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State v. Sullivan

Court of Appeals of Ohio, Third District, Hancock

December 11, 2017


         Appeal from Findlay Municipal Court Trial Court No. 16TRC05077

          Mark A. Davis for Appellant


          WILLAMOWSKI, J.

         {¶1} Defendant-appellant William E. Sullivan, Jr. ("Sullivan") appeals the judgment of the Municipal Court of Findlay, Ohio, alleging that (1) the trial court erred in denying his motion to suppress the results of his Horizontal Gaze Nystagmus Test ("HGN Test"); (2) the trial court erred in denying his Crim.R. 29 motion for acquittal; (3) the trial court erred by overruling his objections to the admission of testimony that referenced research discussing the accuracy of the HGN Test; and (4) the jury returned a verdict that was against the manifest weight of the evidence. For the reasons set forth below, the judgment of the lower court is affirmed.

         Facts and Procedural History

         {¶2} Officer Michael Cortez ("Cortez") is a deputy sheriff at the Hancock County Sheriffs Office. Trial Tr. at 29. At 9:11 p.m. on May 20, 2016, Cortez was on patrol when he received a dispatch that reported a single vehicle, non-injury accident had occurred in his vicinity. Id. at 42-43. When he arrived at the scene of the accident, he saw Sullivan's vehicle up against a utility pole in a ditch. Id. at 43-44. The utility pole was cracked about fifteen to twenty feet above the ground. Id. Cortez determined that Sullivan-the driver of the vehicle-had driven through a stop sign, lost control of his vehicle, and hit the utility pole. Id. at 53.

         {¶3} The fire department had already arrived at the scene of the accident, and Sullivan was standing about fifty to seventy-five feet away from his car. Id. at 44-45. Cortez approached Sullivan and began asking him some questions. Id. at 46. Cortez noticed that Sullivan was slow in responding to these questions and seemed lethargic. Id. No injuries were apparent to Cortez from Sullivan's appearance. Id. at 47-48. Cortez asked Sullivan if he needed any medical attention or if he had any injuries. Id. at 47. In response, Sullivan indicated that he was not injured. Id. Cortez and Sullivan then went into Cortez's cruiser to complete the report. Id. at 51. Cortez noticed that Sullivan took very deliberate and focused actions as he moved towards the cruiser. Id. at 51. Cortez also noticed that Sullivan, struggling to keep his balance, stumbled as he walked and stabilized himself by holding onto the cruiser. Id. at 52.

         {¶4} When Cortez got into the cruiser with Sullivan, he smelled "a strong odor of an alcoholic beverage." Id. at 53. In the light of the cruiser, he could also see that Sullivan's eyes were bloodshot and his face was flushed. Id. Cortez then asked Sullivan questions about the route on which Sullivan was driving. Id. at 54. Sullivan responded by claiming that he was on Interstate 280 by Toledo. Id. In fact, Sullivan and Cortez were at the intersection of State Route 613 and Township Road 136, which was at least forty-five minutes away from where he believed he was on Interstate 280. Id. at 55. When asked, Sullivan denied having any alcoholic beverages that evening. Id.

         {¶5} At this point, Cortez asked Sullivan to submit to a portable breath test. Id. at 56. Sullivan declined to take the portable breath test but subsequently agreed to submit to field sobriety tests. Id. Cortez then administered the HGN Test. Id. As Cortez administered the HGN Test, he observed six out of the six clues that are indicators of being under the influence in Sullivan's eyes. Id. at 69-70. Doc. 12. Since the weather outside was becoming inclement, Cortez decided not to proceed with further field sobriety tests. Trial Tr. 90. On the basis of the HGN Test results and his other observations, Cortez arrested Sullivan for operating a vehicle while under the influence. Doc. 1. The complaint was then filed on May 24, 2016. Doc. 1.

         {¶6} On July 25, 2016, Sullivan filed a motion to suppress the results of the HGN Test. Doc. 8. At the suppression hearing on October 12, 2014, Cortez testified as to his observations on the night of May 20, 2016. Suppression Hearing Tr. 11. The Defense then called Dr. William R. Bauer ("Dr. Bauer") as an expert witness. Id. at 47. Dr. Bauer, a neurologist, testified that he believed that Sullivan had a traumatic brain injury as the result of the car accident. Id. at 55. He further testified that he believed the six clues that Cortez observed during the HGN Test were symptoms of Sullivan's traumatic brain injury and were not indicators of intoxication. Id. at 51-52, 55. He also believed that the flushed face, lethargic movements, slow responses to questions, and glassy eyes were the result of the traumatic brain injury caused by the accident. Id. at 56-58. Dr. Bauer's conclusions on Sullivan's conditions were based solely on a telephone conversation with Sullivan that occurred on August 14, 2016. Id. at 53. On cross examination, Dr. Bauer admitted that he had not seen Sullivan in person until the hearing, had no consultations with Sullivan prior to their conversation on August 14, 2016, and was not involved in any treatments for Sullivan's alleged traumatic brain injury. Id. at 59-60, 61-62. The Defense did not present any evidence to corroborate the opinions of its expert witness. On December 28, 2016, the trial court overruled Sullivan's motion to suppress the results of the HGN Test. Doc. 12.

         {¶7} This case proceeded to trial on April 20, 2017. Trial Tr. 1. At trial, Cortez testified about his experience in law enforcement and his observations on the night that he cited Sullivan for operating a vehicle while under the influence. Id. at 29. He testified that he, in his twenty-three-year long career in law enforcement, had made over four hundred OVI arrests. Id. at 29, 41. He also stated that he has been an instructor who trains law enforcement officers on how to administer the HGN Test for the last fifteen years. Id. at 36. After explaining the workings of the HGN Test, he testified that he had observed six out of six clues in Sullivan's eyes. Id. at 58-65, 69. During this portion of his testimony, the following exchange took place between the prosecutor and Cortez:

[Prosecutor]: What if anything did [seeing six of six clues] mean to you?

[Cortez]: That means to me that according to the research that was conducted-

[Defense Counsel]: Objection.

The Court: Overruled.

[Cortez]: -according to the research that was conducted that is provided to us through our training that-the original research was done by the Southern California Research Institute, contracted by the National Highway Traffic Safety Administration. That began in 1975. In 1977 they did a field study only in California and again in 1977 they did another field and laboratory study and again in 1983 they did one in North Carolina, Maryland, Washington D.C., and Virginia and as a result of those particular-

[Defense Counsel]: Objection, your honor, this is hearsay testimony.

The Court: The question was what did the observations of the six clues mean to the officer.

[Cortez]: I'm just trying to explain so the jury understands.

The Court: Without getting into the several research matters that aren't before the court.

[Prosecutor]: Okay.

The Court: If you want to take him back to the basis of the training * * *.

[Prosecutor]: I'll ask a question to help get all of that aside, what do these results of Mr. Sullivan indicate to you?

[Cortez]: To simply put it, they did research and they found that when these four clues are-

[Defense Counsel]: Objection.

The Court: Sustained.

[Prosecutor]: Just if you can, Sergeant Cortez, so having observed those six clues, three in each eye what did that mean to you about Mr. Sullivan on May 20, 2016?

[Cortez]: That there was alcohol and/or drugs of abuse.

[Prosecutor]: Where?

[Cortez]: In his system.

Id. at 68-69. On appeal, Sullivan asserts that the State-through this exchange- improperly bolstered Cortez's testimony regarding the HGN Test results with inadmissible hearsay evidence. After Cortez's testimony, the State rested. Defense counsel then made a Crim.R. 29 motion, arguing that the State did not prove that Sullivan had consumed alcohol and, therefore, did not prove that Sullivan had alcohol in his system on the night of the alleged offense. Id. at 103. The trial court overruled Sullivan's Crim.R. 29 motion. Id. at 106.

         {¶8} During the Defense's case-in-chief, Sullivan again called Dr. Bauer as an expert witness. Id. at 109. During his testimony, Dr. Bauer again stated his belief that Sullivan had suffered a traumatic brain injury; that the indictors of intoxication observed by Cortez were actually symptoms of this injury; and that the HGN Test results were not reliable under these circumstances. Id. at 121, 123, 125-126. On cross examination, Dr. Bauer admitted that he had never performed a physical examination of Sullivan and had not viewed Sullivan's medical history records. Id. at 136. Dr. Bauer also admitted that his consultation was over the phone; that this consultation occurred three months after the accident on May 20, 2016; that he had never talked with Sullivan in person outside of the courtroom; and that he had not been involved in any treatments for this alleged traumatic brain injury. Id. at 136, 145. The jury found Sullivan guilty of violating R.C. 4511.19(A)(1)(a) on April 20, 2017. Doc. 34. Sullivan was sentenced at that time. Doc. 22-23.

         {¶9} Sullivan filed notice of appeal on April 21, 2017. Doc. 27. On appeal, he raises four assignments of error, which read as follows:

First Assignment of Error

The trial court erred by denying the motion to suppress the HGN Test.

Second Assignment of ...

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