State v. May
Case Information
*1
[Cite as
State v. May
,
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 25359 v. : T.C. NO. 11CR2051 DONNA L. MAY : (Criminal appeal from
Common Pleas Court) Defendant-Appellant :
:
. . . . . . . . . .
O P I N I O N
Rendered on the 11th day of April , 2014. . . . . . . . . . .
ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W. Third Street, 5 th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee ROBERT L. MUES, Atty. Reg. No. 0017449 and A. MARK SEGRETI, JR., Atty. Reg. No. 0009106, 1105 Wilmington Avenue, Dayton, Ohio 45420
Attorneys for Defendant-Appellant
. . . . . . . . . .
FROELICH, P.J.
[Cite as
State v. May
,
{¶ 1} Donna L. May appeals from her convictions, after a jury trial, for operating a vehicle while under the influence of alcohol, a drug of abuse, or a combination of them (with a prior OVI felony), harassment with bodily substance, and endangering children. The convictions were based on evidence that May had driven under the influence of alcohol while also taking Cymbalta®, that one of May’s children (a toddler) was in the rear passenger seat while May was driving under the influence of alcohol and/or a drug of abuse, and that May had intentionally spat on a police officer during her detention in a police cruiser. The trial court sentenced May to an aggregate five-year prison term, a $1,500 mandatory fine, and a 20-year driver’s license suspension. May’s original appellate counsel filed a brief pursuant to Anders v.
California
, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating two potential
assignments of error, namely that her OVI conviction was based on insufficient evidence and
was against the manifest weight of the evidence. Upon our independent review of the
record, pursuant to
Penson v. Ohio
,
For the following reasons, the trial court’s prison sentence will be reversed, and the matter will be remanded for resentencing on that issue. In all other respects, the trial court’s judgment will be affirmed.
I. Lack of Limiting Instruction Regarding Prior Conviction May’s first assignment of error states:
[Cite as
State v. May
,
When a prior offense is admissible because it is an element of the substantive offense, due process requires that the trial court must instruct the jury that the jury may not consider the prior offense as proof of the charge in the indictment, and the failure to so instruct constitutes plain error. Alternatively, trial counsel was ineffective for failing to object or request a limiting instruction, denying Ms. May’s right to effective counsel under the Sixth Amendment. A jury trial on May’s charges was held in August 2012. During the trial,
the State presented evidence, through Dayton Police Officer Derrick McDonald, that May had a 2008 OVI felony conviction in the Montgomery County Court of Common Pleas. McDonald had obtained certified copy of the termination entry for Case No. 2007 CR 3949, which identified Donna L. May as the defendant in the felony OVI case and provided May’s birthday and social security number. May’s sole defense witness was Joseph Hamilton, her former boyfriend and
the father of some of her children. During his direct testimony, Hamilton discussed that May would be verbally abusive when she was angry. He also acknowledged that May drank beer and that he was aware of occasions when May had driven while drunk. On cross-examination, Hamilton stated that he knew of May’s 2008 OVI felony conviction and that May often got angry when she drank. He reiterated that he had seen May drink and drive, and he did not think May “knew her limits about alcohol.” On redirect examination, Hamilton indicated that May had cut back on her drinking after her prior OVI conviction, and that she did not drink or only drank a couple of beers if she had to work the next morning.
[Cite as
State v. May
,
conviction made it more likely that she was guilty of the June 26 offense. The State argued:
The final element, ladies and gentleman, of Count I is that the defendant was previously convicted of a felony, OVI in Case 2007 CR 3949 in the case of the State of Ohio versus Donna May. The entry reflecting that conviction has been admitted into evidence. Felony OVI conviction, wherein this defendant was found guilty. Mr. Hamilton confirmed that fact. But beyond Mr. Hamilton’s confirmation, you have the personal identifying information of the defendant. That personal identifying information matches on State’s Exhibit 3 and on State’s Exhibit 2. And I urge you, during your deliberations to compare all the documents. There’s no question, it’s uncontroverted, it is undisputed that this defendant was convicted of a felony in that case. * * * Defense counsel acknowledged May’s prior OVI conviction in her closing
argument, but she argued that the State’s evidence of May’s behavior did not establish that she had driven under the influence of alcohol the day on which the current charge arose. The State’s rebuttal argument emphasized May’s erratic driving prior to the stop, the strong odor of an alcoholic beverage on May, her bloodshot eyes, her disheveled appearance, and her combative behavior. The prosecutor further stated:
When we’re talking about circumstantial evidence, look for the corroboration. Look for the facts that are also admitted by the defendant that support all the other testimony you heard, and the defendant pointed that out herself. Donna May admits to drinking. Officer Simpson smells the overwhelming odor of alcohol. All of the facts fit together. There is no doubt that this defendant got behind the wheel of a car, had too much to drink, her driving suffered as a result. She’s got a prior felony conviction for drinking and driving. Mr. Hamilton told you, she drinks a lot. Sometimes she doesn’t know her limits. Sometimes she gets behind the wheel of a car. Count I has been proven to you beyond a reasonable doubt. “When a prior conviction determines the degree of an offense, rather than
just enhancing the penalty, the prior conviction is not only admissible, but the state must
prove it beyond a reasonable doubt.”
State v. Bankston
, 2d Dist. Montgomery No. 24192,
unrequested limiting instruction for “other acts” evidence is not plain error.
Bankston
at
¶ 24;
State v. Moore
, 2d Dist. Greene No. 2010 CA 13,
through the testimony of Officer McDonald. McDonald testified that May had a prior OVI felony conviction, and he identified the termination entry in that prior case. The prosecutor’s initial closing argument mentioned May’s prior conviction only as an element of the State’s case. May’s drinking habits and prior conviction were discussed in Hamilton’s testimony upon questioning by defense counsel, and defense counsel acknowledged the prior conviction in her closing argument. Defense counsel’s primary arguments were that May had anger issues and that the “minor traffic infractions” did not establish that May was impaired. In its rebuttal closing argument, the State emphasized the need to consider the totality of the circumstances. The State mentioned May’s prior conviction and Hamilton’s testimony in its rebuttal closing argument, but those statements were in response to defense counsel’s argument that the evidence did not support a conclusion that May had driven under the influence on June 26, 2011. The State’s reference to the past conviction in its rebuttal was fleeting; the State did not argue that May’s prior felony OVI conviction was proof that May had committed the June 26 offense. Moreover, there was substantial evidence that May had driven under the
influence of alcohol and/or a drug of abuse on June 26, 2011. The State’s evidence established that at approximately 5:50 p.m. on June 26, 2011, Officer Amy Simpson observed May driving on a residential road at what appeared to be above the posted 25 mile per hour speed limit. As Simpson watched, May made an “abrupt” and “very erratic” southbound turn without using her turn signal. Officer Simpson began to follow May. May turned on her left turn signal, but traveled several blocks without turning left. When May reached Third Street, which had a stop sign, she stopped with the “entire front half of her vehicle” out in the road, well past the stop sign. Officer Simpson stated that traffic on Third Street at that time of day is very heavy, and May’s stop created a hazard. After turning onto Third Street, May crossed the center line three times, crossing “at least six inches into the lane slowly, and then * * * abruptly jerk back.” Officer Simpson initiated a traffic stop. Upon approaching May’s vehicle, Simpson immediately noticed an
“extremely strong” odor of an alcoholic beverage. May’s face was flushed, her hair was “messed up,” her eyes were watering, she was sweating, and her speech was slurred when she spoke. May spoke aggressively with the officer when asked if anything was wrong, and she had trouble standing up when Simpson got her out of her car. Throughout the encounter, May was belligerent, combative, verbally abusive, and yelled obscenities. May’s threats to kick out the cruiser’s door and window led the officers to place a hobble on her, which restrained May’s feet. While the hobble was being placed, May spat on another officer and herself (in an attempt to again spit on the officer), resulting in the decision to put a spit hood on May.
{¶ 15} Considering that the State predominantly used the prior conviction to prove only that May had a prior felony OVI conviction and that there was substantial other evidence that May drove under the influence on June 26, 2011, we cannot find that the outcome of May’s trial would clearly have been different and that the lack of a limiting instruction amounted to plain error. May further asserts that her trial counsel rendered ineffective assistance by
failing to request a limiting instruction regarding her prior felony OVI conviction.
To reverse a conviction based on ineffective assistance of counsel, an
appellant must demonstrate both that trial counsel’s conduct fell below an objective standard
of reasonableness and that the errors were serious enough to create a reasonable probability
that, but for the errors, the result of the trial would have been different.
Strickland v.
Washington
,
concerning a prior conviction does not automatically constitute ineffective assistance of
counsel.
State v. Barksdale
, 2d Dist. Montgomery No. 25320,
II. Maximum sentence May’s second assignment of error states:
If the jury’s conviction under
It cannot be disputed that these two statutes are in irreconcilable conflict since
the maximum sentence authorized for a third degree felony OVI under
Owen
at ¶ 29.
May was convicted of violating
person from driving a vehicle “under the influence of alcohol, a drug of abuse, or a
combination of them.” A trial court is required to sentence such an offender under R.C.
Chapter 2929, except as otherwise authorized or required by
offense, the jury did not make (and was not asked to make) a finding under
offense.
(2) If the offender is being sentenced for a third degree felony OVI offense *
* *, the court shall impose upon the offender a mandatory prison term of one,
two, three, four, or five years if the offender also is convicted of or also
pleads guilty to a specification of the type described in [R.C.] 2941.1413
* * * or shall impose upon the offender a mandatory prison term of sixty days
or one hundred twenty days as specified in [
addresses third-degree felony OVI sentencing. It provides:
If the offender is being sentenced for a third or fourth degree felony OVI
offense under division (G)(2) of
maximum sentence of five years for a third-degree felony OVI offense, because the statute
states that the additional prison term may be any duration stated in
impose an additional prison term for a third-degree felony OVI offense, with a maximum
aggregate sentence of five years. However, under
III.
Properly construed,
trial court. “Failure to raise at the trial court level the issue of the constitutionality of a
statute or its application, which issue is apparent at the time of trial, constitutes a waiver of
such issue.”
State v. Awan
,
they lack merit. Legislative enactments enjoy a strong presumption of constitutionality, and
they will be upheld unless proven, beyond a reasonable doubt, to be unconstitutional.
State
v. Romage
, Slip Op. No.
that the statute’s potential application reaches a significant amount of constitutionally
protected activity.
Romage
at ¶ 8;
State v. Winston
, 2d Dist. Montgomery No. 23897,
constitutionally protected conduct may be held facially invalid even if they also have
legitimate application.’”
Id
., quoting
Houston v. Hill
, 482 U.S. 451, 459, 107 S.Ct. 2502,
2508, 96 L.Ed.2d 398, 410 (1987). A defendant may challenge a statute as being facially
overbroad in violation of the First Amendment “with no requirement that the person making
the attack demonstrate that his own conduct could not be regulated by a statute drawn with
the required narrow specificity.”
Broadrick v. Oklahoma
,
held that
that is inherently threatening to the police officer.” She relies on the doctrine of ejusdem
generis to argue that “another bodily substance” must be of the same kind as blood, semen,
urine, and feces (substances identified in the statute), all of which she asserts are inherently
threatening because they contain infectious bacteria or dangerous viruses. May argues that,
on its face,
overbroad. The language of the statute reflects an intent to prohibit harassment of a law
enforcement officer by means of bodily substances. On its face, the statute does not require
physical harm to the officer, and we glean no legislative intent to limit
IV. Jury Instruction Regarding Drug of Abuse
{¶ 41} May’s fourth assignment of error states:
The trial court erred and/or abused its discretion, denying Appellant a fair trial by failing to require that the State prove that her driving was impaired by the combination of alcohol consumed and taking the prescribed medication. In her fourth assignment of error, May claims that the trial court erred in
instructing the jury that Cymbalta is a drug of abuse and that she could be found guilty of driving under the influence of a drug of abuse when there was no evidence that May’s taking of the prescription drug caused any impairment. Before the court instructed the jury, defense counsel objected to the trial
court’s inclusion of the phrase “drug of abuse, or a combination of them” in its definition of the OVI charge. Defense counsel argued that while May admitted to using Cymbalta with alcohol, there was no evidence about the effects of Cymbalta. The trial court rejected defense counsel’s objection and instructed the jury that, before finding May guilty of OVI, it must find beyond a reasonable doubt that May “did operate any vehicle within the State of Ohio when at the time of the operation the Defendant was under the influence of alcohol, a drug of abuse, or a combination of them * * *.” The court instructed the jury that Cymbalta is a “drug of abuse.” A “drug of abuse” means “any controlled substance, dangerous drug as
defined in section 4729.01 of the Revised Code, or over-the-counter medication that, when
taken in quantities exceeding the recommended dosage, can result in impairment of
judgment or reflexes.”
is based on driving under the influence of medication, the State must do more than simply
present evidence that the defendant has taken the medication and shows signs of impairment.
The United States Food and Drug Administration has approved more than a thousand
prescription drugs (which are “drugs of abuse” under Ohio law), all of which may have any
number of different side effects.
See
Full FDA Prescription Drug List,
http://www.medilexicon.com/drugsearch.php?z=true
(accessed Mar.
10,
2014);
Drugs@FDA, http://www.accessdata.fda.gov/scripts/cder/drugsatfda/index.cfm (accessed
Mar. 10, 2014). Not all side effects involve the impairment of judgment or reflexes.
Although some medications may be familiar to some jurors, the various physiological effects
of different medications is outside the common knowledge of most jurors and many trial
judges.
The essence of
under the influence. It is certainly not intended to criminalize the operation of a vehicle by
a person taking a cholesterol or blood pressure medication, let alone an anti-narcoleptic or
ADHD prescription, unless that drug negatively influences the defendant’s driving abilities.
And in many situations, especially those involving prescription drugs, this can only be
proved by direct testimony linking the influence of the drug to the driving. This could be
established through the testimony of an expert who is familiar with the potential side effects
of the medication, or perhaps of a layperson (such as a friend or family member) who
witnessed the effect of the particular drug on the defendant-driver.
We therefore conclude that, in order to establish a violation of
operating a vehicle while being negatively influenced by some substance (as opposed to, for
example, a mental or physical condition). Thus, pursuant to
State v. Gardner
, 118 Ohio
St.3d 420,
by which the offense was committed, one of which is invalid, a general verdict of conviction
is not automatically set aside due to the erroneous instruction.
Hedgpeth v. Pulido
, 555
U.S. 57,
Although the jury instructions incorrectly stated that Viagra is a controlled substance, they also correctly stated that marijuana, cocaine, ecstacy, and Vicodin are controlled substances. Thus, if the jury convicted [co-defendant] of conspiring to distribute any of these, his conviction should stand. Under this analysis, [co-defendant’s] argument fails because, as explained above, he was not implicated by the evidence presented at trial regarding Viagra. He does not identify one instance at trial where evidence connected him to the trafficking of Viagra. Rather, evidence concerning [his] participation in the * * * conspiracy focused only on marijuana and cocaine. For these reasons, the instruction, while erroneous, does not warrant reversal of his convictions.
Id . at 653. Compare U.S. v. Kurlemann , 736 F.3d 439 (6th Cir.2013) (jury instruction erroneously allowing “half-truths” as an alternative means of violating false statements statute was not harmless where that theory was “front and center” during the trial, including closing arguments). Under the particular facts of this case, we conclude that the trial court’s
erroneous instructions regarding Cymbalta was harmless.
The State presented
overwhelming evidence that May drove her vehicle while under the influence of alcohol.
May’s driving was erratic prior to the traffic stop, and her appearance, her combative and
disruptive behavior toward the officers, her refusal to take sobriety tests, and the
“exceedingly strong” odor of an alcoholic beverage all indicated that May was driving under
the influence of alcohol. May admitted to the police that she had consumed two 16-ounce
beers. In addition, the testimony and counsels’ arguments did not emphasize the
consumption of a drug of abuse. The State’s opening and closing arguments did not
mention Cymbalta; instead, the State repeatedly asserted that the evidence established that
May had driven under the influence of alcohol. Accordingly, we conclude that, although
the trial court should have excluded “drug of abuse” and Cymbalta from its jury instructions,
the inclusion of those instructions did not affect May’s conviction under
V. Conclusion The trial court’s prison sentence will be reversed and the matter will be
remanded for resentencing on that issue. In all other respects, the trial court’s judgment will be affirmed.
. . . . . . . . . .
DONOVAN, J., concurs.
HALL, J., concurring: I agree with the disposition of the assignments of error in this appeal. I write
separately to express my disagreement with the following sentence: “We agree with
[appellant] that, when a prosecution under
used in ¶ 46 and ¶ 48, but the legal standard for sufficiency applies to any “drug of
abuse,” which includes “any controlled substance, dangerous drug * * * , or over-the-counter
medication that, when taken in quantities exceeding the recommended dosage, can result in
impairment of judgment or reflexes.”
In order to prove that appellant was under the influence of a drug of abuse, appellee was required to prove that appellant’s “faculties were appreciably impaired” by the consumption of a drug of abuse. State v. Lowman (1992),82 Ohio App.3d 831 , 836. In the prosecution of an offense under this provision, the amount of a substance in the appellant's body is only of secondary interest. See City of Newark v. Lewis (1988),40 Ohio St.3d 100 , 104. “It is the behavior of the defendant which is the crucial issue. * * * The test results [of presence of a drug in blood], if probative, are merely considered in addition to all other evidence of impaired driving in a prosecution for this offense.”
State v. Dixon
, 12th Dist. Clermont No. CA2001-01-012,
exhibited clues of impairment on two admissible field-sobriety tests, he had bloodshot eyes,
an officer discovered marijuana on the defendant’s person, and laboratory results of a urine
sample indicated that the defendant had consumed marijuana. The evidence was sufficient
even though no expert evidence was submitted by the State to correlate the amount of
metabolite with timing of ingestion or a level of impairment. Other cases supporting this
notion include
State v. Dearth
, 4th Dist. Ross No. 09CA3122,
any, drug, medicine, or substance the defendant consumed no matter how impaired. In
State v. Collins
, 9th Dist Wayne No. 11CA0027,
ability to impair one’s faculties, it might behoove the State to present some evidence of the drug’s influence on human functionality. But we should not endorse a blanket rule on the subject when the issue is not before us. With the exceptions I have noted, I concur.
Copies mailed to:
Andrew T. French
Robert L. Mues
A. Mark Segreti, Jr.
Hon. Barbara P. Gorman
Notes
[1] This requirement does not extend to violations of
[2] We did not identify the nature of the drugs in our opinion, and we therefore do not know whether such evidence was presented in the trial.