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City of Cleveland v. Maxwell

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 22, 2017

CITY OF CLEVELAND PLAINTIFF-APPELLEE
v.
ERIC MAXWELL DEFENDANT-APPELLANT

         Criminal Appeal from the Cleveland Municipal Court Case No. 2016 TRC 008741

          ATTORNEYS FOR APPELLANT Mark Stanton Cuyahoga County Public Defender BY: David Martin King Assistant Public Defender

          ATTORNEYS FOR APPELLEE Barbara A. Langhenry Law Director City of Cleveland BY: Angela Rodriguez Assistant City Prosecutor

          BEFORE: E.T. Gallagher, P.J., Blackmon, J., and Celebrezze, J.

          JOURNAL ENTRY AND OPINION

          EILEEN T. GALLAGHER, PRESIDING JUDGE

         {¶1} Defendant-appellant, Eric Maxwell ("Maxwell"), appeals from his conviction for operating a vehicle under the influence of alcohol ("OVI"). He raises the following assignments of error for our review:

1. Defendant Eric Maxwell was denied effective assistance of counsel in violation of the sixth and fourteenth amendments to the U.S. Constitution and Article I, Section 10 of the Ohio Constitution.
2. Defendant's conviction for OVI was against the manifest weight of the evidence.

         {¶2} After careful review of the record and relevant case law, we affirm Maxwell's conviction.

         I. Procedural and Factual History

         {¶3} Maxwell was charged with OVI in violation of R.C. 4511.19(A)(1); failure to signal in violation of R.C. 4511.39; and OVI, with a prior conviction, in violation of R.C. 4511.19(A)(2)(a). In August 2016, the matter proceeded to a bench trial, where the following facts were adduced.

         {¶4} Trooper Hiram Morales ("Trp. Morales"), a 13-year veteran of the State Highway Patrol, testified that on March 11, 2016, sometime after 2:00 a.m., he observed Maxwell proceeding westbound on I-90, in the area of Lorain Avenue and the West 44th Street exit. While narrating a portion of his vehicle's dash camera, Trp. Morales testified that he saw Maxwell's vehicle move from the left lane, to the center lane, and then into the far-right lane without signaling.[1] Maxwell was driving in between the lanes and crossed over the hash marks separating the lanes of the highway. Upon observing these lane violations, Trp. Morales activated his overhead lights and Maxwell proceeded to stop on the right side of the highway exit ramp, between the right lane and the shoulder.

         {¶5} Trp. Morales testified that he approached the passenger side of Maxwell's vehicle and could smell the odor of an alcoholic beverage coming from within the vehicle. Based on this observation, Trp. Morales asked Maxwell to step out of the vehicle so he could perform a field sobriety test. Regarding his experience administrating field sobriety tests, Trp. Morales testified that he received his training on field sobriety tests from the Highway Patrol and has continued his education throughout his 13-year career. During 2014 and 2015 he made more than 100 OVI arrests. He administered three tests to Maxwell.

         {¶6} The first test Trp. Morales administered was the Horizontal Gaze Nystagmus test (the "HGN test"). In this test, the subject would be asked to follow, with the eyes, a stimulus such as the top of a pen or a finger, and the officer would look for an involuntary jerking of the subject's eyes. While standing within arm's length of Maxwell, Trp. Morales could smell the odor of an alcoholic beverage coming from Maxwell's breath, and observed that his eyes were red and glassy. While performing the HGN test, Trp. Morales noticed a lack of smooth pursuit in both of Maxwell's eyes while following the stimulus from right to left. Trp. Morales testified that Maxwell's eyes each showed distinctive jerking, indicative of intoxication. Trp. Morales did not perform the vertical-eye test because Maxwell indicated he had a prior injury that impeded his ability to look up and down.

         {¶7} Trp. Morales then conducted the turn-and-walk test. He first instructed Maxwell on how to perform the test: take nine steps from the starting position, heel to toe, then turn left and take nine steps back to the starting point, all the while counting the steps out loud. Before starting, Maxwell asked to remove his boots because they were oversized. While performing this test, Maxwell broke his initial position while being told the instructions, failed to touch heel-to-toe on some of the steps, ...


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