STATE OF OHIO, Plaintiff-Appellee -vs- NICOLE YOUNG, Defendant-Appellant
Case No. 16CA24 16CA25
COURT OF APPEALS KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT
July 31, 2017
2017-Ohio-7051
Hon. W. Scott Gwin, P.J.; Hon. John W. Wise, J.; Hon. Craig R. Baldwin, J.
CHARACTER OF PROCEEDING: Criminal appeal from the Mt. Vernon Municipal Court, Case Nos. 16CRB00871 & 16TRC03690; JUDGMENT: Affirmed in part; Reversed and Remanded in part
For Plaintiff-Appellee
P. BROEREN, JR. Law Director City of Mount Vernon 5 North Gay Street, Ste. 222 Mount Vernon, OH 43050
For Defendant-Appellant
CHRISTINA REIHELD P.O. Box 532 Danville, OH 43014
{¶1} Defendant-appellant Nicole A. Young [“Young“] appeals her OVI and Possession of Drug Abuse Instruments convictions after a jury trial in the Mount Vernon, Knox County, Ohio Municipal Court.
Facts and Procedural History
{¶2} In the early morning of September 29, 2016, Young encountered Brian Daniel, a security officer at Knox Community Hospital, which is located in the City of Mount Vernon, Ohio. Mr. Daniel received a report of a van with two women inside in a restricted area of the hospital parking lot. Mr. Daniel spoke with Young and then watched her drive away. Based on his concerns from their interaction, he contacted the Mount Vernon Police Department about Young.
{¶3} A short time later, officers from the police department found Young blocking the drive-thru lane at Long John Silver‘s restaurant on Coshocton Avenue in the City of Mount Vernon. Young acted strangely, smelled of alcohol, and appeared to be under the influence of a stimulant. Young admitted to drinking beer, and the police found an opened beer in her vehicle. Officer Jessica Butler asked her to perform field sobriety tests, and Young performed them poorly. Butler arrested Young for OVI. Young requested a breath test.
{¶4} During a search of Young‘s person, Butler located crushed pills, which Young identified as Ritalin, a stimulant. Before towing Ms. Young‘s vehicle from the drive-thru area, Officer Zach Miller conducted an administrative inventory of the vehicle. He found, syringes, a glass pipe with white residue and a glass bowl with white residue, in a bag with a prescription pill bottle belonging to Young.
{¶6} Young was charged with Operating A Motor Vehicle Under the Influence of Alcohol and/or a Drug of Abuse a violation of
{¶7} At trial Young testified that she had admitted to the officers that she had taken her prescribed Ritalin at least nine hours previously, and had taken a sip of alcohol perhaps eight hours before the stop. When the officer asked her to do field sobriety tests, Young told the officer that she could not do them, but did not elaborate. Young explained at trial that she had many problems with her feet that create an inability to balance.
{¶9} The trial court sentenced Young to fifty days incarceration on the drug abuse instruments conviction, thirty days on the drug paraphernalia conviction (both with credit for thirty-five days already served, both sentences to be served concurrently), and $25 and costs on the open container conviction. The trial court merged the two operating a vehicle while intoxicated charges, and sentenced Young to a $700 fine, one hundred eighty days in jail with thirty five days credit concurrent to the other sentences and one hundred thirty days suspended, a two year license suspension with limited driving privileges, ninety days impoundment of Young‘s vehicle, and two years of probation, including terms such as attendance at AA or MA meetings, an alcohol and drug assessment, and random drug and alcohol screens.
Assignments of error,
{¶10} Young presents two assignments of error for our review,
{¶11} “I. APPELLANT‘S CONVICTIONS FOR OVI WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE BECAUSE (I) APPELLANT OFFERED EVIDENCE THAT HER IMPAIRMENT WAS ACTUALLY RELATED TO DEFORMITIES OF HER FEET, HER TIREDNESS, AND HER INJURY TO HER EYE, AND NOT TO USE OF DRUGS OR ALCOHOL, AND (2) THE STATE FAILED TO PROVE THAT APPELLANT UNEQUIVOCALLY REFUSED A CHEMICAL TEST.
I.
{¶13} In her first assignment of error, Young contends that her conviction for OVI was against the manifest weight of the evidence, specifically that she offered an alternative explanation for her impairment that was not related to use of alcohol and drugs and that her refusal was not “unequivocal.”
{¶14} Our review of the constitutional sufficiency of evidence to support a criminal conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), which requires a court of appeals to determine whether “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id.; see also McDaniel v. Brown, 558 U.S. 120, 130 S.Ct. 665, 673, 175 L.Ed.2d 582(2010) (reaffirming this standard); State v. Fry, 125 Ohio St.3d 163, 926 N.E.2d 1239, 2010–Ohio–1017, ¶ 146; State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d 296, 2010–Ohio–2720, ¶ 68.
{¶15} Weight of the evidence addresses the evidence‘s effect of inducing belief. State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), superseded by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, 1997-Ohio–355. Weight of the evidence concerns “the inclination of the
{¶16} When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a “‘thirteenth juror‘” and disagrees with the fact finder‘s resolution of the conflicting testimony. Id. at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). However, an appellate court may not merely substitute its view for that of the jury, but must find that “‘the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.‘” State v. Thompkins, supra, at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist. 1983). Accordingly, reversal on manifest weight grounds is reserved for “‘the exceptional case in which the evidence weighs heavily against the conviction.‘” Id.
“[I]n determining whether the judgment below is manifestly against the weight of the evidence, every reasonable intendment and every reasonable presumption must be made in favor of the judgment and the finding of facts. * * *
“If the evidence is susceptible of more than one construction, the reviewing court is bound to give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the verdict and judgment.”
Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).
{¶17} Appellant was convicted of a violation of Operating A Motor Vehicle Under the Influence of Alcohol and/or a Drug of Abuse a violation of
{¶18} The defendant‘s ability to perceive, make judgments, coordinate movements, and safely operate a vehicle is at issue in the prosecution of a defendant under such section. It is the behavior of the defendant that is the crucial issue. Newark v. Lucas, 40 Ohio St.3d 100, 104, 532 N.E.2d 130(1988).
{¶19} The evidence produced at trial supports the inference that Young‘s consumption of alcohol, a drug of abuse, or a combination of them on the night in question adversely affected her actions, reactions, conduct, movement or mental processes or impaired her reactions to an appreciable degree, thereby lessening her ability to operate her vehicle on the night in question.
{¶20} The initial call was for Young acting erratically and then driving from a hospital parking lot. Young admitted to drinking alcohol. There was an open can of beer
{¶21} Young was also convicted of OVI refusal. Young argues that she initially refused the urine test; however, she later changed her mind.
{¶22} The jury heard all of the evidence regarding Young‘s retraction of her initial refusal. The court‘s instructions permitted the jury to determine, as the finder of fact, whether defendant refused to take the test.
{¶23} The trial court provided the jury with a legally correct refusal instruction, and the instruction allowed the jury, as the ultimate finder of fact, to determine whether or not Young refused to submit to a chemical test of her urine. State v. Munye, 10th Dist. Franklin No. 14AP-744, 2015-Ohio-3362, ¶20.
{¶24} In the case of In re Brooks (1971), 27 Ohio St.2d 66, 271 N.E.2d 810(1971) the Supreme Court held:
The suspension, pursuant to
R.C. 4511.191 , of the driver‘s license of a motorist, under arrest for the offense of driving a motor vehicle while under the influence of alcohol, for refusing, upon request of a police officer, to submit to a chemical test for alcohol, is not precluded by the fact that after such refusal, but within two hours of the alleged driving violation, the motorist stated that he would submit to the test.
Syllabus paragraph two.
{¶26} What constitutes an immediate retraction of a refusal is a question of fact, and “due deference must be given to the trial judge‘s determination of whether a refusal has been timely retracted.” Bowman v. McCullion, 21 Ohio App.3d 138, 139, 486 N.E.2d 1225 (9th Dist. 1985). In Bowman, the court found no error in the trial court‘s conclusion that the arrestee had not retracted his refusal when, five minutes after first refusing, the arrestee indicated he had changed his mind and wanted to take the test. In so holding, the court recognized that the Webster‘s Third New International Dictionary (1961) 1129, defines “immediately” as “without interval of time; without delay.” Id. Accord, Ray v. Ohio Bur. Motor Vehicles, 5th Dist. Stark No. CA-9381, 1993 WL 500345 (Nov. 29, 21993); State v. Huffman, 6th Dist. Wood No. WD-05-007, 2005-Ohio-6005.
{¶27} Viewing the evidence in a light most favorable to the prosecution, we conclude that a reasonable person could have found beyond a reasonable doubt that Young Operated A Motor Vehicle Under the Influence of Alcohol and/or a Drug of Abuse a violation of
{¶28} As an appellate court, we are not fact finders; we neither weigh the evidence nor judge the credibility of witnesses. Our role is to determine whether there is relevant, competent and credible evidence, upon which the fact finder could base his or her judgment. Cross Truck v. Jeffries, 5th Dist. Stark No. CA–5758, 1982 WL 2911(Feb. 10, 1982). Accordingly, judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction, 54 Ohio St.2d 279, 376 N.E.2d 578(1978). The Ohio Supreme Court has emphasized: “‘[I]n determining whether the judgment below is manifestly against the weight of the evidence, every reasonable intendment and every reasonable presumption must be made in favor of the judgment and the finding of facts. * * *.‘” Eastley v. Volkman, 132 Ohio St.3d 328, 334, 972 N.E. 2d 517, 2012-Ohio-2179, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978). Furthermore, it is well established that the trial court is in the best position to determine the credibility of witnesses. See, e.g., In re Brown, 9th Dist. No. 21004, 2002–Ohio–3405, ¶ 9, citing State v. DeHass, 10 Ohio St .2d 230, 227 N.E.2d 212(1967).
{¶29} Ultimately, “the reviewing court must determine whether the appellant or the appellee provided the more believable evidence, but must not completely substitute its judgment for that of the original trier of fact ‘unless it is patently apparent that the fact finder lost its way.‘” State v. Pallai, 7th Dist. Mahoning No. 07 MA 198, 2008-Ohio-6635, ¶31,
{¶30} The weight to be given to the evidence and the credibility of the witnesses are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212(1967), paragraph one of the syllabus; State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶118. Accord, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983).
{¶31} The jury as the trier of fact was free to accept or reject any and all of the evidence offered by the parties and assess the witness‘s credibility. “While the jury may take note of the inconsistencies and resolve or discount them accordingly * * * such inconsistencies do not render defendant‘s conviction against the manifest weight or sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No. 99AP-739, 1999 WL 29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09-1236, 1996 WL 284714 (May 28, 1996). Indeed, the trier of fact need not believe all of a witness’ testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin No. 02AP-604, 2003-Ohio-958, ¶21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP-1238, 2003-Ohio-2889, citing State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although the
{¶32} We find that this is not an “‘exceptional case in which the evidence weighs heavily against the conviction.‘” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541, quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The jury neither lost their way nor created a miscarriage of justice in convicting Young of the charges.
{¶33} Based upon the foregoing and the entire record in this matter, we find Young‘s convictions are not against the sufficiency or the manifest weight of the evidence. To the contrary, the jury appears to have fairly and impartially decided the matters before them. The jury as the trier of fact can reach different conclusions concerning the credibility of the testimony of the state‘s witnesses and Young. This court will not disturb the jury‘s finding so long as competent evidence was present to support it. State v. Walker, 55 Ohio St.2d 208, 378 N.E.2d 1049 (1978). The jury heard the witnesses, evaluated the evidence, and was convinced of Young‘s guilt.
{¶34} Finally, upon careful consideration of the record in its entirety, we find that there is substantial evidence presented which if believed, proves all the elements of the crimes beyond a reasonable doubt.
{¶35} Young‘s first assignment of error is overruled.
II.
{¶36} In her Second Assignment of Error, Young alleges that there was not sufficient evidence to find Young guilty of Possession of Drug Abuse Instruments. We agree.
{¶38}
{¶40} In this case, an officer located hypodermic needles in a black bag in Young‘s vehicle. The officer, however, also clearly stated that he could not tell if the hypodermic needles had actually been used for anything. [T. at 174]. No other evidence was introduced by the state that the needles had been used, that Young had any track marks from use from any needle on her, that any of the prescription drugs located in the vehicle could be illegally injected using a needle, or that Young had used the needles to prepare any drug for administration or use. Since proof of this element was missing, the prosecution has failed in this case.
{¶41} Young‘s second assignment of error is sustained.
By Gwin, P.J.,
Wise, John, J., and
Baldwin, J., concur