Court of Appeals of Ohio, Fifth District, Fairfield
from the Fairfield County Muncipal Court, Case No. TRC 17
Plaintiff-Appellee DANIEL E. COGLEY.
Defendant-Appellant SCOTT P. WOOD Conrad/Wood.
JUDGES: Hon. William B. Hoffman, P.J. Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
Bryan K. Starner appeals the decision of the Fairfield County
Municipal Court finding him guilty of operating a motor
vehicle while impaired by alcohol or a drug of abuse, a
violation of R.C. 4511.19(A)(1)(a), a first degree
misdemeanor. Appellant is the State of Ohio.
OF FACTS AND THE CASE
The Ohio State Highway Patrol stopped appellant for exceeding
the speed limit and, after noting what he perceived to be
indicia of intoxication, the Trooper performed field sobriety
tests and arrested appellant. Appellant was charged with a
violation of R.C. 4511.19(A)(1)(a), operating a vehicle under
the influence of alcohol and/or a drug of abuse, two minor
misdemeanor offenses, speeding, in violation of R.C.
4511.21(C) and driving outside of marked lanes, in violation
of R.C. 4511.33. He was convicted of all counts and now
appeals only the jury's finding that he was guilty of a
violation of R.C. 4511.19(A)(1)(a).
Trooper John Moore of the Ohio State Highway Patrol stopped
appellant at 12:50 AM after observing him travel seventy-five
miles per hour in a forty mile per hour zone. Appellant
stopped, but then began driving again, weaving within the
lane and crossing the center line and outside line before
stopping approximately one mile later. Appellant claimed that
he did not see or hear the Trooper when he first attempted to
Appellant claimed he was heading toward Logan, Ohio, but he
was traveling in the wrong direction and was mistaken as to
the road he was traveling. The Trooper noted that
appellant's eyes were bloodshot and glassy and that he
was lethargic. He asked appellant to exit the vehicle to
perform field sobriety tests. Appellant exhibited six of six
clues of inebriation on the Horizontal Gaze Nystagmus Test,
five of eight clues on the Walk-and-Turn Test, and four of
four clues on the one-legged stand test. He was unable to
complete the ABC test. Appellant was unable to maintain his
balance, could not follow simple instructions and had an odor
of alcohol about his person.
Appellant initially denied drinking any alcohol, then, after
he was arrested, he admitted to having "one or two
Appellant requested that the OMVI charge be presented to a
jury and, in his defense, he presented the testimony of Dr.
David Cummin who testified that some of appellant's
behaviors during the field sobriety test were consistent with
a stroke the appellant suffered years ago. Dr. Cummin stated
that the stroke may have affected appellant's
coordination, balance and might cause nystagmus, but he
admitted that he did not examine the appellant. Appellant
offered this testimony without objection from appellee and
did not request a jury instruction regarding expert
The jury found the appellant guilty and appellant filed a
timely notice of appeal and submits two assignments error:
"I. THE GUILTY VERDICT WAS NOT SUPPORTED BY SUFFICIENT
EVIDENCE AND WAS AGAINST THE MANIFEST ...