[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 Appellant 
Case No. 15-19-08 

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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 (“OVI”). 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 Department, 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 determined that the building 

was secured, law enforcement contacted Fensler (when he “was just 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 “takes 

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 with 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 

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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 represented 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 guilty. 

(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 training for OVI detection 

and standardized field sobriety testing and for advanced roadside 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 field-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 modified Romberg test. 

(Oct. 8, 2019 Tr. at 12-14). Officer McIntosh noticed that Fensler’s pupils remained 

“dilated, very large” when Officer McIntosh “put [his] flashlight 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 orders. 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 McIntosh 
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observed a “lack of convergence in [Fensler’s] left eye all three attempts.” (Id. at 

14). Finally, Officer McIntosh determined that Fensler’s “internal 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 ingesting “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 dosage” and that 

“when [he] was researching, when you take over the amount type [sic] of Benadryl, 

it makes your pupils enlarged, it causes jitteriness, restlessness, 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 impair 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 have 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 use of a stimulant or depressant”). 
Case No. 15-19-08 

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in a quantity over the recommended dosage “are jittery, fast moving, large pupils, 

hard to stand still, they usually talk really fast, and they mumble their words. They 

can’t realize that they’re doing it. Unusual grinding or clenching of the jaw, and 

fast hand movement, difficulty standing still.” (Id.). 

{¶6} Fensler testified in his defense that he is “an overanxious person” and 

that he “was overly really above and beyond anxious” when he arrived at Superior 

Auto to unlock the building for law enforcement because he “wasn’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 building first “and that 

added to [his] anxiety * * * because [he] was thinking there could be somebody in 

there.” (Id. at 29). 

{¶7} At the close of all evidence, the trial court found Fensler guilty of the 

OVI charge. (Id. at 32); (Doc. No. 12). That same day, the trial court sentenced 

Fensler to five days in jail, with those five days suspended conditioned on his 

completion of a certified driver’s intervention program; imposed 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. 12). 

{¶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 

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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 conviction 

is based on insufficient evidence. Specifically, Fensler contends that the State 

presented insufficient evidence that he operated a motor vehicle while under the 

influence of a drug of abuse. 

Standard of Review 

{¶10} “An appellate court’s function when reviewing the sufficiency of the 

evidence to support a criminal conviction is to examine the evidence admitted at 

trial to determine whether such evidence, if believed, would convince 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 conflicts nor assess the 

credibility of witnesses, as both are functions reserved for the trier of fact.” State v. 

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

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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) provides that this Court 

“may accept the appellant’s statement of the facts and issues as 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 reviewing the 

record, and for the following reasons, we conclude that appellant’s brief reasonably 

appears to sustain a reversal. 

{¶12} Fensler was convicted of OVI in violation of R.C. 4511.19, which 

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. 4511.19(A)(1)(a). 

“The definition of ‘drug of abuse’ is imported from R.C. 4506.01.” State v. 

Richardson, 150 Ohio St.3d 554, 2016-Ohio-8448, ¶ 14, citing R.C. 4511.181(E). 

“That term means ‘any controlled substance, dangerous drug as defined in section 

4729.01 of the Revised Code, or over-the-counter medication that, when taken in 
Case No. 15-19-08 

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quantities exceeding the recommended dosage, can result in impairment 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 that 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 (acknowledging 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 taken 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 Benadryl, when taken in 

a quantity exceeding the recommended dosage, can result in impairment of 

judgment or reflexes. Here, the State presented only the testimony of Officer 

McIntosh. Officer McIntosh’s testimony that “[f]our Benadryl is over the 

recommended dosage” and his “research” regarding the ingestion of Benadryl in a 

quantity exceeding the recommended dosage is insufficient to prove that Fensler 

was under the influence of a drug of abuse. Accordingly, we conclude (under the 
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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 could not 

have found beyond a reasonable doubt that Fensler operated a motor 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 error 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 the 

effective assistance of counsel under the Sixth and Fourteenth 

Amendments to the United States Constitution. Appellant did not 

knowingly, intelligently and voluntarily waive his right to counsel, 

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 request 

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 not knowingly, 
Case No. 15-19-08 

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intelligently, or voluntarily waive his right to counsel; (2) the trial court abused its 

discretion by denying his request to continue trial; and (3) the 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 particulars 

assigned and argued in his third assignment of error, we reverse 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.