Court of Appeals of Ohio, First District, Hamilton
Appeal From: Hamilton County Municipal Court TRIAL NO.
Boggs Muething, City Solicitor, Natalia Harris, City
Prosecutor, and Christopher Liu, Assistant City Prosecutor,
Raymond T. Faller, Hamilton County Public Defender, and
Demetra Stamatakos, Assistant Public Defender, for
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
Evidence at the Bench Trial
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.
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.
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
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
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
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."
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 ...