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State v. Detienne

Court of Appeals of Ohio, Fourth District, Hens

December 11, 2017

STATE OF OHIO, CITY OF ATHENS, Plaintiff-Appellee,
v.
KERRY DETIENNE, Defendant-Appellant.

          Timothy Young, Ohio Public Defender, and Terrence K. Scott, Assistant Ohio Public Defender, Columbus, Ohio, for appellant.

          James Stanley, Athens City Prosecutor, Athens, Ohio, for appellee. Hoover, J.

          DECISION AND JUDGMENT ENTRY

          MARIE HOOVER, JUDGE

         {¶ 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 court.

         I. 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 school-related stress.

         {¶ 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 testing.

         {¶ 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 first degree.

         {¶ 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.[1]

         {¶ 7} Detienne timely appeals.

         II. Assignments of Error

         {¶ 8} Detienne assigns the following errors for our review:

         Assignment 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).

         Assignment 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).

         Assignment 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).

         III. Law and Analysis

         A. 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 medical authorization.

         {¶ 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, ΒΆ 23. A trier of fact "is free to believe all, part or none of the testimony of any witness who appears before ...


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