[Cite as Cleveland v. Turner,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 99183

CITY OF CLEVELAND PLAINTIFF-APPELLEE

vs.

GENE E. TURNER, II DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

Criminal Appeal from the Cleveland Municipal Court Case No. 2012-TRC-030650

BEFORE: E.T. Gallagher, J., S. Gallagher, P.J., and Keough, J.

RELEASED AND JOURNALIZED: July 18, 2013 ATTORNEY FOR APPELLANT

Dale M. Hartman 2195 South Green Road University Heights, Ohio 44121

ATTORNEYS FOR APPELLEE

Victor R. Perez Chief Assistant Prosecutor City of Cleveland Department of Law 601 Lakeside Avenue Room 106 Cleveland, Ohio 44114

Bridget E. Hopp Assistant City Prosecutor City of Cleveland The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 EILEEN T. GALLAGHER, J.:

{¶1} Defendant-appellant Gene E. Turner, II (“Turner”) appeals a judgment from

the Cleveland Municipal Court finding him guilty of two counts of driving under the

influence (“DUI”) and one count of impeding the flow of traffic. We find some merit to

the appeal, affirm in part, and reverse in part.

{¶2} Turner was charged with two counts of DUI in violation of Cleveland

Codified Ordinances (“CCO”) 433.01(a)(1) and one count of impeding the flow of traffic

in violation of CCO 433.04. At trial, Officer Andrew Williams (“Williams”) and his

partner, Officer Charles Moton (“Moton”), testified that they were traveling westbound

on Woodland Avenue near East 40th Street in Cleveland, when they observed Turner’s

vehicle blocking the westbound lanes. The car was stopped in the middle of the road

even though there was no stop sign or stoplight requiring the vehicle to be stopped. As

Williams approached the driver’s side of the car, he noticed the driver’s door was open

and Turner was seated in the driver’s seat, making car noises and moving the steering

wheel as if he were driving. The ignition was off, but the keys were in the ignition.

{¶3} Williams continually asked Turner if he was okay, but he was incoherent,

disoriented, and did not know where he was. Williams observed Turner’s eyes

“bouncing up and down,” which he explained is indicative of drug use. The officers

attempted to have Turner exit the vehicle in order to perform field sobriety tests. However, because he was unable to follow directions and was unable to stand on his own,

the officers arrested him for DUI and transported him to the central jail for a chemical

test. The officers believed Turner was under the influence of drugs as opposed to

alcohol because he had only a slight odor of alcohol but appeared to be intoxicated. At

the jail, Turner refused to provide a urine sample despite numerous requests over a period

of at least an hour.

{¶4} Turner, who testified on his own behalf, asserted that someone else parked

his car and left it in the road. This unnamed individual asked Turner to help him get the

car started and Turner was trying to start the car when the police arrived on the scene.

Turner denied that the police offered him field sobriety tests, that he was unable to stand

on his own, or that he was unable to answer the officer’s questions. He also testified that

the police only afforded him 20 minutes to produce a urine sample for the chemical test.

{¶5} The court found Turner guilty as charged. The court merged the two counts

of DUI and sentenced Turner to 180 days in jail and suspended 160 days. The court also

imposed a $1,675 fine for the DUI and a fine of $75 for impeding the flow of traffic.

The court suspended $1,100 of the DUI fine. This appeal followed.

{¶6} In his sole assignment of error, Turner argues his convictions are against the

manifest weight of the evidence. A manifest weight challenge questions whether the

prosecution met its burden of persuasion at trial. State v. Thomas,

,

(1982). When a defendant asserts that a conviction is against the

manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all 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. State v. Thompkins,

,

,

.

{¶7} Turner was convicted of operating a motor vehicle under the influence of a

drug of abuse in violation of CCO 433.01(a)(1), which states: “No person shall operate

any vehicle * * * within this state, if, at the time of the operation * * * [t]he person is

under the influence of * * * a drug of abuse.” A violation of CCO 433.01(a)(1)

constitutes a violation of R.C. 4511.19(A)(1), which has identical language. State v.

Zima,

,

,

. Therefore, to prove beyond

a reasonable doubt that Turner operated his car while under the influence of a drug of

abuse, the city of Cleveland was required to prove that Turner’s faculties were impaired

by the consumption of a drug of abuse. State v. Collins, 9th Dist. 11CA0027,

.

{¶8} A “drug of abuse” is defined, in relevant part, as “any controlled substance *

* *, any harmful intoxicant * * *, and any dangerous drug.” R.C. 3719.011(A). A

“controlled substance” is defined as “a drug, compound, mixture, preparation, or

substance included in schedule I, II, III, IV, or V [of R.C. 3719.41].” R.C. 3719.01(C).

A “dangerous drug,” is defined as “any drug” which, under the Federal Food, Drug, and

Cosmetic Act, is required to bear a label containing the warning “Caution: Federal law prohibits dispensing without prescription”; or “any drug” which, under R.C. Chapters

3715 or 3719, “may be dispensed only upon a prescription.” R.C. 4729.01(F)(1)(a) and

(b).

{¶9} R.C. 2925.01(I) defines “harmful intoxicant” as:

(1) Any compound, mixture, preparation, or substance the gas, fumes, or vapor of which when inhaled can induce intoxication, excitement, giddiness, irrational behavior, depression, stupefaction, paralysis, unconsciousness, asphyxiation, or other harmful physiological effects, and includes, but is not limited to, any of the following:

(a) Any volatile organic solvent, plastic cement, model cement, fingernail polish remover, lacquer thinner, cleaning fluid, gasoline, or other preparation containing a volatile organic solvent;

(b) Any aerosol propellant;

(c) Any fluorocarbon refrigerant;

(d) Any anesthetic gas.

(2) Gamma Butyrolactone;

(3) 1,4 Butanediol.

{¶10} 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,

,

(1991), paragraph one of the syllabus. In some instances, certain facts can only be

established by circumstantial evidence.

In other cases, circumstantial evidence may not be enough to prove the defendant’s guilt beyond a reasonable doubt and direct

evidence is necessary.

{¶11} 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.

{¶12} Although Turner argues his conviction is against the manifest weight of the

evidence, we reverse Turner’s DUI conviction on sufficiency grounds. “The court

cannot weigh the evidence unless there is evidence to weigh.” State v. Samples, 9th Dist.

No. 12CA0051-M,

. In this regard, State v. Collins, 9th Dist. No.

11CA0027,

, is instructive.

{¶13} In Collins, the Ninth District reversed the defendant’s DUI conviction on

grounds that the state failed to present sufficient evidence that Collins operated his

vehicle while under the influence of a drug of abuse. Although the defendant was unable

to perform any field sobriety tests and his eyes exhibited telltale signs of recent drug use,

there was no evidence to establish a nexus between the defendant’s impaired condition

and any type of drug abuse.1 Id. at ¶ 20. In reversing the conviction, the court explained:

1 The defendant in Collins provided the police with a blood sample for 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 [State v.

Strebler, 9th Dist. No. CA2645,

], 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 issue 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

testing, but the blood sample was lost in the mail and was unavailable for trial. arresting officer to a second prescription bottle in his car.

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 the influence of Methadone, the

officer’s testimony in this case did not establish that Collins was under the

influence of a drug of abuse. Id. at ¶ 16.

{¶14} 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. {¶15} Turner was also convicted of impeding the flow of traffic in violation of

CCO 433.04, which states: “No person shall stop or operate a vehicle at such a slow

speed as to impede or block the normal and reasonable movement of traffic, except when

stopping or reduced speed is necessary for safe operation or to comply with law.” R.C.

4511.01(HHH) defines the term “operate” as “to cause or have caused movement of a

vehicle * * * .” At trial, Turner conceded that the vehicle was in the middle of the

roadway and needed to be moved. Although he denied that he drove the vehicle into the

road, the court obviously did not find his testimony credible. The circumstantial

evidence established that he operated the vehicle and parked it in position that blocked the

flow of traffic. Therefore, the manifest weight of the evidence supports Turner’s

impeding the flow of traffic violation.

{¶16} The sole assignment of error is sustained in part and affirmed in part.

{¶17} Judgment is affirmed in part, reversed in part, and remanded to the trial

court to vacate the DUI conviction.

It is ordered that appellee and appellant share costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the Cleveland

Municipal Court to carry this judgment into execution. The defendant’s conviction

having been affirmed, any bail pending appeal is terminated. Case remanded to the trial

court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

EILEEN T. GALLAGHER, JUDGE

SEAN C. GALLAGHER, P.J., and KATHLEEN ANN KEOUGH, J., CONCUR