State v. May
2014 Ohio 1542
| Ohio Ct. App. | 2014Background
- Donna L. May was convicted after a jury trial of (1) operating a vehicle under the influence (OVI) with a prior felony OVI, (2) harassment with bodily substance, and (3) endangering children, in Montgomery County, Ohio.
- The State’s evidence showed May drove under the influence of alcohol while also taking Cymbalta®, with a toddler in the rear seat during the stop.
- May’s prior felony OVI conviction from 2008 was admitted as evidence identifying May’s personal information and history.
- Defense argued the State’s case focused on prior conduct rather than current impairment and that no limiting instruction was given on the prior-conviction evidence.
- May spat on a police officer during detention, leading to the bodily-substance offense.
- The trial court sentenced May to an aggregate five-year prison term, a $1,500 fine, and a 20-year driver’s-license suspension; on appeal, May’s counsel filed an Anders brief, but new counsel raised four assignments of error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Limiting instruction on prior conviction | May (State v. Bankston) argues absence of limiting instruction is plain error | May contends the prior OVI conviction used to prove the current offense cannot be used without a limiting instruction | No plain error; no undue prejudice shown; limiting instruction not required sua sponte and no reasonable probability of different outcome |
| Maximum sentence under HB 86 vs. 2929.14 | State argues 4511.19(G)(1)(e)(i) allows up to five years total; Owen conflict arises | May asserts only 36 months under 2929.14(A)(3)(b) should apply | Second assignment sustained; irreconcilable conflict between statutes; HB 86 prevails for maximum five-year aggregate, but court remands for resentencing on this issue |
| Constitutionality/application of R.C. 2921.38(B) | State positions spitting as harassing bodily-substance conduct; overbreadth challenge denied | May argues overbreadth and First Amendment protection for spitting as expression | Third assignment overruled; statute not facially overbroad; no First Amendment violation found |
| Jury instruction on drug of abuse (Cymbalta) | State urges Cymbalta can be a drug of abuse and instruction was proper | May contends no evidence Cymbalta caused impairment; instruction misled jury | Fourth assignment overruled; although instruction flawed, error harmless beyond a reasonable doubt; conviction upheld |
Key Cases Cited
- State v. Bankston, 2011-Ohio-6486 (2d Dist. Montgomery No. 24192, 2011) (limiting instruction for prior conviction not plain error)
- Owen, 2013-Ohio-2824 (11th Dist.) (conflict between HB 86 and OVI sentencing statutes; Chapter 2929 prevails)
- State v. Hammond, 2012-Ohio-419 (2d Dist. Montgomery No. 24664) (R.C. 2921.38(B) not unconstitutionally vague as applied to spitting)
- Hedgpeth v. Pulido, 555 U.S. 57 (2008) (harmless-error framework for erroneous multiple-means jury instructions)
- State v. Gardner, 118 Ohio St.3d 420 (2008) (jury need not be unanimous as to the means of offense if one means is valid)