[Cite as State v. Rabe,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. CA2013-09-068

: OPINION - vs - 5/12/2014 :

DAVID L. RABE, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2012CR00531

D. Vincent Faris, Clermont County Prosecuting Attorney, Judith A. Brant, 76 South Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee

The Farrish Law Firm, Michaela M. Stagnaro, 810 Sycamore Street, 6th Floor, Cincinnati, Ohio 45202, for defendant-appellant

PIPER, J.

{¶ 1} Defendant-appellant, David Rabe, appeals his convictions and sentence in the

Clermont County Court of Common Pleas for two counts of operating a vehicle while under

the influence of alcohol (OVI), along with counts of failing to stop after an accident and

driving under an OVI suspension.

{¶ 2} During the evening hours of June 13, 2012, Deputy Chris Allen was dispatched Clermont CA2013-09-068

to the scene of an accident reported by a 911 caller. The caller stated that he observed a

white work van with ladders attached to the roof hit two vehicles and flee the scene. The 911

caller followed the van to a side-street near an apartment complex, and got out of his vehicle

to approach the van. At that point, the white work van drove toward the caller, and the

ladders attached to the van's roof hit the caller's vehicle causing damage. The caller, who

had ducked out of the way of the ladders and was not injured, watched the van enter the

apartment complex and park haphazardly.

{¶ 3} The caller approached the driver, later identified as Rabe, and tried to speak to

him. During the interaction, the caller smelled alcohol on Rabe and observed Rabe acting as

if he was intoxicated. Rabe began telling other people in the parking lot that the caller had

just hit his work van, and then he walked into an apartment building.

{¶ 4} After the interaction with Rabe, the caller waited for Deputy Allen to arrive.

Once Deputy Allen arrived at the apartment complex, the 911 caller described Rabe and

identified the white van he had followed from the scene of the accident. The 911 caller

directed Deputy Allen to the specific building of the apartment complex he saw Rabe enter

after their interaction.

{¶ 5} Deputy Allen approached the white work van, which had ladders attached to the

roof, and observed "significant rear damage." Deputy Allen also noticed several people near

the van who were working on a vehicle. Deputy Allen asked the people if they were familiar

with the owner of the white work van, and they stated that they were. The people working on

the vehicle directed Deputy Allen to a specific apartment in building 68, and informed Deputy

Allen that the driver of the white van was named Dave. Deputy Allen approached the

apartment, knocked on the door, and was greeted by a woman later identified as Rabe's

girlfriend. When Deputy Allen asked to speak to the owner of the white work van, the woman

told Deputy Allen to "hold on a second," and then loudly called for Rabe. Rabe did not -2- Clermont CA2013-09-068

respond so Rabe's girlfriend permitted Deputy Allen to enter the apartment. Once in the

apartment, Deputy Allen found Rabe making toast in the kitchen.

{¶ 6} Deputy Allen observed that Rabe's eyes were bloodshot and glassy and that his

speech was somewhat slurred. Rabe had difficulty maintaining his balance, and another

deputy, who had since arrived at the apartment, had to help Rabe keep his balance. When

questioned by the deputies, Rabe stated that he had not driven the van that day, but could

not tell the deputies how the van was damaged or who could have been driving it at the time

of the accident. Deputy Allen informed Rabe of his belief that Rabe was the driver of the van

at the time of the accident. Deputy Allen informed Rabe that he was "going to take him into

custody * * *." Deputy Allen placed Rabe, who had become "uncooperative and upset," in

handcuffs and placed him in the back of his police cruiser until the highway patrol arrived. As

he placed Rabe in his cruiser, Deputy Allen noticed a "significant smell of alcohol coming

from [Rabe's] person."

{¶ 7} Trooper Drew Untied of the highway patrol arrived at the scene of the accident

and was told that a white van had caused the accident and then had fled the scene. The

drivers of the two vehicles hit by the white work van informed Trooper Untied that the van had

turned left in front of one vehicle, crashed into it, and then came to a stop. The white van

then backed up suddenly, hitting the other vehicle in the process. The van then drove over

the curb and fled the scene. The drivers told Trooper Untied that the white work van suffered

heavy damage to its rear, and that a witness to the accident had followed the white van after

it fled the scene.

{¶ 8} Police dispatch informed Trooper Untied that the driver of the white work van

had been detained at the apartment complex, and Trooper Untied went to the complex to

investigate further once he had finished investigating the scene of the accident. Once at the

complex, Trooper Untied observed that Rabe's van had extensive damage on the rear panel -3- Clermont CA2013-09-068

and bumper. Other officers at the scene informed Trooper Untied that Rabe's girlfriend had

given a statement that Rabe arrived at the apartment shortly before Deputy Allen knocked on

the door, and that Rabe was driving the white work van that day. Once he had all of the

pertinent information, Trooper Untied questioned Rabe.

{¶ 9} Trooper Untied opened the door to Deputy Allen's police cruiser to speak to

Rabe, and Trooper Untied detected a strong odor of alcohol coming from inside the cruiser.

Trooper Untied also observed that Rabe's eyes were "very bloodshot and glassy" and that

Rabe's speech was slightly slurred.

{¶ 10} Trooper Untied began the process of administering field sobriety tests, and

questioned Rabe about the incident. Rabe denied drinking and also stated that he was not

aware of what happened to his van. Rabe told Trooper Untied that he had an inner ear

problem that caused ringing in his ear and left him unbalanced. Rabe also told Trooper

Untied that he had an injured rotator cuff, a bulging disc in his lower back, a pinched nerve,

and had taken a prescribed sleeping pill prior to the officers coming to his home. Trooper

Untied then administered a horizontal gaze nystagmus (HGN) test and found that Rabe

exhibited six out of a possible six clues of impairment. Trooper Untied also administered a

walk-and-turn test and found five out of a possible eight clues, as well as a one-leg-stand test

with three out four clues indicating impairment. Trooper Untied then asked Rabe to recite

portions of the alphabet and to count backwards, and Rabe had difficulty doing both. Officer

Untied then informed Rabe that he would conduct a portable breath test, and Rabe refused

to cooperate in the testing and subsequently refused to take the Breathalyzer test.

{¶ 11} Rabe was indicted on two counts of OVI, and counts of failing to stop after an

accident and driving under an OVI suspension. Rabe filed a motion to suppress, arguing that

his arrest, by either Deputy Allen or Trooper Untied, was not based upon probable cause.

The trial court held a hearing on Rabe's motion, and heard testimony from Trooper Untied, -4- Clermont CA2013-09-068

Deputy Allen, and Rabe's girlfriend. The court overruled Rabe's motion to suppress, and the

matter was scheduled for trial.

{¶ 12} Ten days before the trial, Rabe filed a motion to substitute appointed counsel.

The trial court granted Rabe's motion, and issued an entry on March 20, 2013 stating that

Rabe was not permitted to use any additional witnesses or evidence at trial unless it could be

shown that the evidence could not have, in good faith, been discovered prior to the date of

the entry, March 20, 2013. Rabe later filed a motion in limine to prohibit the state from

introducing photos taken of Rabe's van on the day of the incident, some of which depicted

beer cans inside the van. The trial court overruled Rabe's motion, and the matter proceeded

to a two-day jury trial.

{¶ 13} The jury found Rabe guilty of all counts, and the trial court sentenced Rabe to

an aggregate three-year sentence, as well as a fine of $1,375, court costs, and restitution.

Rabe now appeals his convictions and sentence, raising the following assignments of error.

{¶ 14} Assignment of Error No. 1:

{¶ 15} THE TRIAL COURT ERRED AS A MATTER OF LAW BY OVERRULING

APPELLANT'S MOTION TO SUPPRESS.

{¶ 16} Rabe argues in his first assignment of error that the trial court erred in

overruling his motion to suppress.

{¶ 17} Appellate review of a ruling on a motion to suppress presents a mixed question

of law and fact. State v. Cochran, 12th Dist. Preble No. CA2006-10-023,

.

Acting as the trier of fact, the trial court is in the best position to resolve factual questions and

evaluate witness credibility.

Therefore, when reviewing the denial of a motion to

suppress, a reviewing court is bound to accept the trial court's findings of fact if they are

supported by competent, credible evidence. State v. Oatis, 12th Dist. Butler No. CA2005-03-

074,

. "An appellate court, however, independently reviews the trial court's -5- Clermont CA2013-09-068

legal conclusions based on those facts and determines, without deference to the trial court's

decision, whether as a matter of law, the facts satisfy the appropriate legal standard."

Cochran at ¶ 12.

{¶ 18} Rabe argues that the motion to suppress should have been granted because

(1) there was not probable cause to arrest him, (2) he was held for an unreasonable amount

of time in Deputy Allen's cruiser until Trooper Untied arrived to investigate and administer the

field sobriety tests, and (3) the field sobriety tests were not properly performed.

{¶ 19} In order to arrest a person without a warrant, an officer must have probable

cause. State v. Aslinger, 12th Dist. Preble No. CA2011-11-014,

, citing

Beck v. Ohio,

,

(1964). The test for establishing probable

cause to arrest without a warrant is whether the facts and circumstances within an officer's

knowledge were sufficient to warrant a prudent individual in believing that the defendant had

committed or was committing an offense.

A probable cause determination is based upon

the totality of the facts and circumstances. State v. Oglesby, 12th Dist. Clinton No. CA2004-

12-027,

.

{¶ 20} During the motion to suppress hearing, the trial court heard ample evidence to

establish that both Deputy Allen and Trooper Untied had probable cause to arrest Rabe.

Both officers testified to smelling alcohol coming from Rabe, that Rabe's eyes were bloodshot

and glassy, and that Rabe was slurring his speech and having difficulty with his balance. The

officers were also given information that the white work van with ladders attached to the roof,

which was owned by Rabe, had caused the accident. The officers observed extensive

damage to Rabe's van, indicative of being involved in the accident with the two vehicles. The

officers also had information from Rabe's girlfriend that Rabe had been driving the van on the

day of the accident, and that he had only arrived at the apartment moments before Deputy

Allen arrived to question Rabe. Based upon the totality of the circumstances, the officers -6- Clermont CA2013-09-068

were warranted in believing that Rabe had driven under the influence and had left the scene

of the accident. Therefore, Rabe's arrest was supported by probable cause and the trial

court properly overruled that aspect of the motion to suppress.

{¶ 21} Rabe also argues that his motion to suppress should have been granted

because Trooper Untied did not question him until approximately an hour after Deputy Allen

placed him in the police cruiser. Rabe suggests that absent probable cause to arrest for the

OVI-related crimes, all Deputy Allen had was a reasonable suspicion of criminal activity so

that Deputy Allen could have only detained Rabe for a reasonable time for a more in-depth

investigation. Rabe contends that the hour-long detention before Trooper Untied questioned

him was unreasonable.

{¶ 22} If during an initial detention, an officer ascertains reasonably articulable facts

giving rise to a suspicion of criminal activity, the officer may then further detain and

implement a more in-depth investigation of the suspect. State v. Smith, 12th Dist. Warren

No. CA2012-03-022,

, citing State v. Robinette,

(1997). Reasonable articulable suspicion exists when there are specific and articulable

facts which, taken together with rational inferences from those facts, reasonably warrant the

intrusion. State v. Bobo,

(1988).

{¶ 23} The record is clear that Deputy Allen had probable cause, not merely an

articulable suspicion, to detain Rabe for further investigation. During the time that Rabe sat

in the back of Deputy Allen's police cruiser, the police continued their investigation of the

accident site, as well as questioned witnesses to further develop the facts. Trooper Untied

remained at the crash site until he had investigated properly and had ensured that the

damaged vehicles were safely removed from the road. At that point, Trooper Untied went to

the apartment complex, where he received additional information and confirmed facts

indicating that Rabe was the driver of the white work van that had caused the accident and -7- Clermont CA2013-09-068

fled the scene.

{¶ 24} These facts, as already discussed above, indicated that Rabe was intoxicated,

had arrived at the apartment shortly before Deputy Allen arrived, and that Rabe was driving

the white work van. The time it took Trooper Untied to appear at the apartment complex was

reasonable, and he did nothing to delay the investigation and fact-gathering process. As

such, Trooper Untied's questioning was proper, and the motion to suppress was in this

regard also properly overruled.

{¶ 25} Rabe also argues that his motion to suppress should have been granted

because Trooper Untied failed to administer the field sobriety tests in compliance with the

guidelines set forth by the National Highway Traffic Safety Association (NHTSA).

Specifically, Rabe argues that Trooper Untied did not comply with the standards because he

did not take into account how Rabe's medical conditions would affect his ability to comply

with the field sobriety tests.

{¶ 26} In order for field sobriety testing evidence to be admissible, the state is not

required to show strict compliance with testing standards, but must instead demonstrate that

the officer substantially complied with NHTSA standards. R.C. 4511.19(D)(4)(b); and State v.

Clark, 12th Dist. Brown No. CA2009-10-039,

. "A determination of whether

the facts satisfy the substantial compliance standard is made on a case-by-case basis."

State v. Fink, 12th Dist. Warren Nos. CA2008-10-118, CA2008-10-119,

, ¶

26; State v. Selvage, 12th Dist. Clermont No. CA2011-08-058,

.

{¶ 27} After reviewing the record, we find that Trooper Untied substantially complied

with the NHTSA requirements when administering the field sobriety tests. Trooper Untied

testified at the motion to suppress hearing, and the state presented a video recording of

Rabe performing the field sobriety tests. A review of Trooper Untied's testimony and the

video demonstrates that Trooper Untied properly explained the testing to Rabe, and properly -8- Clermont CA2013-09-068

directed Rabe in taking each test. Trooper Untied followed NHTSA guidelines by discussing

any possible medical conditions with Rabe, and Rabe informed Trooper Untied that he had

inner ear problems, an injured rotator cuff, and bulging disks in his back. Rabe also informed

Trooper Untied that he had taken a sleeping pill that evening.

{¶ 28} Trooper Untied's testimony and the video demonstrate that Trooper Untied took

Rabe's medical impairments into consideration when conducting the field sobriety tests. For

example, at one point during the one-leg-stand test, Trooper Untied gave Rabe the option of

using either leg on which to balance because Rabe complained that his pinched nerve made

it difficult to stand on his right leg. However, at no other time did Rabe state that he was

unable to perform any of the tests because of his medical conditions, other than stating that

his back hurt during the one-leg-stand test. There is no indication in the record that Rabe

was unable to perform the tests or that Rabe's alleged medical conditions made the results of

the tests unreliable or skewed.

{¶ 29} Based on the facts of this case, the state carried its burden to demonstrate

substantial compliance with the NHTSA requirements so that the tests were admissible and

Rabe's motion to suppress was properly overruled. Therefore, Rabe's first assignment of

error is overruled.

{¶ 30} Assignment of Error No. 2:

{¶ 31} THE TRIAL COURT ERRED BY RESTRICTING APPELLANT FROM

INTRODUCING ANY EVIDENCE AND/OR WITNESSES THAT HAD NOT BEEN

DISCLOSED PRIOR TO MARCH 20, 2013.

{¶ 32} Rabe argues in his second assignment of error that the trial court erred by

closing discovery as of March 20, 2013, the day the trial court appointed Rabe new counsel.

{¶ 33} According to Crim.R. 16(L)(1), a trial court "may make orders regulating

discovery * * *." A trial court's decision regarding a discovery order will not be reversed -9- Clermont CA2013-09-068

absent an abuse of discretion. State v. Cartwright, 12th Dist. Preble No. CA2012-03-003,

. An abuse of discretion occurs when a trial court's decision is arbitrary,

unconscionable or unreasonable. State v. Smith, 12th Dist. Butler No. CA2008-03-064,

, ¶ 31.

{¶ 34} The record indicates that ten days before Rabe's jury trial was scheduled to

begin, he moved the court to appoint new counsel. Five days later, the trial court held a

hearing on Rabe's motion to appoint new counsel. Rabe told the trial court that he wanted

different representation because his original counsel was not preparing adequately for the

upcoming trial, was too intent upon Rabe pleading guilty to the charges, and was not

pursuing the evidence that Rabe claimed he had that established his innocence. The trial

court asked Rabe what more his counsel could be doing for him, and what evidence or

witnesses existed that Rabe's counsel was not pursuing. Rabe responded that the only

witness he intended to call was his girlfriend, and he was unaware of any other evidence.

{¶ 35} The trial court granted Rabe's motion to appoint new counsel, but also ordered

that discovery would be closed as of that date, March 20, 2013. The trial court reasoned that

Rabe acknowledged that he had no other evidence or witnesses to present on his behalf,

other than which was already discovered during the time of representation by Rabe's original

trial counsel. We do not find that the trial court's decision was an abuse of discretion.

{¶ 36} The trial court's order limited Rabe to the evidence that was already collected

during the normal discovery period before trial was scheduled to begin. Rabe untimely

moved for substitution of counsel, and the matter was heard only five days prior to the

scheduled commencement of Rabe's jury trial. The trial court's decision to close discovery

as of the date of substitution of counsel did not foreclose the possibility of using newly

discovered evidence, so long as the evidence could not have been, in good faith, discovered

before the substitution of counsel occurred. - 10 - Clermont CA2013-09-068

{¶ 37} Moreover, Rabe has not pointed to a single piece of evidence he was denied

from admitting, and has not stated any prejudice by the trial court's order. Rabe did not

proffer any evidence or witnesses he was foreclosed from presenting at trial because of the

trial court's order, and he has not argued on appeal that there was any such evidence

available to him after the date discovery was closed. As such, the trial court's decision to

close discovery was not an abuse of discretion, and Rabe's second assignment of error is

overruled.

{¶ 38} Assignment of Error No. 3:

{¶ 39} APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN

VIOLATION OF HIS CONSTITUTIONAL RIGHTS THUS PREJUDICING HIS RIGHT TO A

FAIR TRIAL.

{¶ 40} Rabe argues in his third assignment of error that his trial counsel was

ineffective for failing to successfully advance the motion to suppress, and for not objecting to

a photograph's admission at trial.

{¶ 41} Rabe first argues that his trial counsel was ineffective for not offering a more

specific argument regarding the field sobriety tests within his motion to suppress and at the

motion to suppress hearing. While the field sobriety tests were made an issue at the hearing

on the motion to suppress, Rabe argues that his counsel did not fully explore the issue, and

that if he had, the results of the hearing "may" have been different.

{¶ 42} In order to prove ineffective assistance of counsel, an appellant must establish

that first, "his trial counsel's performance was deficient; and second, that the deficient

performance prejudiced the defense to the point of depriving the appellant of a fair trial."

State v. Myers, 12th Dist. Fayette No. CA2005-12-035,

, citing Strickland

v. Washington,

,

(1984). Regarding the first prong, an

appellant must show that his counsel's representation "fell below an objective standard of - 11 - Clermont CA2013-09-068

reasonableness." Strickland, 466 U.S at 688. The second prong requires the appellant to

show "a reasonable probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different."

.

{¶ 43} Therefore, in order to establish that his trial counsel was ineffective, Rabe must

demonstrate that the trial court would have granted the motion to suppress based upon an

invalidity of the field sobriety tests. However, Rabe submits only that the results "may" have

been different and is otherwise unable to demonstrate that the tests were performed in an

improper manner.

{¶ 44} As previously discussed within Rabe's first assignment of error, Trooper Untied

substantially complied with NHTSA standards when administering the tests. Despite Rabe's

contention that further questioning of Trooper Untied would have revealed that he did not

take Rabe's medical conditions into consideration during the testing, Trooper Untied's

testimony and the video demonstrate otherwise. There is no indication in the record that any

further or more intensive questioning during the motion to suppress hearing would have

resulted in a different outcome. As such, Rabe cannot show that his trial counsel was

ineffective in arguing the motion to suppress.

{¶ 45} Rabe next contends that his trial counsel was ineffective for not objecting to the

admission of a photograph during the trial, which depicted beer cans in Rabe's van on the

day of the accident. The record demonstrates that Rabe's trial counsel moved the court in a

motion in limine to preclude the state from offering the photo at trial because the photograph

of the beer cans in the van was irrelevant and likely to lead to unfair prejudice and confusion

to the jury. However, the trial court overruled the motion, instead finding that the photograph

was relevant and that its probative value was not outweighed by any potential prejudicial

value.

{¶ 46} During the jury trial, Rabe's counsel did not object to the admission of the - 12 - Clermont CA2013-09-068

photograph at the time the state discussed the photograph with Trooper Untied during his

direct testimony.1 Rabe now argues that the lack of an objection rendered his assistance of

counsel ineffective. However, the record demonstrates that even if counsel had objected to

the admission of the photograph at the time the photograph was first discussed, such

objection would have been overruled because the photograph was admissible.

{¶ 47} "It is well-established that the admission or exclusion of evidence rests within

the sound discretion of the trial court." State v. Jones, 12th Dist. Butler No. CA2012-04-077,

. Absent an abuse of discretion, an appellate court will not disturb a trial

court's ruling as to the admissibility of evidence. State v. Isham, 12th Dist. Butler No.

CA2013-07-123,

.

{¶ 48} Evid.R. 401 defines relevant evidence as "evidence having any tendency to

make the existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence." According to Evid.R.

403(A), relevant evidence is not admissible "if its probative value is substantially outweighed

by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury."

{¶ 49} The record indicates that the photograph in question was admissible. The

photograph was relevant because it permitted the jury to see that Rabe's van contained

empty beer cans at the time of the accident, which could be probative of the fact that Rabe

had consumed alcohol prior to driving that day and that he was under the influence of alcohol

when he drove.

{¶ 50} The record does not demonstrate that the probative value of the photograph

was outweighed by any possible prejudicial effect it may have had. While it is true that some

1. Rabe's counsel objected to the admission of the photographs after the state called its last witness and the parties discussed which exhibits were being offered into evidence. Rabe's counsel objected to the photographs showing the beer, and the trial court overruled the objection, finding that the photographs were relevant, were not unduly prejudicial, and would not confuse the jury.

- 13 - Clermont CA2013-09-068

of the cans were located in the rear of the van and therefore could not be accessed by Rabe

while he drove, such a fact would speak to the weight of the evidence, rather than to its

admissibility. There was no indication that the jury would be, or was, confused by the

photograph, or that the photograph was misleading to the jury in any manner. Therefore, the

photograph was admissible, and any objection to its admissibility would have been properly

overruled by the trial court.

{¶ 51} Having found that the results of the motion to suppress hearing would not have

been different and that the photograph was admissible, Rabe has failed to demonstrate that

his trial counsel's performance was ineffective. As such, Rabe's third assignment of error is

overruled.

{¶ 52} Assignment of Error No. 4:

{¶ 53} THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW AND/OR

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE TO SUSTAIN APPELLANT'S

CONVICTIONS.

{¶ 54} Rabe argues in his fourth assignment of error that his convictions are not

supported by sufficient evidence and are against the manifest weight of the evidence.

{¶ 55} A manifest weight challenge examines the inclination of the greater amount of

credible evidence, offered at a trial, to support one side of the issue rather than the other.

State v. Wilson, 12th Dist. Warren No. CA2006-01-007,

.

In determining whether a conviction is against the manifest weight of the evidence, the court, reviewing the entire record, weighs the evidence 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 such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.

State v. Cummings, 12th Dist. Butler No. CA2006-09-224,

.

{¶ 56} While appellate review includes the responsibility to consider the credibility of - 14 - Clermont CA2013-09-068

witnesses and weight given to the evidence, "these issues are primarily matters for the trier of

fact to decide since the trier of fact is in the best position to judge the credibility of the

witnesses and the weight to be given the evidence." State v. Walker, 12th Dist. Butler No.

CA2006-04-085,

. Therefore, an appellate court will overturn a

conviction due to the manifest weight of the evidence only in extraordinary circumstances to

correct a manifest miscarriage of justice, and only when the evidence presented at trial

weighs heavily in favor of acquittal. State v. Thompkins,

(1997).

{¶ 57} 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. Wilson,

. "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,

(1991), paragraph two of the syllabus,

superseded on other grounds.

{¶ 58} Rabe was convicted of OVI in violation of R.C. 4511.19(A)(1)(a), which

provides, "no person shall operate any vehicle * * * if, at the time of the operation, any of the

following apply: the person is under the influence of alcohol, a drug of abuse, or a

combination of them." Rabe was also convicted of failing to stop after an accident or collision

in violation of R.C. 4549.02, which prohibits a person from leaving the scene of an accident.

Rabe was also convicted of operating a motor vehicle with a suspended license, in violation

of R.C. 4510.14(A), which prohibits a person from driving while under an OVI-related

suspension.

{¶ 59} After reviewing the record, each of Rabe's convictions was supported by

sufficient evidence and was not against the manifest weight of the evidence. During the trial,

the state presented testimony from the two drivers whose vehicles were hit by Rabe's white - 15 - Clermont CA2013-09-068

work van, who testified that Rabe turned left in front of the first vehicle, causing the first

vehicle to slam into the rear passenger portion of Rabe's work van. After Rabe's van had

come to a stop, Rabe backed his van into the second vehicle, also hitting it and causing more

damage to the back of the white work van. Both of the drivers testified that Rabe fled the

scene without stopping.

{¶ 60} The state also presented testimony from the 911 caller who had witnessed the

accident and followed Rabe once he fled the scene. The caller testified that he witnessed

the accident and began to follow Rabe once Rabe left the scene. The caller testified that he

exited his car once Rabe had turned near the apartment complex and the van came to a

stop. The caller testified that upon exiting his vehicle to check on the driver of the white van,

the van began driving toward him, and that the ladders on top of the white work van hit his

own vehicle and caused damage. The caller then watched Rabe turn into the apartment

complex and watched him exit the van. The two had an exchange wherein Rabe accused

the caller of hitting his vehicle.

{¶ 61} The caller testified that after Rabe accused him of hitting his vehicle, he

remained at the apartment complex until Deputy Allen arrived. The caller testified that during

his exchange with Rabe, he smelled alcohol coming from Rabe and that Rabe exhibited

behavior indicative of intoxication. The caller also made an in-court identification of Rabe as

the driver he saw cause the accident and flee from the scene.

{¶ 62} The state also presented testimony from Deputy Allen regarding his

investigation of the incident and of Rabe. Deputy Allen testified that he was dispatched in

response to a 911 call wherein the caller reported the accident and that the driver fled the

scene. Deputy Allen approached the apartment complex once he received an update that

the caller had followed Rabe to the specific apartment building. Deputy Allen arrived at the

apartment complex, spoke to the 911 caller, and observed extensive damage to the rear- - 16 - Clermont CA2013-09-068

passenger side of Rabe's white work van. Deputy Allen then conversed with the people who

were working nearby on their vehicle, and confirmed that the driver's name was Dave and

that he lived in a particular apartment within the complex.

{¶ 63} Deputy Allen testified that upon his approach to the apartment, he knocked on

the door and met a woman who was later identified as Rabe's girlfriend. The woman allowed

Deputy Allen to enter the apartment, where he came into contact with Rabe in the kitchen.

Deputy Allen testified that Rabe's eyes were bloodshot and glassy, and that he was slurring

his speech. Deputy Allen also testified that Rabe had difficulty balancing and was "swaying

back and forth" as the two conversed. Deputy Allen testified that he continued to question

Rabe, and that Rabe denied having been the driver of the van.

{¶ 64} Once Rabe became belligerent and agitated, Deputy Allen handcuffed Rabe

and escorted him out of his apartment and into the back of the police cruiser. Deputy Allen

testified that once he came into contact with Rabe in order to handcuff him, he could smell

the odor of alcohol coming from Rabe's breath. Deputy Allen also testified that he and

another officer had to physically assist Rabe in walking because Rabe was so unsteady on

his feet and they were afraid that he "was going to topple over" if they did not assist his

walking.

{¶ 65} The state also presented the testimony of Trooper Untied who relayed how he

had investigated the scene of the accident, and was told by the drivers and witnesses that a

white work van with ladders attached to the top had caused the accident and fled the scene.

Trooper Untied testified that once he investigated the scene of the accident, he went to the

apartment complex. There, he observed the white work van that belonged to Rabe, and saw

that it had extensive damage to the rear passenger area consistent with what the witnesses

to the accident described. Trooper Untied testified that other officers gave him information

about the investigation, including a statement from Rabe's girlfriend that Rabe had only - 17 - Clermont CA2013-09-068

arrived at the apartment moments before Deputy Allen knocked on the door and that Rabe

had been the driver of the van that day.

{¶ 66} Trooper Untied then testified about speaking with Rabe, and asking him

questions. Trooper Untied testified that he immediately detected "a strong odor of an

alcoholic beverage coming from inside the cruiser," that Rabe's eyes were "very bloodshot

and glassy," and that Rabe slurred his speech. Trooper Untied further testified about

administering the field sobriety tests, and indicated to the jury his belief that Rabe was

"absolutely under the influence" based upon his interaction with Rabe and the results of the

tests.

{¶ 67} Near the conclusion of Trooper Untied's direct examination, the state played the

video of Trooper Untied's interaction with Rabe during which time the field sobriety tests were

conducted. Rabe can be seen in the video, having difficulty performing the tests, and

Trooper Untied can be heard speaking into his microphone and indicating every time that

Rabe fails to perform the tests in an unimpaired manner. Trooper Untied then testified

regarding Rabe's refusal to submit to the portable breath test, and also testified that he was

informed during his conversation with Rabe that Rabe's license had been suspended

because of a previous OVI conviction.

{¶ 68} After viewing the foregoing evidence in a light most favorable to the

prosecution, we find that the jury could have found the essential elements of the crimes

proven beyond a reasonable doubt. Therefore, the jury did not create a manifest miscarriage

of justice through its guilty verdicts, and the evidence did not weigh heavily in favor of

acquittal. As such, Rabe's convictions are supported by sufficient evidence and are not

against the manifest weight of the evidence, and his fourth assignment of error is overruled.

{¶ 69} Assignment of Error No. 5:

{¶ 70} THE TRIAL COURT ERRED AS A MATTER OF LAW BY IMPROPERLY - 18 - Clermont CA2013-09-068

SENTENCING APPELLANT.

{¶ 71} Rabe argues in his final assignment of error that the trial court's sentence was

improper.

{¶ 72} Rabe first argues that the trial court erred in ordering him to pay restitution

because it did not consider his present and future ability to pay the sanction.

{¶ 73} According to R.C. 2929.18(A)(1), a trial court may sentence the defendant to a

financial sanction as part of the defendant's felony sentence. "Before imposing a financial

sanction under section 2929.18 of the Revised Code * * * the court shall consider the

offender's present and future ability to pay the amount of the sanction or fine." R.C.

2929.19(B)(5).

{¶ 74} "Although preferable for appellate review, a trial court need not explicitly state in

its judgment entry that it considered a defendant's ability to pay a financial sanction. Rather,

courts look to the totality of the record to see if this requirement has been satisfied." State v.

Dehner, 12th Dist. Clermont No. CA2012-12-090,

, quoting State v.

Henderson, 4th Dist. Vinton No. 07CA659,

. There are no express

factors that must be considered or specific findings made regarding the offender's ability to

pay. State v. Dandridge, 12th Dist. Butler No. CA2003-12-330,

. R.C.

2929.19(B)(5) requires only that the trial court consider the offender's present or future ability

to pay.

citing State v. Martin,

(4th Dist. 2000).

{¶ 75} During sentencing, the trial court discussed the restitution to be paid to each

victim, and did so having considered whether or not Rabe had the present or future ability to

pay. The record indicates that the trial court abided by the statutory requirement to consider

Rabe's present and future ability to pay because the trial court specifically stated its belief

that when Rabe is released from prison he would be able to obtain employment. This

statement is indicative of the trial court's reasoning that while Rabe may not have the present - 19 - Clermont CA2013-09-068

ability to pay as an incarcerated inmate, Rabe would have the future ability to pay the

sanction because he would be able to obtain employment at that time. Therefore, the record

indicates that the trial court fulfilled its statutory obligation before sentencing Rabe to a

financial sanction.

{¶ 76} Rabe next argues that his sentence was improper because the trial court

imposed its sentence without first considering the purposes and principles of sentencing or

any of the factors set forth in the sentencing statute.

{¶ 77} "The standard of review set forth in R.C. 2953.08(G)(2) shall govern all felony

sentences." State v. Crawford, 12th Dist. Clermont No. CA2012-12-088,

, quoting State v. A.H., 8th Dist. Cuyahoga No. 98622,

. As pertinent to

this case, an appellate court will only reverse a felony sentence if the court "clearly and

convincingly finds" that the trial court's sentence is contrary to law. State v. Durham, 12th

Dist. Warren No. CA2013-03-023,

.

{¶ 78} A sentence is not clearly and convincingly contrary to law where the trial court

considers the purposes and principles of R.C. 2929.11, as well as the factors listed in R.C.

2929.12, and sentences appellant within the permissible statutory range. Crawford at ¶ 9;

State v. Elliott, 12th Dist. Clermont No. CA2009-03-020,

, ¶ 10.

{¶ 79} Despite Rabe's arguments, the record demonstrates that the trial court

considered the statutory factors and sentenced Rabe within the permissible statutory range.

During the sentencing hearing, the trial court expressly noted that it had considered the

"purposes and principles of sentencing under 2929.11 and .12," and began to discuss how

those factors related to Rabe and to the circumstances of the case. The trial court noted that

Rabe was a repeat offender and had a previous OVI in the past, and that he showed little

concern for the victims or remorse generally. The court also noted that the circumstances

surrounding the crash were disturbing and required a prison sentence. Additionally, the trial - 20 - Clermont CA2013-09-068

court's judgment entry of sentence specifically states that it had reviewed "and considered

the purposes and principles of sentencing under R.C. 2929.11 and 2929.12 * * *."

{¶ 80} After reviewing the record, the trial court properly considered the statutory

requirements before sentencing Rabe as it did. Therefore, Rabe's final assignment of error is

overruled.

{¶ 81} Judgment affirmed.

RINGLAND, P.J., and M. POWELL, J., concur.

- 21 -