STATE OF OHIO v. KATHY L. FOX
C.A. No. 2023-CA-5
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY
June 9, 2023
2023-Ohio-1912
WELBAUM, P.J.
Trial Court Case No. 22TRC778 (Criminal Appeal from Municipal Court)
Rendered on June 9, 2023
ROGER A. STEFFAN, Attorney for Appellee
KONRAD KUCZAK, Attorney for Appellant
WELBAUM, P.J.
{¶ 1} Appellant, Kathy L. Fox, appeals from her conviction for operating a vehicle under the influence of alcohol or drugs (“OVI“) following a bench trial in the Champaign County Municipal Court. In support of her appeal, Fox raises multiple claims alleging that the State failed to present sufficient evidence at trial to convict her of OVI in violation of Saint Paris Ordinance 73.01(A)(1). For the reasons outlined below, we agree that
Facts and Course of Proceedings
{¶ 2} On May 20, 2022, Fox was cited and arrested for OVI in violation of Saint Paris Ordinance 73.01(A)(1), a misdemeanor of the first degree. The citation alleged that Fox had operated her vehicle under the influence of alcohol and/or drugs on the 400 block of State Route (SR) 235 in the Village of Saint Paris, Champaign County, Ohio. Fox pled not guilty to the charge and the matter proceeded to a bench trial on December 13 and 28, 2022.
{¶ 3} At trial, the State presented testimony from David Brown, a motorist who called 9-1-1 and reported erratic driving by Fox on the day she was cited for OVI. The State also presented testimony from Officer Cory Baldwin, a former sergeant with the Saint Paris Police Department who cited and arrested Fox for the OVI in question. The State additionally presented testimony from Lindsie Mayfield, a criminalist with the Ohio State Highway Patrol who tested a urine sample that Fox voluntarily provided to law enforcement. Fox also testified in her defense. The following is a summary of the relevant testimony that was presented at trial.
{¶ 4} At approximately 6 p.m. on May 20, 2022, David Brown was driving behind a silver Toyota vehicle that was traveling northbound on SR 235 toward the Village of Saint Paris. While traveling behind the vehicle, Brown observed that the vehicle was not maintaining a constant speed and crossed over the center and far right lanes of the
{¶ 5} Ofc. Cory Baldwin identified himself as the officer who pulled the vehicle over in response to Brown‘s 9-1-1 call. At the time of trial, Baldwin was a deputy for the Madison County Sheriff‘s Office, but he testified that he had been a sergeant for the Saint Paris Police Department at the time in question. After pulling the vehicle over, Baldwin observed that the driver, later identified as Fox, had pinpoint pupils, slurred speech, abnormally slow speech, and severe dry mouth. When Baldwin asked Fox about her erratic driving, she told him that she had been messing with her GPS and that she had dropрed her lipstick on the floor. Baldwin also asked Fox if she had taken any medication that day, to which Fox responded that she had taken her morning medication. However, Fox was unable to tell Baldwin what her morning medication consisted of.
{¶ 6} Based on his observations and his discussion with Fox, Ofc. Baldwin asked Fox if she would be willing to participate in field sobriety testing. In resрonse, Fox advised Baldwin that she had bad knees but would try the tests anyway. When Fox exited her vehicle to participate in the testing, Baldwin observed Fox stumble and have difficulty standing. Baldwin first attempted the horizontal gaze nystagmus (“HGN“) test. Baldwin testified that the HGN test did not provide him with any clues due to the extremely
{¶ 7} After Fox agreed to the search of her vehicle, Ofc. Baldwin called a canine unit for assistance. The canine, Frankie, conducted an open-air sniff and alerted to the driver‘s side of Fox‘s vehicle. Thereafter, Baldwin searched the vehicle and found a THC pen, THC refill, and an empty pill bottle. Baldwin observed that the empty pill bottle had a label indicating that the bottle had contained 90 pills of Clonazepam that had just been refilled seven days earlier on May 13, 2022. When Baldwin asked Fox about the empty pill bottle, Fox claimed that she did not know what had happened to the pills and assumed her medication had been stolen. At that point, Baldwin placed Fox under arrest on suspicion of OVI.
{¶ 8} Following Fox‘s arrest, Ofc. Baldwin asked Fox if she would provide a voluntary urine sample, and Fox agreed. Baldwin thereafter transported Fox to the police station, where she provided a urine sample. The urine sample was forwarded to the toxicology section of the Ohio State Highway Patrol Crime Laboratory for analysis and testing.
{¶ 9} Lindsie Mayfield testified that she was the criminalist who had analyzed and
{¶ 10} In her defense, Fox testified that she had been swerving on the roadway on the date in question due to glancing at the GPS on her cell phone and gusts of wind blowing her around while driving. Fox also testified that she had been prescribed Clonazepam five years earlier for her nerves and anxiety and that, during the time in question, she typically took one milligram of Clonazepam three times a day. Fox testified, however, that she had not taken any Clonazepam within 24 hours of her arrest. Fox also indicated that she no longer took Clonazepam and that it caused her to shake and have speech delays. Fox additionally testified that she had suffered from dry mouth since February 2022.
{¶ 11} After taking the matter under advisement, the trial court issued a written decision on January 17, 2023, finding Fox guilty of the OVI charge at issuе. On February 13, 2023, the court sentenced Fox to 30 days in jail with 27 of those days suspended. The trial court also ordered Fox to pay a $650 fine plus court costs.
{¶ 12} Fox now appeals from her OVI conviction and raises three assignments of error, each of which challenges the sufficiency of the evidence used to convict her.
Waiver
{¶ 13} As a preliminary matter, we nоte that Fox did not make a
{¶ 14} This court has also explained that “even if a defendant could waive a challenge to the sufficiency of the evidence by failing to raise the issue at trial, it would remain subject to plain-error analysis.” State v. Rochowiak, 2d Dist. Miami No. 2008-CA-12, 2009-Ohio-2550, ¶ 24, citing State v. Osterfeld, 2d Dist. Montgomery No. 20677, 2005-Ohio-3180, ¶ 9. “[B]ecause ‘a conviction based on legally insufficient evidence constitutes a denial of due process,’ a conviction based upon insufficient evidence would almost always amount to plain error.” Ropp at ¶ 30, quoting State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997). (Other citations omitted.)
{¶ 15} For the foregoing reasons, we find that the sufficiency-of-the-evidence issue has not been waived for appeal. Because all three of Fox‘s assignments of error
Assignments of Error
{¶ 16} Under her three assignments of error, Fox claims that the evidence presented at trial was insufficient to convict her of OVI in violation of Saint Paris Ordinance 73.01(A)(1), because the evidence failed to establish that: (1) she was within the Village of Saint Paris at the time of the conduct in question; (2) that thе Clonazepam detected in her urine was a “drug of abuse“; and (3) there was a nexus between her ingestion of the Clonazepam and her erratic driving.
{¶ 17} “A sufficiency of the evidence argument disputes whether the State has presented adequate evidence on each element of the offense to allow the case to go to the jury or sustаin the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10, citing Thompkins, 78 Ohio St.3d 380. “When reviewing a claim as to sufficiency of evidence, the relevant inquiry is whether any rational factfinder viewing the evidence in a light most favorable to the state could have found the essential elements of the crime proven beyond a reasonable doubt.” (Citations omitted.) State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997). “The verdict will not be disturbed unless the appellate court finds that reasonable minds could not reach the conclusion reached by the trier-of-fact.” (Citations omitted.) Id.
{¶ 18} As previously discussed, Fox was convicted of OVI in violation of Saint Paris Ordinance 73.01(A)(1). That ordinance provides: “No person shall operate any vehicle
{¶ 19} We note that Fox was not charged under
{¶ 20} Under her first assignment of error, Fox claims that the State did not present sufficient evidence at trial establishing that shе was within the Village of Saint Paris when she engaged in the conduct underlying the OVI offense in question. This court addressed a similar claim in State v. Monnin, 2d Dist. Darke No. 1350, 1994 WL 558987 (Oct. 12, 1994). In Monnin, the defendant was convicted of OVI and the issue on appeal was whether the evidence presented at the defendant‘s bench trial established that the defendant had committed the OVI offense within the Village of Versailles. Id. at *1. Aftеr considering the entire record, this court determined in Monnin that the trial court could have reasonably found beyond a reasonable doubt that the defendant had operated a vehicle under the influence of alcohol in the Village of Versailles based on the following:
Officer Coatney [the arresting officer] identified himself as a police
officer for the Village of Versailles. He testified that on the date in question he was “on a routine patrol in my assigned area of the village” meaning “The Village of Versailles“, and that Versailles is in Darke County. He testified that he observed the “vehicle in question“, and the individual he arrested “in the alleyway to the rear of Sam‘s Place Bar“. (Tr. 26, 27.) The D.W.I. offense reрort, completed by Officer Coatney and admitted into evidence without objection, identified the individual he arrested as Dale E. Monnin, a “truck driver” by occupation, whose address was 809 East Wood Street, Versailles, Ohio, and stated that the location of the occurrence was the “alley between N. West and Center Street.” Officer Coatney identifiеd his own residence as the “Versailles P.D.”
Id. at *1.
{¶ 21} This court explained in Monnin that the trial court could have reasonably found that the offense had occurred within the Village of Versailles because the arresting officer “was a Versailles police officer who testified that he was on patrol within the Village of Versailles when he received the dispatch which took him to the alley between N. West and Center Streets where he observed the vehicle and the individual to whom the dispatch related.” Id. We also noted that “nothing suggest[ed] that this location was not within the Village of Versailles.” Id. We further recognized that “[i]t is well known that police officers normally do not effect arrests outside their territorial jurisdiction in the absence of hot pursuit, and nothing of record suggests that this was a hot pursuit situation.” Id. Therefore, when considering the evidence and “the fact that the trial
{¶ 22} In the present case, the trial court did not make any finding with regard to the location of Fox‘s OVI offense. The evidence presented at trial established that Brown called 9-1-1 after observing Fox driving erratically on SR 235. Specifically, Brown indicated that Fox was traveling north on SR 235 “[t]owards Saint Paris[.]” Trial Tr. (Dec. 13, 2022), p. 14. Brown аlso testified that he observed an officer pull Fox over “just north of 36.” Id. at 16. When the prosecutor asked Brown whether Fox had been pulled over within the Village of Saint Paris, Brown responded: “It was on 235. I don‘t know.” Id.
{¶ 23} Ofc. Baldwin testified that he was a sergeant for the Saint Paris Police Department at the time in question and confirmed that he was the officer who pulled Fоx over in response to Brown‘s 9-1-1 call. Unlike the officer in Monnin, however, Baldwin never testified about where the traffic stop occurred or where he was dispatched. Baldwin also did not provide any testimony indicating that he was on routine patrol in his assigned area of the village when he pulled Fox over.
{¶ 24} That said, the citation charging Fox with OVI and Ofc. Baldwin‘s written statement of the offense both indicated that Baldwin was on patrol in the Village of Saint Paris and had stopped Fox in the 400 block of SR 235 in the Village of Saint Paris, Champaign County, Ohio. The State, however, did not refer to either of those documents at trial and did not offer them as evidence. The only exhibit offered by the
{¶ 25} “Judicial notice permits a court to dispense with proof by evidence where the court is justified in declaring the truth of the matter without requiring evidence.” McKenzie v. Davies, 2d Dist. Montgomery No. 22932, 2009-Ohio-1960, ¶ 22, citing State v. Duncan, 2d Dist. Montgomery No. 9250, 1986 WL 5794, *6 (May 13, 1986), citing
{¶ 26} “Location, as well as other geographical facts, are often times the subject of judicial notice because they are generally known within the territorial jurisdiction of the court аnd are not subject to reasonable dispute.” State v. Gray, 4th Dist. Ross No. 97CA2284, 1998 WL 103325, *2, citing 1 Giannelli & Snyder, Evidence (1996) 123-124, § 201.6: McCormick, Evidence (1984 3d Ed.) 926, § 330. See also United States v. Piggie, 622 F.2d 486, 488 (10th Cir.1980) (“[g]eography has long been peculiarly susceptible to judicial notice for the obvious reason that geographic locations are facts which are not generally controversial“). For example, in Gray, the Fourth District Court
{¶ 27} Unlike in Gray, the trial court in this case did not make any finding with regard to Fox‘s location, its familiarity with the area in question, or whether Fox was driving within the Village of Saint Paris. Although we stated in Monnin that trial judges can be presumed to have some familiarity with the streets and landmarks within the geographic jurisdiction of the court over which they preside, there is nothing in the record indicating that the trial court took judiciаl notice of whether Fox was within the Village of Saint Paris during the conduct in question. In addition, the State has not asked this court to take judicial notice of the village boundaries, and we decline to do so.
{¶ 28} Based on the evidence presented at trial, we find that even when the evidence is viewed in a light most favorable to the State, the trial court, as the finder of fact, could not have reasonably concluded that Fox was within the Village of Saint Paris during the conduct for which she was convicted. Therefore, the element in Saint Paris Ordinance 73.01(A)(1) requiring Fox to have been operating a vehicle “within the municipality,” i.e., within the Village of Saint Paris, was not proven by the evidence. Accordingly, Fox‘s conviction fоr violating that ordinance was not supported by sufficient evidence.
{¶ 29} Because there was insufficient evidence to establish that Fox was within the
Conclusion
{¶ 30} Fox‘s conviction for OVI in violation of Saint Paris Ordinance 73.01(A)(1) is vacated.
TUCKER, J. and EPLEY, J., concur.