State v. Fox

[Cite as State v. Fox, 2023-Ohio-1912.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CHAMPAIGN COUNTY
STATE OF OHIO :
:
Appellee : C.A. No. 2023-CA-5
:
v. : Trial Court Case No. 22TRC778
:
KATHY L. FOX : (Criminal Appeal from Municipal Court)
:
Appellant :
:
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OPINION
Rendered on June 9, 2023
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ROGER A. STEFFAN, Attorney for Appellee
KONRAD KUCZAK, Attorney for Appellant
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WELBAUM, P.J.
{¶ 1} Appellant, Kathy L. Fox, appeals from her conviction for operating a vehicle
under the influence of alcohol or drugs (“OVI”) following a bench trial in the Champaign
County Municipal Court. In support of her appeal, Fox raises multiple claims alleging
that the State failed to present sufficient evidence at trial to convict her of OVI in violation
of Saint Paris Ordinance 73.01(A)(1). For the reasons outlined below, we agree that
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there was insufficient evidence to support Fox’s OVI conviction. Therefore, the judgment
of conviction will be vacated.
Facts and Course of Proceedings
{¶ 2} On May 20, 2022, Fox was cited and arrested for OVI in violation of Saint
Paris Ordinance 73.01(A)(1), a misdemeanor of the first degree. The citation alleged
that Fox had operated her vehicle under the influence of alcohol and/or drugs on the 400
block of State Route (SR) 235 in the Village of Saint Paris, Champaign County, Ohio.
Fox pled not guilty to the charge and the matter proceeded to a bench trial on December
13 and 28, 2022.
{¶ 3} At trial, the State presented testimony from David Brown, a motorist who
called 9-1-1 and reported erratic driving by Fox on the day she was cited for OVI. The
State also presented testimony from Officer Cory Baldwin, a former sergeant with the
Saint Paris Police Department who cited and arrested Fox for the OVI in question. The
State additionally presented testimony from Lindsie Mayfield, a criminalist with the Ohio
State Highway Patrol who tested a urine sample that Fox voluntarily provided to law
enforcement. Fox also testified in her defense. The following is a summary of the
relevant testimony that was presented at trial.
{¶ 4} At approximately 6 p.m. on May 20, 2022, David Brown was driving behind
a silver Toyota vehicle that was traveling northbound on SR 235 toward the Village of
Saint Paris. While traveling behind the vehicle, Brown observed that the vehicle was not
maintaining a constant speed and crossed over the center and far right lanes of the
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roadway multiple times to the extent that Brown felt it was unsafe to pass the vehicle.
Brown followed the vehicle for 8 to 10 minutes and “started to get anxious,” so he called
9-1-1 to report the erratic driving. Trial Tr. (Dec. 13, 2022), p. 22. After calling 9-1-1,
Brown observed a police officer pull the vehicle over on SR 235 “just north of 36.” Id. at
16. When the State asked if that location was within the Village of Saint Paris, Brown
testified: “It was on 235. I don’t know.” Id.
{¶ 5} Ofc. Cory Baldwin identified himself as the officer who pulled the vehicle over
in response to Brown’s 9-1-1 call. At the time of trial, Baldwin was a deputy for the
Madison County Sheriff’s Office, but he testified that he had been a sergeant for the Saint
Paris Police Department at the time in question. After pulling the vehicle over, Baldwin
observed that the driver, later identified as Fox, had pinpoint pupils, slurred speech,
abnormally slow speech, and severe dry mouth. When Baldwin asked Fox about her
erratic driving, she told him that she had been messing with her GPS and that she had
dropped her lipstick on the floor. Baldwin also asked Fox if she had taken any medication
that day, to which Fox responded that she had taken her morning medication. However,
Fox was unable to tell Baldwin what her morning medication consisted of.
{¶ 6} Based on his observations and his discussion with Fox, Ofc. Baldwin asked
Fox if she would be willing to participate in field sobriety testing. In response, Fox
advised Baldwin that she had bad knees but would try the tests anyway. When Fox
exited her vehicle to participate in the testing, Baldwin observed Fox stumble and have
difficulty standing. Baldwin first attempted the horizontal gaze nystagmus (“HGN”) test.
Baldwin testified that the HGN test did not provide him with any clues due to the extremely
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windy conditions, which caused Fox’s hair to blow in her eyes. Baldwin next tried the
walk-and-turn test and observed that Fox kept stepping off the line, but Baldwin attributed
Fox’s balance issues to the extremely windy conditions and Fox’s bad knees. Baldwin
then attempted the modified Romberg test, which resulted in the same balance issues
due to the wind and Fox’s knees. Because Fox was having difficulty standing and
balancing, Baldwin asked her to have a seat in his patrol car for purposes of safety.
Baldwin also asked Fox if he could search her vehicle, and Fox agreed.
{¶ 7} After Fox agreed to the search of her vehicle, Ofc. Baldwin called a canine
unit for assistance. The canine, Frankie, conducted an open-air sniff and alerted to the
driver’s side of Fox’s vehicle. Thereafter, Baldwin searched the vehicle and found a THC
pen, THC refill, and an empty pill bottle. Baldwin observed that the empty pill bottle had
a label indicating that the bottle had contained 90 pills of Clonazepam that had just been
refilled seven days earlier on May 13, 2022. When Baldwin asked Fox about the empty
pill bottle, Fox claimed that she did not know what had happened to the pills and assumed
her medication had been stolen. At that point, Baldwin placed Fox under arrest on
suspicion of OVI.
{¶ 8} Following Fox’s arrest, Ofc. Baldwin asked Fox if she would provide a
voluntary urine sample, and Fox agreed. Baldwin thereafter transported Fox to the
police station, where she provided a urine sample. The urine sample was forwarded to
the toxicology section of the Ohio State Highway Patrol Crime Laboratory for analysis and
testing.
{¶ 9} Lindsie Mayfield testified that she was the criminalist who had analyzed and
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tested Fox’s urine sample. Mayfield testified that the urine sample had tested positive
for Clonazepam, which is “the parent drug * * * commonly associated as Klonopin.” Trial
Tr. (Dec. 28, 2022), p. 51. Mayfield explained that the test results do not give the specific
amount of Clonazepam in the system, but she noted that a test is deemed positive if it
meets the threshold amount of 50 nanograms per milliliter. Mayfield testified that this
information was provided in her report of analysis, which was admitted into evidence as
State’s Exhibit A.
{¶ 10} In her defense, Fox testified that she had been swerving on the roadway on
the date in question due to glancing at the GPS on her cell phone and gusts of wind
blowing her around while driving. Fox also testified that she had been prescribed
Clonazepam five years earlier for her nerves and anxiety and that, during the time in
question, she typically took one milligram of Clonazepam three times a day. Fox
testified, however, that she had not taken any Clonazepam within 24 hours of her arrest.
Fox also indicated that she no longer took Clonazepam and that it caused her to shake
and have speech delays. Fox additionally testified that she had suffered from dry mouth
since February 2022.
{¶ 11} After taking the matter under advisement, the trial court issued a written
decision on January 17, 2023, finding Fox guilty of the OVI charge at issue. On February
13, 2023, the court sentenced Fox to 30 days in jail with 27 of those days suspended.
The trial court also ordered Fox to pay a $650 fine plus court costs.
{¶ 12} Fox now appeals from her OVI conviction and raises three assignments of
error, each of which challenges the sufficiency of the evidence used to convict her.
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Waiver
{¶ 13} As a preliminary matter, we note that Fox did not make a Crim.R. 29 motion
challenging the sufficiency of the evidence at trial. Although there is an abundance of
case law indicating that such a failure waives the issue of sufficiency for appeal, this court
has recognized that “[t]he Supreme Court of Ohio has held that a defendant’s ‘not guilty’
plea preserves the right to object to an alleged insufficiency of evidence, even if the matter
is not raised at trial.” State v. Hill, 2d Dist. Montgomery No. 25274, 2013-Ohio-2016,
¶ 28, citing State v. Carter, 64 Ohio St.3d 218, 223, 594 N.E.2d 595 (1992) and State v.
Jones, 91 Ohio St.3d 335, 346-347, 744 N.E.2d 1163 (2001). Accord State v. Williams,
2d Dist. Clark No. 2021-CA-66, 2022-Ohio-2517, ¶ 50; State v. Ropp, 2d Dist. Champaign
No. 2018-CA-44, 2020-Ohio-824, ¶ 30.
{¶ 14} This court has also explained that “even if a defendant could waive a
challenge to the sufficiency of the evidence by failing to raise the issue at trial, it would
remain subject to plain-error analysis.” State v. Rochowiak, 2d Dist. Miami No. 2008-
CA-12, 2009-Ohio-2550, ¶ 24, citing State v. Osterfeld, 2d Dist. Montgomery No. 20677,
2005-Ohio-3180, ¶ 9. “[B]ecause ‘a conviction based on legally insufficient evidence
constitutes a denial of due process,’ a conviction based upon insufficient evidence would
almost always amount to plain error.” Ropp at ¶ 30, quoting State v. Thompkins, 78 Ohio
St.3d 380, 386-387, 678 N.E.2d 541 (1997). (Other citations omitted.)
{¶ 15} For the foregoing reasons, we find that the sufficiency-of-the-evidence issue
has not been waived for appeal. Because all three of Fox’s assignments of error
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challenge the sufficiency of the evidence, we will address them together for purposes of
clarity.
Assignments of Error
{¶ 16} Under her three assignments of error, Fox claims that the evidence
presented at trial was insufficient to convict her of OVI in violation of Saint Paris Ordinance
73.01(A)(1), because the evidence failed to establish that: (1) she was within the Village
of Saint Paris at the time of the conduct in question; (2) that the Clonazepam detected in
her urine was a “drug of abuse”; and (3) there was a nexus between her ingestion of the
Clonazepam and her erratic driving.
{¶ 17} “A sufficiency of the evidence argument disputes whether the State has
presented adequate evidence on each element of the offense to allow the case to go to
the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery
No. 22581, 2009-Ohio-525, ¶ 10, citing Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541.
“When reviewing a claim as to sufficiency of evidence, the relevant inquiry is whether any
rational factfinder viewing the evidence in a light most favorable to the state could have
found the essential elements of the crime proven beyond a reasonable doubt.” (Citations
omitted.) State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997). “The
verdict will not be disturbed unless the appellate court finds that reasonable minds could
not reach the conclusion reached by the trier-of-fact.” (Citations omitted.) Id.{¶ 18} As previously discussed, Fox was convicted of OVI in violation of Saint Paris
Ordinance 73.01(A)(1). That ordinance provides: “No person shall operate any vehicle
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within this municipality, if, at the time of the operation, * * * [t]he person is under the
influence of alcohol, a drug of abuse, or a combination of them.” (Emphasis added.)
The term “municipality” as used in the Saint Paris Municipal Code denotes “the Village of
Saint Paris irrespective of its population or legal classification.” Saint Paris Ordinance
10.02.
{¶ 19} We note that Fox was not charged under R.C. 4511.19, which is the state
statute governing OVIs. Except for the location of the vehicle’s operation, the wording
of Saint Paris Ordinance 73.01(A)(1) is almost identical to R.C. 4511.19(A)(1). The only
difference is that R.C. 4511.19(A)(1) simply requires the vehicle to have been operated
within the State of Ohio, while Saint Paris Ordinance 73.01(A)(1) requires the vehicle to
have been operated within the Village of Saint Paris.
{¶ 20} Under her first assignment of error, Fox claims that the State did not present
sufficient evidence at trial establishing that she was within the Village of Saint Paris when
she engaged in the conduct underlying the OVI offense in question. This court
addressed a similar claim in State v. Monnin, 2d Dist. Darke No. 1350, 1994 WL 558987(Oct. 12, 1994). In Monnin, the defendant was convicted of OVI and the issue on appeal
was whether the evidence presented at the defendant’s bench trial established that the
defendant had committed the OVI offense within the Village of Versailles. Id. at *1.
After considering the entire record, this court determined in Monnin that the trial court
could have reasonably found beyond a reasonable doubt that the defendant had operated
a vehicle under the influence of alcohol in the Village of Versailles based on the following:
Officer Coatney [the arresting officer] identified himself as a police
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officer for the Village of Versailles. He testified that on the date in question
he was “on a routine patrol in my assigned area of the village” meaning “The
Village of Versailles”, and that Versailles is in Darke County. He testified
that he observed the “vehicle in question”, and the individual he arrested “in
the alleyway to the rear of Sam’s Place Bar”. (Tr. 26, 27.) The D.W.I.
offense report, completed by Officer Coatney and admitted into evidence
without objection, identified the individual he arrested as Dale E. Monnin, a
“truck driver” by occupation, whose address was 809 East Wood Street,
Versailles, Ohio, and stated that the location of the occurrence was the
“alley between N. West and Center Street.” Officer Coatney identified his
own residence as the “Versailles P.D.”
Id. at *1.
{¶ 21} This court explained in Monnin that the trial court could have reasonably
found that the offense had occurred within the Village of Versailles because the arresting
officer “was a Versailles police officer who testified that he was on patrol within the Village
of Versailles when he received the dispatch which took him to the alley between N. West
and Center Streets where he observed the vehicle and the individual to whom the
dispatch related.” Id. We also noted that “nothing suggest[ed] that this location was not
within the Village of Versailles.” Id. We further recognized that “[i]t is well known that
police officers normally do not effect arrests outside their territorial jurisdiction in the
absence of hot pursuit, and nothing of record suggests that this was a hot pursuit
situation.” Id. Therefore, when considering the evidence and “the fact that the trial
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judge can be presumed to have some familiarity with the streets and landmarks within the
geographic jurisdiction of the court over which he [or she] presides,” we concluded that
the trial court reasonably determined that the offense occurred within the Village of
Versailles. Id. at *2.
{¶ 22} In the present case, the trial court did not make any finding with regard to
the location of Fox’s OVI offense. The evidence presented at trial established that Brown
called 9-1-1 after observing Fox driving erratically on SR 235. Specifically, Brown
indicated that Fox was traveling north on SR 235 “[t]owards Saint Paris[.]” Trial Tr. (Dec.
13, 2022), p. 14. Brown also testified that he observed an officer pull Fox over “just north
of 36.” Id. at 16. When the prosecutor asked Brown whether Fox had been pulled over
within the Village of Saint Paris, Brown responded: “It was on 235. I don’t know.” Id.
{¶ 23} Ofc. Baldwin testified that he was a sergeant for the Saint Paris Police
Department at the time in question and confirmed that he was the officer who pulled Fox
over in response to Brown’s 9-1-1 call. Unlike the officer in Monnin, however, Baldwin
never testified about where the traffic stop occurred or where he was dispatched.
Baldwin also did not provide any testimony indicating that he was on routine patrol in his
assigned area of the village when he pulled Fox over.
{¶ 24} That said, the citation charging Fox with OVI and Ofc. Baldwin’s written
statement of the offense both indicated that Baldwin was on patrol in the Village of Saint
Paris and had stopped Fox in the 400 block of SR 235 in the Village of Saint Paris,
Champaign County, Ohio. The State, however, did not refer to either of those
documents at trial and did not offer them as evidence. The only exhibit offered by the
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State was the test results from Fox’s urine sample. Therefore, as to Fox’s location, we
find that the evidence simply established that, on the day in question, Fox was operating
her vehicle northbound on SR 235 toward Saint Paris, and that she was cited and arrested
for OVI by a Saint Paris police officer at some location on SR 235 that was “just north of
36.” In other words, there was no evidence presented at trial establishing that Fox had
been within the Village of Saint Paris.
{¶ 25} “Judicial notice permits a court to dispense with proof by evidence where
the court is justified in declaring the truth of the matter without requiring evidence.”
McKenzie v. Davies, 2d Dist. Montgomery No. 22932, 2009-Ohio-1960, ¶ 22, citing State
v. Duncan, 2d Dist. Montgomery No. 9250, 1986 WL 5794, *6 (May 13, 1986), citing
Evid.R. 201. “A judicially noticed fact must be one not subject to reasonable dispute in
that it is either (1) generally known within the territorial jurisdiction of the trial court or (2)
capable of accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned.” Evid.R. 201(B).
{¶ 26} “Location, as well as other geographical facts, are often times the subject
of judicial notice because they are generally known within the territorial jurisdiction of the
court and are not subject to reasonable dispute.” State v. Gray, 4th Dist. Ross No.
97CA2284, 1998 WL 103325, *2, citing 1 Giannelli & Snyder, Evidence (1996) 123-124,
§ 201.6: McCormick, Evidence (1984 3d Ed.) 926, § 330. See also United States v.
Piggie, 622 F.2d 486, 488 (10th Cir.1980) (“[g]eography has long been peculiarly
susceptible to judicial notice for the obvious reason that geographic locations are facts
which are not generally controversial”). For example, in Gray, the Fourth District Court
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of Appeals held that the trial court essentially took judicial notice of the fact that venue
had been established where it was uncontroverted that the speeding offense in question
occurred on a stretch of SR 138 between Frankfort and Clarksburg, Ohio, and where the
trial court opined that it was familiar with that area and found that venue had been
sufficiently established. Gray at *2.
{¶ 27} Unlike in Gray, the trial court in this case did not make any finding with
regard to Fox’s location, its familiarity with the area in question, or whether Fox was
driving within the Village of Saint Paris. Although we stated in Monnin that trial judges
can be presumed to have some familiarity with the streets and landmarks within the
geographic jurisdiction of the court over which they preside, there is nothing in the record
indicating that the trial court took judicial notice of whether Fox was within the Village of
Saint Paris during the conduct in question. In addition, the State has not asked this court
to take judicial notice of the village boundaries, and we decline to do so.
{¶ 28} Based on the evidence presented at trial, we find that even when the
evidence is viewed in a light most favorable to the State, the trial court, as the finder of
fact, could not have reasonably concluded that Fox was within the Village of Saint Paris
during the conduct for which she was convicted. Therefore, the element in Saint Paris
Ordinance 73.01(A)(1) requiring Fox to have been operating a vehicle “within the
municipality,” i.e., within the Village of Saint Paris, was not proven by the evidence.
Accordingly, Fox’s conviction for violating that ordinance was not supported by sufficient
evidence.
{¶ 29} Because there was insufficient evidence to establish that Fox was within the
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Village of Saint Paris at the time of the conduct in question, Fox’s first assignment of error
is sustained. Having sustained Fox’s first assignment of error, we need not address the
sufficiency claims raised under Fox’s second and third assignments of error, and they are
overruled as moot.
Conclusion
{¶ 30} Fox’s conviction for OVI in violation of Saint Paris Ordinance 73.01(A)(1) is
vacated.
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TUCKER, J. and EPLEY, J., concur.