[Cite as State v. Wade , 2019-Ohio-4565.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO Plaintiff-Appellee

-vsDEJON WADE Defendant-Appellant JUDGES: : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. : Hon. Patricia A. Delaney, J. : : : Case No. CT2019-0007 : CT2019-0008 : : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Muskingum County Court, Case Nos. TRC1803809 & TRC1803867

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: November 5, 2019

APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant

D. MICHAEL HADDOX APRIL CAMPBELL Prosecuting Attorney 545 Metro Place South, Suite 100 BY: TAYLOR P. BENNINGTON Dublin, OH 43017 Assistant Prosecutor 27 North Fifth St., Box 189 Zanesville, OH 43701 Gwin, P.J.{¶1} Defendant-appellant Devon Wade [“Wade”] appeals his convictions and sentences after a bench trial in the Muskingum County Court. Facts and Procedural History {¶2} On Friday, June 26, 2018, at approximately 7:00 a.m., Trooper C orey Campbell of the Ohio State Highway Patrol was dispatched to a c rash of a commercial vehicle into a guardrail, on Interstate 70 in Muskingum County, Ohio. The interaction was captured by Trooper Campbell’s cruiser dash cam and microphone. [State’s Exhibit 44]. {¶3} Upon arrival, the trooper observed where the truck had traveled off the roadway into the berm coming to rest upon the guardrail. On th e video, the hazard lights on the truck can be seen flashing. Trooper Campbell and his fe male trainee walked to the cab of the truck, knocked on the door, and received no resp onse. He then walked around the truck, assessing its damage. The trooper observed t hat a large set of tire marks in the mud and dirt had been tracked up through the truck 's path, where it had actually left the pavement all along the side to where the guar drail was on the berm. The trooper further saw scraping around the side of the guardrail a nd determined the truck had hit the guardrail. {¶4} The trooper knocked on the cab door again and received no respo nse. He saw that the truck was unlocked. He then opened the door, yell ed for anyone inside. When Trooper Campbell looked in the back seat, he saw Wade pass ed out in the sleeping berth. The trooper testified that his first reaction was that it was a medical situation. He called for a squad approximately four minutes after his arrival on the scene. (State’s Exhibit 44 at 7:23).{¶5} Upon entering the truck, the trooper observed a bottle of Grey Goose vodka on the floorboard between the driver seat and the passenger sea t, approximately four feet from Wade. There was approximately one inch of vodka rema ining in the bottle. The trooper also noticed a needle kit in the cab of the truck. Lat er, after an inventory of the truck was concluded, the needle kit was determined to be a tatt oo kit; however, the

observation of needles in the cab raised additional concerns fo r the trooper that this was a possible medical emergency. The trooper checked for a pulse, made sure Wade was breathing, and made sure Narcan was not necessary for the situa tion. The trooper was able to wake Wade, who was dazed and confused. Wade did not be lieve he had been in a crash, believed he was in Virginia, and could not recognize t he officer as a state trooper. {¶6} Wade was asked out of the truck and EMS arrived on scene. The trooper

testified that he ob served Wade to have constricted pupils, gla ssy eyes, and could smell alcoholic beverage odor about his breath. Trooper Campbell att empted to perform the HGN test. During the HGN test, Wade stared at the trooper in a daze and did not follow the pen back and forth, even though he was told several times t o do so. The trooper testified the walk-and-turn test could not be performed due to safety concerns, as they were along the side of the interstate and because Wade did not have coordination or balance to perform anything alongside the busy roadway. {¶7} After several minutes of confusion and argument, Wade eventuall y agreed to be treated by medical personnel. After he left in the ambul ance, the trooper conducted the crash investigation on the scene and had the truck towed. As part of the crash investigation, the trooper described where Wade went off the ro adway and where he struck the guardrail, until coming to a stop. He measured that the contact with theguardrail was 564 feet. Photographs were also taken showing da mage to the guardrail,

tracks where the truck had traveled off the pavement into dirt, striking the guardrail and the lines that traveled all the way down the berm from impact. A photograph was taken of the right front side of the cab, where the truck had met the guardrail, and another photograph was taken showing the metal scraping that was consis tent with the damage to the guardrail going down the side of the cab. {¶8} Trooper Campbell went to the hospital to speak with Wade. Whil e the trooper was attempting to ask Wade questions, Trooper Campbell testified that Wade "rolls over from eating his crackers and drinking his water and curls up in a fetal position and goes to sleep on me." At that point, in time, Wade was not alert or able to walk on his own accord. Hospital staff then assisted the trooper with getting Wade to his patrol car by putting Wade in a wheelchair. {¶9} Wade testified at trial that he was driving from New Jersey tow ards Illinois. T. at 47. Wade further testified that he pulled over because h e was tired. Wade testified that he remembers putting out three red hazard markers after he pulled the truck off the roadway. T. at 49. Wade had no explanation as to why the mark ers are not evident in the trooper’s video. T. at 49. {¶10} Before sleeping, Wade testified, “I had some drink.” T. at 50. He was sitting on the side of the bed area at the time. T. at 50-52. He claimed the bottle of vodka had fallen off the ledge and spilled most of the contents on the floor. T. at 53. Wade further testified that he had struck a deer one to two day s before this incident and that is what caused the damage to his truck. T. at 53. Wade p resented photographsthat he testified had been taken before the incident in questio n showing the damage to the passenger side of the truck cab. T. at 54; 59-61. {¶11} The trial court found Wade guilty of operating a commercial veh icle while having a measurable or detectable amount of alcohol or of a con trolled substance in his blood, breath, or urine under R.C. 4506.15(A)(1); and a fir st-degree misdemeanor impaired while operating a commercial vehicle, R.C. 4506.15(A)( 6). Case No.

CRB1803809 . He was also convicted of another alcohol-related first-degre e misdemeanor impaired while operating a vehicle, R. C. 4511.19(A )(1)(A); a minor misdemeanor open-container offense, for the Grey Goose bottle t he trooper found in Wade's cab; and a minor misdemeanor failure to control, due to his truck scraping a guardrail. R.C. 4301.62; R.C. 4511.202. Case No. CRB1803867. {¶12} For purposes of sentencing, the trial court found the OVI count s in Case No, CRB1803809 and Case No. CRB1803867 merged, and imposed a 60-day jail

sentence on the OVI offense. Assignments of Error {¶13} Wade raises three Assignments of Error. {¶14} “I. APPELLANT’S CONVICTIO NS SHOULD BE REVERSED BECAUSE APPELLANT'S TRIAL COUNSEL WAS DEFICIENT AT TRIAL, WITH RESULTIN G

PREJUDICE. {¶15} “II. BECAUSE THE STATE'S EVIDENCE WAS LEGALLY INSUFFICIENT, HIS CONVICTIONS REQUIRE REVERSAL. {¶16} “III. THE EVI DENCE WEIGHED MANIFESTLY AGAINST CONVICTING

WADE OF HIS FIRST-DEGREE MISDEMEANOR OFFENSES.”I. {¶17} In his First Assignment of Error, Wade argues that his trial co unsel was

ineffective. {¶18} The United States Supreme Court discussed the prejudice prong o f the

Strickland test, With respect to prejudice, a challenger must demonstrate “a reasonable probability that, but for counsel’s unprofessional e rrors, the result of the proceeding would have been different. A reasonab le probability is a probability sufficient to undermine confidence in the outc ome.” Id., at 694, 104 S.Ct. 2052. It is not enough “to show that the errors had some conceivable effect on the outcome of the proceeding.” Id., at 693, 104 S.Ct. 2052. Counsel’s errors must be “so serious as to deprive the d efendant of a fair trial, a trial whose result is reliable.” Id., at 687, 104 S.Ct. 2052. “Surmounting Strickland’ s high bar is never an easy task.” Padilla v. Kentucky , 559 U.S. ––––, ––––, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284 (2010). An ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented a t trial, and so

the Strickland standard must be applied with scrupulous care, lest “intrusive post-trial inquiry” threaten the integrity of the very adversar y process the right to counsel is meant to serve. Strickland , 466 U.S., at 689–690, 104 S.Ct. 2052. Even under de novo review, the standard for judgin g counsel’s representation is a most deferential one. Unlike a later revie wing court, theattorney observed the relevant proceedings, knew of materials o utside the record, and interacted with the client, with opposing counsel, and with the judge. It is “all too tempting” to “second-guess counsel’s ass istance after conviction or adverse sentence.” Id., at 689, 104 S.Ct. 2052; see also Bell

v. Cone , 535 U.S. 685, 702, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002);

Lockhart v. Fretwell , 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). The question is whether an attorney’s representation a mounted to incompetence under “prevailing professional norms,” not whether it deviated from best practices or most common custom. Strickland , 466 U.S., at 690, 104 S.Ct. 2052. Harrington v. Richter, 562 U.S. 86, 104-105, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). Failure to File a Motion to Suppress. {¶19} Wade first argues that his trial counsel was ineffective becaus e he did not file a motion to suppress the warrantless entry of the truck by Trooper Campbell and

because he contends that there was no evidence that Wade was dr iving the truck. {¶20} Trial counsel’s failure to file a suppression motion does not p er se constitute

ineffective assistance of counsel. State v. Madrigal , 87 Ohio St.3d 378, 389, 2000–Ohio– 0448; Accord, State v. Ortiz, 5th Dist. Stark No. 2015CA00098, 2016-Ohio-354, ¶56. Counsel can only be found ineffective for failing to file a mot ion to suppress if, based on the record, the motion would have been granted. State v. Lavelle , 5th Dist. No. 07 CA 130, 2008–Ohio–3119, at ¶ 47; State v. Cheatam , 5th Dist. No. 06–CA–88, 2007–Ohio– 3009, at ¶ 86. The defendant must further show that there is a reasonable probability that the outcome would have been different if the motion had been gr anted or the defensepursued. See Kimmelman v. Morrison , 477 U.S. 365, 375, 106 S.Ct. 2574, 2583, 91 L.Ed.2d 305 (1986); see, also, State v. Santana , 90 Ohio St.3d 513, 739 N.E.2d 798 (2001), citing State v. Lott , 51 Ohio St.3d 160, 555 N.E.2d 293 (1990).

ISSUE FOR APPEAL A. Whether there is a reasonable probability a motion to suppress the warrantless entry and search of the truck would have been granted. {¶21} “The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.” Brigham City v. Stuart, 547 U.S. at 403, 405-406, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006), quoting Mincey v. Arizona , 437 U.S. 385, 392, 98 S.Ct. 2408, 57 L.Ed.2d 209 (1978). Accord,

State v. Dunn , 131 Ohio St.3d 325, 2012–Ohio–1008, 964 N.E.2d 1037, syllabus

. {¶22} In Ohio, the Supreme Court has held, The community-caretaking/emergency-aid exception to the Fourth Amendment warrant requirement allows a law-enforcement officer with objectively reasonable grounds to believe that there is an imme diate need for his or her assistance to protect life or prevent serious in jury to effect a community-caretaking/emergency-aid stop. State v. Dunn, 131 Ohio St.3d 325, 2012-Ohio-1008, 964 N.E.2d 1037, syllabus. In Dunn , the Ohio Supreme Court cited ABA Standards for Criminal Justice § 1–2.2 for the proposition that “police officers are duty-bound to provide eme rgency services to those who are in danger of physical harm.” Dunn , ¶20. Accordingly, in the case at bar, the officers’ actions must be examined in light of what actions wer e objectively reasonable for a law enforcement officer in the role of a community careta ker to take under thecircumstances. Brigham City v. Stuart , 547 U.S. at 403, 405-406, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006). {¶23} In the case at bar, Trooper Campbell received a dispatch to a c ommercial crash into a guardrail at milepost roughly 167 on I-70. T. at 7. Upon arrival, he observed a long track where the truck had travelled off the roadway into the berm. The hazard lights to the truck were flashing. Trooper Campbell shouted se veral times and received

no response. {¶24} In Cady v. Dombrowski , 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), the Supreme Court noted, Because of the extensive regulation of motor vehicles and traff ic, and also because of the frequency with which a vehicle can beco me disabled or involved in an accident on public highways, the ext ent of police-citizen contact involving automobiles will be substantia lly greater than police-citizen contact in a home or office. Some such con tacts will occur because the officer may believe the operator has violated a criminal statute, but many more will not be of that nature. Local polic e officers, unlike federal officers, frequently investigate vehicle acciden ts in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions , totally divorced from the detection, investigation, or acquisition of e vidence relating to the violation of a criminal statute. (Emphasis added.) Id. at 441, 93 S.Ct. 2523. The Supreme Cour t in Michigan v. Fisher, 588 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410, held, “Officers d o not needironclad proof of ‘a likely serious, life-threatening’ injury t o invoke the emergency aid exception. * * * [T]he test * * * [is] whether there was ‘an ob jectively reasonable basis for believing’ that medical attention was needed * * *.” Fisher, 558 U.S. 45, 49, 130 S.Ct. 546, 175 L.Ed.2d 410. Thus, in order for police to invok e the exception, they need have only a reasonable basis to believe the occupant is in need of medical attention. {¶25} Considering the totality of the circumstances, we find Trooper Campbell was justified in opening the door to the truck to determine what ha d happened to the driver. Upon seeing him passed out, Tr ooper Campbell’s concern shifted toward determining whether Wade had a medical situation or was a possible overdose . T. at 10. The facts do provide reasonable, articulable facts upon which a reasonabl e person could conclude that Trooper Campbell was exercising his caretaking function. This falls within an exception to the Fourth Amendment. B. Whether there is a reasonable probability a motion to suppress the evidence obtained by Trooper Campbell w ould have been granted because he lacked probable cause to believe Wade was operating the truck. {¶26} In the case at bar, the evidence does not clearly establish the point at which Wade was placed under arrest. Trooper Campbell did not transpo rt Wade to the hospital. It does not appear that Wade was placed in handcuffs and taken to the hospital by the emergency personnel. {¶27} In any event, Trooper Campbell encountered an accident scene wi th only one person present. That person was unresponsive, thinking he was in Virginia. Wade can be heard in the video telling Trooper Wade that he pulled t he truck over because hewas tired and wanted to sleep. State’s Exhibit 44 at 7:41. Th us, Trooper Campbell had probable cause to believe that Wade had driven the truck to its present location.

C. Whether failure to move for acquittal prejudiced Wade. {¶28} Wade next contends that his trial attorney’s failure to make a Crim.R. 29 motion to acquit at the close of the state’s case prejudiced hi m because there was no evidence that Wade had operated the truck and further there was no evidenc e that Wade had a “prohibited amount of alcohol in his blood, breath or uri ne.” [Appellant’s brief at 10]. {¶29} The purpose of a motion for judgment of acquittal is to test th e sufficiency of the evidence and, where the evidence is insufficient, to tak e the case from the jury.” Dayton v. Rogers , 60 Ohio St.2d 162, 163, 398 N.E.2d 781(1979), overruled on other grounds, State v. Lazzaro , 76 Ohio St.3d 261, 667 N.E.2d 384(1996). In a bench or nonjury trial, however, a defendant's not guilty plea serves as a Crim.R. 29 motion. Id. {¶30} In the case at bar, as previously noted, Wade can be heard in t he video telling Trooper Wade that he pulled the truck over because he w as tired and wanted to sleep. State’s Exhibit 44 at 7:41. Accordingly, Trooper Campb ell had probable cause to believe Wade had operated the truck. {¶31} R.C. 4506.15 provides in relevant part, (A) No person who holds a commercial driver’s license or commer cial driver’s license temporary instruction permit or who operates a motor vehicle for which a commercial driver’s license or permit is re quired shall do any of the following:

* * *(6) Drive a motor vehicle in violation of section 4511.19 of th e Revised Code or a municipal OVI ordinance as defined in section 4511.181 of the Revised Code;

* * * {¶32} Wade was also convicted of a violation of R.C. 4511.19(A)(1)(a) . R.C. 4511.19 (A)(1)(a) prohibits operating a motor vehicle while “un der the influence of alcohol, a drug of abuse, or a combination of them.” {¶33} The phrase “under the influence of intoxicating liquor” has bee n defined as “[t]he condition in which a person finds himself after having c onsumed some intoxicating beverage in such quantity that its effect on him adversely affe cts his actions, reactions, conduct, movement or mental processes or impairs his reactions to an appreciable degree, thereby lessening his ability to operate a motor vehicl e.” Toledo v. Starks , 25 Ohio App .2d 162, 166, 267 N.E.2d 824 (6th Dist. 1971). See, also, State v. Steele (1952), 95 Ohio App. 107, 111, 117 N.E.2d 617(3rd Dist. 1952) (“[B]eing ‘under the influence of alcohol or intoxicating liquor’ means that the accused must hav e consumed some intoxicating beverage, whether mild or potent, and in such quan tity, whether small or great, that the effect thereof on him was to adversely affect h is actions, reactions, conduct, movements or mental processes, or to impair his reactions, unde r the circumstances then existing so as to deprive him of that clearness of the intellec t and control of himself which he would otherwise possess”). See, State v. Henderson, 5th Dist. Stark No. 2004-CA00215, 2005-Ohio-1644 at ¶ 32; State v. Ahmed, 5th Dist. Stark No. 2007-CA-00049, 2008-Ohio-389, ¶26.{¶34} The case law is in agreement that probable cause to arrest may exist, even without field sobriety tests results, if supported by such fact ors as: evidence that the defendant caused an automobile accident; a strong odor of alcoh ol emanating from the defendant; an admission by the defendant that he or she was rec ently drinking alcohol; and other indicia of intoxication, such as red eyes, slurred sp eech, and difficulty walking. Oregon v. Szakovits , 32 Ohio St.2d 271, 291 N.E.2d 742(1972); Fairfield v. Regner , 23 Ohio App.3d 79, 84, 491 N.E.2d 333(12th Dist. 1985); State v. Bernard , 20 Ohio App.3d 375, 376, 485 N.E.2d 783(9th Dist. 1985); Westlake v. Vilfroy , 11 Ohio App.3d 26, 27, 462 N.E.2d 1241(8th Dist. 1983); State v. Judy, 5th Dist. No. 2007-CAC-120069, 2008- Ohio-4520, ¶27. State v. Schmitt , 101 Ohio St.3d 79, 2004-Ohio-37, 801 N.E.2d 446, (2004), ¶15. {¶35} “It is generally accepted that virtually any lay witness, inclu ding a police officer, may testify as to whether an individual appears intoxi cated . Columbus v. Mullins (1954), 162 Ohio St. 419, 421, 55 O.O. 240, 123 N.E.2d 422 . See, also, State v. McKee (2001), 91 Ohio St.3d 292, 296, 744 N.E.2d 737.” State v. Schmitt , 101 Ohio St.3d 79, 83, 2004-Ohio-37 at ¶ 12, 801 N.E.2d 446, 450(2004); Accord , State v. Hackerdorn, 5th Dist. Ashland No. 2004-CA-053, 2005-Ohio-1475, ¶ 67. {¶36} In the case at bar, Trooper Campbell encountered a one-vehicle accident along a busy interstate highway. The driver admitted driving t he truck to that location. The driver was unresponsive, had glassy eyes, could not follow basic requests, smelled of alcohol, could not stand or walk on his own. Wade did not k now what State he was in and that Trooper Wade was an Ohio State Highway Patrol trooper. Trooper Campbell also found an opened, nearly consumed bottle of vodka within Wa de’s reach.{¶37} We find that under the totality of the circumstances Trooper Ca mpbell had probable cause to arrest Wade for operating the truck while “u nder the influence” in violation of R.C. 4511.19(A)(1)(a) and R.C. 4506.15(A)(6). D. Trooper’s testimony concerning intoxication. {¶38} Wade next arg ues that trial counsel was ineffective because she did not object to the testimony of Trooper Campbell concerning the “amo unt of per se level of alcohol in defendant’s blood because the Trooper was not qualif ied as an expert.” [Appellant’s brief at 13]. {¶39} As we have previously mentioned, “It is generally accepted that virtually any lay witness, including a police officer, may testify as to whet her an individual appears

intoxicated . Columbus v. Mullins (1954), 162 Ohio St. 419, 421, 55 O.O. 240, 123 N.E.2d

422 . See, also, State v. McKee (2001), 91 Ohio St.3d 292, 296, 744 N.E.2d 737.” State

v. Schmitt , 101 Ohio St.3d 79, 83, 2004-Ohio-37,801 N.E.2d 446(2004) at ¶ 12 450(2004);

Accord , State v. Hackerdorn, 5th Dist. Ashland No. 2004-CA-053, 2005-Ohio-1475, ¶ 67. {¶40} We note that any error will be deemed harmless if it did not af fect the accused's “substantial rights.” “Before constitutional error c an be considered harmless, we must be able to “declare a belief that it was harmless beyon d a reasonable doubt.” United States v. Chapman, 386 U.S.18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705(1967). Where there is no reasonable possibility that unlawful testimon y contributed to a conviction, the error is harmless and therefore will not be gro unds for reversal.” State v. Lytle , 48 Ohio St.2d 391, 2 O.O.3d 495, 358 N.E.2d 623(1976), paragr aph three of the syllabus, vacated on other grounds in (1978), 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d1154; Accord, State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶78; State v. Jones , 135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948, ¶177. {¶41} We find the testimony of Trooper Campbell to be harmless beyond a reasonable doubt bec ause there is no reasonable possibility tha t the testimony contributed to a conviction. Wade was convicted of driving the truck “while under the influence.” The trial court merged the OVI counts, so Wade is unable to demonstrate that the trial court would have found him not guilty had the testimo ny not been admitted at

trial. E. Failure to provide discovery. {¶42} Wade next contends that his trial counsel was ineffective becau se she did not provide the prosecution with notice that his mother would t estify concerning his hitting a deer with his truck prior to the day in question and to provi de the state with photographs that bore a time-stamp of the damage. [Appellant’s brief at 14 ]. {¶43} As the trial court noted, Wade himself could testify to the acc ident involving the deer, so excluding his mother was not prejudicial. T. at 5 . Further, Wade was allowed to use photographs showing the damage to his truck; the photogr aphs excluded were the same pictures but containing a time-stamp. T. at 55-59. {¶44} We note that any error will be deemed harmless if it did not af fect the accused's “substantial rights.” “Before constitutional error c an be considered harmless, we must be able to “declare a belief that it was harmless beyon d a reasonable doubt.” United States v. Chapman, (1967), 386 U.S.18, 24, 87 S.Ct. 824, 828. Where there is no reasonable possibility that unlawful testimony contributed to a conviction, the error is harmless and therefore will not be grounds for reversal.” State v. Lytle , 48 Ohio St.2d391, 2 O.O.3d 495, 358 N.E.2d 623(1976), paragraph three of the syllabus, vacated on other grounds in (1978), 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d 1154; Accord, State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶78; State v. Jones , 135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948, ¶177. {¶45} In the case at bar, the trial judge was the trier of fact. The evidence excluded was merely cumulative to the admissible evidence. Wad e is unable to demonstrate that had his mother testified and the photographs b earing the time-stamp been admitted into evidence at trial, the trial court would hav e found him not guilty

CONCLUSION – ASSIGNMENTS OF ERROR I. {¶46} As there is not a reas onable probability that a motion to suppr ess either the search or the arrest, trial coun sel was not ineffective in fail ing to file a motion to suppress. {¶47} Wade can be heard telling Trooper Campbell that Wade operated t he truck. The trooper was competent to testify to his observations of Wad e and his opinion that

Wade was under the influence. {¶48} Sufficient evidence was presented to submit the case to the tri er of fact. Therefore, Wade was not prejudiced by his attorney’s failure to move for acquittal at the

close of the state’s case. {¶49} The evidence concerning photographs bearing a time-stamp and th e testimony of his mother are cumulative to evidence that was adm itted. Accordingly, Wade cannot demonstrate that his substantial rights were violated by the exclusion. {¶50} For the above reasons, Wade’s First Assignment of Error is over ruled in its entirety.II. & III. {¶51} In his Second Assignment of Error, Wade argues that there was i nsufficient evidence to convict him. In his Third Assignment of Error, Wad e contends that the trial court’s findings are against the manifest weight of the evidenc e. STANDARD OF APPELLATE REVIEW. A. Sufficiency of the Evidence. {¶52} The Sixth Amendment provides, “In all criminal prosecutions, th e accused shall enjoy the right to a speedy and public trial, by an impar tial jury....” This right, in conjunction with the Due Process Clause, requires that each of the material elements of a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States , 570 U.S. 99, 104, 133 S.Ct. 2151, 2156, 186 L.Ed.2d 314 (2013); Hurst v. Florida , 136 S.Ct. 616, 621, 193 L.Ed.2d 504 (2016). The test for the sufficiency of the evidence involves a question of law for resolution by the appellate court. State v. Walker , 150 Ohio St.3d 409, 2016-Ohio-8295, 82 N.E.3d 1124, ¶ 30. “This naturally ent ails a review of the elements of the charged offense and a review of the state’s evi dence.” State v. Richardson, 150 Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶ 13. {¶53} When reviewing the sufficiency of the evidence, an appellate co urt does

not ask whether the evidence should be believed. State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus; Walker , at ¶ 30. “The relevant inquiry is whether, after viewing the evidence in the light mos t favorable to the prosecution, any rational trier of fact could have found the es sential elements of the crime proven beyond a reasonable doubt.” Jenks at paragraph two of the syllabus. State v. Poutney , 153 Ohio St.3d 474, 2018-Ohio-22, 97 N.E.3d 478, ¶ 19. Thus, “on review forevidentiary sufficiency we do not second-guess the jury’s credi bility determinations; rather, we ask whether, ‘if believed, [the evidence] would conv ince the average mind of the defendant’s guilt beyond a reasonable doubt.’” State v. Murphy , 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001), quoting Jenks at paragraph two of the syllabus (emphasis added); Walker at ¶ 31. We will not “disturb a verdict on appeal on sufficie ncy grounds

unless ‘reasonable minds could not reach the conclusion reached by the trier-of-fact.’”

State v. Ketterer , 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 94, quoting State

v. Dennis , 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997); State v. Montgomery , 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶ 74.

ISSUE FOR APPEAL Whether, after viewing the evidence in the light most favorable to the prosecution, the evidence, “if believed, would convince the average mind of the defendant’s guilt on each element of the crimes beyond a reasonable doubt.” {¶54} Wade first c ontends that there was no evidence that he had a “p rohibited amount of anything in his system.” [Appellant’s brief at 16]. {¶55} As previously noted, Wade was convicted of operating the truck “under the influence.” In prosecutions for “under the influence” pursuant to R.C. 4511.19 (A)(1)(a),

“the behavior of the defendant * * * is the crucial issue. The defendant's ability to perceive, make judgments, coordinate movements, and safely operate a vehi cle is at issue in the prosecution of a defendant under such section. It is the behav ior of the defendant that is

the crucial issue. Newark v. Lucas , 40 Ohio St.3d 100, 104, 532 N.E.2d 130 (1988). {¶56} Sufficient evidence was produced at trial to support the infere nce that Wade’s consumption of alcohol, a drug of abuse, or a combinatio n of them on the nightin question adversely affected his actions, reactions, conduct, movement or mental processes or impaired his reactions to an appreciable degree, t hereby lessening his ability to operate his vehicle on the night in question. No te st results were necessary for a conviction of operating “under the influence. {¶57} Next, Wade argues that there is no evidence that Wade was opera ting the truck. Wade admitted to Trooper Campbell at the scene that he had driven the truck.

Wade admitted at trial that he had driven the truck and consume d alcohol while in the truck. A nearly empty bottle of vodka was recovered from insid e the cab of the truck. {¶58} Finally, Wade contends that the re is no evidenc e that W ade drov e the truck while impaired. {¶59} If the state relies on circumstantial evidence to prove an esse ntial element of an offense, it is not necessary for “‘such evidence to be irreconc ilable with any reasonable theory of innocence in order to support a conviction.’” State v. Jenks , 61 Ohio St. 3d 259, 272, 574 N.E. 2d 492(1991) at paragraph one of the syllabus. “‘Circumstantia l evidence and direct evidence inherently possess the same probative value [.]’” Jenks , 61 Ohio St .3d at paragraph one of the syllabus. Furthermore, “‘[s]ince circumstantial evidence and d irect evidence are indistinguishable so far as the jury's fact-finding function is concerned, all that is required of the jury is that i[t] weigh all of the evidence, direct and circums tantial, against the standard of proof beyond a reasonable doubt.’” Jenks, 61 Ohio St. 3d at 272, 574 N.E. 2d 492. {¶60} Viewing the evidence in the case at bar in a light most favorab le to the prosecution, we conclude that a reasonable person could have fo und beyond a

reasonable doubt that Wade had committed the crime of OVI in vi olation of R.C. 4511.19(A)(1)(a) and R.C. 4506.15(A)(6). We hold, therefore, t hat the state met itsburden of production regarding each element of the crime of OVI and, accordingly, there was sufficient evidence to submit the charges to the trier of f act and to support Wade’s

convictions. Manifest weight of the evidence. {¶61} As to the weight of the evidence, the issue is whether the jury created a manifest miscarriage of justice in resolving conflicting eviden ce, even though the evidence of guilt was legally sufficient. State v. Thompkins , 78 Ohio St.3d 380, 386–387, 678 N.E.2d 541 (1997), superseded by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, 1997–Ohio–355; State v.

Issa , 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001). “[I]n determining whether the judgment below is manifestly agai nst the weight of the evidence, every reasonable intendment and eve ry reasonable presumption must be made in favor of the judgment an d the finding of facts.

* * * “If the evidence is susceptible of more than one construction, the reviewing court is bound to give it that interpretation which i s consistent with the verdict and judgment, most favorable to sustaining the verd ict and judgment.” Seasons Coal Co., Inc. v. Cleveland , 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–1 92 (1978). {¶62} The reviewing court must bear in mind, however, that credibilit y generally is

an issue for the trier of fact to resolve. State v. Issa , 93 Ohio St.3d 49, 67, 752 N.E.2d904 (2001); State v. Murphy , 4th Dist. Ross No. 07CA2953, 2008–Ohio–1744, ¶ 31. Because the trier of fact sees and hears the witnesses and is p articularly competent to decide whether, and to what extent, to credit the testimony of particular witnesses, the appellate court must afford substantial deference to its determ inations of credibility. Barberton v. Jenney , 126 Ohio St.3d 5, 2010–Ohio–2420, 929 N.E.2d 1047, ¶ 20. In other words, “[w]hen there exist two fairly reasonable views of the evidence or two conflicting versions of events, neither of which is unbelievabl e, it is not our province to

choose which one we believe.” State v. Dyke , 7th Dist. Mahoning No. 99 CA 149, 2002– Ohio–1152, at ¶ 13, citing State v. Gore , 131 Ohio App.3d 197, 201, 722 N.E.2d 125(7th Dist. 1999). Thus, an appellate cou rt will leave the issues of weight and credibility of the evidence to the fact finder, as long as a rational basis exists in the record for its decision. State v. Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012–Ohio–1282, ¶ 24. {¶63} Once the reviewing court finishes its examination, an appellate court may not merely substitute its view for that of the jury, but must f ind that “ ‘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. Thompkins, supra , 78 Ohio St.3d at 387, quoting State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist. 1983). Accordingly, reversal on manifest weight grounds is res erved for “the exceptional case in which the evidence weighs heavily against the convictio n.” Id.

ISSUE FOR APPEAL.

B. Whether the judge clearly lost his way and created such a manifest miscarriage of justice that the convictions must be reversed and a new trial ordered.{¶64} Wade argues that the ev idence does not sugge st that Wade drank before he drove the truck. [Appellant’s brief at 17]. {¶65} The judge as the trier of fact was free to accept or reject any and all of the evidence offered by the parties and assess the witness’s credib ility. “While the trier of fact may take note of the inconsistencies and resolve or discou nt them accordingly * * * such inconsistencies do not render defendant’s conviction again st the manifest weight or sufficiency of the evidence.” State v. Craig , 10th Dist. Franklin No. 99AP–739, 1999 WL 29752 (Mar 23, 2000) citing State v. Nivens , 10th Dist. Franklin No. 95APA09–1236, 1996 WL 284714 (May 28, 1996). Indeed, the trier of fact need not b elieve all of a witness’ testimony, but may accept only portions of it as true. State v. Raver , 10th Dist. Franklin No. 02AP–604, 2003–Ohio–958, ¶ 21, citing State v. Antill , 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964); State v. Burke , 10th Dist. Franklin No. 02AP–1238, 2003–Ohio–2889, citing State v. Caldwell , 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Althou gh the evidence may have been circumstantial, we note that circums tantial evidence has the same probative value as direct evidence. State v. Jenks , 61 Ohio St.3d 259, 272, 574 N.E.2d 492 (1991), paragraph one of the syllabus , superseded by State constitutional amendment on other grounds as stated in State v. Smith , 80 Ohio St.3d 89, 102 at n.4, 684 N.E.2d 668 (1997). {¶66} In the case at bar, the judge heard the witnesses and viewed th e evidence. The judge further heard Wade’s testimony and his attorney’s arg uments and explanations about his actions. The judge further reviewed the dash-cam vid eo of the events as they occurred in real-time. Thus, a rational basis exists in the re cord for the judge’s decision.{¶67} We find that this is not an “‘exceptional case in which the evi dence weighs heavily against the conviction.’” State v. Thompkins , 78 Ohio St.3d 380, 386–387, 678 N.E.2d 541 (1997), quoting Martin , 20 Ohio App.3d at 175, 485 N.E.2d 717. Based upon the foregoing and the entire record in this matter we find Wade ’s convictions are not against the sufficiency or the manifest weight of the evidence. To the contrary, the judge appears to have fairly and impartially decided the matters befo re him. The judge heard the witnesses, evaluated the evidence, and was convinced of Wad e’s guilt. The judge neither lost his way nor created a miscarriage of justice in co nvicting Wade of OVI. {¶68} Finally, upon careful consideration of the record in its entire ty, we find that there is substantial evidence presented which if believed, prov es all the elements of the

crimes for which Wade was convicted. {¶69} Wade’s Second and Third Assignments of Error are overruled. {¶70} The judgment of the Muskingum County Court is affirmed. By Gwin, P.J., Hoffman, J., and Delaney, J., concur