[Cite as State v. Hodge , 2011-Ohio-5023.]

IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO

STATE OF OHIO : Plaintiff-Appellee : C.A. CASE NO. 2010 CA 11

v. : T.C. NO. TRC0907537 BRUCE HODGE : (Criminal appeal from Municipal Court) Defendant-Appellant :

:

. . . . . . . . . . O P I N I O N

Rendered on the 30 th day of September , 2011.

. . . . . . . . . . BETSY A. DEEDS, Atty. Reg. No. 0076747, Assi stant Fairborn Prosecutor, 510 West Main Street, Fairborn, Ohio 45324 Attorney for Plaintiff-Appellee MICHAEL T. COLUMBUS, Atty. Reg. No. 0076799, 2100 First National Plaza, 130 W. Second Street, Dayton, Ohio 45402 Attorney for Defendant-Appellant

. . . . . . . . . . FROELICH, J. {¶ 1} Bruce Hodge was found guilty by a jury of operating a vehicle under the influence of drugs or alcohol (OVI), refusing to submit to a chemical test to determine

whether he was under the influence of alcohol or drugs when he had a prior conviction of2 OVI within twenty years, and driving under su spension. He appeals from his convictions. {¶ 2} On July 21, 2009, Hodge was stopped for driving under suspension after a police officer ran a routine ch eck of his license plate. During the stop, police officers detected an odor of an alcoholic beverage and observed other indicia that Hodge was under the influence of drugs or alcohol. They conducte d one field sobriety test and took Hodge to the police station jail, where he refused to submit to a breathalyzer test. Hodge was cited for OVI (with two prior convictions), for refusi ng to submit to the test, and for driving under suspension. {¶ 3} The charges were tried to a jury in the Fairborn Municipal Court, and Hodge was found guilty on all three charges. The OVI charge and refusal to submit to a chemical test charge merged. The tr ial court sentenced Hodge to c oncurrent sentences of 365 days in jail for the OVI and 180 days for drivin g under suspension, with 180 days and 170 days suspended, respectively, on the condition that he have no similar violations for five years. His driver’s license was suspended for five years, and he was fined $850. Hodge appeals from his convictions, raising two assignments of error. We a ddress the assignments in the

order that facilita tes our discussion. {¶ 4} The second assignment of error states: {¶ 5} “THERE EXISTED INSUFFICIENT INDICIA OF IMPAIRMENT AND

THE JURY’S VERDICTS WERE AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE.” {¶ 6} Hodge contends that his conviction for OVI was supported by insufficient evidence and was against the manifest weight of the evidence.3 {¶ 7} An argument based on the sufficiency of the evidence challenges whether the State presented adequate evidence on each element of the offense to allow the case to go to the jury or to sustain the verdict as a matter of law. State v. Thompkins (1999), 78 Ohio St.3d 380, 386. “An appellate cour t’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 belie ved, would convince the average mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus. {¶ 8} In contrast, when reviewing a judgment under a manifest-weight standard of review “‘[t]he court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be revers ed and a new trial orde red. The discretionary power to grant a new trial should be exerci sed only in the exceptional case in which the evidence weighs heavily against the conviction.’” Thompkins, 78 Ohio St.3d at 387, quoting State v. Martin (1983), 20 Ohio App.3d 172, 175. {¶ 9} At trial, the State offered the following evidence: {¶ 10} On July 21, 2009, Fairborn Police Offi cer Brian J. Neiford “conducted a random BMV inquiry on the license plate” of a vehicle while it was parked outside the Sugar Melons bar. As a result of the inquiry, Officer Neiford discovered that the owner of the car, Bruce Hodge, was under a “failure to reinstate” suspension of his driver’s license. When a man matching Hodge’s descrip tion drove the vehicle away from the bar, Officer Neiford4 made a traffic stop. He did not observe any ot her traffic violations before making the stop. {¶ 11} When Officer Neiford questioned Hodge about the suspension, Hodge presented a paper stating that he had driving privileges to and from work and Alcoholics Anonymous meetings; Hodge claimed that he wa s on his way to an AA meeting. The paper indicated that Hodge was not allowed to cons ume alcoholic beverage s before driving under the privileges. Officer Neiford’s computer did not indicate that H odge had been granted any driving privileges. {¶ 12} Officer Neiford detected “a slight odor of alcoholic beve rages on or about” Hodge. He also observed that Hodge’s eyes were “bloodshot and glassy,” that his face was “flushed,” and that his speech was “slow and deliberate” and “appeared to be slurred.” Officer Neiford recognized all of these fact ors as indicators of intoxication. Officer Neiford arrested Hodge for driving under susp ension and then conducted a horizontal gaze nystagmus (HGN) test. Neifor d observed all six indicators of intoxication during the HGN

test. {¶ 13} Hodge became more argumentative and uncooperative as the encounter

continued. Officer Neifor d testified that he did not take the handcuffs off of Hodge to

conduct more field sobrie ty tests because of Hodge’s bellig erence and insults. Neiford also testified that Hodge asked the same questions repeatedly, even after the questions had been answered. After Officer Neiford got into the cruiser with Hodge and began to transport him to the jail, Neiford smelled a stronger odor of an alcoholic beverage. Realizing that he would be arresting Hodge for OVI in add ition to driving under suspension, and because department policy called for c onducting an inventory and towing a car when an arrest for5 OVI is made, Officer Neiford returned to Hodg e’s car to inventory its contents and arrange for the towing. After the vehicle was towed, O fficer Neiford transported Hodge to jail. {¶ 14} Officer Penrod responded as backup afte r Neiford stopped Hodge. Officer

Penrod testified that he had detected an odor of an alcoho lic beverage when he approached Hodge, that Hodge’s eyes had been watery and bloodshot, and that his speech had been slurred, but not severely. O fficer Penrod testified that, in his opinion, Hodge had been “under the influence, intoxicated.” {¶ 15} Finally, Steven Barker, who worked at the Fairborn jail and processed Hodge the night of his arrest, testif ied that he “smelled a strong odor of alcohol” on Hodge at the jail. Barker also observed slurred sp eech, argumentativene ss, and agitation. {¶ 16} Hodge did not testify and did not call any witnesses at trial, but his attorney

cross-examined the State’s witn esses about their observations and, with respect to Officer Neiford, his compliance with police procedures in conducting the HGN test. Regarding the HGN test, Officer Neiford acknowledged that an o fficer is supposed to be “kind of on level” with a person when conducting the test. He acknowledged that he (Officer Neiford) had been standing outside the cruiser and Hodge had been sitting in the backseat of the cruiser

when the test was conducted. When questioned about whether this procedure violated his training and “the rule,” Officer Neiford stated that he was “unaware” that the rule addressed this issue and stated, “[i]f the person is taller or shorter than you, it’s going to be the same thing.” He also stated that the manne r in which he had c onducted the HGN test was consistent with his training. Hodge also played the videotape of the traffic stop for the jury, to refute the State’s evidence that his speech had been slurred.6 {¶ 17} Hodge was convicted under R.C. 4511.19(A )(1)(a) and (A)(2). Violations of R.C. 4511.19(A)(1)(a) and R.C. 4511.19(A)(2) are both classified as the o ffense of operating

a motor vehicle under the infl uence of alcohol. For certain repeat offenders, R.C. 4511.19(A)(2) adds the additional element of refu sing to submit to a chemical test. The distinction between these offenses is that the minimum, mandatory jail terms are greater for a violation of R.C. 4511.19(A)(2) than they ar e for a violation of R.C. 4511.19(A)(1)(a). See

State v. Turner , Portage App. No. 2007-P-0090, 2008-Ohio-3898, ¶42. {¶ 18} R.C. 4511.19(A)(1)(a) states that “[n]o person shall operate any vehicle, streetcar, or trackless trolley w ithin this state, 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.” R.C. 4511.19(A)(2) further provides that a person who has been previously convicted of OVI within twenty years shall not operate a vehicle under the influe nce of alcohol or drugs and shall not, upon being asked by a law enforcement o fficer to submit to a chemical test or tests and being advised by the officer of the consequences of refusal or submission to the test or tests, refuse to submit to the test or tests. {¶ 19} Accordingly, to establish the viola tion of R.C. 4511.19(A)(2), the State was required to prove (in addition to the prior c onviction) that Hodge had operated a vehicle under the influence of drugs or alcohol and that he had refused to submit to a chemical test. Hodge contends that, “[a]bsent the improperl y conducted and prejudici al HGN test results, the facts do not support a finding of impairment.” We disagree. {¶ 20} Even if the jury had disregarded the result of the HGN field sobriety test based on Hodge’s suggestion, thr ough cross-examination, that th e results of the test were7 unreliable, there was evidence from which the jury could have concluded, beyond a reasonable doubt, that Hodge was guilty of OVI. Two police officers testified to numerous physical and behavioral indications of into xication, including the odor of an alcoholic beverage, slurred speech, bloodshot eyes, argume ntativeness, and failu re to comprehend or retain answers to questions. The HGN test provided further support for the officers’ conclusion that Hodge was under the influence of alcohol, but it certainly was not the only evidence pointing to Hodge’s intoxication. The evidence was legally sufficient to support Hodge’s conviction. {¶ 21} Hodge also argues that his conviction wa s against the manifest weight of the evidence. He claims that Officer Neiford “contradicted [him]self as to when and why he decided to charge” Hodge with OVI and that it “seems evident that [Neiford’s] dislike for [Hodge] was the reason for the OVI charge.” {¶ 22} There were some inconsis tencies in Officer Neifor d’s testimony about when he decided to arrest Hodge for OVI, whic h necessitated impounding Hodge’s car. And Officer Neiford acknowledged that Hodge had accused him of “planting some things” in Hodge’s car and of “harassment,” and that th ese accusations “got under [his] skin.” But Officer Neiford denied charging Hodge with OVI because he was angry with Hodge.

Neiford was cross-examined about the inconsistencies in his te stimony. The jury was in the best position to assess the credibility of the witnesses’ testimony and to resolve conflicts in the evidence. Based on the evidence presented, the jury did not clearly lose its way or create a manifest miscarriage of justice when it convicted Hodge. Thus, his conviction was not against the manifest weight of the evidence.8 {¶ 23} The second assignment of error is overruled. {¶ 24} Hodge’s first assignment of error states: {¶ 25} “FAILURE TO MOVE TO SUPPRESS THE HORIZONTAL GAZE

NYSTAGMUS TEST RESULTS RESULTED IN INEFFECTIVE ASSISTANCE OF

COUNSEL.” {¶ 26} Hodge claims that he was denied the effective assistance of counsel because counsel did not move to suppress the resu lts of the HGN test conducted when he was stopped by the police. {¶ 27} Trial counsel is entitled to a strong pr esumption that his or her conduct falls within the wide range of reasonable assistance. Strickland v. Washington (1984), 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674. To revers e a conviction based on ineffective assistance of counsel, it must be demonstrated that trial counsel’s conduct fell below an objective standard of reasonabl eness and that his errors we re serious enough to create a reasonable probability that, but for the errors, the result of the trial would have been

different. Id. Deficient performance means that claimed errors were so serious that the defense attorney was not functioning as the “counsel” that the Sixth Amendment guarantees.

State v. Cook (1992), 65 Ohio St.3d 516, 524. Hindsight is not permitted to distort the assessment of what was reasonable in light of counsel’s perspective at the time, and a debatable decision concerning tria l strategy cannot form the basi s of a finding of ineffective

assistance of counsel. Id. at 524-525. {¶ 28} Hodge claims that his counsel was ine ffective in failing to seek suppression

of the HGN test results because Officer Neifor d’s conduct was “not remo tely in substantial9 compliance with the applicable regulations.” {¶ 29} The State did not rely exclusively on the HGN field sobriety test to prove that Hodge had been under the influence, nor was it required to offer proof that Hodge had failed one or more field sobriety tests. A reasona ble jury may conclude that a defendant was under the influence based only on an officer’s observations, even if no field sobriety tests or

chemical tests were administered. See State v. Gilleland , Champaign App. No. 2004 CA 1, 2005-Ohio-659, ¶19, citing State v. Flynt , Portage App. No. 2001-P-0116, 2003-Ohio-1391. The State offered evidence from three witnesses that, on the night of the offenses, Hodge exhibited physical and behavioral characteristics consistent with being under the influence. Moreover, although Hodge questioned Officer Ne iford about the proce dural requirements for conducting the HGN test, Hodge did not offer ev idence regarding those requirements, and

Officer Neiford did not concede th at he had failed to comply w ith the appropriate procedures

for administration of the HGN test. {¶ 30} We cannot conclude that trial counsel’s conduct fell below an objective standard of reasonableness, because the reco rd does not demonstrate that Officer Neiford conducted the HGN test improperl y and, therefore, that a mo tion to suppress would have been sustained. Furthermore, we cannot conclude that Hodge was prejudiced by his attorney’s failure to file a mo tion to suppress as, even without the HGN test result, there was evidence in the record to support the jury’s conclusion that he had been driving under the influence. For these reasons, we cannot concl ude that there is a reasonable probability that

counsel’s failure to file a moti on to suppress affected the outco me of the case or that Hodge

was denied the effective assistance of counsel.10 {¶ 31} The first assignment of error is overruled. {¶ 32} The judgment of the trial court will be affirmed.

. . . . . . . . . . GRADY, P.J. and FAIN, J., concur. Copies mailed to: Betsy A. Deeds Michael T. Columbus Hon. Beth W. Root