side and to maintain that position while being instructed h ow to perform the test. On appeal, Frazier claims there was a “significant amount of confu sion” regarding whether Trooper Frost told him to get into the proper position to liste n to the remainder of the instructions. During the hearing, defense counsel suggested tha t Frost gave instructions about how to perform the test without first placing Frazier in the proper position. In support, counsel played a portion of a video recording of the f ield-sobriety test. Trooper Frost disagreed. He testified that during the portion of the vi deo at issue he had not yet finished explaining how Frazier was to stand. Frost stated that he first had to explain the proper standing position to Frazier, and get him into that posi tion, before the trooper could proceed with instructions on how to perform the actual test. (T r. at 40-48.) The trial court credited Trooper Frost’s testimony. It found that “[o]nce Frazi er mimicked Trooper Frost and stood in the required heel-to-toe stance with his arms at h is sides, Trooper Frost instructed Frazier on how to perform the test.” (April 9, 2018 Decision, Order and Entry at-6- 9.) A cruiser recording confirms that the trooper explained the proper standing position and got Frazier into it before proceeding with the rest of the instructions. Finally, Frazier contends Trooper Frost violated NHTSA standards by failing to t ell him to count out loud as he walked. We reject this argument. Trooper Frost testified that he did tell Frazier to count out loud. (Tr. at 49.) This testimony was confirmed by th e cruiser video, which also

established that Frazier did co unt out loud as instructed. Unde r these circumstances, we see no error in the trial court’s finding of substantial compli ance. {¶ 11} Frazier’s assignment of error is overruled, and the judgment of the Montgomery County Common Pleas Court is affirmed.

. . . . . . . . . . . . .

DONOVAN, J. and WELBAUM, J., concur.

Copies sent to: Mathias H. Heck, Jr. Elizabeth A. Ellis Kristin L. Arnold Hon. Michael W. Krumholtz