STATE OF OHIO, PLAINTIFF-APPELLEE, v. GAIL M. WIESER, DEFENDANT-APPELLANT.
CASE NO. 1-18-15
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
September 10, 2018
2018-Ohio-3619
Appeal from Lima Municipal Court Trial Court No. 17TRC09050-A & B Judgments Affirmed
Michael J. Short for Appellant
John R. Payne for Appellee
{¶1} Defendant-Appellant, Gail M. Wieser, appeals the March 1, 2018 judgments of the Lima Municipal Court finding her guilty of OVI and failure to maintain control of her vehicle. On appeal, Wieser claims that her OVI conviction is not supported by sufficient evidence and is against the manifest weight of the evidence. Wieser also asserts that she was denied her Constitutional right to be tried by an impartial, unprejudiced, and unbiased tribunal when the trial court made a procedural error at trial.
Procedural History
{¶2} On August 3, 2017, a complaint was filed against Wieser in Lima Municipal Court alleging that she committed the offenses of OVI, in violation of
{¶3} On February 27, 2018, a bench trial was held on the matter, where the following testimony was elicited. Police Chief Redick of the American Township Police Department testified that he received a dispatch on August 2, 2017, at approximately 9:56 a.m., regarding a motor vehicle accident at the intersection of Eastown Road and Market Street in Lima, Ohio. He was further advised by dispatch of a possible injury and that a hit skip may have occurred. Upon his
{¶4} Chief Redick investigated further and found that the tire marks on the road left from Wieser‘s vehicle and the lack of any debris indicated that Wieser‘s version of the events was not accurate. Upon interacting with her, Chief Redick also noticed that Wieser‘s eyes were “pinpoint” and her speech was slow and had a slur. (Doc. No. 10 at 6). Wieser was transported to the hospital to be examined for injuries.
{¶5} Officer Sarchet of the American Township Police Department also responded to the scene of the accident. He testified that he completed a “Traffic Crash Report,” which was admitted as the prosecution‘s Exhibit A at trial. Officer Sarchet concluded that:
[Wieser‘s vehicle] was eastbound in the 2900 Block of W. Market St. when it went left of center and up and over the curb where it struck a dirt mound causing it to go airborne. As it was airborne, it struck a tree in the front yard of 2810 W. Market St. approximately six and a half [feet] off of the ground. As [Wieser‘s vehicle] came back to the ground, it accelerated rapidly, continuing eastbound crossing the driveway at 2810 then veered sharply to the right and came to rest on the southwest corner of W. Market St. and S. Eastown Rd. over the curb.
{¶6} Sergeant Dyer of the Ohio State Highway Patrol was dispatched to the hospital where Wieser was transported after the accident. Sergeant Dyer testified that Wieser‘s pupils were slightly dilated, even though the room was well lit. He also observed Wieser‘s neck and head movements were lethargic, and her speech was slow and slurred consistent with being “medicated.” (Doc. No. 10 at 12). Sergeant Dyer further testified that after being advised that she was going to be charged with an OVI, Wieser submitted to a urine test. Sergeant Dyer testified that he electronically received the notarized “Report of Analysis Urine Drug Toxicology” from the Ohio Department of Health. The results of the urine test were admitted as prosecution‘s Exhibit B at trial, and indicated that Wieser‘s urine tested positive for Zolpidem (also known as Ambien) and Butalbital. Sergeant
{¶7} At the close of the prosecution‘s case, Wieser‘s trial counsel moved for a
{¶8} The trial court overruled the renewed
{¶9} Wieser filed notices of appeal from these judgments, assigning the following assignments of error.
ASSIGNMENT OF ERROR NO. 1
THE CONVICTION WAS BASED UPON INSUFFICIENT EVIDENCE.
ASSIGNMENT OF ERROR NO. 2
THE CONVICTION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
ASSIGNMENT OF ERROR NO. 3
THE DEFENDANT WAS DENIED DUE PROCESS AS SHE WAS NOT TRIED BEFORE AN UNBIASED TRIBUNAL.
{¶10} For ease of discussion, we elect to address the first two assignments of error together.
First and Second Assignments of Error
{¶11} In these assignments of error, Wieser only challenges her OVI conviction and does not assign any error pertaining to her failure to maintain control of her vehicle conviction. Specifically, Wieser argues her OVI conviction is not supported by sufficient evidence and is against the manifest weight of the evidence. She contends that the prosecution failed to prove beyond a reasonable
Standard of Review
{¶12} Whether there is legally sufficient evidence to sustain a verdict is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Sufficiency is a test of adequacy. Id. When an appellate court reviews a record upon a sufficiency challenge, ” ‘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. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
{¶13} By contrast, in reviewing whether a verdict was against the manifest weight of the evidence, the appellate court sits as a “thirteenth juror” and examines the conflicting testimony. Thompkins at 387. In doing so, this Court must review the entire record, weigh the evidence and all of the reasonable inferences, consider the credibility of witnesses and determine whether in resolving conflicts in the evidence, the factfinder “clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” Id.
{¶14} Wieser was found guilty of OVI in violation of
No person shall operate any vehicle * * * within this state, if, at the time of operation * * * [t]he person is under the influence of alcohol, a drug of abuse, or combination of them.
{¶15} At the outset we note that there is no dispute as to whether Wieser was operating a vehicle. Moreover, Wieser told Officer Sarchet that she was “on a sleeping pill,” and the toxicology report admitted at trial verified that Zolpidem (Ambien) was found in her urine. On appeal, Wieser maintains that there was insufficient evidence to support her conviction because the prosecution failed to present testimony establishing that Zolpidem (Ambien) is a “drug of abuse” within the meaning of the statute.
{¶16} “The definition of ‘drug of abuse’ is imported from
{¶17} In our view, it would generally be the better practice for the prosecution to introduce testimony on each and every statutory element of the offense in any criminal case, including any statutory terms such as “drug of abuse,” the definitions of which are necessary to establish those elements. Nevertheless, Wieser does not cite to any authority requiring the prosecution to present evidence that Zolpidem (Ambien) is a controlled substance in this instance. To the contrary, several appellate districts have held that the issue of whether a drug is a controlled substance is a question of law for the court, not a question of fact for the jury—at least for purposes of an OVI charge such as the one before us. See State v. Murphy, 10th Dist. Franklin Nos. 05AP-910, 05AP-911, 2006-Ohio-4341, ¶ 26 (finding the city presented sufficient evidence that the defendant had ingested a “drug of abuse” because both nordiazepam and temazepam are schedule IV drugs under
{¶18} Based on the aforementioned authority, we find Wieser‘s argument that there was insufficient evidence supporting her OVI conviction because the prosecution was required to present evidence establishing that Zolpidem (Ambien) is a “drug of abuse” to be without merit. With regard to the remaining portion of our analysis, the issue then becomes whether the greater amount of credible evidence offered at trial demonstrated Wieser‘s use of Zolpidem impaired her driving.
{¶19} At trial, Chief Redick, Officer Sarchet, and Sergeant Dyer, who together have multiple decades of experience in law enforcement, each testified to observing Wieser to be impaired during their interactions with her immediately after the accident. Specifically, Chief Redick testified that Wieser‘s eyes were “pinpoint” and her speech was slow and had a slur. Officer Sarchet described Wieser‘s speech as slurred and her movements as slow. And Sergeant Dyer testified that Wieser‘s pupils were slightly dilated, her neck and head movements were lethargic, and her speech was slow and slurred consistent with being “medicated.”
{¶21} Based on the foregoing, we conclude that, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found Wieser‘s impairment by a drug of abuse while driving her vehicle had been proven beyond a reasonable doubt so as to constitute sufficient evidence of the offense. Moreover, in our review of the record together with all of the reasonable
Third Assignment of Error
{¶22} In her third assignment of error, Wieser argues that she was deprived of her Constitutionally protected right to a trial before an impartial, unprejudiced, and unbiased tribunal. Wieser alleges this claim based upon the trial court prematurely finding her guilty when her counsel moved for a
Relevant Law
{¶23} A criminal trial before a biased judge is fundamentally unfair and denies a defendant due process of law. State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, ¶ 34 (2002). Judicial bias has been described by the Supreme Court of Ohio as “a hostile feeling or spirit of ill will or undue friendship or favoritism toward one of the litigants or his attorney, with the formation of a fixed anticipatory judgment on the part of the judge, as contradistinguished from an open state of mind which will be governed by the law and the facts.” State ex rel. Pratt v. Weygandt, 164 Ohio St. 463 (1956), paragraph four of the syllabus.
{¶24} The record reveals that the trial court apologized for the untimely finding of guilt immediately after being notified of the procedural error, clarified that it was denying the
{¶25} While we acknowledge that the trial court erred when making a finding of guilt before the defense rested its case, there is no indication in the record that the defense had planned to present additional evidence, but instead intended to rest on the evidence presented by the prosecution. Therefore, to the extent that Wieser claims, “given the court‘s finding, presenting [her own] evidence would likely be a futile effort,” such a contention is purely speculative. Rather, “opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated
{¶26} Here, the trial court made the premature finding of guilt after hearing all the evidence presented. Other than the mere occurrence of the procedural error, Wieser has not advanced any evidence of judicial bias. Accordingly, under these circumstances, we are unable to conclude that the trial court‘s mistake in this instance rose to the level of judicial bias or impaired the validity of Wieser‘s conviction. In other words, we do not find evidence in the record which overcomes the presumption that the trial court was not biased or prejudiced against Wieser or that establishes the trial court‘s error denied Wieser her right to due process. Therefore, the third assignment of error is overruled.
{¶27} For all these reasons, the assignments of error are overruled and the judgments are affirmed.
Judgments Affirmed
WILLAMOWSKI, P.J. and PRESTON, J., concur.
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