STATE OF OHIO, Plaintiff-Appellee, vs. JONATHAN ANDERSON, Defendant-Appellant.
APPEAL NO. C-160920
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
November 22, 2017
[Cite as State v. Anderson, 2017-Ohio-8641.]
TRIAL NO. 16TRC-37598. Criminal Appeal From: Hamilton County Municipal Court. Judgment Appealed From Is: Reversed and Appellant Discharged.
Raymond T. Faller, Hamilton County Public Defender, and Demetra Stamatakos, Assistant Public Defender, for Defendant-Appellant.
{1} Defendant-appellant Jonathan Anderson appeals his conviction, following a bench trial, for operating a motor vehicle while intoxicated (“OVI“) in violation of
State‘s Evidence at the Bench Trial
{2} At the bench trial, the state presented testimony from Cincinnati firefighters and paramedics Jeffrey Nienhaus, Daniel Drescher, and Chris Kieffer and Cincinnati police officer Justin Bittinger. Nienhaus, Drescher, and Kieffer testified that around 6:00 p.m. on September 9, 2016, they had responded to a report of a possible overdose in the parking lot at a city recreational facility. Upon their arrival, they found Anderson sitting in the driver‘s seat of a vehicle in the parking lot. He was unconscious. His head was tilted backward; he was sweaty and pale; his breathing was abnormally slow; and his pupils were pinpoint. Based on their training and experience, they suspected that Anderson had overdosed on an opiate.
{3} Kieffer testified that the driver‘s side door of the vehicle was open. He walked to the passenger side, pulled the keys out of the ignition, and placed them on the roof of the vehicle. Kieffer could not recall if the vehicle was running, but he did not think that it was. Nienhaus and Drescher testified that Anderson was the only occupant in the vehicle and the engine was not running.
{4} Nienhaus administered oxygen to Anderson, while Drescher administered a dose of Narcan. When Anderson did not respond, Drescher administered a second dose of Narcan intravenously. Anderson became responsive and
{5} Officer Bittinger testified that when he arrived on the scene, the firefighters and paramedics were treating Anderson for a suspected opiate overdose. They told Officer Bittinger that they had given Anderson two doses of Narcan to revive him. After Anderson was transported to the hospital, Officer Bittinger searched Anderson‘s vehicle, but he did not find any drug paraphernalia. He then had Anderson‘s vehicle towed.
{6} Officer Bittinger later spoke with Anderson at the hospital. He read Anderson his Miranda rights and BMV form 2555, which sets forth the administrative penalties for refusing to submit to chemical testing. Anderson denied operating the vehicle. He provided Officer Bittinger with the name of the person he claimed had operated the vehicle, but he refused to submit to a chemical test or to answer further questions.
{7} Officer Bittinger testified that he had cited Anderson for OVI based on the statements of the treating firefighters and paramedics that they had discovered Anderson unconscious in the driver‘s seat of the vehicle with the keys in the ignition and they had to administer two doses of Narcan to revive him. He explained that it was typical for drug paraphernalia to be in close vicinity when a person has been abusing opiates. Officer Bittinger testified that “based on [his] training and experience, it was apparent to [him] that [Anderson had] overdosed and had operated his vehicle to that point while under the influence.”
{8} At the close of the state‘s evidence, Anderson moved for a judgment of acquittal, arguing that the state had failed to prove that he had operated the vehicle while he was impaired. The trial court denied Anderson‘s motion. Anderson did not
Insufficient Evidence of Operability
{9} In his first assignment of error, Anderson contends the evidence was insufficient to support his OVI conviction.
{10} When reviewing the sufficiency of the evidence to support a criminal conviction, this court must examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. “The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” Id. “Whether the evidence is legally sufficient to sustain a verdict is a question of law.” State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1998). When reviewing the sufficiency of the evidence, we employ a de novo standard of review. In re D.S., 1st Dist. Hamilton No. C-130094, 2013-Ohio-4565, ¶ 6.
{11} Anderson was convicted of OVI in violation of
{13} We recognized that subsequently in State v. Gill, 70 Ohio St.3d 150, 637 N.E.2d 897 (1994), syllabus, the Supreme Court had held that “[a] person who is in the driver‘s seat of a motor vehicle with the ignition key in the ignition and who, in his or her body has a prohibited concentration of alcohol, is ‘operating’ the vehicle within the meaning of
{14} In 2004, however, the General Assembly modified the definition of “operate” by adding the words “at the time of operation” to
{16} In defining “operate,”
{17} The state argues that it presented sufficient circumstantial evidence that Anderson had operated the vehicle as defined in
{18} In Cochran, the defendant argued that the trial court had erred where, on his plea of no contest, it had convicted him of operating a motor vehicle in Ohio while under a financial-responsibility-law suspension in violation of
{19} The Second District agreed that
{20} In Ahmad, 2d Dist. Montgomery No. 24165, 2011-Ohio-2302, at ¶ 51-52, the defendant challenged the weight of the evidence supporting his convictions for driving under suspension in violation of
{21} In a separate concurrence, Judge Grady acknowledged that the facts in Cochran—the defendant had been found in the driver‘s seat of a vehicle parked along a road with its engine running—logically supported a conclusion that the defendant had operated the vehicle for purposes of
{22} Thus, contrary to the state‘s assertion, Cochran and Ahmad do not support its argument that Anderson‘s placement in the driver‘s seat of a vehicle in a parking lot with the keys in the ignition is sufficient evidence of “operation” under
{23} Although the majority in Ahmad did not specifically rely on the police officer‘s testimony that prior to pulling the defendant over he had seen the defendant actually driving the vehicle in rejecting his weight-of-the evidence challenge, as Judge
{24} As Anderson points out, where appellate courts have found sufficient circumstantial evidence that a defendant “operated” a vehicle while impaired for purposes of
{25} Likewise, in State v. Jamison, 9th Dist. Summit No. 27664, 2016-Ohio-5122, ¶ 2 and 34, the Ninth Appellate District held that the state had presented sufficient evidence that the defendant had operated the vehicle to sustain his OVI conviction under
{26} Similarly, in State v. Barnard, 5th Dist. Stark No. 2010-CA-00082, 2010-Ohio-5345, ¶ 28-32, the Fifth Appellate District held that the state had presented sufficient circumstantial evidence that the defendant had operated the vehicle while
{27} In State v. Adams, 3d Dist. Crawford No. 3-06-24, 2007-Ohio-4932, ¶ 19-22, the Third Appellate District held that the state had presented sufficient evidence that the defendant had operated a motor vehicle while under the influence of alcohol in violation of
{28} In State v. Robertson, 9th Dist. Lorain No. 13CA010395, 2014-Ohio-5389, ¶ 8-10, the Ninth Appellate District held that the state had produced sufficient evidence that the defendant had operated a vehicle that had crashed in a ditch where a witness had testified that the defendant was the only occupant of the car; the defendant, although located on the floor of the vehicle, was “gunning” the engine, from which a reasonable trier of fact could infer he had been in the driver‘s position; and, after the witness had assisted the defendant from the vehicle, the defendant had fled from the scene.
{29} In Cleveland v. Sheppard, 8th Dist. Cuyahoga No. 103166, 2016-Ohio-7393, ¶ 22-24, the Eighth Appellate District held that the state had produced sufficient evidence of operation to sustain Sheppard‘s OVI conviction where the vehicle had been improperly parked in a manner that attracted the attention of police officers because it had been parked partially on the street and partially in the parking lot of a bar, the
{30} Likewise, in Cleveland v. Crawford, 8th Dist. Cuyahoga No. 102110, 2015-Ohio-2402, ¶ 14-21, the Eighth Appellate District held that the state had presented sufficient circumstantial evidence to prove the element of operation where police officers testified they had responded to a report of a vehicle sideswiping another vehicle, and upon their arrival moments later, the defendant was stepping out of the driver‘s side of the vehicle with his keys in hand, the officers noticed damage to defendant‘s vehicle and the vehicle parked in front of his vehicle consistent with that report, and the defendant had displayed indicia of intoxication.
{31} Here, however, we agree with Anderson that the state failed to present any direct or circumstantial evidence that Anderson caused or had caused movement of a vehicle. None of the firefighters and paramedics testified that the vehicle‘s engine was running, or that the vehicle had been parked, wrecked, or disabled in the street, parked along the side of the street, or parked in the parking lot in an awkward manner. Nor did they testify that they had observed Anderson driving the vehicle. Officer Bittinger testified that Anderson had expressly denied driving the vehicle and had provided him with the name of another individual that had driven the vehicle.
{32} Anderson‘s case is more like Cleveland v. Dumas, 8th Dist. Cuyahoga No. 99558, 2013-Ohio-4600, ¶ 14, where the Eighth Appellate District reversed the defendant‘s conviction for driving under the influence in violation of a Cleveland Ordinance. In Dumas, the police officer testified that when he arrived at the scene, the defendant was standing outside the vehicle in a parking lot near a construction site. The Eighth District concluded that absent evidence that the vehicle was running and
{33} The state argues that a reasonable inference can be drawn that Anderson had operated the vehicle to the recreation center in an impaired state because no drug paraphernalia was found in the car, and one can, therefore, infer that Anderson took the drugs elsewhere and then drove the vehicle to the recreation center while impaired. We disagree. To prove OVI, the state must show the confluence of the ingestion of drugs and the operation of the vehicle. Without more, the absence of the drugs in the vehicle showed only that Anderson had taken the drugs somewhere other than the car. But it says nothing about the operation of the car.
{34} The dissent expands on the state‘s argument. The dissent asserts that the state adduced sufficient circumstantial evidence that Anderson had operated the vehicle while intoxicated, because the trier of fact could infer from the police officer‘s testimony that no drug paraphernalia had been found in the car that Anderson had ingested the drugs elsewhere, and the police officer testified that Anderson had admitted that the vehicle had been operated. We agree with the dissent that the defendant‘s insistence that another person had operated the vehicle may be discredited by the fact that this person was not found on the scene when the defendant was discovered in the vehicle. But even so, the state is still left with no evidence that the defendant had operated the vehicle after he had ingested the drugs. See, e.g., State v. Richardson, 150 Ohio St.3d 554, 2016-Ohio-8448, ¶ 18-19 (holding defendant‘s OVI conviction was supported by sufficient evidence where the state produced evidence that the defendant had ingested a drug and had been impaired, and that the drug had impaired his driving causing him to rear-end another vehicle). The
{35} Absent direct or circumstantial evidence that Anderson had operated the vehicle as defined in
Judgment reversed and appellant discharged.
ZAYAS, P.J., concurs.
MILLER, J., dissents.
MILLER, J., dissenting.
{36} An impaired person in the driver‘s seat of a vehicle with the key in the ignition can be convicted of OVI if there is sufficient circumstantial evidence that he operated the vehicle while impaired. I conclude that, viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have convicted Anderson; and therefore, respectfully dissent.
{37} Anderson was found overdosed and unconscious in the driver‘s seat of the vehicle, key in the ignition. No drug paraphernalia was found in the vehicle or in the immediate vicinity, which the officer inferred to mean, based on his experience, that Anderson had ingested the drugs elsewhere. Anderson admitted to the officer that the vehicle had been operated, but claimed that a woman, whom he identified by
{38} Under these facts, a rational trier of fact could have concluded that Anderson ingested drugs elsewhere and that he, not the woman, drove the vehicle to the recreation center parking lot. My conclusion aligns with the many cases discussed by the majority where convictions were upheld under similar facts. Under our deferential standard of review, I would affirm the conviction.
Please note:
The court has recorded its own entry this date.