[Cite as State v. Fensler , 2020-Ohio-6892.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT VAN WERT COUNTY

STATE OF OHIO, PLAINTIFF-APPELLEE, CASE NO. 15-19-08

v. DUSTIN P. FENSLER, O P I N I O N

DEFENDANT-APPELLANT.

Appeal from Van Wert Municipal Court Trial Court No. TRC 1903338 Judgment Reversed and Cause Remanded Date of Decision: December 28, 2020

APPEARANCES:



### Scott R. Gordon for AppellantCase No. 15-19-08

-2- ZIMMERMAN, J. {¶1} Defendant-appellant, Dustin P. Fensler (“Fensler”), appeals the October 9, 2019 judgment of the Van Wert Municipal Court convicting him of operating a motor vehicle while under the influence of a drug of abuse (“OV I”). For the reasons that follow, we reverse. {¶2} On July 11, 2019, at approximately 11:04 p.m., Officer Austin McIntosh (“Officer McIntosh”), of the Van Wert Police Departmen t, encountered Fensler in conjunction with law enforcement’s investigation of an alarm call at Superior Auto. (Oct. 8, 2019 Tr. at 11). After it was determi ned that the building was secured, law enforcement contacted Fensler (when he “was ju st going to bed”)—an employee and key holder of Superior Auto—to report to the business to unlock the building. ( Id. at 9, 12, 28). According to Officer McIntosh, when Fensler arrived, his “pupils were dilated, his speech was very fast and mumbled, [and] he was making unusual movements with his jaw * * * .” ( Id. at 12). Suspecting that Fensler was impaired, Officer McIntosh asked Fensler to perform field-sobriety tests. ( Id. ). {¶3} Following the field-sobriety tests and his admission that he “t akes methadone in the mornings for an opiate addiction” “[a]nd that he took four Benadryl around 8:00 p.m.,” Fensler was arrested and charged wi th OVI in violation of R.C. 4511.19(A)(1)(a), a first-degree misdemeanor. ( Id. at 12-16); (Doc. No. 1).Case No. 15-19-08

-3- Subsequent to his arrest, Fensler submitted to a breath-alcohol -concentration (“BAC”) test, which reflected a blood-alcohol concentration of .000 grams by weight of alcohol per two hundred ten liters of his breath, and Fensler submitted to a urine test. (Oct. 8, 2019 Tr. at 15, 17). The state represe nted to the trial court that the results of the urine test were (allegedly) not available at the time of trial. ( Id. at 17). {¶4} On July 15, 2019, Fensler appeared and entered a plea of not gu ilty. (Doc. No. 3). The case proceeded to trial on October 8, 2019. (Oct. 8, 2019 Tr. at 1). At trial, Officer McIntosh testified that he completed tra ining for OVI detection and standardized field sobriety testing and for advanced roadsi de impaired driving enforcement. ( Id. at 15); (State’s Exs. B, C). Officer McIntosh testified that he inspected Fensler’s pupils and requested Fensler to perform fie ld-sobriety tests, including the horizontal gaze nystagmus (“HGN”) test, the walk and turn test, the one-leg stand test, the lack of convergence test, and the modif ied Romberg test. (Oct. 8, 2019 Tr. at 12-14). Officer McIntosh noticed that Fen sler’s pupils remained “dilated, very large” when Officer McIntosh “put [his] flashlig ht in his eyes * * * .” ( Id. at 13). Officer McIntosh did not observe any nystagmus clues “in the eyes, although he had difficulty following the pen and following orde rs. And once again, his hands moved.” ( Id. ). On the walk and turn and one-leg stand tests, Fensler exhibited difficulty with his balance. ( Id. at 13-14). Further, Officer McIntoshCase No. 15-19-08

-4- observed a “lack of convergence in [Fensler’s] left eye all thr ee attempts.” ( Id. at 14). Finally, Officer McIntosh determined that Fensler’s “inte rnal clock” was “delayed” because Fensler indicated that he reached 30 seconds during the modified Romberg test when 36 had elapsed. 1 ( Id. at 14-15). Officer McIntosh concluded that Fensler’s ability to operate a motor vehicle was impaired “based upon the field sobriety examinations.” ( Id. at 17). {¶5} Following the field-sobriety tests, Fensler admitted to ingesti ng “four Benadryl around 8:00 p.m. of the night of the stop.” ( Id. at 16). According to Officer McIntosh, “[f]our benadryl is over the recommended dosa ge” and that “when [he] was researching, when you take over the amount type [sic] of Benadryl, it makes your pupils enlarged, it causes jitteriness, restlessn ess, paranoia, unsteady on your feet, and it also affects your balance.” ( Id. ). Officer McIntosh testified that Benadryl taken in a quantity over the recommended dosage will i mpair a person’s ability to operate a motor vehicle. ( Id. ). Officer McIntosh further testified that he has had experience over the course of his employment with other individuals who have taken Benadryl in a quantity over the recommended dosage. ( Id. at 17). Through that experience, he has learned that individuals who ha ve taken Benadryl

1 “[T]he Romberg test * * * involves having a person stand with feet together, arms down, head tilted, [and] eyes closed, for 30 seconds.” State v. Matzinger , 4th Dist. Washington No. 16CA4, 2017-Ohio-324, ¶ 41. See Columbus v. Shepherd , 10th Dist. Franklin No. 10AP-483, 2011-Ohio-3302, ¶ 9 (noting that “the Romberg test * * * is a timed, 30-second test used to detect us e of a stimulant or depressant”).Case No. 15-19-08

-5- in a quantity over the recommended dosage “are jittery, fast mo ving, large pupils, hard to stand still, they usually talk really fast, and they mu mble their words. They can’t realize that they’re doing it. Unusual grinding or clenc hing of the jaw, and fast hand movement, difficulty standing still.” ( Id. ). {¶6} Fensler testified in his defense that he is “an overanxious per son” and that he “was overly really above and beyond anxious” when he ar rived at Superior Auto to unlock the building for law enforcement because he “was n’t 100 percent sure what was waiting inside. Could have been a bad guy.” ( Id. at 27-28). According to Fensler, law enforcement had him enter the buildin g first “and that added to [his] anxiety * * * because [he] was thinking there co uld be somebody in there.” ( Id. at 29). {¶7} At the close of all evidence, the trial court found Fensler gui lty of the OVI charge. ( Id. at 32); (Doc. No. 12). That same day, the trial court sentence d Fensler to five days in jail, with those five days suspended co nditioned on his completion of a certified driver’s intervention program; impose d a $375 fine; and suspended his operator’s license for one year. ( Id. at 40-41); ( Id. ). The trial court filed its judgment entry of sentence the next day. (Doc. No. 1 2). {¶8} Fensler filed his notice of appeal on November 7, 2019. (Doc. No. 13). He raises four assignments of error for our review. Because it is dispositive, we address only Fensler’s third assignment of error.Case No. 15-19-08

-6- Assignment of Error No. III The Trial Court erred in finding Appellant guilty of operating a motor vehicle under the influence, a violation of R.C. §4511.19(A)(1)(a), based only on the Police Officer’s testimony and unqualified expert opinion. {¶9} In his third assignment of error, Fensler argues that his OVI c onviction is based on insufficient evidence. Specifically, Fensler conte nds that the State presented insufficient evidence that he operated a motor vehicl e while under the influence of a drug of abuse. Standard of Review {¶10} “An appellate court’s function when reviewing the sufficiency o f the evidence to support a criminal conviction is to examine the evi dence admitted at trial to determine whether such evidence, if believed, would co nvince the average mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks , 61 Ohio St.3d 259 (1981), paragraph two of the syllabus, superseded by state constitutional amendment on other grounds , State v. Smith , 80 Ohio St.3d 89 (1997). Accordingly, “[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” Id. “In deciding if the evidence was sufficient, we neither resolve evidentiary conflic ts nor assess the credibility of witnesses, as both are functions reserved for th e trier of fact.” State v.

Jones , 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775 , ¶ 33,Case No. 15-19-08

-7- citing State v. Williams , 197 Ohio App.3d 505, 2011-Ohio-6267, ¶ 25 (1st Dist.). See also State v. Berry , 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19 (“Sufficiency of the evidence is a test of adequacy rather than credibility or weight of the evidence.”), citing Thompkins at 386. Analysis {¶11} As an initial, procedural matter, we note that the State failed to file an appellee’s brief. Under these circumstances, App.R. 18(C) prov ides that this Court “may accept the appellant’s statement of the facts and issues a s correct and reverse the judgment if appellant’s brief reasonably appears to sustain such action.” See State v. Montgomery , 3d Dist. Putnam No. 12-13-11, 2014-Ohio-1789, ¶ 9; State v.

Newman , 3d Dist. Henry No. 7-10-07, 2010-Ohio-5406, ¶ 8. After revie wing the record, and for the following reasons, we conclude that appella nt’s brief reasonably appears to sustain a reversal. {¶12} Fensler was convicted of OVI in violation of R.C. 4511.19, whic h prohibits persons from operating a vehicle while “[t]he person is under the influence of alcohol, a drug of abuse, or a combination of them.” R.C. 4 511.19(A)(1)(a). “The definition of ‘drug of abuse’ is imported from R.C. 4506.0 1.” State v.

Richardson , 150 Ohio St.3d 554, 2016-Ohio-8448, ¶ 14, citing R.C. 4511.18 1(E). “That term means ‘any controlled substance, dangerous drug as d efined in section 4729.01 of the Revised Code, or over-the-counter medication tha t, when taken inCase No. 15-19-08

-8- quantities exceeding the recommended dosage, can result in impa irment of judgment or reflexes.’” Id. , quoting R.C. 4506.01(M). {¶13} Under the State’s theory of the case, Fensler operated a motor vehicle

while under the influence of an over-the-counter medication tha t was taken in a quantity exceeding the recommended dosage—namely, Benadryl. See State v.

Jones , 5th Dist. Licking No. 05 CA 59, 2006-Ohio-916, ¶ 21 (acknowle dging that Benadryl is an over-the-counter medication). See also In re D.R. , 3d Dist. Shelby No. 17-17-21, 2018-Ohio-3434, ¶ 33. Accordingly, to prove that Benadryl is a drug of abuse, the State was required to prove that Benadryl, when t aken in a quantity exceeding the recommended dosage, can result in impairment of judgment or

reflexes. {¶14} Based on the specific facts and circumstances of this case, we conclude that the State presented insufficient evidence that Be nadryl, when taken in a quantity exceeding the recommended dosage, can result in impa irment of judgment or reflexes. Here, the State presented only the testi mony of Officer McIntosh. Officer McIntosh’s testimony that “[f]our Benadryl i s over the recommended dosage” and his “research” regarding the ingestion of Benadryl in a quantity exceeding the recommended dosage is insufficient to pr ove that Fensler

was under the influence of a drug of abuse . Accordingly, we conclude (under theCase No. 15-19-08

-9- facts presented) that the State presented insufficient evidence that Benadryl, when taken in a quantity exceeding the recommended dosage, is a drug of abuse. {¶15} For these reasons, we conclude that a rational trier of fact co uld not have found beyond a reasonable doubt that Fensler operated a mo tor vehicle while under the influence of a drug of abuse. Accordingly, Fensler’s OVI conviction is based on insufficient evidence and his third assignment of erro r is sustained. Assignment of Error No. I The Trial Court erred in not advising Appellant of the risk of selfrepresentation, which resulted in the denial to Appellant of th e effective assistance of counsel under the Sixth and Fourteenth Amendments to the United States Constitution. Appellant did no t knowingly, intelligently and voluntarily waive his right to cou nsel, neither verbally nor in writing, pursuant to Ohio Criminal Rule 44(C). Assignment of Error No. II The Trial Court erred in its refusal to grant Appellant’s reque st for a continuance which was made on the basis that the Results of the urine test which was submitted voluntarily by Appellant at the State’s request, had not yet been made available. Assignment of Error No. IV The Trial Court erred in finding Appellant guilty of operating a motor vehicle under the influence, a violation of R.C. §4511.19(A)(1)(a), without awaiting the results of a urine test , which would have provided exculpatory evidence. {¶16} In his first, second, and fourth assignments of error, Fensler argues that his OVI conviction should be reversed because (1) he did n ot knowingly,Case No. 15-19-08

-10- intelligently, or voluntarily waive his right to counsel; (2) t he trial court abused its discretion by denying his request to continue trial; and (3) th e urine-test results could have provided exculpatory evidence. {¶17} In light of our decision to sustain Fensler’s third assignment of error, his first, second, and fourth assignments of error are rendered moot, and we decline to address them. App.R. 12(A)(1)(c); State v. Walsh , 1st Dist. Hamilton No. C160268, 2017-Ohio-549, ¶ 6. See State v. Maxwell , 11th Dist. Lake No. 99-L-042, 2001 WL 1078257, *6 (Aug. 31, 2001). See also Thompkins , 78 Ohio St.3d at 387 (noting that “retrial is barred if the reversal was based upon a finding that the evidence was legally insufficient to support the conviction”). {¶18} Having found error prejudicial to the appellant herein in the p articulars assigned and argued in his third assignment of error, we revers e the judgment of the trial court and remand for further proceedings. Judgment Reversed and Cause Remanded WILLAMOWSKI, J., concurs. SHAW, P.J., concurring in Judgment Only.