[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 30th day of September , 2011. 

 . . . . . . . . . . 

BETSY A. DEEDS, Atty. Reg. No. 0076747, Assistant 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 of 
2

OVI within twenty years, and driving under suspension. He appeals from his convictions. 

{¶ 2} On July 21, 2009, Hodge was stopped for driving under suspension after a 

police officer ran a routine check 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 conducted 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 refusing 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 trial court sentenced Hodge to concurrent sentences of 365 days 

in jail for the OVI and 180 days for driving 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 address the assignments in the 

order that facilitates 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. 
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{¶ 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 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 (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 reversed and a new trial ordered. The discretionary 

power to grant a new trial should be exercised 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 Officer 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 description drove the vehicle away from the bar, Officer Neiford 
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made a traffic stop. He did not observe any other 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 was on his way to an AA meeting. The paper 

indicated that Hodge was not allowed to consume alcoholic beverages before driving under 

the privileges. Officer Neiford’s computer did not indicate that Hodge had been granted 

any driving privileges. 

{¶ 12} Officer Neiford detected “a slight odor of alcoholic beverages 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 factors as indicators of intoxication. Officer 

Neiford arrested Hodge for driving under suspension and then conducted a horizontal gaze 

nystagmus (HGN) test. Neiford observed all six indicators of intoxication during the HGN 

test. 

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

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

conduct more field sobriety tests because of Hodge’s belligerence 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 addition to driving under suspension, and because 

department policy called for conducting an inventory and towing a car when an arrest for 
5

OVI is made, Officer Neiford returned to Hodge’s car to inventory its contents and arrange 

for the towing. After the vehicle was towed, Officer Neiford transported Hodge to jail. 

{¶ 14} Officer Penrod responded as backup after Neiford stopped Hodge. Officer 

Penrod testified that he had detected an odor of an alcoholic beverage when he approached 

Hodge, that Hodge’s eyes had been watery and bloodshot, and that his speech had been 

slurred, but not severely. Officer 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, testified that he “smelled a strong odor of alcohol” on Hodge at the 

jail. Barker also observed slurred speech, argumentativeness, and agitation. 

{¶ 16} Hodge did not testify and did not call any witnesses at trial, but his attorney 

cross-examined the State’s witnesses 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 officer 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 manner in which he had conducted 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. 
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{¶ 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 offense of operating 

a motor vehicle under the influence of alcohol. For certain repeat offenders, R.C. 

4511.19(A)(2) adds the additional element of refusing 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 are 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 within 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 influence of alcohol or drugs and 

shall not, upon being asked by a law enforcement officer 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 violation of R.C. 4511.19(A)(2), the State was 

required to prove (in addition to the prior conviction) 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 improperly conducted and prejudicial 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, through cross-examination, that the results of the test were 
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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 intoxication, including the odor of an alcoholic 

beverage, slurred speech, bloodshot eyes, argumentativeness, and failure 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 was 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 inconsistencies in Officer Neiford’s testimony about when 

he decided to arrest Hodge for OVI, which 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 these 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 testimony. 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 results of the HGN test conducted when he was 

stopped by the police. 

{¶ 27} Trial counsel is entitled to a strong presumption 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 reverse a conviction based on ineffective 

assistance of counsel, it must be demonstrated that trial counsel’s conduct fell below an 

objective standard of reasonableness and that his errors were 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 trial strategy cannot form the basis of a finding of ineffective 

assistance of counsel. Id. at 524-525. 

{¶ 28} Hodge claims that his counsel was ineffective in failing to seek suppression 

of the HGN test results because Officer Neiford’s conduct was “not remotely in substantial 
9

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 reasonable 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 Neiford about the procedural requirements for 

conducting the HGN test, Hodge did not offer evidence regarding those requirements, and 

Officer Neiford did not concede that he had failed to comply with 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 record does not demonstrate that Officer Neiford 

conducted the HGN test improperly and, therefore, that a motion to suppress would have 

been sustained. Furthermore, we cannot conclude that Hodge was prejudiced by his 

attorney’s failure to file a motion 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 conclude that there is a reasonable probability that 

counsel’s failure to file a motion to suppress affected the outcome of the case or that Hodge 

was denied the effective assistance of counsel. 
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{¶ 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