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State v. Anderson

Court of Appeals of Ohio, First District, Hamilton

November 22, 2017

STATE OF OHIO, Plaintiff-Appellee,
JONATHAN ANDERSON, Defendant-Appellant.

         Criminal Appeal From: Hamilton County Municipal Court TRIAL NO. 16TRC-37598

          Paula Boggs Muething, City Solicitor, Natalia Harris, City Prosecutor, and Christopher Liu, Assistant City Prosecutor, for Plaintiff-Appellee,

          Raymond T. Faller, Hamilton County Public Defender, and Demetra Stamatakos, Assistant Public Defender, for Defendant-Appellant.


          Deters, Judge.

         {¶1} Defendant-appellant Jonathan Anderson appeals his conviction, following a bench trial, for operating a motor vehicle while intoxicated ("OVI") in violation of R.C. 4511.19(A)(1)(a). In two assignments of error, he challenges the sufficiency and weight of the evidence adduced to support his conviction. Because the state failed to present sufficient evidence that Anderson had "operated" his vehicle, we reverse his conviction and discharge him from further prosecution.

         State's Evidence at the Bench Trial


         At the bench trial, the state presented testimony from Cincinnati firefighters and paramedics Jeffrey Nienhaus, Daniel Drescher, and Chris Kieffer and Cincinnati police officer Justin Bittinger. Nienhaus, Drescher, and Kieffer testified that around 6:00 p.m. on September 9, 2016, they had responded to a report of a possible overdose in the parking lot at a city recreational facility. Upon their arrival, they found Anderson sitting in the driver's seat of a vehicle in the parking lot. He was unconscious. His head was tilted backward; he was sweaty and pale; his breathing was abnormally slow; and his pupils were pinpoint. Based on their training and experience, they suspected that Anderson had overdosed on an opiate.

         {¶3} Kieffer testified that the driver's side door of the vehicle was open. He walked to the passenger side, pulled the keys out of the ignition, and placed them on the roof of the vehicle. Kieffer could not recall if the vehicle was running, but he did not think that it was. Nienhaus and Drescher testified that Anderson was the only occupant in the vehicle and the engine was not running.

         {¶4} Nienhaus administered oxygen to Anderson, while Drescher administered a dose of Narcan. When Anderson did not respond, Drescher administered a second dose of Narcan intravenously. Anderson became responsive and his pupils dilated back to normal. Anderson was confused and unable to respond to questioning, so he was transported to the hospital for further treatment.

         {¶5} Officer Bittinger testified that when he arrived on the scene, the firefighters and paramedics were treating Anderson for a suspected opiate overdose. They told Officer Bittinger that they had given Anderson two doses of Narcan to revive him. After Anderson was transported to the hospital, Officer Bittinger searched Anderson's vehicle, but he did not find any drug paraphernalia. He then had Anderson's vehicle towed.

         {¶6} Officer Bittinger later spoke with Anderson at the hospital. He read Anderson his Miranda rights and BMV form 2555, which sets forth the administrative penalties for refusing to submit to chemical testing. Anderson denied operating the vehicle. He provided Officer Bittinger with the name of the person he claimed had operated the vehicle, but he refused to submit to a chemical test or to answer further questions.

         {¶7} Officer Bittinger testified that he had cited Anderson for OVI based on the statements of the treating firefighters and paramedics that they had discovered Anderson unconscious in the driver's seat of the vehicle with the keys in the ignition and they had to administer two doses of Narcan to revive him. He explained that it was typical for drug paraphernalia to be in close vicinity when a person has been abusing opiates. Officer Bittinger testified that "based on [his] training and experience, it was apparent to [him] that [Anderson had] overdosed and had operated his vehicle to that point while under the influence."

         {¶8} At the close of the state's evidence, Anderson moved for a judgment of acquittal, arguing that the state had failed to prove that he had operated the vehicle while he was impaired. The trial court denied Anderson's motion. Anderson did not testify in his defense or present any evidence. Following closing argument, the trial court found Anderson guilty. It sentenced him to 180 days in jail with credit for 46 days, and imposed a $375 fine, court costs and ...

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