[Cite as State v. Furguson, 2013-Ohio-5388.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-130173 C-130174 Plaintiff-Appellee, : C-130175 TRIAL NO. 12CRB-21171 vs. :
DAVID FURGUSON, : O P I N I O N.
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: December 11, 2013
John P. Curp, City Solicitor, Charles A. Rubenstein, City Prosecutor, and Lauren M. Yanovsky, Assistant City Prosecutor, for Plaintiff-Appellee,
Fox & Scott, PLLC, and Bradley Fox, for Defendant-Appellant.
Please note: This case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS
H ILDEBRANDT , Presiding Judge.
{¶1} Defendant-appellant David Furguson appeals the judgment of the
Hamilton County Municipal Court convicting him of operating a watercraft while
intoxicated, failure to comply with the order of a police officer, and failure to have an
audible warning device on a watercraft. He was convicted after a bench trial.
Furguson’s Encounter with Sergeant Kruse
{¶2} Matthew Kruse is a sergeant for the Ohio Department of Natural
Resources, Division of Watercraft. His duties include enforcing the navigation rules
on state waterways.
{¶3} One night, he was patrolling the Ohio River near downtown
Cincinnati when he saw a boat being operated without the required white running
light. Kruse approached the boat, which had stopped by the time he had reached it.
{¶4} Furguson was on the boat with another person. He stated that he
had been operating the boat and that the white running light had just broken as he
was going through the river’s ice breakers. Kruse told Furguson that he was going to
perform a routine safety inspection on the vessel.
{¶5} Kruse testified that Furguson had immediately become combative,
telling Kruse to get his light out of his “f***ing eyes” and expressing the fear that
Kruse was going to shoot him. As Kruse spoke with Furguson, he detected an odor
of alcohol about his person. Furguson’s eyes were glassy and bloodshot, and there
was an open container of beer on the boat.
{¶6} Kruse asked Furguson to produce certain items of safety
equipment, and Furguson initially complied. But when Kruse asked to see the boat’s
sound-signaling device and registration, Furguson said, “I don’t have to show you
s**t. I don’t have to show you anything else.”
2 OHIO FIRST DISTRICT COURT OF APPEALS
{¶7} Kruse then boarded Furguson’s boat, and he described the odor of
alcohol on his person as “moderate to strong.” He placed handcuffs and a flotation
device on Furguson, who struggled with Kruse when placed on Kruse’s boat.
Furguson repeatedly attempted to remove the life jacket and began shouting that he
could not breathe and that he was having a panic attack. When Kruse asked
Furguson to perform field-sobriety tests, he replied, “I’m not doing s**t for you.”
{¶8} The state introduced a video recording of Furguson’s actions after
he had been restrained. The recording depicts Furguson repeatedly shouting
obscenities at Kruse.
{¶9} Furguson’s fiancée testified that he had been prescribed psychiatric
medication but that he had not taken it on the date in question. She stated that,
when he fails to take his medication, he can become aggravated, skittish, scared, or
upset.
{¶10} The trial court found Furguson guilty and sentenced him to a term
of community control.
Sufficiency and Weight of the Evidence
{¶11} In his first and second assignments of error, Furguson argues that
his convictions were based on insufficient evidence and were against the manifest
weight of the evidence. We address the assignments together.
{¶12} In reviewing the sufficiency of the evidence to support a conviction,
the relevant inquiry for the appellate court “is 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.” State v. Waddy, 63
Ohio St.3d 424, 430, 588 N.E.2d 819 (1992). To reverse a conviction on the manifest
weight of the evidence, a reviewing court must review the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of the witnesses, and
3 OHIO FIRST DISTRICT COURT OF APPEALS
conclude that, in resolving the conflicts in the evidence, the trier of fact clearly lost its
way and created a manifest miscarriage of justice in finding the defendant guilty.
State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).
{¶13} R.C. 1547.11(A)(1), governing the operation of watercraft under the
influence of alcohol, provides that “[n]o person shall operate or be in physical control
of any vessel underway * * * on the waters of this state, if * * * [t]he person is under
the influence of alcohol * * *.” The statute governing failure to comply with a police
officer’s order, R.C. 2921.331, states, “[n]o person shall fail to comply with any lawful
order or direction of any police officer invested with authority to direct, control, or
regulate traffic.” Finally, R.C. 1547.521 (A)(2) provides that “state watercraft officers
* * * shall enforce this chapter and Chapter 1548. of the Revised Code and rules
adopted under them * * *.” Under Ohio Adm.Code 1501:47-2-33, all vessels
operating on the Ohio River must be equipped with some means of making an
efficient sound signal.
{¶14} In this case, the convictions were in accordance with the evidence.
We begin with the alleged violation of R.C. 1547.11(A)(1). Because that section is
analogous to R.C. 4511.19, the two statutes must be construed in a consistent fashion.
State v. LePard, 52 Ohio App.3d 83, 84, 557 N.E.2d 166 (6th Dist.1989); Div. of
Waterworks v. Ardale, 11th Dist. Lake No. 2006-L-099, 2007-Ohio-3022, ¶ 22. To
prove that a person is operating under the influence of alcohol within the meaning of
R.C. 4511.19, the state must demonstrate that the defendant had consumed some
alcohol in a quantity that had “adversely and appreciably impair[ed] his actions or
mental processes and depriv[ed] him of that clearness of intellect and control of
himself which he would otherwise have had.” State v. Bakst, 30 Ohio App.3d 141,
145, 506 N.E.2d 1208 (1st Dist.1986).
4 OHIO FIRST DISTRICT COURT OF APPEALS
{¶15} Here, the state presented evidence that Furguson had admitted to
operating the boat. Immediately after observing the operation of the boat, the officer
detected that Furguson had a moderate to strong odor of alcohol on his person, had
glassy and bloodshot eyes, and was belligerent and physically combative. In
addition, the officer observed an open container of beer on the boat. Although
Furguson contends that his behavior was attributable to his psychiatric condition
and not to intoxication, we cannot say that the trial court lost its way in finding him
guilty of violating R.C. 1547.11(A)(1).
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[Cite as State v. Furguson, 2013-Ohio-5388.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-130173 C-130174 Plaintiff-Appellee, : C-130175 TRIAL NO. 12CRB-21171 vs. :
DAVID FURGUSON, : O P I N I O N.
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: December 11, 2013
John P. Curp, City Solicitor, Charles A. Rubenstein, City Prosecutor, and Lauren M. Yanovsky, Assistant City Prosecutor, for Plaintiff-Appellee,
Fox & Scott, PLLC, and Bradley Fox, for Defendant-Appellant.
Please note: This case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS
H ILDEBRANDT , Presiding Judge.
{¶1} Defendant-appellant David Furguson appeals the judgment of the
Hamilton County Municipal Court convicting him of operating a watercraft while
intoxicated, failure to comply with the order of a police officer, and failure to have an
audible warning device on a watercraft. He was convicted after a bench trial.
Furguson’s Encounter with Sergeant Kruse
{¶2} Matthew Kruse is a sergeant for the Ohio Department of Natural
Resources, Division of Watercraft. His duties include enforcing the navigation rules
on state waterways.
{¶3} One night, he was patrolling the Ohio River near downtown
Cincinnati when he saw a boat being operated without the required white running
light. Kruse approached the boat, which had stopped by the time he had reached it.
{¶4} Furguson was on the boat with another person. He stated that he
had been operating the boat and that the white running light had just broken as he
was going through the river’s ice breakers. Kruse told Furguson that he was going to
perform a routine safety inspection on the vessel.
{¶5} Kruse testified that Furguson had immediately become combative,
telling Kruse to get his light out of his “f***ing eyes” and expressing the fear that
Kruse was going to shoot him. As Kruse spoke with Furguson, he detected an odor
of alcohol about his person. Furguson’s eyes were glassy and bloodshot, and there
was an open container of beer on the boat.
{¶6} Kruse asked Furguson to produce certain items of safety
equipment, and Furguson initially complied. But when Kruse asked to see the boat’s
sound-signaling device and registration, Furguson said, “I don’t have to show you
s**t. I don’t have to show you anything else.”
2 OHIO FIRST DISTRICT COURT OF APPEALS
{¶7} Kruse then boarded Furguson’s boat, and he described the odor of
alcohol on his person as “moderate to strong.” He placed handcuffs and a flotation
device on Furguson, who struggled with Kruse when placed on Kruse’s boat.
Furguson repeatedly attempted to remove the life jacket and began shouting that he
could not breathe and that he was having a panic attack. When Kruse asked
Furguson to perform field-sobriety tests, he replied, “I’m not doing s**t for you.”
{¶8} The state introduced a video recording of Furguson’s actions after
he had been restrained. The recording depicts Furguson repeatedly shouting
obscenities at Kruse.
{¶9} Furguson’s fiancée testified that he had been prescribed psychiatric
medication but that he had not taken it on the date in question. She stated that,
when he fails to take his medication, he can become aggravated, skittish, scared, or
upset.
{¶10} The trial court found Furguson guilty and sentenced him to a term
of community control.
Sufficiency and Weight of the Evidence
{¶11} In his first and second assignments of error, Furguson argues that
his convictions were based on insufficient evidence and were against the manifest
weight of the evidence. We address the assignments together.
{¶12} In reviewing the sufficiency of the evidence to support a conviction,
the relevant inquiry for the appellate court “is 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.” State v. Waddy, 63
Ohio St.3d 424, 430, 588 N.E.2d 819 (1992). To reverse a conviction on the manifest
weight of the evidence, a reviewing court must review the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of the witnesses, and
3 OHIO FIRST DISTRICT COURT OF APPEALS
conclude that, in resolving the conflicts in the evidence, the trier of fact clearly lost its
way and created a manifest miscarriage of justice in finding the defendant guilty.
State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).
{¶13} R.C. 1547.11(A)(1), governing the operation of watercraft under the
influence of alcohol, provides that “[n]o person shall operate or be in physical control
of any vessel underway * * * on the waters of this state, if * * * [t]he person is under
the influence of alcohol * * *.” The statute governing failure to comply with a police
officer’s order, R.C. 2921.331, states, “[n]o person shall fail to comply with any lawful
order or direction of any police officer invested with authority to direct, control, or
regulate traffic.” Finally, R.C. 1547.521 (A)(2) provides that “state watercraft officers
* * * shall enforce this chapter and Chapter 1548. of the Revised Code and rules
adopted under them * * *.” Under Ohio Adm.Code 1501:47-2-33, all vessels
operating on the Ohio River must be equipped with some means of making an
efficient sound signal.
{¶14} In this case, the convictions were in accordance with the evidence.
We begin with the alleged violation of R.C. 1547.11(A)(1). Because that section is
analogous to R.C. 4511.19, the two statutes must be construed in a consistent fashion.
State v. LePard, 52 Ohio App.3d 83, 84, 557 N.E.2d 166 (6th Dist.1989); Div. of
Waterworks v. Ardale, 11th Dist. Lake No. 2006-L-099, 2007-Ohio-3022, ¶ 22. To
prove that a person is operating under the influence of alcohol within the meaning of
R.C. 4511.19, the state must demonstrate that the defendant had consumed some
alcohol in a quantity that had “adversely and appreciably impair[ed] his actions or
mental processes and depriv[ed] him of that clearness of intellect and control of
himself which he would otherwise have had.” State v. Bakst, 30 Ohio App.3d 141,
145, 506 N.E.2d 1208 (1st Dist.1986).
4 OHIO FIRST DISTRICT COURT OF APPEALS
{¶15} Here, the state presented evidence that Furguson had admitted to
operating the boat. Immediately after observing the operation of the boat, the officer
detected that Furguson had a moderate to strong odor of alcohol on his person, had
glassy and bloodshot eyes, and was belligerent and physically combative. In
addition, the officer observed an open container of beer on the boat. Although
Furguson contends that his behavior was attributable to his psychiatric condition
and not to intoxication, we cannot say that the trial court lost its way in finding him
guilty of violating R.C. 1547.11(A)(1).
{¶16} We also find no error in the conviction for failing to comply with
the order of the officer. The state demonstrated that Kruse had the authority to
inspect watercraft for safety violations and that Furguson had defied Kruse’s order to
produce the required equipment. Finally, the state presented evidence that
Furguson did not have the required sound device on his boat or, at the very least, had
refused to show Kruse such a device. For these reasons, we overrule the first and
second assignments of error.
Performance of Trial Counsel
{¶17} In his third and final assignment of error, Furguson argues that he
was denied the effective assistance of trial counsel. Specifically, he contends that
counsel was deficient in failing to more fully pursue the issue of his psychiatric
condition.
{¶18} To establish ineffective assistance of counsel, the defendant must
demonstrate that counsel’s performance fell below an objective standard of
reasonable performance and that prejudice arose from counsel’s performance.
Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two
and three of the syllabus.
5 OHIO FIRST DISTRICT COURT OF APPEALS
{¶19} In this case, we find no deficiency in counsel’s performance.
Counsel put Furguson’s fiancée on the stand to testify that Furguson had been
prescribed medications for a psychiatric condition and that he would behave
erratically if he did not take the medications as prescribed. The trial court simply did
not believe that Furguson’s behavior on the night in question had been the result of
the psychiatric condition or of his not taking the medications. Furguson has not
demonstrated that the result would have been different had counsel adduced more
evidence of his condition, and we overrule the third assignment of error.
Conclusion
{¶20} The judgment of the trial court is affirmed.
Judgment affirmed.
DINKELACKER and DEWINE, JJ., concur.
Please note: The court has recorded its own entry this date.