COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59324 CITY OF CLEVELAND : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : CHRISTOPHER BERKESCH : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 14, 1991 CHARACTER OF PROCEEDING: Criminal appeal from Cleveland Municipal Court, Case No. 89 TRC 41493 AB. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Fred C. Crosby Assistant City Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Terri L. Stupica, Esq. Valore, Moss and Kalk 75 Public Square, #300 Cleveland, Ohio 44113 -2- SWEENEY, JAMES D., J.: Defendant-appellant Christopher Berkesch ("Berkesch") appeals from convictions of driving through a red light at an intersection and driving under the influence of alcohol in violation of Cleveland Codified Ordinance Sections 413.03 and 433.01, respectively. For the reasons adduced below, we affirm. Only two persons testified in this case which was tried to the bench, namely, the defendant and the arresting officer. A review of the record reveals that Berkesch allegedly arrived at the nightclub Club Coconuts at between 9:00 and 9:30 p.m. on the night of Sunday, July 22, 1989. Accompanying him were his girlfriend, Tina, and three of his cousins. This group left the nightclub at 12:30 a.m. Testimony adduced at trial demonstrates that at about 1:00 a.m. on Monday, July 23, 1989, at the intersection of West 25th Street and Columbus Avenue, a Cleveland Police patrol car driven by the arresting officer, Timothy Mayer ("Mayer"), observed Berkesch's car, which was heading southbound on Columbus Avenue, proceed through that intersection without stopping. Berkesch claimed to have stopped his car under the traffic light suspended in the middle of the intersection when he realized that his light was red. The police made a U-turn and turned on their overhead lights. Both witnesses testified that Berkesch pulled his car over to the curb heading southbound on West 25th Street. The police pulled up behind the offending vehicle. Mayer exited the squad car and walked over to the driver's window of the offending -3- vehicle. Mayer, an eight year police veteran, testified that he smelled the moderate odor of alcoholic beverage emanate from within the car driven by Berkesch. When requested to do so by Mayer, Berkesch produced his driver's license and exited the car. He also admitted to having something to drink when asked by Mayer. Mayer led Berkesch to the sidewalk at the rear of the offending vehicle where Mayer claimed that Berkesch was given two field sobriety tests. These tests consisted of reciting the English alphabet (which was conducted twice) and walking heal to toe along a line on the sidewalk. Berkesch admits to having been given the alphabet test, but denies that he was asked to walk the line on the sidewalk. Both witnesses stated that Berkesch was unable to get through the first half of the alphabet. Berkesch, age twenty-five and a high school graduate, claimed he was nervous and had a mental block. Mayer stated that Berkesch also failed the line walking test as he appeared to be in danger of falling over. Mayer also testified that Berkesch stuttered and stammered a few times, staggered slightly, had glassy eyes, and denied being on medications. Mayer placed Berkesch in the rear of the squad car and placed him under arrest. The police claim that the arrestee was read his constitutional rights in the squad car. Berkesch denies being informed of his Miranda rights. The police claim that there were three passengers in Berkesch's car, with one of these passengers being a female who drove the car home after the arrest. Berkesch, meanwhile, -4- testified on cross-examination that there were four passengers in the car. Berkesch admitted to having had two gin and tonics in tall glasses at the nightclub. He also alleged that his girlfriend and two of the cousins had also imbibed alcoholic beverages at the nightclub. Berkesch was booked at the Second District Police Station. There, the police requested he take a breathalyzer test and explained to him the consequences of refusal. Berkesch refused to take the test because as he stated in cross-examination, he had been drinking. R. 83-84. Berkesch, a truck driver by profession, stated repeatedly that he had a perfect driving record. Yet, on cross-examination, admitted to having received traffic tickets prior to the one at issue. The court denied defendant's motion to suppress evidence prior to the start of the trial following testimony and oral argument. The court also denied defendant's motion for acquittal pursuant to Crim. R. 29 made at the close of the City's case. The motion for acquittal was not renewed at the close of the defendant's case. Following closing arguments, Berkesch was found guilty by the trial court on both charges. The court then immediately proceeded to the sentencing phase. Prior to imposing the sentence, it was revealed by the counsel for the City that -5- Berkesch was previously convicted on October 5, 1984, of driving under the influence. Berkesch was sentenced to the following: red light violation--$25.00 plus costs; driving under the influence-- $1,000.00 plus costs, plus 180 days confinement, $600.00 and 150 days suspended, active probation for two years, driver's license suspended for 120 days, five years compliance with the financial responsibility law, attend the three-day program by Mothers Against Drunk Drivers, driving privileges for work to be given upon proof of insurance. This appeal raising three assignments of error followed. I THE TRIAL COURT IMPROPERLY DENIED APPELLANT'S MOTION TO SUPPRESS AND/OR DISMISS. In this assignment of error, appellant argues that the police lacked probable cause to detain and search Berkesch. Based on the testimony of the two witnesses, there was sufficient evidence to support a determination of probable cause for the initial stop of defendant and the subsequent search. See Terry v. Ohio (1968), 392 U.S. 1. Assignment overruled. II THE TRIAL JUDGE ERRED IN DENYING APPELLANT'S MOTION FOR ACQUITTAL PURSUANT TO RULE 29 OF THE CRIMINAL RULES OF PROCEDURE. Following the denial of the defense motion for acquittal made at the close of plaintiff's case, the defense offered -6- evidence on his own behalf. Any error in overruling the motion for acquittal is therefore waived. State v. Whitmeyer (1984), 20 Ohio App. 3d 279; State v. Parks (1982), 7 Ohio App. 3d 276. Assignment overruled. III THE TRIAL JUDGE ERRED IN FINDING APPELLANT GUILTY AS THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. This court stated the following in State v. Thompson and Malone (July 18, 1991), Cuyahoga App. Nos. 58803 and 58834, unreported, at pages 5-6: The standard of review to be applied to these assignments of error was stated in State v. Thomas, et al. (September 20, 1990), Cuyahoga App. Nos. 57311 and 57327, unreported, at p. 4, and 5 as follows: The scope of review to be used where a party alleges the judgment of the trial court is against the manifest weight of the evidence was recently stated by this court in State v. Scott (Mar. 23, 1989), Cuyahoga App. No. 55114, unreported, at p. 7-8. The primary task of weighing evidence and judging the credibility of witnesses is left to the trier of fact, in this case the jury. State v. DeHass (1967), 10 Ohio St. 2d 230, at syllabus number 1. Therefore, a reversal of a judgment based on manifest weight of the evidence will only be done in exceptional cases. State v. Woods (1985), 25 Ohio App. 3d 35. A reviewing court will not reverse where there is substantial, competent and credible evidence supporting the criminal conviction. State v. Eley (1978), 56 Ohio St. 2d 169, syllabus. -7- Appellant also relies on eight factors enunciated in State v. Mattison (Cuyahoga, 1985), 23 Ohio App. 3d 10, in support of his assignment based on manifest weight of the evidence. The Mattison decision and the eight factors were discussed recently by this court in State v. Laux (June 27, 1991), Cuyahoga App. No. 58856, unreported, at pages 15-16: This court stated the following in State v. Mattison (1985), 23 Ohio App. 3d 10, at page 14: A reviewing court cannot reverse a judgment of conviction in a criminal case where there is sufficient evidence presented to the jury "'which, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt.'" State v. Eley (1978), 56 Ohio St. 2d 169, 172 [10 O.O. 3d 340]; see, also, State v. DeHass (1967), 10 Ohio St. 2d 230 [39 O.O. 2d 366]. *** The eight factors listed in Gaston are merely guidelines to be taken into account when weighing the evidence. They are not hard and fast rules which must be followed. The eight factors mentioned in the above citation and relied upon by appellant, which are contained in State v. Gaston (Jan. 11, 1979), Cuyahoga App. No. 37846, unreported, were referenced by the Mattison court in the syllabus. These factors are: 1. The reviewing court is not required to accept as true the incredible; 2. whether the evidence is uncontradicted; 3. whether a witness was impeached; 4. what was not proved; 5. the certainty of the evidence; 6. the reliability of the evidence; 7. whether a witness' testimony is self-serving; 8. whether the evidence is vague, uncertain, conflicting or fragmentary. -8- In the present case, there was competent, credible evidence which, if believed, would support a finding of guilt. Assignment overruled. Judgment affirmed. -9- It is ordered that appellee recover of appellant its 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. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. FRANCIS E. SWEENEY, P.J., and JOHN F. CORRIGAN, J., CONCUR. JAMES D. SWEENEY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .