State v. Comer

[Cite as State v. Comer, 2018-Ohio-2264.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. CA2017-09-135

: OPINION
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:

DANNY L. COMER, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
Case No. 17CR32647

David P. Fornshell, Warren County Prosecuting Attorney, Kathryn M. Horvath, 520 Justice
Drive, Lebanon, Ohio 45036, for plaintiff-appellee

Bryan Scott Hicks, P.O. Box 359, Lebanon, Ohio 45036, for defendant-appellant

HENDRICKSON, J.

{¶ 1} Defendant-appellant, Danny L. Comer, appeals from his convictions in the

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

(OVI) of a drug of abuse. For the reasons set forth below, we affirm appellant's convictions.

{¶ 2} At approximately 5:00 p.m. on December 27, 2016, Amy Hollandsworth was

driving south on U.S. Route 42 towards Lebanon, Ohio. As she approached an intersection,

a vehicle driven by appellant pulled out in front of her. Hollandsworth slammed on her brakes
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to avoid a collision. Hollandsworth followed behind appellant's vehicle, and she noticed that

appellant was swerving back and forth on the road. Hollandsworth observed that appellant's

driving caused multiple vehicles traveling in the opposite direction to pull off the road to avoid

an accident. Hollandsworth honked her vehicle's horn at appellant several times, but he did

not respond. Hollandsworth believed appellant was a danger to other cars on the road and

she called the police to report his driving. She provided a description of the vehicle and

noted that the vehicle had pulled into the A1 Carryout in Lebanon.

{¶ 3} Sergeant Matthew Weithofer of the Lebanon Police Department was on patrol

near the A1 Carryout when he received a dispatch about a possible intoxicated driver. He

saw the vehicle matching Hollandsworth's description pull out of the carryout and travel

southbound on U.S. 42. Weithofer followed the vehicle for about a mile and observed that it

was traveling in a weaving course, moving back and forth within the lane. He also observed

the vehicle make an abrupt left turn into a bank parking lot without using a turn signal.

Weithofer followed the vehicle into the parking lot and initiated a traffic stop.

{¶ 4} Weithofer approached appellant's vehicle and was advised by appellant that his

driver's license was suspended. Appellant informed Weithofer that he lived in Miamisburg,

Ohio but was traveling from work in Vandalia, Ohio to a home near a Dodge dealership to

take a shower. Weithofer noticed that appellant's eyelids were droopy, he was slurring his

speech, and he was speaking with abnormal pauses. Weithofer did not notice the odor of an

alcoholic beverage. Appellant advised Weithofer that he was taking Neurontin. Based on his

training and experience, Weithofer knew Neurontin was a central nervous system depressant

that can cause symptoms and behavior that mimics alcohol intoxication, including sluggish or

slow movements, slurred speech, and disorientation.

{¶ 5} After observing that appellant displayed signs associated with the effects of

Neurontin, Weithofer asked appellant to exit the vehicle so that a field sobriety test could be
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administered. Appellant refused to take the field sobriety test, and when asked how much

Neurontin he had taken, responded that he "didn't want to go to jail."

{¶ 6} Appellant was placed under arrest and his vehicle searched by Officer Steven

Morris. Morris found six Neurontin in a prescription pill bottle that had the label ripped off.

Appellant did not produce a prescription for the Neurontin.

{¶ 7} Appellant was transported to the Lebanon police station. While en route to the

station, he engaged in cordial conversation, but his speech remained slurred. At the station,

appellant was read the BMV 2255 form, informing him of the consequences of refusing a

chemical test. When he was asked to submit to a urine test, appellant questioned what

drugs the test would screen for, specifically inquiring if it would screen for marijuana.

Appellant ultimately ended up refusing to take the chemical test.

{¶ 8} At the police station, Weithofer looked over appellant's driving record and

noticed that the December 27, 2016 OVI charge would be appellant's sixth OVI charge in 20

years. Weithofer advised appellant that the charge would be for a felony OVI, rather than a

misdemeanor OVI. After being informed of the felony charge, appellant's behavior and

demeanor rapidly changed. He became agitated and upset, started yelling about going back

to prison, and refused orders to remain seated. Due to his erratic behavior, appellant was

placed in handcuffs before being escorted to Weithofer's vehicle so that he could be

transported to jail.

{¶ 9} While being transported to jail, appellant became verbally abusive towards

Weithofer, calling him names and using foul language. When being booked into jail,

appellant made a threat towards Weithofer's children, stating Weithofer "better hope

[appellant] never catches [Weithofer's] kid's out."

{¶ 10} On January 23, 2017, appellant was indicted on one count of OVI in violation

of R.C. 4511.19(A)(1)(a) (count one) and one count of OVI in violation of R.C.
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4511.19(A)(2)(a)-(b) (count two), both felonies of the fourth degree. Both counts were

accompanied by a specification charging appellant with having committed five or more

equivalent offenses within the last 20 years in violation of R.C. 2941.1413(A).

{¶ 11} Appellant entered a not guilty plea to the charges, and a jury trial commenced

on June 29, 2017. The defense stipulated appellant had five or more prior OVI convictions

within the last 20 years. The state then called as witnesses Hollandsworth, Weithofer,

Morris, and Officer Travis O'Neil, who testified to the events related above. The state also

presented testimony from Sherri Zapadka, a pharmacist and compliance specialist employed

by the Ohio State Board of Pharmacy. Zapadka was qualified as an expert in the area of

prescription medication, and she testified about the prescription drug Neurontin (generic

name gabapentin) and the side effects of said drug. Zapadka explained the drug is a central

nervous system depressant that is used to treat seizure disorders, nerve pain associated with

the shingles virus, post-surgical nerve pain, diabetic neuropathy, and certain social phobias.

Twenty-eight percent of the people taking the drug experience dizziness as a side effect and

21 percent also experience drowsiness or sleepiness. Other side effects from the drug

include fatigue, trouble controlling body movements, eye nystagmus, and dramatic emotional

mood changes. Zapadka explained the side effects of dizziness and drowsiness are "very

high" and that approximately seven to 16 percent of patients prescribed the drug stop taking

it because they cannot handle the dizziness and drowsiness. She stated that the side effects

of the drug mimic some of the side effects of alcohol intoxication, such as droopiness of the

eyes as well as slurring or trouble pronouncing words when speaking. Zapadka explained

that it is possible to take Neurontin as prescribed yet still have signs of impairment such that

one should not drive or operate heavy machinery, and that an individual who has been sleep

deprived would see an increase in drowsiness and fatigue. Finally, Zapadka testified that

Neurontin is a drug that is abused and that some people take the drug to get "psychedelic

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euphoric symptoms."

{¶ 12} On behalf of his defense, appellant called his former employer as a witness.1

Appellant's former employer testified that appellant worked "on and off" for his construction

company for several years. At the time of appellant's arrest, appellant had been working

overnight hours at a job site in Vandalia to keep portable heaters running to avoid pipes from

freezing. According to the employer, appellant usually worked eight-to-ten hour shifts

overnight. The evening before his arrest, appellant had been working. However, the

employer was unsure how long appellant had worked or when he finished his shift. The

employer knew that appellant had left the job site for a while, before returning on December

27, 2016 around 9:00 a.m. or 10:00 a.m. Appellant worked until around 4:00 p.m. or 5:00

p.m. that day. According to the employer, appellant looked sleep deprived on December 27,

2016, and the employer had observed appellant nodding off a few times that day.

{¶ 13} The employer also testified that he knew appellant took Neurontin, but he had

not seen a prescription for the drug. He also did not know how much Neurontin appellant

had been taking or whether appellant was taking the prescribed amount. The employer

therefore admitted on cross-examination that he could not say for certain that appellant's

drowsiness and sleepiness on December 27, 2016 was caused by sleep deprivation, rather

than appellant's ingestion of Neurontin.

{¶ 14} After considering the foregoing testimony, the jury found appellant guilty of

both OVI charges and their accompanying specifications. The offenses were merged for

sentencing, with the state electing to proceed on count two. Appellant was sentenced to 24

months in prison on count two, to run consecutively to the two-year mandatory prison term

imposed on the specification, for a total of a four-year prison term. The court imposed a

1. Appellant also called his girlfriend as a witness. However, once called to the stand, appellant's girlfriend
invoked her Fifth Amendment right against self-incrimination.
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$1,350 fine and suspended appellant's license for 15 years.

{¶ 15} Appellant appealed his conviction, raising the following as his sole assignment

of error:

{¶ 16} THE VERDICT WAS AGAINST THE SUFFICIENCY OF THE EVIDENCE AS

WELL AS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 17} Appellant argues his OVI convictions are not supported by sufficient evidence

and are against the manifest weight of the evidence. He contends that the state failed to

prove beyond a reasonable doubt that it was his use of Neurontin, and not merely fatigue,

that led to his impaired driving. He further argues "the jury lost its way as they had no

evidence of how much or when Neurontin had been taken."

{¶ 18} Whether the evidence presented at trial is legally sufficient to sustain a verdict

is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997); State v. Grinstead,

194 Ohio App.3d 755, 2011-Ohio-3018, ¶ 10 (12th Dist.). When reviewing the sufficiency of

the evidence underlying a criminal conviction, an appellate court examines the evidence in

order to determine whether such evidence, if believed, would convince the average mind of

the defendant's guilt beyond a reasonable doubt. State v. Paul, 12th Dist. Fayette No.

CA2011-10-026, 2012-Ohio-3205, ¶ 9. Therefore, "[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. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

{¶ 19} On the other hand, a manifest weight of the evidence challenge examines the

"inclination of the greater amount of credible evidence, offered at a trial, to support one side

of the issue rather than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177,

2012-Ohio-2372, ¶ 14. To determine whether a conviction is against the manifest weight of

the evidence, the reviewing court must look at the entire record, weigh the evidence and all
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reasonable inferences, consider the credibility of the witnesses, and determine whether in

resolving the 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. Graham, 12th Dist. Warren No. CA2008-07-095, 2009-Ohio-2814, ¶ 66. In reviewing

the evidence, an appellate court must be mindful that the jury, as the original trier of fact, was

in the best position to judge the credibility of witnesses and determine the weight to be given

to the evidence. State v. Blankenburg, 197 Ohio App.3d 201, 2012-Ohio-1289, ¶ 114 (12th

Dist.). Therefore, an appellate court will overturn a conviction due to the manifest weight of

the evidence "only in the exceptional case in which the evidence weighs heavily against the

conviction." Id., citing State v. Thompkins, 78 Ohio St.3d 380, 387 (1997).

{¶ 20} Further, although the legal concepts of sufficiency of the evidence and weight

of the evidence are quantitatively and qualitatively different, "[a] determination that a

conviction is supported by the manifest weight of the evidence will also be dispositive of the

issue of sufficiency." State v. Jones, 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, ¶

19.

{¶ 21} Appellant was found guilty of OVI in violation of R.C. 4511.19(A)(1)(a), which

provides that "[n]o 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." Appellant was also found guilty of OVI in violation of R.C. 4511.19(A)(2)(a)-(b),

which prohibits an individual with an OVI conviction within 20 years of the charged offense

from operating a vehicle "while under the influence of alcohol, a drug of abuse, or

combination of them" and, after an OVI arrest, also prohibits the individual from refusing to

submit to chemical tests.2 He was further found guilty of the accompanying R.C.

2. Both OVI offenses were felonies of the fourth degree, as appellant had previously been convicted or pled
guilty to five or more instances of OVI within 20 years of the instant offenses. See R.C. 4511.19(G)(1)(d).
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2941.1413(A) specifications, which require a court to impose a mandatory prison term of one

to five years on a defendant if the defendant has been convicted of five or more OVI offenses

within the last 20 years.

{¶ 22} "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). R.C. 4729.01(F)(1), in turn, defines "dangerous drug" to mean, among

other things, a drug that "may be dispensed only upon a prescription." As Neurontin is a drug

that is available only with a prescription, and the drug's use could impair judgment or

reflexes, it is both a dangerous drug and "drug of abuse." The issue then becomes whether

the greater amount of credible evidence offered at trial demonstrated appellant ingested

Neurontin and that it impaired his driving.

{¶ 23} After reviewing the record, weighing inferences and examining the credibility of

the witnesses, we find that appellant's convictions for OVI under R.C. 4511.19(A)(1)(a) and

(A)(2)(a)-(b) are supported by sufficient evidence and are not against the weight of the

evidence. The state presented testimony and evidence from which the jury could have found

all the essential elements of the OVI offenses proven beyond a reasonable doubt. Contrary

to appellant's assertions, the state was not required to prove how much or when appellant

ingested the Neurontin. The state only had to prove that appellant ingested a drug of abuse,

that he operated his vehicle while impaired, and, with respect to count two, that he refused a

chemical test after being arrested for OVI.

{¶ 24} Here, the state presented evidence that appellant operated his vehicle while

under the influence of a drug of abuse. Both Hollandsworth and Weithofer observed
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appellant drive his vehicle in a weaving manner. Hollandsworth testified appellant was

driving dangerously and noted that she and other vehicles on the road had to either slam on

their brakes or pull off the side of the road to avoid a collision with appellant's vehicle.

{¶ 25} Weithofer, an officer with more than 11 years of experience who has been

trained in standardized field sobriety testing and advanced roadside impaired driving

enforcement and has been certified as a drug recognition expert, testified that appellant not

only had an unlabeled prescription pill bottle containing Neurontin in his vehicle, but appellant

also admitted to taking the drug and appeared to be under the influence of the drug.

Weithofer observed that appellant's eyelids were droopy, he was slurring his speech,

speaking with abnormal pauses, and had an erratic mood swing and change in behavior.

Zapadka and Weithofer both testified that these behaviors were side effects commonly

experienced by individuals who take the central-nervous-system depressant drug. Weithofer

further testified that after appellant was arrested, he refused to take a urine test so that the

presence and level of drugs in his system could be determined.

{¶ 26} Appellant argues that the weight of the evidence presented at trial

demonstrates he was operating the vehicle while sleep deprived and that fatigue, not

Neurontin, was to blame for his impaired driving, his drowsiness, and his abnormal speech.

He contends that because drowsiness is a side effect that only 21 percent of people

experience from taking Neurontin, it is more likely that his drowsiness and fatigue was

brought on by the fact that he worked himself into exhaustion.

{¶ 27} Although the jury heard testimony that appellant had been working overnight

hours and appeared to his employer to be fatigued, the jury was entitled to find that

appellant's impairment was caused by his use of Neurontin. Zapadka explained that an

individual who has been sleep deprived would see an increase in drowsiness and fatigue

when taking Neurontin. The jury was free to believe and rely on this testimony in convicting
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appellant. See State v. Woodard, 12th Dist. Warren No. CA2016-09-084, 2017-Ohio-6941, ¶

24 ("The jury, as the trier of fact, was free to believe all, part, or none of the testimony of

each witness who appear[ed] before it"). Appellant's OVI convictions are not against the

manifest weight of the evidence merely because the jury chose to believe the prosecution

testimony. State v. Lunsford, 12th Dist. Brown No. CA2010-10-021, 2011-Ohio-6529, ¶ 17.

{¶ 28} Accordingly, having thoroughly reviewed the record in the present case, we

find that the jury did not lose its way and create such a manifest miscarriage of justice such

that appellant's OVI convictions must be reversed and a new trial ordered. Appellant's

convictions are not against the manifest weight of the evidence and are, therefore,

necessarily supported by sufficient evidence. See Jones, 2013-Ohio-150 at ¶ 19.

{¶ 29} Appellant's sole assignment of error is overruled.

{¶ 30} Judgment affirmed.

S. POWELL, P.J., and M. POWELL, J., concur.

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