[Cite as State v. Hefflinger, 2017-Ohio-7100.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                        ERIE COUNTY


State of Ohio                                              Court of Appeals No. E-16-054

        Appellee                                           Trial Court No. TRC 1505688

v.

Suann R. Hefflinger                                        DECISION AND JUDGMENT

        Appellant                                          Decided: August 4, 2017

                                                    *****

        Laura E. Alkire, City of Huron Law Director, for appellee.

        Timothy H. Dempsey, for appellant.

                                                    *****

        JENSEN, P.J.

                                                 I. Introduction

        {¶ 1} Appellant, Suann Hefflinger, appeals the judgment of the Erie County

Municipal Court, sentencing her to 120 days in jail following a bench trial in which she

was found guilty of one count of operating a vehicle while under the influence of alcohol

or drug of abuse, one count of refusal to submit to chemical test, one count of failing to
stop for a school bus, and one count of failing to stop in an assured clear distance.

Finding no error, we affirm.

                          A. Facts and Procedural Background

       {¶ 2} The facts giving rise to the above-mentioned convictions occurred on the

morning of September 16, 2016. At approximately 7:06 a.m., appellant was operating

her automobile along Wahl Road in Margaretta Township, Erie County, when she

collided into the rear-end of a school bus, which was stopped at the time. As a result of

the collision, a complaint was filed with the trial court, charging appellant with one count

of operating a vehicle while under the influence of alcohol or drug of abuse in violation

of R.C. 4511.19(A)(1)(a) and (A)(2)(b), a misdemeanor of the first degree, one count of

refusal to submit to a chemical test in violation of R.C. 4511.19(A)(2), a misdemeanor of

the first degree, one count of failing to stop for a school bus in violation of R.C.

4511.75(A), a misdemeanor of the fourth degree, and one count of failing to stop in an

assured clear distance in violation of R.C. 4511.21(A), a minor misdemeanor.

       {¶ 3} Following pretrial, the matter proceeded to a bench trial. On the day of the

bench trial, appellant entered a plea of guilty as to the assured clear distance charge. The

trial court accepted the plea and found appellant guilty as to the charge. Thereafter, the

bench trial commenced.

       {¶ 4} The state called three witnesses during its case-in-chief. Its first witness was

the officer who responded to the accident, Jared Oliver. After arriving at the scene of the

accident, Oliver noticed that appellant’s vehicle had crashed into the rear-end of the




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school bus, and had lodged itself under the bus. Oliver questioned appellant, who

informed him that she ran into the school bus after falling asleep at the wheel. Oliver

went on to state that appellant told him that she was tired from her medication. Oliver

testified that appellant appeared to be very lethargic, had trouble comprehending what

had happened, and was disoriented as to where she was and where she was coming from.

       {¶ 5} Upon further questioning, Oliver indicated that he was “very familiar” with

appellant, having interacted with her in the past on several occasions. Based on his

familiarity with appellant and his observations of her condition at the scene of the

accident, Oliver suspected that appellant was under the influence of a narcotic.

Consequently, Oliver directed another officer, Trevor Harlow, to meet with appellant at

Firelands Regional Medical Center and perform a chemical test to test for the presence of

narcotics in her system.

       {¶ 6} Following appellant’s transfer to the hospital, Oliver conducted an

administrative inventory of appellant’s vehicle. During the inventory, Oliver found three

prescription bottles, two of which were empty. The third bottle contained 15 pills of

Clonazepam, which Oliver described as a scheduled substance. According to the label on

the bottle, appellant was prescribed 90 pills two weeks prior to the accident.

       {¶ 7} At the conclusion of Oliver’s testimony, the state called Harlow as its second

witness. Harlow testified that he reported to Firelands Regional Medical Center at

Oliver’s request. While at the hospital, Harlow attempted to conduct a urinalysis test to




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screen appellant for narcotics. After being informed of the potential consequences of the

urinalysis test, appellant refused to submit to the test.

       {¶ 8} Once appellant was released from the hospital, Harlow informed her that

Oliver was on his way with her prescription medications. Harlow then engaged appellant

in a conversation while the two were waiting for Oliver to arrive. The conversation was

recorded using Harlow’s body camera. During the conversation with Harlow, which was

admitted at trial, appellant stated that she knew she was not supposed to take her

medications and drive, but a “girl that she was mentoring” insisted that appellant drive

her home. Appellant later informed her neighbor that she took two pills, fell asleep in her

car, and subsequently attempted to drive home despite feeling drowsy.

       {¶ 9} As its third and final witness, the state called Kimberly Trimarche, the driver

of the school bus that was involved in the collision. Trimarche testified that she

witnessed appellant run into the rear end of the bus as she was stopped and waiting for a

student to board the bus. In describing the collision, Trimarche stated: “But, no, she just

kept coming and it was not a fast movement. It wasn’t a slow movement. It was just a

continuous, just kept coming straight on. No swerving, no nothing, just straight on. Hit

right in the rear end, right there.”

       {¶ 10} At the conclusion of the state’s case-in-chief, the parties stipulated to the

admission of appellant’s medical records from Firelands Regional Medical Center and




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the Margaretta Township Fire Department. Thereafter, the state rested.1 Appellant called

no witnesses.

       {¶ 11} Ultimately, the court found appellant guilty on all four charges contained in

the complaint. In its judgment entry, the court stated that it found that appellant

“consumed prescription drugs which appreciably impaired her ability to stay awake and

safely operate a motor vehicle.” The court went on to find that appellant’s impairment

caused her to fall asleep and drive into the back of the stopped school bus. Following its

determination of guilt on the four charges contained in the state’s complaint, the trial

court ordered the preparation of a presentence investigation report and set the matter for a

sentencing hearing. At the sentencing hearing, the trial court sentenced appellant to 120

days in jail for operating a vehicle while under the influence of alcohol or drug of abuse.

The court then “merged and dismissed” the charge for refusal to submit to a chemical

test, and imposed a $100 fine and a $20 fine as to the charges for failing to stop for a

school bus and failing to stop in an assured clear distance, respectively.

                                B. Assignments of Error

       {¶ 12} Appellant has filed a timely notice of appeal, assigning the following errors

for our review:




1
  The state subpoenaed two additional witnesses, but the individuals did not appear at
trial and could not be located by the state.




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              I. The conviction is against the manifest weight of the evidence.

              II. The conviction is not supported by sufficient evidence.

              III. Trial counsel was ineffective.

                                         II. Analysis

       {¶ 13} In her first assignment of error, appellant argues that her conviction for

operating a vehicle while under the influence of alcohol or drug of abuse was against the

manifest weight of the evidence. In her second assignment of error, she contends that the

conviction was not supported by sufficient evidence.

       {¶ 14} Sufficiency and manifest weight are quantitatively and qualitatively

different legal concepts. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541

(1997). Sufficiency of the evidence is a determination of adequacy, and a court must

consider whether the evidence was sufficient to support the conviction as a matter of law.

Id. The proper analysis 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. Williams, 74 Ohio St.3d 569, 576,

660 N.E.2d 724 (1996), quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492

(1991), paragraph two of the syllabus.

       {¶ 15} When reviewing a manifest weight of the evidence issue, we sit as a

“thirteenth juror.” Thompkins at 387. That is, we review the entire record, weigh the

evidence and all reasonable inferences, and consider the credibility of witnesses. Id. Our

role is to determine “whether in resolving conflicts in the evidence, the [trier of fact]




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clearly lost its way and created such a manifest miscarriage of justice that the conviction

must be reversed and a new trial ordered.” Id. We reverse a conviction on manifest

weight grounds for only the most “exceptional case in which the evidence weighs heavily

against the conviction.” Id. at 387.

       {¶ 16} Concerning the offense of operating a vehicle while under the influence of

a drug of abuse, R.C. 4511.19 provides, in relevant part:

              (1) No person shall operate any vehicle, streetcar, or trackless trolley

       within this state, if, at the time of the operation, any of the following apply:

              (a) The person is under the influence of alcohol, a drug of abuse, or a

       combination of them.

       {¶ 17} Thus, in order to convict appellant of operating a vehicle while under the

influence of a drug of abuse, the state was required to prove, beyond a reasonable doubt,

that appellant was (1) operating a vehicle, and (2) doing so while under the influence of a

drug of abuse.

       {¶ 18} There is no dispute in this case as to whether appellant was operating a

vehicle. At trial, Oliver and Trimarche identified appellant as the driver of the vehicle

that crashed into the rear end of the school bus Trimarche was driving.

       {¶ 19} Further, we find that clonazepam, the prescription drug that appellant

admittedly ingested prior to operating her vehicle, meets the definition of a “drug of

abuse,” which is defined under R.C. 4506.01(M) as “any controlled substance, dangerous

drug as defined in section 4729.01 of the Revised Code, or over-the-counter medication




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that, when taken in quantities exceeding the recommended dosage, can result in

impairment of judgment or reflexes.” Under R.C. 3719.01(C), a “controlled substance”

is defined as “a drug, compound, mixture, preparation, or substance included in schedule

I, II, III, IV, or V.” Clonazepam is listed as a schedule IV drug in R.C. 3719.41.

Therefore, clonazepam is a controlled substance and, by extension, a “drug of abuse”

under R.C. 4511.19. See State v. Anderson, 11th Dist. Lake No. 2005-L-179, 2006-Ohio-

5371, ¶ 20 (“Initially, we note that clonazepam is a Schedule IV controlled substance

identified in R.C. 3719.41(B)(9) and, therefore, a controlled substance.”).

       {¶ 20} Having found that appellant was operating her vehicle after ingesting a

drug of abuse, the sole remaining issue is whether the state introduced sufficient evidence

as to whether appellant was actually under the influence of clonazepam at the time of the

collision. Appellant asserts that the state was required to establish that she was under the

influence of clonazepam by way of testimony from a medical expert, especially in light

of the fact that field sobriety tests were not performed in this case.

       {¶ 21} At the outset, we note that the element of being “under the influence” may

be proven by eyewitness testimony, and therefore an officer is not required to conduct

field sobriety or other tests in order to establish the element. State v. Scandreth, 11th

Dist. Trumbull No. 2009-T-0039, 2009-Ohio-5768, ¶ 71. Here, the requisite eyewitness

testimony was provided by Oliver, who testified that appellant appeared to be very

lethargic, had trouble comprehending what had happened, and was disoriented as to




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where she was and where she was coming from, which led him to suspect that she was

intoxicated. Prior to providing this testimony, Oliver recited his extensive training:

              Well, I’ve been through the basic police academy. I’ve been through

       several, several interview and interrogations, traffic crash, DUI trainings.

       I’m ADAP certified. I’ve gone to several other schools related to

       investigations. I’m a graduate of the 242nd session of the FBI National

       Academy. I’ve been to leadership classes. I’ve testified. I’ve conducted

       numerous, numerous investigations.

       {¶ 22} As to appellant’s contention that the state was required to establish her

impairment by way of expert medical testimony, the Supreme Court of Ohio has recently

stated that the testimony of an experienced police officer that a defendant appears to be

under the influence of a drug of abuse at the time of arrest, paired with additional

evidence that the defendant had ingested a drug of abuse, constitutes sufficient evidence

to support a conviction for operating a vehicle while under the influence of a drug of

abuse. State v. Richardson, Slip Opinion No. 2016-Ohio-8448, ¶ 1. In that case,

Richardson was cited for operating a vehicle while under the influence of a drug of abuse

after he rear-ended a car that was stopped ahead of him at a red light. Id. at ¶ 2. The

driver of the stopped vehicle found Richardson’s speech to be slurred and

incomprehensible. Consequently, the driver alerted police of Richardson’s condition. Id.

       {¶ 23} After an officer arrived on scene, he noticed that Richardson’s speech was

slurred. Id. at ¶ 3. Further, the officer witnessed Richardson singe his hair while




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attempting to light a cigarette. Id. The officer eventually administered field sobriety

tests, which Richardson failed. Id. at ¶ 4. Thereafter, the officer asked Richardson to

submit to a blood test, but he refused. Id. As a result, Richardson was arrested.

       {¶ 24} At his subsequent bench trial, Richardson testified that he had a

prescription for hydrocodone acetaminophen but had not taken any for two days prior to

the accident. Rather than being under the influence of the prescription medication,

Richardson asserted that he was actually experiencing symptoms of withdrawal from the

medication on the date of the accident. Id. at ¶ 6. He supported his assertion with the

testimony of an expert in emergency medicine and chemical dependency, who testified

that Richardson’s symptoms were consistent with those he would expect from a patient

experiencing withdrawal and inconsistent with those he would expect if Richardson was

actually under the influence of the drug. Id. For its part, the state presented the

testimony of the driver that was rear-ended and the arresting officer.

       {¶ 25} At the close of trial, the trial court found Richardson guilty of operating a

vehicle under the influence of a drug of abuse and endangering children. Id. at ¶ 7.

Richardson appealed to the Second District, where his conviction was overturned based

on the finding that the state failed to introduce sufficient evidence to support the

conviction for operating a vehicle under the influence of a drug of abuse. Id. at ¶ 8. In

particular, the Second District found that the state failed to establish a connection

between Richardson’s use of the prescription drugs and his resulting impairment. Id.




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       {¶ 26} On review before the Supreme Court of Ohio, the court reversed the

Second District’s decision and upheld Richardson’s conviction. Id. at ¶ 21. In so doing,

the court found that the arresting officer’s testimony that Richardson acknowledged being

on pain medication and having taken the equivalent of three hydrocodone acetaminophen

pills constituted sufficient evidence to prove that Richardson ingested hydrocodone. Id.

at ¶ 15-17. The court also concluded that the state presented sufficient evidence of

Richardson’s impairment when it elicited testimony from the arresting officer that

Richardson slid out of his vehicle rather than stepping out of the vehicle, singed his hair

while trying to light a cigarette, failed several field sobriety tests, and spoke with slurred

speech. Id. at ¶ 18.

       {¶ 27} As to the connection between Richardson’s impairment and his ingestion of

hydrocodone, the court stated:

              When the effects of a drug are sufficiently well known—as they are

       with hydrocodone—expert testimony linking ingestion of the drug with

       indicia of impairment is unnecessary. And there was lay testimony that

       connected Richardson’s impairment to the hydrocodone, i.e., the testimony

       of an experienced and well-trained police officer. On these facts, we hold

       that the evidence was sufficient to support Richardson’s OVI conviction.

       Id. at ¶ 19.

       {¶ 28} Consistent with the Supreme Court of Ohio’s holding in Richardson, we

find that the state introduced sufficient evidence to support appellant’s conviction in this




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case. As noted above, the state presented the testimony of Oliver, who was a well-trained

officer that was familiar with appellant and testified as to her impairment. Oliver

discovered 15 pills of Clonazepam during his search of appellant’s vehicle, and appellant

acknowledged taking the drug prior to the accident during her conversation with Harlow

and her neighbor. The fact that she was under the influence of Clonazepam at the time of

the accident may also be inferred by the fact that she was prescribed 90 pills just two

weeks prior to the accident and only 15 remained. As to whether Clonazepam had the

capacity to impair appellant’s driving, appellant acknowledged during her conversation

with Harlow that she knew she was not supposed to take her medications and drive.

       {¶ 29} In light of the foregoing evidence, we find that the state was not required to

introduce expert testimony linking appellant’s ingestion of Clonazepam to her subsequent

impairment in order to support appellant’s conviction for operating a vehicle under the

influence of a drug of abuse. Further, we find that appellant’s conviction was not against

the manifest weight of the evidence. Accordingly, appellant’s first and second

assignments of error are not well-taken.

       {¶ 30} In her third assignment of error, appellant argues that her trial counsel was

ineffective. In order to demonstrate ineffective assistance of counsel, appellant must

satisfy the two-prong test developed in Strickland v. Washington, 466 U.S. 668, 687, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984). That is, appellant must show that counsel’s

performance fell below an objective standard of reasonableness, and a reasonable




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probability exists that, but for counsel’s error, the result of the proceedings would have

been different. Id. at 687-688, 694.

       {¶ 31} Here, appellant argues that her trial counsel committed two errors that

resulted in the ineffective assistance of counsel. First, appellant contends that her trial

counsel erred in stipulating to the admission of her medical records at trial. “Generally,

decisions to stipulate to facts or evidence are tactical decisions that fall within the wide

range of reasonable professional assistance.” State v. Mackey, 12th Dist. Warren No.

CA99-06-065, 2000 Ohio App. LEXIS 480, *14 (Feb. 14, 2000), citing State v. Otte, 74

Ohio St.3d 555, 565, 660 N.E.2d 711 (1996); State v. Green, 66 Ohio St.3d 141, 148, 609

N.E.2d 1253 (1993). “Moreover, counsel is not deficient by stipulating to facts for which

there is ample evidence, or to evidence that is ‘unassailable.’” Id., citing Otte at 565.

       {¶ 32} Having reviewed appellant’s medical records, we find that trial counsel’s

stipulation was not unreasonable. Indeed, the medical records contain no information

that would have been prejudicial to appellant’s defense in this case. The records merely

recite appellant’s medical condition at the time of the arrival of emergency personnel and

the treatment that was provided to her from that point forward. The records do not

indicate the cause of the accident, nor do they reference any impairment due to the

ingestion of Clonazepam. Rather than damaging her defense, the absence of any

reference to appellant’s impairment could support her defense that fatigue caused her to

collide into the rear-end of the school bus rather than any impairment attributable to a

drug of abuse. In that regard, the medical records from Firelands Regional Medical




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Center include a statement that appellant “appears sleepy, but states that she did not get

much sleep.”

       {¶ 33} In sum, we find that trial counsel’s decision to stipulate to the admission of

appellant’s medical records was a tactical one that falls within the range of reasonable

assistance. We find no basis for second guessing trial counsel’s decision. Moreover, we

fail to see how the admission of the medical records in this case affected the outcome of

the case in light of the absence of any information therein that could have led the

factfinder to conclude that appellant was impaired at the time of the accident.

       {¶ 34} Second, appellant argues that trial counsel was ineffective in allowing her

to enter a plea of guilty to the charge of assured clear distance prior to trial. Specifically,

appellant contends that trial counsel should have insisted on a plea of no contest rather

than a guilty plea in order to preserve the issue of civil liability in a subsequent civil

action. Appellant also asserts that trial counsel’s ineffectiveness concerning her guilty

plea is evident from the fact that the trial court did not inform her of the consequences of

her plea prior to accepting the plea under Crim.R. 11.

       {¶ 35} The offense of failing to stop in an assured clear distance is set forth in

R.C. 4511.21(A) as follows:

               (A) No person shall operate a motor vehicle, trackless trolley, or

       streetcar at a speed greater or less than is reasonable or proper, having due

       regard to the traffic, surface, and width of the street or highway and any

       other conditions, and no person shall drive any motor vehicle, trackless




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       trolley, or streetcar in and upon any street or highway at a greater speed

       than will permit the person to bring it to a stop within the assured clear

       distance ahead.

       {¶ 36} In this case, the state introduced abundant and uncontested evidence that

appellant was the operator of the motor vehicle that crashed into the rear-end of the

school bus driven by Trimarche. During her discussion with Oliver following the

accident, appellant acknowledged having fallen asleep at the wheel prior to colliding with

the school bus. Further, Trimarche testified that appellant drove into the school bus

without attempting to stop. Thus, there is no support for appellant’s assertion that a no

contest plea would improve her ability to prevail in a future civil action in light of the

aforementioned evidence. Consequently, appellant cannot demonstrate that the outcome

of the proceeding would have been different had she not entered a guilty plea to the

assured clear distance charge.

       {¶ 37} Additionally, we have previously held that a defendant, upon the entry of a

guilty plea, waives any appealable errors, including a claim of ineffective assistance,

“unless he or she demonstrates that the alleged errors precluded him or her from entering

a knowing, voluntary plea.” See State v. Ellis, 6th Dist. Lucas No. L-15-1296, 2016-

Ohio-8086, ¶ 35, citing State v. Kocian, 6th Dist. Ottawa No. OT-07-018, 2008-Ohio-74.

Appellant does not assert that the trial court’s noncompliance with Crim.R. 11 caused her

to enter a plea that she would not otherwise have entered. Therefore, we find that trial




15.
counsel was not ineffective for allowing her to plead guilty to the assured clear distance

charge.

       {¶ 38} Accordingly, appellant’s third assignment of error is not well-taken.

                                     III. Conclusion

       {¶ 39} For the foregoing reasons, the judgment of the Erie County Municipal

Court is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R.

24.

                                                                        Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                              _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
James D. Jensen, P.J.                                      JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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