State v. Crowe , 2016 Ohio 1579 ( 2016 )

[Cite as State v. Crowe, 2016-Ohio-1579.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2015-07-065
: OPINION
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:
MARK QUENTIN CROWE, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
Case No. 15 CR 30701
David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 520 Justice Drive,
Lebanon, Ohio 45036, for plaintiff-appellee
Bryan Scott Hicks, P.O. Box 359, Lebanon, Ohio 45036, for defendant-appellant
PIPER, P.J.
{¶ 1} Defendant-appellant, Mark Crowe, appeals his conviction in the Warren County
Court of Common Pleas for operating a vehicle under the influence of alcohol.
{¶ 2} Officer Jeff Strader of the Springboro Police Department was patrolling when he
observed a white van traveling 54 m.p.h. in an area where the maximum speed limit was 35
m.p.h. Officer Strader pulled behind the van and initiated a traffic stop. After the van pulled
over, Officer Strader approached the driver, later identified as Crowe, who told Officer
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Strader that he did not have a valid driver's license. During his interaction with Crowe, Officer
Strader observed that Crowe's speech was slow and broken, his eyes were bloodshot, and
that a strong fruity odor was emanating from the van.
{¶ 3} Once Officer Strader confirmed that Crowe's license had been suspended, he
had Crowe exit the van, and observed that Crowe had difficulty standing, and that the fruity
odor was emanating directly from Crowe's person. Officer Strader then began the process of
having the van towed, and observed empty cans of Sparks, a fruit-flavored alcoholic drink, as
well as an unopened can of Sparks in Crowe's vehicle. Officer Strader then confirmed that
the fruity odor he previously smelled was coming from the Sparks cans, which were cool to
the touch. Officer Strader also found empty cans of beer in the van, which were warm.
{¶ 4} When Officer Strader asked Crowe if he had been drinking that day, Crowe
stated that other men had been in his van who had been drinking, and denied drinking
himself. Officer Strader then asked Crowe to perform field sobriety tests. Crowe agreed to a
horizontal gaze nystagmus test, but refused the others; claiming he was unable to perform
the one-leg stand and walk-and-turn because of a previous injury. Officer Strader then
administered the HGN test and observed three out of a possible six clues of intoxication, thus
indicating that Crowe was impaired. Officer Strader transported Crowe to the police
department, and asked Crowe to submit to a breath test to determine his blood alcohol
content. However, Crowe refused, stating that he would not submit to the test without having
an attorney present.
{¶ 5} Crowe, who had been convicted of five prior OVIs in less than 15 years, was
charged with two counts of OVI with specifications that he had been convicted of five prior
OVIs in the past 20 years. Crow pled not guilty, and the matter proceeded to a bench trial.
On the day the bench trial was to begin, Crowe requested a continuance because one of his
witnesses was not present. The trial court denied Crowe's request for a continuance and
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later found him guilty of the charges. The trial court then merged the counts for sentencing,
and sentenced Crowe to an aggregate prison term of two years for the OVI conviction and
specification. Crowe now appeals his conviction, raising the following assignments of error.
For ease of discussion, we will address the assignments of error out of order.
{¶ 6} Assignment of Error No. 1:
{¶ 7} THE TRIAL COURT ABUSED ITS DISCRETION IN REFUSING TO GRANT A
CONTINUANCE.
{¶ 8} Crowe argues in his first assignment of error that the trial court abused its
discretion in denying his motion for a continuance because one of his key witnesses did not
appear for trial.
{¶ 9} It is well-established that a trial court has broad discretion in determining
whether to grant or deny a continuance. State v. Robinson, 12th Dist. Clermont No. CA2015-
01-013, 2015-Ohio-4533, ¶ 19. This court will not reverse the trial court's decision to deny a
defendant's motion for a continuance absent an abuse of discretion. State v. Glowka, 12th
Dist. Butler No. CA2012-10-203, 2013-Ohio-3080, ¶ 8. An abuse of discretion "connotes
more than an error of law or of judgment; it implies that the court's attitude is unreasonable,
arbitrary or unconscionable." State v. Jackson, 107 Ohio St. 3d 53, 2005-Ohio-5981, ¶ 181.
{¶ 10} While there is no bright-line test for determining whether a continuance should
be allowed, the trial court should be guided by consideration of several factors, "including the
length of the requested delay, whether other continuances have been requested and
received, the inconveniences likely to result, the reasons for the delay, and whether the
defendant contributed to the circumstances giving rise to the need for delay." State v.
Franklin, 97 Ohio St. 3d 1, 2002-Ohio-5304, ¶ 18.
{¶ 11} At the commencement of the bench trial, Crowe asked the trial court to
continue the case because one of his witnesses failed to appear. Crowe admitted that he
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had failed to subpoena the witness, claiming that he did not have a valid address for the
witness. The trial court then addressed several factors, including that the charges had been
pending for ten months, the case had already been continued once, the state's witness
appeared and the state was ready to proceed, as well as Crowe's statement that his witness
was "hard to track" down. The trial court also considered that the witness would have
essentially testified that the beer cans found in Crowe's van on the day of the stop were his,
but the witness could not testify to the circumstances of the actual stop or the fruity alcoholic
drink being present in Crowe's van when he was stopped. We find that the trial court did not
abuse its discretion in denying the motion.
{¶ 12} Regarding the length of the requested delay, there is no indication in the record
how long of a continuance would have been necessary to procure the witness' attendance.
As indicated by Crowe, the witness was difficult to find and had changed his mind after first
agreeing to appear as a witness at trial. As such, there is no indication that the witness
would have appeared, even if a continuance would have been granted given the difficulty in
locating him and securing his attendance.
{¶ 13} The record also demonstrates that a prior continuance had been requested,
albeit by the state, which gave both parties ample time to prepare their respective cases.
Given that the state's witness appeared at trial and the state was ready to proceed, the
record indicates that state and the court would have been inconvenienced by any
continuance granted on the day the trial was set to begin.
{¶ 14} Moreover, and regarding the reasons for the delay, it is clear that Crowe did not
attempt to subpoena the witness, and as such, contributed to the circumstances giving rise to
the need for delay. Even if the witness had been difficult to "track down," Crowe could have
subpoenaed the witness to compel his attendance at trial, but did not take any action to do as
much. After reviewing the factors, as well as the limited impact the witness' testimony would
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have had on the issues, we find that the trial court did not abuse its discretion in denying
Crowe's request for a continuance. As such, Crowe's first assignment of error is overruled.
{¶ 15} Assignment of Error No. 3:
{¶ 16} THE TRIAL COURT ERRED FINDING SUFFICIENT EVIDENCE TO
CONVICT.
{¶ 17} Crowe argues in his third assignment of error that his conviction was not
supported by sufficient evidence.
{¶ 18} When reviewing the sufficiency of the evidence underlying a criminal conviction,
an appellate court examines the evidence in order to determine whether such evidence, if
believed, would support a conviction. State v. Crockett, 12th Dist. Fayette No. CA2014-08-
018, 2015-Ohio-1765, ¶ 18. "The 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. Jenks, 61 Ohio
St.3d 259 (1991), paragraph two of the syllabus, superseded on other grounds.
{¶ 19} When offering proof, both circumstantial and direct evidence have the same
probative value, and in some instances, certain facts can be established only by
circumstantial evidence. State v. Crutchfield, 12th Dist. Warren No. CA2005-11-121, 2006-
Ohio-6549, ¶ 20. Circumstantial evidence is sufficient to sustain a conviction if that evidence
would convince the average mind of the defendant's guilt beyond a reasonable doubt. State
v. McKnight, 107 Ohio St. 3d 101, 2005-Ohio-6046, ¶ 75. A conviction based on purely
circumstantial evidence is no less sound than a conviction based on direct evidence. State v.
Shannon, 191 Ohio App. 3d 8, 2010-Ohio-6079, ¶ 10 (12th Dist.).
{¶ 20} Crowe was convicted of OVI in violation of R.C. 4511.19(A)(2)(a) and (b), which
provides that no person, who has been convicted of a prior OVI in the last 20 years, shall
drive while intoxicated and then refuse to submit to a test to determine the person's blood
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alcohol content. During the bench trial, the state presented testimony, that when viewed in a
light most favorable to the prosecution, demonstrates that the essential elements of R.C.
4511.19 (A)(2)(a) and (b) were proven beyond a reasonable doubt.
{¶ 21} Officer Jeff Strader testified that he had been specially trained to detect
intoxicated driving, and that his certificate on administering field sobriety tests was in good
standing on the day he stopped Crowe. On the day in question, Officer Strader observed a
white van speeding, and later determined that the driver was Crowe. Officer Strader testified
that according to his radar, Crowe was driving at 54 m.p.h. in a zone where the maximum
speed limit was 35 m.p.h. Officer Strader pulled behind Crowe's van and activated his lights,
at which time Crowe continued to drive. Officer Strader then initiated his siren in addition to
his lights, and Crowe continued to drive. Only after Officer Strader initiated his siren for a
second time did Crowe pull over.
{¶ 22} Once Officer Strader made contact, Crowe indicated that he did not have a
valid driver's license. Crowe also gave the officer conflicting stories as to where he was
going, at first stating he was going to retrieve money from someone, and then later stating he
was going home. Officer Strader testified that he noticed that Crowe's speech was "slow and
broken," that Crowe "had no emotion in his voice," and that Crowe's vocal cadence was "very
monotone." Officer Strader testified that the lack of inflection in Crowe's voice was indicative
of impairment, especially when considering that Crowe told Officer Strader that he had to get
home to his wife who was on her deathbed and was scheduled to have surgery the next day.
Officer Strader also testified that Crowe's eyes were bloodshot and that there was a "strong,
fruity odor coming from the vehicle."
{¶ 23} Once Officer Strader confirmed that Crowe did not have a valid driver's license,
he informed Crowe that the van he was driving would be towed according to police
department policy. As part of the towing process, Officer Strader informed Crowe that the
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contents of the van would be inventoried. At that point, and without any question from Officer
Strader, Crowe told Officer Strader that other men had been in his van that day.
{¶ 24} Upon Crowe's exiting his van, Officer Strader noticed that Crowe was "uneasy"
on his feet and that there was a fruity odor emanating from Crowe's person, especially after
Crowe was transported to the officer's police cruiser. Officer Strader testified that as he
inventoried Crowe's van, he found empty beer cans in the back second row seating area of
the van, and that he found four empty cans of a fruit-flavored alcoholic beverage called
Sparks. While four of the Sparks cans were empty, there was one full can that had not been
opened yet, and was located within "arm's reach" of the driver's seat. Officer Strader testified
that the cans of Sparks, those opened and unopened, were cool to the touch and did not
"feel like they'd been sitting" in the van all day.1 Officer Strader testified that the Sparks cans
had a fruity odor, the same that he had smelled emanating from Crowe's person.
{¶ 25} Officer Strader testified that when he asked Crowe about the empty cans of
alcohol in his van, Crowe responded with several stories, including that four to five men had
been in his van earlier in the day drinking. Crowe also told Officer Strader that the men had
been working with him that day, and had cut down approximately 30 trees. However, the
only tool located in the van was an ax. Crowe did not provide Officer Strader with the names
of the men who were with him that day, nor could he indicate where the men were located at
the time.
{¶ 26} Officer Strader testified that he asked Crowe to perform field sobriety tests, and
that Crowe refused the one-leg stand and the walk-and-turn tests because he had a prior
injury. However, Crowe agreed to take a HGN test, which showed three clues of impairment.
Officer Strader testified that before he administered the HGN test, Crowe indicated that his
1. The record indicates that the day in question was very warm.
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eyes were "perfect," and then later changed his story and told Officer Strader that he may be
"deaf in one eye."
{¶ 27} Officer Strader testified that once he transported Crowe to the police station,
Crowe refused to take a breathalyzer test to determine his blood alcohol content. Despite
understanding the consequences of refusing the test given his past convictions, Crowe
refused the test because he wanted to have a lawyer present during testing. The trial court
also watched a video captured on Officer Strader's police cruiser video camera, which
captured the interactions between Officer Strader and Crowe on the evening of the traffic
stop. The trial court was therefore able to observe Crowe's demeanor, speech patterns,
physical movements, and his general behavior on the night in question.
{¶ 28} When viewed in a light most favorable to the prosecution, the record indicates
that Crowe was impaired while he was driving his van on the day in question. While the
evidence was circumstantial that Crowe had, at the very least, consumed the Sparks
alcoholic beverages, the state nonetheless presented sufficient evidence that Crowe was
slow to stop once he was pulled over by Officer Strader, Crowe's eyes were bloodshot, his
speech was slow and broken, he was uneasy on his feet, and that the HGN test showed
multiple clues of impairment. Moreover, Crowe's refusal to participate in a breath test lends
incredulity to his statement that he had not consumed alcoholic beverages that day. As
such, we find that Crowe's OVI conviction and resulting specification, was supported by
sufficient evidence.2 Crowe's third assignment of error is therefore overruled.
{¶ 29} Assignment of Error No. 2:
{¶ 30} THE TRIAL COURT IMPROPERLY RELIED ON THE HGN TEST AS
SCIENTIFIC EVIDENCE BUT FAILED TO REQUIRE EXPERT TESTIMONY TO ALLOW
2. Crowe admitted on cross-examination that he had been convicted of OVI five times in the last 20 years, and
has not disputed that aspect of his conviction and sentence on appeal.
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SUCH EVIDENCE TO BE ADMITTED AS A SCIENTIFIC TEST.
{¶ 31} Crowe argues in his second assignment of error that the trial court improperly
relied on the HGN test as scientific evidence of his intoxication because a HGN test is not
scientific in nature absent supporting expert testimony.
{¶ 32} Despite Crowe's argument on appeal that the trial court erred by referring to the
HGN results as scientific evidence, Crowe did not object to the trial court's statement when
made. As such, Crowe has waived all but plain error. State v. McCollum, 12th Dist.
Clermont No. CA2014-11-077, 2015-Ohio-3286, ¶ 11. A plain error is any error or defect
"affecting substantial rights [that] may be noticed although they were not brought to the
attention of the court." Crim.R. 52(B). Notice of plain error is to be taken with the utmost
caution, under exceptional circumstances and only to prevent a manifest miscarriage of
justice. State v. Long, 53 Ohio St. 2d 91 (1978). Accordingly, an error does not rise to the
level of a plain error unless, but for the error, the outcome of the trial would have been
different. McCollum at ¶ 11.
{¶ 33} As stated by the Ohio Supreme Court, "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, ¶ 28. This is true because an "HGN test cannot be compared to other scientific
tests, such as a polygraph examination, since no special equipment is required in its
administration." Id. at ¶ 26.
{¶ 34} After the trial, the trial court pronounced its judgment, and relied on the HGN
results as part of its reasoning for a guilty verdict. The trial court stated "the second
compelling piece of evidence is the horizontal gaze nystagmus test and [Crowe's] failure to
successfully complete all six parts of that test. That test is designed to provide some
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scientific evidence that only alcohol would contribute to the quivering of the eye muscles
under certain circumstances." The court later stated, "why did he fail the nystagmus test on
both eyes? The scientific explanation for that is because he was impaired." Crowe now
argues that the trial court erred in treating the HGN results as scientific proof of impairment
without hearing expert testimony.
{¶ 35} However, and as stated above, the Ohio Supreme Court has clearly held that
expert testimony is not necessary so long as the state lays a proper foundation that the
administrating officer is qualified to give the test and that the proper testing techniques were
used. During trial, Officer Strader testified to his certification in the area of administering field
sobriety tests, and testified to the manner in which he administered the test to Crowe.
Nothing in the officer's testimony indicates that he used improper testing techniques. While
the trial court may have made reference to the HGN results as scientific in nature, the trial
court's simple use of the adjective "scientific" did nothing to actually render the HGN test
results scientific evidence requiring accompanying expert testimony. Nor did the use of the
adjective demonstrate that the court improperly considered the results once the state
presented the proper foundation that the test was properly administered by a trained and
certified officer.
{¶ 36} Moreover, we would classify any error the trial court made in referring to the
HGN results as being scientific in nature as harmless, rather than plain error, given the other
evidence of guilt. The record does not indicate that the trial court placed any improper value
on the results of the HGN test, especially where the trial court specifically made reference to
other pieces of evidence to support Crowe's guilt, including Crowe's refusal to take the breath
test, the videotape of Crowe's stop that showed his demeanor and actions during the stop, as
well as the observations made by Officer Strader regarding his interaction with Crowe. As
such, and given this other evidence of guilt, the trial court did not commit plain error by
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relying on the results of the HGN test without having accompanying expert testimony.
Crowe's second assignment of error is therefore overruled.
{¶ 37} Judgment affirmed.
S. POWELL and HENDRICKSON, JJ., concur.
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