State v. Webb , 2022 Ohio 4184 ( 2022 )

[Cite as State v. Webb, 2022-Ohio-4184.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case Nos. 2022-CA-7 &
: 2022-CA-8
v. :
: Trial Court Case Nos. 21-CRB-1546
BRANDON C. WEBB : 21-TRC-6930
:
Defendant-Appellant : (Criminal Appeal from
: Municipal Court)
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OPINION
Rendered on the 23rd day of November, 2022.
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MATTHEW B. DIBARTOLA, Atty. Reg. No. 0088702, Assistant Prosecuting Attorney,
Clark County Prosecutor’s Office, Appellate Division, 50 East Columbia Street, 4th Floor,
Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
GARY C. SCHAENGOLD, Atty. Reg. No. 0007144, 4 East Schantz Avenue, Dayton, Ohio
45409
Attorney for Defendant-Appellant
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.............
DONOVAN, J.
{¶ 1} Defendant-appellant Brandon C. Webb appeals from his convictions for
operating a vehicle while under the influence of alcohol or drugs (OVI), in violation of R.C.
4511.19(A)(1) and (A)(2), a misdemeanor of the first degree (Clark M.C. No. 21 TRC
6930); and one count of failure to comply with the order or signal of a police officer, in
violation of R.C. 2921.331(A), also a misdemeanor of the first degree (Clark M.C. No. 21
CRB 1546). Webb filed a timely notice of appeal on February 1, 2022.
{¶ 2} On July 5, 2021, Ohio State Highway Patrol Sergeant Ryan May observed a
stationary black SUV on Interstate 70 in Clark County, Ohio, with smoke coming from the
vehicle’s engine. Sergeant May activated his patrol cruiser’s lights and pulled over to
investigate. Upon exiting his cruiser, May made contact with Webb, who was standing
outside of the disabled vehicle on the shoulder of the highway. May testified that he
asked Webb what had happened to his vehicle, and Webb stated that he had pulled over
to the side of the road because his SUV was overheating. May testified that Webb
mentioned several times during their conversation that he had been driving “to the
casino.” Tr. 101. The record establishes, however, that Webb also mentioned at least
once during questioning that someone else might have been driving the vehicle.
{¶ 3} Sergeant May then ran Webb’s driver’s license and found that it had been
suspended. May also observed that Webb appeared to be under the influence of alcohol
and/or drugs; Webb had glassy, bloodshot eyes and his pupils were dilated. May
testified that he observed what appeared to be fresh needle marks on Webb’s arm. May
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also observed that Webb appeared “real fidgety, [k]ind of walking back and forth.”
{¶ 4} Based upon his observations, Sergeant May administered field sobriety tests
to determine if Webb was impaired. Tr. 84. May testified that he had Webb perform the
horizontal gaze nystagmus test (HGN), the walk-and-turn test, and the one-leg stand test.
May testified that Webb exhibited several “clues” during the tests that he was impaired.
On that basis, May placed Webb under arrest for OVI. May and Trooper Dillon John
Leugers then attempted to place Webb in the back of May’s cruiser. Webb refused, and
the officers had to force him to get in the back of the cruiser, which took several minutes.
{¶ 5} Thereafter, Webb was issued a traffic ticket for OVI, operating a vehicle
without a valid driver’s license, and driving under suspension (Case No. 21-TRC-6930).
Webb was also charged with failure to comply (Case No. 21-CRB-1546). On July 15,
2021, Webb filed a written plea of not guilty and demanded a jury trial.
{¶ 6} A trial was held on January 12, 2022, and a jury found Webb guilty of OVI
and failure to comply. (The other traffic offenses were dismissed by the State.) The
trial court ordered a presentence investigation report. On January 28, 2022, the trial
court sentenced Webb to 160 days in jail for OVI and to 160 days for failure to comply.
The trial court also found that this was Webb’s second OVI conviction in less than ten
years. The trial court ordered the sentences to be served consecutively, for an
aggregate term of 320 days in the Clark County Jail. The trial court also imposed a five-
year driver’s license suspension, ordered Webb to pay a fine of $525, and ordered him to
attend a drug and alcohol assessment.
{¶ 7} Webb appeals. His sole assignment of error is as follows:
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DEFENDANT’S CONVICTION FOR OPERATING A VEHICLE
WHILE UNDER THE INFLUENCE IS AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE.
{¶ 8} Webb contends that his conviction for OVI was against the manifest weight
of the evidence.1 Specifically, he argues that the evidence adduced by the State failed
to establish beyond a reasonable doubt that he had been the individual driving the vehicle.
Rather, Webb argues that the evidence established that his friend, Edward Brand, had
been driving the vehicle, but Brand left to get help prior to the arrival of Sergeant May at
the scene. Furthermore, Webb argues that May never observed him driving the vehicle.
{¶ 9} “[A] weight of the evidence argument challenges the believability of the
evidence and asks which of the competing inferences suggested by the evidence is more
believable or persuasive.” (Citations omitted). State v. Jones, 2d Dist. Montgomery No.
25724, 2014-Ohio-2309, ¶ 8. “When evaluating whether a conviction is against the
manifest weight of the evidence, the appellate court must review the entire record, weigh
the evidence and all reasonable inferences, consider witness credibility, and determine
whether, in resolving conflicts in the evidence, the trier of fact ‘clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and
a new trial ordered.’ ” Id., quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d
541 (1997).
{¶ 10} Because the trier of fact sees and hears the witnesses at trial, we must defer
1 Although Webb filed a notice of appeal in each case, he does not raise any argument
challenging his conviction for failure to comply in Case No. 21-CRB-1546 (C.A. No. 2022-
CA-7). Therefore, we will not address it.
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to the factfinder's decisions whether, and to what extent, to credit the testimony of
particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL
476684, *4 (Aug. 22, 1997). However, we extend less deference in weighing competing
inferences suggested by the evidence. Id. The fact that the evidence is subject to
differing interpretations does not render the judgment against the manifest weight of the
evidence. State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 14. A
judgment should be reversed as being against the manifest weight of the evidence only
in exceptional circumstances. State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717(1st Dist.1983).
{¶ 11} In this case, Webb was convicted of OVI, in violation of R.C.
4511.19(A)(1)(a), a misdemeanor of the first degree. Therefore, the jury necessarily
found that Webb had operated a vehicle when he was under the influence of alcohol, a
drug of abuse, or a combination of them. 2 R.C. 4511.01(HHH) defines the word
“operate” as causing or having caused movement of a vehicle, streetcar, or trackless
trolley. As previously stated, Sergeant May testified that Webb had stated that he had
been driving the vehicle “to the casino” before it overheated, which forced him to pull over
to the side of the road. May also testified that, based upon his training and experience,
2 We note that the Ohio Supreme Court's recent decision in State v. Wilson does not
affect our analysis. The court held in Wilson that the definition of “operate” in R.C.
4511.01(HHH) applies by its own terms to only R.C. Chapters 4511 and 4513 and not to
offenses involving “operating” a vehicle while under various types of suspensions found
in R.C. Chapter 4510 or in chapters of the code where the term “operate” is not specifically
defined in the statute. State v. Wilson, Ohio Slip Opinion No. 2022-Ohio-3202, __ N.E.3d
__, ¶ 10, 18. Here, Webb was charged with violating R.C. 4511.19(A)(1)(a), and thus
the definition of the word “operate” as defined in R.C. 4511.01(HHH), and the cases
interpreting its meaning are applicable.
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Webb had appeared to be impaired, and he had fresh needle track marks on his arm.
After administering three standard field sobriety tests, May determined that Webb was
under the influence of alcohol and/or drugs.
{¶ 12} At trial, Brand testified that he had been driving the vehicle on the way to a
casino in Columbus, Ohio, when the vehicle began to overheat, so he pulled over and left
on foot to get help. Brand testified that Webb had decided to stay with the vehicle
because it belonged to his mother. Brand testified that, shortly after he began walking,
an older man in a blue pickup truck had picked him up and taken him to a pizza restaurant;
at the restaurant, Brand used the older man’s cellphone to call another friend for help.
Brand testified that the friend arrived an hour later, and then they drove back to where
Webb’s vehicle had broken down. Brand testified that, because of the police presence
at the scene, he and the friend just drove on to the casino and left Webb.
{¶ 13} Brand’s testimony regarding the time frame of the events in question
differed from the testimony of Sergeant May. Specifically, Brand testified that after being
picked up by a friend at the pizza parlor, they drove back by the scene at approximately
6:00 p.m. Conversely, Sergeant May testified that he did not come into contact with
Webb at the location of the disabled vehicle until almost 9:00 p.m. on July 5, 2021. Brand
also testified that neither he nor Webb had operable cellphones at the time of the incident,
but the State’s evidence established that Webb had made several calls from his cellphone
before being arrested and taken into custody.
{¶ 14} Webb also testified at trial. He testified that Brand was the driver of the
vehicle on the day of the incident. Webb testified that the vehicle had overheated, they
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had pulled over, and Brand had left on foot to get help. Webb also testified that he had
burned his arm on the radiator cap while trying to pour liquid into the radiator.
{¶ 15} In support of his manifest weight argument, Webb cites City of Cleveland v.
Dumas, 8th Dist. Cuyahoga No. 99558, 2013-Ohio-4600. In Dumas, the defendant was
found standing outside of his vehicle at a construction site. Id. at ¶ 16-17. The court
found that the circumstantial evidence was insufficient to establish that the defendant had
operated the vehicle in question. Id; see also Wilson, 2d Dist. Montgomery No. 22581,
2009-Ohio-525, at ¶ 27 (the court found insufficient evidence that defendant had been
driving where the officer testified that he did not recall any statements from the defendant
concerning having moved the vehicle, no other witness observed her moving the vehicle,
and the State offered no evidence that the defendant, rather than one of the three
passengers, had driven the vehicle to the home).
{¶ 16} The facts in Dumas are distinguishable from Webb’s case. Unlike the
defendant in Dumas, Webb admitted to Sergeant May several times that he had been
driving the vehicle to a casino before it overheated. While Webb later recanted his
admission to operating the vehicle and testified that Brand had been driving the vehicle
before it overheated, Webb still initially told Sergeant May that he had been the individual
who was driving.
{¶ 17} Having reviewed the record, we find no merit in Webb's manifest weight
challenge. It is well settled that evaluating witness credibility is primarily for the trier of
fact. State v. Brown, 2d Dist. Montgomery No. 27571, 2018-Ohio-3294; see also State
v. Benton, 2d Dist. Miami No. 2010-CA-27, 2012-Ohio-4080, ¶ 7. A trier of fact does not
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lose its way and create a manifest miscarriage of justice if its resolution of conflicting
testimony is reasonable. Id. Here, focusing on the evidence actually presented at trial
and viewing that evidence in a light most favorable to the State, there was sufficient
circumstantial evidence presented to establish that Webb had operated the SUV in
question while under the influence of alcohol. Accordingly, the jury did not lose its way
and create a manifest miscarriage of justice in finding Webb guilty of OVI.
{¶ 18} Webb's sole assignment of error is overruled.
{¶ 19} The judgment of the trial court is affirmed.
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TUCKER, P.J. and LEWIS, J., concur.
Copies sent to:
Matthew B. DiBartola
Gary C. Schaengold
Hon. Stephen A. Schumaker