Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cleveland Municipal Court Case No. 2016 TRC
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,
JOURNAL ENTRY AND OPINION
T. GALLAGHER, PRESIDING JUDGE
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
2. Defendant's conviction for OVI was against the
manifest weight of the evidence.
After careful review of the record and relevant case law, we
affirm Maxwell's conviction.
Procedural and Factual History
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.
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. 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.
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.
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.
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, ...