State v. Banks , 2014 Ohio 5360 ( 2014 )

[Cite as State v. Banks, 2014-Ohio-5360.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
STATE OF OHIO :
: Appellate Case No. 2014-CA-11
Plaintiff-Appellee :
: Trial Court Case No. 13-CR-387
v. :
:
STEVEN JAMES BANKS : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 5th day of December, 2014.
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STEPHEN K. HALLER, Atty. Reg. #0009172, by STEPHANIE R. HAYDEN, Atty. Reg.
#0082881, Greene County Prosecutor’s Office, 61 Greene Street, Xenia, Ohio 45385
Attorneys for Plaintiff-Appellee
CHRISTOPHER WESNER, Atty. Reg. #0082699, Post Office Box 920, 22 North Market
Street, Troy, Ohio 45373
Attorney for Defendant-Appellant
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FAIN, J.
{¶ 1} Defendant-appellant Steven James Banks appeals from his conviction and
sentence for Operating a Vehicle Under the Influence of Alcohol or Drugs. He contends that
the conviction is against the manifest weight of the evidence. He further claims that the trial
court erred by permitting evidence regarding the field sobriety tests.
{¶ 2} We conclude that the conviction is not against the weight of the evidence.
We also find that the trial court did not err in allowing evidence regarding the administration
of a field sobriety test. Accordingly, the judgment of the trial court is Affirmed.
I. A Visit to a McDonald’s Drive-thru Leads to an Arrest for OVI
{¶ 3} Jordan Virelli was working the drive-thru at the Sugarcreek McDonald’s on
June 22, 2013. She saw Banks drive his vehicle past the first window where customers pay
for their order. He stopped his vehicle in between the first window and the second, order
pick-up, window, where he apparently passed out. When he then failed to pull all the way up
to that window, Virelli asked the customer behind him to honk at him. At that point, she saw
another McDonald’s employee walk outside and knock on Banks’s car window. Banks woke
up, pulled up to the second window, and was given his food. Virelli then left her window and
went to the second window to take his money. According to Virelli, Banks seem “very
disoriented,” and was “acting strange.” Tr. p. 38. He appeared to have vomit on his shirt.
Banks left the drive-thru and parked in the restaurant’s parking lot. At that point, Virelli
called the police.
{¶ 4} Sugarcreek Township Police Department Leslie Stayer responded to the scene.
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Stayer had taken ADAP [Alcohol Detection and Prosecution] training, and had been trained to
apply the Horizontal Gaze Nystagmus test. She explained that with the test, she looks for six
indicators which, if observed, demonstrate a high probability that the test subject will have a
blood alcohol content over 0.10. Stayer typically performs the test with a shiny pen, because
that is easy for test subjects to focus upon. She then instructs the subject to follow the pen with
their eyes, without moving their heads. She then checks to see if the subject can track the pen
and looks to see if there is any twitching, jerking or bouncing of the eye. She holds the pen “12
to 15 inches away from [the subject’s] nose,” and moves the pen, having the subject move their
eyes as far to the sides as possible. The pen is then held for a few seconds to observe whether
the eye is bouncing. Stayer finally moves the pen at a 45-degree angle; again looking for
bouncing of the eye. Tr. p. 73. A subject can have a total of six indicators with this test if both
eyes test positive on all three phases of the test. Stayer has made “hundreds” of arrests for
driving under the influence during her thirteen years as an officer. Tr. p. 105.
{¶ 5} Upon her arrival at the McDonald’s, at 2:00 a.m., Stayer parked behind the
vehicle identified by Virelli, in order to block it in. She then walked up to the car and made
contact with Banks, the driver. Banks was eating in the car. While she spoke to him, Banks
looked straight ahead rather than at her. According to Stayer, Banks was “disheveled,” had
bloodshot eyes, and appeared to have “something slopped down his shirt.” Tr. p. 82. Banks told
Stayer that he was coming home to West Carrollton from his job at the Cincinnati Zoo, that he
got on I-675 and traveled to the Sugarcreek McDonald’s. His speech was slurred.
{¶ 6} When Stayer asked Banks for his driver’s license, he indicated that he was under
suspension and had no license. He then produced an Ohio Identification Card. According to
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Stayer, Banks moved very slowly in producing the card. At that point, Stayer had Banks exit his
car. She immediately smelled alcohol. She then informed him that she was going to administer
the HGN test, and asked him whether he wore contacts or glasses, which he denied wearing.
Upon testing, Stayer found that he was positive on all indicators with both eyes. During the
testing, Banks was off balance and swaying so much that Stayer thought he would sway into her.
Stayer then asked Banks to perform another field sobriety test, known as the walk-and-turn
dexterity test. Banks declined to take any further tests.
{¶ 7} Stayer arrested Banks for driving under the influence, and transported him to the
police station. Once in the processing room, Stayer asked him to read along with her as she went
through the BMV 2255 form regarding taking a chemical test for intoxication and the
consequences of refusing the test. Banks put the form down and said that Stayer had taken his
glasses. Stayer did not see him wearing any glasses, besides which, Banks had told Stayer that
he did not wear glasses.
{¶ 8} Sergeant Mark White arrived on the scene as Stayer was talking to Banks. He
testified that Banks’ speech was slurred, and Banks appeared “very unsteady, very disoriented.”
Tr. p. 129. White testified that when Banks exited the vehicle, food he was eating fell to the
ground. After Banks was transported to the station, White witnessed Stayer read the BMV 2244
form to Banks. White testified that Banks refused to submit to a blood, breath or urine test, and
also refused to sign the form.
{¶ 9} Officer Timothy Pyles, who also arrived on the scene, performed an inventory
search of Banks’ vehicle after Banks was arrested. Pyles found a twelve-pack box of Budweiser
with only two cans remaining, both of which were unopened, and were cool and showing
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condensation on the outside. He also found a bottle of Windsor Canadian whiskey in the middle
console. The liquid in the bottle was the color of whiskey and smelled like whiskey. Pyles
testified that part of training for OVI includes learning the odor of alcohol. The bottle was
two-thirds empty.
{¶ 10} Pyles fingerprinted Banks at the police station. According to Pyles, Banks had
difficulty following instructions, lost focus, and actually walked away from Pyles several times.
Pyles testified that Banks had “red, glassy eyes,” and smelled of alcohol. Tr. p. 159. Pyles also
testified that when he informed Banks that he would have the opportunity to retrieve his alcohol,
Banks made the statement that the “heads” did not want the bottle because they did not “want to
drink after a commoner like me.” Tr. p. 161.
{¶ 11} The parties stipulated that Banks had three prior convictions for Driving Under
the Influence of Alcohol, all of which had occurred within the six years prior to this trial.
II. The Course of Proceedings
{¶ 12} Banks was indicted on one count of Operating a Motor Vehicle While Under the
Influence of Alcohol or Drugs in violation of R.C. 4511.19(A)(1)(a), and one count of
Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs in violation of R.C.
4511.19(A)(2)(a)(b).
{¶ 13} Following a jury trial, Banks was convicted as charged. His convictions were
merged as allied offenses, and he was sentenced accordingly. A motion for a judgment of
acquittal and a motion for a new trial were overruled. Banks appeals from his conviction and
sentence.
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III. Banks’s OVI Conviction Is Not Against the Manifest Weight of the Evidence
{¶ 14} Banks’s First Assignment of Error states:
MR. BANKS’ CONVICTION FOR THE OFFENSE OF OVI WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 15} Banks contends that the State failed to prove a violation of R.C. 4511.19(A)(1)(a)
because there was no evidence that he “consumed alcohol to the point of appreciable
impairment.” In support, he argues that the beer cans in his car were unopened, and there was
no evidence that the bottle found in his car contained alcohol. He also questions the accuracy of
Officer Stayer’s HGN test.
{¶ 16} In addressing a manifest weight assignment, an appellate court reviews the
whole record and all reasonable inferences, considers the credibility of the witnesses and
determines whether in resolving conflicts in the evidence the trier of fact clearly lost its way and
created a manifest miscarriage of justice requiring reversal of the conviction and remand for a
new trial. State v. McKnight, 107 Ohio St. 3d 101, 112, 2005-Ohio-6046, 837 N.E.2d 315. 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. Id.
{¶ 17} The credibility of the witnesses and the weight to be given to their testimony are
primarily matters for the trier of facts to resolve. State v. DeHass, 10 Ohio St. 2d 230, 231, 227 N
.E.2d 212 (1967). “Because the factfinder * * * has the opportunity to see and hear the witnesses,
the cautious exercise of the discretionary power of a court of appeals to find that a judgment is
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against the manifest weight of the evidence requires that substantial deference be extended to the
factfinder's determinations of credibility. The decision whether, and to what extent, to credit the
testimony of particular witnesses is within the peculiar competence of the factfinder, who has
seen and heard the witness.” State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684
(Aug. 22, 1997).
{¶ 18} Banks was convicted of Operating a Vehicle Under the Influence of Alcohol, in
violation of R.C. 4511.19(A)(1)(a), which provides:
(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.
{¶ 19} “[B]eing ‘under the influence’ of alcohol or intoxicating liquor means that the
accused must have consumed some intoxicating beverage, whether mild or potent, and in such a
quantity, whether small or great, that the effect thereof on him was to adversely affect his actions,
reactions, conduct, movements or mental processes, or to impair his reactions, under the
circumstances then existing so as to deprive him of that clearness of the intellect and control of
himself which he would otherwise possess.” State v. Zimmerman, 2d Dist. Montgomery No.
19528, 2003-Ohio-1551, ¶ 24, quoting State v. Steele, 95 Ohio App. 107, 111, 117 N.E.2d 617
(3rd Dist. 1952).
{¶ 20} Despite his claim that there is no evidence of intoxication, the circumstantial
evidence in this case is strong. While waiting in the drive-thru line at McDonald’s, Banks fell
asleep and had to be awakened. An employee testified that he appeared disheveled and had
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vomit on his shirt. The police officers all testified that Banks had bloodshot eyes, smelled of
alcohol, and exhibited slurred speech. There was evidence that he was unsteady on his feet
during the field sobriety test, and that he failed the HGN test. A twelve-pack carton of beer,
with only two remaining beer cans, which were cool to the touch, was found in his car.
Additionally, a bottle with a liquid described as having the color and smell of whiskey was
recovered from the car. That bottle was more than half empty.
{¶ 21} We conclude that there is substantial probative and reliable evidence in this
record that Banks was under the influence of alcohol when he arrived, and parked, at the
McDonald’s. This is not the exceptional case where a jury has lost its way. Accordingly, the
First Assignment of Error is overruled
IV. The Trial Court Did Not Err in Admitting Testimony Concerning
the Horizontal Gaze Nystagmus Field Sobriety Test
{¶ 22} Banks’s Second Assignment of Error is as follows:
THE TRIAL COURT ERRED TO MR. BANKS’ PREJUDICE WHEN IT
ALLOWED THE STATE TO ADMIT EVIDENCE REGARDING THE
HORIZONTAL GAZE NYSTAGMUS TEST (“HGN”) WITHOUT REQUIRING
EXPERT TESTIMONY TO ESTABLISH THE VALIDITY OF THE HGN TEST
AND THE SCIENTIFIC PRINCIPLES UNDERLYING THE TEST.
{¶ 23} Banks contends that the trial court erred by permitting evidence regarding the
HGN test without expert testimony. He also contends that the trial court should not have
permitted Stayer to testify that finding positive results on the HGN test indicates a high
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probability that the subject will test over 0.1 percent.
{¶ 24} The Supreme Court of Ohio has stated that “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.” State v. Boczar, 113 Ohio St. 3d 148,
2007-Ohio-1251, 863 N.E.2d 155, ¶ 28. In this case, there is evidence that Stayer went through
appropriate training with regard to the administration of field sobriety tests, including the HGN
test, and that she has extensive experience with such testing. Furthermore, she testified
regarding the administration of the test to Banks, as well as the results thereof. We conclude that
the trial court did not abuse its discretion by admitting this testimony.
{¶ 25} Next Banks contends that error occurred when Stayer testified that based upon
her training, observing just four positive indicators results indicates “that there’s a very high
probability that [the subject is] going to test over .10.” Tr. p. 74. He cites State v. Bresson, 51
Ohio St. 3d 123, 554 N.E.2d 1330 (1990), for the proposition that an officer’s testimony regarding
the results of an HGN test may not be admitted to show the exact alcohol concentration level of
the defendant. Id., syllabus.
{¶ 26} Stayer did not testify as to Banks’s exact alcohol concentration level. She
merely testified that having four of the indicators on the HGN test is a good indicator that a
person is at or over 0.10 percent. This is in accord with the test manual devised by the United
States Department of Transportation. Bresson, at 126.
{¶ 27} We find no abuse of discretion with regard to Stayer’s testimony. Accordingly,
the Second Assignment of Error is overruled.
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V. Conclusion
{¶ 28} Both of Banks’s Assignments of error having been overruled, the judgment of the
trial court is Affirmed.
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HALL, J., concurs.
FROELICH, P.J., concurring:
{¶ 29} I am troubled by the officer’s statement that there is a high probability that the
driver is going to test over .10. With a charge of operating a vehicle “under the influence,” the
BAC level is, absent expert testimony, irrelevant. However, there is nothing in this record
demonstrating that the jury was aware of the statutorily prohibited levels, or how, if at all, a test
of “over .10” relates to being “under the influence of alcohol” as that term is defined.
Zimmerman, supra. I therefore concur.
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Copies mailed to:
Stephen K. Haller
Stephanie R. Hayden
Christopher Wesner
Hon. Stephen Wolaver