State v. Young , 95 N.E.3d 735 ( 2017 )

[Cite as State v. Young, 2017-Ohio-7051.]
COURT OF APPEALS
KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 16CA24
NICOLE YOUNG : 16CA25
:
Defendant-Appellant :
: OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Mt. Vernon
Municipal Court, Case Nos. 16CRB00871 &
16TRC03690
JUDGMENT: Affirmed in part; Reversed and Remanded
in part
DATE OF JUDGMENT ENTRY: July 31, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
P. BROEREN, JR. CHRISTINA REIHELD
Law Director P.O. Box 532
City of Mount Vernon Danville, OH 43014
5 North Gay Street, Ste. 222
Mount Vernon, OH 43050
Knox County, Case No. 16CA24 & 16CA25 2
Gwin, P.J.
{¶1} Defendant-appellant Nicole A. Young [“Young”] appeals her OVI and
Possession of Drug Abuse Instruments convictions after a jury trial in the Mount Vernon,
Knox County, Ohio Municipal Court.
Facts and Procedural History
{¶2} In the early morning of September 29, 2016, Young encountered Brian
Daniel, a security officer at Knox Community Hospital, which is located in the City of Mount
Vernon, Ohio. Mr. Daniel received a report of a van with two women inside in a restricted
area of the hospital parking lot. Mr. Daniel spoke with Young and then watched her drive
away. Based on his concerns from their interaction, he contacted the Mount Vernon Police
Department about Young.
{¶3} A short time later, officers from the police department found Young blocking
the drive-thru lane at Long John Silver's restaurant on Coshocton Avenue in the City of
Mount Vernon. Young acted strangely, smelled of alcohol, and appeared to be under the
influence of a stimulant. Young admitted to drinking beer, and the police found an opened
beer in her vehicle. Officer Jessica Butler asked her to perform field sobriety tests, and
Young performed them poorly. Butler arrested Young for OVI. Young requested a breath
test.
{¶4} During a search of Young's person, Butler located crushed pills, which
Young identified as Ritalin, a stimulant. Before towing Ms. Young's vehicle from the drive-
thru area, Officer Zach Miller conducted an administrative inventory of the vehicle. He
found, syringes, a glass pipe with white residue and a glass bowl with white residue, in a
bag with a prescription pill bottle belonging to Young.
Knox County, Case No. 16CA24 & 16CA25 3
{¶5} Officer Butler transported Young to the Knox County Jail. At the jail, Butler
read the BMV 2255 to Young and then requested a urine sample. Young declined to
provide a urine sample, and she was incarcerated. Upon being placed in the holding cell,
Young told the officers that she would take the urine test; however, no test was given to
Young. (T. at 190).
{¶6} Young was charged with Operating A Motor Vehicle Under the Influence of
Alcohol and/or a Drug of Abuse a violation of §333.01(a)(1)(A) of the Codified Ordinances
of the City of Mount Vernon Ohio, Operating A Motor Vehicle Under the Influence of
Alcohol and/or a Drug of Abuse and Refusing A Requested Chemical Test, After being
Convicted of OVI within the Past Twenty Years a violation of §333.01(a)(2) of the Codified
Ordinances of the City of Mount Vernon Ohio; Expired Plates a violation of §335.10(a) of
the Codified Ordinances of the City of Mount Vernon Ohio; Possession of Drug Abuse
Instruments a violation of §513.04(a) of the Codified Ordinances of the City of Mount
Vernon Ohio; Possession of Drug Paraphernalia a violation of §513.12(a) of the Codified
Ordinances of the City of Mount Vernon Ohio; and Possession of an Open Container of
Alcohol in a Motor Vehicle a violation of §529.07(b)(4) of the Codified Ordinances of the
City of Mount Vernon Ohio,
{¶7} At trial Young testified that she had admitted to the officers that she had
taken her prescribed Ritalin at least nine hours previously, and had taken a sip of alcohol
perhaps eight hours before the stop. When the officer asked her to do field sobriety tests,
Young told the officer that she could not do them, but did not elaborate. Young explained
at trial that she had many problems with her feet that create an inability to balance.
Knox County, Case No. 16CA24 & 16CA25 4
{¶8} The trial court dismissed the expired plates charge upon a Rule 29 motion
at the end of the state's presentation of evidence. A jury found Young guilty of operating
a vehicle while intoxicated under both sections, possession of drug paraphernalia, and
possession of drug abuse instruments, and the court found Young guilty of the minor
misdemeanor open container charge.
{¶9} The trial court sentenced Young to fifty days incarceration on the drug
abuse instruments conviction, thirty days on the drug paraphernalia conviction (both with
credit for thirty-five days already served, both sentences to be served concurrently), and
$25 and costs on the open container conviction. The trial court merged the two operating
a vehicle while intoxicated charges, and sentenced Young to a $700 fine, one hundred
eighty days in jail with thirty five days credit concurrent to the other sentences and one
hundred thirty days suspended, a two year license suspension with limited driving
privileges, ninety days impoundment of Young's vehicle, and two years of probation,
including terms such as attendance at AA or MA meetings, an alcohol and drug
assessment, and random drug and alcohol screens.
Assignments of error,
{¶10} Young presents two assignments of error for our review,
{¶11} “I. APPELLANT'S CONVICTIONS FOR OVI WERE AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE BECAUSE (I) APPELLANT OFFERED
EVIDENCE THAT HER IMPAIRMENT WAS ACTUALLY RELATED TO DEFORMITIES
OF HER FEET, HER TIREDNESS, AND HER INJURY TO HER EYE, AND NOT TO USE
OF DRUGS OR ALCOHOL, AND (2) THE STATE FAILED TO PROVE THAT
APPELLANT UNEQUIVOCALLY REFUSED A CHEMICAL TEST.
Knox County, Case No. 16CA24 & 16CA25 5
{¶12} “II. APPELLANT'S CONVICTION FOR POSSESSION OF DRUG ABUSE
INSTRUMENTS WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE AND AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE BECAUSE THE STATE FAILED TO
OFFER EVIDENCE THAT THE HYPODERMIC NEEDLES WERE ACTUALLY USED BY
APPELLANT OR USED TO PREPARE A DANGEROUS DRUG FOR ADMINISTRATION
OR USE.”
I.
{¶13} In her first assignment of error, Young contends that her conviction for OVI
was against the manifest weight of the evidence, specifically that she offered an alternative
explanation for her impairment that was not related to use of alcohol and drugs and that
her refusal was not "unequivocal."
{¶14} Our review of the constitutional sufficiency of evidence to support a criminal
conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61
L. Ed. 2d 560 (1979), which requires a court of appeals to determine whether “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.” Id.; see also
McDaniel v. Brown, 558 U.S. 120, 130 S. Ct. 665, 673, 175 L.Ed.2d 582(2010) (reaffirming
this standard); State v. Fry, 125 Ohio St. 3d 163, 926 N.E.2d 1239, 2010–Ohio–1017, ¶
146; State v. Clay, 187 Ohio App. 3d 633, 933 N.E.2d 296, 2010–Ohio–2720, ¶ 68.
{¶15} Weight of the evidence addresses the evidence's effect of inducing belief.
State v. Thompkins, 78 Ohio St. 3d 380, 386-387, 678 N.E.2d 541 (1997), superseded by
constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio St. 3d 89,
684 N.E.2d 668, 1997-Ohio–355. Weight of the evidence concerns “the inclination of the
Knox County, Case No. 16CA24 & 16CA25 6
greater amount of credible evidence, offered in a trial, to support one side of the issue
rather than the other. It indicates clearly to the jury that the party having the burden of
proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall
find the greater amount of credible evidence sustains the issue which is to be established
before them. Weight is not a question of mathematics, but depends on its effect in inducing
belief.” (Emphasis sic.) Id. at 387, 678 N.E.2d 541, quoting Black's Law Dictionary (6th
Ed. 1990) at 1594.
{¶16} When a court of appeals reverses a judgment of a trial court on the basis
that the verdict is against the weight of the evidence, the appellate court sits as a
“’thirteenth juror’” and disagrees with the fact finder’s resolution of the conflicting testimony.
Id. at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102 S. Ct. 2211, 72
L. Ed. 2d 652 (1982). However, an appellate court may not merely substitute its view for
that of the jury, but must find that “‘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. Thompkins, supra, 78 Ohio St.3d at 387, quoting State v. Martin, 20 Ohio App. 3d 172,
175, 485 N.E.2d 717, 720–721(1st Dist. 1983). Accordingly, reversal on manifest weight
grounds is reserved for “‘the exceptional case in which the evidence weighs heavily
against the conviction.’” Id.
“[I]n determining whether the judgment below is manifestly against
the weight of the evidence, every reasonable intendment and every
reasonable presumption must be made in favor of the judgment and the
finding of facts. * * *
Knox County, Case No. 16CA24 & 16CA25 7
“If the evidence is susceptible of more than one construction, the
reviewing court is bound to give it that interpretation which is consistent with
the verdict and judgment, most favorable to sustaining the verdict and
judgment.”
Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St. 3d 77, 80, 461 N.E.2d 1273 (1984), fn.
3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).
{¶17} Appellant was convicted of a violation of Operating A Motor Vehicle Under
the Influence of Alcohol and/or a Drug of Abuse a violation of §333.01(a)(1)(A) of the
Codified Ordinances of the City of Mount Vernon Ohio, which states in pertinent part:
“(A)(1) No person shall operate any vehicle, * * *, 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.”
{¶18} The defendant's ability to perceive, make judgments, coordinate
movements, and safely operate a vehicle is at issue in the prosecution of a defendant
under such section. It is the behavior of the defendant that is the crucial issue. Newark
v. Lucas, 40 Ohio St. 3d 100, 104, 532 N.E.2d 130(1988).
{¶19} The evidence produced at trial supports the inference that Young’s
consumption of alcohol, a drug of abuse, or a combination of them on the night in question
adversely affected her actions, reactions, conduct, movement or mental processes or
impaired her reactions to an appreciable degree, thereby lessening her ability to operate
her vehicle on the night in question.
{¶20} The initial call was for Young acting erratically and then driving from a
hospital parking lot. Young admitted to drinking alcohol. There was an open can of beer
Knox County, Case No. 16CA24 & 16CA25 8
in her vehicle. Young performed poorly on standardized field sobriety tests. She had
drugs on her person. The Mount Vernon Police Department found drug paraphernalia in
Young's vehicle, in a bag with her prescription pill bottle. Young testified at trial that she
had admitted to the officers that she had taken her prescribed Ritalin at least nine hours
previously, and had taken a sip of alcohol perhaps eight hours before the stop.
{¶21} Young was also convicted of OVI refusal. Young argues that she initially
refused the urine test; however, she later changed her mind.
{¶22} The jury heard all of the evidence regarding Young’s retraction of her initial
refusal. The court’s instructions permitted the jury to determine, as the finder of fact,
whether defendant refused to take the test.
{¶23} The trial court provided the jury with a legally correct refusal instruction,
and the instruction allowed the jury, as the ultimate finder of fact, to determine whether or
not Young refused to submit to a chemical test of her urine. State v. Munye, 10th Dist.
Franklin No. 14AP-744, 2015-Ohio-3362, ¶20.
{¶24} In the case of In re Brooks (1971), 27 Ohio St. 2d 66, 271 N.E.2d 810(1971)
the Supreme Court held:
The suspension, pursuant to R.C. 4511.191, of the driver’s license
of a motorist, under arrest for the offense of driving a motor vehicle while
under the influence of alcohol, for refusing, upon request of a police officer,
to submit to a chemical test for alcohol, is not precluded by the fact that after
such refusal, but within two hours of the alleged driving violation, the
motorist stated that he would submit to the test.
Syllabus paragraph two.
Knox County, Case No. 16CA24 & 16CA25 9
{¶25} In Brooks, the Supreme Court declined to hold that a person could retract a
refusal, Brooks, at 69. The Supreme Court found that the time elapsed, approximately
one-half hour in Brooks, was simply too long. The Supreme Court stated “we are not faced
with a situation where a defendant had almost immediately retracted his refusal and been
denied the test....” Brooks, at 70.
{¶26} What constitutes an immediate retraction of a refusal is a question of fact,
and “due deference must be given to the trial judge’s determination of whether a refusal
has been timely retracted.” Bowman v. McCullion, 21 Ohio App. 3d 138, 139, 486 N.E.2d
1225 (9th Dist. 1985). In Bowman, the court found no error in the trial court’s conclusion
that the arrestee had not retracted his refusal when, five minutes after first refusing, the
arrestee indicated he had changed his mind and wanted to take the test. In so holding,
the court recognized that the Webster’s Third New International Dictionary (1961) 1129,
defines “immediately” as “without interval of time; without delay.” Id. Accord, Ray v. Ohio
Bur. Motor Vehicles, 5th Dist. Stark No. CA-9381, 1993 WL 500345 (Nov. 29, 21993);
State v. Huffman, 6th Dist. Wood No. WD-05-007, 2005-Ohio-6005.
{¶27} Viewing the evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt that
Young Operated A Motor Vehicle Under the Influence of Alcohol and/or a Drug of Abuse
a violation of §333.01(a)(1)(A) of the Codified Ordinances of the City of Mount Vernon
Ohio and that Young Operated a Motor Vehicle Under the Influence of Alcohol and/or a
Drug of Abuse and Refusing A Requested Chemical Test, After being Convicted of OVI
within the Past Twenty Years a violation of §333.01(a)(2) of the Codified Ordinances of
the City of Mount Vernon Ohio. We hold, therefore, that the state met its burden of
Knox County, Case No. 16CA24 & 16CA25 10
production regarding each element of the crimes and accordingly; there was sufficient
evidence to support Young’s convictions.
{¶28} As an appellate court, we are not fact finders; we neither weigh the evidence
nor judge the credibility of witnesses. Our role is to determine whether there is relevant,
competent and credible evidence, upon which the fact finder could base his or her
judgment. Cross Truck v. Jeffries, 5th Dist. Stark No. CA–5758, 1982 WL 2911(Feb. 10,
1982). Accordingly, judgments supported by some competent, credible evidence going to
all the essential elements of the case will not be reversed as being against the manifest
weight of the evidence. C.E. Morris Co. v. Foley Construction, 54 Ohio St. 2d 279, 376
N.E.2d 578(1978). The Ohio Supreme Court has emphasized: “‘[I]n determining whether
the judgment below is manifestly against the weight of the evidence, every reasonable
intendment and every reasonable presumption must be made in favor of the judgment and
the finding of facts. * * *.’” Eastley v. Volkman, 132 Ohio St. 3d 328, 334, 972 N.E.2d 517,
2012-Ohio-2179, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St. 3d 77, 80, 461
N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section
603, at 191–192 (1978). Furthermore, it is well established that the trial court is in the best
position to determine the credibility of witnesses. See, e.g., In re Brown, 9th Dist. No.
21004, 2002–Ohio–3405, ¶ 9, citing State v. DeHass, 10 Ohio St .2d 230, 227 N.E.2d
212(1967).
{¶29} Ultimately, “the reviewing court must determine whether the appellant or the
appellee provided the more believable evidence, but must not completely substitute its
judgment for that of the original trier of fact ‘unless it is patently apparent that the fact finder
lost its way.’” State v. Pallai, 7th Dist. Mahoning No. 07 MA 198, 2008-Ohio-6635, ¶31,
Knox County, Case No. 16CA24 & 16CA25 11
quoting State v. Woullard, 158 Ohio App. 3d 31, 2004-Ohio-3395, 813 N.E.2d 964 (2nd
Dist. 2004), ¶ 81. In other words, “[w]hen there exist two fairly reasonable views of the
evidence or two conflicting versions of events, neither of which is unbelievable, it is not our
province to choose which one we believe.” State v. Dyke, 7th Dist. Mahoning No. 99 CA
149, 2002-Ohio-1152, at ¶ 13, citing State v. Gore, 131 Ohio App. 3d 197, 201, 722 N.E.2d
125(7th Dist. 1999).
{¶30} The weight to be given to the evidence and the credibility of the witnesses
are issues for the trier of fact. State v. DeHass, 10 Ohio St. 2d 230, 227 N.E.2d 212(1967),
paragraph one of the syllabus; State v. Hunter, 131 Ohio St. 3d 67, 2011-Ohio-6524, 960
N.E.2d 955, ¶118. Accord, Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 86
L. Ed. 680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S. Ct. 843, 74 L. Ed. 2d
646 (1983).
{¶31} The jury as the trier of fact was free to accept or reject any and all of the
evidence offered by the parties and assess the witness’s credibility. "While the jury may
take note of the inconsistencies and resolve or discount them accordingly * * * such
inconsistencies do not render defendant's conviction against the manifest weight or
sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No. 99AP-739, 1999 WL
29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09-1236, 1996
WL 284714 (May 28, 1996). Indeed, the trier of fact need not believe all of a witness'
testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin
No. 02AP-604, 2003-Ohio-958, ¶21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d
548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP-1238, 2003-Ohio-2889, citing
State v. Caldwell, 79 Ohio App. 3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although the
Knox County, Case No. 16CA24 & 16CA25 12
evidence may have been circumstantial, we note that circumstantial evidence has the
same probative value as direct evidence. State v. Jenks, supra.
{¶32} We find that this is not an “‘exceptional case in which the evidence weighs
heavily against the conviction.’” Thompkins, 78 Ohio St. 3d at 387, 678 N.E.2d 541,
quoting Martin, 20 Ohio App. 3d at 175, 485 N.E.2d 717. The jury neither lost their way
nor created a miscarriage of justice in convicting Young of the charges.
{¶33} Based upon the foregoing and the entire record in this matter, we find
Young’s convictions are not against the sufficiency or the manifest weight of the evidence.
To the contrary, the jury appears to have fairly and impartially decided the matters before
them. The jury as the trier of fact can reach different conclusions concerning the credibility
of the testimony of the state’s witnesses and Young. This court will not disturb the jury’s
finding so long as competent evidence was present to support it. State v. Walker, 55 Ohio
St.2d 208, 378 N.E.2d 1049 (1978). The jury heard the witnesses, evaluated the evidence,
and was convinced of Young’s guilt.
{¶34} Finally, upon careful consideration of the record in its entirety, we find that
there is substantial evidence presented which if believed, proves all the elements of the
crimes beyond a reasonable doubt.
{¶35} Young’s first assignment of error is overruled.
II.
{¶36} In her Second Assignment of Error, Young alleges that there was not
sufficient evidence to find Young guilty of Possession of Drug Abuse Instruments. We
agree.
Knox County, Case No. 16CA24 & 16CA25 13
{¶37} We first note Young did not make a motion for acquittal pursuant to Crim.R.
29(A) at the close of appellee’s evidence or at the close of all of the evidence. However,
the Ohio Supreme Court has held that a failure to timely make a Crim.R. 29(A) motion
during a jury trial does not waive an argument on appeal concerning the sufficiency of the
evidence. State v. Jones, 91 Ohio St. 3d 335, 346, 2001–Ohio–57, 744 N.E.2d 1163; State
v. Carter, 64 Ohio St. 3d 218, 223, 594 N.E.2d 595 (1992). In both Jones and Carter, the
Court stated that the defendant’s “not guilty” plea preserves his right to object to the alleged
insufficiency of the evidence. Id. We have previously recognized that a Crim. R. 29 motion
is not necessary to preserve the issue of sufficiency of the evidence for appeal. State v.
Henderson, 5th Dist. Richland No. 2013–CA–0409, 2014–Ohio–3121, ¶ 22, citing State v.
Straubhaar, 5th Dist. Stark No. 2008 CA 00106, 2009–Ohio–4757, ¶ 40.
{¶38} Section 513.04(a) of the Codified Ordinances of the City of Mount Vernon
Ohio provides, “[n]o person shall knowingly make, obtain, possess, or use any instrument,
article, or thing the customary and primary purpose of which is for the administration or
use of a dangerous drug, other than marihuana, when the instrument involved is a
hypodermic or syringe ... and the instrument, article, or thing involved has been used by
the offender to unlawfully administer or use a dangerous drug, other than marihuana, or
to prepare a dangerous drug, other than marihuana, for unlawful administration or use.”
Young has argued that the state failed to present any evidence that the syringes found in
her vehicle had “been used ... to unlawfully administer or use a dangerous drug ... or to
prepare a dangerous drug ... for unlawful administration or use.”
Knox County, Case No. 16CA24 & 16CA25 14
{¶39} “An essential element of Ohio Revised Code Section 2925.12(A)1 is that
there must be proof that the syringe involved had been used by the offender to unlawfully
administer or use a dangerous drug or to prepare a dangerous drug.” State v. Sanders,
7th Dist. No. 78 C.A. 41, 1978 WL 215018, *1 (June 20, 1978); Accord, State v. Lorenzo,
9th Dist. Summit No. 26214, 2012-Ohio-3145, ¶20.
{¶40} In this case, an officer located hypodermic needles in a black bag in Young's
vehicle. The officer, however, also clearly stated that he could not tell if the hypodermic
needles had actually been used for anything. [T. at 174]. No other evidence was
introduced by the state that the needles had been used, that Young had any track marks
from use from any needle on her, that any of the prescription drugs located in the vehicle
could be illegally injected using a needle, or that Young had used the needles to prepare
any drug for administration or use. Since proof of this element was missing, the
prosecution has failed in this case.
{¶41} Young’s second assignment of error is sustained.
1 The Mount Vernon Ordinance is identical to R.C. 2925.12(A).
Knox County, Case No. 16CA24 & 16CA25 15
{¶42} The judgment of the Mount Vernon Municipal Court is affirmed in part and
reversed in part, and this matter is remanded for proceedings consistent with this opinion.
By Gwin, P.J.,
Wise, John, J., and
Baldwin, J., concur