Timothy Young, Ohio Public Defender, and Terrence K. Scott,
Assistant Ohio Public Defender, Columbus, Ohio, for
Stanley, Athens City Prosecutor, Athens, Ohio, for appellee.
DECISION AND JUDGMENT ENTRY
1} Defendant-appellant, Kerry Detienne,
("Detienne") appeals the judgment of the Athens
Municipal Court convicting him of Operating a Vehicle While
Under the Influence of a Controlled Substance and Failure to
Control. On appeal, Detienne contends that (1) his OVI
conviction is against the manifest weight of the evidence;
(2) his rights under the Confrontation Clause were violated;
and (3) he received ineffective assistance of counsel. For
the following reasons, we affirm the judgment of the trial
Facts and Procedural History
2} Around 7:30 a.m. on March 3, 2016, Detienne, a graduate
student at Ohio University, crashed his Buick sedan into a
utility pole on East State Street in Athens, Ohio. When
police arrived, they found Detienne sitting in the
driver's seat, dazed and confused. He had a laceration on
his face and complained of neck pain. Officer Desty Flick of
the Athens Police Department spoke with Detienne briefly
before EMS arrived and transported him to the hospital.
During their conversation, Detienne stated that he was
unaware of what caused the crash. His confusion, mumbled
speech, and constricted pupils caused Officer Flick to
suspect that he was impaired. When Officer Flick inquired
about drug or alcohol use, Detienne admitted to taking Zoloft
and Adderall earlier that day. He later indicated that he had
been trying some different drugs to help him manage
3} At the hospital, Officer Flick cited Detienne for
Operating a Vehicle Under the Influence of Alcohol or Drug of
Abuse in violation of R.C. 4511.19(A)(1)(a), a misdemeanor of
the first degree, and Failure to Control in violation of R.C.
4511.202, a minor misdemeanor. Detienne consented to a urine
test; and after collecting the sample, Officer Flick sent it
to The Ohio State University, Wexner Medical Center for
4} Later that month, Justine Pardi, a Clinical Lab
Technologist at Wexner Medical Center, tested the sample; and
it tested positive for hydroxyalprazolam, alprazolam,
chlorpheniramine, sertraline, and an amphetamine
concentration of 3, 286 nanograms per milliliter-more than
six times the legal limit. Based on this amphetamine
concentration, Detienne was cited for Operating a Vehicle
While Under the Influence of a Controlled Substance in
violation of R.C. 4511.10(A)(1)(j)(i), a misdemeanor of the
5} At trial, Detienne asserted the affirmative defense of
medical authorization. He argued that although he had drugs
in his system, he was not guilty of the OVI offenses because
he was taking the drugs pursuant to a lawful prescription
issued by a licensed health care professional.
6} Ultimately, Detienne was found guilty of Operating a
Vehicle While Under the Influence of a Controlled Substance
and Failure to Control but acquitted of Operating a Vehicle
Under the Influence of Alcohol or Drug of Abuse. He was
sentenced to 30 days in jail, a 180-day license suspension,
and a $775 dollar fine plus court costs.
7} Detienne timely appeals.
Assignments of Error
8} Detienne assigns the following errors for our review:
of Error No. I:
Kerry Detienne was denied his right to due process and a fair
trial when the jury found him guilty of operating a vehicle
with a prohibited concentration of a drug of abuse against
the manifest weight of the evidence. Fifth and Fourteenth
Amendments, United States Constitution; Article I, Section 10
and 16, Ohio Constitution. (Tr. p. 157-160, 168-170, and
188-189; Exhibit C).
of Error No. II:
The trial court violated Mr. Detienne's rights to due
process and a fair trial when the trial court permitted the
introduction of a testimonial laboratory report at trial
without the author's testimony, in violation of the Sixth
and Fourteenth Amendments to the United States Constitution
and Article I, Sections 5, 10, and 16 of the Ohio
Constitution. Bullcoming v. New Mexico, 564 U.S.
647, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011);
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129
S.Ct. 2527, 174 L.Ed.2d 314 (2009). (Tr. p. 100-104, 127 and
122-125; Exhibit C).
of Error No. III:
Mr. Detienne was denied the effective assistance of counsel
at his trial, to which he was entitled to under the Sixth and
Fourteenth Amendments to the United States Constitution. Mr.
Detienne's counsel failed to comply with R.C.
4511.19(E)(3). Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d. 674 (1984); Crawford v.
Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177
(2004). (MTr. [sic] p. 85-87; May 23, 2016, Journal Entry).
Law and Analysis
Detienne's Conviction was not Against the Manifest Weight
of the Evidence
9} In his first assignment of error, Detienne contends that
his conviction of Operating a Vehicle While Under the
Influence of a Controlled Substance is against the manifest
weight of the evidence since he established, by a
preponderance of the evidence, the affirmative defense of
10} In determining whether a criminal 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 trier of fact clearly lost its way and created
such a manifest miscarriage of justice that the conviction
must be reversed. State v. Thompkins, 78 Ohio St.3d
380, 387, 678 N.E.2d 541 (1997); State v. Hunter,131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶
119. "Although a court of appeals may determine that a
judgment of a trial court is sustained by sufficient
evidence, that court may nevertheless conclude that the
judgment is against the weight of the evidence."
Thompkins at 387. But the weight and credibility of
evidence are to be determined by the trier of fact. State
v. West, 4th Dist. Scioto No. 12CA3507, 2014-Ohio-1941,
¶ 23. A trier of fact "is free to believe all, part
or none of the testimony of any witness who appears before