[Cite as State v. Husted, 2014-Ohio-4978.]


                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                      ROSS COUNTY

STATE OF OHIO,                                  :    Case No. 14CA3447

        Plaintiff-Appellee,                     :

        v.                                      :    DECISION AND
                                                     JUDGMENT ENTRY
BRANDY HUSTED,                                  :

        Defendant-Appellant.                    :    RELEASED: 11/4/2014

                                             APPEARANCES:

Chase R. Carter, Chillicothe, Ohio, for appellant.

Sherri K. Rutherford, Chillicothe Law Director, and Carrie L. Rowland, Chillicothe
Assistant Law Director, for appellee.

Harsha, J.
        {¶1}     A jury trial convicted Brandy Husted of physical control in violation of R.C.

4511.194(B)(1), a misdemeanor of the first degree. After sentencing her, the Chillicothe

Municipal Court denied Husted’s Crim.R. 29 motion for judgment of acquittal. On

appeal Husted asserts that the trial court erred in denying her motion for judgment of

acquittal. We agree.

        {¶2}     The state failed to present sufficient evidence that Husted was in physical

control of a vehicle while under the influence of alcohol, a drug of abuse, or a

combination of them. More specifically, there was no evidence that Husted’s observed

condition resulted from being the influence of a drug of abuse—a 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 fact, there was no evidence about what specific drug she had consumed. Therefore,
Ross App. No. 14CA3447                                                                 2


we sustain Husted’s assignment of error, reverse the judgment of the trial court, and

remand the cause to the trial court to vacate the conviction and sentence.

                                         I. FACTS

       {¶3}   At approximately 12:45 a.m. Chillicothe Police Officer Micah Shanks was

dispatched to a gas station/convenience store in Chillicothe to check on a person

parked in an SUV in front of the store. When Officer Shanks approached the vehicle,

he saw Husted in the driver’s seat and noticed she was “nodding off” and “not quite

awake.” No one else was in the vehicle, and the keys were on the front passenger seat

within Husted’s reach. When Officer Shanks got Husted’s attention, she said that she

needed to check on her child in the passenger seat, but there was no child in the

vehicle. He then asked Husted what time it was, and she responded that it was 6:00

P.M. even though it was actually almost 1:00 a.m. After a delay of several seconds,

Husted was able to tell the officer that she was at the Valero gas station.

       {¶4}   Officer Shanks then asked Husted to step out of the vehicle and when she

complied, he observed a small cut-off straw that fell onto her seat from her lap.

According to the officer, that raised his suspicion and he advised Husted of her Miranda

rights before continuing to question her. He asked her whether she had been snorting

any drugs and she said that she had. She did not, however, ever say what type of drug

she had consumed and only specified that it was not methamphetamine or cocaine.

According to the officer, he believed that Husted was impaired because she had very

slurred speech and red, bloodshot eyes, was very unsteady on her feet, didn’t know

what time it was, and had a hard time figuring out where she was. Officer Shanks

escorted Husted to the jail, where she refused to take field sobriety tests or a urine test.
Ross App. No. 14CA3447                                                                    3


She then passed out in a cell. The officer did not send the straw to be tested for a drug

residue.

       {¶5}   On that same date Officer Shanks filed a complaint in the Chillicothe

Municipal Court in the form of a uniform traffic ticket charging Husted with physical

control in violation of R.C. 4511.194, a misdemeanor of the first degree. Husted

received appointed counsel and entered a plea of not guilty to the charge.

       {¶6}   During her jury trial only Officer Shanks testified. At the conclusion of the

state’s case, Husted moved for judgment of acquittal under Crim.R. 29 because there

was no testimony that she was under the influence of alcohol or any drug of abuse.

After the trial court denied the motion, the parties stipulated that there was no evidence

of alcohol and the case was submitted—on the charge that she was in physical control

of a vehicle while under the influence of a drug of abuse—to the jury, which returned a

guilty verdict. That same day the trial court pronounced its sentence.

       {¶7}   Within the applicable period Husted renewed her oral motion for judgment

of acquittal by written motion, and the state submitted a response. The trial court

denied the motion. In its decision, the trial court stated:

               It is true that the state did not present evidence of a specific drug of
       abuse ingested by the defendant, but the court is satisfied there was
       sufficient circumstantial evidence that the defendant was impaired by a
       drug of abuse. The evidence presented at trial established that when the
       defendant was found in her vehicle, she was confused about where she
       was, who she was with, and what time it was. She admitted to snorting
       drugs, and a short cut-off straw, commonly used for snorting drugs of
       abuse, was found in her lap. She had slurred speech, red blood-shot
       eyes, and was very unsteady on her feet. She made strange, non-
       sensical [sic] statements to the officer. When she arrived at the jail, she
       passed out.

             These circumstances are consistent not only with the ingestion of
       drugs of abuse, but also with the commonly known effects of certain drugs
Ross App. No. 14CA3447                                                                 4


       of abuse on the human body. The jurors might reasonably have inferred,
       therefore, that the defendant had consumed a drug of abuse and that she
       was under its influence. Because the evidence was sufficient to sustain a
       conviction, the defendant’s motion for judgment of acquittal is overruled.

       {¶8}   This appeal followed.

                              II. ASSIGNMENT OF ERROR

       {¶9}   In her sole assignment of error, Husted assigns the following error:

       1. The trial court erred in overruling the Appellant’s Motion for Acquittal
          brought properly under Ohio Criminal Rule 29.

                               III. STANDARD OF REVIEW

       {¶10} Under Crim.R. 29(A), “[t]he court on motion of a defendant or its own

motion, after the evidence on either side is closed, shall order the entry of acquittal of

one or more offenses charged in the indictment, information, or complaint, if the

evidence is insufficient to sustain a conviction of such offense or offenses.” “If a jury

returns a verdict of guilty * * *, a motion for judgment of acquittal may be made or

renewed within fourteen days after the jury is discharged * * *.” Crim.R. 29(C). “A

motion for acquittal under Crim.R. 29(A) is governed by the same standard as the one

for determining whether a verdict is supported by sufficient evidence.” State v. Tenace,

109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37; State v. Kessinger, 4th

Dist. Highland No. 13CA25, 2014-Ohio-2496, ¶ 14.

       {¶11} “When a court reviews a record for sufficiency, ‘[t]he 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. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d

930, ¶ 146, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
Ross App. No. 14CA3447                                                                     5

paragraph two of the syllabus; Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979). The court must defer to the trier of fact on questions of credibility

and the weight assigned to the evidence. State v. Kirkland, 140 Ohio St.3d 73, 2014-

Ohio-1966, 15 N.E.2d 818, ¶ 132.

                                  IV. LAW AND ANALYSIS

       {¶12} In her sole assignment of error Husted asserts that the trial court erred in

denying her motion for judgment of acquittal. Husted was convicted of physical control

in violation of R.C. 4511.194(B)(1), which provides that “[n]o person shall be in physical

control of a vehicle * * * if at the time of the physical control, * * * [t]he person is under

the influence of alcohol, a drug of abuse, or a combination of them.”

       {¶13} Husted does not dispute that she was in physical control of a vehicle at

the time Officer Shanks observed her. See R.C. 4511.194(A)(2), defining “[p]hysical

control” as “being in the driver’s position of the front seat of a vehicle * * * and having

possession of the vehicle’s * * * ignition key or other ignition device.”

       {¶14} Instead, Husted claims that the state failed to present sufficient evidence

to establish that at the time of her physical control of the vehicle, she was “under the

influence of * * * a drug of abuse.” R.C. 4511.194(B)(1). As used in R.C. 4511.181 to

4511.198, “[d]rug of abuse” has the same meaning as in R.C. 4506.01. R.C.

4511.181(E). R.C. 4506.01(L) defines “[d]rug of abuse” as “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.” Under R.C. 4729.01(F), a “[d]angerous

drug” means:
Ross App. No. 14CA3447                                                                 6


      (1) Any drug to which either of the following applies:

      (a) Under the “Federal Food, Drug, and Cosmetic Act,” 52 Stat. 1040
      (1938), 21 U.S.C.A. 301, as amended, the drug is required to bear a label
      containing the legend “Caution: Federal law prohibits dispensing without
      prescription” or “Caution: Federal law restricts this drug to use by or on the
      order of a licensed veterinarian” or any similar restrictive statement, or the
      drug may be dispensed only upon a prescription;

      (b) Under Chapter 3715. or 3719. of the Revised Code, the drug may be
      dispensed only upon a prescription.

      (2) Any drug that contains a schedule V controlled substance and that is
      exempt from Chapter 3719. of the Revised Code or to which that chapter
      does not apply;

      (3) Any drug intended for administration by injection into the human body
      other than through a natural orifice of the human body.

      {¶15} In construing the similarly worded requirement for the offense of operating

a motor vehicle while under the influence of a drug of abuse under R.C.

4511.19(A)(1)(a), the General Assembly requires that the state do more than prove

impairment in a vacuum; there must be some evidence “to establish a nexus between

the defendant’s impaired condition and any type of drug abuse.” See Cleveland v.

Turner, 8th Dist. Cuyahoga No. 99183, 2013-Ohio-3145, ¶ 13, citing State v. Collins, 9th

Dist. Wayne No. 11CA0027, 2012-Ohio-2236, ¶ 20. In these cases where there is no

physical evidence like a blood test to determine the presence and amount of a drug of

abuse, courts are limited to circumstantial evidence and depending on the facts, that

evidence may be insufficient to establish guilt beyond a reasonable doubt of the

charged offense:

      In DUI cases involving a drug of abuse where there is no physical
      evidence such as urine or blood test results to establish the presence of a
      drug of abuse, courts are limited to circumstantial evidence. In general,
      circumstantial evidence and direct evidence possess the same probative
      value. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
Ross App. No. 14CA3447                                                                 7


      paragraph one of the syllabus. In some instances, certain facts can only
      be established by circumstantial evidence. Id. In other cases,
      circumstantial evidence may not be enough to prove the defendant’s guilt
      beyond a reasonable doubt and direct evidence is necessary.

      To assist police in obtaining direct evidence of drug abuse, the legislature
      enacted R.C. 4511.191(A)(5)(a), which authorizes law enforcement to
      “employ whatever reasonable means are necessary to ensure that the
      person submits to a chemical test of the person’s whole blood or blood
      serum or plasma.” Notably, the statute does not require chemical test
      results in order to obtain a conviction. Therefore, convictions may still be
      obtained in the absence of blood or urine tests, if there is sufficient
      credible evidence to sustain the conviction.

Turner at ¶ 10-11.

      {¶16} In Collins at ¶ 19-20, the Ninth District Court of Appeals found insufficient

evidence to support a DUI conviction because there was no evidence that the defendant

had consumed any drug of abuse:


      In this case, the State failed to present sufficient evidence that Collins
      operated his vehicle while under the influence of a drug of abuse. While
      R.C. 4511.19(A)(1)(a) does not require the State to prove specific blood
      concentration levels, it does require the State to do more than prove
      impairment in a vacuum. R.C. 4511.19(A)(1)(a) specifically requires that
      the State demonstrate that the source of the defendant's impairment was
      “alcohol, a drug of abuse, or a combination of them.” As neither officer
      who testified on behalf of the State detected that Collins was under the
      influence of alcohol, it was necessary for the State to demonstrate that
      Collins was under the influence of a “drug of abuse” as defined by the
      Revised Code. While the State relies on this Court's decisions in Strebler
      in support of its position that the observations of officers were adequate to
      establish that Collins was under the influence of a drug of abuse, we find
      the facts of this case distinguishable from the circumstances at issues in
      Strebler. First, and perhaps most significantly, the defendant in Strebler
      admitted to the arresting officer that he was using Methadone, a Schedule
      II controlled substance. Strebler at ¶ 12. In addition to making this
      admission, the defendant produced a prescription bottle from his pocket,
      and directed the arresting officer to a second prescription bottle in his car.
      Id. In this case, however, Collins consistently denied being under the
      influence of a drug of abuse and there was no evidence that prescription
      bottles, or any other type of drug paraphernalia, was discovered on
      Collins' person or in his vehicle. Thus, while this Court was able to
      conclude in Strebler that it was “undisputed” that the defendant was under
Ross App. No. 14CA3447                                                               8


      the influence of Methadone, the officers' testimony in this case did not
      establish that Collins was under the influence of a drug of abuse. Id. at ¶
      16. The instant matter is further distinguishable in that the State in
      Strebler was also able to produce the testimony of a chemist who
      indicated that the defendant's blood had tested positive for Methadone.
      Id. at ¶ 14. The State in this case, through no fault of its own, was unable
      to introduce the results of the blood draw due to the fact that the sample
      was lost in the mail.

      While the officers testified at length regarding Collins' impaired condition
      and gave their respective opinions that, based on their observations, he
      was under the influence of some sort of illegal narcotic or drug, the State
      did not establish that Collins' impaired condition resulted from being under
      the influence of a drug of abuse. There was no evidence presented which
      demonstrated that Collins' condition resulted from being under the
      influence of a controlled substance, a harmful intoxicant, or a dangerous
      drug as outlined in R.C. 3719.011(A). Nor was there evidence presented
      which showed that Collins' condition resulted from ingesting a controlled
      substance, dangerous drug, or over-the-counter medication taken “in [a
      quantity] exceeding the recommended dosage” as contemplated by R.C.
      4506.01(L). Thus, as the State did not establish a nexus between Collins'
      impaired condition and any type of drug of abuse, Collins' conviction must
      be reversed.


      {¶17} Similarly, in Turner at ¶ 14, the Eighth District Court of Appeals reversed a

defendant’s DUI conviction because the state failed to prove a nexus between the

defendant’s impaired condition and a drug of abuse:

      In this case, police observed Turner sitting in the driver's seat with the
      keys in the ignition, making noises and pretending to drive the car. His
      vehicle was stopped in the middle of the road and was blocking two lanes
      of traffic. He was incoherent, unable to stand on his own, and was unable
      to perform field sobriety tests. His eyes exhibited a vertical nystagmus,
      which the officers testified is indicative of drug abuse. The state proved
      that Turner was impaired. However, the state failed to prove that Turner's
      impairment was caused by a drug of abuse. Like Collins, there were no
      drugs found in the vehicle or on Turner's person. Although Turner
      admitted that he had taken some medication, he did not identify the
      medication by name. It could have been aspirin. Therefore, because the
      state failed to prove a nexus between Turner's impaired condition and a
      drug of abuse, Turner's DUI conviction is against the manifest weight of
      the evidence because there was insufficient evidence.
Ross App. No. 14CA3447                                                                 9

       {¶18} And in State v. May, 2d Dist. Montgomery No. 25359, 2014-Ohio-1542, ¶

48, the Second District Court of Appeals held that “in order to establish a violation of

R.C. 4511.19(A)(1)(a) based on medication, the State must also present some evidence

(1) of how the particular medication actually affects the defendant * * *and/or (2) that the

particular medication has the potential to impair a person’s judgment or reflexes.

Without that information, a jury has no means to evaluate whether the defendant’s

apparent impairment was due to his or her being under the influence of that

medication.”

       {¶19} Finally, in State v. Samples, 9th Dist. Wayne No. 11CA0027, 2012-Ohio-

2236, ¶ 15, the appellate court held that although three witnesses, including two state

troopers, testified that a driver of a vehicle involved in an accident was impaired by a

drug of abuse, they did not testify as to what specific type of drug of abuse caused his

alleged impairment, there was no evidence demonstrating that the defendant’s alleged

impairment resulted from his ingesting a controlled substance, dangerous drug, or over-

the-counter medication taken in a quantity exceeding the recommended dosage as

required by R.C. 4506.01. The court held that there was insufficient evidence to support

the defendant’s conviction for driving under the influence of a drug of abuse. Id. at ¶ 16.

       {¶20} In sum, the precedent requires that in a prosecution for operating a vehicle

or being in physical control of a vehicle while under the influence of drugs of abuse, the

court must grant a Crim.R. 29 motion for judgment of acquittal if the state fails to

present evidence that the defendant, even though impaired in some manner, was in fact

under the influence of a drug of abuse. See, generally, Weiler and Weiler, Ohio Driving

Under the Influence Law, Section 13:21 (2013). “This might occur in a case where
Ross App. No. 14CA3447                                                                              10


there is no test conducted that demonstrates consumption of a drug of abuse and the

defendant has not admitted to the consumption of any drug of abuse.” Id.

        {¶21} Just as in the cited cases here, the state introduced no direct evidence

that Husted had consumed any drug of abuse as defined in R.C. 4511.181(E) and

4506.01(L), i.e., a controlled substance, dangerous drug, or over-the-counter

medication taken in quantities exceeding the recommended dosage. And although this

case involved the presence of a cut-off straw that Officer Shanks testified raised his

suspicion and Husted’s statement to him that she had snorted drugs, there was no

evidence of what drug Husted had snorted or whether the drug constituted a drug of

abuse. The police could have had the straw sent for testing to determine the nature of

the purported drug, but did not. Likewise, the state could have obtained a search

warrant to obtain a blood test. See R.C. 4511.19(D)(1)(b). Again, it did not1. Nor is

there evidence how the unspecified drug actually affects a person, including Husted, or

that the particular unknown drug has the potential to impair a person’s judgment or

reflexes.

        {¶22} Nor was there circumstantial evidence from which a trier of fact could

reasonably determine that Husted had consumed a drug of abuse, e.g., a strong odor of

burnt marijuana from the vehicle and the defendant, State v. Dearth, 4th Dist. Ross No.

09CA3122, 2010-hio-1847, an admission of consumption of prescription methadone,

State v. Strebler, 9th Dist. Summit No. 23003, 2006-Ohio-5711, or empty prescription

bottles that had been filled the same day that the defendant had been stopped for



1
 Before raising the spectra of “an estoppel to the prosecution of offenses pursuant to R.C. 4511.194,” the
state should avail itself of all the tools the legislature and the constitutions have provided law
enforcement.
Ross App. No. 14CA3447                                                                11

driving erratically. State v. Gilleland, 2d Dist. Champaign No. 2004 CA 1, 2005-Ohio-

0659.

        {¶23} This is a case in which there is no evidence—direct or circumstantial—

about what drug was taken. Under these circumstances, there is insufficient evidence

to establish that Husted was “under the influence of * * * a drug of abuse” at the time

that she was in physical control of the vehicle. See May, 2d Dist. Montgomery No.

25359, 2014-Ohio-1542, ¶ 60 (Hall, J., concurring) (noting that although he disagreed

with the majority’s test to establish a violation of R.C. 4511.19(A)(1)(a) based on

medication, the concurring judge recognized that “where there is no evidence about

what, if any, drug, medicine, or substance the defendant consumed no matter how

impaired,” the evidence is insufficient). Because the trial court erred in denying

Husted’s motion for judgment of acquittal, we sustain her assignment of error.

                                    V. CONCLUSION

        {¶24} The trial court erred in denying Husted’s Crim.R. 29 motion for judgment

of acquittal. After viewing the evidence in a light most favorable to the prosecution, no

rational trier of fact could have found the essential elements of the crime of physical

control in violation of R.C. 4511.194(B)(1) proven beyond a reasonable doubt. Having

sustained Husted’s assignment of error, we reverse the judgment of the trial court and

remand the cause to the trial court to vacate her conviction.

                                                                 JUDGMENT REVERSED
                                                                AND CAUSE REMANDED.
Ross App. No. 14CA3447                                                                    12


                                    JUDGMENT ENTRY


    It is ordered that the JUDGMENT IS REVERSED and that the CAUSE IS
REMANDED. Appellee shall pay the costs.

       The Court finds there were reasonable grounds for this appeal.

        It is ordered that a special mandate issue out of this Court directing the
Chillicothe Municipal Court to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

Abele, P.J. & Hoover, J.: Concur in Judgment and Opinion.


                                            For the Court


                                            BY: ________________________
                                                William H. Harsha, Judge




                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
