 [Cite as State v. Loges, 2013-Ohio-1582.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                     CLARK COUNTY

 STATE OF OHIO

         Plaintiff-Appellee

 v.

 LORI LOGES


         Defendant-Appellant


 Appellate Case No.       2012-CA-47

 Trial Court Case No. 2011-CR-878

 (Criminal Appeal from
 (Common Pleas Court)
                                              ...........

                                              OPINION

                                 Rendered on the 19th day of April, 2013.

                                              ...........

LISA FANNIN, Atty. Reg. No. 0082337, Assistant Prosecuting Attorney, Clark County Prosecutor’s
Office, 50 E. Columbia St., 4th Floor, P.O. Box 1608, Springfield, Ohio 45501
        Attorney for Plaintiff-Appellee

JESSICA R. MOSS, Atty. Reg. No. 0085437, 2233 Miamisburg-Centerville Rd., Dayton, Ohio 45459
      Attorney for Defendant-Appellant

                                              .............
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WELBAUM, J.

        {¶ 1}     Defendant-Appellant, Lori Loges, appeals from her conviction and sentence on

 one count of theft of drugs in violation of R.C. 2913.02(A)(1). Following Loges’s no-contest

 plea to the charge, the trial court imposed one year of community control. The court also

 required Loges to complete treatment at McKinley Hall.

        {¶ 2}     Loges contends that the trial court violated her due process rights by denying her

 motion for intervention in lieu of conviction when she was statutorily eligible. Loges also

 contends that the trial court abused its discretion by imposing a more stringent condition for

 intervention in lieu of conviction than the conditions contained in R.C. 2951.041(B).

        {¶ 3}     We conclude that the trial court erred in requiring that Loges be drug-dependent

 as a condition of eligibility under R.C. 2951.041(B)(6). The statute requires only that drug usage

 be a factor leading to an offender’s criminal offense. Accordingly, the judgment of the trial

 court will be reversed, and this cause will be remanded for further proceedings.



                                I. Facts and Course of Proceedings

        {¶ 4}     In December 2011, Lori Loges was indicted on one count of theft of drugs. The

 indictment charged Loges with having knowingly obtained control over a dangerous drug on

 September 9, 2011, in violation of R.C. 2913.02(A)(1). After counsel was appointed, Loges

 filed a motion for intervention in lieu of conviction (ILC). The trial court held a hearing on the

 matter, where the defense presented testimony from Loges and from Mischel Depp, a case

 manager at McKinley Hall.

        {¶ 5}     At the time of the alleged crime, Loges was employed as a nurse at Springfield
                                                                                         3


Community Hospital (SCH). Loges was a licensed registered nurse and had been employed at

SCH for approximately eight years. Loges was 43 years old and had no prior criminal record,

other than a few minor traffic offenses, like speeding tickets.

       {¶ 6}     On an unspecified date in September 2011, Loges began using Dilaudid, a

narcotic that had not been prescribed, in order to alleviate back pain that she had incurred as a

result of her employment. Loges’s job involving lifting patients, and she had a recurring issue

with her back. Previously, the matter had resolved with rest, but at the time, she was working

substantial amounts of overtime and there was no opportunity to rest her back.

       {¶ 7}     Loges obtained the narcotics by either keeping the waste that she was supposed

to throw away, or by withdrawing them under a patient's name. Loges started using Dilaudid

once the first day, and twice a day the next time. Loges used the drug the first time because of

extreme back pain, and then the drug started drawing her in.          After using Dilaudid for

approximately three weeks, Loges stopped. This was before Loges had any indication that the

hospital knew what she was doing.

       {¶ 8}     Approximately two weeks later, hospital personnel called Loges in and asked

her about the drug issue. They also performed a drug screen, which was negative. The hospital

then placed Loges on administrative leave and went through her nursing charts. Loges was

subsequently terminated from employment with SCH.

       {¶ 9}     In addition, the Ohio Nursing Board (ONB) contacted Loges and met with her in

November 2011. After talking with the ONB, Loges deactivated her nursing license pending an

investigation.

       {¶ 10}    The ONB told Loges that it would have to conduct an investigation and that she
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should obtain a chemical dependency evaluation. ONB also said that Loges’s nursing license

could be reinstated if she did not have a felony conviction. According to ONB, there is an

alternative program for chemical dependency.        The first step is to obtain a professional

evaluation to find out if the nurse is addicted. The nurse must follow the recommendations, and

if he or she does that and is accepted into the alternative chemical dependency program, the nurse

would be placed under ONB’s supervision for two years with narcotics restrictions, meaning that

the nurse could administer drugs other than narcotics. In addition, the nurse would also be

subject to random drug screens at any time. If the nurse were in compliance for two years, the

restrictions would be released and the nurse would then be allowed to act as a registered nurse in

a full capacity.

        {¶ 11}     Loges fully cooperated with the ONB investigation. She immediately called

McKinley Hall to schedule an assessment, but was not able to get in until December 2, 2011.

The day after she met with ONB, Loges also met with Detective Collins, and fully cooperated,

including signing a waiver of her rights. Collins told Loges that she would probably be charged

with theft of drugs.

        {¶ 12}     Loges was indicted on one count of theft of drugs on December 19, 2011.

Previously, on December 2, 2011, Loges had been assessed at McKinley Hall and was deemed to

be chemically dependent.      As a result of the assessment, Vanessa Crow-Porter, a licensed

chemical dependency counselor, recommended that Loges undergo intensive outpatient

treatment, which included chemical dependency education, relapse prevention, individual and

group sessions, and attendance at three NA or AA meetings a week. On December 5, 2011,

Loges began treatment at McKinley Hall three days a week, for three hours each day. Loges was
                                                                                            5


also subject to random drug and alcohol screens when she came to treatment, and always tested

negative.

       {¶ 13}    Loges's case manager, Mischel Depp, testified that he had frequent contact with

Loges and kept notes regarding her progress and treatment. According to Depp, Loges was

participating in NA and AA, and also participated in groups as required.              She actively

participated and engaged with the group. Depp indicated that Loges was doing well at the time

of the hearing and had recently been moved from intensive outpatient treatment to outpatient

treatment, which reduced her days of attendance.

       {¶ 14}    Depp testified that Loges’s drug usage was a factor leading to her criminal

conduct or her criminal charge, because she is opiate dependent. Depp expressed the belief that

if Loges completed her treatment program at McKinley Hall, her chances of engaging in future

drug-related conduct would be reduced.

       {¶ 15}    Loges also testified that her use of Dilaudid was a factor leading to her criminal

conduct and her criminal charge. Loges indicated that as a result of treatment, she had a great

understanding of how her problem happened, and that the relapse intervention had been very

helpful. Loges also said that even though she was not using drugs when she sought treatment,

she recognized that part of addiction is that even if drugs are not being used, the mind still needs

to be healed. Thus, she had a problem that she needed to fix.

       {¶ 16}    During closing argument, the State said that: “Your honor, in reviewing the file

and hearing today's hearing, it’s the State's position that the defendant has met all the

qualifications for intervention in lieu of conviction, and the State would support the defendant's

motion.” April 13, 2012 Transcript of ILC Proceedings, p. 32.
                                                                                            6


        {¶ 17}   After hearing the above testimony, which was undisputed, and the closing

arguments of the parties, the trial court commented on the fact that Loges was not dependent on

Dilaudid on the very first occasion that she took the drug. The court then asked the following

question: “And the parties are both in agreement that given that circumstance that she meets all

the eligibility requirements for treatment in lieu of conviction?” Id. at pp. 34-35. Both the

State and defense answered “yes” to this question. Id. at p. 35.

        {¶ 18}   The trial court then expressed confusion about how Loges's drug use would be a

factor under R.C. 2951.041(B)(6), i.e., a factor leading to the criminal offense, when Loges was

not dependent on Dilaudid at the time of the first theft. In response, the defense stressed that the

statute does not place a time limit on when usage is supposed to be a factor. The defense added

that although Loges stole the drug when she was not addicted, her testimony was that the drugs

took hold of her during the time when she became addicted and continued to steal. The State

agreed with the defense. The State noted that more than one incident had occurred, but the State

had elected to charge on only one count for one date in September, which was intended to be

representative of the entire course of conduct. The State again agreed with the defense that

Loges's conduct after the initial incident would meet that particular prong of the ILC statute. Id.

at p. 37.

        {¶ 19}   At the conclusion of the hearing, the trial court gave the attorneys two weeks to

research the point the court had mentioned. The trial court also said that if the attorneys could

not find cases on point, they could articulate their positions in writing. Loges filed a response,

but the State apparently elected not to do so.

        {¶ 20}   On April 27, 2012, the trial court overruled the motion for ILC in a very brief
                                                                                              7


entry.    The court did not discuss its reasons, but simply overruled the motion.              Loges

subsequently pled no contest to the single count of theft of drugs and was sentenced to one year

of community control. Loges now appeals from her conviction and sentence.



                   II. Did the Trial Court Err in Considering the Motion for ILC?

         {¶ 21}    The First and Second Assignments of Error are interrelated and will be

discussed together. Loges’s First Assignment of Error is as follows:

                  The trial court violated Appellant's due process rights by denying her

         motion for intervention in lieu of conviction despite the fact that she was

         statutorily eligible.

         {¶ 22}    Loges’s Second Assignment of Error states that:

         {¶ 23}    The trial court abused its discretion in overruling Defendant's motion for

intervention in lieu of conviction by requiring that Defendant satisfy a more stringent condition

than those contained in R.C. 2951.041.

         {¶ 24}    Under these assignments of error, Loges contends that the trial court erred in

denying her ILC motion when she was statutorily eligible. In particular, Loges argues that the

trial court inappropriately created its own criteria for deciding if Loges were eligible for ILC.

         {¶ 25}    ILC is governed by R.C. 2951.041.          “ ‘In enacting R.C. 2951.041, the

legislature made a determination that when chemical abuse is the cause or at least a precipitating

factor in the commission of a crime, it may be more beneficial to the individual and the

community as a whole to treat the cause rather than punish the crime.’ ” State v. Massien, 125

Ohio St.3d 204, 2010-Ohio-1864, 926 N.E.2d 1282, ¶ 10, quoting State v. Shoaf, 140 Ohio
                                                                                            8


App.3d 75, 77, 746 N.E.2d 674 (10th Dist.2000). “R.C. 2951.041 is not limited to offenders

charged with drug offenses. Rather, any offender charged with any qualifying offense may be

eligible for ILC so long as the trial court has ‘reason to believe that drug or alcohol usage by the

offender was a factor leading to the offender's criminal behavior.’ R.C. 2951.041(A)(1). ILC is

not designed as punishment, but rather as an opportunity for first-time offenders to receive help

for their dependence without the ramifications of a felony conviction.” Id., citing State v.

Ingram, 8th Dist. Cuyahoga No. 84925, 2005-Ohio-1967, ¶ 13.

       {¶ 26}    At the time of Loges’s application for ILC, R.C. 2951.041(B) stated that a

defendant would be eligible for intervention in lieu of conviction if the court found a list of ten

factors to be present. There is no dispute about the presence of nine of these factors – the only

issue concerns the existence of R.C. 2951.041(B)(6), which states that:

                The offender’s drug usage, alcohol usage, mental illness, or intellectual

       disability, whichever is applicable, was a factor leading to the criminal offense

       with which the offender is charged, intervention in lieu of conviction would not

       demean the seriousness of the offense, and intervention would substantially reduce

       the likelihood of any future criminal activity.

       {¶ 27}    We have previously held that “ ‘[e]ligibility determinations are matters of law

subject to de novo review.’ ” (Emphasis added.) State v. Smith, 2d Dist. Montgomery No.

24812, 2012-Ohio-3395, ¶ 7, quoting State v. Baker, 2d Dist. Montgomery No. 24510,

2012-Ohio-729, ¶ 8. Furthermore, “ ‘[i]f an offender satisfies all of the statutory eligibility

requirements for intervention, the trial court has discretion to determine whether a particular

offender is a good candidate for intervention.’ ” Massien, 125 Ohio St.3d 204, 2010-Ohio-1864,
                                                                                              9


926 N.E.2d 1282, at ¶ 11, quoting State v. Geraci, 10th Dist.               Franklin No. 04AP-26,

2004-Ohio-6128, ¶ 5.

       {¶ 28}    In the case before us, the trial court’s entry did not state the reasons for rejecting

ILC. However, the court’s sole focus in the hearing was on whether Loges met the statutory

criteria in the first part of R.C. 2951.141(B)(6), which requires that “the offender’s drug usage *

* * was a factor leading to the criminal offense with which the offender is charged.” Because

this issue involves an eligibility determination and not whether Loges is a good candidate for

ILC, we review the matter de novo.

       {¶ 29}    As was noted, the trial court expressed concern over the fact that Loges was not

drug-dependent at the time she first stole Dilaudid. However, the statute does not require that a

defendant be drug-dependent. In State v. Fullenkamp, 2d Dist. Darke No. 2001 CA 1543, 2001

WL 1295372 (Oct. 26, 2001), we concluded that the legislature did not intend a defendant’s

“drug or alcohol dependency or the danger of becoming dependent to remain the predicate

condition for eligibility.” Id. at *2. We noted that an earlier version of the statute indicated that

a court should accept a request for treatment in lieu of conviction if the court has reason to

believe that the offender “is a drug dependent person or is in danger of becoming a drug

dependent person * * *.” Id., quoting from former R.C. 2951.041(A).              However, under the

current version of the statute (which is still the same today in pertinent part as it was when

Fullenkamp was decided), a court may accept an offender’s request for intervention in lieu of

conviction if “the court has reason to believe that drug or alcohol usage by the offender was a

factor leading to the offender's criminal behavior * * *.” (Emphasis sic.) Id., quoting from

R.C. 2951.141(A)(1).
                                                                                            10


       {¶ 30}    In Fullenkamp, the trial court rejected a request for ILC because it did not

believe that the defendant’s alcohol problem was so grave that his future conduct would be linked

to alcohol or drug abuse problems. The defendant also did not have a history of “chronic alcohol

or drug dependency.” Id. at *1. Instead, the criminal charges appeared to be linked to an

incident of “ ‘binge’ ” drinking. Id.

       {¶ 31}    We concluded that the trial court had “impermissibly engrafted a more stringent

predicate condition for eligibility,” and that “the trial court acted arbitrarily and contrary to the

legislative intent expressed in R.C. 2951.041(A)(1) when it denied intervention solely because

Fullenkamp’s alcohol problem was not serious enough. All that the statute requires is that drug

or alcohol usage be a factor leading to the offender's criminal behavior, of which there is no

doubt in this case.” Id.

       {¶ 32} With regard to the criminal offense, the State selected the date for the single

count of drug theft as “representative of the entire course of conduct.” April 13, 2012 Transcript

of ILC Proceedings, p. 37. And, as the defense pointed out, although Loges had not previously

used Dilaudid before she initially stole it, she became addicted during the course of the criminal

conduct. The testimony from the drug counselor, which was undisputed, also was that Loges

was opiate dependent. Thus, drug usage was a factor in the behavior leading to the criminal

offense with which Loges was charged, as required by R.C. 2951.041(B)(6). The trial court

imposed an impermissible condition by requiring that Loges be drug-dependent when she first

took Dilaudid.

       {¶ 33}    We should stress that we have made no determination regarding whether Loges

is a good candidate for ILC. Although the trial court’s sole concern at the hearing appears to
                                                                                            11


have been eligibility under R.C. 2951.041(B)(6), the court failed to make any findings with

regard to Loges’s candidacy. Therefore, we can make no assumptions about this point, which is

committed to the discretion of the trial court.   Massien, 125 Ohio St.3d 204, 2010-Ohio-1864,

926 N.E.2d 1282, at ¶ 11. Accordingly, the judgment will be reversed, and this matter will be

remanded to the trial court for further proceedings.

       {¶ 34}    Loges’s First and Second Assignments of Error are sustained.



                                          III. Conclusion

       {¶ 35}    All of Loges’s assignments of error having been sustained, the judgment of the

trial court is Reversed, and this cause is Remanded to the trial court for further proceedings.




                                                   .............

FAIN, P.J. and DONOVAN, J., concur.




Copies mailed to:

Lisa Fannin
Jessica R. Moss
Hon. Douglas M. Rastatter
