[Cite as State v. Sullivan, 2017-Ohio-8937.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

HANCOCK COUNTY 

 

STATE OF OHIO, 

 CASE NO. 5-17-09 

 PLAINTIFF-APPELLEE, 

 v. 

WILLIAM E. SULLIVAN, JR., O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Findlay Municipal Court 

Trial Court No. 16TRC05077 

Judgment Affirmed 

Date of Decision: December 11, 2017 

 

APPEARANCES: 

Mark A. Davis for Appellant 

 
Case No. 5-17-09 

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WILLAMOWSKI, J. 

{¶1} Defendant-appellant William E. Sullivan, Jr. (“Sullivan”) appeals the 

judgment of the Municipal Court of Findlay, Ohio, alleging that (1) the trial court 

erred in denying his motion to suppress the results of his Horizontal Gaze 

Nystagmus Test (“HGN Test”); (2) the trial court erred in denying his Crim.R. 29 

motion for acquittal; (3) the trial court erred by overruling his objections to the 

admission of testimony that referenced research discussing the accuracy of the HGN 

Test; and (4) the jury returned a verdict that was against the manifest weight of the 

evidence. For the reasons set forth below, the judgment of the lower court is 

affirmed. 

Facts and Procedural History 

{¶2} Officer Michael Cortez (“Cortez”) is a deputy sheriff at the Hancock 

County Sheriff’s Office. Trial Tr. at 29. At 9:11 p.m. on May 20, 2016, Cortez was 

on patrol when he received a dispatch that reported a single vehicle, non-injury 

accident had occurred in his vicinity. Id. at 42-43. When he arrived at the scene of 

the accident, he saw Sullivan’s vehicle up against a utility pole in a ditch. Id. at 43-

44. The utility pole was cracked about fifteen to twenty feet above the ground. Id. 

Cortez determined that Sullivan—the driver of the vehicle—had driven through a 

stop sign, lost control of his vehicle, and hit the utility pole. Id. at 53. 

 
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{¶3} The fire department had already arrived at the scene of the accident, and 

Sullivan was standing about fifty to seventy-five feet away from his car. Id. at 44-

45. Cortez approached Sullivan and began asking him some questions. Id. at 46. 

Cortez noticed that Sullivan was slow in responding to these questions and seemed 

lethargic. Id. No injuries were apparent to Cortez from Sullivan’s appearance. Id. 

at 47-48. Cortez asked Sullivan if he needed any medical attention or if he had any 

injuries. Id. at 47. In response, Sullivan indicated that he was not injured. Id. 

Cortez and Sullivan then went into Cortez’s cruiser to complete the report. Id. at 

51. Cortez noticed that Sullivan took very deliberate and focused actions as he 

moved towards the cruiser. Id. at 51. Cortez also noticed that Sullivan, struggling 

to keep his balance, stumbled as he walked and stabilized himself by holding onto 

the cruiser. Id. at 52. 

{¶4} When Cortez got into the cruiser with Sullivan, he smelled “a strong 

odor of an alcoholic beverage.” Id. at 53. In the light of the cruiser, he could also 

see that Sullivan’s eyes were bloodshot and his face was flushed. Id. Cortez then 

asked Sullivan questions about the route on which Sullivan was driving. Id. at 54. 

Sullivan responded by claiming that he was on Interstate 280 by Toledo. Id. In fact, 

Sullivan and Cortez were at the intersection of State Route 613 and Township Road 

136, which was at least forty-five minutes away from where he believed he was on 

Interstate 280. Id. at 55. When asked, Sullivan denied having any alcoholic 

beverages that evening. Id. 
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{¶5} At this point, Cortez asked Sullivan to submit to a portable breath test. 

Id. at 56. Sullivan declined to take the portable breath test but subsequently agreed 

to submit to field sobriety tests. Id. Cortez then administered the HGN Test. Id. 

As Cortez administered the HGN Test, he observed six out of the six clues that are 

indicators of being under the influence in Sullivan’s eyes. Id. at 69-70. Doc. 12. 

Since the weather outside was becoming inclement, Cortez decided not to proceed 

with further field sobriety tests. Trial Tr. 90. On the basis of the HGN Test results 

and his other observations, Cortez arrested Sullivan for operating a vehicle while 

under the influence. Doc. 1. The complaint was then filed on May 24, 2016. Doc. 

1. 

{¶6} On July 25, 2016, Sullivan filed a motion to suppress the results of the 

HGN Test. Doc. 8. At the suppression hearing on October 12, 2014, Cortez testified 

as to his observations on the night of May 20, 2016. Suppression Hearing Tr. 11. 

The Defense then called Dr. William R. Bauer (“Dr. Bauer”) as an expert witness. 

Id. at 47. Dr. Bauer, a neurologist, testified that he believed that Sullivan had a 

traumatic brain injury as the result of the car accident. Id. at 55. He further testified 

that he believed the six clues that Cortez observed during the HGN Test were 

symptoms of Sullivan’s traumatic brain injury and were not indicators of 

intoxication. Id. at 51-52, 55. He also believed that the flushed face, lethargic 

movements, slow responses to questions, and glassy eyes were the result of the 

traumatic brain injury caused by the accident. Id. at 56-58. Dr. Bauer’s conclusions 
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on Sullivan’s conditions were based solely on a telephone conversation with 

Sullivan that occurred on August 14, 2016. Id. at 53. On cross examination, Dr. 

Bauer admitted that he had not seen Sullivan in person until the hearing, had no 

consultations with Sullivan prior to their conversation on August 14, 2016, and was 

not involved in any treatments for Sullivan’s alleged traumatic brain injury. Id. at 

59-60, 61-62. The Defense did not present any evidence to corroborate the opinions 

of its expert witness. On December 28, 2016, the trial court overruled Sullivan’s 

motion to suppress the results of the HGN Test. Doc. 12. 

{¶7} This case proceeded to trial on April 20, 2017. Trial Tr. 1. At trial, 

Cortez testified about his experience in law enforcement and his observations on the 

night that he cited Sullivan for operating a vehicle while under the influence. Id. at 

29. He testified that he, in his twenty-three-year long career in law enforcement, 

had made over four hundred OVI arrests. Id. at 29, 41. He also stated that he has 

been an instructor who trains law enforcement officers on how to administer the 

HGN Test for the last fifteen years. Id. at 36. After explaining the workings of the 

HGN Test, he testified that he had observed six out of six clues in Sullivan’s eyes. 

Id. at 58-65, 69. During this portion of his testimony, the following exchange took 

place between the prosecutor and Cortez: 

[Prosecutor]: What if anything did [seeing six of six clues] mean 

to you? 

[Cortez]: That means to me that according to the research that 

was conducted— 
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 [Defense Counsel]: Objection. 

 The Court: Overruled. 

[Cortez]: —according to the research that was conducted that is 

provided to us through our training that—the original research 

was done by the Southern California Research Institute, 

contracted by the National Highway Traffic Safety 

Administration. That began in 1975. In 1977 they did a field 

study only in California and again in 1977 they did another field 

and laboratory study and again in 1983 they did one in North 

Carolina, Maryland, Washington D.C., and Virginia and as a 

result of those particular— 

[Defense Counsel]: Objection, your honor, this is hearsay 

testimony. 

The Court: The question was what did the observations of the six 

clues mean to the officer. 

 [Cortez]: I’m just trying to explain so the jury understands. 

The Court: Without getting into the several research matters that 

aren’t before the court. 

[Prosecutor]: Okay. 

The Court: If you want to take him back to the basis of the 

training * * *. 

[Prosecutor]: I’ll ask a question to help get all of that aside, what 

do these results of Mr. Sullivan indicate to you? 

[Cortez]: To simply put it, they did research and they found that 

when these four clues are— 

[Defense Counsel]: Objection. 

The Court: Sustained. 
Case No. 5-17-09 

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[Prosecutor]: Just if you can, Sergeant Cortez, so having 

observed those six clues, three in each eye what did that mean to 

you about Mr. Sullivan on May 20, 2016? 

[Cortez]: That there was alcohol and/or drugs of abuse. 

[Prosecutor]: Where? 

[Cortez]: In his system. 

Id. at 68-69. On appeal, Sullivan asserts that the State—through this exchange—

improperly bolstered Cortez’s testimony regarding the HGN Test results with 

inadmissible hearsay evidence. After Cortez’s testimony, the State rested. Defense 

counsel then made a Crim.R. 29 motion, arguing that the State did not prove that 

Sullivan had consumed alcohol and, therefore, did not prove that Sullivan had 

alcohol in his system on the night of the alleged offense. Id. at 103. The trial court 

overruled Sullivan’s Crim.R. 29 motion. Id. at 106. 

{¶8} During the Defense’s case-in-chief, Sullivan again called Dr. Bauer as 

an expert witness. Id. at 109. During his testimony, Dr. Bauer again stated his belief 

that Sullivan had suffered a traumatic brain injury; that the indictors of intoxication 

observed by Cortez were actually symptoms of this injury; and that the HGN Test 

results were not reliable under these circumstances. Id. at 121, 123, 125-126. On 

cross examination, Dr. Bauer admitted that he had never performed a physical 

examination of Sullivan and had not viewed Sullivan’s medical history records. Id. 

at 136. Dr. Bauer also admitted that his consultation was over the phone; that this 

consultation occurred three months after the accident on May 20, 2016; that he had 
Case No. 5-17-09 

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never talked with Sullivan in person outside of the courtroom; and that he had not 

been involved in any treatments for this alleged traumatic brain injury. Id. at 136, 

145. The jury found Sullivan guilty of violating R.C. 4511.19(A)(1)(a) on April 

20, 2017. Doc. 34. Sullivan was sentenced at that time. Doc. 22-23. 

{¶9} Sullivan filed notice of appeal on April 21, 2017. Doc. 27. On appeal, 

he raises four assignments of error, which read as follows: 

First Assignment of Error 

The trial court erred by denying the motion to suppress the HGN 

Test. 

Second Assignment of Error 

The trial court erred by denying defendant’s Rule 29 motion. 

Third Assignment of Error 

The trial court erred in overruling objections relating to HGN 

research. 

Fourth Assignment of Error 

The guilty jury verdict was against the manifest weight of the 

evidence. 

We will consider the first and third assignments of error before considering the 

second and fourth assignments of error. 

First Assignment of Error 

{¶10} In his first assignment of error, Sullivan argues that the trial court erred 

in denying his motion to suppress the HGN Test. In this case, Sullivan was in an 
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accident prior to having the HGN Test administered. At the suppression hearing, 

his expert witness stated that Sullivan had a head injury as the result of the accident 

and determined that the HGN Test was not valid under these circumstances. 

Sullivan argues that the trial court considered the training of Cortez but failed to 

examine whether the physical condition of the defendant invalidated the HGN Test. 

On these grounds, Sullivan contends that the HGN Test should have been excluded 

since his physical condition made the HGN Test invalid. 

Legal Standard 

{¶11} Under appellate review, motions to suppress present “mixed questions 

of law and fact.” State v. Yeaples, 180 Ohio App.3d 720, 2009-Ohio-184, 907 

N.E.2d 333, ¶ 20 (3d Dist.). 

When 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 the credibility of witnesses. 

Consequently, an appellate court must accept the trial court’s 

findings of fact if they are supported by competent, credible 

evidence. 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. 

(Citations omitted.) State v. James, 2016-Ohio-7262, 71 N.E.3d 1257, ¶ 8 (3d 

Dist.), quoting State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 

71, ¶ 8. 

{¶12} R.C. 4511.19(D)(4)(b) governs the admissibility of field sobriety tests 

and reads, in its relevant part, as follows: 
Case No. 5-17-09 

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In any criminal prosecution or juvenile court proceeding for a 

violation of division (A) or (B) of this section * * * if a law 

enforcement officer has administered a field sobriety test to the 

operator of the vehicle involved in the violation and if it is shown 

by clear and convincing evidence that the officer administered the 

test in substantial compliance with the testing standards for any 

reliable, credible, and generally accepted field sobriety tests that 

were in effect at the time the tests were administered, including, 

but not limited to, any testing standards then in effect that were 

set by the national highway traffic safety administration, all of the 

following apply: 

(i) The officer may testify concerning the results of the field 

sobriety test so administered. 

(ii) The prosecution may introduce the results of the field sobriety 

test so administered as evidence in any proceedings in the 

criminal prosecution or juvenile court proceeding. 

(iii) If testimony is presented or evidence is introduced under 

division (D)(4)(b)(i) or (ii) of this section and if the testimony or 

evidence is admissible under the Rules of Evidence, the court shall 

admit the testimony or evidence and the trier of fact shall give it 

whatever weight the trier of fact considers to be appropriate. 

R.C. 4511.19(D)(4)(b). 

Clear and convincing evidence is that measure or degree of proof 

which is more than a mere ‘preponderance of the evidence,’ but 

not to the extent of such certainty as is required ‘beyond a 

reasonable doubt’ in criminal cases, and which will produce in the 

mind of the trier of facts a firm belief or conviction as to the facts 

sought to be established. 

Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118, at paragraph three of the 

syllabus (1954). 

{¶13} If a motion to suppress challenges the admission of the results of field 

sobriety tests in an OVI case, 
Case No. 5-17-09 

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the state must show the requisite level of compliance with 

accepted testing standards. Typically, the standards used are 

those from the [National Highway Traffic Safety Administration 

(“NHTSA”)]. Part of the state’s burden ‘includes demonstrating 

what the NHTSA requirements are, through competent testimony 

and/or introducing the applicable portions of the NHTSA 

manual.’ HGN test results are admissible in Ohio without expert 

testimony so long as the proper foundation has been shown both 

as to the administering officer’s training and ability to administer 

the test and as to the actual technique used by the officer in 

administering the test. 

(Citations omitted.) State v. Loveridge, 3d Dist. Marion No. 9-06-46, 2007-Ohio4493, ¶ 11. 

Legal Analysis 

{¶14} In this case, Cortez testified at the suppression hearing about the 

process of administering the HGN Test to Sullivan. Suppression Hearing Tr. 25-

28. Cortez discussed his experience in administering the HGN Test. Id. at 29-31. 

He received his instruction on this field test from the Ohio Peace Officers Training 

Academy, which hosted a program conducted by NHTSA. Id. at 25. He also stated 

that he is an instructor of this technique and has trained law enforcement officers 

across northwest Ohio on how to administer the HGN Test properly. Id. at 25-26. 

He then explained the NHTSA guidelines for the HGN Test and detailed the process 

of administering this field sobriety test. Id. at 26-28. After discussing how the HGN 

Test was performed, he testified as to how he conformed to these standards as he 

administered this test with Sullivan. Id. at 29-31. He further discussed the 

observations he made while Sullivan took the HGN Test. In this process, Cortez 
Case No. 5-17-09 

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testified that he saw six of six clues in Sullivan’s eyes. Id. at 31. Thus, through 

Cortez’s testimony, the State demonstrated the requisite level of compliance that is 

required for the admissibility of the HGN Test. 

{¶15} In response, the Defense called Dr. Bauer as its witness at the 

suppression hearing. Id. at 47. Dr. Bauer was a neurologist who testified as an 

expert witness. Id. Dr. Bauer testified that he believed that the indicators of 

intoxication that Cortez observed during the HGN Test were actually symptoms of 

a traumatic brain injury. Id. at 55. The Defense argued in its motion to suppress 

that Cortez’s testimony as to the results of the HGN Test should be suppressed 

because Cortez was not able to give a medical diagnosis of Sullivan’s condition and 

could not, therefore, determine whether Sullivan was suffering from a traumatic 

brain injury or was exhibiting symptoms of intoxication. Doc. 8. 

{¶16} In its ruling on the Defense’s motion to suppress, the trial court found 

that 

[Cortez] testified he was familiar with the NHTSA requirements 

for administering the HGN and was certified to conduct this 

particular test. In addition, he has trained other deputies at the 

sheriff’s office, as well as for other law enforcement agencies, on 

the administration of the HGN. The sergeant explained how the 

test was required to be administered and how he conducted the 

test with the defendant. 

Doc. 12. The trial court found that Dr. Bauer’s testimony, on the other hand, was 

not persuasive. Id. Specifically, the trial court noted that Dr. Bauer had only spoken 

to Sullivan over the phone prior to his diagnosis; that Dr. Bauer did not review 
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Sullivan’s medical history records; that Dr. Bauer did not examine Sullivan in 

person; that Dr. Bauer only considered Sullivan to be a patient “theoretically”; and 

that Dr. Bauer did not participate in any treatment of this alleged brain trauma. Id. 

{¶17} The record shows that the State presented some information 

supporting all of the requirements of R.C. 4511.19(D)(4)(b) during the suppression 

hearing. Further, after considering all of the information from the hearing, the trial 

court found Dr. Bauer’s testimony not to be persuasive. Doc. 12. This 

determination of fact weighed in favor of the State’s case. The trial court’s decision 

to overrule Sullivan’s motion to suppress was consistent with its factual 

determinations. Thus, the trial court did not err in overruling Sullivan’s motion to 

suppress. For this reason, Sullivan’s first assignment of error is overruled. 

Third Assignment of Error 

{¶18} In his third assignment of error, Sullivan asserts that the trial court 

erred by overruling his objections to the admission of testimony regarding HGN 

Test research. At trial, Cortez mentioned the existence of several field studies that 

were conducted by NHTSA on the HGN Test. Sullivan claims that the trial court 

allowed the conclusions of these reports to be admitted as evidence and, in so doing, 

allowed impermissible hearsay evidence to be introduced at trial. Sullivan argues 

that this hearsay evidence obscured the fact that the six clues that Cortez observed 

could have been indicators of multiple conditions aside from intoxication. Sullivan 
Case No. 5-17-09 

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further argues that admission of this evidence constituted improper bolstering of 

Cortez’s testimony. 

Legal Standard 

{¶19} Ohio Evid.R. 701 governs what a lay witness is permitted to 

include in their testimony and reads as follows: 

If the witness is not testifying as an expert, the witness’ testimony 

in the form of opinions or inferences is limited to those opinions 

or inferences which are (1) rationally based on the perception of 

the witness and (2) helpful to a clear understanding of the witness’ 

testimony or the determination of a fact in issue. 

Evid.R. 701. Further, under the rules of evidence, “[h]earsay is generally 

inadmissible ‘except as otherwise provided by the Constitution of the United States, 

by the Constitution of the State of Ohio, by statute enacted by the General Assembly 

not in conflict with a rule of the Supreme Court of Ohio, by these rules, or by other 

rules prescribed by the Supreme Court of Ohio.’” State v. Carter, 3d Dist. Seneca 

No. 13-17-10, 2017-Ohio-7443, ¶ 8, quoting Evid.R. 802. Ohio Evid.R. 801(C) 

defines hearsay as “a statement, other than one made by the declarant while 

testifying at the trial or hearing, offered in evidence to prove the truth of the matter 

asserted.” Evid.R. 801(C). 

{¶20} “An appellate court’s review of the admission of evidence is limited 

to a determination as to whether the trial court abused its discretion.” State v. Little, 

2016-Ohio-8398, 78 N.E.3d 323, ¶ 8 (3d Dist.), quoting Rigby v. Lake Cty., 58 Ohio 

St.3d 269, 271, 569 N.E.2d 1056 (1991). “An abuse of discretion is more than an 
Case No. 5-17-09 

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error of judgment; rather, it implies that the trial court's decision was unreasonable, 

arbitrary, or capricious.” State v. Howton, 3d Dist. Allen No. 1-16-35, 2017-Ohio4349, ¶ 23, quoting Heilman v. Heilman, 3d Dist. Hardin No. 6-12-08, 2012-Ohio5133, 2012 WL 5397596, ¶ 14. “When applying the abuse of discretion standard, a 

reviewing court is not free to merely substitute its judgment for that of the trial 

court.” State v. Thompson, 2017-Ohio-792, --- N.E.3d ---, ¶ 11, quoting In re Jane 

Doe 1, 57 Ohio St.3d 135, 138, 566 N.E.2d 1181 (1991). 

Legal Analysis 

{¶21} In his brief, Sullivan reports that the trial court erred by allowing the 

following statement to be admitted at trial: 

The original research done by the Southern California Research 

Institute, contracted by the National Highway Traffic Safety 

Administration, that began in 1975. In 1977, they did a field study 

only in California and again in 1977 they did another field and 

laboratory study and again in 1983 they did one in North 

Carolina, Maryland, Washington DC and Virginia, and as a 

result of those particular * * * [continued on p.69, line 14] they 

did research and they found that when these four clues are * * * 

that there was alcohol and or drugs of abuse...in his system. 

(Brackets original). Appellant’s brief, 10. The appellant claims that admission of 

this statement allowed the State to bolster the testimony of Cortez through 

impermissible hearsay evidence. The appellant further argues that the “trial court * 

* * erred in allowing the continuation of this testimony over the several objections 

of defense counsel.” Appellant’s brief, 12. 
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{¶22} However, the appellant quotes an edited portion of the transcript in his 

brief. A complete read of the transcript shows that the trial court did not allow 

hearsay testimony to be admitted at trial. The exchange that is relevant to this 

assignment of error reads as follows: 

[Prosecutor]: What if anything did [seeing six of six clues] mean 

to you? 

[Cortez]: That means to me that according to the research that was 

conducted— 

 [Defense Counsel]: Objection. 

 The Court: Overruled. 

[Cortez]: —according to the research that was conducted that is 

provided to us through our training that—the original research was 

done by the Southern California Research Institute, contracted by 

the National Highway Traffic Safety Administration. That began in 

1975. In 1977 they did a field study only in California and again in 

1977 they did another field and laboratory study and again in 1983 

they did one in North Carolina, Maryland, Washington D.C., and 

Virginia and as a result of those particular— 

[Defense Counsel]: Objection, your honor, this is hearsay 

testimony. 

The Court: The question was what did the observations of the six 

clues mean to the officer. 

 [Cortez]: I’m just trying to explain so the jury understands. 

The Court: Without getting into the several research matters that 

aren’t before the court. 

[Prosecutor]: Okay. 
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The Court: If you want to take him back to the basis of the 

training * * *. 

[Prosecutor]: I’ll ask a question to help get all of that aside, what 

do these results of Mr. Sullivan indicate to you? 

[Cortez]: To simply put it, they did research and they found that 

when these four clues are— 

[Defense Counsel]: Objection. 

The Court: Sustained. 

[Prosecutor]: Just if you can, Sergeant Cortez, so having 

observed those six clues, three in each eye what did that mean to 

you about Mr. Sullivan on May 20, 2016? 

[Cortez]: That there was alcohol and/or drugs of abuse.

[Prosecutor]: Where? 

[Cortez]: In his system. 

(Emphasis added). Trial Tr. 68-69. 

{¶23} The trial judge did overrule the Defense’s first objection to the 

statements about what the HGN Test results signified to Cortez. Id. at 68. From 

the transcript, it appears that Cortez was about to state that he based his opinions or 

inferences on studies that he had come across in his professional career. Id. At the 

time that the trial judge overruled the Defense’s objection, it is not apparent from 

that transcript that Cortez intended to mention specific statements from these 

studies. Id. After the trial court overruled the Defense’s first objection, Cortez made 

statements about several studies that have been conducted in the past. Id. at 69. 
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Before Cortez could mention any of the statements contained within these studies, 

the Defense objected. In response, the trial court sustained this second objection of 

the Defense. Id. When Cortez again exhibited an intention to reference statements 

contained in the field study reports, the trial court again sustained the third objection 

from the Defense before Cortez could state the results of the study. Id. Due to the 

timely objections of Defense counsel and the rulings of the trial court, no statistics, 

statements, or conclusions from these studies were admitted at trial. Thus, no 

hearsay was admitted as the trial court sustained the Defense’s objections before 

Cortez made impermissible statements. 

{¶24} After the third objection, the trial court instructed Cortez not to discuss 

the conclusions of studies not before the court, and the prosecutor clarified the 

question. Id. Cortez then stated what he believed the HGN Test results signified: 

he testified that he believed, on the basis of the results of this field sobriety test, 

“[t]hat there was alcohol and/or drugs of abuse * * * in [Sullivan’s] system.” Id. at 

68-69. The appellant presents these statements as though they were derived from 

the field studies that Cortez referenced when they, in fact, represented Cortez’s own 

opinions and inferences. Thus, this testimony, being from a lay witness, was 

admissible as these statements were “opinions or inferences” that were “rationally 

based on the perception of the witness * * *.” Evid.R. 701. 

{¶25} Ultimately, the Defense’s objections were sustained, and the trial court 

did not permit hearsay testimony to be admitted. Thus, the appellant cannot show 
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that the State improperly bolstered its witness’s testimony with hearsay evidence. 

Appellant also cannot demonstrate prejudice as the trial court sustained the 

Defense’s objections and as the hearsay evidence was not admitted. For this reason, 

Sullivan’s third assignment of error is overruled. 

Second Assignment of Error 

{¶26} In his second assignment of error, Sullivan argues that his Crim.R. 29 

motion should have been granted because the State did not prove that he had alcohol 

in his system at the time of his car accident. In so doing, he claims that the State 

failed to establish an essential element of the crime with which he was charged. He 

argues that the State’s case against him fails in the absence of proof that he 

consumed alcohol prior to his accident. For this reason, he argues that the trial court 

erred in denying his Crim.R. 29 motion for acquittal. 

Legal Standard 

{¶27} Crim.R. 29 reads, in its relevant part, as follows: 

(A) Motion for Judgment of Acquittal. The court on motion of a 

defendant or on its own motion, after the evidence on either side 

is closed, shall order the entry of a judgment of acquittal of one or 

more offenses charged in the indictment, information, or 

complaint, if the evidence is insufficient to sustain a conviction of 

such offense or offenses. 

Crim.R. 29(A). “An appellate court reviews a denial of a Crim.R. 29 motion for 

judgment of acquittal using the same standard that is used to review a sufficiency of 
Case No. 5-17-09 

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the evidence claim. State v. Lightner, 3d Dist. Hardin No. 6-08-11, 2009-Ohio544, ¶ 11, quoting State v. Carter, 72 Ohio St.3d 545, 553, 651 N.E.2d 965 (1995). 

{¶28} “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. Pierce, 3d Dist. 

Seneca No. 13-16-36, 2017-Ohio-4223, ¶ 6, quoting State v. Jenks, 61 Ohio St.3d 

259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, superseded by state 

constitutional amendment on other grounds, State v. Smith, 80 Ohio St.3d 89, 684 

N.E.2d 668 (1997), fn. 4. Under the sufficiency of the evidence standard, “[t]he 

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 reasonable doubt.” State v. Potts, 2016-Ohio-5555, 69 

N.E.3d 1227, ¶ 12 (3d Dist.), quoting Jenks at paragraph two of the syllabus. 

{¶29} R.C. 4511.19(A)(1)(a) prohibits operating a motor vehicle under the 

influence of alcohol and reads as follows: 

(A)(1) No person shall operate any vehicle, streetcar, or trackless 

trolley within this state, if, at the time of the operation, any of the 

following apply: 

(a) The person is under the influence of alcohol, a drug of abuse, 

or a combination of them. 
Case No. 5-17-09 

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R.C. 4511.19(A)(1)(a). Thus, in order for an appellate court to make a finding that 

the evidence supporting a conviction for violating R.C. 4511.19(A)(1)(a) was 

legally sufficient, the record must show that the State presented evidence that the 

defendant (1) was operating a “vehicle, streetcar, or trackless trolley” (2) in the State 

of Ohio (3) while he or she was “under the influence of alcohol, a drug of abuse, or 

a combination of them.” R.C. 4511.19(A)(1)(a). 

{¶30} In establishing the third element—that the defendant was under the 

influence of alcohol—the State “need not establish a threshold level of alcohol 

concentration in the defendant's body. It must, however, prove that the defendant 

operated a vehicle when his faculties were appreciably impaired by the consumption 

of alcohol.” State v. Lowman, 82 Ohio App.3d 831, 836, 613 N.E.2d 692, 695 (12th 

Dist.1992), citing State v. Bakst, 30 Ohio App.3d 141, 145, 506 N.E.2d 1208, 1213 

(1st Dist.1986); State v. Spicer, 12th Dist. Preble App. No. CA90-11-022, 1991 WL 

164591 (Aug. 26, 1991). 

{¶31} “Whether there is legally sufficient evidence to sustain a verdict is a 

question of law.” State v. Schaeffer, 2015-Ohio-3531, 41 N.E.3d 813, ¶ 14 (3d 

Dist.), citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). 

For this reason, “[i]n deciding if the evidence was sufficient, we neither resolve 

evidentiary conflicts nor assess the credibility of witnesses, as both are functions 

reserved for the trier of fact.” Potts at ¶ 12, quoting State v. Jones, 1st Dist. 
Case No. 5-17-09 

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Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, ¶ 33, citing State v. 

Williams, 197 Ohio App.3d 505, 2011-Ohio-6267, 968 N.E.2d 27, ¶ 25 (1st Dist.). 

Legal Analysis 

{¶32} In its argument, the Defense alleges that the State failed to produce 

evidence that establishes Sullivan was “under the influence of alcohol, a drug of 

abuse, or a combination of them,” which is the third element of the offense with 

which Sullivan was charged. R.C. 4511.19(A)(1)(a). Since Sullivan has confined 

his argument to challenging the State’s case on this element alone, our analysis will 

be limited to determining whether the State produced evidence establishing that 

Sullivan was “under the influence of alcohol or a drug of abuse.” 

{¶33} In this case, the arresting officer testified at trial that Sullivan had been 

in an accident where he missed a stop sign; had slow response times in answering 

questions; struggled to maintain his balance; held onto the cruiser to stabilize 

himself; made very deliberate movements; and was unaware of where he was. Id. 

at 53, 55. Cortez also testified that Sullivan smelled strongly of an alcoholic 

beverage; had a flushed face; and had blood shot glassy eyes. Id. at 53. On the 

basis of these observations, the officer requested that Sullivan submit to an HGN 

Test. Id. at 56. With Sullivan’s consent, Cortez administered the HGN Test and, in 

this process, observed six out of the six clues in Sullivan’s eyes. Id. at 56. At trial, 

Cortez discussed his experience, which included making 400 arrests for OVI 

violations over a period of twenty-three years. Id. at 23. He also testified about his 
Case No. 5-17-09 

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familiarity with the HGN Test, discussing his certifications, experience, and status 

as an instructor of this technique to law enforcement trainees. Id. at 58-65. 

{¶34} These observations combined with the HGN Test results and the 

strong smell of an alcoholic beverage were the evidence of the third element of this 

offense that the State presented. In so doing, the State used circumstantial evidence 

to support the third element of this offense. Circumstantial evidence can be 

sufficient to establish that a driver was under the influence of alcohol. See State v. 

Norris, 168 Ohio App.3d 572, 2006-Ohio-4325, 861 N.E.2d 148, ¶ 16 (12th Dist.) 

(holding that “[c]ircumstantial evidence and direct evidence have the same 

probative value, and in some instances, certain facts can be established only by 

circumstantial evidence.”). The Defense points out that Sullivan did not admit that 

he had consumed alcohol earlier on the day of his accident. However, this fact does 

not mean that the trial court, in ruling on the Defense’s Crim.R. 29 motion for 

acquittal, could not make a reasonable inference from the evidence presented at trial 

that Sullivan had consumed alcohol. State v. Caldwell, 10th Dist. Franklin No. 

02AP-576, 2003-Ohio-271, ¶ 26. Compare State v. Joy, 5th Dist. Stark No. 2005-

CA-00235, 2006-Ohio-1923, ¶ 122. 

{¶35} Viewing all of the evidence in the light most favorable to the State, a 

rational trier of fact could have reasonably found that the State established that 

Sullivan was under the influence of alcohol. Since the State provided evidence for 

each of the essential elements of this crime that, if believed, could persuade a 
Case No. 5-17-09 

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reasonable trier of fact that Sullivan was guilty beyond a reasonable doubt, his 

conviction for operating a vehicle while under the influence is supported by 

sufficient evidence. Thus, the trial court did not err in denying Sullivan’s Crim.R. 

29 motion for acquittal. Accordingly, Sullivan’s second assignment of error is 

overruled. 

Fourth Assignment of Error 

{¶36} In his fourth assignment of error, Sullivan argues that the jury returned 

a verdict against the manifest weight of the evidence. In particular, he alleges that 

the jurors disregarded a portion of the jury instructions that required them to find 

that the defendant had “consumed some alcohol” in order to return a guilty verdict. 

Sullivan asserts that the jury clearly lost its way as no evidence was presented that 

he had consumed alcohol. Further, he alleges that the guilty verdict demonstrates 

that the jurors disregarded the testimony of the Defense’s expert. He concludes his 

argument by asserting that a guilty verdict under these circumstances was a manifest 

miscarriage of justice. For these reasons, he requests that this Court reverse his 

conviction. 

Legal Standard 

{¶37} When “deciding whether a conviction is against the manifest weight 

of the evidence, an appellate court determines whether the state has appropriately 

carried its burden of persuasion.” State v. Brentlinger, 2017-Ohio-2588, --- N.E.3d 

---, ¶ 36 (3d Dist.), quoting State v. Blanton, 121 Ohio App.3d 162, 169, 699 N.E.2d 
Case No. 5-17-09 

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136 (3d Dist.1997). “Unlike our review of the sufficiency of the evidence, an 

appellate court's function when reviewing the weight of the evidence is to determine 

whether the greater amount of credible evidence supports the verdict.” State v. Plott, 

2017-Ohio-38, 80 N.E.3d 1108, ¶ 73 (3d Dist.). In the manifest weight analysis, “the 

appellate court sits as a ‘thirteenth juror’ * * *.” State v. Davis, 3d Dist. Seneca No. 

13-16-30, 2017-Ohio-2916, ¶ 17, quoting Thompkins at 389. On appeal, courts 

must review the entire record, weigh the evidence and all of the 

reasonable inferences, consider the credibility of witnesses, and 

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.” 

(Citations omitted). Plott, supra, at ¶ 73. 

{¶38} “A reviewing court must, however, allow the trier of fact appropriate 

discretion on matters relating to the weight of the evidence and the credibility of the 

witnesses.” State v. Coleman, 3d Dist. Allen No. 1-13-53, 2014-Ohio-5320, 2014 

WL 6725795, ¶ 7. “Only in exceptional cases, where the evidence ‘weighs heavily 

against the conviction,’ should an appellate court overturn the trial court's 

judgment.” State v. Haller, 2012-Ohio-5233, 982 N.E.2d 111, ¶ 9, quoting State v. 

Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 119. 

Legal Analysis 

{¶39} As with his sufficiency of the evidence challenge to his conviction, 

Sullivan focuses his manifest weight argument on the third element of this offense, 
Case No. 5-17-09 

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which requires a finding that the defendant was “under the influence of alcohol, a 

drug of abuse, or a combination of them” to be convicted under R.C. 

4511.19(A)(1)(a). For this reason, our analysis will focus on whether the evidence 

weighs heavily against a finding that Sullivan was “under the influence of alcohol” 

at the time of his accident on May 20, 2016. R.C. 4511.19(A)(1)(a). 

{¶40} In this case, the State and the Defense each called one witness. For its 

case-in-chief, the State called Cortez to testify as to his observations on the night of 

Sullivan’s accident. Previously, in reviewing the record to determine whether 

Sullivan’s conviction was supported by sufficient evidence, we found that Cortez’s 

testimony, if believed, supplied evidence, which could reasonably be believed, for 

each of the elements of operating a vehicle while under the influence. Under the 

manifest weight analysis, we reincorporate Cortez’s above testimony here regarding 

his observations, the results of the HGN Test, and his experience in law 

enforcement. We add, for this analysis, the fact that Cortez chose not to perform 

further field sobriety tests after he observed six out of six clues in Sullivan’s eyes 

during the HGN Test. The reason Cortez gave for this was that the weather was 

becoming inclement and was not suitable, in his opinion, for further field sobriety 

testing. 

{¶41} For its case-in-chief, the Defense called an expert witness, Dr. Bauer, 

to testify. Dr. Bauer testified that he was a neurosurgeon who was licensed to 

practice medicine in the United States, Ireland, and the United Kingdom. During 
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his testimony, Dr. Bauer stated that he believed Sullivan had suffered from a 

traumatic brain injury as the result of the impact from the car accident. In his expert 

opinion, Dr. Bauer explained that he believed the indicators of intoxication that 

Cortez reported to the court were, in fact, symptoms of this trauma. This diagnosis 

was made by Dr. Bauer after he had a half an hour telephone conversation with 

Sullivan that occurred nearly three months after the accident. He admitted that he 

had not performed a physical examination of Sullivan, did not meet with Sullivan 

in person prior to making his diagnosis, had not reviewed Sullivan’s medical history 

records, and had not been involved in any treatment for this alleged brain injury. 

{¶42} After considering the evidence on the basis of its weight and 

credibility, we do not find that the evidence weighs manifestly against a finding of 

guilty. In our review of the record, we find that the jury could have reasonably 

found that Dr. Bauer’s expert testimony was not persuasive and that Cortez’s 

testimony was credible. A finding of guilty is not against the manifest weight of the 

evidence simply because an expert witness’s testimony is found to be unpersuasive 

by a jury. State v. Waugh, 10th Dist. Franklin No. 07AP-619, 2008-Ohio-2289, ¶ 

92-95, quoting Croft v. State Farm Auto Ins. Co., 3d Dist. Allen No. 1-01-72, 2002 

WL 18665, *3 (January 8, 2002). Further, we do not find any indication in the 

record that the jury lost its way or committed a miscarriage of justice in returning a 

verdict of guilty in this case. For this reason, Sullivan’s fourth assignment of error 

is overruled. 
Case No. 5-17-09 

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Conclusion 

{¶43} Having found no error prejudicial to the appellant in the particulars 

assigned and argued, the judgment of Municipal Court of Findlay, Ohio is affirmed. 

Judgment Affirmed 

PRESTON, P.J. and ZIMMERMAN, J., concur. 

/hls