DocketNumber: No. 2005-L-179.
Citation Numbers: 2006 Ohio 5371
Judges: DIANE V. GRENDELL, J.
Filed Date: 10/13/2006
Status: Non-Precedential
Modified Date: 4/17/2021
{¶ 2} On the morning of December 7, 2004, Anthony Morrell was driving his Honda Civic southbound on Plaza Boulevard in Mentor, Ohio. As Morrell was bringing his vehicle to a stop for a red light at the intersection of Plaza Boulevard and State Route 84, Anderson, driving a Dodge Caravan, hit Morrell's vehicle from behind. Morrell turned off the engine and exited the vehicle. Morrell observed Anderson stumble as she excited her vehicle and come toward him stumbling. Morrell asked if Anderson was alright and Anderson replied that she had a head cold. Morrell informed Anderson that he was calling the police and Anderson groaned.
{¶ 3} Two City of Mentor workers, John Kotrlik and Charles Jennison, observed the stopped vehicles and stopped their own vehicle to assist. Kotrlik described Anderson as "staggering," "unstable," "impaired," and "not coherent." Jennison described her as "staggering" and "incoherent."
{¶ 4} Mentor Patrolman Conrad Straube was the first police officer to respond to the accident. Straube observed Morrell and Anderson exiting their vehicles. Straube observed Anderson supporting herself with the side of her van and walking very slow with her face toward the ground. Speaking with Anderson, Straube noticed that her speech was slurred and her eyes were glassy and dilated. Straube testified that it was difficult to speak with Anderson because she could not focus and her head kept falling forward.
{¶ 5} Anderson told Straube that she needed to leave because she had a doctor's appointment. Straube took the keys from Anderson's van and asked her if she had been drinking any alcoholic beverages. Anderson denied drinking anything alcoholic and did not smell of alcohol. Straube asked Anderson if she was taking any prescription medication and she replied that she had taken two Soma (clarisoprodol) tablets since midnight. Anderson told Straube that she was taking the Soma for bronchitis.
{¶ 6} Straube concluded that Anderson was impaired. Straube attempted to conduct the horizontal gaze nystagmus (HGN) test and the one-leg-stand test but was unable to complete the tests because of Anderson's inability to stand unassisted and comprehend the instructions. Anderson refused to submit to a blood or urine screen. Straube placed Anderson under arrest and transported her to the Mentor City Jail.
{¶ 7} At the jail, Anderson admitted to having three prescription medications, clarisoprodol, tramadol, and klonopin/clonazepam. Pill bottles for each of these medications were found in Anderson's purse. The prescription for clarisoprodol had been filled on December 4, 2004. The prescription was for a two-week supply, i.e. 42 pills to be taken three times a day. There were only 14 clarisoprodol pills left in the bottle, or enough to last until December 12, 2004. The prescription for tramadol was filled on December 2, 2004. The prescription was for a 30-day supply, i.e. 120 pills to be taken four times a day. There were only 37 tramadol pills left in the bottle, or enough to last until December 16, 2004. Anderson informed Straube that the remaining clarisoprodol and tramadol pills were at home. The prescription for clonazepam was filled on December 2, 2004. The prescription was for 120 pills and there were 100 pills remaining in the bottle. Straube testified that the correct number of clonazepam pills remained according to prescribed dosage.
{¶ 8} Anderson was tried before a jury on one count of Driving While Under the Influence of Alcohol or Drugs on August 30, 2005. At trial, Doug Rohde, senior forensic toxicologist and chemist at the Lake Country Crime Lab, testified for the prosecution. Rohde testified that clarisoprodol and clonazepam are central nervous system depressants. Rohde testified that such drugs inhibit the central nervous system's ability to process information and/or stimuli. This condition results in decreased muscle control and a decreased ability to respond to multiple stimuli. The particular effects of central nervous system depressants include slurred speech, drowsiness, the inability to stand up, dizziness, and decreased reaction time. Rohde also testified that, when clarisoprodol and clonazapam are taken together, "there would be an additive effect, meaning almost as if you took a double dose of one or the other."
{¶ 9} Anderson testified that tramadol is an analgesic that blocks pain without depressing the central nervous system.
{¶ 10} Anderson testified that clarisoprodol, clonazepam, and tramadol are all prescription medications.
{¶ 11} The jury returned a verdict of guilty. The trial court sentenced Anderson to one year of incarceration at the Ohio Reformatory for Women, Marysville, Ohio for the Driving While Under the Influence of Alcohol or Drugs charge. The trial court also imposed an additional two-year period of incarceration pursuant to R.C.
{¶ 12} On appeal, Anderson raises the following assignments of error.
{¶ 13} "[1.] The trial court committed plain error by instructing the jury that Soma, tramadol, and klonopin are drugs of abuse, resulting in the violation of appellant's right to due process, due process as guaranteed by the
{¶ 14} "[2.] The appellant received ineffective assistance of counsel in violation of her rights pursuant to the
{¶ 15} "[3.] The appellant's convictions are against the manifest weight of the evidence.
{¶ 16} "[4.] The trial court's imposition of a sentence greater than the minimum term permitted by statute based upon findings not made by a jury nor admitted by appellant is contrary to law and violates appellant's right to a trial by jury and due process, as guaranteed by the
{¶ 17} In her first assignment of error, Anderson argues that the trial court erred by instructing the jury that clarisoprodol, tramadol, and klonopin/clonazepam are "drugs of abuse" in the absence of a stipulation or admission to that effect. Since the State bore the burden of proving that she was under the influence of a "drug of abuse," Anderson maintains that whether clarisoprodol, tramadol, and klonopin/clonazepam are "drugs of abuse" is a factual question for the jury to resolve.
{¶ 18} In order to convict Anderson of Driving While Under the Influence of Alcohol or Drugs, the State was required to prove, beyond a reasonable doubt, that Anderson was "operat[ing] [a] vehicle" while "under the influence of * * * a drug of abuse." R.C.
{¶ 19} Anderson failed to raise any objection to the trial court's jury instruction as given. Accordingly, we review Anderson's argument under a plain error standard of review.State v. Underwood (1983),
{¶ 20} Initially, we note that clonazepam is a Schedule IV controlled substance identified in R.C.
{¶ 21} Clarisoprodol and tramadol are unscheduled substances under Ohio law and federal law, although, as regulated by federal law, clarisoprodol and tramadol may only be dispensed by prescription.1 It is uncertain whether, in its instruction to the jury, the trial court was relying on the testimony of the State's expert that these drugs may only be dispensed by prescription or some other pharmaceutical reference. The State's expert, Rohde, cited no authority for his opinion that clarisoprodol and tramadol may only be dispensed by prescription. If the court intended to judicially notice the fact that clarisoprodol and tramadol may only be dispensed by prescription, it failed to comply with Evid.R. 201(G) (requiring the court to instruct the jury in a criminal matter that "it may, but is not required to, accept as conclusive the fact judicially noticed").
{¶ 22} Any error in the trial court's instruction relative to clarisoprodol and tramadol, however, was harmless. The only evidence before the jury was that clarisoprodol and tramadol could only be dispensed by prescription. Patrolman Straube testified that all the medicines in Anderson's possession were dispensed by prescription. Absent an exercise in jury nullification, the jury could only have concluded that clarisoprodol and tramadol were prescription medications. Moreover, Anderson's conviction could be sustained for operating a vehicle under the influence of clonazepam, which the trial court properly instructed the jury is a drug of abuse as a controlled substance.
{¶ 23} The first assignment of error is without merit.
{¶ 24} Under the second assignment of error, Anderson argues that trial counsel was ineffective for failing to object to the trial court's instruction that clarisoprodol, tramadol, and klonopin/clonazepam are "drugs of abuse."
{¶ 25} The Ohio Supreme Court has adopted a two-part test to determine whether an attorney's performance has fallen below the constitutional standard for effective assistance. To reverse a conviction for ineffective assistance of counsel, the defendant must prove "(1) that counsel's performance fell below an objective standard of reasonableness, and (2) that counsel's deficient performance prejudiced the defendant resulting in an unreliable or fundamentally unfair outcome of the proceeding."State v. Madrigal,
{¶ 26} In the present circumstances, Anderson cannot demonstrate that she was prejudiced by trial counsel's failure to object to the jury instruction regarding clarisoprodol and tramadol. As discussed above, the only evidence before the jury was that clarisoprodol and tramadol are "prescription only" drugs. Anderson does not contend otherwise, but, rather, argues that the jury was deprived of its right to disbelieve the State's expert on this issue. We disagree. "The assessment of prejudice should proceed on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision." Strickland,
{¶ 27} The second assignment of error is without merit.
{¶ 28} Under the third assignment of error, Anderson argues that her conviction is against the manifest weight of the evidence.
{¶ 29} A challenge to the manifest weight of the evidence raises a factual issue. "The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether, in resolving conflicts in the evidence, 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,
{¶ 30} Anderson maintains that the jury lost its way in determining that she was operating a vehicle while under the influence of a drug of abuse. Anderson argues that, while there was substantial evidence of her impaired condition, "there was no evidence presented that such was not the result of the accident, illness, or even the normal behavior of Appellant." We disagree.
{¶ 31} The State presented evidence that Anderson's condition — her slurred speech, her drowsiness, her inability to stand — was typical of a person under the influence of central nervous system depressants, such as clonazepam and clarisoprodol. Anderson admitted to having taken two clarisoprodol tablets since midnight. The prescription bottles recovered from Anderson's purse suggest that Anderson was taking the three medicines in the doses prescribed by her doctors, and possibly in doses greater than her doctors had prescribed. Although this evidence is largely circumstantial evidence that Anderson was under the influence of a drug of abuse (Anderson's admission to having taken clarisoprodol is direct evidence), it is well-established that circumstantial evidence has the same probative force as direct evidence in sustaining a conviction. State v. Jenks
(1991),
{¶ 32} Additionally, we note that many appellate districts, including this one, have affirmed convictions under R.C.
{¶ 33} The third assignment of error is without merit.
{¶ 34} In her fourth and final assignment of error, Anderson contends that the trial court's imposition of a non-minimum sentence violates her
{¶ 35} Anderson was convicted of a fourth degree felony charge of Driving While Under the Influence of Alcohol or Drugs. The basic prison terms for a fourth degree felony are from six to eighteen months. R.C.
{¶ 36} In Foster, the Ohio Supreme Court held that R.C.
{¶ 37} The Ohio Supreme Court further held that R.C.
{¶ 38} The trial court also imposed a consecutive, two year prison term on Anderson pursuant to her repeat OVI offender specification. The repeat OVI offender specification applies to offenders who have been convicted of five or more violations of R.C.
{¶ 39} As drafted, R.C.
{¶ 40} The fourth assignment of error has merit as it applies to Anderson's sentence for Driving While Under the Influence of Alcohol or Drugs.
{¶ 41} For the foregoing reasons, the decision of the Lake County Court of Common Pleas is affirmed in part, reversed in part, and this cause if remanded for re-sentencing on the charge of Driving While Under the Influence of Alcohol or Drugs. At the re-sentencing hearing, Anderson "may stipulate to the sentencing court acting on the record before it." Foster,
Donald R. Ford, P.J., Cynthia Westcott Rice, J., concur.