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City of Cleveland v. Turner

Court of Appeals of Ohio, Eighth District

July 18, 2013

CITY OF CLEVELAND, PLAINTIFF-APPELLEE
v.
GENE E. TURNER, II DEFENDANT-APPELLANT

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

ATTORNEY FOR APPELLANT Dale M. Hartman.

ATTORNEYS FOR APPELLEE Victor R. Perez Chief Assistant Prosecutor City of Cleveland Department of Law, Bridget E. Hopp Assistant City Prosecutor City of Cleveland The Justice Center.

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

JOURNAL ENTRY AND OPINION

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, 70 Ohio St.2d 79, 80, 434 N.E.2d 1356 (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, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541.

{¶ 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, 102 Ohio St.3d 61, 2004-Ohio-1807, 806 N.E.2d 542. 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, 2012-Ohio-2236.

{ΒΆ 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 ...


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