[Cite as State v. Richardson, 2017-Ohio-9229.]




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

 STATE OF OHIO                                        :
                                                      :
         Plaintiff-Appellee                           :   C.A. CASE NO. 26191
                                                      :
 v.                                                   :   T.C. NO. 12CR3299
                                                      :
 CLINTON RICHARDSON                                   :   (Criminal Appeal from
                                                      :    Common Pleas Court)
         Defendant-Appellant                          :
                                                      :

                                                 ...........

                                                 OPINION

                         Rendered on the 22nd day of December, 2017.

                                                 ...........

ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

KRISTIN L. ARNOLD, Atty. Reg. No. 0088794, 1502 Liberty Tower, 120 W. Second
Street, Dayton, Ohio 45402
       Attorney for Defendant-Appellant

                                             .............
                                                                                       -2-


FROELICH, J.

       {¶ 1} Clinton Richardson was convicted after a bench trial in the Montgomery

County Court of Common Pleas of operating a vehicle while under the influence of drugs

or alcohol (prior felony OVI within 20 years/test refusal), a third-degree felony, and

endangering children, a first-degree misdemeanor. Specifically, the State asserted that

Richardson had driven while under the influence of hydrocodone; Richardson’s child was

in the vehicle at the time. On appeal, Richardson claimed that his convictions were

based on insufficient evidence and were against the manifest weight of the evidence.

       {¶ 2} On March 4, 2015, we vacated Richardson’s conviction on the ground that it

was based on insufficient evidence. State v. Richardson, 2015-Ohio-757, 29 N.E.3d 354

(2d Dist.). We reasoned that the State’s evidence “was not sufficient to establish a nexus

between Richardson’s impairment and any painkiller he was or was not taking.” Id. at ¶

26. In light of our holding, we did not address Richardson’s manifest weight argument.

       {¶ 3} The State appealed our judgment, and the Ohio Supreme Court reversed.

State v. Richardson, 150 Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993.               The

Supreme Court noted, as we found, that there was sufficient evidence to establish that

Richardson had ingested hydrocodone and that Richardson was impaired. However, the

Court further concluded that there was sufficient evidence to support his OVI conviction,

stating:

       The dissent asserts that no rational factfinder could have linked

       Richardson’s ingestion of hydrocodone with his demonstrated impairment.

       Dissenting opinion at ¶ 32. When the effects of a drug are sufficiently well

       known — as they are with hydrocodone — expert testimony linking
                                                                                        -3-


       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.

(Emphasis in original.) Id. at ¶ 19. The Supreme Court remanded the matter to this

appellate court for consideration of Richardson’s manifest weight argument.

       {¶ 4} For the following reasons, we conclude that Richardson’s convictions were

not against the manifest weight of the evidence. Accordingly, the trial court’s judgment

will be affirmed.

                           I. Factual and Procedural History

       {¶ 5} According to the State’s evidence, at approximately 4:30 p.m. on October

31, 2012, Richardson rear-ended Deborah Leopold’s vehicle as she waited at a traffic

light to turn left from Third Street onto Wayne Avenue in Dayton. Richardson had not

been driving fast, and there was no damage to Leopold’s vehicle. When Leopold got out

of her vehicle to talk with Richardson, she noticed that Richardson’s speech was “very

slurred and pretty much incomprehensible” and that he did not make eye contact. He

also “fumbled” with his wallet and dropped all of his cards on the street while looking for

his insurance information. Leopold did not notice any odor of an alcoholic beverage or

see any open containers or drugs in Richardson’s truck. She did notice that Richardson

had a small child in the back seat, and she was concerned about Richardson’s ability to

drive. She called the police.

       {¶ 6} Dayton Police Officer Jonathan Miniard and his partner responded to the
                                                                                         -4-


accident. Miniard approached Richardson in his vehicle and observed Richardson with

“both hands on the steering wheel kind of slumped forward staring ahead.” It took

Richardson a moment to register the officer’s presence. Miniard noticed a burnt smell,

and he learned that Richardson had tried to light a cigarette and it singed the side of his

hair. Richardson’s truck was still running, so Officer Miniard asked Richardson to turn it

off. Richardson “couldn’t figure out how to put it back into park;” Officer Miniard did that

for him and turned off the vehicle.

       {¶ 7} Officer Miniard asked Richardson to exit his vehicle. When he got out, he

slid out of the driver’s seat and was unsteady. The officer escorted Richardson to the

front of his cruiser. Miniard asked Richardson if he had drunk anything or taken any

medication. Richardson denied that he had consumed any alcohol, but stated that he

was on pain medication. When asked if he had taken any, Richardson responded,

“Yeah.” Miniard noticed that Richardson had slurred speech, seemed to have difficulty

understanding questions, and gave incoherent answers. Richardson told Miniard that

he had to get his son home.

       {¶ 8} Officer Miniard testified that he had been involved in numerous OVI

investigations in his 14 years as a Dayton police officer and that he had taken training

and refresher courses on OVI detection. Miniard decided to administer field sobriety

tests on Richardson, and he conducted the horizontal gaze nystagmus (HGN) test, the

walk and turn test, and the one-leg stand test. Miniard noticed a 45 degree angle of

nystagmus and slight jerking in Richardson’s eyes during the HGN test, which indicated

impairment. Richardson also had difficulty paying attention during the test. On the walk

and turn test, Richardson exhibited seven out of eight “clues” indicating possible
                                                                                              -5-


impairment. Officer Miniard marked three out of a possible four clues for impairment on

the one-leg stand test. Miniard concluded that Richardson was under the influence of

“some type of possibly narcotics,” and he placed Richardson under arrest.

       {¶ 9} Officer Miniard read Richardson BMV 2255 and asked him if he would

submit to a blood test.      Richardson refused.       No chemical tests were performed.

Richardson never indicated to Officer Miniard that he was having a medical emergency,

and he did not ask for medical treatment; Richardson had reported to the officer that he

had a bad back and problems with his neck prior to the accident. Miniard transported

Richardson to jail.

       {¶ 10} The parties stipulated at trial that Richardson was previously convicted of

felony OVI in State v. Richardson, Warren C.P. No. 2006 CR 23305.

       {¶ 11} On January 28, 2013, Richardson was indicted for OVI, in violation of R.C.

4511.19(A)(2), and endangering children, in violation of R.C. 2919.22(C)(1).                R.C.

4511.19(A)(2) provides:

       No person who, within twenty years of the conduct described in division

       (A)(2)(a) of this section, previously has been convicted of or pleaded guilty

       to a violation of this division, a violation of division (A)(1) or (B) of this

       section, or any other equivalent offense shall do both of the following:

               (a) Operate any vehicle, streetcar, or trackless trolley within this state

       while under the influence of alcohol, a drug of abuse, or a combination of

       them.

               (b) Subsequent to being arrested for operating the vehicle, streetcar,

       or trackless trolley as described in division (A)(2)(a) of this section, being
                                                                                          -6-


       asked by a law enforcement officer to submit to a chemical test or tests

       under [R.C. 4511.191], and being advised by the officer in accordance with

       [R.C. 4511.192] of the consequences of the person’s refusal or submission

       to the test or tests, refuse to submit to the test or tests.

Because Richardson had a prior felony OVI conviction, the OVI was charged as a third-

degree felony.    R.C. 2919.22(C)(1) prohibits operating a vehicle in violation of R.C.

4511.19 with a child in the vehicle.

       {¶ 12} Richardson subsequently moved to suppress the statements he made to

the police. After a hearing, the trial court ruled that the statements Richardson made

after exiting his car and prior to being placed in the cruiser were admissible. However,

the trial court suppressed the statements Richardson made in the cruiser prior to being

given Miranda warnings and, because he did not voluntarily waive his Miranda rights, all

statements made afterward.

       {¶ 13} Richardson waived a jury trial, and the matter was tried to the court. The

State offered the testimony of Ms. Leopold and Officer Miniard, as summarized above.

Richardson did not make a Crim.R. 29(A) motion at the end of the State’s case.

Richardson then testified on his own behalf, and presented the testimony of Dr. Charles

Russell; after questioning regarding his qualifications, the trial court found Dr. Russell to

be an expert in chemical dependency.

       {¶ 14} Richardson stated at trial that he had suffered numerous broken bones

(including both femurs, hip, elbow, vertebrae, and wrist) and other injuries and had been

to two different pain clinics in the past three years; for several years, he received a

prescription for “hydrocodone acetaminophen.” In October 2012, he generally took three
                                                                                       -7-


pills per day. He testified that he had run out of medication on October 29, 2012 (two

days before the accident), was suffering from hydrocodone withdrawal at the time of the

accident, and that he had not consumed alcohol or drugs. He testified that he was trying

to go to the hospital at the time of the accident.

       {¶ 15} Dr. Russell testified that Richardson was opiate tolerant on October 31,

2012, and that he was taking medication with 325 mg of acetaminophen and 10 mg of

hydrocodone, three times a day.         Dr. Russell described the symptoms of opiate

withdrawal and stated that the symptoms Richardson described were consistent with

withdrawal.    Dr. Russell concluded that “there’s a decent possibility that he was

withdrawing from opiates, but I wouldn’t call that a reasonable degree of medical

certainty.”

       {¶ 16} Upon consideration of the evidence, the trial court found Richardson guilty

of both offenses. On May 6, 2014, the trial court sentenced Richardson to one year in

prison for OVI, of which 120 days were mandatory, and to six months in jail for

endangering children, to be served concurrently. Richardson was required to attend and

complete mandatory drug and alcohol treatment. The trial court further ordered a lifetime

suspension of Richardson’s driver’s license and that his 1998 Dodge Ram truck be

forfeited to the Dayton Police Department. Richardson did not file a motion to stay his

sentence.

       {¶ 17} As discussed above, Richardson appealed from his convictions, claiming

that his convictions were against the manifest weight of the evidence and based on

insufficient evidence. Based on the remand from the Ohio Supreme Court, the matter is

now before us for consideration of Richardson’s manifest weight argument.
                                                                                           -8-


       {¶ 18} We note that Richardson died on February 5, 2016, while his appeal was

pending before the Ohio Supreme Court. Upon remand, we ordered the parties to advise

us how or whether this appeal should proceed in light of Richardson’s death. On August

9, 2017, we granted the State’s motion, pursuant to App.R. 29(A), to substitute

Richardson’s appellate counsel as the party/representative in this appeal.

                           II. Manifest Weight of the Evidence

       {¶ 19} “[A] weight of the evidence argument challenges the believability of the

evidence and asks which of the competing inferences suggested by the evidence is more

believable or persuasive.” State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-

525, ¶ 12; see Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d

517, ¶ 19 (“ ‘manifest weight of the evidence’ refers to a greater amount of credible

evidence and relates to persuasion”). When evaluating whether a conviction is against

the manifest weight of the evidence, the appellate court must review the entire record,

weigh the evidence and all reasonable inferences, consider witness credibility, and

determine whether, in resolving conflicts in the evidence, the trier of fact “clearly lost its

way and created such a manifest miscarriage of justice that the conviction must be

reversed and a new trial ordered.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678

N.E.2d 541 (1997), citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st

Dist.1983).

       {¶ 20} Because the trier of fact sees and hears the witnesses at trial, we must

defer to the factfinder’s decisions whether, and to what extent, to credit the testimony of

particular witnesses.    State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL

476684 (Aug. 22, 1997). The fact that the evidence is subject to different interpretations
                                                                                         -9-

does not render the conviction against the manifest weight of the evidence. Wilson at ¶

14. A judgment of conviction should be reversed as being against the manifest weight

of the evidence only in exceptional circumstances. Martin, 20 Ohio App.3d at 175.

       {¶ 21} In State v. May, 2d Dist. Montgomery No. 25359, 2014-Ohio-1542, we

discussed in detail the evidence that is required to prove a violation of R.C. 4511.19 based

on medication. We stated:

              [W]hen a prosecution under R.C. 4511.19(A)(1)(a) is based on

       driving under the influence of medication, the State must do more than

       simply present evidence that the defendant has taken the medication and

       shows signs of impairment.          The United States Food and Drug

       Administration has approved more than a thousand prescription drugs

       (which are “drugs of abuse” under Ohio law), all of which may have any

       number of different side effects. Not all side effects involve the impairment

       of judgment or reflexes. Although some medications may be familiar to

       some jurors, the various physiological effects of different medications [are]

       outside the common knowledge of most jurors and many trial judges.

              The essence of R.C. 4511.19(A)(1)(a) is to prohibit impaired driving

       while under the influence. It is certainly not intended to criminalize the

       operation of a vehicle by a person taking a cholesterol or blood pressure

       medication, let alone an anti-narcoleptic or ADHD prescription, unless that

       drug negatively influences the defendant’s driving abilities. And in many

       situations, especially those involving prescription drugs, this can only be

       proved by direct testimony linking the influence of the drug to the driving.
                                                                                        -10-


      This could be established through the testimony of an expert who is familiar

      with the potential side effects of the medication, or perhaps of a layperson

      (such as a friend or family member) who witnessed the effect of the

      particular drug on the defendant-driver.

             We therefore conclude 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, the 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.1

             We emphasize that the State is not required to support its case under

      R.C. 4511.19(A)(1)(a) with evidence of the exact amount of alcohol or the

      drug of abuse that was consumed or ingested by the defendant. It is often

      the case that, upon initiating a traffic stop, a police officer detects an odor

      of an alcoholic beverage on the driver and there is no available evidence as

      to the exact amount that the defendant consumed. However, as noted by

      the Ohio Supreme Court, “almost any lay witness, without having any

      special qualifications, can testify as to whether a person was intoxicated.”

      Columbus v. Mullins, 162 Ohio St. 419, 421, 123 N.E.2d 422 (1954). In all

      cases, a jury must determine, based on totality of the evidence, whether the


1
 This requirement does not extend to violations of R.C. 4511.19(A)(1)(b)-(j), since these
are per se violations based on the legislature’s implicit determinations that specific
concentrations of specific drugs negatively influence driving.
                                                                                       -11-


      defendant was driving under the influence of alcohol and/or a drug of abuse.

(Additional citations omitted.) May at ¶ 46-49. See also, e.g., State v. Husted, 2014-

Ohio-4978, 23 N.E.3d 253 (4th Dist.) (State failed to identify drug that was consumed, nor

was there evidence of how the unspecified drug affected the defendant or had the

potential to impair a person’s judgment or reflexes).

      {¶ 22} The Ohio Supreme Court’s ruling in Richardson did not change the

requirement that the State provide evidence of a nexus between the ingestion of a

substance of abuse and the driver’s impairment. Rather, the Supreme Court held that,

under the facts of this case, the State had presented sufficient evidence of that nexus.2

      {¶ 23} At trial, Officer Miniard and Leopold testified about Richardson’s behavior,

which reflected that Richardson was impaired at the time of the accident.         Miniard

testified in detail about the field sobriety tests that he conducted and that Richardson

performed poorly on each of those tests. The State also played a small portion of the

video from the police cruiser, which reflected that Richardson was slow to respond to

questions, inattentive, and needed assistance walking.

      {¶ 24} Richardson testified that he sought treatment for severe pain in June 2010

and was prescribed a variety of strong pain medications, including hydrocodone. In


2
 The Ohio Supreme Court accepted this case as both a jurisdictional appeal and certified
conflict case. The Supreme Court asked the parties to brief the following question:
“Once the State presents evidence that a person is impaired and has taken a specific
prescription medication, is the trier of fact able to draw a reasonable inference that the
driver has violated R.C. 4511.19(A)(1)(a) or R.C. 4511.19(A)(2), without evidence (lay or
expert) as to how the medication actually affects the driver and/or expert testimony about
whether the particular medication has the potential to impair a person's judgment or
reflexes?” State v. Richardson, 143 Ohio St.3d 1439, 2015-Ohio-3427, 36 N.E.3d 187,
quoting 2d Dist. Montgomery No. 26191 (May 27, 2015). In its opinion, the Supreme
Court decertified the conflict and declined to answer the certified-conflict question.
Richardson, 2016-Ohio-8448, at ¶ 11.
                                                                                         -12-


March 2012, Richardson saw Dr. Saleh, who prescribed a medication consisting of 10 mg

hydrocodone and 325 mg acetaminophen; at that time, Richardson took six tablets per

day. Richardson testified that, in October 2012, he generally took three pills per day.

As emphasized by the Supreme Court, the prosecutor asked Richardson at trial about the

portion of the video where Officer Miniard asked Richardson about what he had taken;

Richardson’s responses indicated that he had told the officer that he (Richardson) had

taken 30 mg of hydrocodone, which was consistent with Richardson’s having taken three

pills. The trial court reasonably concluded that Richardson had ingested hydrocodone.

       {¶ 25} As noted above, the Supreme Court found that the State had presented

evidence linking Richardson’s ingestion of hydrocodone to his demonstrated impairment.

The court concluded that the effects of hydrocodone were “well known” and that Officer

Miniard’s testimony provided evidence of a nexus between Richardson’s ingestion of

hydrocodone and his impairment.

       {¶ 26} In contrast, Richardson testified that he did not experience side effects from

hydrocodone and that, instead, he had been experiencing the effects of withdrawal from

hydrocodone at the time of the collision. When asked how the medication affected him,

Richardson responded, “By this point in time, I had been taking the painkiller medication

for so long they no longer had any real side effects, you know, that I felt any kind of

drowsiness, dizziness, feelings of euphoria, if you will, anything of that nature that would

cloud your judgment. Long ago, I stopped having these side effects. The narcotic

painkiller basically just did its job and numbed the pain.”       Defense counsel asked

Richardson if he suffered from confusion, disorientation, or problems with balancing,

walking, or focus while on hydrocodone; Richardson responded that he did not.
                                                                                      -13-


Richardson testified that he continued taking the combined acetaminophen/hydrocodone

medication until October 2012, at which time he was taking three per day. He stated,

“[B]y this time, I had been taking narcotic painkillers for, every day for two-and-a-half

years so I felt no side effects from those, whatsoever.”

       {¶ 27} During his testimony, Richardson also described his symptoms of

hydrocodone withdrawal. He stated that he had insomnia and had not slept for two

nights, he was disoriented, fatigued, weak, sweating, had cold chills, vomiting, and

diarrhea. Richardson testified that he suffered from all of those symptoms at the time of

the accident. Richardson further testified that he had suffered from withdrawal one prior

time in 2010, and he had similar symptoms. Richardson testified that he had run out of

medicine two days before the collision; he could not explain why he had run out.

       {¶ 28} Dr. Russell’s testimony focused on whether Richardson’s symptoms

constituted symptoms of withdrawal. On cross-examination, the State asked Dr. Russell

several questions related to whether Richardson’s medical records provided an

explanation for Richardson’s poor performance on the field sobriety tests. Richardson’s

medical records generally did not indicate that he suffered from conditions that would

affect his performance on the tests. Dr. Russell was not asked about the actual or

potential effects of 10 mg of hydrocodone on Richardson.

       {¶ 29} Considering all of the evidence presented at trial, we cannot conclude that

Richardson’s convictions were against the manifest weight of the evidence. There was

substantial evidence that Richardson was driving while impaired and there was conflicting

evidence as to whether Richardson’s poor performance on the field sobriety tests could

be explained by hydrocodone withdrawal.        Richardson testified that he was “opiate
                                                                                             -14-


tolerant” and denied having any side effects from his medication; he stated that

hydrocodone simply provided pain relief. However, the trial court could have concluded

that Richardson did not testify truthfully about his medication usage, particularly given

that he should have had a supply of medication to last until November 9, he could not

explain why he ran out of medication early, and he denied taking more than prescribed

(three per day).

       {¶ 30} In reaching its verdict, the trial court, as the trier of fact, was free to believe

all, part, or none of the testimony of each witness and to draw reasonable inferences from

the evidence presented. State v. Baker, 2d Dist. Montgomery No. 25828, 2014-Ohio-

3163, ¶ 28. Although the trial court could have reasonably found in Richardson’s favor,

we cannot conclude, given the Supreme Court’s holding, that trial court “lost its way” when

it found Richardson guilty of OVI and child endangering.

        {¶ 31} Richardson’s assignment of error based on manifest weight is overruled.

                                       III. Conclusion

       {¶ 32} The trial court’s judgment will be affirmed.

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

TUCKER, J., concurring in judgment only.

HALL, P.J., concurring:

       {¶ 33} I agree that Clinton Richardson’s conviction for driving under the influence

of hydrocodone is not against the manifest weight of the evidence.

       {¶ 34} I write separately to again express my disagreement with the extensive

quote from State v. May in paragraph 21 of the lead opinion. I do so not only because I

disagree with it but also because, in my view, the Supreme Court’s decision in this case
                                                                                         -15-

effectively overruled that portion of May.

       {¶ 35} In May, I concurred based on the overwhelming evidence of impairment by

alcohol intoxication, but I wrote then:

              * * * I write separately to express my disagreement with the following

       sentence: “We agree with [appellant] that, when a prosecution under R.C.

       4511.19(A)(1)(a) is based on driving under the influence of medication, the

       State must do more than simply present evidence that the defendant has

       taken the medication and shows signs of impairment.” (supra ¶ 46). And I

       disagree with the determination 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.” (supra ¶ 48). Neither comment is necessary

       to our disposition of this case because we conclude that “[t]he State

       presented overwhelming evidence that May drove her vehicle while under

       the influence of alcohol.” (supra ¶ 54). With that conclusion, discussion of

       the evidence required to show impairment by medicine or drugs is dicta.

       Moreover, I don’t agree with either quoted statement. It just depends.

May, 2014-Ohio-1542, at ¶ 57 (Hall, J., concurring).

       {¶ 36} In the Supreme Court’s decision in this case, the previously-quoted dicta

passage from May was rejected. The Supreme 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.” Richardson, 2016-Ohio-
                                                                                        -16-


8448, at ¶ 19. In addition, the Supreme Court noted that there was lay testimony

connecting Richardson’s impairment to hydrocodone. Id. Moreover, the Supreme Court

quoted and embraced my statement in our initial Richardson decision that “ ‘[o]n this

record, where it is undeniably apparent that the defendant was substantially impaired

because he had taken pain killers, more specifically hydrocodone, I do not believe it was

necessary to introduce evidence of the pharmaceutical properties of what he ingested to

find him guilty of driving under the influence.’ ” Id. at ¶ 8, quoting State v. Richardson,

2015-Ohio-757, 29 N.E.3d 354 (2d Dist.), ¶ 36 (Hall, J., dissenting).

       {¶ 37} In my view, the dicta from May quoted in paragraph 21 of the majority

opinion is not the law in Ohio.

                                       ..........


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Andrew T. French
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Hon. Barbara P. Gorman
