STATE OF OHIO, CITY OF ATHENS, Plaintiff-Appellee, v. KERRY DETIENNE, Defendant-Appellant.
Case No. 16CA13
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ATHENS COUNTY
Released: 12/11/17
[Cite as State v. Detienne, 2017-Ohio-9105.]
Hoover, J.
APPEARANCES:
Timothy Young, Ohio Public Defender, and Terrence K. Scott, Assistant Ohio Public Defender, Columbus, Ohio, for appellant.
James Stanley, Athens City Prosecutor, Athens, Ohio, for appellee.
Hoover, J.
{¶ 1} Defendant-appellant, Kerry Detienne, (“Detienne“) appeals the judgment of the Athens Municipal Court convicting him of Operating a Vehicle While Under the Influence of a Controlled Substance and Failure to Control. On appeal, Detienne contends that (1) his OVI conviction is against the manifest weight of the evidence; (2) his rights under the Confrontation Clause were violated; and (3) he received ineffective assistance of counsel. For the following reasons, we affirm the judgment of the trial court.
I. Facts and Procedural History
{¶ 2} Around 7:30 a.m. on March 3, 2016, Detienne, a graduate student at Ohio University, crashed his Buick sedan into a utility pole on East State Street in Athens, Ohio. When police arrived, they found Detienne sitting in the driver‘s seat, dazed and
{¶ 3} At the hospital, Officer Flick cited Detienne for Operating a Vehicle Under the Influence of Alcohol or Drug of Abuse in violation of
{¶ 4} Later that month, Justine Pardi, a Clinical Lab Technologist at Wexner Medical Center, tested the sample; and it tested positive for hydroxyalprazolam, alprazolam, chlorpheniramine, sertraline, and an amphetamine concentration of 3,286 nanograms per milliliter—more than six times the legal limit. Based on this amphetamine concentration, Detienne was cited for Operating a Vehicle While Under the Influence of a Controlled Substance in violation of
{¶ 5} At trial, Detienne asserted the affirmative defense of medical authorization. He argued that although he had drugs in his system, he was not guilty of the OVI offenses
{¶ 6} Ultimately, Detienne was found guilty of Operating a Vehicle While Under the Influence of a Controlled Substance and Failure to Control but acquitted of Operating a Vehicle Under the Influence of Alcohol or Drug of Abuse. He was sentenced to 30 days in jail, a 180-day license suspension, and a $775 dollar fine plus court costs.1
{¶ 7} Detienne timely appeals.
II. Assignments of Error
{¶ 8} Detienne assigns the following errors for our review:
Assignment of Error No. I:
Kerry Detienne was denied his right to due process and a fair trial when the jury found him guilty of operating a vehicle with a prohibited concentration of a drug of abuse against the manifest weight of the evidence. Fifth and Fourteenth Amendments, United States Constitution; Article I, Section 10 and 16, Ohio Constitution. (Tr. p. 157-160, 168-170, and 188-189; Exhibit C).
Assignment of Error No. II:
The trial court violated Mr. Detienne‘s rights to due process and a fair trial when the trial court permitted the introduction of a testimonial laboratory report at trial without the author‘s testimony, in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 5, 10, and 16, of the Ohio Constitution. Bullcoming v. New Mexico, 564 U.S. 647, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011); Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009). (Tr. p. 100-104, 127 and 122-125; Exhibit C).
Assignment of Error No. III:
Mr. Detienne was denied the effective assistance of counsel at his trial, to which he was entitled to under the Sixth and Fourteenth Amendments to
the United States Constitution. Mr. Detienne‘s counsel failed to comply with R.C. 4511.19(E)(3) . Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d. 674 (1984); Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). (MTr. [sic] p. 85-87; May 23, 2016, Journal Entry).
III. Law and Analysis
A. Detienne‘s Conviction was not Against the Manifest Weight of the Evidence
{¶ 9} In his first assignment of error, Detienne contends that his conviction of Operating a Vehicle While Under the Influence of a Controlled Substance is against the manifest weight of the evidence since he established, by a preponderance of the evidence, the affirmative defense of medical authorization.
{¶ 10} In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate 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 must be reversed. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997); State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 119. “Although a court of appeals may determine that a judgment of a trial court is sustained by sufficient evidence, that court may nevertheless conclude that the judgment is against the weight of the evidence.” Thompkins at 387. But the weight and credibility of evidence are to be determined by the trier of fact. State v. West, 4th Dist. Scioto No. 12CA3507, 2014-Ohio-1941, ¶ 23. A trier of fact “is free to believe all, part or none of the testimony of any witness who appears before it.” Id. We defer to the trier of fact on these evidentiary weight and credibility issues because it is in the best position to gauge the witnesses’
{¶ 11}
(A)(1) No person shall operate any vehicle * * * within this state, if, at the time of the operation, any of the following apply:
* * *
(j) Except as provided in division (K) of this section, the person has a concentration of any of the following controlled substances or metabolites of a controlled substance in the person‘s * * * urine that equals or exceeds any of the following:
(i) The person has a concentration of amphetamine in the person‘s urine of at least five hundred nanograms of amphetamine per milliliter of the person‘s urine * * *.
(Emphasis added.)
{¶ 12}
Division (A)(1)(j) of this section does not apply to a person who operates a vehicle, * * * while the person has a concentration of a listed controlled substance or a listed metabolite of a controlled substance in the person‘s * * * urine that equals or exceeds the amount specified in that division, if both of the following apply:
(1) The person obtained the controlled substance pursuant to a prescription issued by a licensed health professional authorized to prescribe drugs.
(2) The person injected, ingested, or inhaled the controlled substance in accordance with the health professional‘s directions.
{¶ 13} Thus, taking a drug of abuse pursuant to a lawful prescription from a licensed health professional is an affirmative defense to a charge under
{¶ 14} The defendant bears the burden of proving an affirmative defense by a preponderance of the evidence.
{¶ 15} At trial, Detienne testified that at time of the accident he was taking several medications prescribed to him by his doctor, including Adderall, Adderall XR (Extended Release), Sertraline, Alprazolam, and Fortesta, as well as a supplement called “Supreme Brain Support.” He could not specifically recall taking his medication the morning of the accident; but he stated that he always took his medications everyday as prescribed. In fact, he indicated that he had been taking some of his medications for several years.
{¶ 16} Based on this testimony, Detienne argues that he established by a preponderance of the evidence that he was taking amphetamine pursuant to a lawful
{¶ 17} There was also no testimony that Detienne‘s doctor—whose name was never disclosed—was a “licensed health professional.”
{¶ 19} For these reasons, we cannot say that the jury clearly lost its way or created a manifest miscarriage of justice in rejecting Detienne‘s affirmative defense and finding him guilty of Operating a Vehicle While Under the Influence of a Controlled Substance.
{¶ 20} Accordingly, we overrule Detienne‘s first assignment of error.
B. The Confrontation Clause was not Violated
{¶ 22} “The Sixth Amendment‘s Confrontation Clause provides, ‘In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him * * *.’ ” State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 34. The Confrontation Clause of the Sixth Amendment is made applicable to the states by the Fourteenth Amendment. State v. Issa, 93 Ohio St.3d 49, 752 N.E.2d 904, fn. 4 (2001). Consequently, this constitutional right applies to both federal and state prosecutions, but the right of confrontation in Article I, Section 10 of the Ohio Constitution provides no greater right of confrontation than the Sixth Amendment. State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, 933 N.E.2d 775, ¶ 12.
{¶ 23} “The United States Supreme Court has interpreted [the Sixth Amendment right to confrontation] to mean that admission of an out-of-court statement of a witness who does not appear at trial is prohibited by the Confrontation Clause if the statement is testimonial unless the witness is unavailable and the defendant has had a prior opportunity to cross-examine the witness.” Maxwell at ¶ 34, citing Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Crawford did not define the word “testimonial” but stated that the core class of statements implicated by the Confrontation Clause includes statements ” ‘made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’ ” 541 U.S. at 52, 124 S.Ct. 1354, 158 L.Ed.2d 177, quoting the amicus brief of the National Association of Criminal Defense Lawyers.
{¶ 25} In Ohio, a defendant can waive his right to cross-examine a laboratory analyst by failing to comply with a notice-and-demand statute. “[N]otice-and-demand statutes require the prosecution to provide notice to the defendant of its intent to use [a laboratory] analyst‘s report as evidence at trial, after which the defendant is given a period of time in which he may object to the admission of the evidence absent the analyst‘s appearance live at trial.” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 326, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009).
{¶ 26} The most frequently relied upon notice-and-demand statute is found in
{¶ 27} In Pasqualone, the Ohio Supreme Court held that “the procedures of
{¶ 29} Detienne admits that the State served him with a copy of Pardi‘s report prior to trial and that he did not demand Pardi‘s testimony within seven days of receiving it, as required under
{¶ 31} Accordingly, we overrule Detienne‘s second assignment of error.
C. Detienne‘s Ineffective Assistance of Counsel Claim Fails
{¶ 32} In his third assignment of error, Detienne contends that his trial counsel was ineffective for failing to demand Pardi‘s testimony within seven days of receiving her report.
{¶ 33} Criminal defendants have a right to counsel, including a right to the effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), fn. 14. To establish constitutionally ineffective assistance of counsel, a criminal defendant must show (1) that his counsel‘s performance was deficient and (2) that the deficient performance prejudiced the defense and deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
{¶ 34} “In order to show deficient performance, the defendant must prove that counsel‘s performance fell below an objective level of reasonable representation. To show prejudice, the defendant must show a reasonable probability that, but for counsel‘s errors, the result of the proceeding would have been different.” State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95. “Failure to establish either
{¶ 35} When considering whether trial counsel‘s representation amounts to deficient performance, “a court must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance[.]” Strickland at 689. Thus, “the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Id, quoting Michel v. Louisiana, 350 U.S. 91, 164, 76 S.Ct. 158, 100 L.Ed. 83 (1955). Debatable strategic and tactical decisions may not form the basis of a claim for ineffective assistance of counsel, even if, in hindsight, it looks as if a better strategy had been available. State v. Cook, 65 Ohio St.3d 516, 524, 605 N.E.2d 70 (1992).
{¶ 36} “To establish prejudice, a defendant must demonstrate that a reasonable probability exists that but for counsel‘s errors, the result of the trial would have been different.” State v. Walters, 4th Dist. Washington Nos. 13CA33 and 13CA36, 2014-Ohio-4966, ¶ 24, citing State v. White, 82 Ohio St.3d 15, 23, 693 N.E.2d 772 (1998). “Furthermore, courts may not simply assume the existence of prejudice, but must require that prejudice be affirmatively demonstrated.” Id.
{¶ 37} In Pasqualone, the Ohio Supreme Court held that “an accused‘s attorney is capable of waiving his [or her] client‘s right to confrontation by not demanding that a laboratory analyst testify pursuant to the opportunity afforded by [the relevant statute], because whether to cross-examine a particular witness is properly viewed as a decision relating to trial tactics or strategy.” State v. McCausland, 124 Ohio St.3d 8, 2009-Ohio-5933, 918 N.E.2d 507, ¶ 14, quoting Pasqualone, 121 Ohio St.3d 186, 2009-Ohio-315,
{¶ 38} By asserting the affirmative defense of medical authorization, Detienne was admitting the facts claimed by the prosecution and then relying on independent facts or circumstances that he claimed exempted him from liability. Thus, trial counsel‘s decision to forgo demanding Pardi‘s testimony could be viewed as sound trial strategy and cannot form the basis of a claim of an ineffective assistance of counsel.
{¶ 39} Accordingly, we overrule Detienne‘s third assignment of error.
IV. Conclusion
{¶ 40} Having overruled Detienne‘s three assignments of error, we affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs.
The Court finds that reasonable grounds existed for this appeal.
It is ordered that a special mandate issue out of this Court directing the Athens Municipal Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Harsha, J, and Abele, J: Concur in Judgment and Opinion.
For the Court
BY:
Marie Hoover, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.