[Cite as State v. Wieser, 2018-Ohio-3619.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                ALLEN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 1-18-15

        v.

GAIL M. WIESER,                                            OPINION

        DEFENDANT-APPELLANT.




                           Appeal from Lima Municipal Court
                           Trial Court No. 17TRC09050-A & B

                                      Judgments Affirmed

                          Date of Decision: September 10, 2018




APPEARANCES:

        Michael J. Short for Appellant

        John R. Payne for Appellee
Case No. 1-18-15


SHAW, J.

       {¶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

R.C. 4511.19(A)(1)(a), and failure to maintain control of her vehicle, in violation

of R.C. 4511.202. The following day, Wieser appeared in court and entered pleas

of not guilty.

       {¶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


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arrival at the scene, Chief Redick observed a vehicle at the southwest corner of the

intersection and Wieser sitting on the curb. Wieser informed Chief Redick that

she was driving the vehicle when she entered the intersection on a green light and

was struck by another vehicle travelling southbound on Eastown Road. Wieser

claimed the other vehicle did not stop after the collision.

       {¶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.

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(Ex. A).1 In addition to his narrative in the Traffic Crash Report, Officer Sarchet

also testified that Wieser hit a stop sign. Officer Sarchet interacted with Wieser at

the scene and observed her speech was slurred and her movements were slow.

Officer Sarchet testified that he asked Wieser if she was on any medication.

Officer Sarchet further testified Wieser informed him of the following: “she told

me she was on Ambien, told me she, told me she was on a [sic] anti-depressant

and a sleep medication.” (Doc. No. 10 at 10).

        {¶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



1
  Notably, Officer Sarchet’s conclusion in the Traffic Crash Report was consistent with Chief Redick’s
testimony regarding how the accident occurred.

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Dyer testified that Ambien is “a sleep medication” and Butalbital is “used for pain,

like headaches.” (Id. at 15).

        {¶7} At the close of the prosecution’s case, Wieser’s trial counsel moved

for a Crim.R. 29 motion for acquittal on the basis that the prosecution failed to

prove that either medication listed in the lab report were “drugs of abuse” and

failed to present any evidence that the substances found in her system caused her

to be impaired while driving. The trial court took a short recess to consider the

issues raised by defense counsel. Upon reconvening the trial, the trial court found

Wieser guilty on both counts. Defense counsel pointed out that a finding of guilt

was premature given the fact that the defense had yet to present its case or rest on

the prosecution’s evidence. The trial court apologized, overruled the motion, and

permitted defense counsel to proceed. No further evidence was presented by the

defense, however, the Crim.R. 29 was renewed prior to the defense resting its

case.

        {¶8} The trial court overruled the renewed Crim.R. 29 motion and found

Wieser guilty of both OVI and failure to maintain control of her vehicle. The trial

court proceeded with sentencing. For her conviction for OVI (17TRC0950-A), the

trial court sentenced Wieser to five days in jail, all suspended upon her compliance

with completing a Driver Intervention Program within 180 days. Wieser’s driver’s

license was also suspended for 365 days and she was assessed six points on her


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license, in addition to being fined $500.00, plus court costs. For her failure to

maintain reasonable control of her vehicle (17TRC0950-B), Wieser was fined

$150.00, plus court costs.

       {¶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




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doubt that Zolpidem (Ambien) is a “drug of abuse,” and that her use of it impaired

her driving.



                                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.


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                                  Relevant Law

       {¶14} Wieser    was    found   guilty   of   OVI   in   violation   of   R.C.

4511.19(A)(1)(a), which provides that:

       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 R.C. 4506.01.”

State v. Richardson, 150 Ohio St.3d 554, 2016-Ohio-8448, ¶ 14, citing R.C.

4511.18(E). The term “drug of abuse” means “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 the judgment or reflexes.” R.C.

4506.01(M)(emphasis added).       “Controlled Substance” is defined in R.C.

3719.01(C) as “a drug, compound, mixture, preparation, or substance included in


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schedule I, II, III, IV, or V.” Section 3719.41 of the Revised Code lists Zolpidem

as a “Schedule IV” substance.     Therefore, Zolpidem (Ambien) is a controlled

substance and, by extension, a “drug of abuse” under R.C. 4511.19.

      {¶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, Weiser 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 R.C. 3719.41 and evidence was

introduced that the defendant’s urine contained both drugs); see also State v.

Peters, 9th Dist. Wayne No. 08CA0009, 2008-Ohio-6940, ¶ 11 (concluding that

sufficient evidence existed that the defendant operated a vehicle under the

influence of a drug of abuse because “R.C. 3719.41 delineates the schedule drugs,


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and classifies Methadone as a Schedule II controlled substance and Temazepam

and Oxazepam as Schedule IV controlled substances. Accordingly, the substances

for which Peters tested positively constitute drugs of abuse”).

       {¶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.”




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      {¶20} This testimony of three independent accounts indicating that Wieser

displayed signs of impairment, coupled with the fact that Wieser had been

involved in a significant single car accident, during which her vehicle went

airborne and hit a tree and a stop sign, and the fact that she initially lied about

another vehicle being involved all support a finding that Wieser was impaired at

the time of accident. Moreover, a rational tier of fact could reasonably infer from

Wieser’s urine test immediately after the accident indicating the presence of

Zolpidem (Ambien) in her system that her impairment was caused by that

substance, which as a matter of law is deemed to be a “drug of abuse.” See State

v. Richardson, 150 Ohio St. 3d 554, 2016-Ohio-8448, ¶ 1 (concluding 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).

      {¶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


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inferences, we cannot conclude that 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. As such, we do not find that Wieser’s OVI conviction is against

the manifest weight of the evidence.             Accordingly, the first and second

assignments of error are overruled.

                              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 Crim.R. 29 motion

for acquittal after the prosecution rested its case.

                                     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.


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However, “[a] judge is presumed to follow the law and not to be biased, and the

appearance of bias or prejudice must be compelling to overcome these

presumptions.” In re Disqualification of George, 100 Ohio St.3d 1241, 2003-

Ohio-5489, ¶ 5. (Citation omitted.)

       {¶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 Crim.R. 29 motion for acquittal, and permitted the defense

to present its evidence. As previously mentioned, the defense declined to present

evidence and renewed its Crim.R. 29 motion. Notably, at trial, Wieser did not

request a mistrial or object to proceeding with the trial on the basis that the trial

court was bias or prejudice because of the procedural error.

       {¶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


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favoritism or antagonism that would make fair judgment impossible.” State v.

Dean, 127 Ohio St.3d 140, 2010-Ohio-5070, ¶ 49, quoting Liteky v. United States,

510 U.S. 540, 555, 114 S.Ct. 1147 (1994).

       {¶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.

/jlr




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