[Cite as State v. Crowe,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. CA2015-07-065

: OPINION - vs - 4/18/2016 :

MARK QUENTIN CROWE, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 15 CR 30701

David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 520 Justice Drive, Lebanon, Ohio 45036, for plaintiff-appellee

Bryan Scott Hicks, P.O. Box 359, Lebanon, Ohio 45036, for defendant-appellant

PIPER, P.J.

{¶ 1} Defendant-appellant, Mark Crowe, appeals his conviction in the Warren County

Court of Common Pleas for operating a vehicle under the influence of alcohol.

{¶ 2} Officer Jeff Strader of the Springboro Police Department was patrolling when he

observed a white van traveling 54 m.p.h. in an area where the maximum speed limit was 35

m.p.h. Officer Strader pulled behind the van and initiated a traffic stop. After the van pulled

over, Officer Strader approached the driver, later identified as Crowe, who told Officer Warren CA2015-07-065

Strader that he did not have a valid driver's license. During his interaction with Crowe, Officer

Strader observed that Crowe's speech was slow and broken, his eyes were bloodshot, and

that a strong fruity odor was emanating from the van.

{¶ 3} Once Officer Strader confirmed that Crowe's license had been suspended, he

had Crowe exit the van, and observed that Crowe had difficulty standing, and that the fruity

odor was emanating directly from Crowe's person. Officer Strader then began the process of

having the van towed, and observed empty cans of Sparks, a fruit-flavored alcoholic drink, as

well as an unopened can of Sparks in Crowe's vehicle. Officer Strader then confirmed that

the fruity odor he previously smelled was coming from the Sparks cans, which were cool to

the touch. Officer Strader also found empty cans of beer in the van, which were warm.

{¶ 4} When Officer Strader asked Crowe if he had been drinking that day, Crowe

stated that other men had been in his van who had been drinking, and denied drinking

himself. Officer Strader then asked Crowe to perform field sobriety tests. Crowe agreed to a

horizontal gaze nystagmus test, but refused the others; claiming he was unable to perform

the one-leg stand and walk-and-turn because of a previous injury. Officer Strader then

administered the HGN test and observed three out of a possible six clues of intoxication, thus

indicating that Crowe was impaired. Officer Strader transported Crowe to the police

department, and asked Crowe to submit to a breath test to determine his blood alcohol

content. However, Crowe refused, stating that he would not submit to the test without having

an attorney present.

{¶ 5} Crowe, who had been convicted of five prior OVIs in less than 15 years, was

charged with two counts of OVI with specifications that he had been convicted of five prior

OVIs in the past 20 years. Crow pled not guilty, and the matter proceeded to a bench trial.

On the day the bench trial was to begin, Crowe requested a continuance because one of his

witnesses was not present. The trial court denied Crowe's request for a continuance and -2- Warren CA2015-07-065

later found him guilty of the charges. The trial court then merged the counts for sentencing,

and sentenced Crowe to an aggregate prison term of two years for the OVI conviction and

specification. Crowe now appeals his conviction, raising the following assignments of error.

For ease of discussion, we will address the assignments of error out of order.

{¶ 6} Assignment of Error No. 1:

{¶ 7} THE TRIAL COURT ABUSED ITS DISCRETION IN REFUSING TO GRANT A

CONTINUANCE.

{¶ 8} Crowe argues in his first assignment of error that the trial court abused its

discretion in denying his motion for a continuance because one of his key witnesses did not

appear for trial.

{¶ 9} It is well-established that a trial court has broad discretion in determining

whether to grant or deny a continuance. State v. Robinson, 12th Dist. Clermont No. CA2015-

01-013,

. This court will not reverse the trial court's decision to deny a

defendant's motion for a continuance absent an abuse of discretion. State v. Glowka, 12th

Dist. Butler No. CA2012-10-203,

. An abuse of discretion "connotes

more than an error of law or of judgment; it implies that the court's attitude is unreasonable,

arbitrary or unconscionable." State v. Jackson,

,

, ¶ 181.

{¶ 10} While there is no bright-line test for determining whether a continuance should

be allowed, the trial court should be guided by consideration of several factors, "including the

length of the requested delay, whether other continuances have been requested and

received, the inconveniences likely to result, the reasons for the delay, and whether the

defendant contributed to the circumstances giving rise to the need for delay." State v.

Franklin,

,

.

{¶ 11} At the commencement of the bench trial, Crowe asked the trial court to

continue the case because one of his witnesses failed to appear. Crowe admitted that he -3- Warren CA2015-07-065

had failed to subpoena the witness, claiming that he did not have a valid address for the

witness. The trial court then addressed several factors, including that the charges had been

pending for ten months, the case had already been continued once, the state's witness

appeared and the state was ready to proceed, as well as Crowe's statement that his witness

was "hard to track" down. The trial court also considered that the witness would have

essentially testified that the beer cans found in Crowe's van on the day of the stop were his,

but the witness could not testify to the circumstances of the actual stop or the fruity alcoholic

drink being present in Crowe's van when he was stopped. We find that the trial court did not

abuse its discretion in denying the motion.

{¶ 12} Regarding the length of the requested delay, there is no indication in the record

how long of a continuance would have been necessary to procure the witness' attendance.

As indicated by Crowe, the witness was difficult to find and had changed his mind after first

agreeing to appear as a witness at trial. As such, there is no indication that the witness

would have appeared, even if a continuance would have been granted given the difficulty in

locating him and securing his attendance.

{¶ 13} The record also demonstrates that a prior continuance had been requested,

albeit by the state, which gave both parties ample time to prepare their respective cases.

Given that the state's witness appeared at trial and the state was ready to proceed, the

record indicates that state and the court would have been inconvenienced by any

continuance granted on the day the trial was set to begin.

{¶ 14} Moreover, and regarding the reasons for the delay, it is clear that Crowe did not

attempt to subpoena the witness, and as such, contributed to the circumstances giving rise to

the need for delay. Even if the witness had been difficult to "track down," Crowe could have

subpoenaed the witness to compel his attendance at trial, but did not take any action to do as

much. After reviewing the factors, as well as the limited impact the witness' testimony would -4- Warren CA2015-07-065

have had on the issues, we find that the trial court did not abuse its discretion in denying

Crowe's request for a continuance. As such, Crowe's first assignment of error is overruled.

{¶ 15} Assignment of Error No. 3:

{¶ 16} THE TRIAL COURT ERRED FINDING SUFFICIENT EVIDENCE TO

CONVICT.

{¶ 17} Crowe argues in his third assignment of error that his conviction was not

supported by sufficient evidence.

{¶ 18} When reviewing the sufficiency of the evidence underlying a criminal conviction,

an appellate court examines the evidence in order to determine whether such evidence, if

believed, would support a conviction. State v. Crockett, 12th Dist. Fayette No. CA2014-08-

018,

, ¶ 18. "The relevant inquiry is whether, after viewing the evidence in a

light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime proven beyond a reasonable doubt." State v. Jenks,

(1991), paragraph two of the syllabus, superseded on other grounds.

{¶ 19} When offering proof, both circumstantial and direct evidence have the same

probative value, and in some instances, certain facts can be established only by

circumstantial evidence. State v. Crutchfield, 12th Dist. Warren No. CA2005-11-121, 2006-

Ohio-6549, ¶ 20. Circumstantial evidence is sufficient to sustain a conviction if that evidence

would convince the average mind of the defendant's guilt beyond a reasonable doubt. State

v. McKnight,

,

, ¶ 75. A conviction based on purely

circumstantial evidence is no less sound than a conviction based on direct evidence. State v.

Shannon,

,

, ¶ 10 (12th Dist.).

{¶ 20} Crowe was convicted of OVI in violation of R.C. 4511.19(A)(2)(a) and (b), which

provides that no person, who has been convicted of a prior OVI in the last 20 years, shall

drive while intoxicated and then refuse to submit to a test to determine the person's blood -5- Warren CA2015-07-065

alcohol content. During the bench trial, the state presented testimony, that when viewed in a

light most favorable to the prosecution, demonstrates that the essential elements of R.C.

4511.19 (A)(2)(a) and (b) were proven beyond a reasonable doubt.

{¶ 21} Officer Jeff Strader testified that he had been specially trained to detect

intoxicated driving, and that his certificate on administering field sobriety tests was in good

standing on the day he stopped Crowe. On the day in question, Officer Strader observed a

white van speeding, and later determined that the driver was Crowe. Officer Strader testified

that according to his radar, Crowe was driving at 54 m.p.h. in a zone where the maximum

speed limit was 35 m.p.h. Officer Strader pulled behind Crowe's van and activated his lights,

at which time Crowe continued to drive. Officer Strader then initiated his siren in addition to

his lights, and Crowe continued to drive. Only after Officer Strader initiated his siren for a

second time did Crowe pull over.

{¶ 22} Once Officer Strader made contact, Crowe indicated that he did not have a

valid driver's license. Crowe also gave the officer conflicting stories as to where he was

going, at first stating he was going to retrieve money from someone, and then later stating he

was going home. Officer Strader testified that he noticed that Crowe's speech was "slow and

broken," that Crowe "had no emotion in his voice," and that Crowe's vocal cadence was "very

monotone." Officer Strader testified that the lack of inflection in Crowe's voice was indicative

of impairment, especially when considering that Crowe told Officer Strader that he had to get

home to his wife who was on her deathbed and was scheduled to have surgery the next day.

Officer Strader also testified that Crowe's eyes were bloodshot and that there was a "strong,

fruity odor coming from the vehicle."

{¶ 23} Once Officer Strader confirmed that Crowe did not have a valid driver's license,

he informed Crowe that the van he was driving would be towed according to police

department policy. As part of the towing process, Officer Strader informed Crowe that the -6- Warren CA2015-07-065

contents of the van would be inventoried. At that point, and without any question from Officer

Strader, Crowe told Officer Strader that other men had been in his van that day.

{¶ 24} Upon Crowe's exiting his van, Officer Strader noticed that Crowe was "uneasy"

on his feet and that there was a fruity odor emanating from Crowe's person, especially after

Crowe was transported to the officer's police cruiser. Officer Strader testified that as he

inventoried Crowe's van, he found empty beer cans in the back second row seating area of

the van, and that he found four empty cans of a fruit-flavored alcoholic beverage called

Sparks. While four of the Sparks cans were empty, there was one full can that had not been

opened yet, and was located within "arm's reach" of the driver's seat. Officer Strader testified

that the cans of Sparks, those opened and unopened, were cool to the touch and did not

"feel like they'd been sitting" in the van all day.1 Officer Strader testified that the Sparks cans

had a fruity odor, the same that he had smelled emanating from Crowe's person.

{¶ 25} Officer Strader testified that when he asked Crowe about the empty cans of

alcohol in his van, Crowe responded with several stories, including that four to five men had

been in his van earlier in the day drinking. Crowe also told Officer Strader that the men had

been working with him that day, and had cut down approximately 30 trees. However, the

only tool located in the van was an ax. Crowe did not provide Officer Strader with the names

of the men who were with him that day, nor could he indicate where the men were located at

the time.

{¶ 26} Officer Strader testified that he asked Crowe to perform field sobriety tests, and

that Crowe refused the one-leg stand and the walk-and-turn tests because he had a prior

injury. However, Crowe agreed to take a HGN test, which showed three clues of impairment.

Officer Strader testified that before he administered the HGN test, Crowe indicated that his

1. The record indicates that the day in question was very warm.

-7- Warren CA2015-07-065

eyes were "perfect," and then later changed his story and told Officer Strader that he may be

"deaf in one eye."

{¶ 27} Officer Strader testified that once he transported Crowe to the police station,

Crowe refused to take a breathalyzer test to determine his blood alcohol content. Despite

understanding the consequences of refusing the test given his past convictions, Crowe

refused the test because he wanted to have a lawyer present during testing. The trial court

also watched a video captured on Officer Strader's police cruiser video camera, which

captured the interactions between Officer Strader and Crowe on the evening of the traffic

stop. The trial court was therefore able to observe Crowe's demeanor, speech patterns,

physical movements, and his general behavior on the night in question.

{¶ 28} When viewed in a light most favorable to the prosecution, the record indicates

that Crowe was impaired while he was driving his van on the day in question. While the

evidence was circumstantial that Crowe had, at the very least, consumed the Sparks

alcoholic beverages, the state nonetheless presented sufficient evidence that Crowe was

slow to stop once he was pulled over by Officer Strader, Crowe's eyes were bloodshot, his

speech was slow and broken, he was uneasy on his feet, and that the HGN test showed

multiple clues of impairment. Moreover, Crowe's refusal to participate in a breath test lends

incredulity to his statement that he had not consumed alcoholic beverages that day. As

such, we find that Crowe's OVI conviction and resulting specification, was supported by

sufficient evidence.2 Crowe's third assignment of error is therefore overruled.

{¶ 29} Assignment of Error No. 2:

{¶ 30} THE TRIAL COURT IMPROPERLY RELIED ON THE HGN TEST AS

SCIENTIFIC EVIDENCE BUT FAILED TO REQUIRE EXPERT TESTIMONY TO ALLOW

2. Crowe admitted on cross-examination that he had been convicted of OVI five times in the last 20 years, and has not disputed that aspect of his conviction and sentence on appeal.

-8- Warren CA2015-07-065

SUCH EVIDENCE TO BE ADMITTED AS A SCIENTIFIC TEST.

{¶ 31} Crowe argues in his second assignment of error that the trial court improperly

relied on the HGN test as scientific evidence of his intoxication because a HGN test is not

scientific in nature absent supporting expert testimony.

{¶ 32} Despite Crowe's argument on appeal that the trial court erred by referring to the

HGN results as scientific evidence, Crowe did not object to the trial court's statement when

made. As such, Crowe has waived all but plain error. State v. McCollum, 12th Dist.

Clermont No. CA2014-11-077,

. A plain error is any error or defect

"affecting substantial rights [that] may be noticed although they were not brought to the

attention of the court." Crim.R. 52(B). Notice of plain error is to be taken with the utmost

caution, under exceptional circumstances and only to prevent a manifest miscarriage of

justice. State v. Long,

(1978). Accordingly, an error does not rise to the

level of a plain error unless, but for the error, the outcome of the trial would have been

different. McCollum at ¶ 11.

{¶ 33} As stated by the Ohio Supreme Court, "HGN test results are admissible in Ohio

without expert testimony so long as the proper foundation has been shown both as to the

administering officer's training and ability to administer the test and as to the actual technique

used by the officer in administering the test." State v. Boczar,

, 2007-

Ohio-1251, ¶ 28. This is true because an "HGN test cannot be compared to other scientific

tests, such as a polygraph examination, since no special equipment is required in its

administration." Id. at ¶ 26.

{¶ 34} After the trial, the trial court pronounced its judgment, and relied on the HGN

results as part of its reasoning for a guilty verdict. The trial court stated "the second

compelling piece of evidence is the horizontal gaze nystagmus test and [Crowe's] failure to

successfully complete all six parts of that test. That test is designed to provide some -9- Warren CA2015-07-065

scientific evidence that only alcohol would contribute to the quivering of the eye muscles

under certain circumstances." The court later stated, "why did he fail the nystagmus test on

both eyes? The scientific explanation for that is because he was impaired." Crowe now

argues that the trial court erred in treating the HGN results as scientific proof of impairment

without hearing expert testimony.

{¶ 35} However, and as stated above, the Ohio Supreme Court has clearly held that

expert testimony is not necessary so long as the state lays a proper foundation that the

administrating officer is qualified to give the test and that the proper testing techniques were

used. During trial, Officer Strader testified to his certification in the area of administering field

sobriety tests, and testified to the manner in which he administered the test to Crowe.

Nothing in the officer's testimony indicates that he used improper testing techniques. While

the trial court may have made reference to the HGN results as scientific in nature, the trial

court's simple use of the adjective "scientific" did nothing to actually render the HGN test

results scientific evidence requiring accompanying expert testimony. Nor did the use of the

adjective demonstrate that the court improperly considered the results once the state

presented the proper foundation that the test was properly administered by a trained and

certified officer.

{¶ 36} Moreover, we would classify any error the trial court made in referring to the

HGN results as being scientific in nature as harmless, rather than plain error, given the other

evidence of guilt. The record does not indicate that the trial court placed any improper value

on the results of the HGN test, especially where the trial court specifically made reference to

other pieces of evidence to support Crowe's guilt, including Crowe's refusal to take the breath

test, the videotape of Crowe's stop that showed his demeanor and actions during the stop, as

well as the observations made by Officer Strader regarding his interaction with Crowe. As

such, and given this other evidence of guilt, the trial court did not commit plain error by

- 10 - Warren CA2015-07-065

relying on the results of the HGN test without having accompanying expert testimony.

Crowe's second assignment of error is therefore overruled.

{¶ 37} Judgment affirmed.

S. POWELL and HENDRICKSON, JJ., concur.

- 11 -