[Cite as State v. Strebler,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 26405

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE WILLIAM STREBLER COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 11 08 2149

DECISION AND JOURNAL ENTRY

Dated: May 1, 2013

HENSAL, Judge.

{¶1} William Strebler appeals his conviction in the Summit County Common Pleas

Court for operating a vehicle under the influence of alcohol or drugs. For the following reasons,

this Court affirms.

I.

{¶2} On June 10, 2011, Richard Salster and Raymond Motil were in adjacent lanes at

the intersection of Waterloo Road and Brown Street in Akron, Ohio when Mr. Strebler drove his

car between their trucks, damaging Mr. Motil’s truck. According to the men, when Mr. Strebler

got out of his car, he was not wearing any shoes. He was also a little “rowdy,” causing the men

to think that he was intoxicated. When Officer Garry Ivey arrived, he learned what had

happened from Mr. Salster and Mr. Motil and also their suspicions about Mr. Strebler’s

condition. He asked Mr. Strebler to write down how the crash happened, but the statement Mr.

Strebler produced was largely incomprehensible and ended with the word “bowflex.” Officer 2

Ivey did not see any evidence that Mr. Strebler struck his head during the collision and Mr.

Strebler told him that he was uninjured, so he had Mr. Strebler perform three standardized field

sobriety tests. After noticing multiple indicators of impairment during two of the tests, he

arrested Mr. Strebler for operating under the influence.

{¶3} According to Officer Ivey, Mr. Strebler fell asleep in the back of his cruiser while

he was waiting to be transported to the police station. He testified that it was unusual for

someone to fall asleep shortly after they have been arrested. When they got to the station,

Officer Deborah Stalnaker administered a breathalyzer test on Mr. Strebler. The test showed that

Mr. Strebler did not have any alcohol in his system. When she asked him if he had taken any

drugs or medication, he answered that he was on tramadol and oxycodone to alleviate chronic

pain. The officers, therefore, arranged for his blood and urine to be tested. Officer Stalnaker

also administered several more sobriety tests and noted many additional signs of impairment.

{¶4} The blood test showed that Mr. Strebler had both medications in his system at the

time of the accident. The Grand Jury subsequently indicted him for operating under the

influence of drugs or alcohol under Revised Code Section 4511.19(A) and failing to maintain an

assured clear distance under Section 4511.21. At a trial to the bench, Mr. Strebler admitted that

he did not maintain an assured clear distance. He testified that the reason he was so disoriented

following the collision, however, was because he had suffered a concussion. Because he did not

submit any medical records or expert testimony to support his claim and there was no other

evidence that he had hit his head, the trial court found his explanation not credible. It found him

guilty of the offenses, and sentenced him to two years imprisonment. Mr. Strebler has appealed,

assigning two errors, which we have reordered for ease of consideration. 3

II.

ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED IN NOT GRANTING DEFENDANT’S CRIMINAL RULE 29 MOTION.

{¶5} Mr. Strebler argues that the trial court should have granted his motion for

judgment of acquittal because there was no evidence that he was impaired at the time of the

collision. Under Rule 29(A) of the Ohio Rules of Criminal Procedure, a defendant is entitled to

a judgment of acquittal on a charge against him “if the evidence is insufficient to sustain a

conviction * * *.” Whether a conviction is supported by sufficient evidence is a question of law

that this Court reviews de novo. State v. Thompkins,

(1997); State v.

West, 9th Dist. No. 04CA008554,

. This Court must determine whether,

viewing the evidence in a light most favorable to the prosecution, it could have convinced the

average finder of fact of Mr. Strebler’s guilt beyond a reasonable doubt. State v. Jenks,

(1991), paragraph two of the syllabus.

{¶6} Under Section 4511.19(A)(1)(a), “[n]o person shall operate any vehicle * * *

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

alcohol, a drug of abuse, or a combination of them.” Mr. Strebler does not contest that his

prescription medications qualify as drugs of abuse under Section 4511.19. This Court has

explained that:

In DUI prosecutions, the state is not required to establish that a defendant was actually impaired while driving, but rather, need only show an impaired driving ability. State v. Zentner, 9th Dist. No. 02CA0040,

, at ¶ 19, citing State v. Holland (Dec. 17, 1999), 11th Dist. No. 98-P-0066. ‘To prove impaired driving ability, the state can rely on physiological factors (e.g., odor of alcohol, glossy or bloodshot eyes, slurred speech, confused appearance) to demonstrate that a person’s physical and mental ability to drive was impaired.’ Holland, [supra], citing State v. Richards (Oct. 15, 1999), 11th Dist. No. 98-P-0069[.] Furthermore, ‘[v]irtually any lay witness, without special 4

qualifications, may testify as to whether or not an individual is intoxicated.’ Zentner at ¶ 19, quoting State v. DeLong, 5th Dist. No. 02CA35,

, at ¶ 60.

State v. Strebler, 9th Dist. No. 23003,

, quoting State v. Slone, 9th Dist. No.

04CA0103-M,

. “While the above reasoning is typically applied to alcohol

consumption, * * * it [is] equally applicable to determining whether an individual is under the

influence of a drug of abuse.”

{¶7} According to Mr. Strebler, even if he appeared to be impaired following the

accident, it was because he hit his head on a window during the collision. He argues that the

State did not present any evidence that he was impaired before the accident. He contends that

the reason he did not notice the trucks stopped at the intersection was because he had just visited

his dying mother and was distracted thinking about her. He notes that, when he realized that he

would not be able to stop in time, he successfully maneuvered his car between the two trucks to

lessen the effects of the collision. He also argues that, at trial, he was on the exact same

medication as he was on the day of the accident and was not impaired at all. He notes that the

court, in fact, found that his “demeanor and mode of speech causes the court to conclude that he

is a highly articulate and intelligent individual.”

{¶8} A toxicologist testified that, based on the amount of medication that was in Mr.

Strebler’s blood, whether it impaired him depended on his tolerance to the drugs. According to

the toxicologist, one individual with that level of drugs in his blood might be “completely

normal,” while another “would be passed out.” He also noted that whether the two drugs which

were present in Mr. Strebler’s system at the time would impair someone would depend on how

the drugs interacted with each other in the particular individual.

{¶9} Viewing the evidence in a light most favorable to the State, we conclude that it

presented sufficient evidence for the trial court to find that Mr. Strebler operated a vehicle under 5

the influence of a drug of abuse. Mr. Strebler does not dispute that he was impaired following

the accident. According to Officer Ivey, he did not see any obvious signs of injury on Mr.

Strebler after the collision. Mr. Strebler also said that he did not need medical attention. It,

therefore, was reasonable for the trial court to find that Mr. Strebler was as impaired before the

collision as he was after it. The toxicologist testified that the level of drugs in Mr. Strebler’s

blood would in some instances impair an individual’s ability to operate a motor vehicle.

Accordingly, there was some evidence that Mr. Strebler was under the influence of a drug of

abuse at the time of the accident. The trial court correctly denied his motion for judgment of

acquittal. Mr. Strebler’s second assignment of error is overruled.

ASSIGNMENT OF ERROR I

THE TRIAL COURT’S JUDGMENT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, IS AGAINST THE WEIGHT OF THE EVIDENCE AND IS NOT SUPPORTED BY THE EVIDENCE.

{¶10} Mr. Strebler also argues that his conviction for operating under the influence

under Revised Code 4511.19 is against the manifest weight of the evidence. When reviewing

manifest weight, this 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 trier of fact clearly lost its way and created such a manifest miscarriage of

justice that the conviction[s] must be reversed and a new trial ordered.” State v. Otten,

(1986).

{¶11} Mr. Strebler argues that the State failed to demonstrate that any impairment that

he experienced was because of the drugs he was taking as opposed to his head injury, lack of

sleep, and the anxiety that he had before and following the accident. He testified that the reason 6

he kept falling asleep while in police custody was because he had a concussion and his chronic

back pain prevents him from attaining sufficient uninterrupted sleep.

{¶12} In its decision, the trial court explained that, “[g]iven an evaluation of the manner

in which [Mr. Strebler] testified and the content of that testimony, the court finds [his]

explanations for his condition (namely his alleged inability to write, his lack of sleep, his being

distraught, and his suffering of a concussion) to be not credible.” Based on the record that is

before this Court, we are unable to say that the trial court clearly lost its way when it found that it

was Mr. Strebler’s medication, not other circumstances, that impaired his ability to operate a

motor vehicle. In particular, we note that, at the police station, despite telling Officer Stalnaker

about injuries that he had suffered many years earlier, Mr. Strebler insisted that he not presently

in need of any medical attention. His first assignment of error is overruled.

III.

{¶13} Mr. Strebler’s convictions are supported by sufficient evidence and are not against

the manifest weight of the evidence. The judgment of the Summit County Common Pleas Court

is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27. 7

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

JENNIFER HENSAL FOR THE COURT

WHITMORE, J. CONCURS.

BELFANCE, P. J. CONCURRING.

{¶14} I concur. With respect to Mr. Strebler’s second assignment of error, I agree that it

is properly overruled. A review of a Crim.R. 29 motion involves examining the sufficiency of

the State’s evidence. See, e.g., State v. Nurse, 9th Dist. No. 26363,

. That

evidence, when viewed in a light most favorable to the State, was sufficient to sustain a

conviction. Thus, I concur.

APPEARANCES:

THOMAS C. LOEPP, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.