State v. Bowden ( 2020 )

[Cite as State v. Bowden, 2020-Ohio-4556.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-190396
TRIAL NO. C-18TRC-25915A
Plaintiff-Appellee, :
vs. : OPINION.
JONATHAN BOWDEN, :
Defendant-Appellant :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: September 23, 2020
Joseph T. Deters and Adam Tieger, Hamilton County Prosecuting Attorneys, for
Plaintiff-Appellee,
Michael J. Trapp for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} Midway through an OVI checkpoint, a driver throws his car into reverse
and begins to back away. Needless to say, this behavior attracts the attention of the state
trooper monitoring the checkpoint, who eventually flags down the errant driver. Based
on evidence of drug impairment, the driver is arrested and later convicted of a
misdemeanor OVI. On appeal, defendant-appellant Jonathan Bowden challenges the
sufficiency of the evidence supporting his OVI conviction, asserting that the state failed
to prove a nexus between his ingestion of a drug of abuse and his impaired driving.
Because we find that the evidence—reviewed in the light most favorable to the state—
sufficed to support his conviction, we overrule Mr. Bowden’s sufficiency challenge and
affirm the trial court’s judgment.
I.
{¶2} Stationed at an OVI checkpoint, Trooper Zachary Sauber observed Mr.
Bowden’s car pull halfway into the checkpoint, reverse, and begin backing up.
Flagging the car down, Trooper Sauber instructed Mr. Bowden to park, but he
continued to operate the vehicle until Trooper Sauber managed to pry open the door.
With Mr. Bowden finally parked and the vehicle’s door ajar, Trooper Sauber
observed a cloud of smoke (recognizable as marijuana) billowing from inside the car.
{¶3} Trooper Sauber accordingly asked Mr. Bowden to perform a battery of
field sobriety tests, starting with the lack of convergence test—which is designed to
gauge how well a driver can follow a pen with his eyes. According to Trooper Sauber,
this test is used “more commonly when you suspect drug impaired drivers,” and a
failure of the subject’s eyes to cross while following the pen suggests impairment.
Mr. Bowden’s eyes did not cross.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} Next, Trooper Sauber turned to the modified Romberg test, also
commonly used when an officer suspects drug impairment. For this test, Trooper
Sauber asked Mr. Bowden to close his eyes, tilt his head back, and count to thirty
seconds. Mr. Bowden tilted his head back for just five seconds, and this faulty
perception of time militated in favor of impairment.
{¶5} Finally, Trooper Sauber conducted the walk-and-turn test and the one-
leg-stand test. During the walk-and-turn, Trooper Sauber observed six of the eight
clues of impairment, with Mr. Bowden demonstrating difficulties balancing and an
inability to follow instructions. On the one-leg-stand test, Mr. Bowden exhibited
four out of the four signs of impairment, including hopping, swaying, raising his
arms, and placing his foot down.
{¶6} Wrapping up these tests, Trooper Sauber asked Mr. Bowden once
more whether he had ingested any drugs or marijuana. At this point, Mr. Bowden
admitted that he had taken four painkillers (later clarified to be prescription Tylenol)
when he should have taken only two. Trooper Sauber also recounted Mr. Bowden
acknowledging “that he did feel like he was too impaired to be driving.” After this
concession, Trooper Sauber arrested Mr. Bowden and requested that he provide a
urine test, but Mr. Bowden demurred.
{¶7} Both at the checkpoint and later at trial, Mr. Bowden denied smoking
marijuana on the night of his arrest, insisting that only the passenger of the car had
inhaled that evening. Trooper Sauber, on the other hand, testified that the
passenger—when interviewed at the checkpoint—maintained that both parties had
smoked. Mr. Bowden also testified that he had sustained a concussion prior to the
incident, which explained the prescription Tylenol earlier in the day. And he
disputed that he had ever suggested that he was “too impaired to be driving.”
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶8} After hearing all of this evidence, the trial court ultimately found Mr.
Bowden guilty of a misdemeanor OVI under R.C. 4511.19(A)(1)(a) and driving with a
suspended license under R.C. 4510.11, sentencing him to 365 days incarceration with
330 days suspended and credit for time served. Mr. Bowden now appeals, raising a
single assignment of error.
II.
{¶9} In his sole assignment of error, Mr. Bowden challenges the sufficiency
of the evidence supporting his OVI conviction, contending that the state failed to
provide sufficient evidence of his impairment. Specifically, Mr. Bowden disputes the
existence of any nexus linking the ingestion of marijuana or painkillers to his
impairment, which, in his view, dictates reversal.
{¶10} When reviewing a sufficiency of the evidence challenge, we inquire
“ ‘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. Maxwell, 139 Ohio St. 3d 12, 2014-Ohio-1019,
9 N.E.3d 930, ¶ 146, quoting State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492
(1991), paragraph two of the syllabus. The sufficiency of evidence to sustain a verdict
presents a question of law. State v. Thompkins, 78 Ohio St. 3d 380, 386, 678 N.E.2d
541 (1997). We therefore review a sufficiency of the evidence challenge de novo,
construing the evidence in a light most favorable to the prevailing party. State v.
Jackson, 1st Dist. Hamilton Nos. C-180159 and C-180209, 2020-Ohio-80, ¶ 11 (“we
review de novo the court’s legal conclusion that the state presented sufficient
evidence * ”).
{¶11} Mr. Bowden was convicted of a misdemeanor OVI under R.C.
4511.19(A)(1)(a), which forbids an individual from operating any vehicle while
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OHIO FIRST DISTRICT COURT OF APPEALS
“under the influence of alcohol, a drug of abuse, or a combination of them.” See
State v. Comer, 12th Dist. Warren No. CA2017-09-135, 2018-Ohio-2264, ¶ 23 (“The
state only had to prove that appellant ingested a drug of abuse, that he operated his
vehicle while impaired[.]”). Mr. Bowden does not contest that marijuana or
painkillers qualify as drugs of abuse. See R.C. 4511.181(E) and R.C. 4506.01(M).
Accordingly, the state simply needed to prove that Mr. Bowden ingested the
marijuana or painkillers and that either substance impaired his subsequent driving.
See State v. Richardson, 150 Ohio St. 3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶ 14
(“So if the evidence, viewed in the light most favorable to the state, proved that [the
defendant] had ingested hydrocodone and that it impaired his driving, it was
sufficient to support his OVI conviction.”).
{¶12} And the state did so here. As to ingestion, Trooper Sauber testified at
trial that when he opened Mr. Bowden’s car door, “marijuana smoke just began
rolling out of the vehicle heavily.” Trooper Sauber noted that he recognized the
“odor of burnt marijuana” from his training, and further that he witnessed “ashes all
over the console area.” The passenger’s acknowledgment that both of them were
partaking further confirmed Trooper Sauber’s suspicions. The billowing smoke, the
distinctive smell, the ashes, and the passenger’s comments—all viewed in the light
most favorable to the state—are sufficient to convince a rational trier of fact that Mr.
Bowden ingested marijuana.
{¶13} The state also presented sufficient evidence of Mr. Bowden’s
impairment. Mr. Bowden’s efforts to evade the OVI checkpoint certainly raised red
flags. When Trooper Sauber approached the car and demanded that Mr. Bowden put
it in park, Mr. Bowden ignored the instructions, finally parking the car only after
Trooper Sauber opened the door. See Richardson at ¶ 18 (citing defendant’s poor
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OHIO FIRST DISTRICT COURT OF APPEALS
driving as evidence of impairment). And, across all of the tests performed by
Trooper Sauber, Mr. Bowden demonstrated multiple signs of impairment. See id.
(citing defendant’s poor performance on the walk-and-turn and one-leg-stand tests
as evidence of impairment by narcotics). Mr. Bowden’s refusal to take a urine test
weighs further against him. See State v. Cauthon, 5th Dist. Fairfield No. 18-CA-41,
2019-Ohio-1809, ¶ 19 (finding sufficient evidence supported defendant’s OVI
conviction, in part, because defendant “refused a drug test”). Finally, Trooper
Sauber testified that Mr. Bowden admitted that “he did feel like he was too impaired
to be driving.” This combined evidence, if believed, was more than sufficient to
establish Mr. Bowden’s impairment.
{¶14} Without much to say about this evidence, Mr. Bowden rests his case on
a purported lack of evidence linking his ingestion to his impairment. He correctly
notes that, to convict an individual under R.C. 4511.19, the state must present
evidence that a driver’s “impaired condition resulted from being under the influence
of a drug of abuse.” (Emphasis added). State v. Collins, 9th Dist. Wayne No.
11CA0027, 2012-Ohio.2236, ¶ 20. In this respect, he zeros in on the absence of any
witness to testify regarding the effects of taking painkillers or prescription Tylenol.
See State v. May, 2d Dist. Montgomery No. 25359, 2014-Ohio-1542, ¶ 47 (“[I]n
many situations, especially those involving prescription drugs, [impairment] can
only be proved by direct testimony linking the influence of the drug to the driving.”).
{¶15} But the painkillers are not the only drug of abuse on which Mr.
Bowden’s conviction turns. So long as the state presented sufficient evidence of Mr.
Bowden’s ingestion of and impairment by marijuana, any error in the court’s reliance
upon painkillers would be harmless (assuming, without deciding, the correctness of
Mr. Bowden’s argument). See id. at ¶ 54 (where the state presented “overwhelming
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OHIO FIRST DISTRICT COURT OF APPEALS
evidence that [the defendant] was driving her vehicle while under the influence of
alcohol,” erroneous instruction on the prescription drug Cymbalta constituted
harmless error).
{¶16} The evidence in this case—when read in the light most favorable to the
state—is sufficient to show a nexus between Mr. Bowden’s ingestion of marijuana
and his impaired driving. While Trooper Sauber never testified that Mr. Bowden’s
impairment definitively stemmed from marijuana, our case law does not demand as
much. See Richardson, 150 Ohio St. 3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶ 18
(finding the officer’s testimony sufficient to support that defendant’s ingestion of
hydrocodone impaired his driving when “[b]ased on his experience, the officer
believed that [the defendant] ‘was under the influence of some type of possibly
narcotics’ ”). Based on Mr. Bowden’s driving and his performance on and behavior
during the field sobriety tests, Trooper Sauber testified that Mr. Bowden was
“appreciably impaired” in a manner consistent with marijuana consumption. Along
with the strong circumstantial evidence of marijuana ingestion chronicled above, this
testimony supplies the necessary nexus. See State v. McClain, 2018-Ohio-538, 105
N.E.3d 762, ¶ 9 (9th Dist.) (relying on the officer’s testimony that the defendant’s
“behavior during the field sobriety tests and his performance on them,” and his
“glassy eyes and dilated pupils” sufficiently “indicated that [he] was under the
influence of drugs,” though the officer never testified as to whether Adderall or
marijuana caused defendant’s impairment).
{¶17} In light of the above analysis, we overrule Mr. Bowden’s sole
assignment of error and affirm the judgment of the trial court.
Judgment affirmed.
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OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, P.J., and CROUSE, J., concur.
Please note:
The court has recorded its own entry this date.
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