[Cite as State v. Baker , 2020-Ohio-19.]

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

STATE OF OHIO Appellee

v. CHRISTOPHER BAKER Appellant C.A. No. 29167

APPEAL FROM JUDGMENT ENTERED IN THE AKRON MUNICIPAL COURT COUNTY OF SUMMIT, OHIO CASE No. 18TRC05589

DECISION AND JOURNAL ENTRY Dated: January 8, 2020

TEODOSIO, Presiding Judge. {¶1} Appellant, Christopher Baker, appe als from his conviction for o perating a vehicle

while under the influence of alc ohol (“OVI”) in the Akron Munic ipal Court. This Court affirms.

I. {¶2} Mr. Baker was charged with OVI under R.C. 4511.19(A)(1)(a) as w ell as speeding. Following a trial, a jury found him guilty of OVI an d the trial court found him guilty of speeding. The court sentenced him to 180 days in jail for O VI, but suspended 177 days and permitted him to attend a three-day driver intervention program in lieu of serving three days in jail. The court further ordered a 12-month license suspension and a $375.00 fine. The court also ordered a $50.00 fine for speeding. The court granted Mr. Bake r a stay of execution of his

sentence. {¶3} Mr. Baker now appeals from his O VI conviction and raises three assignments of

error for this Court’s review.2

II.

ASSIGNMENT OF ERROR ONE

MR. BAKER’S CONVICTION FOR OVI IS AGAINST THE SUFFICIENCY OF THE EVIDENCE. {¶4} In his first assignment of error, Mr. Baker argues that his OVI conviction is not supported by sufficient evidence. We disagree. {¶5} Whether a conviction is supported by sufficient evidence is a q uestion of law,

which this Court reviews de novo. State v. Thompkins , 78 Ohio St.3d 380, 386 (1997). “Sufficiency concerns the burde n of production and tests whethe r the prosecution presented adequate evidence for the case to go to the jury.” State v. Bressi , 9th Dist. Summit No. 27575, 2016-Ohio-5211, ¶ 25, citing Thompkins at 386. “‘The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime proven beyond a reaso nable doubt.’” Id. , quoting State

v. Jenks , 61 Ohio St.3d 259 (1991), paragr aph two of the syllabus. How ever, “we do not resolve evidentiary conflicts or assess the credibility of witnesses, b ecause these functions belong to the

trier of fact.” State v. Hall , 9th Dist. Summit No. 27827, 2017-Ohio-73, ¶ 10. {¶6} Mr. Baker was convicted of OVI under R.C. 4511.19(A)(1)(a), whi ch states: “No person shall operate any vehicle * * * within this state, if, a t the time of the operation, * * * the person is under the influence of alcohol * * *.” This Court ha s defined “under the influence” 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 app reciable degree, thereby lessening his ability to operate a motor vehicle.” Akron v. Foos , 9th Dist. Summit No. 28086, 2016-Ohio-8441, ¶ 5.3

{¶7} Trooper Nathan Sweazy of the Ohio State Highway Patrol (“OSHP”) testified at trial as to his training and experience, which includes OVI-spe cific training and annual updates. He testified that, on April 6, 2018, at approximately 3:30 A.M. , he was on duty and traveling on Brittain Road, near Eastwood and Eastland Avenues, in Akron, Oh io. He was accompanied by Sergeant Grim, who was conducting a “supervisor ride-along.” T rooper Sweazy noticed a vehicle coming toward him at a high rate of speed, so he activa ted his front radar unit and

clocked the vehicle at 64 miles per hour (“mph”) in a 35 mph zo ne. The trooper turned around and followed the vehicle, which t hen failed to use its turn sig nal during a right-hand turn onto Eastland Avenue. Trooper Sweazy activated his overhead lights and conducted a traffic stop of the vehicle. The entire incident was captured on the trooper’s dash cam video, which was

entered into evide nce at trial. {¶8} Trooper Sweazy spoke to the sole occupant of the vehicle (“Mr. Baker”) and testified that he noticed an odor of alcohol emitting from the vehicle. He testified that during

their conversation Mr. Baker sa id he was dropping some friends off and did not think he was “going that fast.” Mr. Baker a dmitted to the trooper that he w as coming from a bar and admitted drinking two Miller Lites before he left. In the dash cam vide o, the trooper can be heard asking Mr. Baker to step out of the vehicle because he “[could] smell a little bit of alcohol coming from

the vehicle.” On re-cross exa mination, the trooper testified t hat characterizing the odor as “a little bit of alcohol” while speaking to Mr. Baker was simply “ casual conversation.” Upon further redirect examination, the trooper reviewed his report f rom the incident and testified that he noted in the report the odor of alcohol was “strong.” {¶9} Once out of the vehicle, the trooper asked Mr. Baker to turn ar ound and face him for field sobriety testing, but Mr. Baker can be seen in the vi deo placing his hands on the hood of4

the trooper’s cruiser instead. The trooper testified that Mr. Baker “was having a little bit of a hard time concentrating” and his eyes were glassy and bloodshot throughout the encounter. On redirect examination, the troope r testified that the odor of al cohol was “still strong when [he] was standing outside of the vehicle * * * speaking with [Mr. Baker] .” {¶10} Trooper Sweazy testified that Mr. Baker performed poorly on the field sobriety tests. During the horizontal gaze nystagmus (“HGN”) test, Mr. Baker can be seen in the video moving his head around, and the trooper has to repeatedly instr uct him to keep his head still. The trooper testified that he obs erved six out of six clues dur ing the HGN test. Next, at the outset of the walk and turn test, the trooper told Mr. Baker to put his left foot down with his right foot forward, and likewise demonstrated the act. Mr. Baker ins tead places his right foot down with his left foot forward, and the trooper has to correct him. Mr. Baker then begins walking, and the trooper has to stop him so he can finish giving the tes t instructions. As the trooper attempts to provide the instruc tions, Mr. Baker can be seen and heard in the video constantly interrupting and talking over the trooper. The trooper testifi ed that, during the test, not all of Mr. Baker’s steps were performed heel-to-toe. Furthermore, althoug h instructed to only take nine heel-to-toe steps, Mr. Baker t akes nine steps, stops, and asks, “Should I do more or turn around?” The trooper says that is all he had to do, but Mr. Baker resume s the test anyway and says, “I’m gonna do ten and turn around.” O verall, the tr ooper testified that he observed six out of eight clues on the walk and turn test. During the third and final on e leg stand test, th e trooper testified that he only observed one out of four clues, as Mr. Baker would not put his hands back down to

his side. {¶11} Upon completion of field sobriety testing, Mr. Baker can be see n and heard in the video refusing to submit to a por table breathalyzer test, expla ining that he just “did seventeen5

f*****g field tests,” requiring him to “walk back and forth, * * * clap, do ABC’s backwards, and all types of s**t.” He tells the trooper he is tired because h e works seventeen hours a day. Trooper Sweazy testified that he then placed Mr. Baker under ar rest for OVI. Based on Mr. Baker’s overall cooperative attit ude during the encounter, Troo per Sweazy testified that he saw no need to tow Mr. Baker’s vehicle and, instead, Sergeant Grim moved the vehicle off the road and into a nearby parking lot as a courtesy. When they arrived at the OSHP post, Trooper Sweazy read the BMV 2255 form to Mr. Baker, and he again refuse d to submit to a breathalyzer

test. {¶12} In challenging the sufficiency of the evidence, Mr. Baker lists some general factors that are typically considered evidence of impairment, s uch as slurred speech, the inability to keep one’s car in a marked lane, swerving or weaving, failur e to pull one’s vehicle over immediately, lack of coordinati on, stumbling, tactile difficult ies, and difficulties with comprehension. He argues that there is no evidence of any of t hese factors here, and the only indicia of impairment present in this case were glassy, bloodsh ot eyes and an odor described by the trooper in the video as “a little bit of alcohol.” He ther efore argues that the evidence was insufficient to support a jury finding that he was impaired whi le driving beyond a reasonable doubt. Mr. Baker does not direct us, however, to any law neces sarily requiring any of the aforementioned factors to be present for an OVI conviction to b e based on sufficient evidence. Slurred speech, for example, alt hough one of the classic indici a of intoxication, is not a prerequisite to a reasonable judgment that a person is under th e influence. Akron v. Smith , 9th Dist. Summit No. 21519, 2003-Ohio-5773, ¶ 16. {¶13} In determining whether a defendant was under the influence of a lcohol, the jury may properly consider evidence of his appearance and behavior, including his ability to perceive,6

make judgments, coordinate moveme nts, and safely operate a vehi cle. See State v. Moine , 72 Ohio App.3d 584, 586-587 (9th Dist.1991). Moreover, we have st ated that, in OVI prosecutions, the state is not required to establish that a defendant was act ually impaired while driving, but need only show an impaired driving ability. State v. Hill , 9th Dist. Summit No. 26519, 2013- Ohio-4022, ¶ 6. To prove impaired driving ability, the state m ay rely on physiological factors (e.g., odor of alcohol, glossy or bloodshot eyes, slurred speec h, confused appearance) to demonstrate that a person’s physical and mental ability to driv e was impaired. Id. Furthermore, virtually any lay witness, without special qualifications, may testify as to whether an individual

is intoxicated. Id. {¶14} After reviewing the record, we conclude that the State presente d sufficient evidence, if believed, to demonstrate that Mr. Baker was operat ing his vehicle while under the influence of alcohol. Mr. Baker was traveling almost twice the posted speed limit, but was admittedly unaware he was “going that fast[,]” and also failed to use his turn signal. Trooper Sweazy smelled a strong odor of alcohol emitting from Mr. Baker ’s vehicle during the traffic stop, which remained strong durin g their subsequent face-to-fac e interactions outside of the vehicle. Mr. Baker’s eyes were g lassy and bloodshot, and he op enly admitted to coming from a bar and drinking two beers. The re was both testimonial and vid eo evidence that Mr. Baker was having a hard time concentrating, having trouble following dire ctions, and interrupting and talking over the trooper. He pe rformed poorly on two of the th ree field sobriety tests and failed to submit to two separate breathalyzer tests. Based on the tot ality of the circumstances in this case, we conclude that the jury could have reasonably determine d the State proved Mr. Baker was operating his vehicle while under the influence of alcohol beyond a reasonable doubt. {¶15} Mr. Baker’s first assignment of error is overruled.7

ASSIGNMENT OF ERROR TWO

MR. BAKER’S CONVICTION FOR OVI IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, MERITING A NEW TRIAL. {¶16} In his second assignment of error, Mr. Baker argues that his OV I conviction is against the manifest weight of the evidence. We disagree. {¶17} 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, consider the credibility of witn esses 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). “[W]hen reversing a conviction on the basis that it was against the ma nifest weight of the evidence, an appellate court sits as a ‘thirteenth juror,’ and disagrees with the factfinder’s resolut ion of the conflicting testimony.”

State v. Tucker , 9th Dist. Medina No. 06CA0035-M, 2006-Ohio-6914, ¶ 5. This d iscretionary power “should be exercised only in the exceptional case in whic h the evidence weighs heavily against the conviction.” State v. Thompkins , 78 Ohio St.3d 380, 387 (1997), quoting State v.

Martin , 20 Ohio App.3d 172, 175 (1st Dist.1983). See also Otten at 340. {¶18} Although Mr. Baker’s merit brief sets forth the standard of rev iew for a manifest weight challenge, he does not actually articulate a manifest we ight argument. See State v.

Pieronek , 9th Dist. Wayne No. 18AP0031, 2019-Ohio-4305, ¶ 15. See also App.R. 16(A)(7);

accord Loc.R. 7(B)(7). We are permitted to disregard this assignment of error for that reason

alone. See App.R. 12(A)(2); accord Loc.R. 7(F). Instead of making a manifest weight argument, Mr. Baker merely “reincorporates his argument from his [f]irst [a]ssignment of [e]rror” and claims “it is clear that the evidence presented at trial was insufficient for the jury to have found8

all elements of OVI were proven beyond a reasonable doubt[,]” a s “there is not sufficient evidence to show [he] was impaired.” (Emphasis added.). Howev er, as this Court has oft stated, “sufficiency and manifest weight are two separate, legally dist inct arguments.” State v.

Vincente-Colon , 9th Dist. Lorain No. 09CA009705, 2010-Ohio-6242, ¶ 20. Mr. B aker has not argued why his OVI conviction was against the manifest weight o f the evidence, and we will not create or develop a manifest weight argument on his behalf. See State v. Jackson , 9th Dist. Summit No. 28691, 2018-Ohio-1285, ¶ 47. {¶19} Mr. Baker’s second assignment of error is overruled.

ASSIGNMENT OF ERROR THREE

THE TRIAL COURT ERRED IN DENYING MR. BAKER’S MOTION FOR A MISTRIAL AFTER THE JURY HEARD EXTREMELY PREJUDICIAL AND INADMISSIBLE HEARSAY TESTIMONY. {¶20} In his third assignment of error, Mr. Baker argues that the tri al court erred in denying his motion for a mistrial after the jury was exposed to hearsay testimony. We disagree. {¶21} There are no exact standards to apply in evaluating whether a t rial court should declare a mistrial in any particular case. State v. Hickman , 9th Dist. Summit No. 27321, 2015- Ohio-4668, ¶ 21. “Mistrials need be declared only when the end s of justice so require and a fair trial is no longer possible.” State v. Franklin , 62 Ohio St.3d 118, 127 (1991). “‘In analyzing whether a defendant was deprived of a fair trial, an appellate court must determine whether, absent the improper remarks, t he jury would have found the appe llant guilty beyond a reasonable

doubt.’” State v. Allgood , 9th Dist. Lorain No. 17CA011224, 2019-Ohio-738, ¶ 24, quoting

Columbus v. Aleshire , 187 Ohio App.3d 660, 2010-Ohio-2773, ¶ 42 (10th Dist.). Thus , “[t]he essential inquiry on a motion fo r a mistrial is whether the sub stantial rights of the accused are9

adversely affected.” Wadsworth v. Damberger , 9th Dist. Medina No. 3024-M, 2000 WL 1226620, *2 (Aug. 30, 2000). {¶22} Because the trial court is in the best position to determine wh ether the declaration

of a mistrial is warranted under the circumstances as they have arisen in the courtroom, we afford great deference to the t rial court’s decision and will n ot second-guess such a determination

absent an abuse of discretion. State v. Edwards , 9th Dist. Summit No. 28164, 2017-Ohio-7231, ¶ 12. “The term ‘abuse of discretion’ connotes more than an er ror of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconsc ionable.” Blakemore v. Blakemore , 5 Ohio St.3d 217, 219 (1983). When applying an abuse of discre tion standard, a reviewing court is precluded from simply substituting its own judgment for that of the trial court. Pons v. Ohio

State Med. Bd. , 66 Ohio St.3d 619, 621 (1993). {¶23} Trooper Sweazy testified during direct examination that Mr. Bak er admitted to drinking two Miller Lites. The prosecutor later referred the t rooper to the dash cam video and inquired as to Mr. Baker’s statement in the video: “I didn’t sa y nothing about Bud Lights.” In response, the trooper testified, “The Bud Light that he was ref erring to, Sergeant Grim, when he was moving the vehicle, seen a Bud Light can in the car.” Defe nse counsel objected on the basis of hearsay, and the trial cour t sustained the objection. The c ourt ordered the testimony about what Sergeant Grim said he saw in the car to be stricken from t he record. The court then issued a curative instruction to the jury as follows: “The jury will d isregard any testimony from Trooper Sweazy regarding what another trooper or sergeant said to him r egarding a can of Bud Light being at the scene, so that was not to be considered as evidenc e by the jury and that part of the objection was sustained.”10

{¶24} After a break in the proceedings, but outside the presence of t he jury, the prosecutor brought to the attention of the court that the dash cam video shows Mr. Baker at the outset of the traffic stop claiming, “There’s no alcohol in my car.” Thus, while acknowledging that the court had already ruled on the matter, the prosecutor argued this was a prior inconsistent statement and Trooper Sweazy’s testimony regarding what Sergean t Grim told him about a can of Bud Light being in the car could be part of the record. Def ense counsel then moved for a mistrial, but the trial court de nied the motion. Prior to clos ing arguments, the trial court instructed the jury as follows: “If an answer is given to a que stion and the [c]ourt grants a motion to strike the answer, you are to disregard completely such ques tion and answer and not consider them for any purpose.” {¶25} Mr. Baker concedes that the tria l court sustained his objection to the testimony, but argues that the trial court should have granted him a mistr ial because the jury nonetheless heard the trooper’s testimony that a can of Bud Light was found in Mr. Baker’s car. He notes that the record indicates the jur y was “locked up, 50/50” after deliberations, and contends that the Bud Light testimony “forever tainted” the jury and likely p rejudiced him by swaying some jurors toward a guilty verdict. {¶26} We disagree with Mr. Baker, as the trooper’s testimony regardin g the Bud Light was “fleeting” or “brief and isol ated” and was promptly objecte d to, stricken from the record, and followed by a curative instruction ordering the jury to dis regard the testimony. See State v. Gary , 9th Dist. Wayne No. 12CA0014, 2012-Ohio-5813, ¶ 29, Allgood at ¶ 24. See also State v.

Mohamed , 9th Dist. Medina No. 11CA0050-M, 2012-Ohio-3636, ¶ 26, quotin g State v. Trimble , 122 Ohio St.3d 297, 2009-Ohio-2961, ¶ 175 (“‘[A] brief and isol ated remark that was followed by a curative instruction’ will likely not implicate unfair pre judice requiring a mistrial.”). The11

trial court again instructed the jury prior to closing argument s to completely disregard questions

and answers that were stricken from the record and to not consi der them for any purpose. “‘A jury is presumed to follow the instructions, including curative instructions, given it by a trial judge.’” State v. Simpson , 9th Dist. Lorain No. 11CA010138, 2012-Ohio-3195, ¶ 37, quotin g

State v. Garner , 74 Ohio St.3d 49, 59 (1995). Mr. Baker directs us to no evid ence in the record that the jury disregarded the c ourt’s instructions, and his bel ief that the Bud Light testimony was responsible for the jury ultimately reaching a guilty verdict s ometime after it was deadlocked at 50/50 is pure speculation. {¶27} We further disagree that this is a case where Mr. Baker was pre judiced and deprived of a fair trial. “In d etermining whether a defendant was deprived of a fair trial, a court must determine whether, absent the error or irregularity, ‘the jury would have found the appellant guilty beyond a reasonable doubt.’” State v. Edwards , 9th Dist. Summit No. 28164, 2017-Ohio7231, ¶ 13, quoting Columbus v. Aleshire , 187 Ohio App.3d 660, 2010-Ohio-2773, ¶ 42 (10th Dist.). In light of the evidence presented against him at tria l, as detailed in our discussion of his first assignment of error, we conclude that the jury would have still found Mr. Baker guilty of OVI if the trooper’s statement regarding Bud Light had not been made. Accordingly, we cannot say that the trial court erre d or abused its discretion in deny ing Mr. Baker’s motion for a mistrial. {¶28} Mr. Baker’s third assignment of error is overruled.

III. {¶29} Mr. Baker’s assignments of error are all overruled. The judgme nt of the Akron Municipal Court is affirmed. Judgment affirmed.12

There were reasonable grounds for this appeal. We order that a special manda te issue out of this Court, direc ting the Akron Municipal Court, 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.

THOMAS A. TE ODOSIO FOR THE COURT

SCHAFER, J. CONCURS. CARR, J. CONCURS IN JUDGMENT ONLY.

APPEARANCES: BENJAMIN R. SORBER, Attorney at Law, for Appellant. EVE V. BELFANCE, Director of Law , and BRIAN D. BREMER, Assistan t Director of Law, for Appellee.