Cleveland v. Clark

[Cite as Cleveland v. Clark, 

.]

                                COURT OF APPEALS OF OHIO

                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



CITY OF CLEVELAND,                                :

                 Plaintiff-Appellee,              :
                                                              No. 113546
                 v.                               :

LAMARCO CLARK,                                    :

                 Defendant-Appellant.             :


                               JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: September 12, 2024


                      Criminal Appeal from the Cleveland Municipal Court
                                  Case No. 2022TRC012227


                                            Appearances:

                 Mark Griffin, City of Cleveland Director of Law, Aqueelah
                 A. Jordan, Chief Prosecutor, and Margaret Scott, Assistant
                 City Prosecutor, for appellee.

                 Law Office of Victor O. Chukwudelunzu, LLC and Victor
                 Chukwudelunzu, for appellant.

EILEEN A. GALLAGHER, P.J.:

                   Defendant-appellant, Lamarco Clark (“Clark”), appeals from his

convictions for driving while under the influence of alcohol and failure to stop at a

stop sign, following a bench trial. For the following reasons, we affirm.
Factual and Procedural History

               This case originated with a motor vehicle accident that occurred on

August 10, 2022 which involved Christina Crandell (“Crandell”) and Clark, at the

intersection of East 99th Street and South Boulevard in Cleveland, Ohio.

               The City of Cleveland (“the City”) alleged that Crandell drove her

automobile east on South Boulevard towards the East 99th Street intersection where

she had a stop sign for her lane of travel. The City further alleged that Crandell came

to a complete stop at the intersection, looked both directions for traffic, observed no

oncoming vehicles and proceeded into the intersection.              Clark, who was

simultaneously proceeding south on East 99th Street towards the intersection of

South Boulevard, allegedly driving while intoxicated, failed to stop at the stop sign

and struck the front driver side of Crandell’s vehicle.

               Officer Kortez Johnson (“Johnson”) and Officer Matthew Woznicki

(“Woznicki”), of the Cleveland Division of Police, were dispatched to the scene of the

automobile accident. The officers spoke with Clark, Crandell and witnesses and

inspected the property damage, the accident scene and the position of the vehicles

after the accident. Pursuant to the officers’ investigation, a complaint was filed

against Clark on August 21, 2022, charging him with failure to stop at a stop sign in

violation of Cleveland Cod. Ord. (“C.C.O.”) 431.19, a minor misdemeanor, and

driving while under the influence of alcohol or drugs (“OVI”) in violation of C.C.O.

433.01(A)(1), a misdemeanor of the first degree. On September 7, 2022, Clark

entered a not guilty plea to both charges.
              The Cleveland Municipal Court conducted numerous pretrial

hearings and, on December 20, 2022, Clark waived his speedy trial rights. On

April 12, 2023, Clark filed a motion to suppress evidence arguing the arresting

officer lacked probable cause to arrest Clark for OVI. The City filed a brief in

opposition and Clark filed a supplemental motion. On June 1, 2023, the trial court

conducted a hearing on Clark’s motion to suppress and heard testimony from Officer

Woznicki.

Suppression Hearing

              Woznicki testified that he has been a patrol officer for the Cleveland

Division of Police for seven years during which time he had interacted with

suspected OVI drivers on numerous occasions. Woznicki received annual

mandatory training on traffic stops and was trained on the National Highway Traffic

Safety Administration (“NHTSA”) manual.

              Woznicki stated he was dispatched, on August 10, 2022, to the scene

of an automobile accident at the intersection of East 99th Street and South

Boulevard. Woznicki described the area as a four-way intersection, with South

Boulevard being a one-way eastbound street with stop signs posted eastbound on

South Boulevard and southbound on East 99th Street.

              Upon Woznicki’s arrival at the scene of the accident, a fire truck and

an EMS vehicle were present. Woznicki observed numerous neighbors on the streets

who informed him that Clark had been speeding and failed to stop at the stop sign.

They further were discussing that Clark hit Crandell’s vehicle, that Clark appeared
intoxicated and related that Clark tossed a beer can or alcoholic beverage from his

car window. The EMS officer told Woznicki that Clark refused medical treatment

and that he may have been intoxicated.

               Woznicki stated that the front end of Crandell’s vehicle was totaled,

that Clark’s vehicle was positioned four to five houses south of the intersection and

that both vehicles had sustained heavy damage.

               According to Woznicki, Clark attempted to walk away from the scene

of the accident but Woznicki prevented Clark’s departure so that he could question

Clark about the accident. Woznicki stated he observed Clark “kind of swaying a little

bit” and Clark provided incoherent answers. Woznicki further stated that when he

asked Clark how the accident happened, Clark was unable to answer. Clark refused

to engage in a field-sobriety test and, in response to that inquiry, Clark threatened

to kill Woznicki stating, “If you try it, I will kill you.” Woznicki detained Clark and

placed him in his patrol vehicle. While both men were inside the vehicle, Woznicki

smelled an odor of alcohol that the officer could not describe as either weak or

strong. Woznicki further stated he observed Clark as “kind of slumped over” with

slurred speech and glassy eyes. Woznicki concluded that Clark was intoxicated due

to his demeanor, movements, glassy eyes and the smell of alcohol on his breath.

               Woznicki neither observed Clark’s alleged erratic driving nor any

traffic violation and that he learned how the accident occurred through oral

statements from “other people involved” and “several witnesses on scene,” who said

Clark drove at a high rate of speed and failed to stop at the stop sign.
              According to Woznicki, the NHTSA manual instructs an officer

administering a field-sobriety test to first ask if the suspect has suffered a medical

impairment because the behavior of a person involved in a serious accident may

mimic the effects of impairment from drugs or alcohol such as unsteadiness, slurred

speech or incoherence.

              On June 1, 2023, the trial court issued a detailed judgment entry

denying Clark’s motion to suppress.

              On November 15, 2023, the trial court conducted a bench trial and

heard testimony from Crandell, Johnson and Woznicki.            Clark presented no

evidence before resting.

Crandell

              Crandell testified that, on August 10, 2022, as she drove eastbound

on South Boulevard, she stopped for the stop sign at the intersection of East 99th

Street, looked both directions and saw no cars were coming and she then proceeded

into the intersection. Crandell testified that the intersection was a four-way stop

with stop signs positioned on each corner. Crandell stated then when her vehicle

was in the middle of the intersection, she saw “something black coming out [sic] the

corner of [her] eye, and [she] heard a horn” and she was struck by another vehicle

on the front driver side of her vehicle. Tr. 8. Crandell stated the other driver ran a

stop sign, although she conceded that she did not see the other driver until

“something black caught the corner of [her] eye and a horn blew.” Tr. 14.
               Crandell was transported by ambulance to a hospital from the

accident scene. Crandell sustained bruising and swelling from the accident and her

automobile was declared a total loss due to the extensive property damage.

Officer Johnson

               On August 10, 2022, Johnson, a patrolman for the Cleveland Division

of Police for two and one-half years, arrived at the intersection of South Boulevard

and East 99th Street, which is a residential area, and he observed two vehicles with

significant, disabling property damage. Johnson testified that it was a four-way

intersection with stop signs on each roadway. Johnson stated he observed Clark

exiting the driver’s side of his vehicle, an indication that Clark was the driver of that

vehicle. Johnson testified that he interviewed Crandell, secured witness statements

and inspected the vehicles to ascertain if the witness statements as to how the

accident occurred correlated with the property damage. Johnson testified that

Clark’s vehicle was approximately 50 feet south of the intersection and Crandell’s

vehicle was stopped in the intersection.

               Johnson stated he observed Clark exhibit loud and belligerent

behavior and Clark was detained and placed in the back of the zone car. Johnson

further testified that once Clark was placed in the rear of the zone car, he smelled a

strong odor of alcohol emanating from Clark and he noticed Clark’s speech was not

clear. According to Johnson, Clark refused to engage in a field-sobriety test at the

accident scene or a breath-analysis test at the Bratenahl police station.
               Johnson testified about his training and experience as a police officer

included detecting when an individual is under the influence of drugs or alcohol.

Based upon Johnson’s observations of Clark, he determined Clark was intoxicated

and wrote Clark a ticket charging him with OVI.

               Johnson also testified that his training and experience as a police

officer included processing an accident scene and determining the cause of an

accident. Based upon the vehicles’ property damage, the positioning of the vehicles

after the collision and witness statements, Johnson concluded that Clark caused the

accident when he failed to stop at the stop sign and issued Clark a ticket for failure

to stop at a stop sign.

Woznicki

               Woznicki’s trial testimony largely mirrored his testimony at the

suppression hearing. Woznicki described his interaction with Clark as follows:

      As I was approaching [Clark], he appeared to be confused, or he was
      kind of swaying. He wasn’t listening to my commands. I was trying to
      figure out how this accident occurred, and he failed to tell me how it
      happened, and then, at that point, he tried to walk through me to leave
      the scene of the accident. At that time, we detained him. He was trying
      to leave the scene of the accident.

               Woznicki stated he could not recall whether the odor of alcohol

stemming from Clark was apparent outside the patrol car or later inside the police

station. He further testified that he could not recall if Clark was unsteady on his feet

when they arrived at the police station. Woznicki stated that Clark’s belligerent

behavior decreased once he refused the field-sobriety test.
               Woznicki transported Clark to the Bratenahl police station where the

officer attempted to administer a blood alcohol test but Clark refused to cooperate.

               Woznicki testified that he received training in order to detect when an

individual is impaired and he had investigated hundreds of motor vehicle accidents

prior to the accident involving Clark and Crandell. Woznicki stated that because

Clark refused to submit to a field-sobriety test, he had to rely on his observations to

determine if Clark was impaired.

               Defense counsel questioned Woznicki about whether a field-sobriety

test should be administered to an individual involved in a serious accident:

      DEFENSE COUNSEL: Now, you did say — indicate that you were
      trained in NHTSA Manual, correct?

      OFFICER WOZNICKI: That’s correct.

      DEFENSE COUNSEL: And part of that training indicates that if
      someone has been involved in a serious accident, you’re not necessarily
      supposed to give them Field Sobriety Tests.

      OFFICER WOZNICKI: Yes, I — that’s part of it, but he — he was not
      injured to a point where he — he refused medical attention on scene.
      He wasn’t — he was able to walk.

      DEFENSE COUNSEL: And again, I respect you as police officer.
      However, you’re not a medical doctor.

      OFFICER WOZNICKI: Right.

      DEFENSE COUNSEL: Okay. And sometimes people experience injury
      and still could not make statements after being in a serious accident
      that might not be, you know, the best decision, like, you know, denying
      medical care.

      OFFICER WOZNICKI: Yes, that’s correct, but —
      DEFENSE COUNSEL: Okay.

      OFFICER WOZNICKI: — also that’s why we want to get a Breathalyzer
      done.

Tr. 54.

              At the conclusion of the City’s case, Clark made a Crim.R. 29 motion

for acquittal, which the trial court denied. On November 29, 2023, the trial court

issued a detailed judgment entry finding Clark guilty of OVI and failure to stop at a

stop sign.

              On December 13, 2023, the trial court sentenced Clark to 180 days in

jail, suspended 160 days, and imposed a fine of $525. Further, the trial court stayed

the sentence pending Clark’s appeal.

              On January 9, 2024, Clark filed a timely notice of appeal presenting

these four assignments of error:

      Assignment of Error I: The trial court erred to the prejudice of
      appellant, by denying appellant’s motion to suppress evidence.

      Assignment of Error II: Appellant[’s] conviction for driving under the
      influence of alcohol, and operation of a vehicle at stop sign was not
      supported by sufficient evidence.

      Assignment of Error III: Appellant[’s] conviction for driving under the
      influence of alcohol, and operation of a vehicle at stop sign was against
      the manifest weight of evidence.

      Assignment of Error IV: The trial court erred and abused its discretion
      in denying appellant’s Rule 29 motion for acquittal.
Legal Analysis

Motion to Suppress

               In his first assignment of error, Clark argues that the trial court erred

when it denied his motion to suppress. Specifically, Clark contends there was no

credible evidence that he caused the accident nor that his driving was impaired.

Clark argues that his unsteadiness and slurred speech may have been caused by his

involvement in a serious accident. Clark contends the totality of the circumstances

did not show probable cause to arrest him for OVI and, therefore, his convictions

should be reversed.1

               This court reviews a trial court’s ruling on a motion to suppress under

a mixed standard of review.

      “In a motion to suppress, the trial court assumes the role of trier of fact
      and is in the best position to resolve questions of fact and evaluate
      witness credibility.” State v. Curry, 

 (8th Dist.
      1994). The reviewing court must accept the trial court’s findings of fact
      in ruling on a motion to suppress if the findings are supported by
      competent, credible evidence. State v. Burnside, 

 (2003). With respect to the trial court’s conclusion of law, the
      reviewing court applies a de novo standard of review and decides



      1 Officer Woznicki stated he utilized his body camera during the traffic stop and,

during the suppression hearing, the City played the audio associated with Officer
Woznicki’s body camera for the court. At the suppression hearing, the City stated it would
introduce as an exhibit a flash drive with the audio recording of Officer Woznicki’s body
camera footage. The body camera audio recording is not part of the record in this appeal.
The parties do not argue any disparity between the suppression hearing testimony and the
body camera audio recording, and we presume regularity in the proceedings below. See
State v. Rice, 

 (8th Dist.) (“Absent a transcript or alternative record
under App.R. 9(C) or 9(D), we must presume regularity in the proceedings below.”). The
municipal court’s judgment entry denying Clark’s motion to suppress references Clark’s
demeanor captured on video. We review Clark’s first assignment of error absent the body
camera’s audio recording.
      whether the facts satisfy the applicable legal standard. 

 citing State
      v. McNamara, 

 (4th Dist. 1997).

State v. Miller, 

, ¶ 22 (8th Dist.).

               Warrantless arrests in an OVI case are constitutional in Ohio when

the officer had probable cause, at the time of the stop, to make an arrest. Cleveland

v. Bruner, 

, ¶ 10 (8th Dist.), citing State v. Woodards, 

 (1966). Probable cause exists when, based upon the totality of the circumstances,

the arresting officer had sufficient information at the time of the arrest, derived from

a reasonably trustworthy source of facts and circumstances, to cause a reasonable

and prudent person to believe that the suspect committed the offense. Bruner,

citing Beck v. Ohio, 

 (1964); State v. Timson, 

(1974). “‘In an OVI case, a finding of probable cause may be supported by the totality

of the circumstances even absent the administration of a field sobriety test.’” 

, quoting State v. Homan, 

 (2000), paragraph one of the

syllabus.

               A police officer may not make a warrantless arrest for a misdemeanor

offense unless the act occurred in the officer’s presence. Hamilton v. Jacobs, 

 (12th Dist. 1995). However, an exception to this general rule exists

where a defendant caused an automobile accident. Under such circumstances,

police need not observe the impaired driving. 

, citing Oregon v.

Szakovits, 

 (1972).
               Here, the testimony presented at the hearing on the motion to

suppress demonstrated that Woznicki, a seven-year veteran with the Cleveland

Police Department, had prior experience interacting with impaired drivers.

Woznicki did not observe the accident but, during his investigation, he heard several

individuals discussing that Clark was speeding and failed to stop at the stop sign

and, ultimately, he concluded that Clark caused the accident. Witnesses, including

EMS personnel, also reported to Woznicki that Clark appeared intoxicated and Clark

was seen tossing an alcoholic beverage container out of his automobile window.

Woznicki observed the heavy damage to both vehicles as well as the final resting spot

of Clark’s vehicle — four or five houses south of the intersection. Woznicki personally

interacted with Clark and testified that Clark was unsteady on his feet, his eyes were

glassy, he had slurred speech, he was incoherent and unable to describe how the

accident occurred, he smelled of alcohol, and he was belligerent and attempted to

leave the scene of the accident. While Clark did not admit to drinking alcohol,

Woznicki’s testimony supported the conclusion that Clark was impaired. And while

Woznicki conceded that being in a serious accident could cause unsteadiness and

slurred speech, the testimony provided additional factors that supported the

officer’s conclusion that Clark drove impaired.

               We find Clark’s reliance on Bruner, 

, at ¶ 10, in

support of his suppression motion unpersuasive. The police in Bruner responded

to a multiple-car accident on the highway. At the accident scene, Bruner admitted

she had been drinking and the police officer noted an odor of alcohol on her breath.
Bruner initially was unable to recite the alphabet but successfully did so after the

administration of a field-sobriety test. At the suppression hearing in Bruner, the

City failed to introduce evidence that Bruner caused the motor vehicle accident or

that her driving was impaired. In viewing the totality of the circumstances, this

court found competent, credible evidence to support the trial court’s determination

that no probable caused existed to arrest Bruner for driving under the influence.

Conversely, in the instant case, the City did present evidence that Clark drove

impaired and caused the accident with Crandell.

                 We find, in viewing the totality of the circumstances, that the City

presented competent, credible evidence to support the trial court’s determination

that probable cause existed to arrest Clark for driving under the influence and for

failure to stop at a stop sign. Thus, Clark’s first assignment of error is overruled.

Sufficiency of the Evidence and Crim.R. 29 Motion for Acquittal

                 In his second assignment of error, Clark argues the evidence

presented by the City did not meet the burden of production to support convictions

for either OVI or failure to stop at a stop sign and, therefore, his convictions were

not supported by sufficient evidence. In his fourth assignment of error, Clark argues

the trial court erred and abused its discretion when it denied his Crim.R. 29 motion

for acquittal.

                 A sufficiency of the evidence challenge requires a determination as to

whether the State has met its burden of production at trial. State v. Hunter, 2006-

Ohio-20, ¶ 41 (8th Dist.), citing State v. Thompkins, 

 (1997).
An appellate court reviewing sufficiency of the evidence must determine “‘whether,

after viewing the evidence in a light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime proven beyond a

reasonable doubt.’” State v. Leonard, 

, ¶ 77, quoting State v. Jenks,

 (1991), paragraph two of the syllabus. With a sufficiency inquiry,

an appellate court does not review whether the State’s evidence is to be believed but

whether, if believed, the evidence admitted at trial supported the conviction. State

v. Starks, 

, ¶ 25 (8th Dist.), citing 

. A sufficiency-

of-the-evidence argument is not a factual determination, but a question of law. 

               Similarly, Crim.R. 29(A) provides that a court “shall order the entry

of the judgment of acquittal of one or more offenses . . . if the evidence is insufficient

to sustain a conviction of such offense or offenses.” “Because a Crim.R. 29 motion

questions the sufficiency of the evidence, ‘[w]e apply the same standard of review to

Crim.R. 29 motions as we use in reviewing the sufficiency of the evidence.’”

Fairview Park v. Peah, 

, ¶ 37 (8th Dist.), quoting State v. Tenace,

, ¶ 37. Thus, we will address Clark’s second and fourth assignments

of error collectively.

               In a sufficiency inquiry — or Crim.R. 29(A) motion for acquittal

inquiry — we assume the State’s and City’s witnesses testified truthfully and evaluate

whether that testimony, along with any other evidence introduced at trial, satisfies

each element of the offense. In re D.R.S., 

 (8th Dist.). The

elements of an offense may be proven by direct evidence, circumstantial evidence,
or both. See, e.g., State v. Wells, 

 (8th Dist.), citing State v.

Durr, 

 (1991). Direct evidence and circumstantial evidence have

“equal evidentiary value.” 

, citing State v. Santiago, 

, ¶

12 (8th Dist.).

                  Relevant to our review of the trial court’s Crim.R. 29 ruling and

Clark’s sufficiency-of-the-evidence argument are the offenses for which the court

found Clark guilty: OVI and failure to stop at a stop sign. Following a bench trial,

the court found Clark guilty of driving under the influence, in violation of C.C.O.

433.01, that reads:

      (a) Driving under the influence.
              (1) No person shall operate any vehicle, . . . within this City, if,
              at the time of the operation, any of the following apply:
               A. The person is under the influence of alcohol, a drug of
              abuse, or a combination of them.

                  Generally, any lay witness, including a police officer, may testify

whether an individual appeared intoxicated. State v. Clark, 

(8th Dist.), citing State v. Schmitt, 

, ¶ 12, citing Columbus v. Mullins,

, 421 (1954). To establish one’s impaired driving ability, the State

may rely on physiological factors including slurred speech, bloodshot eyes, and the

odor of alcohol. Solon v. Hrivnak, 

 (8th Dist.), citing Clark at

¶ 13; State v. Simms, 

 (9th Dist.); State v. Holland, 

 (11th Dist. Dec. 17, 1999). “Other factors that the state may use to

show intoxication include evidence that the defendant caused an accident, refused

to submit to a field-sobriety or chemical test, or exhibited a belligerent or combative
demeanor.” State v. Yared Fitsum Assefa, 

 (1st Dist.). Field-

sobriety tests are not required to prove an OVI conviction. 

, citing

State v. Strebler, 

 (9th Dist.).

               The court also found Clark guilty of operation of his vehicle at a stop

sign, in violation of C.C.O. 431.19, that reads:

      Except when directed to proceed by a law enforcement officer, every
      driver of a vehicle . . . approaching a stop sign shall stop at a clearly
      marked stop line, but if none, before entering the crosswalk on the near
      side of the intersection, or, if none, then at the point nearest the
      intersecting roadway where the driver has a view of approaching traffic
      on the intersecting roadway before entering it. After having stopped,
      the driver shall yield the right-of-way to any vehicle in the intersection
      or approaching on another roadway so closely as to constitute an
      immediate hazard during the time the driver is moving across or within
      the intersection or junction of roadways.

               In the instant case, Crandell testified that she entered the intersection

after coming to a complete stop and was struck by Clark’s vehicle because Clark

failed to stop at the stop sign for his lane of travel. The trial testimony demonstrated

that Clark exhibited slurred speech, unsteadiness, and an odor of alcohol. Clark

refused to submit to a field-sobriety test and chemical test. The testimony showed

Clark was belligerent with the officers and attempted to leave the scene of the

accident. Based upon these observations, the officers determined Clark drove under

the influence of alcohol. While the officers conceded the NHTSA manual does not

recommend a field-sobriety test after a serious accident because unsteadiness and

slurred speech could be caused by the accident rather than intoxication, the

testimony supported many factors that indicated Clark’s impairment due to
intoxication. The officers also determined from the property damage, the location

of the two vehicles, and the witness statements that Clark caused the accident by

failing to stop at the stop sign and yield the right of way to Crandell’s vehicle.

Overall, viewing the evidence in the light most favorable to the prosecution, a

rational trier of fact could have found the essential elements of the crimes proven

beyond a reasonable doubt. Clark’s convictions were based upon sufficient evidence

and, therefore, Clark’s second and fourth assignments of error are overruled.

Manifest Weight of the Evidence

              In his third assignment of error, Clark contends that his convictions

were against the manifest weight of the evidence.

              A manifest weight challenge questions the credibility of the evidence

presented and examines whether the State met its burden of persuasion at trial.

State v. Whitsett, 

 (8th Dist.), citing Thompkins, 

; State v. Bowden, 

, ¶ 13 (8th Dist.), citing 

.   A reviewing court “weighs the evidence and all reasonable inferences,

considers the credibility of witnesses and determines whether in resolving conflicts

in the evidence, the jury clearly lost its way and created such a manifest miscarriage

of justice that the conviction must be reversed and a new trial ordered.” State v.

Martin, 

 (1st Dist. 1983), paragraph three of the syllabus. When

considering an appellant’s claim that a conviction is against the manifest weight of

the evidence, the court of appeals sits as a “thirteenth juror” and may disagree with

the factfinder’s resolution of the conflicting testimony. 

, citing
Tibbs v. Florida, 

 (1982). A reversal on the basis that a verdict is

against the manifest weight of the evidence is granted “only in the exceptional case

in which the evidence weighs heavily against the conviction.” Martin. Reversal of a

trial court’s “judgment on manifest weight of the evidence requires the unanimous

concurrence of all three appellate judges.” State v. Crumbley, 

,

¶ 20 (8th Dist.), citing Thompkins at paragraph four of the syllabus.

               In challenging the weight of the evidence supporting his convictions,

Clark argues the record does not include (1) a positive chemical test, (2) competent,

credible evidence that he drove impaired and (3) competent, credible evidence that

he failed to stop at a stop sign.

               No chemical test results were provided because Clark refused to

submit to the breath-analysis test. However, to prove a driver was impaired, the

State need not establish the driver tested at a particular level of alcohol

concentration in his body but must “prove that [the driver] had consumed alcohol

in a quantity that had ‘adversely and appreciably impaired [his] actions or mental

processes and deprived [him] of that clearness of intellect and control of [him]self

which he would otherwise have had.’” State v. Panzeca, 

 (1st

Dist.), quoting State v. Hall, 

 (1st Dist.), quoting State v. Bakst,

 (1st Dist. 1986).

               Absent chemical testing, the City presented evidence of Clark’s

physiological characteristics including slurred speech, unsteadiness, and odor of

alcohol; Clark’s aggressive and belligerent demeanor; Clark’s inability to describe
the events of the accident and Clark’s refusal to submit to a field-sobriety test or

breath-analysis test.

               At trial, Clark argued that officers are trained, pursuant to the NHTSA

manual, not to administer a field-sobriety test following serious accidents because

slurred speech and imbalance — signs of driver impairment due to drugs or alcohol

— could also result from a serious accident. Based upon the facts of this case, we

find the possibility that Clark’s symptoms were caused by the accident — rather than

his intoxication — unpersuasive where Clark refused medical attention, suggesting

he was not injured; Officers Johnson and Woznicki smelled the odor of alcohol on

Clark; Clark refused the field-sobriety and breath-analysis tests and the presence of

multiple other indices described above that Clark was impaired.

               After a thorough review of the record, and weighing all the evidence,

we cannot say that this is one of the rare cases in which the trier of fact lost its way.

Clark’s convictions were not against the manifest weight of the evidence and, thus,

we overrule his third assignment of error.

               Judgment affirmed.

      It is ordered that appellee recover from appellant the costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

Cleveland Municipal Court to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.




EILEEN A. GALLAGHER, PRESIDING JUDGE

MICHELLE J. SHEEHAN, J., and
EILEEN T. GALLAGHER, J., CONCUR