[Cite as Cleveland Hts. v. Jackson, 2024-Ohio-472.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

CITY OF CLEVELAND HEIGHTS, :

Plaintiff-Appellee, :

No. 112278

v. :

DEREK JACKSON, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: February 8, 2024

Criminal Appeal from the Cleveland Heights Municipal Court

Case No. TRC2201211

Appearances:

William R. Hanna, Cleveland Heights Director of Law, 

and Pamela L. Roessner, Prosecutor, for appellee. 

Cullen Sweeney, Cuyahoga County Public Defender, and 

Michael V. Wilhelm, Assistant Public Defender, for 

appellant. 

SEAN C. GALLAGHER, J.:

Derek Jackson appeals his convictions for operating a vehicle while 

intoxicated (“OVI”) and impeding traffic. For the following reasons, we affirm.
In the early morning hours on the day of the incident, police officers 

sitting in their cruiser while parked in a church parking lot at Cedar Road and 

Coventry Road in the city of Cleveland Heights were approached by an anonymous 

passerby. The person reported that there was a driver stopped at the intersection of 

Coventry Road and Fairmount Boulevard who appeared to be asleep at the wheel of 

his vehicle. The passerby reported the car had been there for several cycles of the 

traffic light.

The officers radioed dispatch requesting support. That was standard 

protocol for this situation because in their experience, if a driver is asleep at the 

wheel and is startled awake, the driver has a tendency to hit the gas pedal. A second 

car boxing the suspect’s vehicle prevents the vehicle from jumping into traffic or the 

officers. Before support arrived, the officers proceeded to investigate the passerby’s 

report. 

The two officers were the first to arrive on scene, and they pulled 

behind Jackson’s vehicle, which was not moving despite the traffic-control light 

cycling. There was not much traffic at the time, and the officers noticed the traffic 

light cycle at least two times as they waited behind Jackson’s vehicle. Once support 

arrived and was able to box Jackson’s vehicle between the two patrol cars, one of the

officers approached the driver’s side of the vehicle and opened the door.

Jackson immediately awoke to the door opening, apparently not 

noticing the police cars boxing him in, but was unable to provide any information

beyond telling the officer where he was coming from. When asked where he was 
going, after a slight hesitation, Jackson stated he was going home. Jackson could 

not relay immediately what his home address was, stating at first 916 Cleveland 

Heights, then 1016 Cleveland Heights, 44120. Only after the officers asked did 

Jackson give a street name rather than the city. One of the officers observed that 

Jackson’s eyes were glossy, some of his speech was slurred, and the officer also 

smelled the odor of alcohol emanating from Jackson’s breath.

Because Jackson was asleep at the wheel and seemed disoriented 

when the officer asked questions, the officers asked Jackson to step out of the vehicle 

to perform standardized field sobriety tests.

1

 During the tests, displayed to the jury, 

Jackson was visibly unstable on his feet, could not walk a straight line, and lost his 

balance more than once. Jackson refused to take the breath test. He was arrested 

and cited for OVI, in violation of R.C. 4511.19(A)(1)(a), and impeding or blocking the 

flow of traffic, in violation of Cleveland Heights Codified Ordinances (“CHCO”)

333.04.

At the conclusion of testimony, the jury found Jackson guilty of both 

offenses. The municipal court sentenced Jackson to a one-year term of community 

control, including a one-year suspension of his driver license. Jackson appeals,

advancing three assignments of error, which have been consolidated for the ease of 

1 Jackson filed a motion to suppress evidence. The trial court found that the officer 

performing the field sobriety test did not substantially comply with National Highway 

Traffic Safety Administration guidelines when conducting the horizontal gaze nystagmus 

test and excluded it from evidence. The court deemed evidence of the remaining tests 

admissible and determined there was probable cause to arrest Jackson. Neither party has

challenged that ruling in this appeal.
discussion. Jackson argues: (1) that his conviction for blocking traffic was not based 

on sufficient evidence; and (2) that both his convictions were against the weight of 

the evidence. Neither argument has merit.

A challenge to the sufficiency of the evidence questions whether the 

state met its burden of production. State v. Hunter, 8th Dist. Cuyahoga No. 86048, 

2006-Ohio-20, ¶ 41, citing State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 

541 (1997). Sufficiency of the evidence involves a review of the evidence admitted at 

trial and a determination of “‘whether such evidence, if believed, would convince the 

average mind of the defendant’s guilt beyond a reasonable doubt.’” State v. Goins, 

8th Dist. Cuyahoga No. 109497, 2021-Ohio-1299, ¶ 13, quoting State v. Jenks, 61 

Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. Under this 

standard, the appellate court must determine, “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 reasonable doubt.” Id. 

Jackson was cited for violating CHCO 333.04, which states:

No person shall stop or operate a vehicle at such an unreasonably slow 

speed as to impede or block the normal and reasonable movement of 

traffic, except when stopping or reduced speed is necessary for safe 

operation or to comply with the law.

CHCO 333.04(a). No one disputes that a vehicle stopped in the lane of traffic 

constitutes an “unreasonably slow speed.” Thus, in order for Jackson to be 

convicted of this offense, the city needed to prove, beyond a reasonable doubt, that 

Jackson stopped his vehicle such that it impeded or blocked the normal and 
reasonable movement of traffic. Importantly, Jackson does not discuss nor dispel 

the notion that the responding officers arriving in their police cruiser constituted 

“traffic” as contemplated under the ordinance.

Instead, Jackson argues, in his appellate briefing, that the evidence 

was insufficient because it did not establish that his conduct impeded or blocked the 

normal and reasonable movement of traffic because the incident occurred just past 

midnight and “there were no vehicles present” for his vehicle to impede or block. 

(Emphasis added.) Jackson, however, ignores the undisputed fact that there was at 

least one vehicle impeded by Jackson’s being passed out behind the wheel — the

vehicle of the first responding officers who approached the intersection. Those 

responding officers arrived to investigate whether there was a reasonable articulable 

suspicion of criminal activity to warrant detaining Jackson for investigatory 

purposes based on the anonymous tip they had just received. 

At that point in time, the responding officers were no different than 

any other motorists on the road. They had received an anonymous tip regarding a 

possible motor-vehicle infraction, but that tip in and of itself would not ordinarily 

have justified stopping or detaining Jackson. See Maumee v. Weisner, 87 Ohio St.3d 

295, 300, 720 N.E.2d 507 (1999), citing Alabama v. White, 496 U.S. 325, 329, 

110 S.Ct. 2412, 110 L.Ed.2d 301 (“[A]n anonymous tip alone seldom demonstrates 

the informant’s basis of knowledge or veracity inasmuch as ordinary citizens 

generally do not provide extensive recitations of the basis of their everyday 

observations.”). The officers themselves had to witness something, and upon 
arriving, they witnessed Jackson blocking them from normally travelling through 

the intersection in the proper lane of travel. 

In addressing the similar statutory provision under R.C. 4511.22(A), 

another panel in this district concluded that the trier of fact is “required to consider 

whether the traffic in the area was moving normally and reasonably and whether the 

defendant impeded its flow.” Cleveland v. Dawson, 8th Dist. Cuyahoga No. 71450, 

1997 Ohio App. LEXIS 3201, 16 (July 24, 1997). In addition, “[w]hether a police 

cruiser itself constitutes impeded [or blocked, as the situation may be,] traffic for the 

purposes of R.C. 4511.22 is a case-by-case, fact-based determination.” State v. 

Bahen, 2016-Ohio-7012, 76 N.E.3d 438, ¶ 26 (10th Dist.) (violation of R.C. 4511.22 

requires a showing that the motorist impeded or blocked traffic). In this case, the 

officers expressly testified that Jackson’s stopped vehicle blocked them from 

proceeding through the intersection in their lane of travel due to Jackson’s car not 

moving when the traffic light cycled to green. The officers then waited for backup to 

arrive after witnessing the infraction first hand.

In light of the argument presented, Jackson’s assignment of error 

pertaining to the sufficiency of the evidence is overruled. He has not presented any 

discussion or argument to dispel application of the general proposition that a police 

officer’s cruiser can constitute “traffic” for the purposes of the violation. It is not the 

role of an appellate court to flush out underdeveloped arguments on behalf of one of 

the parties. See State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 

N.E.3d 900, ¶ 19, citing State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 
N.E.2d 753, ¶ 78 (O’Donnell, J., concurring in part and dissenting in part), quoting 

Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983). And regardless, the question 

of whether the officers’ vehicle constitutes “traffic” for the purposes of the offense is 

one left to the finder of fact; we cannot conclude that the conviction for blocking 

traffic was based on insufficient evidence. Under the sufficiency-of-the-evidence 

standard, we must accept all reasonable inferences in favor of the state, which on 

this point demonstrates that the officers’ vehicle was blocked by Jackson who was 

asleep at the wheel, preventing the officers from travelling through the intersection 

in their lane of travel.

And finally, in the remaining two assignments of error, Jackson

argues that his convictions for the OVI and impeding traffic were against the weight 

of the evidence. 

“‘[W]eight of the evidence involves the inclination of the greater 

amount of credible evidence.’” State v. Harris, 8th Dist. Cuyahoga No. 109060, 

2021-Ohio-856, ¶ 32, quoting Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541. 

Weight of the evidence relates to “‘the evidence’s effect of inducing belief.’” Id., 

quoting State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, 

¶ 25, citing Thompkins at 386-387. The reviewing court must consider all of the 

evidence in the record, the reasonable inferences made from it, and the credibility 

of the witnesses to determine “‘whether in resolving conflicts in the evidence, the 

factfinder clearly lost its way and created such a manifest miscarriage of justice that 
the conviction must be reversed and a new trial ordered.’” Id., citing Thompkins at 

387, quoting State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983).

In addition to the impeding traffic conviction already discussed, 

Jackson was convicted of violating R.C. 4511.19(A)(1)(a), which provides in 

pertinent part that “[n]o person shall operate any vehicle, * * * if, at the time of the 

operation, * * * [t]he person is under the influence of alcohol, a drug of abuse, or a 

combination of them.” Jackson argues that certain officers testified for the first time 

at trial that they smelled the odor of alcohol emanating from Jackson, that some of 

Jackson’s conduct could be attributed to waking up surrounded by police officers, 

that his performance on the field sobriety tests were unremarkable, and that he was 

told that it was up to him whether to take the breath test, so his refusal was 

unremarkable.

The basis of the stop was the officers’ observing Jackson asleep at the 

wheel for several cycles of a stop light, thereby impeding their travel through the 

intersection. The first responding officers testified that it took them several minutes 

to arrive at the intersection, where they found the vehicle in the same position as 

described by the anonymous source. While waiting for support to arrive, the officers

observed the traffic light cycle at least two more times, thereby blocking the lane of 

traffic and preventing the officers from continuing through the intersection in that 

lane of travel. The commission of that offense provided probable cause for further 

investigation into why Jackson was impeding or blocking traffic. See State v. Percy, 

7th Dist. Mahoning No. 04 MA 265, 2006-Ohio-1285, ¶ 17, citing Dayton v. 
Erickson, 76 Ohio St.3d 3, 9, 665 N.E.2d 1091 (1996); State v. Brunk, 5th Dist. 

Richland No. 2021 CA 0037, 2021-Ohio-4270, ¶ 24; State v. Clark, 11th Dist. 

Ashtabula No. 2002-A-0056, 2003-Ohio-6689, ¶ 29. 

Approximately five more officers arrived at the scene, with a second 

police vehicle boxing in Jackson’s car, to enable an officer to safely approach the 

vehicle. During all of that commotion, Jackson remained asleep at the wheel. One 

of the officers could smell the odor of alcohol coming from Jackson’s breath, and 

another could smell the odor of an alcoholic beverage coming from Jackson’s person 

when he conducted the field sobriety tests. When awakened, Jackson seemed alert 

but provided somewhat disjointed answers to questions. When asked where he was 

coming from, he repeated “Larchmere” without any further elaboration. When 

asked his address, he gave the house number and the city, providing the street name 

only when asked.

During the field sobriety tests, Jackson was visibly unstable on his 

feet, stumbling and almost falling several times. An officer walking behind Jackson 

during the test reached out to assist him when he stumbled, more than once. Finally, 

Jackson’s refusal to take the breath test held demonstrative value. The refusal to 

take a reliable chemical test for intoxication when one is accused of intoxication is 

probative on the question of whether he was intoxicated at the time of the refusal. 

State v. Griesheimer, 10th Dist. Franklin No. 05AP-1039, 2007-Ohio-837, ¶ 24,

citing Westerville v. Cunningham, 15 Ohio St.2d 121, 239 N.E.2d 40 (1968), at 

paragraph one of the syllabus. See also E. Cleveland v. Harris, 8th Dist. Cuyahoga 
No. 109404, 2021-Ohio-952, ¶ 27 (refusal to take a breath test without explanation 

is indicative of the defendant’s fear of the test result and shows a consciousness of 

guilt).

Jackson’s arguments are overruled. This is not an exceptional case in 

which it can be concluded that a manifest injustice occurred. The jury did not lose 

its way in concluding that Jackson’s convictions for the OVI and impeding traffic 

offenses were supported by the greater weight of the evidence presented at trial.

The convictions are affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the 

municipal court to carry this judgment into execution. The defendant’s conviction 

having been affirmed, any bail pending appeal is terminated. Case remanded to the 

trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure.

______________________

SEAN C. GALLAGHER, JUDGE

EILEEN T. GALLAGHER, P.J., CONCURS;

EMANUELLA D. GROVES, J., DISSENTS (WITH SEPARATE OPINION)
EMANUELLA D. GROVES, J., DISSENTING:

I respectfully concur in part and dissent in part. I write separately to 

address the majority’s opinion finding that there was sufficient evidence to support 

the conviction for impeding traffic.

Jackson was cited for violating Cleveland Heights Codified 

Ordinances (“CHCO”) 333.04, which states:

No person shall stop or operate a vehicle at such an unreasonably slow 

speed as to impede or block the normal and reasonable movement of 

traffic, except when stopping or reduced speed is necessary for safe 

operation or to comply with the law.

CHCO 333.04(a). 

“[A]n appellate court’s function when reviewing the sufficiency of the 

evidence to support a criminal conviction is to examine the evidence admitted at 

trial to determine whether such evidence, if believed, would convince the average 

mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio 

St.3d 259, 273, 574 N.E.2d 492 (1991).

The majority focuses on Jackson’s briefing, which argues the evidence 

was insufficient because “it did not establish that his conduct impeded or blocked 

the normal and reasonable movement of traffic because the incident occurred just 

past midnight and ‘there were no vehicles present’ for his vehicle to impede or

block.” Majority opinion at ¶ 10. The majority argues that the responding officers’ 

patrol cars were impeded, providing sufficient evidence to support the charge. I 

disagree.
This court has previously addressed the state code, R.C. 4511.22(A), 

and found that the trier of fact is “required to consider whether the traffic in the area 

was moving normally and reasonably and whether the defendant impeded its flow.” 

Cleveland v. Dawson, 8th Dist. Cuyahoga No. 71450, 1997 Ohio App. LEXIS 3201, 

at *16 (July 24, 1997). We determined that the relevant inquiry is how traffic was 

flowing at the time of the stop. Id. See State v. Hagerty, 11th Dist. Portage Nos. 

2001-P-0083 and 2001-P-0084, 2002-Ohio-3379, ¶ 16 (where officer was the only 

person on the road and could have navigated safely around a slow-moving driver, 

the officer was not blocked or impeded under R.C. 4511.22); State v. Bacher, 170 

Ohio App.3d 457, 2007-Ohio-727, 867 N.E.2d 864, ¶ 13 (1st Dist.) (finding that 

evidence did not support reasonable suspicion where the defendant was observed 

driving slowly late at night but was not impeding or blocking traffic); State v. Bahen, 

2016-Ohio-7012, 76 N.E.3d 438, ¶ 25 (10th Dist.) (violation of R.C. 4511.22 requires 

a showing that the motorist impeded or blocked traffic.). The court in Bahen

suggests that whether a police officer is impeded should be examined on a case-bycase basis. Id. at ¶ 26.

The officers in this case were not acting as drivers in the “normal and 

reasonable movement of traffic.” C.C.O. 333.04. They were present for the specific 

purpose of investigating Jackson’s conduct. Additionally, the officers testified that 

they positioned themselves to prevent Jackson’s car from moving. The evidence at 

trial indicated that there were cars in the area; however, no testimony was presented 

to establish that they were impeded by Jackson’s vehicle. 
Accordingly, I would sustain appellant’s second assignment of error 

and find the conviction for impeding traffic was based on insufficient evidence. 

Because there was insufficient evidence, I would also sustain appellant’s third 

assignment of error challenging that conviction on the weight of the evidence.