State v. Avery

Court of Appeals of Ohio, Fourth Appellate District, Ross County · 2024 · Criminal Law

Criminal LawOVIManifest Weight of the EvidenceOVIunder the influencemanifest weightjury credibilitymarijuana

Facts

A trooper stopped Avery after observing his vehicle travel over the center line by about a tire width while turning. During the stop, the trooper smelled burnt marijuana and alcohol, observed bloodshot and glassy eyes, and heard Avery admit that he had used alcohol and marijuana a few hours earlier. The trooper also observed four clues on standardized field sobriety tests, abnormal eye behavior on a lack-of-convergence test, a green film on Avery's tongue, red and raised throat glands, rebound dilation, eyelid tremors, and a slowed time estimate on the modified Romberg test. A partially burnt marijuana cigarette was later found under the driver's seat, and Avery refused a urine test.

Issue

Whether Avery's OVI conviction under R.C. 4511.19(A)(1)(a) was against the manifest weight of the evidence. More specifically, the question was whether the jury clearly lost its way in finding that Avery was under the influence of alcohol, a drug of abuse, or a combination of them while operating the vehicle.

Rule

On manifest-weight review, the appellate court reviews the entire record, weighs the evidence and reasonable inferences, considers witness credibility, and determines whether the factfinder clearly lost its way and created a manifest miscarriage of justice. A conviction should be reversed only in the exceptional case where the evidence weighs heavily against it, and the jury is free to believe all, part, or none of any witness's testimony. Under R.C. 4511.19(A)(1)(a), a person violates the statute by operating a vehicle while under the influence of alcohol, a drug of abuse, or a combination of them, meaning the substance noticeably impaired the person's actions, reactions, or mental processes under the circumstances.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Late at night in Dayton, Ohio, an officer stopped Lena Morales after she briefly crossed the fog line. The officer smelled beer and burnt marijuana, Lena admitted she had two beers and smoked marijuana earlier that evening, her eyes were bloodshot, she showed several physical indicators associated with recent marijuana use, performed imperfectly on field tests, and refused a urine test. On appeal, Lena argues the conviction is against the manifest weight because the dashboard video does not clearly show every sign the officer described.

How should the appellate court most likely rule?

Explanation. On manifest-weight review, the appellate court reviews the entire record, weighs the evidence and reasonable inferences, considers credibility, and reverses only in the exceptional case where the factfinder clearly lost its way. Under the majority opinion, a video's failure to capture every indicator does not require reversal where other evidence—such as driving irregularity, admissions of recent use, odors, physical signs, test performance, and refusal of chemical testing—supports the finding of noticeable impairment.