[Cite as State v. Hoffman, 2017-Ohio-8024.]

STATE OF OHIO MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, 

V. 

RYAN K. HOFFMAN, 

 DEFENDANT-APPELLANT. 

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CASE NO. 15 MA 0182 

OPINION 

CHARACTER OF PROCEEDINGS: Criminal Appeal from Youngstown 

Municipal Court of Mahoning County, 

Ohio 

Case No. 14 TRC 4782 

JUDGMENT: Affirmed 

APPEARANCES: 

For Plaintiff-Appellee Jeffrey Moliterno 

Assistant Prosecutor 

26 South Phelps Street 

Fourth Floor 

Youngstown, Ohio 44503 

For Defendant-Appellant Attorney Edward Czopur 

42 North Phelps Street 

Youngstown, Ohio 44503 

JUDGES: 

Hon. Gene Donofrio 

Hon. Cheryl L. Waite 

Hon. Carol Ann Robb 

 

 

 Dated: September 25, 2017 
[Cite as State v. Hoffman, 2017-Ohio-8024.]

DONOFRIO, J. 

{¶1} Defendant-appellant, Ryan Hoffman, appeals from a Youngstown 

Municipal Court judgment sentencing him to 90 days of incarceration following his 

guilty verdict after a jury trial on one count of operating a vehicle while under the 

influence (OVI) and one count of a malfunctioning rear license plate light. 

{¶2} Appellant was pulled over by Youngstown Police for driving without a 

working rear license plate light. Upon talking with appellant, Officer Wallace of the 

Youngstown Police Department detected a strong odor of alcohol, slurred speech of 

appellant, and redness and wateriness of appellant’s eyes. Officer Wallace then 

conducted field sobriety tests on appellant and concluded that appellant was 

operating a motor vehicle while intoxicated. Office Wallace then placed appellant 

under arrest and transported him to the Youngstown Police Department to administer 

a breathalyzer test. 

{¶3} The breathalyzer’s results were inconclusive. The reason for the 

inconclusive breathalyzer result is in dispute but ultimately not relevant to this appeal. 

Officers then noted that appellant refused to take the breathalyzer test but did not 

charge him with such refusal and only charged appellant with OVI in violation of R.C. 

4511.19(A)(1)(a), an unclassified misdemeanor as appellant had two prior OVI 

convictions within six years, and a license plate light infraction in violation of R.C. 

4513.05, a minor misdemeanor. 

{¶4} Appellant filed a motion to suppress evidence from the traffic stop which 

led to his OVI arrest. While appellant had many issues presented as the basis for his 

motion, the one at issue in this appeal was Officer Wallace’s administration of the 

field sobriety tests. 

{¶5} At the subsequent suppression hearing, appellant’s counsel limited the 

hearing to issues related to “PC for the stop and the actual field sobriety tests that 

were conducted.” (Supp. Tr. at 3). Specifically, appellant took issue with the 

administration of his horizontal gaze nystagmus (HGN) test performed by Officer 

Wallace. The issues appellant had with the HGN test are: Officer Wallace’s inability 

to list the total number of clues in the HGN test, the lack of vertical gaze nystagmus 
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(VGN), equal tracking of the eyes, and the placement of the stimulus. Appellant 

contended that all of these, taken as a whole, were not substantially compliant with 

recognized testing procedures, namely the National Highway Traffic Safety 

Administration (NHSTA) manual, as required by Ohio law and therefore should have 

been suppressed. However, the trial court denied appellant’s motion to suppress on 

the basis that the motion and supporting memorandum themselves did not state with 

particularity the issues appellant believed warranted suppression and that the motion 

itself was factually inaccurate. The matter then proceeded to trial. 

{¶6} At trial, the state called two witnesses, Officers Wallace and Short of 

the Youngstown Police Department. On cross examination of Officer Wallace, 

appellant’s counsel focused on many issues. Relevant to this appeal, appellant’s 

counsel focused on: inaccurate items that were in Officer Wallace’s report, the basis 

for stopping appellant and placing him under arrest, and potential deviations from the 

NHSTA manual during the HGN test. Appellant’s trial counsel did not ask any 

questions about the other field sobriety tests Officer Wallace performed. Officer Short 

was only involved with the administration of appellant’s breathalyzer test which is not 

at issue in this appeal. 

{¶7} At the conclusion of the state’s case-in-chief, appellant moved pursuant 

to Crim. R. 29 for a judgment of acquittal on the OVI charge. The basis of appellant’s 

motion was he was being charged with OVI as an unclassified misdemeanor as he 

had received two prior OVI convictions within six years of the charge at issue. 

Appellant argued that in order to be convicted of OVI as an unclassified 

misdemeanor, the State had to prove beyond a reasonable doubt that appellant had 

received prior OVI convictions, which the State did not do in its case-in-chief. 

Appellant also argued that because Officer Wallace admitted on cross-examination 

that he deviated from the NHSTA manual in some respects during appellant’s HGN 

test that his Crim.R. 29 motion should be granted. The trial court denied this motion. 

{¶8} Appellant was then called as the sole witness for the defense. During 

direct examination of appellant, he asserted that he was on his way to a neighbor’s 
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birthday party and had not been drinking on the night of his arrest. Appellant also 

asserted that he had used Listerine mouth wash prior to leaving for the party. Near 

the end of appellant’s direct examination, appellant voluntarily admitted that he had 

prior criminal convictions. Appellant’s counsel asked a few more follow up questions 

which led to appellant recounting the details surrounding at least one prior OVI 

conviction. 

{¶9} At the conclusion of appellant’s case-in-chief, he renewed his Crim.R. 

29 motion which the trial court denied. The case was then given to the jury for 

deliberation. The jury returned a verdict of guilty on both counts. On October 14, 

2015, the trial court then sentenced appellant to a $1,000.00 fine plus court costs, 90 

days of incarceration, three years of intensive probation, three years operator’s 

license suspension, a drug and alcohol assessment, and restricted plates and 

ignition interlock for driving privileges. Appellant timely filed this appeal on October 

14, 2015. Appellant now raises three assignments of error. 

{¶10} Appellant’s first assignment of error states: 

THE TRIAL COURT ERRED BY DENYING APPELLANT’S 

MOTION TO SUPPRESS, RELATIVE TO THE HGN TEST, AS THE 

STATE FAILED TO SHOW SUBSTANTIAL COMPLIANCE WITH 

TESTING PROCEDURES. 

{¶11} Appellant argues the State failed to show by clear and convincing 

evidence that Officer Wallace’s administration of appellant’s HGN test was in 

substantial compliance with relevant testing guidelines, particularly, the NHSTA 

manual. Specifically, appellant argues that the HGN test was flawed due to Officer 

Wallace’s inability to: recall the total number of possible clues of intoxication an HGN 

test can yield, recall if he checked for vertical gaze nystagmus, check for equal 

tracking of the eyes prior to administering the HGN test, and his inability to properly 

position the stimulus during the HGN test. 

{¶12} A motion to suppress presents a mixed question of law and fact. When 
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considering a motion to suppress, the trial court assumes the role of trier of fact and 

is therefore in the best position to resolve factual questions and evaluate witness 

credibility. State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372, 797 N.E.2d 71, 

¶ 8. The appellate court must accept the trial court’s findings of fact if they are 

supported by competent and credible evidence. Id. Accepting these facts as true, the 

appellate court must then independently determine, without deference to the 

conclusion of the trial court, whether the facts satisfy the applicable legal standard. 

Id. 

{¶13} In its journal entry on appellant’s motion to suppress, the trial court’s 

basis for denying appellant’s motion was due to the insufficiency of the motion and 

supporting memorandum themselves. The trial court noted that no factual basis 

pertaining to the case at bar was actually raised in the motion or supporting 

memorandum. Citing State v. Johnson, 137 Ohio App. 3d 847, 739 N.E.2d 1249 

(12th Dist. 2000), which cites Crim.R. 47, a motion must state with particularity the 

grounds upon which it is made. 

{¶14} The trial court continues to note that appellant’s motion used what 

appeared to be boilerplate language that contained nothing specific to the case at 

bar. For example, appellant’s supporting memorandum to his motion to suppress 

raised 10 challenges to a breathalyzer test. However, while a breathalyzer was used 

in the case at bar, its results were inconclusive and are not at issue in this appeal. 

The trial court also notes that the supporting memorandum continues to allege that a 

trooper’s conduct was improper. “Trooper” presumably means an officer of the Ohio 

State Highway Patrol. However, no trooper was involved in this case. The trial court 

also notes that the supporting memorandum alleges appellant’s statements were 

obtained in violation of appellant’s Constitutional rights when no incriminating 

statements were made. 

{¶15} Appellant’s supporting memorandum to his motion to suppress only 

contains three facts which appear to be generic. First, it alleges that “the Trooper did 

not have a sufficient reason to conduct field sobriety tests in the first place.” Second, 
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it alleges “the Trooper asked Defendant to submit to the field sobriety tests based on 

the odor of alcohol, time of day, and red glassy eyes.” Third, it alleges “There is no 

evidence of erratic driving or any other ‘reasonable and articulable’ factors that give 

Trooper probable cause to ask Defendant to submit to the field sobriety tests.” 

{¶16} The Ohio Supreme Court decided a similar case in State v. Shindler, 70 

Ohio St. 3d 54, 636 N.E.2d 319 (1994). In Shindler, defendant-appellee Shindler filed 

a motion to suppress evidence stemming from an OVI arrest that was a virtual copy 

of a sample motion found in Ohio Driving Under the Influence Law (1990) 136-137, 

Section 11.16. However, the Ohio Supreme Court ruled this motion and its supporting 

memorandum were sufficient because they “set forth some underlying facts in the 

memorandum in support of the motion.” 

{¶17} The case at bar is distinguishable from Shindler because appellant’s 

supporting memorandum alleges very few facts with any specificity and, in a few 

instances, incorrect facts. As the trial court noted, the supporting memorandum made 

three references to a “Trooper.” However, no trooper was involved. The only reason 

relevant to this appeal appellant cited in his motion to suppress was number seven 

which stated “The field sobriety tests administered to the Defendant were not 

administered in strict compliance with standardized testing procedures.” However, no 

facts in appellant’s supporting memorandum alleged any deviations from any testing 

procedures. Moreover, field sobriety tests must be administered only in substantial 

compliance and not strict compliance. R.C. 4511.19(D)(4)(b), State v. Schmitt, 101 

Ohio St. 3d 79, 2004-Ohio-37, 801 N.E.2d 446 ¶ 9 (2003). Ultimately, appellant’s 

motion to suppress did not satisfy Crim.R. 47. 

{¶18} When a defendant’s motion to suppress raises only general claims, the 

burden imposed on the state is fairly slight. State v. Keene, 7th Dist. No. 08 MA 0095, 

2009-Ohio-1201 citing State v. Johnson, 137 Ohio App. 3d 847, 739 N.E.2d 1249 (2d 

Dist. 2000). With a general motion to suppress, the state is only required to 

demonstrate, in general terms, that it substantially complied with the regulations. Id.

Unless a defendant raises a specific issue in a motion, specific evidence is not 
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required. Id. 

{¶19} In this case, at the suppression hearing, the state offered the NHSTA 

manual as evidence of relevant testing standards, Officer Wallace testified that he 

was trained in those standards, Officer Wallace testified as to how he implemented 

the field sobriety tests with regards to appellant, and Officer Wallace testified that he 

concluded appellant was operating a vehicle while intoxicated. This satisfies the 

standard set forth in Keene and Johnson. As such, the trial court ruled properly in 

denying appellant’s motion to suppress. 

{¶20} Accordingly, appellant’s first assignment of error is without merit and 

overruled. 

{¶21} Appellant’s second assignment of error states: 

APPELLANT’S CONVICTION WAS BASED ON INSUFFICIENT 

EVIDENCE AND/OR APPELLANT’S RULE 29 MOTION SHOULD 

HAVE BEEN GRANTED AS THE STATE FAILED TO PRESENT ANY 

EVIDENCE IN ITS CASE IN CHIEF, OR PRESENT THE JURY WITH 

THE ISSUE OF PRIOR CONVICTIONS SUFFICIENT TO ELEVATE 

THE OFFENSE FROM A MISDEMEANOR OF THE FIRST DEGREE 

TO AN UNCLASSIFIED MISDEMEANOR. 

{¶22} Appellant argues that he was charged with OVI as an unclassified 

misdemeanor which is a different degree than the first degree misdemeanors 

associated with normal OVI charges. As an unclassified misdemeanor, appellant 

claims the state failed to establish one of the elements of the offense beyond a 

reasonable doubt in its case-in-chief, particularly, the state did not prove that 

appellant had been convicted of OVI in the past. 

{¶23} A determination of guilt or innocence is appropriate for a jury when 

reasonable minds can come to different conclusions as to whether each material 

element of a crime has been proved beyond a reasonable doubt. State v. Bridgeman, 

55 Ohio St. 2d 261, 381 N.E.2d 184 (1978). On appeal, the relevant inquiry for the 
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appellate court is whether, after reviewing the evidence in the light most favorable to 

the prosecution, any rational trier of fact could have found the essential elements of 

crime beyond a reasonable doubt. State v. Cloud, 7th Dist. No. 98 CO 51, 2001-

Ohio-3396. 

{¶24} The original citation issued to appellant listed his offenses as OVI in 

violation of R.C. 4511.19(A)(1)(a) and a malfunctioning license plate light in violation 

of R.C. 4513.05. The state restated the same code sections in its bill of particulars 

that was requested by appellant. The state stated the same OVI code section again 

in response to appellant’s Crim.R. 29 motion at trial. R.C. 4511.19(A)(1)(a) does not 

list prior OVI convictions as an element to the offense of OVI. 

{¶25} The Ohio Supreme Court has provided guidance on this issue. In State 

v. Allen, 29 Ohio St. 3d 53, 506 N.E.2d 199 (1987), appellee Allen challenged the 

trial court’s admission of his prior OVI convictions at his OVI trial. Originally, Allen’s 

counsel agreed to stipulate that Allen had been convicted of OVI in the past but only 

on the condition that the prior convictions be read into the record outside the 

presence of the jury. All parties agreed but then the trial court read Allen’s prior OVI 

convictions into the record in the presence of jury over Allen’s objection. The court of 

appeals reversed and remanded the trial court’s decision on the grounds that prior 

convictions were not an element of the offense. Additionally, the court of appeals 

held that the existence of previous OVI convictions did not elevate the offense to one 

of a more serious degree. 

{¶26} Affirming the decision of the court of appeals, the Ohio Supreme Court 

in Allen held that neither the OVI statute nor the relevant penalty statute provided that 

the degree of the offense is increased due to previous OVI convictions, only the 

penalty is enhanced. Id. at 55. 

{¶27} Applying Allen to the case at bar, the trial court ruled properly in 

denying appellant’s Crim.R. 29(A) motion on the grounds that the state did not need 

to prove appellant had been convicted of OVI in the past. Following the Allen

decision, appellant’s OVI charge as an unclassified misdemeanor is an enhanced 
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penalty from the standard OVI as a first degree misdemeanor. The only time the trial 

court should have considered appellant’s prior OVI convictions was at sentencing, 

which the trial court did. 

{¶28} Accordingly, appellant’s second assignment of error is without merit and 

overruled. 

{¶29} Appellant’s third assignment of error states: 

APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF 

COUNSEL AS TRIAL COUNSEL ELICITED TESTIMONY THAT WAS 

OTHERWISE INADMISSIBLE, RELATIVE TO APPELLANT’S PRIOR 

OVI CONVICTIONS AND PREJUDICED APPELLANT. 

{¶30} Appellant argues that his trial counsel was ineffective because his trial 

counsel elicited information from him on direct examination that would have 

otherwise been inadmissible. Namely, appellant argues that his trial counsel 

introduced evidence of appellant’s two prior OVI convictions on direct examination of 

appellant. Appellant contends that these convictions prejudiced the jury against him 

and eliciting such testimony constituted ineffective assistance of counsel. 

{¶31} When a convicted defendant complains of the ineffectiveness of 

counsel’s assistance, the defendant must show that counsel’s representation fell 

below an objective standard of reasonableness. State v. Sanders, 94 Ohio St. 3d 

150, 2002-Ohio-350, 761 N.E.2d 18 citing Strickland v. Washington, 466 U.S. 668, 

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Furthermore, the defendant must show that 

there is a reasonable probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different. Id. A reasonable probability is a 

probability sufficient to undermine confidence in the outcome. Id. Strickland charges 

reviewing courts to apply a heavy measure of deference to counsel’s judgments and 

to indulge a strong presumption that counsel’s conduct falls within a wide range of 

reasonable professional assistance. Id. 

{¶32} The beginning of the admission of appellant’s prior OVI convictions 
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appears to have come from appellant himself and not by a question from his trial 

counsel. In response to a question about whether appellant informed one of the 

officers administering his breathalyzer test if he had COPD, appellant answered: 

“I told him I had COPD. I told him twice as they were trying to sit there 

because he kept telling me he was going to give me a refusal and stick 

me in jail. I said well, do what you got to do. I said I am trying to do the 

test and he kept telling me I wasn’t doing it right. I said I have COPD. I 

even showed him the [s]car on my chest, you know. And when my 

anxiety kicks up, you know, a cop pulls you over, you get nervous, I 

don’t care who you are. I had mistakes before in my life but I am 

passed all that. So whenever I have had those mistakes I pled guilty 

and settled out and did what I had to do. I wouldn’t drag this all the way 

through to a jury trial if it was something that I did. I am a man and I do 

keep my word. That’s how I feel about it.” 

Trial Tr. Pg. 107, Ln. 11-25. 

{¶33} Aside from appellant’s Crim.R. 29(A) motion that was argued outside 

the presence of the jury, there is no evidence in the record of appellant’s prior OVI 

convictions prior to this point. Appellant voluntarily introduced the fact that he had 

“mistakes” in the past that he pled guilty to. At no point prior to this answer did 

appellant’s trial counsel directly ask appellant about his prior OVI convictions. 

Appellant’s trial counsel only addressed the convictions after appellant volunteered 

the information himself. After some follow up questions from his trial counsel, 

appellant elaborated on the circumstances relating to at least one of his prior OVI 

convictions, which were: his wife had left him, she then moved to Cincinnati, and she 

was awarded custody of their child. (Trial Tr. Pg. 108, Ln 4-16). Appellant elaborated 

further that his response to these events was to “stay drunk and I paid the price for it 

and saw the evil of my ways and woke up and got myself back together again.” (Trial 

Tr. Pg. 108, Ln. 17-24). 
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{¶34} This line of questioning does not fall below an objective standard of 

reasonableness to satisfy the first element of the Strickland test. Appellant opened 

the door to his prior convictions himself and it appears from the transcript that his trial 

counsel attempted to turn these prior convictions in a positive light. Namely, by giving 

the specific circumstances surrounding at least one of the prior convictions, that 

appellant pled guilty to OVI twice in the past because he committed the crimes. 

However, appellant contended he was innocent of the charge at issue which is why 

he did not plead guilty in the case at bar. 

{¶35} Moreover, there is no indication that, but for this line of questioning, the 

result of the trial would have been different which is required to satisfy the second 

element of the Strickland test. The state elicited largely uncontested testimony at trial 

that Officer Wallace stopped appellant’s car because of a license plate light 

infraction, Officer Wallace was trained in performing field sobriety tests, Officer 

Wallace performed field sobriety tests on appellant, and appellant exhibited multiple 

signs of intoxication. There is no indication that the jury predominantly focused on 

appellant’s prior OVI convictions rather than the testimony of Officer Wallace that, in 

his opinion, appellant was operating a motor vehicle while intoxicated. 

{¶36} Assuming it was originally appellant’s trial counsel’s decision to have 

appellant testify at trial about his prior OVI convictions on direct examination, there is 

still no indication that this testimony rose to the level of ineffective assistance of 

counsel. It appears from the trial transcript that appellant was trying to explain that he 

is a man who admits his mistakes when he makes them and that he truly believed he 

was not guilty of OVI in the case at bar. 

{¶37} Accordingly, appellant’s third assignment of error is without merit and 

overruled. 
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{¶38} For the reasons stated above, the trial court’s judgment is hereby 

affirmed. 

Waite, J., concurs. 

Robb, P.J., concurs.