[Cite as State v. Davis , 2020-Ohio-473.]

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

STATE OF OHIO Appellee

v. TYRONE DAVIS Appellant C.A. No. 29273

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR-2018-02-0508

DECISION AND JOURNAL ENTRY Dated: February 12, 2020

SCHAFER, Judge. {¶1} Defendant-Appellant, Tyrone Davis , appeals his conviction in th e Summit County Court of Common Pleas for operatin g a vehicle under the influen ce. This Court affirms.

I. {¶2} On February 6, 2018, at approximately 3:00 a.m., Officer Joseph Beltrami of the Northfield Police Department was on patrol when he observed a d ark-colored truck swerving in an irregular pattern. The truck pulled into a motel parking lo t and Officer Beltrami initiated a traffic stop. Officer Beltrami made contact with the driver wh o identified himself as Tyrone Davis. Officer Beltrami asked Davis if he had been drinking th at night. Davis replied that he had. While Officer Beltrami was speaking with Davis, Officer V incent Cangelosi also of the Northfield Police Department arrived on the scene as back up. {¶3} Officer Beltrami observed Davis’s eyes to be glossy and watery. At that point, he asked Davis to step out of the vehicle and to perform field sob riety tests. When Davis stepped2

out of the vehicle Officer Beltr ami detected the odor of alcoho l. Officer Beltrami administered the standard field sobriety tests to Davis while Officer Cangel osi remained on scene and observed. Following the field sobriety tests, Officer Beltrami requested Davis take a portable breath test. Davis refused. Officer Beltrami then placed Davi s under arrest for operating a vehicle under the influence (“OVI”). {¶4} The Summit County Grand Jury indicted Davis on one count of OVI in violation of R.C. 4511.19(A)(1)(a), a felony of the fourth degree, and on e count of OVI in violation of R.C. 4511.19(A)(2)(a), a felony of the fourth degree. Davis en tered a plea of not guilty at his arraignment, and the matter proc eeded through the pretrial proc ess. {¶5} Davis filed a motion to suppress evidence asserting that the fi eld sobriety tests

were not conducted in substantia l compliance with the National Highway Transportation Safety Administration (“NHTSA”) standards and that the officers did no t have probable cause to arrest him for OVI. Following a hearing, the trial court found that O fficer Beltrami administered all three of the field sobriety tests—the horizontal gaze nystagmus (“HGN”), the walk and turn, and the one-leg stand—in substantial compliance with the NHTSA stan dards. The trial court also

determined that the officers had probable cause to arrest Davis for OVI. {¶6} The matter proceeded to a jury trial. The jury returned a verd ict finding Davis guilty of both counts in the indi ctment. The trial court accep ted the jury’s verdict and found Davis guilty on both counts. The trial court thereafter merged count one and two. The State elected to proceed on Count I, and t he trial court imposed sent ence accordingly. {¶7} Davis filed this timely appeal, raising two assignments of erro r for our review.3

II. Assignment of Error I The trial court erred in denying [Davis]’s [m]otion to [s]uppre ss. [ ] {¶8} In his first assignment of error, Davis contends that the trial court erred when it denied his motion to suppress because (1) the State failed to p rove by clear and convincing evidence that the officers administered his field sobriety test s in compliance with the NHTSA manual and guidelines; and (2) the officers lacked probable cau se to arrest Davis for OVI. We disagree on both points. {¶9} Appellate review of a trial court’s ruling on a motion to suppr ess presents a mixed question of law and fact. State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. “When considering a motion to suppress, the trial court assumes the r ole of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses.” State

v. Roberts , 110 Ohio St.3d 71, 2006-Ohio-3665, ¶ 100, citing State v. Mills , 62 Ohio St.3d 357, 366 (1992). Accordingly, an appe llate court must accept a tria l court’s findings of fact when they are supported by compet ent, credible evidence. Id . However, accepting those facts as true, the appellate court must indepe ndently determine, without defer ence to the trial court’s conclusion, whether those facts sa tisfy the applicable legal st andard. Burnside at ¶ 8. Field Sobriety Tests {¶10} In a journal entry following the suppression hearing, the trial court found that Officer Beltrami administered the field sobriety tests in subst antial compliance with NHTSA. In making this determination, the tr ial court stated that Officer Beltrami correctly articulated the appropriate procedures for admin istering the tests, and noted t hat he testified that he

administered the tests in accordance with NHTSA standards. The court found that Officer4

Beltrami adequately demonstrated and explained the tests, and t hat he administered the tests on a dry, level, and hard surface. The trial court further found th at the video evidence presented at the hearing showed that the tests were administered in substantial compliance with the appropriate

standards. {¶11} On appeal, Davis first argues t hat Officer Beltrami’s testimony during the hearing

showed a lack of substantial co mpliance because he lacked knowl edge of what constituted a “clue” of impairment pursuant to the NHTSA manual on the walk a nd turn test. Davis next argues that Officer Cangelosi’s testimony showed a lack of subs tantial compliance because he lacked knowledge of what constituted a “clue” of impairment pur suant to the NHTSA manual on the one leg stand test. Davis does not assert that Officer Bel trami’s instructions to Davis were not in substantial compliance w ith the NHTSA standards nor does Davis challenge the trial court’s finding that Officer Beltrami substantially complied wi th the NHTSA standards as to the

HGN test. {¶12} Pursuant to R.C. 4511.19(D)(4)(b), an officer may testify concerning the results of a field sobrie ty test, and the prosecution may introduce the results of such a test, if “the o fficer administered the test in substantial compliance with the testing standards f or any reliable, credible, and generally accepted field sobriety tests that were in effect at the time the tests were administered, including, but not limited to, any testing standards then in effect that were set by the [NHTSA] * * * .” State v. George , 9th Dist. Wayne No. 13CA0036, 2014-Ohio-4123, ¶ 7, quoting R. C. 4511.19(D)(4)(b). The State bears the burden of demonstrating substantial compliance by clear and convincing evidence. State v. Spees , 9th Dist. Medina No. 17CA0061-M, 2018-Ohio-2568, ¶ 17. “‘A determination of wheth er the facts satisfy the subst antial compliance standard is made on a case-by-case basis.’” State v. Sayler , 9th Dist. Medina No. 15CA0094-M, 2016-Ohio-7083, ¶ 15, quoting State v. Fink , 12th Dist. Warren Nos. CA2008-10-118, CA2008-10-119, 2009-5

Ohio-3538, ¶ 26. “The [S]tate may demonstrate what the NHTSA s tandards are through competent testimony and/or by introducing the applicable portio ns of the NHTSA manual.” (Internal quotations a nd citations omitted.) Sayler at ¶ 15; {¶13} Davis argues that Officer Beltrami incorrectly scored the walk and turn test due to a lack of knowledge of the NHTSA standards. During the suppres sion hearing, Officer Beltrami testified as to the NHTSA guidelines for conducting the walk an d turn test and how he administered that test. He stated that when performing the tes t, he asks the individual to stand on a flat, dry surface with his left foot on an imaginary line. H e then asks him to hold his right foot in front of his left foot touching heel to toe and holding his hands down at his sides while he explains the instructions. He then simultaneously demonstrates and explains to the individual

that he is to take nine heel t o toe steps down t he line, and th en take nine heel to toe steps back. {¶14} Officer Beltrami further testif ied that he conducted the walk a nd turn test in this case in compliance with the above guidelines. Officer Beltrami testified that he found a flat, relatively dry surface on which to conduct the test. While adm inistering the test, he observed four total clues, which included Davis either stepping off the line or using his arms to balance.

Officer Beltrami admitted on cross-examination that he did not recall the exact step on which Davis stepped off the line or how far off the line he stepped, but reasserted that Davis did in fact step off the imaginary line. In determining that Davis was usi ng his arms to balance, Officer

Beltrami noted that Davis had not left his arms by his side as instructed, but instead had placed his hands in his pockets. Because his hands were in his pocket s, Officer Beltrami interpreted Davis’s elbows “sticking out” as u sing his arms to balance. Of ficer Beltrami acknowledged on

cross-examination that the NHTSA manual states an indicator of impairment on the walk and turn test is for a person to raise his arms six inches. Noneth eless, Officer Beltrami stated that6

Davis was instructed to have his arms at his side and he interp reted Davis’s elbow being “out” as Davis using his arms to balance. {¶15} Although Davis also challenges Of ficer Cangelosi’s knowledge of what the NHTSA standards state is a valid clue of impairment on the one leg stand test, the trial court found and the officers’ body-camer a footage showed that Officer Beltrami administered the tests while Officer Cangelosi merely observed. Additionally, althoug h the trial court found that

Officer Beltrami observed two cl ues during the one leg stand te st, it made no finding as to what Officer Cangelosi may or may not have observed. A review of th e record shows that these findings are based on competent credible evidence. Officer Bel trami testified that he administered the tests and that his partner, Officer Cangelosi observed. Officer Cangelosi also

testified that Office r Beltrami conducted the field sobriety te sts. {¶16} Officer Beltrami testified as t o the NHTSA guidelines for condu cting the one leg

stand test and how he administered those tests in this case. O fficer Beltrami stated that he explains and demonstrates the t est to the individual before adm inistering the test. Officer

Beltrami stated that when conductin g the test, he asks the indi vidual to stand with his hands at his side with feet together. He then asks him to raise and hol d the foot of his choice six inches above the ground while counting out loud, one, one-hundred; two , one-hundred; and on until he asks them to stop. During the test, he watches to observe any swaying, using of arms to balance, and lowering of the foot. Offi cer Beltrami stated that he cond ucted the test in compliance with

this standard. Officer Beltrami further testified that while a dministering the one leg stand test in this case, he observed that Davis was swaying and using his arm s to balance.7

{¶17} Based on the foregoing, we conclude that Davis has not shown th at the trial court erred by determining Officer Beltrami substantially complied wi th the NHTSA guidelines regarding the administrati on of field sobriety tests.

Probable Cause to Arrest {¶18} Davis also contends that the tria l court erred by denying his m otion to suppress because the officers lacked proba ble cause to arrest him. We d isagree. {¶19} “An officer has probable cause t o arrest an individual for impa ired driving if, ‘at the time of arrest, the officer had sufficient facts derived fr om a reasonably trustworthy source to cause a prudent person to believe the suspect was driving under the influence.’” Spees , 2018- Ohio-2568, at ¶ 30, quoting State v. Hopp , 9th Dist. Summit No. 28095, 2016-Ohio-8027, ¶ 8. This Court has recognized that a probable cause determination i s a fact-intensive inquiry that “requires consideration of the t otality of the circumstances kn own to the officer at the time of the

arrest.” State v. Rogers , 9th Dist. Wayne No. 16AP0014, 2017-Ohio-357, ¶ 9. “‘To prove impaired driving ability, the [S]tate can rely on physiological factors (e.g., odor of alcohol, glossy or bloodshot eyes, slurred speech, confused appearance) to demonstrate that a person’s physical and mental ability to drive was impaired.’” State v. Slone , 9th Dist. Medina No. 04CA0103-M, 2005-Ohio-3325, ¶ 9, quoting State v. Holland , 11th Dist. Portage No. 98-P-0066, 1999 WL 131665, *5 (Dec. 17, 1999) . “The amount of evidence ne cessary for probable cause to suspect a crime is being committed is less evidence than would be necessary to support a

conviction of that crime at trial.” State v. McGinty , 9th Dist. Medina No. 08CA0039-M, 2009- Ohio-994, ¶ 11. {¶20} The court concluded, based on th e totality of the circumstances , that Officer Beltrami had probable cause to a rrest Davis for OVI. The trial court based this conclusion on the8

findings that Officer Beltrami stopped Davis after observing hi s vehicle swerving in the road at approximately 3:30 a.m., Office r Beltrami observed Davis’s eyes to be glossy and watery, Davis admitted to Officer Beltrami that he had been drinking alcohol, and Officer Beltrami observed a

number of clues whe n he conducted field sobriety testing. {¶21} Davis argues that the trial court erred in its probable cause d etermination because each of the signs Officer Beltrami cited as justification for a rresting Davis could have been explained by other circumstances such as the weather, fatigue, and smoking. He asserts that the odor of alcohol was weak and that he had no trouble producing h is driver’s license and proof of insurance. Finally, Davis cont ends that field sobriety tests a re not reasonably trustworthy. {¶22} In light of the totality of the circumstances before the trial court, we cannot say

that the trial court erred in c oncluding that Officer Beltrami had probable cause to arrest Davis

for OVI. The record reflects th at both officers detected the o dor of alcohol coming from Davis’s person and saw that Davis’s eyes were glossy and watery. Davis admitted that he had consumed alcohol earlier in the evening, and Officer Beltrami observed s everal clues of impairment during the field sobriety tests. Officer Beltrami also observed Davis ’s vehicle to be weaving prior to the traffic stop. Based on the totality of the circumstances, Offi cer Beltrami coul d have concluded that Davis was driving while under the influence. See State v. Thayer , 9th Dist. Medina No. 11CA0045-M, 2012-Ohio-3301, ¶ 33 (probable cause requires only the probability that criminal activity exists). {¶23} Davis’s first assignment of error is overruled. Assignment of Error II [Davis]’s convictions were against the manifest weight of the e vidence in violation of Article IV, Sectio n 3 of the Ohio Con stitution. [ ]9

{¶24} In his second assignment of erro r, Davis contends that his conv ictions were against the manifest weight of the evidence. We disagree. {¶25} This Court has stated: In determining whether a criminal conviction is against the man ifest weight of the evidence, an appellate court must review the entire record, wei gh the evidence and all reasonable inferences, consid er the credibility of witnesse s and determine whether, in resolving conflicts in the evidence, the trier of f act clearly lost its way and created such a manifest miscarriage of justice that the con viction must be reversed and a new trial ordered.

State v. Otten , 33 Ohio App.3d 339, 340 (9th Dist.1986). The weight of the e vidence concerns whether a greater amount of credible evidence offered at trial supports one side of the issue than supports the other. State v. Thompkins , 78 Ohio St.3d 380, 387 (1997). An appellate court should only exercise its power to reverse a judgment as against the manifest weight of the evidence in an exceptional case where the evidence heavily weig hs against the conviction. Otten

at 340. {¶26} “‘A conviction is not against the manifest weight of the eviden ce merely because there is conflicting evidence before the trier of fact.’” State v. Zaree , 9th Dist. Lorain No. 17CA011111, 2017-Ohio-9081, ¶ 5, quoting State v. Haydon , 9th Dist. Summit No. 19094, 1999 WL 1260298, *7 (Dec. 22, 1999). “An appella te court will not o verturn a judgment on this basis alone, and may not merely substitute its judgment for that of t he factfinder.” Id. citing State v.

Serva , 9th Dist. Summit No. 23323, 2007-Ohio-3060, ¶ 8. {¶27} In this case, the jury found Davis guilty of OVI in violation o f R.C. 4511.19(A)(1)(a), which provides th at “[no person shall operate any vehicle * * * if, at the time of the operation * * * [t]he person is under the influence of a lcohol, drugs of abuse, or a combination of them.” The jury also found Davis guilty of OVI in violation of R.C. 4511.19(A)(2)(a), which provides th at no person who has previou sly been convicted of OVI10

within twenty years shall do both of the following: (1) “[o]per ate any vehicle * * * while under the influence of alcohol[;]” and (2) refuse to submit to a chem ical test or tests subsequent to being arrested for operating the vehicle. {¶28} In arguing that his conviction was against the manifest weight of the evidence, Davis does not challenge the credibility of any particular witn ess. Davis argues only that the weight of the evidence does not support the jury’s finding that he was under the influence of alcohol. He argues that his tr affic violation was de minimis a nd could have been explained by the snowy weather and road conditions. He also notes that any indicia or clues of impairment noted by the officers in this case could have been caused by so mething other than impairment. {¶29} The only testimony presented at trial was from the State’s witn esses, Officer Beltrami and Officer Cangelosi. The State also admitted into e vidence the videos from both officer’s body cameras and their cruiser’s dashboard cameras. Officer Beltrami testified he

observed Davis’s vehicle weavi ng in an unusual pattern prior to initiating a traffic stop. Although Officer Beltrami acknowle dged that “for the most part” the roads were snow covered that evening, he was both able to “see the lane of the road” an d to stay within it. Officer Beltrami stated that Davis had no difficulty producing his driv er’s license or vehicle registration. Both Officer Beltrami and Officer Cangelosi testified that they observed Davis’s eyes to be watery and glossy, and that watery, glossy eyes are a good indi cation of impairment. Officer Beltrami agreed on cross-examination that fatigue can also caus e watery or glossy eyes. However, because Davis admitted to having a few drinks earlier in the night in addition to his glossy, watery eyes, Officer Beltrami suspected Davis of being an impaired driver. Consequently, Officer Beltrami re quested Davis exit the vehicle to perform field sobriety testing. Officer Beltrami stated that when he opened the car door, he no ticed the odor of alcohol. Officer11

Cangelosi also testified that he smelled “a very pungent odor” of alcohol when he stood next to

Davis’s vehicle. Davis then ex ited the vehicle without stagger ing or swaying and proceeded to perform the field sobriety tests. {¶30} Officer Beltrami testified as to how he administered the field sobriety tests and what clues of intoxication he was looking for during those test s. He stated that he observed four clues during the HGN test, which he believed were a pretty good indication that Davis was under the influence. Davis did not, however, have difficulty, sway, or rock during the test. Officer

Beltrami could not rem ember how many clues he observed on the w alk and turn test , but testified

that he observed Davis use his ar ms to balance and stepped off the imaginary line. Although Davis had placed his hands in hi s pockets despite instruction t o leave them at his side, Officer Beltrami interpreted Davis’s raised elbows as Davis using his a rms for balance. Although he indicated that Davis stepped off the imaginary line, Officer Be ltrami could not remember how many times he stepped off the line or how far off the line he s tepped. Although Officer Beltrami initially indicated that Davis had improperly broken his starti ng position while Officer Beltrami was giving him the instructions for the test—an act Officer Bel trami interpreted as a clue of impairment—he acknowledged on cros s-examination that he had fai led to instruct Davis to maintain that position while he ga ve the instructions. Officer Beltrami stated that he did not know whether Davis broke that position because he was losing hi s balance, was fidgety, or

because it was cold outside. Officer Beltrami also indicated t hat Davis counted the proper amount of steps and conducted the turn as instructed. During t he one leg stand test, Officer Beltrami stated he observed Davis using his arms to balance and at one point miscounted. He acknowledged that he did not s ee Davis put his foot down, did n ot see Davis sway, nor did he see Davis hop during the test.12

{¶31} Officer Cangelosi testified that he observed Officer Beltrami a dminister the field sobriety tests. Officer Cangelosi testified that he was not ab le to see Davis’s eyes during the HGN test, but that he observed Da vis jerk his head “a few times .” Regarding the walk and turn test, Officer Cangelosi stated that Davis did not do “as good a s he should have done” on the test. Officer Cangelosi stated that Davis did not begin the test prop erly, but admitted on crossexamination that Officer Beltra mi did not advise Davis to hold his starting position until told to begin. Officer Cangelosi also noted that Davis had his hands i n his pockets and did not walk heel to toe. Officer Cangelosi further testified that Davis fa iled the one leg stand test because he miscounted, his foot was not six inches from the ground, and hi s toe was pointed up, not straight out. Although Officer Cangelosi i nterpreted the position of Da vis’s foot as a clue of intoxication, he admitted on cross- examination that Officer Bel trami never advised Davis how or even if he should point his toe. In describing Davis’s arms d uring the test, he stated that “[Davis] would either go to the left or the right and he would kind of push on his thighs trying to keep his balance.” Officer Ca ngelosi did not observe Davis to stumble or sway while walking. {¶32} Officer Beltrami testified that he believed Davis was impaired following the field sobriety tests, and offered him a portable breath test, which D avis refused despite Officer Beltrami’s statement that if he blew below the legal limit he w ould let him go to his motel room. Officer Beltrami acknowledged that Davis was polite, calm, and cordial throughout the traffic stop, but also stated he was a bit agitated during the field so briety tests. Officer Beltrami then placed Davis under arrest for operating a vehicle under the inf luence, and transported Davis to the Sagamore Hills Police Department. Once at the Sagamore Hil ls Police Department, he offered Davis the opportunity to t ake a breath test, which he a lso refused.13

{¶33} Although Davis argues that Officer Beltrami testif ied he did no t observe any slurred speech from Davis, we note that “[w]hile slurred speech is one indicia of intoxication, it is not a prerequisite to a reas onable judgment that a person is under the influence.” Akron v.

Smith , 9th Dist. Summit No. 21519, 2003-Ohio-5773, ¶ 16. “In determ ining whether a defendant

was under the influence of alcohol , [a] jury may properly consi der evidence of his appearance and behavior, including his abili ty to perceive, make judgments , coordinate movements, and safely operate a vehicle.” State v. Baker , 9th Dist. Summit No. 29167, 2020-Ohio-19, ¶ 13, citing State v. Moine , 72 Ohio App.3d 584, 586-587 (9th Dist.1991). In this case, O fficer Beltrami ultimately testified that even excluding the results o f the walk and turn-test and the one leg stand test, he believed D avis was impaired based on [t]he totality of the circumstances between the driving, the od or of alcohol, the admittance of the alcohol, the HGN test and having the four clu es which are good indicators that a person is int oxicated, also the watery, red e yes, the glossy eyes, all that together. Additionally, Officer Cangelosi s tated he believe d Davis was im paired because of his poor performance on the field sobriety tests. “This Court has repea tedly held that the trier of fact is in the best position to determine the credibility of witnesses and evaluate their testimony accordingly.” State v. Johnson , 9th Dist. Summit No. 25161, 2010-Ohio-3296, ¶ 15. Moreover, “[a] verdict is not against the manifest weight of the evidence because the finder of fact chooses

to believe the State’s witnesses rather than the defendant’s ve rsion of the events.” State v.

Martinez , 9th Dist. Wayne No. 12CA0054, 2013-Ohio-3189, ¶ 16. {¶34} The trial court instructed the jury that: [u]nder the influence means that the defendant consumed some al cohol, whether mild or potent, in such a quantity, whether small or great, tha t it adversely affected and noticeably impaired the defendant’s actions, react ions, or mental processes under the circumstances then existing and deprived th e defendant of14

that clearness of intellect and control of himself which he oth erwise [would] have possessed. After reviewing the record in this case and in light of the evi dence presented at trial, we cannot say that this is the exceptional case where the evidence weighs manifestly against a finding that

Davis was under the influence. See Otten , 33 Ohio App.3d at 340. A reasonable jury could have

concluded that Davis was unde r the influence of alcohol. {¶35} Davis’s second assignment of error is overruled.

III. {¶36} Davis’s first and second assign ment of error are overruled. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the pa rties and to make a notation of the mailing in the docket , pursuant to App.R. 30. Costs taxed to Appellant.

JULIE A. SCHAFER FOR THE COURT15

CALLAHAN, P. J. HENSAL, J. CONCUR.

APPEARANCES: BRIAN A. SMITH, Attorney a t Law, for Appellant. SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO GUEST, Assistant Prosecuting Attorney, for Appellee.