[Cite as State v. Hamilton,
2021-Ohio-1421.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-200041
C-200042
Plaintiff-Appellee, : TRIAL NOS. C-19TRC-34070A
C-19TRC-34070B
vs. :
CHYNA HAMILTON, :
O P I N I O N.
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed in C-200041; Appeal Dismissed in
C-200042
Date of Judgment Entry on Appeal-: April 23, 2021
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Adam Tieger,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and David Hoffman,
Assistant Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} Defendant-appellant Chyna Hamilton was convicted of operating a
vehicle while under the influence of alcohol in violation of R.C. 4511.19(A)(1)(a) and
speeding in violation of R.C. 4511.21. She has appealed, arguing in three assignments
of error that (1) her right to due process was violated by the law enforcement officer’s
avoidance of the field of view of his police cruiser camera while administering the
field-sobriety tests, (2) she was denied the effective assistance of trial counsel, and
(3) her conviction for driving while under the influence of alcohol was based upon
insufficient evidence and against the manifest weight of the evidence. Hamilton does
not challenge her speeding conviction.
{¶2} Hamilton filed two notices of appeal, but both appeals address the
same issues. Therefore, we dismiss the appeal numbered C-200042. In the appeal
numbered C-200041, we overrule all assignments of error and affirm the trial court’s
judgment.
Factual Background
{¶3} Ohio State Highway Patrol Trooper Axel Lewis testified that on
September 15, 2019, at approximately 3:00 a.m., he observed Hamilton speeding on
Interstate 74. Lewis pursued Hamilton, who pulled off at the next exit and pulled
into a Walgreens parking lot. Upon approaching the car, Lewis “immediately
detected an odor of an alcoholic beverage.” Hamilton was in the driver’s seat and her
friend was in the passenger seat. Lewis testified that Hamilton had bloodshot and
glassy eyes. Lewis directed Hamilton to step out of the car and stand by the front
passenger tire of his cruiser. Lewis testified that he smelled alcohol coming from
Hamilton’s person while standing there.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} Lewis conducted three field-sobriety tests. First, he conducted the
Horizontal Gaze Nystagmus (“HGN”) test, which involves holding a “stimulus” in
front of the subject’s eyes and moving it side to side according to a predetermined
sequence. Lewis testified that Hamilton exhibited all six “clues” of impairment.
{¶5} Lewis moved on to the “walk and turn” test. He testified that
Hamilton “broke heel to toe on every step” and that she demonstrated six out of the
possible eight clues of impairment. Finally, Lewis directed Hamilton to perform the
“one-leg stand” test. He testified that she demonstrated three out of the four
possible clues of impairment.
{¶6} Lewis testified that his cruiser was outfitted with two cameras, one
pointed out the front windshield and another that showed the backseat, facing
toward the passenger side. The front camera is capable of swiveling to record either
side of the cruiser, but cannot record behind the cruiser. When asked why he did not
record the field-sobriety tests, Lewis testified that he had to perform the tests behind
his cruiser because the National Highway Traffic Safety Administration (“NHTSA”)
requires that the tests be performed on a flat surface. He explained that there was an
incline in the front and on the sides of the cruiser, but it was flat behind the cruiser.
{¶7} At trial, the prosecution admitted a DVD containing the video
recordings from both cameras into evidence as state’s exhibit 1. The prosecution
played only portions of the video recordings from both cameras during the trial.
{¶8} The prosecution played the video from the front camera when Lewis
testified about the field-sobriety tests. The front camera video partially shows
Hamilton and Lewis during the HGN test, but does not show the test itself. Hamilton
and Lewis were completely out of view for the walk-and-turn and one-leg-stand tests,
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OHIO FIRST DISTRICT COURT OF APPEALS
but the front camera video did record audio from the tests. As Hamilton performed
the tests, Lewis made notes into his microphone regarding her mistakes, and, while
performing the one-leg-stand test, Hamilton said, “I can’t do it!”
{¶9} Although the backseat camera video does not provide any clues as to
how Hamilton performed on the tests, it reveals that the walk-and-turn and one-leg-
stand tests were actually performed on the passenger side of the cruiser, and not
behind the cruiser as Lewis had testified. Defense counsel did not point this out
during the trial and this portion of the video was not played at trial; the prosecution
only played the portion that showed Hamilton after she was arrested and placed in
the backseat of the cruiser.
{¶10} Before rendering its verdict, the trial court stated that it wanted “to
look at the video.” In rendering its verdict, the trial court stated, “Ms. Hamilton,
after looking at the DVD again, there’s going to be a finding of guilty.”
First Assignment of Error
{¶11} In her first assignment of error, Hamilton contends that her conviction
must be reversed because her right to due process was violated by Lewis’s avoidance
of the field of view of his cruiser camera while administering the field-sobriety tests.
{¶12} Hamilton did not object to Lewis’s testimony regarding the field-
sobriety tests or otherwise raise her due-process claim at the trial level. Thus, she
has forfeited all but plain-error review. See State v. Payne, 114 Ohio St.3d 502,
2007-Ohio-4642,
873 N.E.2d 306, ¶ 23.
{¶13} To establish plain error pursuant to Crim.R. 52(B), Hamilton must
show “(1) that an error occurred, (2) that the error was obvious, and (3) that the
error affected the outcome of the trial. Notice of plain error under Crim.R. 52(B) is
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OHIO FIRST DISTRICT COURT OF APPEALS
to be taken with the utmost caution, under exceptional circumstances and only to
prevent a manifest miscarriage of justice.” (Citation omitted.) State v. Love, 2017-
Ohio-8960, 101 N.E.3d 623, ¶ 20 (1st Dist.).
{¶14} Hamilton argues that Lewis intentionally avoided administering the
field-sobriety tests in view of the front cruiser camera, and lied when asked at trial
why he did not record the tests. Because the backseat camera reveals that the tests
were performed at the side of the cruiser and not the back, as Lewis testified,
Hamilton contends that Lewis could have turned the front camera to record the tests
and purposely chose not to. She argues that Lewis’s bad-faith avoidance of the
recording of potentially useful evidence is analogous to the bad-faith failure to
preserve potentially useful evidence prohibited by the United States Supreme Court’s
decision in Arizona v. Youngblood, 488 U.S. 51, 58,
109 S.Ct. 333,
102 L.Ed.2d 281
(1988). In Youngblood, the Court held that “unless a criminal defendant can show
bad faith on the part of the police, failure to preserve potentially useful evidence does
not constitute a denial of due process of law.”
Id.
{¶15} We find that Youngblood does not apply to Hamilton’s case because
her case involves the failure to create evidence, i.e., record the field-sobriety tests,
and not the failure to preserve evidence that already existed. This is not a case where
a video recording of the field-sobriety tests was destroyed. Rather, this is a case
where a police officer chose not to create a video recording of the field-sobriety tests.
In Youngblood, the Court held, “the police do not have a constitutional duty to
perform any particular tests.” Id. at 59. Thus, Youngblood does not require police
officers to record field-sobriety tests.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶16} Several Ohio cases support our view that Youngblood does not apply to
the failure of the police to create an audio or video recording, even if the recording
could be potentially useful to the defense.
{¶17} In State v. Wooten, 4th Dist. Athens No. 01CA31, 2002 WL 488122, *3
(March 25, 2002), the Fourth District held that Youngblood is inapplicable to a
police officer’s failure to record field-sobriety tests. The court held that “[t]he Due
Process Clause of the United States Constitution does not require the state to employ
particular investigative techniques to the defendant’s liking.”
Id. The court went on
to explain:
[T]he issue in the case at bar is not whether the state failed to disclose
favorable evidence to appellee or whether the state failed to preserve
potentially useful evidence. Rather, appellee’s claim is that the state
violated his due process rights by failing to use a particular investigatory
tool. In Youngblood, the court discounted this argument as follows: “The
situation is no different than a prosecution for drunken driving that rests
on police observation alone; the defendant is free to argue to the finder of
fact that a breathalyzer test might have been exculpatory, but the police
do not have a constitutional duty to perform any particular tests.”
Id., quoting
Youngblood at 59. The court held that the state “has no constitutional
duty to ensure that DUI defendants’ traffic stops and sobriety tests are recorded on
video or audio tape.” Wooten at *4. See State v. McDade, 12th Dist. Warren Nos.
CA2003-09-096 and CA2003-09-097,
2004-Ohio-3672, ¶ 17 (“Rather than a case of
destruction of evidence, this case is more akin to a case of failing to create evidence”).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶18} In City of Cleveland v. Brown, 8th Dist. Cuyahoga No. 80112, 2002-
Ohio-2139, ¶ 1, the defendant argued that her due-process rights were violated by the
state’s failure to obtain a video or audio recording of the sting operation that led to
her arrest for soliciting prostitution. The court found that her argument failed for
two reasons. First, it found that Youngblood and California v. Trombetta, 467 U.S.
479,
104 S.Ct. 2528,
81 L.Ed.2d 413 (1984)1 only apply if a defendant can establish
that existing evidence was not preserved. Brown at ¶ 11. “The audio tape, by default,
does not exist.”
Id. Second, it found, “There is no constitutionally imposed duty to
obtain evidence by employing any specific technological means.”
Id.
{¶19} We note that some Ohio appellate districts seem to have incorporated
a bad-faith exception into the general rule that officers have no duty to record field-
sobriety tests. See, e.g., State v. Boles, 2020-Ohio-4485,
158 N.E.3d 1013, ¶ 29 (2d
Dist.) (“In the absence of bad faith, the failure of a police officer to cause a videotape
or audiotape record to be made of that officer’s encounter with a suspect does not
violate the suspect’s constitutional right to due process of law under the Fourteenth
Amendment to the United States Constitution”); State v. Smith, 5th Dist. Licking
No. 09-CA-42,
2010-Ohio-1232, ¶ 48, and State v. Pace, 3d Dist. Hancock No. 5-12-
30,
2013-Ohio-2143, ¶ 21 (both courts cited the holdings in McDade and Wooten, but
went on to consider whether the officers’ failures to record the OVI stops were done
in bad faith in violation of Youngblood). However, to the extent that those courts
expanded the holding of Youngblood to a bad-faith failure to create evidence, we
disagree with those holdings.
1 Trombetta involved the failure of police to preserve the breath samples of defendants charged
with DUI offenses where the charges were substantiated, in part, by breathalyzer results obtained
directly before arrest.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶20} Like the court in Wooten, we too are sympathetic to Hamilton’s
frustration that Lewis did not record the field-sobriety tests when it seems it would
have been easy to do so. But as the Wooten court stated:
We believe that the officer’s failure to use the audio and video equipment
could properly be considered by the trier of fact, whether during a motion
to suppress evidence hearing to determine the existence of probable
cause to arrest or at a trial on the merits, in the exercise of its duty to
assess witness credibility. In other words, a trier of fact could choose to
discount an officer's testimony in view of the failure to collect audio and
video evidence.
Wooten, 4th Dist. Athens No. 01CA31, 2002 WL 488122, at *4.
{¶21} Accordingly, we hold that the Youngblood rule applies to a bad-faith
failure to preserve evidence, not a bad-faith failure to create evidence. Lewis was
under no duty to record the field-sobriety tests and his failure to record the tests did
not violate Hamilton’s due-process rights. The first assignment of error is overruled.
Second Assignment of Error
{¶22} In her second assignment of error, Hamilton contends that she was
denied the effective assistance of trial counsel in violation of the Sixth Amendment to
the United States Constitution. Specifically, Hamilton argues that her trial counsel
was ineffective for not raising the due-process claim and for not playing the portions
of the backseat camera video that showed that the field-sobriety tests were conducted
at the side of the police cruiser and not behind the cruiser as Lewis testified.
{¶23} To establish an ineffective-assistance-of-counsel claim, an appellant
must show (1) that counsel’s performance was deficient, and (2) that the deficient
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OHIO FIRST DISTRICT COURT OF APPEALS
performance prejudiced the defense, thereby depriving appellant of a fair trial. State
v. Smith, 1st Dist. Hamilton No. C-180151, 2019-Ohio-5264, ¶ 63, citing Strickland v.
Washington,
466 U.S. 668, 687,
104 S.Ct. 2052,
80 L.Ed.2d 674 (1984).
{¶24} Regarding the second prong, prejudice requires that there be “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” State v. Bradley, 42 Ohio St.3d 136, 142,
538
N.E.2d 373 (1989), citing
Strickland at 694. This requires a showing that counsel’s
errors were “so serious as to deprive the defendant of a fair trial, a trial whose result
is reliable.”
Strickland at 687.
{¶25} “A defendant’s failure to satisfy one prong of the Strickland test
negates a court’s need to consider the other.” State v. See, 1st Dist. Hamilton Nos. C-
190251 and C-190252, 2020-Ohio-2923, ¶ 61, quoting State v. Madrigal,
87 Ohio
St.3d 378, 389,
721 N.E.2d 52 (2000).
{¶26} Because Lewis had no duty to record the field-sobriety tests, Hamilton
has not shown that there is a reasonable probability that her due-process claim
would have succeeded. She also has not shown that there is a reasonable probability
that the outcome of the trial would have been different had counsel played the
portions of the backseat camera video and noted that Lewis’s testimony about where
the tests were conducted was incorrect. The entire backseat camera video was on the
DVD labeled state’s exhibit 1, and the trial court stated that it had reviewed the DVD
prior to reaching a verdict. Thus, we must presume that the trial court reviewed the
backseat camera video, which revealed that the tests were conducted at the side of
the police cruiser. Nevertheless, the trial court found Lewis’s testimony to be
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OHIO FIRST DISTRICT COURT OF APPEALS
credible. Because Hamilton has failed to demonstrate prejudice, the second
assignment of error is overruled.
Third Assignment of Error
{¶27} In her third assignment of error, Hamilton argues that her conviction
for driving while under the influence of alcohol was based upon insufficient evidence
and against the manifest weight of the evidence.
{¶28} The test for determining the sufficiency of the evidence is whether
“after viewing the probative evidence and inferences reasonably drawn therefrom in
the light most favorable to the prosecution, any rational trier of fact could have found
all the essential elements of the offense beyond a reasonable doubt.” State v.
MacDonald, 1st Dist. Hamilton No. C-180310, 2019-Ohio-3595, ¶ 12, quoting State
v. Martin,
20 Ohio App.3d 172, 175,
485 N.E.2d 717 (1st Dist.1983). It is a question
of law for the court to determine, the court is not to weigh the evidence. MacDonald
at ¶ 12. “When evidence is susceptible to more than one construction, a reviewing
court must give it the interpretation that is consistent with the judgment.” In re J.C.,
1st Dist. Hamilton No. C-180493,
2019-Ohio-4027, ¶ 20.
{¶29} In reviewing a claim that a conviction is against the manifest weight of
the evidence, “we review the record, weigh the evidence and all reasonable
inferences, consider the credibility of the witnesses, and determine whether the trier
of fact, in resolving conflicts in the evidence, ‘clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be overturned.’ ” Martin, 20
Ohio App.3d at 175,
485 N.E.2d 717. Reversal of a conviction and a grant of a new
trial should only be done in “exceptional cases in which the evidence weighs heavily
against the conviction.”
Id. “The trier of fact is in the best position to judge the
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OHIO FIRST DISTRICT COURT OF APPEALS
credibility of the witnesses and the weight to be given to the evidence presented.”
State v. Carson, 1st Dist. Hamilton No. C-180336, 2019-Ohio-4550, ¶ 16.
{¶30} R.C. 4511.19(A)(1)(a) provides, “No person shall operate any vehicle …
* within this state, if, at the time of the operation, … [t]he person is under the
influence of alcohol.” To prove that Hamilton was “under the influence of alcohol,” it
was not necessary for the state to prove a particular level of alcohol concentration in
her body. See State v. Bakst, 30 Ohio App.3d 141, 146,
506 N.E.2d 1208 (1st
Dist.1986). Rather, the state was required to prove that Hamilton had consumed
alcohol in a quantity that had “adversely and appreciably impaired her actions or
mental processes and deprived her of that clearness of intellect and control of herself
which she would otherwise have had.” See State v. Hall,
2016-Ohio-783,
60 N.E.3d
675, ¶ 29 (1st Dist.), quoting
Bakst at 145.
{¶31} Lewis testified that Hamilton was speeding, smelled of alcohol, and
had bloodshot and glassy eyes. Moreover, he testified that her performance on the
field-sobriety tests exhibited impairment. Hamilton’s conviction was based upon
sufficient evidence.
{¶32} Regarding her argument that her conviction was against the manifest
weight of the evidence, Hamilton contends that the trial court clearly lost its way in
accepting Lewis’s testimony and the results of the field-sobriety tests because the
tests were not recorded. However, not only did Lewis testify about Hamilton’s poor
performance on the tests, the cruiser camera audio revealed that he noted the clues
of impairment into his microphone as Hamilton performed the tests. In addition,
Hamilton admitted that she could not do the one-leg-stand test. Thus, the trial court
did not clearly lose its way in believing Lewis’s testimony about Hamilton’s poor
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OHIO FIRST DISTRICT COURT OF APPEALS
performance on the tests. Hamilton’s conviction was not against the manifest weight
of the evidence. The third assignment of error is overruled.
Conclusion
{¶33} The appeal numbered C-200042 is dismissed. In the appeal
numbered C-200041, all assignments of error are overruled, and the judgment of the
trial court is affirmed.
Judgment accordingly.
MYERS, P.J., and WINKLER, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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