[Cite as State v. Davis,
2020-Ohio-473.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 29273
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
TYRONE DAVIS COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR-2018-02-0508
DECISION AND JOURNAL ENTRY
Dated: February 12, 2020
SCHAFER, Judge.
{¶1} Defendant-Appellant, Tyrone Davis, appeals his conviction in the Summit County
Court of Common Pleas for operating a vehicle under the influence. This Court affirms.
I.
{¶2} On February 6, 2018, at approximately 3:00 a.m., Officer Joseph Beltrami of the
Northfield Police Department was on patrol when he observed a dark-colored truck swerving in
an irregular pattern. The truck pulled into a motel parking lot and Officer Beltrami initiated a
traffic stop. Officer Beltrami made contact with the driver who identified himself as Tyrone
Davis. Officer Beltrami asked Davis if he had been drinking that night. Davis replied that he
had. While Officer Beltrami was speaking with Davis, Officer Vincent Cangelosi also of the
Northfield Police Department arrived on the scene as back up.
{¶3} Officer Beltrami observed Davis’s eyes to be glossy and watery. At that point, he
asked Davis to step out of the vehicle and to perform field sobriety tests. When Davis stepped
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out of the vehicle Officer Beltrami detected the odor of alcohol. Officer Beltrami administered
the standard field sobriety tests to Davis while Officer Cangelosi remained on scene and
observed. Following the field sobriety tests, Officer Beltrami requested Davis take a portable
breath test. Davis refused. Officer Beltrami then placed Davis under arrest for operating a
vehicle under the influence (“OVI”).
{¶4} The Summit County Grand Jury indicted Davis on one count of OVI in violation
of R.C. 4511.19(A)(1)(a), a felony of the fourth degree, and one count of OVI in violation of
R.C. 4511.19(A)(2)(a), a felony of the fourth degree. Davis entered a plea of not guilty at his
arraignment, and the matter proceeded through the pretrial process.
{¶5} Davis filed a motion to suppress evidence asserting that the field sobriety tests
were not conducted in substantial compliance with the National Highway Transportation Safety
Administration (“NHTSA”) standards and that the officers did not have probable cause to arrest
him for OVI. Following a hearing, the trial court found that Officer Beltrami administered all
three of the field sobriety tests—the horizontal gaze nystagmus (“HGN”), the walk and turn, and
the one-leg stand—in substantial compliance with the NHTSA standards. The trial court also
determined that the officers had probable cause to arrest Davis for OVI.
{¶6} The matter proceeded to a jury trial. The jury returned a verdict finding Davis
guilty of both counts in the indictment. The trial court accepted the jury’s verdict and found
Davis guilty on both counts. The trial court thereafter merged count one and two. The State
elected to proceed on Count I, and the trial court imposed sentence accordingly.
{¶7} Davis filed this timely appeal, raising two assignments of error for our review.
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II.
Assignment of Error I
The trial court erred in denying [Davis]’s [m]otion to [s]uppress. [ ]
{¶8} In his first assignment of error, Davis contends that the trial court erred when it
denied his motion to suppress because (1) the State failed to prove by clear and convincing
evidence that the officers administered his field sobriety tests in compliance with the NHTSA
manual and guidelines; and (2) the officers lacked probable cause to arrest Davis for OVI. We
disagree on both points.
{¶9} Appellate review of a trial court’s ruling on a motion to suppress presents a mixed
question of law and fact. State v. Burnside, 100 Ohio St.3d 152,
2003-Ohio-5372, ¶ 8. “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.” State
v. Roberts,
110 Ohio St.3d 71,
2006-Ohio-3665, ¶ 100, citing State v. Mills,
62 Ohio St.3d 357,
366 (1992). Accordingly, an appellate court must accept a trial court’s findings of fact when
they are supported by competent, credible evidence.
Id. However, accepting those facts as true,
the appellate court must independently determine, without deference to the trial court’s
conclusion, whether those facts satisfy the applicable legal standard. Burnside at ¶ 8.
Field Sobriety Tests
{¶10} In a journal entry following the suppression hearing, the trial court found that
Officer Beltrami administered the field sobriety tests in substantial compliance with NHTSA. In
making this determination, the trial court stated that Officer Beltrami correctly articulated the
appropriate procedures for administering the tests, and noted that he testified that he
administered the tests in accordance with NHTSA standards. The court found that Officer
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Beltrami adequately demonstrated and explained the tests, and that he administered the tests on a
dry, level, and hard surface. The trial court further found that the video evidence presented at the
hearing showed that the tests were administered in substantial compliance with the appropriate
standards.
{¶11} On appeal, Davis first argues that Officer Beltrami’s testimony during the hearing
showed a lack of substantial compliance because he lacked knowledge of what constituted a
“clue” of impairment pursuant to the NHTSA manual on the walk and turn test. Davis next
argues that Officer Cangelosi’s testimony showed a lack of substantial compliance because he
lacked knowledge of what constituted a “clue” of impairment pursuant to the NHTSA manual on
the one leg stand test. Davis does not assert that Officer Beltrami’s instructions to Davis were
not in substantial compliance with the NHTSA standards nor does Davis challenge the trial
court’s finding that Officer Beltrami substantially complied with the NHTSA standards as to the
HGN test.
{¶12} Pursuant to R.C. 4511.19(D)(4)(b),
an officer may testify concerning the results of a field sobriety test, and the
prosecution may introduce the results of such a test, if “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 [NHTSA] … .”
State v. George, 9th Dist. Wayne No. 13CA0036, 2014-Ohio-4123, ¶ 7, quoting R.C.
4511.19(D)(4)(b). The State bears the burden of demonstrating substantial compliance by clear
and convincing evidence. State v. Spees, 9th Dist. Medina No. 17CA0061-M,
2018-Ohio-2568,
¶ 17. “‘A determination of whether the facts satisfy the substantial compliance standard is made
on a case-by-case basis.’” State v. Sayler, 9th Dist. Medina No. 15CA0094-M,
2016-Ohio-7083,
¶ 15, quoting State v. Fink, 12th Dist. Warren Nos. CA2008-10-118, CA2008-10-119, 2009-
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Ohio-3538, ¶ 26. “The [S]tate may demonstrate what the NHTSA standards are through
competent testimony and/or by introducing the applicable portions of the NHTSA manual.”
(Internal quotations and citations omitted.) Sayler at ¶ 15;
{¶13} Davis argues that Officer Beltrami incorrectly scored the walk and turn test due to
a lack of knowledge of the NHTSA standards. During the suppression hearing, Officer Beltrami
testified as to the NHTSA guidelines for conducting the walk and turn test and how he
administered that test. He stated that when performing the test, he asks the individual to stand on
a flat, dry surface with his left foot on an imaginary line. He then asks him to hold his right foot
in front of his left foot touching heel to toe and holding his hands down at his sides while he
explains the instructions. He then simultaneously demonstrates and explains to the individual
that he is to take nine heel to toe steps down the line, and then take nine heel to toe steps back.
{¶14} Officer Beltrami further testified that he conducted the walk and turn test in this
case in compliance with the above guidelines. Officer Beltrami testified that he found a flat,
relatively dry surface on which to conduct the test. While administering the test, he observed
four total clues, which included Davis either stepping off the line or using his arms to balance.
Officer Beltrami admitted on cross-examination that he did not recall the exact step on which
Davis stepped off the line or how far off the line he stepped, but reasserted that Davis did in fact
step off the imaginary line. In determining that Davis was using his arms to balance, Officer
Beltrami noted that Davis had not left his arms by his side as instructed, but instead had placed
his hands in his pockets. Because his hands were in his pockets, Officer Beltrami interpreted
Davis’s elbows “sticking out” as using his arms to balance. Officer Beltrami acknowledged on
cross-examination that the NHTSA manual states an indicator of impairment on the walk and
turn test is for a person to raise his arms six inches. Nonetheless, Officer Beltrami stated that
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Davis was instructed to have his arms at his side and he interpreted Davis’s elbow being “out” as
Davis using his arms to balance.
{¶15} Although Davis also challenges Officer Cangelosi’s knowledge of what the
NHTSA standards state is a valid clue of impairment on the one leg stand test, the trial court
found and the officers’ body-camera footage showed that Officer Beltrami administered the tests
while Officer Cangelosi merely observed. Additionally, although the trial court found that
Officer Beltrami observed two clues during the one leg stand test, it made no finding as to what
Officer Cangelosi may or may not have observed. A review of the record shows that these
findings are based on competent credible evidence. Officer Beltrami testified that he
administered the tests and that his partner, Officer Cangelosi observed. Officer Cangelosi also
testified that Officer Beltrami conducted the field sobriety tests.
{¶16} Officer Beltrami testified as to the NHTSA guidelines for conducting the one leg
stand test and how he administered those tests in this case. Officer Beltrami stated that he
explains and demonstrates the test to the individual before administering the test. Officer
Beltrami stated that when conducting the test, he asks the individual to stand with his hands at
his side with feet together. He then asks him to raise and hold the foot of his choice six inches
above the ground while counting out loud, one, one-hundred; two, one-hundred; and on until he
asks them to stop. During the test, he watches to observe any swaying, using of arms to balance,
and lowering of the foot. Officer Beltrami stated that he conducted the test in compliance with
this standard. Officer Beltrami further testified that while administering the one leg stand test in
this case, he observed that Davis was swaying and using his arms to balance.
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{¶17} Based on the foregoing, we conclude that Davis has not shown that the trial court
erred by determining Officer Beltrami substantially complied with the NHTSA guidelines
regarding the administration of field sobriety tests.
Probable Cause to Arrest
{¶18} Davis also contends that the trial court erred by denying his motion to suppress
because the officers lacked probable cause to arrest him. We disagree.
{¶19} “An officer has probable cause to arrest an individual for impaired driving if, ‘at
the time of arrest, the officer had sufficient facts derived from a reasonably trustworthy source to
cause a prudent person to believe the suspect was driving under the influence.’” Spees, 2018-
Ohio-2568, at ¶ 30, quoting State v. Hopp, 9th Dist. Summit No. 28095, 2016-Ohio-8027, ¶ 8.
This Court has recognized that a probable cause determination is a fact-intensive inquiry that
“requires consideration of the totality of the circumstances known to the officer at the time of the
arrest.” State v. Rogers, 9th Dist. Wayne No. 16AP0014,
2017-Ohio-357, ¶ 9. “‘To prove
impaired driving ability, the [S]tate can rely on physiological factors (e.g., odor of alcohol,
glossy or bloodshot eyes, slurred speech, confused appearance) to demonstrate that a person’s
physical and mental ability to drive was impaired.’” State v. Slone, 9th Dist. Medina No.
04CA0103-M,
2005-Ohio-3325, ¶ 9, quoting State v. Holland, 11th Dist. Portage No. 98-P-0066,
1999 WL 131665, *5 (Dec. 17, 1999). “The amount of evidence necessary for probable cause to
suspect a crime is being committed is less evidence than would be necessary to support a
conviction of that crime at trial.” State v. McGinty, 9th Dist. Medina No. 08CA0039-M, 2009-
Ohio-994, ¶ 11.
{¶20} The court concluded, based on the totality of the circumstances, that Officer
Beltrami had probable cause to arrest Davis for OVI. The trial court based this conclusion on the
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findings that Officer Beltrami stopped Davis after observing his vehicle swerving in the road at
approximately 3:30 a.m., Officer Beltrami observed Davis’s eyes to be glossy and watery, Davis
admitted to Officer Beltrami that he had been drinking alcohol, and Officer Beltrami observed a
number of clues when he conducted field sobriety testing.
{¶21} Davis argues that the trial court erred in its probable cause determination because
each of the signs Officer Beltrami cited as justification for arresting Davis could have been
explained by other circumstances such as the weather, fatigue, and smoking. He asserts that the
odor of alcohol was weak and that he had no trouble producing his driver’s license and proof of
insurance. Finally, Davis contends that field sobriety tests are not reasonably trustworthy.
{¶22} In light of the totality of the circumstances before the trial court, we cannot say
that the trial court erred in concluding that Officer Beltrami had probable cause to arrest Davis
for OVI. The record reflects that both officers detected the odor of alcohol coming from Davis’s
person and saw that Davis’s eyes were glossy and watery. Davis admitted that he had consumed
alcohol earlier in the evening, and Officer Beltrami observed several clues of impairment during
the field sobriety tests. Officer Beltrami also observed Davis’s vehicle to be weaving prior to the
traffic stop. Based on the totality of the circumstances, Officer Beltrami could have concluded
that Davis was driving while under the influence. See State v. Thayer, 9th Dist. Medina No.
11CA0045-M, 2012-Ohio-3301, ¶ 33 (probable cause requires only the probability that criminal
activity exists).
{¶23} Davis’s first assignment of error is overruled.
Assignment of Error II
[Davis]’s convictions were against the manifest weight of the evidence in
violation of Article IV, Section 3 of the Ohio Constitution. [ ]
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{¶24} In his second assignment of error, Davis contends that his convictions were
against the manifest weight of the evidence. We disagree.
{¶25} This Court has stated:
In determining whether a criminal conviction is against the manifest weight of the
evidence, an appellate court must review the entire record, weigh the evidence and
all reasonable inferences, consider the credibility of witnesses 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.
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). The weight of the evidence concerns
whether a greater amount of credible evidence offered at trial supports one side of the issue than
supports the other. State v. Thompkins,
78 Ohio St.3d 380, 387 (1997). An appellate court
should only exercise its power to reverse a judgment as against the manifest weight of the
evidence in an exceptional case where the evidence heavily weighs against the conviction.
Otten
at 340.
{¶26} “‘A conviction is not against the manifest weight of the evidence merely because
there is conflicting evidence before the trier of fact.’” State v. Zaree, 9th Dist. Lorain No.
17CA011111, 2017-Ohio-9081, ¶ 5, quoting State v. Haydon, 9th Dist. Summit No. 19094,
1999
WL 1260298, *7 (Dec. 22, 1999). “An appellate court will not overturn a judgment on this basis
alone, and may not merely substitute its judgment for that of the factfinder.”
Id. citing State v.
Serva, 9th Dist. Summit No. 23323,
2007-Ohio-3060, ¶ 8.
{¶27} In this case, the jury found Davis guilty of OVI in violation of R.C.
4511.19(A)(1)(a), which provides that “[no person shall operate any vehicle … if, at the time
of the operation … [t]he person is under the influence of alcohol, drugs of abuse, or a
combination of them.” The jury also found Davis guilty of OVI in violation of R.C.
4511.19(A)(2)(a), which provides that no person who has previously been convicted of OVI
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within twenty years shall do both of the following: (1) “[o]perate any vehicle … while under
the influence of alcohol[;]” and (2) refuse to submit to a chemical test or tests subsequent to
being arrested for operating the vehicle.
{¶28} In arguing that his conviction was against the manifest weight of the evidence,
Davis does not challenge the credibility of any particular witness. Davis argues only that the
weight of the evidence does not support the jury’s finding that he was under the influence of
alcohol. He argues that his traffic violation was de minimis and could have been explained by
the snowy weather and road conditions. He also notes that any indicia or clues of impairment
noted by the officers in this case could have been caused by something other than impairment.
{¶29} The only testimony presented at trial was from the State’s witnesses, Officer
Beltrami and Officer Cangelosi. The State also admitted into evidence the videos from both
officer’s body cameras and their cruiser’s dashboard cameras. Officer Beltrami testified he
observed Davis’s vehicle weaving in an unusual pattern prior to initiating a traffic stop.
Although Officer Beltrami acknowledged that “for the most part” the roads were snow covered
that evening, he was both able to “see the lane of the road” and to stay within it. Officer
Beltrami stated that Davis had no difficulty producing his driver’s license or vehicle registration.
Both Officer Beltrami and Officer Cangelosi testified that they observed Davis’s eyes to be
watery and glossy, and that watery, glossy eyes are a good indication of impairment. Officer
Beltrami agreed on cross-examination that fatigue can also cause watery or glossy eyes.
However, because Davis admitted to having a few drinks earlier in the night in addition to his
glossy, watery eyes, Officer Beltrami suspected Davis of being an impaired driver.
Consequently, Officer Beltrami requested Davis exit the vehicle to perform field sobriety testing.
Officer Beltrami stated that when he opened the car door, he noticed the odor of alcohol. Officer
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Cangelosi also testified that he smelled “a very pungent odor” of alcohol when he stood next to
Davis’s vehicle. Davis then exited the vehicle without staggering or swaying and proceeded to
perform the field sobriety tests.
{¶30} Officer Beltrami testified as to how he administered the field sobriety tests and
what clues of intoxication he was looking for during those tests. He stated that he observed four
clues during the HGN test, which he believed were a pretty good indication that Davis was under
the influence. Davis did not, however, have difficulty, sway, or rock during the test. Officer
Beltrami could not remember how many clues he observed on the walk and turn test, but testified
that he observed Davis use his arms to balance and stepped off the imaginary line. Although
Davis had placed his hands in his pockets despite instruction to leave them at his side, Officer
Beltrami interpreted Davis’s raised elbows as Davis using his arms for balance. Although he
indicated that Davis stepped off the imaginary line, Officer Beltrami could not remember how
many times he stepped off the line or how far off the line he stepped. Although Officer Beltrami
initially indicated that Davis had improperly broken his starting position while Officer Beltrami
was giving him the instructions for the test—an act Officer Beltrami interpreted as a clue of
impairment—he acknowledged on cross-examination that he had failed to instruct Davis to
maintain that position while he gave the instructions. Officer Beltrami stated that he did not
know whether Davis broke that position because he was losing his balance, was fidgety, or
because it was cold outside. Officer Beltrami also indicated that Davis counted the proper
amount of steps and conducted the turn as instructed. During the one leg stand test, Officer
Beltrami stated he observed Davis using his arms to balance and at one point miscounted. He
acknowledged that he did not see Davis put his foot down, did not see Davis sway, nor did he see
Davis hop during the test.
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{¶31} Officer Cangelosi testified that he observed Officer Beltrami administer the field
sobriety tests. Officer Cangelosi testified that he was not able to see Davis’s eyes during the
HGN test, but that he observed Davis jerk his head “a few times.” Regarding the walk and turn
test, Officer Cangelosi stated that Davis did not do “as good as he should have done” on the test.
Officer Cangelosi stated that Davis did not begin the test properly, but admitted on cross-
examination that Officer Beltrami did not advise Davis to hold his starting position until told to
begin. Officer Cangelosi also noted that Davis had his hands in his pockets and did not walk
heel to toe. Officer Cangelosi further testified that Davis failed the one leg stand test because he
miscounted, his foot was not six inches from the ground, and his toe was pointed up, not straight
out. Although Officer Cangelosi interpreted the position of Davis’s foot as a clue of
intoxication, he admitted on cross-examination that Officer Beltrami never advised Davis how or
even if he should point his toe. In describing Davis’s arms during the test, he stated that
“[Davis] would either go to the left or the right and he would kind of push on his thighs trying to
keep his balance.” Officer Cangelosi did not observe Davis to stumble or sway while walking.
{¶32} Officer Beltrami testified that he believed Davis was impaired following the field
sobriety tests, and offered him a portable breath test, which Davis refused despite Officer
Beltrami’s statement that if he blew below the legal limit he would let him go to his motel room.
Officer Beltrami acknowledged that Davis was polite, calm, and cordial throughout the traffic
stop, but also stated he was a bit agitated during the field sobriety tests. Officer Beltrami then
placed Davis under arrest for operating a vehicle under the influence, and transported Davis to
the Sagamore Hills Police Department. Once at the Sagamore Hills Police Department, he
offered Davis the opportunity to take a breath test, which he also refused.
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{¶33} Although Davis argues that Officer Beltrami testified he did not observe any
slurred speech from Davis, we note that “[w]hile slurred speech is one indicia of intoxication, it
is not a prerequisite to a reasonable judgment that a person is under the influence.” Akron v.
Smith, 9th Dist. Summit No. 21519, 2003-Ohio-5773, ¶ 16. “In determining whether a defendant
was under the influence of alcohol, [a] jury may properly consider evidence of his appearance
and behavior, including his ability to perceive, make judgments, coordinate movements, and
safely operate a vehicle.” State v. Baker, 9th Dist. Summit No. 29167,
2020-Ohio-19, ¶ 13,
citing State v. Moine,
72 Ohio App.3d 584, 586-587 (9th Dist.1991). In this case, Officer
Beltrami ultimately testified that even excluding the results of the walk and turn-test and the one
leg stand test, he believed Davis was impaired based on
[t]he totality of the circumstances between the driving, the odor of alcohol, the
admittance of the alcohol, the HGN test and having the four clues which are good
indicators that a person is intoxicated, also the watery, red eyes, the glossy eyes,
all that together.
Additionally, Officer Cangelosi stated he believed Davis was impaired because of his poor
performance on the field sobriety tests. “This Court has repeatedly held that the trier of fact is in
the best position to determine the credibility of witnesses and evaluate their testimony
accordingly.” State v. Johnson, 9th Dist. Summit No. 25161, 2010-Ohio-3296, ¶ 15. Moreover,
“[a] verdict is not against the manifest weight of the evidence because the finder of fact chooses
to believe the State’s witnesses rather than the defendant’s version of the events.” State v.
Martinez, 9th Dist. Wayne No. 12CA0054,
2013-Ohio-3189, ¶ 16.
{¶34} The trial court instructed the jury that:
[u]nder the influence means that the defendant consumed some alcohol, whether
mild or potent, in such a quantity, whether small or great, that it adversely
affected and noticeably impaired the defendant’s actions, reactions, or mental
processes under the circumstances then existing and deprived the defendant of
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that clearness of intellect and control of himself which he otherwise [would] have
possessed.
After reviewing the record in this case and in light of the evidence presented at trial, we cannot
say that this is the exceptional case where the evidence weighs manifestly against a finding that
Davis was under the influence. See Otten, 33 Ohio App.3d at 340. A reasonable jury could have
concluded that Davis was under the influence of alcohol.
{¶35} Davis’s second assignment of error is overruled.
III.
{¶36} Davis’s first and second assignment of error are overruled.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JULIE A. SCHAFER
FOR THE COURT
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CALLAHAN, P. J.
HENSAL, J.
CONCUR.
APPEARANCES:
BRIAN A. SMITH, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO GUEST,
Assistant Prosecuting Attorney, for Appellee.
