Court of Appeals of Ohio, Third District, Hancock
from Findlay Municipal Court Trial Court No. 16TRC05077
A. Davis for Appellant
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.
and Procedural History
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.
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.
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.
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.
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.
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
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
The Court: Without getting into the several research matters
that aren't before the court.
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.
[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
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.
Sullivan filed notice of appeal on April 21, 2017. Doc. 27.
On appeal, he raises four assignments of error, which read as
First Assignment of Error
The trial court erred by denying the motion to suppress the
Second Assignment of ...