[Cite as State v. May, 2014-Ohio-1542.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 25359
v. : T.C. NO. 11CR2051
DONNA L. MAY : (Criminal appeal from Common Pleas Court) Defendant-Appellant :
:
..........
OPINION
Rendered on the 11th day of April , 2014.
ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
ROBERT L. MUES, Atty. Reg. No. 0017449 and A. MARK SEGRETI, JR., Atty. Reg. No. 0009106, 1105 Wilmington Avenue, Dayton, Ohio 45420 Attorneys for Defendant-Appellant
FROELICH, P.J. [Cite as State v. May, 2014-Ohio-1542.] {¶ 1} Donna L. May appeals from her convictions, after a jury trial, for
operating a vehicle while under the influence of alcohol, a drug of abuse, or a combination
of them (with a prior OVI felony), harassment with bodily substance, and endangering
children. The convictions were based on evidence that May had driven under the influence
of alcohol while also taking Cymbalta®, that one of May’s children (a toddler) was in the
rear passenger seat while May was driving under the influence of alcohol and/or a drug of
abuse, and that May had intentionally spat on a police officer during her detention in a police
cruiser. The trial court sentenced May to an aggregate five-year prison term, a $1,500
mandatory fine, and a 20-year driver’s license suspension.
{¶ 2} May’s original appellate counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating two potential
assignments of error, namely that her OVI conviction was based on insufficient evidence and
was against the manifest weight of the evidence. Upon our independent review of the
record, pursuant to Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we
concluded that the record revealed at least one potentially meritorious issue for review. The
issue concerned whether the trial court properly instructed the jury regarding May’s OVI
charge. We appointed new appellate counsel.
{¶ 3} May, with new appellate counsel, now raises four assignments on appeal.
For the following reasons, the trial court’s prison sentence will be reversed, and the matter
will be remanded for resentencing on that issue. In all other respects, the trial court’s
judgment will be affirmed.
I. Lack of Limiting Instruction Regarding Prior Conviction
{¶ 4} May’s first assignment of error states: [Cite as State v. May, 2014-Ohio-1542.] When a prior offense is admissible because it is an element of the substantive
offense, due process requires that the trial court must instruct the jury that the
jury may not consider the prior offense as proof of the charge in the
indictment, and the failure to so instruct constitutes plain error.
Alternatively, trial counsel was ineffective for failing to object or request a
limiting instruction, denying Ms. May’s right to effective counsel under the
Sixth Amendment.
{¶ 5} A jury trial on May’s charges was held in August 2012. During the trial,
the State presented evidence, through Dayton Police Officer Derrick McDonald, that May
had a 2008 OVI felony conviction in the Montgomery County Court of Common Pleas.
McDonald had obtained certified copy of the termination entry for Case No. 2007 CR 3949,
which identified Donna L. May as the defendant in the felony OVI case and provided May’s
birthday and social security number.
{¶ 6} May’s sole defense witness was Joseph Hamilton, her former boyfriend and
the father of some of her children. During his direct testimony, Hamilton discussed that
May would be verbally abusive when she was angry. He also acknowledged that May drank
beer and that he was aware of occasions when May had driven while drunk. On
cross-examination, Hamilton stated that he knew of May’s 2008 OVI felony conviction and
that May often got angry when she drank. He reiterated that he had seen May drink and
drive, and he did not think May “knew her limits about alcohol.” On redirect examination,
Hamilton indicated that May had cut back on her drinking after her prior OVI conviction,
and that she did not drink or only drank a couple of beers if she had to work the next
morning. [Cite as State v. May, 2014-Ohio-1542.] {¶ 7} In closing arguments, the State did not suggest to the jury that May’s prior
conviction made it more likely that she was guilty of the June 26 offense. The State argued:
The final element, ladies and gentleman, of Count I is that the
defendant was previously convicted of a felony, OVI in Case 2007 CR 3949
in the case of the State of Ohio versus Donna May. The entry reflecting that
conviction has been admitted into evidence. Felony OVI conviction,
wherein this defendant was found guilty. Mr. Hamilton confirmed that fact.
But beyond Mr. Hamilton’s confirmation, you have the personal identifying
information of the defendant. That personal identifying information matches
on State’s Exhibit 3 and on State’s Exhibit 2. And I urge you, during your
deliberations to compare all the documents. There’s no question, it’s
uncontroverted, it is undisputed that this defendant was convicted of a felony
in that case. * * *
{¶ 8} Defense counsel acknowledged May’s prior OVI conviction in her closing
argument, but she argued that the State’s evidence of May’s behavior did not establish that
she had driven under the influence of alcohol the day on which the current charge arose.
The State’s rebuttal argument emphasized May’s erratic driving prior to the stop, the strong
odor of an alcoholic beverage on May, her bloodshot eyes, her disheveled appearance, and
her combative behavior. The prosecutor further stated:
When we’re talking about circumstantial evidence, look for the corroboration.
Look for the facts that are also admitted by the defendant that support all the
other testimony you heard, and the defendant pointed that out herself. Donna
May admits to drinking. Officer Simpson smells the overwhelming odor of 5
alcohol. All of the facts fit together. There is no doubt that this defendant
got behind the wheel of a car, had too much to drink, her driving suffered as a
result. She’s got a prior felony conviction for drinking and driving. Mr.
Hamilton told you, she drinks a lot. Sometimes she doesn’t know her limits.
Sometimes she gets behind the wheel of a car. Count I has been proven to
you beyond a reasonable doubt.
{¶ 9} “When a prior conviction determines the degree of an offense, rather than
just enhancing the penalty, the prior conviction is not only admissible, but the state must
prove it beyond a reasonable doubt.” State v. Bankston, 2d Dist. Montgomery No. 24192,
2011-Ohio-6486, ¶ 23, citing State v. Allen, 29 Ohio St.3d 53, 506 N.E.2d 199 (1987).
However, the trial court did not instruct the jury that the evidence of May’s past OVI
conviction could only be used to establish that element of the instant OVI offense and could
not be used to show that May acted in conformity with this past act on June 26, 2011, when
she was stopped and arrested for the instant offenses. See, e.g., 2 Ohio Jury
Instructions-Criminal 401.25(4). Nor did defense counsel request such an instruction. In
the absence of such a request by defense counsel, we are limited to determining whether the
trial court’s failure to sua sponte give such an instruction is plain error. Bankston at ¶ 23.
{¶ 10} Notice of plain error under Crim.R. 52(B) is “‘to be taken with the utmost
caution, under exceptional circumstances and only to prevent a manifest miscarriage of
justice.’” See State v. Landrum, 53 Ohio St.3d 107, 111, 559 N.E.2d 710 (1990), quoting
State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.
Plain error does not exist unless, but for the error, the outcome of the criminal proceedings 6
would clearly have been different. State v. Nallen, 2d Dist. Miami No. 2012 CA 24,
2013-Ohio-3284, ¶ 19.
{¶ 11} We have previously held that the failure of a trial court to give an
unrequested limiting instruction for “other acts” evidence is not plain error. Bankston at
¶ 24; State v. Moore, 2d Dist. Greene No. 2010 CA 13, 2011-Ohio-636, ¶ 24. And a review
of the testimony and closing arguments in this case reveals no plain error in the trial court’s
failure to provide sua sponte a limiting instruction.
{¶ 12} The prosecutor’s case-in-chief addressed May’s prior conviction solely
through the testimony of Officer McDonald. McDonald testified that May had a prior OVI
felony conviction, and he identified the termination entry in that prior case. The
prosecutor’s initial closing argument mentioned May’s prior conviction only as an element
of the State’s case. May’s drinking habits and prior conviction were discussed in
Hamilton’s testimony upon questioning by defense counsel, and defense counsel
acknowledged the prior conviction in her closing argument. Defense counsel’s primary
arguments were that May had anger issues and that the “minor traffic infractions” did not
establish that May was impaired. In its rebuttal closing argument, the State emphasized the
need to consider the totality of the circumstances. The State mentioned May’s prior
conviction and Hamilton’s testimony in its rebuttal closing argument, but those statements
were in response to defense counsel’s argument that the evidence did not support a
conclusion that May had driven under the influence on June 26, 2011. The State’s reference
to the past conviction in its rebuttal was fleeting; the State did not argue that May’s prior
felony OVI conviction was proof that May had committed the June 26 offense. 7
{¶ 13} Moreover, there was substantial evidence that May had driven under the
influence of alcohol and/or a drug of abuse on June 26, 2011. The State’s evidence
established that at approximately 5:50 p.m. on June 26, 2011, Officer Amy Simpson
observed May driving on a residential road at what appeared to be above the posted 25 mile
per hour speed limit. As Simpson watched, May made an “abrupt” and “very erratic”
southbound turn without using her turn signal. Officer Simpson began to follow May.
May turned on her left turn signal, but traveled several blocks without turning left. When
May reached Third Street, which had a stop sign, she stopped with the “entire front half of
her vehicle” out in the road, well past the stop sign. Officer Simpson stated that traffic on
Third Street at that time of day is very heavy, and May’s stop created a hazard. After
turning onto Third Street, May crossed the center line three times, crossing “at least six
inches into the lane slowly, and then * * * abruptly jerk back.” Officer Simpson initiated a
traffic stop.
{¶ 14} Upon approaching May’s vehicle, Simpson immediately noticed an
“extremely strong” odor of an alcoholic beverage. May’s face was flushed, her hair was
“messed up,” her eyes were watering, she was sweating, and her speech was slurred when
she spoke. May spoke aggressively with the officer when asked if anything was wrong, and
she had trouble standing up when Simpson got her out of her car. Throughout the
encounter, May was belligerent, combative, verbally abusive, and yelled obscenities. May’s
threats to kick out the cruiser’s door and window led the officers to place a hobble on her,
which restrained May’s feet. While the hobble was being placed, May spat on another
officer and herself (in an attempt to again spit on the officer), resulting in the decision to put 8
a spit hood on May.
{¶ 15} Considering that the State predominantly used the prior conviction to prove
only that May had a prior felony OVI conviction and that there was substantial other
evidence that May drove under the influence on June 26, 2011, we cannot find that the
outcome of May’s trial would clearly have been different and that the lack of a limiting
instruction amounted to plain error.
{¶ 16} May further asserts that her trial counsel rendered ineffective assistance by
failing to request a limiting instruction regarding her prior felony OVI conviction.
{¶ 17} To reverse a conviction based on ineffective assistance of counsel, an
appellant must demonstrate both that trial counsel’s conduct fell below an objective standard
of reasonableness and that the errors were serious enough to create a reasonable probability
that, but for the errors, the result of the trial would have been different. Strickland v.
Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42
Ohio St.3d 136, 538 N.E.2d 373 (1989). Trial counsel is entitled to a strong presumption that
his or her conduct falls within the wide range of reasonable assistance. Strickland, 466 U.S.
at 688.
{¶ 18} This court has repeatedly held that failing to request a limiting instruction
concerning a prior conviction does not automatically constitute ineffective assistance of
counsel. State v. Barksdale, 2d Dist. Montgomery No. 25320, 2013-Ohio-2926, ¶ 31;
Bankston, 2d Dist. Montgomery No. 24192, 2011-Ohio-6486, at ¶ 28. “Courts have
determined that ‘debatable trial tactics do not constitute the ineffective assistance of counsel
or plain error, and a competent attorney could reasonably choose not to seek a limiting 9
instruction as a matter of trial strategy in order not to highlight [a defendant’s] prior
convictions.’” Bankston at ¶ 28, citing State v. Kinney, 4th Dist. Ross No. 07CA2996,
2008-Ohio-4612. Moreover, based on the evidence, we cannot conclude that the outcome
of May’s trial would have been different.
{¶ 19} May’s first assignment of error is overruled.
II. Maximum sentence
{¶ 20} May’s second assignment of error states:
If the jury’s conviction under R.C. 4511.19(A)(1) is upheld, the trial court’s
failure to apply H.B. 86 to Ms. May resulted in a sentence that is contrary to
law and void.
{¶ 21} May asserts that she was entitled to be sentenced under R.C.
2929.14(A)(3)(b), which sets a 36-month maximum prison term for a third-degree felony
that is not otherwise enumerated in R.C. 2929.14(A)(3)(a). May asserts that the maximum
five-year penalty in R.C. 4511.19 is irreconcilable with R.C. 2929.14(A)(3) and that R.C.
2929.14(A)(3) should have governed. May relies on State v. Owen, 2013-Ohio-2824, 995
N.E.2d 911 (11th Dist.), which held:
It cannot be disputed that these two statutes are in irreconcilable conflict since
the maximum sentence authorized for a third degree felony OVI under R.C.
4511.19(G)(1)(e) is five years, while the maximum sentence allowed for
third-degree felonies, other than those listed in R.C. 2929.14(A)(3)(a), is
three years. Since these statutes are in conflict and both are specific in
nature, we hold that, pursuant to R.C. 1.52, the later enacted statute, i.e. R.C. 10
2929.14(A)(3), prevails over R.C. 4511.19(G)(1)(e)(ii).
Owen at ¶ 29.
{¶ 22} May was convicted of violating R.C. 4511.19(A)(1)(a), which prohibits a
person from driving a vehicle “under the influence of alcohol, a drug of abuse, or a
combination of them.” A trial court is required to sentence such an offender under R.C.
Chapter 2929, except as otherwise authorized or required by R.C. 4511.19(G)(1)(a) to (e).
R.C. 4511.19(G)(1).
{¶ 23} Both at the time of May’s offense and now, a violation of R.C.
4511.19(A)(1)(a) is a third-degree felony if the offender has previously been convicted of a
felony OVI. R.C. 4511.19(G)(1)(e). Under R.C. 4511.19(G)(1)(e)(i), the trial court is
required to impose either (1) a mandatory prison term of one, two, three, four, or five years,
in accordance with R.C. 2929.13(G)(2), if the offender also is convicted of or also pleads
guilty to the specification in R.C. 2941.1413, or (2) a mandatory prison term of 60
consecutive days, in accordance with R.C. 2929.13(G)(2), if the offender is not convicted of
and does not plead guilty to that specification. The court may impose a prison term in
addition to the mandatory prison term, however the cumulative total of a 60-day mandatory
prison term and the additional prison term for the offense may not exceed five years. R.C.
4511.19(G)(1)(e)(i). The court may also sentence the offender to a community control
sanction. Id.
{¶ 24} Although the jury found that May had previously committed a felony OVI
offense, the jury did not make (and was not asked to make) a finding under R.C. 2941.1413
that May, “within twenty years of the offense, previously has been convicted of or pleaded 11
guilty to five or more equivalent offenses.” Accordingly, under R.C. 4511.19(G)(1)(e)(i),
the trial court was required to impose a 60-day mandatory prison term, and it had the
discretion to impose an additional prison term, with a maximum aggregate sentence of five
years.
{¶ 25} R.C. 2929.13 also describes the penalties for a third-degree felony OVI
offense. R.C. 2929.13(G) provides that if an offender is being sentenced for a third-degree
felony OVI offense, the court shall impose upon the offender a mandatory prison term, as
follows:
(2) If the offender is being sentenced for a third degree felony OVI offense *
* *, the court shall impose upon the offender a mandatory prison term of one,
two, three, four, or five years if the offender also is convicted of or also
pleads guilty to a specification of the type described in [R.C.] 2941.1413
* * * or shall impose upon the offender a mandatory prison term of sixty days
or one hundred twenty days as specified in [R.C. 4511.19 (G)(1)(d) or (e)]
* * * if the offender has not been convicted of and has not pleaded guilty to a
specification of that type. * * *
R.C. 2929.13(A) further states that if the offender is being sentenced for a third-degree
felony OVI offense, in addition to the mandatory prison term required by R.C.
2929.13(G)(1) or (2), the court may impose “an additional prison term as described in
division (B)(4) of section 2929.14 of the Revised Code or a community control sanction as
described in division (G)(2) of this section.”
{¶ 26} : H.B. 86 revised the prison terms for third-degree felonies, as set forth in 12
R.C. 2929.14. For certain stated third-degree felonies (which do not include violations of
R.C. 4511.19), the prison term may be 12, 18, 24, 30, 36, 42, 48, 54, or 60 months. R.C.
2929.14(A)(3)(a). For all other third-degree felonies, the prison term may be 9, 12, 18, 24,
30, or 36 months. R.C. 2929.14(A)(3)(b). Thus, May’s third-degree OVI felony was
subject to a maximum of 36 months in prison. R.C. 2929.14(A)(3)(b).
{¶ 27} R.C. 2929.14(B)(4), which was referenced in R.C. 2929.13(A), specifically
addresses third-degree felony OVI sentencing. It provides:
If the offender is being sentenced for a third or fourth degree felony OVI
offense under division (G)(2) of section 2929.13 of the Revised Code, the
sentencing court shall impose upon the offender a mandatory prison term in
accordance with that division. In addition to the mandatory prison term,
* * * if the offender is being sentenced for a third degree felony OVI offense,
the sentencing court may sentence the offender to an additional prison term of
any duration specified in division (A)(3) of this section. In either case, the
additional prison term imposed shall be reduced by the sixty or one hundred
twenty days imposed upon the offender as the mandatory prison term. The
total of the additional prison term imposed under division (B)(4) of this
section plus the sixty or one hundred twenty days imposed as the mandatory
prison term * * * shall equal one of the authorized prison terms specified in
division (A)(3) of this section for a third degree felony OVI offense. * * *.
(Emphasis added.)
{¶ 28} The State argues that R.C. 2929.14(B)(4) permits the trial court to impose a 13
maximum sentence of five years for a third-degree felony OVI offense, because the statute
states that the additional prison term may be any duration stated in R.C. 2929.14(A)(3),
including those mentioned in R.C. 2929.14(A)(3)(a). This reading of R.C. 2929.14(B)(4)
is inconsistent with the provision’s additional term that the total prison term must equal one
of the authorized prison terms specified in R.C. 2929.14(A)(3) “for a third-degree felony
OVI offense.” The permissible sentencing terms for a third-degree OVI felony are set forth
in R.C. 2929.14(A)(3)(b), and the maximum sentence for that offense is 36 months, not five
years, in prison.
{¶ 29} Stated simply, under 4511.19(G)(1)(e)(i), the trial court has discretion to
impose an additional prison term for a third-degree felony OVI offense, with a maximum
aggregate sentence of five years. However, under R.C. 2929.13(A) and R.C. 2929.14(B)(4),
the maximum aggregate sentence for a third-degree felony OVI offense is 36 months. We
agree with the Eleventh District that these provisions present an irreconcilable conflict and
that the recent changes and more lenient provisions in R.C. Chapter 2929 must prevail.
Owen, 2013-Ohio-2824, 995 N.E.2d 911 (11th Dist.); R.C. 1.52.
{¶ 30} May’s second assignment of error is sustained.
III. R.C. 2921.38(B) is Constitutional
{¶ 31} May’s third assignment of error states:
Properly construed, R.C. 2921.38(B) does not apply to harmless spit. If it
does, R.C. 2921.38(B) is unconstitutional on its face as overly broad and/or
as applied to Appellant in this case where the spitting was expressive conduct
protected by the First Amendment to the U.S. Constitution, Art.I., Ohio 14
Const.
{¶ 32} In her third assignment of error, May challenges the constitutionality of
R.C. 2921.38(B), which provides: “No person, with intent to harass, annoy, threaten, or
alarm a law enforcement officer, shall cause or attempt to cause the law enforcement officer
to come into contact with blood, semen, urine, feces, or another bodily substance by
throwing the bodily substance at the law enforcement officer, by expelling the bodily
substance upon the law enforcement officer, or in any other manner.” May contends that
spit is harmless and that R.C. 2921.38(B) is overbroad if it prohibits harmless conduct, such
as spitting. May further asserts that her spitting was protected under the First Amendment
as an expression of her frustration and dissatisfaction with her arrest and treatment by the
police.
{¶ 33} As an initial matter, May failed to raise her constitutional challenges in the
trial court. “Failure to raise at the trial court level the issue of the constitutionality of a
statute or its application, which issue is apparent at the time of trial, constitutes a waiver of
such issue.” State v. Awan, 22 Ohio St.3d 120, 489 N.E.2d 277 (1986), syllabus, quoted by
In re I.A., 2d Dist. Montgomery No. 25078, 2012-Ohio-4973, ¶ 4. However, an appellate
court may elect to consider waived constitutional challenges to the application of statutes in
specific cases of plain error or where the rights and interests involved may warrant it. In re
I.A. at ¶ 4; In re M.D., 38 Ohio St.3d 149, 151, 527 N.E.2d 286 (1988).
{¶ 34} Even if we were to consider May’s constitutional arguments, we would find
they lack merit. Legislative enactments enjoy a strong presumption of constitutionality, and
they will be upheld unless proven, beyond a reasonable doubt, to be unconstitutional. State 15
v. Romage, Slip Op. No. 2014-Ohio-783, ¶ 7.
{¶ 35} To demonstrate facial overbreadth, the party challenging the law must show
that the statute’s potential application reaches a significant amount of constitutionally
protected activity. Romage at ¶ 8; State v. Winston, 2d Dist. Montgomery No. 23897,
2010-Ohio-5381, ¶ 9. “In considering an overbreadth challenge, the court must decide
‘whether the ordinance sweeps within its prohibitions what may not be punished under the
First and Fourteenth Amendments.’” Akron v. Rowland, 67 Ohio St.3d 374, 387, 618
N.E.2d 138 (1993), quoting Grayned v. Rockford, 408 U.S. 104, 115, 92 S.Ct. 2294, 33
L.Ed.2d 222 (1972).
{¶ 36} “[C]riminal statutes ‘that make unlawful a substantial amount of
constitutionally protected conduct may be held facially invalid even if they also have
legitimate application.’” Id., quoting Houston v. Hill, 482 U.S. 451, 459, 107 S.Ct. 2502,
2508, 96 L.Ed.2d 398, 410 (1987). A defendant may challenge a statute as being facially
overbroad in violation of the First Amendment “with no requirement that the person making
the attack demonstrate that his own conduct could not be regulated by a statute drawn with
the required narrow specificity.” Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908,
37 L.Ed.2d 830 (1973); State v. Marler, 2d Dist. Clark No. 2007 CA 8, 2009-Ohio-2423,
¶ 49.
{¶ 37} In State v. Hammond, 2d Dist. Montgomery No. 24664, 2012-Ohio-419, we
held that R.C. 2921.38(B) was not unconstitutionally vague. We rejected the defendant’s
argument that R.C. 2921.38(B) forced her to guess whether the “other bodily substance” it
covers is saliva. We read R.C. 2921.38(B) to mean that the legislature used the word 16
“another” indefinitely, as a catch-all, to mean “any other.” Hammond at ¶ 9. With that
interpretation, we found that the statute was not unconstitutionally vague, and we upheld
Hammond’s conviction for harassment with a bodily substance based on Hammond’s
spitting on a police officer.
{¶ 38} May asserts that R.C. 2921.38(B) criminalizes “expelling a bodily substance
that is inherently threatening to the police officer.” She relies on the doctrine of ejusdem
generis to argue that “another bodily substance” must be of the same kind as blood, semen,
urine, and feces (substances identified in the statute), all of which she asserts are inherently
threatening because they contain infectious bacteria or dangerous viruses. May argues that,
on its face, R.C. 2921.38(B) is overbroad because it otherwise covers saliva and other
non-inherently threatening bodily substances, such as eyelashes, skin, hair, and ear wax.
May asserts that her spitting on the officer was an expression of frustration, which was
protected under the First Amendment.
{¶ 39} We reject May’s suggestion that R.C. 2921.38(B) is constitutionally
overbroad. The language of the statute reflects an intent to prohibit harassment of a law
enforcement officer by means of bodily substances. On its face, the statute does not require
physical harm to the officer, and we glean no legislative intent to limit R.C. 2921.38(B) to
bodily substances that may arguably cause physical harm. Moreover, we disagree with
May’s suggestion that an individual, such as May, has a First Amendment right to throw,
expel, or otherwise cause another person to come into contact with that individual’s bodily
substances when the intent is to harass, annoy, threaten, or alarm the other person.
{¶ 40} May’s third assignment of error is overruled. 17
IV. Jury Instruction Regarding Drug of Abuse
{¶ 41} May’s fourth assignment of error states:
The trial court erred and/or abused its discretion, denying Appellant a fair
trial by failing to require that the State prove that her driving was impaired by
the combination of alcohol consumed and taking the prescribed medication.
{¶ 42} In her fourth assignment of error, May claims that the trial court erred in
instructing the jury that Cymbalta is a drug of abuse and that she could be found guilty of
driving under the influence of a drug of abuse when there was no evidence that May’s taking
of the prescription drug caused any impairment.
{¶ 43} Before the court instructed the jury, defense counsel objected to the trial
court’s inclusion of the phrase “drug of abuse, or a combination of them” in its definition of
the OVI charge. Defense counsel argued that while May admitted to using Cymbalta with
alcohol, there was no evidence about the effects of Cymbalta. The trial court rejected
defense counsel’s objection and instructed the jury that, before finding May guilty of OVI, it
must find beyond a reasonable doubt that May “did operate any vehicle within the State of
Ohio when at the time of the operation the Defendant was under the influence of alcohol, a
drug of abuse, or a combination of them * * *.” The court instructed the jury that Cymbalta
is a “drug of abuse.”
{¶ 44} A “drug of abuse” means “any controlled substance, dangerous drug as
defined in section 4729.01 of the Revised Code, or over-the-counter medication that, when
taken in quantities exceeding the recommended dosage, can result in impairment of
judgment or reflexes.” R.C. 4511.181(E); R.C. 4506.01(L). A “dangerous drug” includes 18
any drug which may be dispensed only upon a prescription. R.C. 4729.01(F)(1)(a) and (b).
{¶ 45} May correctly argues that R.C. 4511.19(A)(1)(a) requires the State “to do
more than prove impairment in a vacuum.” Cleveland v. Turner, 8th Dist. Cuyahoga No.
99183, 2013-Ohio-3145, ¶ 13. For example, in Turner, the Eighth District reversed a
defendant’s conviction for driving under the influence where there was evidence that the
driver was impaired, but there was no evidence that the driver had ingested alcohol or a drug
of abuse. Id. (insufficient evidence that defendant ingested drug of abuse where no drugs
were found and defendant did not identify the medication he may have taken).
{¶ 46} We agree with May that, when a prosecution under R.C. 4511.19(A)(1)(a)
is based on driving under the influence of medication, the State must do more than simply
present evidence that the defendant has taken the medication and shows signs of impairment.
The United States Food and Drug Administration has approved more than a thousand
prescription drugs (which are “drugs of abuse” under Ohio law), all of which may have any
number of different side effects. See Full FDA Prescription Drug List,
http://www.medilexicon.com/drugsearch.php?z=true (accessed Mar. 10, 2014);
Drugs@FDA, http://www.accessdata.fda.gov/scripts/cder/drugsatfda/index.cfm (accessed
Mar. 10, 2014). Not all side effects involve the impairment of judgment or reflexes.
Although some medications may be familiar to some jurors, the various physiological effects
of different medications is outside the common knowledge of most jurors and many trial
judges.
{¶ 47} The essence of R.C. 4511.19(A)(1)(a) is to prohibit impaired driving while
under the influence. It is certainly not intended to criminalize the operation of a vehicle by 19
a person taking a cholesterol or blood pressure medication, let alone an anti-narcoleptic or
ADHD prescription, unless that drug negatively influences the defendant’s driving abilities.
And in many situations, especially those involving prescription drugs, this can only be
proved by direct testimony linking the influence of the drug to the driving. This could be
established through the testimony of an expert who is familiar with the potential side effects
of the medication, or perhaps of a layperson (such as a friend or family member) who
witnessed the effect of the particular drug on the defendant-driver.
{¶ 48} We therefore conclude that, in order to establish a violation of R.C.
4511.19(A)(1)(a) based on medication, the State must also present some evidence (1) of how
the particular medication actually affects the defendant, see State v. Sheppeard, 2d Dist.
Clark No. 2012 CA 27, 2013-Ohio-812, ¶ 55 (defendant and his wife testified that defendant
took Ambien® to help him sleep), and/or (2) that the particular medication has the potential
to impair a person’s judgment or reflexes. Without that information, the jury has no means
to evaluate whether the defendant’s apparent impairment was due to his or her being under
the influence of that medication.1
{¶ 49} We emphasize that the State is not required to support its case under R.C.
4511.19(A)(1)(a) with evidence of the exact amount of alcohol or the drug of abuse that was
consumed or ingested by the defendant. It is often the case that, upon initiating a traffic
stop, a police officer detects an odor of an alcoholic beverage on the driver and there is no
available evidence as to the exact amount that the defendant consumed. However, as noted
1 This requirement does not extend to violations of R.C. 4511.19(A)(1)(b)-(j), since these are per se violations based on the legislature’s implicit determinations that specific concentrations of specific drugs negatively influence driving. 20
by the Ohio Supreme Court, “almost any lay witness, without having any special
qualifications, can testify as to whether a person was intoxicated.” Columbus v. Mullins,
162 Ohio St. 419, 421, 123 N.E.2d 422 (1954); see also State v. Zentner, 9th Dist. Wayne
No. 02CA0040, 2003-Ohio-2352, ¶ 19; State v. Delong, 5th Dist. Fairfield No. 02CA35,
2002-Ohio-5289, ¶ 60. In all cases, a jury must determine, based on totality of the evidence,
whether the defendant was driving under the influence of alcohol and/or a drug of abuse.
{¶ 50} In this case, May admitted to Officer McDonald that she had drunk two
16-ounce Milwaukee’s Best Lite beer and that she took 60 mg of Cymbalta for pain and
depression. There was no evidence in the record that Cymbalta is a prescription drug, of
how Cymbalta affected May, or that Cymbalta alone or in conjunction with alcohol could
cause May’s judgment or reflexes to be impaired. Accordingly, there was insufficient
evidence to support a finding that May was driving under the influence of a drug of abuse
(Cymbalta), alone or in combination with alcohol (beer). Accordingly, the trial court erred
when it instructed the jury that Cymbalta was a drug of abuse and that before finding May
guilty of OVI, it must find beyond a reasonable doubt that May operated a vehicle while
under the influence of “alcohol, a drug of abuse, or a combination of them.”
{¶ 51} The State argues that since there was overwhelming evidence that May was
driving under the influence of alcohol, any error in instructing the jury regarding the
influence of Cymbalta alone or in combination with alcohol was harmless. The State
contends that since May could not have been convicted of driving under the influence of a
drug of abuse, its mention was superfluous in a statute that contains the disjunctive “or.”
May suggests, on the other hand, that the court’s instruction that Cymbalta was a drug of 21
abuse might have led the jury to speculate that May had driven under the influence of
Cymbalta and to convict her on that basis.
{¶ 52} The essential concept of R.C. 4511.19(A)(1)(a) is a prohibition of the act of
operating a vehicle while being negatively influenced by some substance (as opposed to, for
example, a mental or physical condition). Thus, pursuant to State v. Gardner, 118 Ohio
St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995, the jury does not have to necessarily be
unanimous as to the means (i.e., alcohol, a drug, or a combination of them) by which the
offense was committed.
{¶ 53} Federal courts have held that when a jury is instructed as to multiple means
by which the offense was committed, one of which is invalid, a general verdict of conviction
is not automatically set aside due to the erroneous instruction. Hedgpeth v. Pulido, 555
U.S. 57, 129 S.Ct. 530, 172 L.Ed.2d 388 (2008). See also State v. Fry, 125 Ohio St.3d 163,
2010-Ohio-1017, 926 N.E.2d 1239, ¶ 48 (addressing an error in the indictment of one
possible underlying offense). Rather, the error is considered under a harmless error
analysis. Id. For example, in State v. Donovan, Case Nos. 11-1843, 11-2055, 11-2163,
11-2450, 539 Fed.Appx. 648, 653 (6th Cir. Sept. 9, 2013), one co-defendant argued that his
conviction for conspiracy to distribute controlled substances should be reversed, because the
trial court erroneously instructed the jury that Viagra® was a controlled substance. The trial
court found the erroneous instruction to be harmless, stating:
Although the jury instructions incorrectly stated that Viagra is a controlled
substance, they also correctly stated that marijuana, cocaine, ecstacy, and
Vicodin are controlled substances. Thus, if the jury convicted 22
[co-defendant] of conspiring to distribute any of these, his conviction should
stand. Under this analysis, [co-defendant’s] argument fails because, as
explained above, he was not implicated by the evidence presented at trial
regarding Viagra. He does not identify one instance at trial where evidence
connected him to the trafficking of Viagra. Rather, evidence concerning
[his] participation in the * * * conspiracy focused only on marijuana and
cocaine. For these reasons, the instruction, while erroneous, does not
warrant reversal of his convictions.
Id. at 653. Compare U.S. v. Kurlemann, 736 F.3d 439 (6th Cir.2013) (jury instruction
erroneously allowing “half-truths” as an alternative means of violating false statements
statute was not harmless where that theory was “front and center” during the trial, including
closing arguments).
{¶ 54} Under the particular facts of this case, we conclude that the trial court’s
erroneous instructions regarding Cymbalta was harmless. The State presented
overwhelming evidence that May drove her vehicle while under the influence of alcohol.
May’s driving was erratic prior to the traffic stop, and her appearance, her combative and
disruptive behavior toward the officers, her refusal to take sobriety tests, and the
“exceedingly strong” odor of an alcoholic beverage all indicated that May was driving under
the influence of alcohol. May admitted to the police that she had consumed two 16-ounce
beers. In addition, the testimony and counsels’ arguments did not emphasize the
consumption of a drug of abuse. The State’s opening and closing arguments did not
mention Cymbalta; instead, the State repeatedly asserted that the evidence established that 23
May had driven under the influence of alcohol. Accordingly, we conclude that, although
the trial court should have excluded “drug of abuse” and Cymbalta from its jury instructions,
the inclusion of those instructions did not affect May’s conviction under R.C.
4511.19(A)(1)(a). Any error in the court’s jury instructions was harmless beyond a
reasonable doubt.
{¶ 55} May’s fourth assignment of error is overruled.
V. Conclusion
{¶ 56} The trial court’s prison sentence will be reversed and the matter will be
remanded for resentencing on that issue. In all other respects, the trial court’s judgment will
be affirmed.
DONOVAN, J., concurs.
HALL, J., concurring:
{¶ 57} I agree with the disposition of the assignments of error in this appeal. I write
separately to express my disagreement with the following sentence: “We agree with
[appellant] that, when a prosecution under R.C. 4511.19(A)(1)(a) is based on driving under
the influence of medication, the State must do more than simply present evidence that the
defendant has taken the medication and shows signs of impairment.” (supra ¶ 46). And I
disagree with the determination that “in order to establish a violation of R.C.
4511.19(A)(1)(a) based on medication, the State must also present some evidence (1) of how
the particular medication actually affects the defendant * * * and/or (2) that the particular
medication has the potential to impair a person’s judgment or reflexes.” (supra ¶ 48). Neither 24
comment is necessary to our disposition of this case because we conclude that “[t]he State
presented overwhelming evidence that May drove her vehicle while under the influence of
alcohol.” (supra ¶ 54). With that conclusion, discussion of the evidence required to show
impairment by medicine or drugs is dicta. Moreover, I don’t agree with either quoted
statement. It just depends.
{¶ 58} For purposes of this discussion, I recognize that the term “medication” is
used in ¶ 46 and ¶ 48, but the legal standard for sufficiency applies to any “drug of
abuse,” which includes “any controlled substance, dangerous drug * * * , or over-the-counter
medication that, when taken in quantities exceeding the recommended dosage, can result in
impairment of judgment or reflexes.” R.C. 4506.01(L). In my view, all that is necessary is
evidence that the offender consumed a drug and that his or her faculties were appreciably
impaired:
In order to prove that appellant was under the influence of a drug of
abuse, appellee was required to prove that appellant’s “faculties were
appreciably impaired” by the consumption of a drug of abuse. State v.
Lowman (1992), 82 Ohio App.3d 831, 836. In the prosecution of an offense
under this provision, the amount of a substance in the appellant's body is only
of secondary interest. See City of Newark v. Lewis (1988), 40 Ohio St.3d 100,
104. “It is the behavior of the defendant which is the crucial issue. * * * The
test results [of presence of a drug in blood], if probative, are merely
considered in addition to all other evidence of impaired driving in a
prosecution for this offense.” 25
State v. Dixon, 12th Dist. Clermont No. CA2001-01-012, 2007-Ohio-5189 ¶ 15.
{¶ 59} In Dixon, the evidence was found to be sufficient where the defendant
exhibited clues of impairment on two admissible field-sobriety tests, he had bloodshot eyes,
an officer discovered marijuana on the defendant’s person, and laboratory results of a urine
sample indicated that the defendant had consumed marijuana. The evidence was sufficient
even though no expert evidence was submitted by the State to correlate the amount of
metabolite with timing of ingestion or a level of impairment. Other cases supporting this
notion include State v. Dearth, 4th Dist. Ross No. 09CA3122, 2010-Ohio-1847 (finding that
evidence was sufficient where trooper observed defendant drive off the roadway, his eyes
were glassy and bloodshot, trooper detected strong odor of burnt marijuana from the vehicle
and defendant, and defendant performed badly on various physical-coordination tests) and
State v. Strebler, 9th Dist Summit No. 23003, 2006-Ohio-5711 (finding sufficient evidence
where a lay witness observed the defendant with difficulty walking, fumbling with his keys,
mumbled speech and cloudy eyes; deputy encountered the defendant at a local store
appearing disoriented with bloodshot eyes and difficulty producing his license; the defendant
indicated he was using prescription methadone, produced a prescription bottle, performed
badly on field-sobriety tests, and urine tested positive for methadone although there was no
determination of what level). We also previously addressed the issue in State v. Gilleland, 2d
Dist. Champaign No. 2004 CA 1, 2005-Ohio-0659. There an officer observed the defendant
driving erratically. Gilleland was described as “disoriented and having glassy eyes and a
demeanor which indicated he was under the influence of drugs.” Id. at ¶ 19. “[N]umerous
empty or near empty bottles of prescription drugs” that had been filled that day were found 26
in his car.2 Id. at ¶ 2. Gilleland argued that without a blood test or the performance of
field-sobriety tests there was insufficient evidence offered from which a jury could conclude
he was guilty. We disagreed. We did not adopt a rule that evidence of the drugs’ ability to
impair was necessary.
{¶ 60} A different result is appropriate where there is no evidence about what, if
any, drug, medicine, or substance the defendant consumed no matter how impaired. In
State v. Collins, 9th Dist Wayne No. 11CA0027, 2012-Ohio-2236, officers testified at length
regarding Collins' impaired condition and gave their respective opinions that he was under
the influence of some sort of illegal narcotic or drug. But there was no evidence that he had
ingested any particular drug, medicine, or substance. Accordingly, the court found the
evidence insufficient.
{¶ 61} When prosecuting a case of impairment by a drug of uncertain or debatable
ability to impair one’s faculties, it might behoove the State to present some evidence of the
drug’s influence on human functionality. But we should not endorse a blanket rule on the
subject when the issue is not before us.
{¶ 62} With the exceptions I have noted, I concur.
Copies mailed to:
Andrew T. French Robert L. Mues A. Mark Segreti, Jr. Hon. Barbara P. Gorman
2 We did not identify the nature of the drugs in our opinion, and we therefore do not know whether such evidence was presented in the trial. 27