[Cite as State v. Strebler, 2013-Ohio-1775.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26405
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE WILLIAM STREBLER COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 11 08 2149
DECISION AND JOURNAL ENTRY
Dated: May 1, 2013
HENSAL, Judge.
{¶1} William Strebler appeals his conviction in the Summit County Common Pleas
Court for operating a vehicle under the influence of alcohol or drugs. For the following reasons,
this Court affirms.
I.
{¶2} On June 10, 2011, Richard Salster and Raymond Motil were in adjacent lanes at
the intersection of Waterloo Road and Brown Street in Akron, Ohio when Mr. Strebler drove his
car between their trucks, damaging Mr. Motil’s truck. According to the men, when Mr. Strebler
got out of his car, he was not wearing any shoes. He was also a little “rowdy,” causing the men
to think that he was intoxicated. When Officer Garry Ivey arrived, he learned what had
happened from Mr. Salster and Mr. Motil and also their suspicions about Mr. Strebler’s
condition. He asked Mr. Strebler to write down how the crash happened, but the statement Mr.
Strebler produced was largely incomprehensible and ended with the word “bowflex.” Officer 2
Ivey did not see any evidence that Mr. Strebler struck his head during the collision and Mr.
Strebler told him that he was uninjured, so he had Mr. Strebler perform three standardized field
sobriety tests. After noticing multiple indicators of impairment during two of the tests, he
arrested Mr. Strebler for operating under the influence.
{¶3} According to Officer Ivey, Mr. Strebler fell asleep in the back of his cruiser while
he was waiting to be transported to the police station. He testified that it was unusual for
someone to fall asleep shortly after they have been arrested. When they got to the station,
Officer Deborah Stalnaker administered a breathalyzer test on Mr. Strebler. The test showed that
Mr. Strebler did not have any alcohol in his system. When she asked him if he had taken any
drugs or medication, he answered that he was on tramadol and oxycodone to alleviate chronic
pain. The officers, therefore, arranged for his blood and urine to be tested. Officer Stalnaker
also administered several more sobriety tests and noted many additional signs of impairment.
{¶4} The blood test showed that Mr. Strebler had both medications in his system at the
time of the accident. The Grand Jury subsequently indicted him for operating under the
influence of drugs or alcohol under Revised Code Section 4511.19(A) and failing to maintain an
assured clear distance under Section 4511.21. At a trial to the bench, Mr. Strebler admitted that
he did not maintain an assured clear distance. He testified that the reason he was so disoriented
following the collision, however, was because he had suffered a concussion. Because he did not
submit any medical records or expert testimony to support his claim and there was no other
evidence that he had hit his head, the trial court found his explanation not credible. It found him
guilty of the offenses, and sentenced him to two years imprisonment. Mr. Strebler has appealed,
assigning two errors, which we have reordered for ease of consideration. 3
II.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN NOT GRANTING DEFENDANT’S CRIMINAL RULE 29 MOTION.
{¶5} Mr. Strebler argues that the trial court should have granted his motion for
judgment of acquittal because there was no evidence that he was impaired at the time of the
collision. Under Rule 29(A) of the Ohio Rules of Criminal Procedure, a defendant is entitled to
a judgment of acquittal on a charge against him “if the evidence is insufficient to sustain a
conviction * * *.” Whether a conviction is supported by sufficient evidence is a question of law
that this Court reviews de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997); State v.
West, 9th Dist. No. 04CA008554, 2005-Ohio-990, ¶ 33. This Court must determine whether,
viewing the evidence in a light most favorable to the prosecution, it could have convinced the
average finder of fact of Mr. Strebler’s guilt beyond a reasonable doubt. State v. Jenks, 61 Ohio
St.3d 259 (1991), paragraph two of the syllabus.
{¶6} Under Section 4511.19(A)(1)(a), “[n]o person shall operate any vehicle * * *
within this state, 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.” Mr. Strebler does not contest that his
prescription medications qualify as drugs of abuse under Section 4511.19. This Court has
explained that:
In DUI prosecutions, the state is not required to establish that a defendant was actually impaired while driving, but rather, need only show an impaired driving ability. State v. Zentner, 9th Dist. No. 02CA0040, 2003-Ohio-2352, at ¶ 19, citing State v. Holland (Dec. 17, 1999), 11th Dist. No. 98-P-0066. ‘To prove impaired driving ability, the state can rely on physiological factors (e.g., odor of alcohol, glossy or bloodshot eyes, slurred speech, confused appearance) to demonstrate that a person’s physical and mental ability to drive was impaired.’ Holland, [supra], citing State v. Richards (Oct. 15, 1999), 11th Dist. No. 98-P-0069[.] Furthermore, ‘[v]irtually any lay witness, without special 4
qualifications, may testify as to whether or not an individual is intoxicated.’ Zentner at ¶ 19, quoting State v. DeLong, 5th Dist. No. 02CA35, 2002-Ohio-5289, at ¶ 60.
State v. Strebler, 9th Dist. No. 23003, 2006-Ohio-5711, ¶ 7, quoting State v. Slone, 9th Dist. No.
04CA0103-M, 2005-Ohio-3325, ¶ 9. “While the above reasoning is typically applied to alcohol
consumption, * * * it [is] equally applicable to determining whether an individual is under the
influence of a drug of abuse.” Id.
{¶7} According to Mr. Strebler, even if he appeared to be impaired following the
accident, it was because he hit his head on a window during the collision. He argues that the
State did not present any evidence that he was impaired before the accident. He contends that
the reason he did not notice the trucks stopped at the intersection was because he had just visited
his dying mother and was distracted thinking about her. He notes that, when he realized that he
would not be able to stop in time, he successfully maneuvered his car between the two trucks to
lessen the effects of the collision. He also argues that, at trial, he was on the exact same
medication as he was on the day of the accident and was not impaired at all. He notes that the
court, in fact, found that his “demeanor and mode of speech causes the court to conclude that he
is a highly articulate and intelligent individual.”
{¶8} A toxicologist testified that, based on the amount of medication that was in Mr.
Strebler’s blood, whether it impaired him depended on his tolerance to the drugs. According to
the toxicologist, one individual with that level of drugs in his blood might be “completely
normal,” while another “would be passed out.” He also noted that whether the two drugs which
were present in Mr. Strebler’s system at the time would impair someone would depend on how
the drugs interacted with each other in the particular individual.
{¶9} Viewing the evidence in a light most favorable to the State, we conclude that it
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[Cite as State v. Strebler, 2013-Ohio-1775.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26405
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE WILLIAM STREBLER COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 11 08 2149
DECISION AND JOURNAL ENTRY
Dated: May 1, 2013
HENSAL, Judge.
{¶1} William Strebler appeals his conviction in the Summit County Common Pleas
Court for operating a vehicle under the influence of alcohol or drugs. For the following reasons,
this Court affirms.
I.
{¶2} On June 10, 2011, Richard Salster and Raymond Motil were in adjacent lanes at
the intersection of Waterloo Road and Brown Street in Akron, Ohio when Mr. Strebler drove his
car between their trucks, damaging Mr. Motil’s truck. According to the men, when Mr. Strebler
got out of his car, he was not wearing any shoes. He was also a little “rowdy,” causing the men
to think that he was intoxicated. When Officer Garry Ivey arrived, he learned what had
happened from Mr. Salster and Mr. Motil and also their suspicions about Mr. Strebler’s
condition. He asked Mr. Strebler to write down how the crash happened, but the statement Mr.
Strebler produced was largely incomprehensible and ended with the word “bowflex.” Officer 2
Ivey did not see any evidence that Mr. Strebler struck his head during the collision and Mr.
Strebler told him that he was uninjured, so he had Mr. Strebler perform three standardized field
sobriety tests. After noticing multiple indicators of impairment during two of the tests, he
arrested Mr. Strebler for operating under the influence.
{¶3} According to Officer Ivey, Mr. Strebler fell asleep in the back of his cruiser while
he was waiting to be transported to the police station. He testified that it was unusual for
someone to fall asleep shortly after they have been arrested. When they got to the station,
Officer Deborah Stalnaker administered a breathalyzer test on Mr. Strebler. The test showed that
Mr. Strebler did not have any alcohol in his system. When she asked him if he had taken any
drugs or medication, he answered that he was on tramadol and oxycodone to alleviate chronic
pain. The officers, therefore, arranged for his blood and urine to be tested. Officer Stalnaker
also administered several more sobriety tests and noted many additional signs of impairment.
{¶4} The blood test showed that Mr. Strebler had both medications in his system at the
time of the accident. The Grand Jury subsequently indicted him for operating under the
influence of drugs or alcohol under Revised Code Section 4511.19(A) and failing to maintain an
assured clear distance under Section 4511.21. At a trial to the bench, Mr. Strebler admitted that
he did not maintain an assured clear distance. He testified that the reason he was so disoriented
following the collision, however, was because he had suffered a concussion. Because he did not
submit any medical records or expert testimony to support his claim and there was no other
evidence that he had hit his head, the trial court found his explanation not credible. It found him
guilty of the offenses, and sentenced him to two years imprisonment. Mr. Strebler has appealed,
assigning two errors, which we have reordered for ease of consideration. 3
II.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ERRED IN NOT GRANTING DEFENDANT’S CRIMINAL RULE 29 MOTION.
{¶5} Mr. Strebler argues that the trial court should have granted his motion for
judgment of acquittal because there was no evidence that he was impaired at the time of the
collision. Under Rule 29(A) of the Ohio Rules of Criminal Procedure, a defendant is entitled to
a judgment of acquittal on a charge against him “if the evidence is insufficient to sustain a
conviction * * *.” Whether a conviction is supported by sufficient evidence is a question of law
that this Court reviews de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997); State v.
West, 9th Dist. No. 04CA008554, 2005-Ohio-990, ¶ 33. This Court must determine whether,
viewing the evidence in a light most favorable to the prosecution, it could have convinced the
average finder of fact of Mr. Strebler’s guilt beyond a reasonable doubt. State v. Jenks, 61 Ohio
St.3d 259 (1991), paragraph two of the syllabus.
{¶6} Under Section 4511.19(A)(1)(a), “[n]o person shall operate any vehicle * * *
within this state, 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.” Mr. Strebler does not contest that his
prescription medications qualify as drugs of abuse under Section 4511.19. This Court has
explained that:
In DUI prosecutions, the state is not required to establish that a defendant was actually impaired while driving, but rather, need only show an impaired driving ability. State v. Zentner, 9th Dist. No. 02CA0040, 2003-Ohio-2352, at ¶ 19, citing State v. Holland (Dec. 17, 1999), 11th Dist. No. 98-P-0066. ‘To prove impaired driving ability, the state can rely on physiological factors (e.g., odor of alcohol, glossy or bloodshot eyes, slurred speech, confused appearance) to demonstrate that a person’s physical and mental ability to drive was impaired.’ Holland, [supra], citing State v. Richards (Oct. 15, 1999), 11th Dist. No. 98-P-0069[.] Furthermore, ‘[v]irtually any lay witness, without special 4
qualifications, may testify as to whether or not an individual is intoxicated.’ Zentner at ¶ 19, quoting State v. DeLong, 5th Dist. No. 02CA35, 2002-Ohio-5289, at ¶ 60.
State v. Strebler, 9th Dist. No. 23003, 2006-Ohio-5711, ¶ 7, quoting State v. Slone, 9th Dist. No.
04CA0103-M, 2005-Ohio-3325, ¶ 9. “While the above reasoning is typically applied to alcohol
consumption, * * * it [is] equally applicable to determining whether an individual is under the
influence of a drug of abuse.” Id.
{¶7} According to Mr. Strebler, even if he appeared to be impaired following the
accident, it was because he hit his head on a window during the collision. He argues that the
State did not present any evidence that he was impaired before the accident. He contends that
the reason he did not notice the trucks stopped at the intersection was because he had just visited
his dying mother and was distracted thinking about her. He notes that, when he realized that he
would not be able to stop in time, he successfully maneuvered his car between the two trucks to
lessen the effects of the collision. He also argues that, at trial, he was on the exact same
medication as he was on the day of the accident and was not impaired at all. He notes that the
court, in fact, found that his “demeanor and mode of speech causes the court to conclude that he
is a highly articulate and intelligent individual.”
{¶8} A toxicologist testified that, based on the amount of medication that was in Mr.
Strebler’s blood, whether it impaired him depended on his tolerance to the drugs. According to
the toxicologist, one individual with that level of drugs in his blood might be “completely
normal,” while another “would be passed out.” He also noted that whether the two drugs which
were present in Mr. Strebler’s system at the time would impair someone would depend on how
the drugs interacted with each other in the particular individual.
{¶9} Viewing the evidence in a light most favorable to the State, we conclude that it
presented sufficient evidence for the trial court to find that Mr. Strebler operated a vehicle under 5
the influence of a drug of abuse. Mr. Strebler does not dispute that he was impaired following
the accident. According to Officer Ivey, he did not see any obvious signs of injury on Mr.
Strebler after the collision. Mr. Strebler also said that he did not need medical attention. It,
therefore, was reasonable for the trial court to find that Mr. Strebler was as impaired before the
collision as he was after it. The toxicologist testified that the level of drugs in Mr. Strebler’s
blood would in some instances impair an individual’s ability to operate a motor vehicle.
Accordingly, there was some evidence that Mr. Strebler was under the influence of a drug of
abuse at the time of the accident. The trial court correctly denied his motion for judgment of
acquittal. Mr. Strebler’s second assignment of error is overruled.
ASSIGNMENT OF ERROR I
THE TRIAL COURT’S JUDGMENT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, IS AGAINST THE WEIGHT OF THE EVIDENCE AND IS NOT SUPPORTED BY THE EVIDENCE.
{¶10} Mr. Strebler also argues that his conviction for operating under the influence
under Revised Code 4511.19 is against the manifest weight of the evidence. When reviewing
manifest weight, this Court “must review the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in
the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of
justice that the conviction[s] must be reversed and a new trial ordered.” State v. Otten, 33 Ohio
App.3d 339, 340 (1986).
{¶11} Mr. Strebler argues that the State failed to demonstrate that any impairment that
he experienced was because of the drugs he was taking as opposed to his head injury, lack of
sleep, and the anxiety that he had before and following the accident. He testified that the reason 6
he kept falling asleep while in police custody was because he had a concussion and his chronic
back pain prevents him from attaining sufficient uninterrupted sleep.
{¶12} In its decision, the trial court explained that, “[g]iven an evaluation of the manner
in which [Mr. Strebler] testified and the content of that testimony, the court finds [his]
explanations for his condition (namely his alleged inability to write, his lack of sleep, his being
distraught, and his suffering of a concussion) to be not credible.” Based on the record that is
before this Court, we are unable to say that the trial court clearly lost its way when it found that it
was Mr. Strebler’s medication, not other circumstances, that impaired his ability to operate a
motor vehicle. In particular, we note that, at the police station, despite telling Officer Stalnaker
about injuries that he had suffered many years earlier, Mr. Strebler insisted that he not presently
in need of any medical attention. His first assignment of error is overruled.
III.
{¶13} Mr. Strebler’s convictions are supported by sufficient evidence and are not against
the manifest weight of the evidence. The judgment of the Summit County Common Pleas Court
is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27. 7
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL FOR THE COURT
WHITMORE, J. CONCURS.
BELFANCE, P. J. CONCURRING.
{¶14} I concur. With respect to Mr. Strebler’s second assignment of error, I agree that it
is properly overruled. A review of a Crim.R. 29 motion involves examining the sufficiency of
the State’s evidence. See, e.g., State v. Nurse, 9th Dist. No. 26363, 2013-Ohio-785, ¶ 4. That
evidence, when viewed in a light most favorable to the State, was sufficient to sustain a
conviction. Thus, I concur.
APPEARANCES:
THOMAS C. LOEPP, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.