{¶ 2} Just after 6 p.m. on January 24, 2005, Michael Hren was driving east on Central College Road when he noticed that the Ford Sport Trac in front of him was drifting from one side of the lane to the other. Concerned by this erratic driving, Hren called 911 on his cellular telephone and told the 911 operator that he was driving behind a motorist who appeared to be intoxicated. The 911 operator dispatched Officer Scott Anderson of the New Albany Police Department to Hren's location.
{¶ 3} While approaching the intersection of Central College Road and State Route 605, Officer Anderson activated his cruiser's video recorder. As shown on the resulting tape, Officer Anderson overtook Hren's vehicle at the intersection and, following Hren's directions, turned south onto State Route 605. Almost immediately, Officer Anderson encountered the Sport Trac. Officer Anderson observed the Sport Trac go left of the center double-yellow lines, touch the white line at the right edge of the road, and drive 44 m.p.h. through a 25 m.p.h. zone. When the Sport Trac slowed for a red stoplight, Officer Anderson could see children moving around in the vehicle. In fact, one boy rolled down the rear window and waved at Officer Anderson.
{¶ 4} Although the Sport Trac pulled into the left turn lane at the stoplight, it continued straight on State Route 605. The Sport Trac then pulled into the parking lot at the rear of the New Albany Police Station and stopped. Officer Anderson approached the vehicle and asked the driver, Murphy, for her driver's license and registration. Murphy had difficulty finding her license and registration and, when she spoke, her voice was raspy and slow and her speech was slurred. As Officer Anderson stood waiting, one of the two boys told him that Murphy had been falling asleep as she drove.
{¶ 5} Officer Anderson viewed Murphy's license and registration and then asked her to exit her vehicle. Once Murphy was outside the Sport Trac, Officer Anderson conducted a horizontal gaze nystagmus test. Based upon the results of that test and the abnormal constriction of Murphy's pupils, Officer Anderson concluded that Murphy was under the influence of either alcohol or some drug.
{¶ 6} Officer Anderson placed Murphy in the backseat of his cruiser and asked permission to search her purse and vehicle. Murphy consented. During his search of Murphy's purse, Officer Anderson found three and one-half small, blue pills in a side pocket. Next, Officer Anderson searched the Sport Trac. While he did so, Officer Carl McNeal watched Murphy through the cruiser's passenger window. Officer McNeal observed Murphy fall asleep several times, rousing only when her head hit the window or the cage separating the front and back seats of the cruiser.
{¶ 7} When Officer Anderson returned to his cruiser, Murphy told him that she needed to use the restroom. Officer Anderson escorted her into the police station and, because it was cold and snowy, decided to remain in the station to conduct additional field sobriety tests. At trial, the city played a videotape from the recorder in the station's booking area that showed Officer Anderson directing Murphy through the one-leg-stand, walk-and-turn, and alphabet tests. Murphy displayed poor balance while completing these tests. Based upon Murphy's erratic driving, constricted and droopy eyes, slurred speech, sleepiness, and general unsteadiness, Officer Anderson arrested her.
{¶ 8} In the course of completing the paperwork incidental to Murphy's arrest, Officer Anderson looked through the Physicians' Desk Reference to identify the small, blue pills he had found in Murphy's purse. The videotape shows Murphy examining the pills and saying, "[t]hose are Valium."
{¶ 9} Before leaving the police station, Murphy gave a urine sample, which Officer Anderson collected. Officer Anderson also served Murphy with three complaints he had sworn out: (1) for operating a vehicle in violation of R.C.
{¶ 10} The day after Murphy's arrest, Officer Anderson delivered her urine sample to the Ohio State University Medical Center Toxicology Laboratory ("OSU") for drug testing. Murphy's urine tested positive for two benzodiazepines — nordiazepam and temazepam.
{¶ 11} On July 19, 2005, a jury trial began on the three charges against Murphy. Hren, Officer Anderson, Officer McNeal, and three OSU employees testified, and the trial court accepted into evidence the videotape that depicted Murphy's driving, the traffic stop, the field sobriety tests, and, finally, the processing of Murphy's arrest. At the conclusion of the evidence, the jury found Murphy guilty of endangering children and possession of drugs. The jury was unable to return a verdict on the OVI charge, and thus, the trial court entered a mistrial on that charge.
{¶ 12} With regard to the possession of drugs conviction, the trial court sentenced Murphy to pay a $250 fine and court costs and serve 60 days in jail. With regard to the endangering children conviction, the trial court sentenced Murphy to pay a $250 fine and court costs and serve 180 days in jail. The trial court ordered Murphy to serve the jail terms consecutively, for a total of 240 days. On August 30, 2005, the trial court reduced Murphy's convictions and sentences to judgment.
{¶ 13} Murphy now appeals from the August 30, 2005 judgments, and assigns the following errors:
1. The trial court committed plain error and error in giving the confusing, erroneous jury instructions on the charge of child endangering including changing the identify [sic] of the offense from a charge of child endangering in violation of R.C.
2. The trial court committed plain error and error in omitting an essential element of the offense of child endangering in violation of R.C.
3. The trial court committed plain error in failing to instruct the jury that R.C.
4. The trial court erred in instructing the jury to consider reaching inconsistent jury verdicts over objection by instructing the jury "the charges set forth constitute separate and distinct matters. You must consider each charge and the evidence applicable to each charge separately and you must state your findings as to each charge uninfluenced by your verdict as to any other charge. The defendant may be found guilty or not guilty to any one or all of the offenses charged" when child endangering in violation of R.C.
5. The trial court erred in permitting inadmissible hearsay and violated Appellant's right to confront witnesses by admitting prejudicial statements purportedly [sic] by occupants in Appellant's car that Appellant was falling asleep, out of court statements by medics that Appellant's blood sugar was good, and committed plain error in allowing a police officer to state that he saw Valium in the Physicians Desk Reference, and allowing the prosecutor to misstate evidence in closing argument that the occupants of Appellant's car said that "Mommy — Mommy's asleep and hit her head on the steering wheel. Mom almost drove us into a ditch."
6. The jury's verdict finding Appellant guilty of drug abuse for possessing three and one half pills in her purse and for child endangering was not supported by the evidence and was against the manifest weight of the evidence. The trial court erred in admitting the pills into evidence without a proper foundation or identification. The trial court erred in overruling Appellant's Rule 29 motion.
7. Appellant failed to receive a fair trial as the result of ineffective assistance of counsel who failed to object to incorrect jury instructions on the endangering children charge which changed the identity of the offense from R.C.
8. The trial court abused its discretion in sentencing Appellant to maximum consecutive sentences without indicating it had considered R.C., 2922.22(A) [sic] and R.C. 292912(C) [sic] mitigating sentencing factors for misdemeanor offenses.
{¶ 14} We will first address Murphy's second assignment of error. By that assignment of error, she argues, in part, that the trial court committed plain error when it failed to instruct the jury on what constituted a "violation of division (A) of section
{¶ 15} "[A] trial court `must give all instructions that are relevant and necessary for the jury to weigh the evidence and discharge its duty as the factfinder.'" State v. Cornwell
(1999),
{¶ 16} However, this finding of error does not end our analysis. Because Murphy's attorney did not object to the omission of an instruction explaining R.C.
{¶ 17} Commission of an OVI offense in violation of R.C.
{¶ 18} We next turn to Murphy's sixth assignment of error, by which she argues, in part, that the evidence underlying her convictions is insufficient. Although we agree that the evidence is not sufficient to support Murphy's conviction for possession of drugs, we find that the evidence is sufficient to support her conviction for endangering children.
{¶ 19} The operative inquiry in a sufficiency of the evidence analysis is whether the evidence is adequate to sustain a verdict. State v. Thompkins (1997),
[E]xamine 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. 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. * * *
State v. Jenks (1991),
{¶ 20} A jury must convict a defendant of possession of drugs if the defendant "knowingly obtain[ed], possess[ed], or use[d] a controlled substance." R.C.
{¶ 21} In the case at bar, Murphy was charged with "knowingly obtain[ing], possess[ing], or us[ing] Valium, a schedule IV controlled substance, to wit: 3½ blue pills marked `DAN 5620' (identified as Valium) found inside her brown purse."1 Murphy does not dispute that Officer Anderson found the pills in her purse, but she argues that the city did not introduce admissible evidence to prove that the pills were Valium. However, we find otherwise because, as shown in the videotape, Murphy herself identified the pills, stating "[t]hose are Valium."
{¶ 22} Murphy next argues that the city did not introduce any evidence proving that Valium is a "controlled substance," i.e., a substance that appears in schedule IV or any other schedule. To support this argument, Murphy correctly points out that "Valium" is not listed in any schedule. In response, the city argues that the testimony of the three OSU employees established that Murphy's urine contained the "byproducts" of Valium, which are listed in schedule IV. We find the city's argument unavailing for two reasons. First, the OSU employees testified exclusively about the results of the urine analysis, not the components of the pills found in Murphy's purse. Second, and more importantly, the city misrepresents the OSU employees' testimony. Although the OSU employees stated that Murphy's urine contained nordiazepam and temazepam — both of which are depressants listed in schedule IV — the OSU employees never testified that nordiazepam and temazepam are "byproducts" of Valium. Significantly, none of the OSU employees even mentioned Valium, much less tied Valium to a substance contained in schedule IV or any other schedule. Because our review of the evidence discloses no other evidence proving that Valium is a "controlled substance," we conclude that the city failed to prove that element of the possession of drugs offense, and thus, Murphy's conviction is not based on sufficient evidence.
{¶ 23} By her sixth assignment of error, Murphy also argues that the city introduced insufficient evidence to prove that she endangered her children in violation of R.C.
{¶ 24} A jury must convict a defendant of endangering children if the defendant: (1) operates a vehicle within Ohio, (2) in violation of R.C.
{¶ 25} In the case at bar, Murphy first argues that the city failed to prove that her children, who were passengers in her Sport Trac, were younger than 18. However, the jury could rely upon the videotape to infer the approximate ages of the children. Based upon their appearances, all of the children were under ten years of age at the time of the incident.
{¶ 26} Second, Murphy argues that no evidence established that she had ingested a "drug of abuse." As used in the Revised Code, a "drug of abuse" is any "controlled substance" as that term is defined in R.C.
{¶ 27} Third, Murphy argues that the city failed to prove that she was "under the influence" of the depressants she ingested. A person is "under the influence" if he displays any abnormal mental or physical condition that results from imbibing a drug of abuse and that deprives the user of intellect and control that he would otherwise possess. State v. Vingino,
Belmont App. No. 05 BE 28,
{¶ 28} In the case at bar, Murphy's actions were those of a person both mentally and physically impaired. The videotape shows Murphy driving erratically — weaving, drifting outside her lane, and speeding. When Officer Anderson questioned Murphy and tested her sobriety, her speech was slow and slurred, her eyes constricted and droopy, and her balance poor. Even as Officer Anderson searched her vehicle, Murphy dozed off in the backseat of the cruiser. Further, the city introduced evidence to explain this impairment — testimony that Murphy's urine tested positive for nordiazepam and temazepam. Viewing this evidence in a light most favorable to the city, we conclude that a reasonable person could have found that Murphy was "under the influence" of the schedule IV depressants found in her system. Thus, we conclude that the city offered sufficient evidence to support Murphy's conviction for endangering children.
{¶ 29} Accordingly, we sustain Murphy's sixth assignment of error to the extent that it asserts error with regard to her possession of drugs conviction, but we otherwise overrule it.
{¶ 30} For the foregoing reasons, we overrule as moot Murphy's first, third, fourth, fifth, seventh, and eighth assignments of error. We sustain Murphy's second assignment of error to the extent that it asserts error in failing to instruct the jury on the meaning of R.C.
Judgments reversed and case remanded.
Bryant and Sadler, JJ., concur.