Opinion
Case No. 3:06-po-97
12-27-2013
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KYLE WESTCOTT, Defendant-Appellant
JUDGE WALTER H. RICE
DECISION AND ENTRY AFFIRMING JUDGMENT OF CONVICTION
AND SENTENCE OF THE MAGISTRATE JUDGE; JUDGMENT TO BE
ENTERED IN FAVOR OF PLAINTIFF-APPELLEE AND AGAINST
DEFENDANT-APPELLANT; PREVIOUSLY GRANTED STAY OF
EXECUTION VACATED; TERMINATION ENTRY
Defendant-Appellant Kyle Westcott was charged in a four-count Information with: (1) Refusal to Test, in violation of 1 8 U.S.C. § 3118; (2) Driving Under the Influence, in violation of 18 U.S.C. §§7 and 13 and O.R.C. § 4511.19(A)(1)(a); (3) Having an Open Container, in violation of 18 U.S.C. §§ 7 and 13 and O.R.C. § 4301.62(B)(4); and (4) a Marked Lane Violation, in violation of 18 U.S.C. §§ 7 and 13 and Ohio Revised Code § 4511.33(A)(1). On February 28, 2007, the case was tried to Magistrate Judge Ovington, who sat as finder of fact. She found Westcott guilty of Counts 1 and 2, but dismissed Counts 3 and 4.
The alleged crimes took place on the Wright Patterson Air Force Base, within the federal territorial jurisdiction. Section 7 of Title 18 of United States Code merely defines the territorial jurisdiction of the United States. Section 13 is the Assimilative Crimes Act ("ACA"), under which state criminal statutes are made applicable within the federal territorial jurisdiction.
On June 13, 2007, Magistrate Judge Ovington sentenced Westcott to 30 days imprisonment on Count 1 and 30 days imprisonment on Count 2, said sentences to run concurrent. She granted his request to stay execution of the sentence pending appeal. Doc. #16. Judgment was entered on June 25, 2007, Doc. #17, and Westcott timely appealed, Doc. #18. The matter was fully briefed by February 14, 2008. A transcript of the bench trial was filed on December 11, 2009. Doc. #24.
Unfortunately, at that point, this case slipped through the cracks on the Court's docket, and the undersigned judge only recently discovered that this appeal was still pending. To the Court's knowledge, neither counsel for the Government nor counsel for Defendant has made any attempt to inquire as to the status of this case over the past five years. In any event, the Court is deeply embarrassed and apologizes for the lengthy delay in issuing this decision.
This Court exercises jurisdiction over an appeal from the judgment entered by a Magistrate Judge in a misdemeanor case in accordance with Rule 58 of the Federal Rules of Criminal Procedure. Under Rule 58(g)(2)(D), "[t]he defendant is not entitled to a trial de novo by a district judge. The scope of the appeal is the same as in an appeal to the court of appeals from a judgment entered by a district judge." Therefore, findings of fact are reviewed for clear error, and conclusions of law are reviewed de novo. United States v. Caseer, 399 F.3d 828, 840 (6th Cir. 2005).
Westcott argues that his conviction on Count 2, for Driving Under the Influence of Alcohol, must be reversed because it is not supported by sufficient evidence. In arguing that the evidence was insufficient to support a conviction, a defendant bears "a very heavy burden." United States v. Spearman, 186 F.3d 743, 746 (6th Cir. 1999). Evidence in a criminal case is sufficient to support a conviction if this Court determines that, '"after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original)). The Court must draw all reasonable inferences from the evidence in favor of the Government. United States v. Abdullah, 162 F.3d 897, 903 (6th Cir. 1998). Notably, "circumstantial evidence alone, if substantial and competent, may support a verdict and need not remove every reasonable hypothesis except that of guilt." United States v. Keeton, 101 F.3d 48, 52 (6th Cir. 1996) (internal quotations omitted).
In this case, viewing the evidence in the light most favorable to the Government, and drawing all reasonable inferences in its favor, the Court concludes that a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Ohio Revised Code §4511.1 9(A)(1)(a) provides that "[n]o person shall operate any vehicle . . . if, at the time of operation . . . the person is under the influence of alcohol . . ." To sustain a conviction, the prosecution "need not establish a threshold level of alcohol concentration in the defendant's body. It must, however, prove that the defendant operated a vehicle when his faculties were appreciably impaired by the consumption of alcohol." State v. Lowman, 82 Ohio App.3d 831, 836, 613 N.E.2d 692, 695 (Ohio Ct. App. 1992).
Under the Assimilative Crimes Act ("ACA"), 18 U.S.C. § 13, the federal court is bound by the state's substantive law setting forth the elements of the crime. However, it is not bound by state procedural law or rules of evidence. United States v. Montjoy, No. 3:08-po-101, 2012 WL 1021710, at *7 (S.D. Ohio Mar. 26, 2012). Because one of the purposes of the ACA is "to provide conformity in the laws governing the federal land and the state in which that land is located, id., the state's case law interpreting the relevant criminal statute is to be given great respect. See United States v. Frantz, 177 F. Supp.2d 760, 762 (S.D. Ohio 2001).
At trial, U.S. Air Force Security Forces Officer Jason Knapp testified that, in the early morning hours of November 13, 2005, he observed Westcott's vehicle go left of center for several seconds, return to the right lane, abruptly change to the left lane without signaling, and then come to a "complete stop" at a green light. Tr. at 5, 17-19, 43. Finding this behavior suspicious, Officer Knapp initiated a traffic stop. Upon approaching the vehicle, he noticed the "strong smell of alcoholic beverage," and observed that Westcott's eyes were "real watery and bloodshot." Westcott told Knapp that he was "just coming from hanging out with friends." Tr. at 6-8, 20, 26-28. When Knapp asked Westcott to perform a four- finger dexterity test to assess his motor skills, Westcott did not perform the test as instructed. Tr. at 45-47.
Officer Knapp admitted at trial that Westcott's failure to perform this test as instructed had no bearing on the issue of whether or not Westcott was intoxicated. Tr. at 47.
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The officer asked Westcott to exit the vehicle. Tr. at 30. As Westcott got out of the van, he "had a little trouble with his balance. He placed his hand on the vehicle to regain his balance prior to me asking him if he'd like to take the [field sobriety] test." Tr. at 8. Westcott refused to take the test. Id. At that point, Officer Knapp arrested him for suspected driving under the influence. Tr. at 31. Officer Knapp admitted at trial that, at the time of the arrest, he did not know for sure whether Westcott was actually under the influence of alcohol. Tr. at 34. Knapp transported him to the Fairborn police station, but Westcott refused to take a Breathalyzer test. Tr. at 39-40.
On appeal, Westcott argues that because Officer Knapp himself admitted that, based on his observations, he could not say whether Westcott was actually driving under the influence of alcohol, Magistrate Judge Ovington erred in relying on Knapp's testimony to support a finding of guilt. A similar argument, however, was rejected in Lowman. In that case, troopers stopped the defendant after he entered the highway without using his turn signal. They testified that the defendant smelled strongly of alcohol, his eyes were glassy, his speech was slurred, and he staggered when he exited his vehicle. No field sobriety tests were performed and no breath or blood tests were taken.
Lowman challenged his conviction for driving under the influence on grounds of insufficiency of the evidence, noting that the troopers had not explicitly stated at trial that they believed that he was intoxicated. The court rejected this argument as follows: "The evidence was such that the court could have inferred intoxication from the troopers' description of appellant's behavior and appearance. The absence of an explicit opinion concerning appellant's state of intoxication was not fatal to the prosecution's case." Lowman, 82 Ohio App.3d at 836, 613 N.E.2d at 695.
Likewise, in this case, based on Officer Knapp's description of Westcott's erratic driving, bloodshot eyes, lack of balance, and the strong smell of alcohol, the Magistrate Judge could have inferred that Westcott was operating a vehicle while under the influence of alcohol. She concluded that "all of the facts and circumstances testified to by the officer" established beyond a reasonable doubt that Westcott was guilty of driving under the influence of alcohol. Tr. at 58. It was not necessary for Knapp to testify that he believed that Westcott was, in fact, intoxicated at the time of the arrest.
It is somewhat unclear from the trial transcript whether Magistrate Judge Ovington also took Westcott's refusal to submit to the field sobriety tests and the Breathalyzer test into consideration in finding him guilty of operating a vehicle under the influence of alcohol. Tr. at 58 ("It is not that - it is not actually considering the refusal, it is all of the facts and circumstances testified to by the officer."). Nevertheless, a trier of fact is permitted to consider refusal to submit to testing as evidence of intoxication. See City of Maumee v. Anistik, 69 Ohio St.3d 339, 343, 632 N.E.2d 497, 501 (Ohio 1994); State v. Hoinapy (2011), 194 Ohio App.3d 444, 2011-Ohio-2995, 956 N.E.2d 897, at ¶61 ("A defendant's refusal to perform field sobriety tests is admissible as evidence of his guilt.").
The one unreported case on which Westcott relies, State v. Kelble, No. 2001CA44, 2001 WL 1658111 (Ohio Ct. App. Dec. 28, 2001), is factually distinguishable. There, the defendant's conviction for driving under the influence was vacated because, although the defendant smelled of alcohol and had blood shot eyes, and refused to perform field sobriety tests or take a Breathalyzer test, the officer did not observe the defendant driving erratically. In contrast, in this case. Officer Knapp did observe Westcott driving in a suspicious manner, weaving left of center, making an abrupt lane change, and coming to a complete stop at a green light.
Viewing the evidence in the light most favorable to the Government, and drawing all reasonable inferences in its favor, the Court concludes that a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Accordingly, the Court AFFIRMS the judgment of conviction and sentence of the Magistrate Judge. Judgment shall be entered in favor of Plaintiff-Appellee and against Defendant-Appellant. The stay of execution previously granted by Magistrate Judge Ovington, Doc. #16, is VACATED.
The captioned cause is hereby ordered terminated upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton.
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WALTER H. RICE
UNITED STATES DISTRICT JUDGE