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Date: 06-24-2021
Case Style:
STATE OF OHIO - vs - CHERRY MARTIN-PALEY
Case Number: CA2020-05-032
Judge: Michael E. Powell
Court: IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
Plaintiff's Attorney: David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt
Defendant's Attorney:
Description:
Middletown, Ohio - Criminal defense attorney represented Cherry Martin-Paley with a operating a vehicle while under the influence of alcohol or drug of abuse charge.
Appellant was charged with OVI, a first-degree misdemeanor in violation of
R.C. 4511.19(A)(1)(a), and failure to maintain control, a minor misdemeanor in violation of Warren CA2020-05-032
R.C. 4511.202. The matter proceeded to a trial. The OVI offense was tried to a jury and
the failure to maintain control offense was tried to the bench. The state called four
witnesses to testify: Gail Nies, a motorist who initially reported appellant's erratic driving;
Corporal Ney and Officer Holbrook, the responding law enforcement officers; and Treena
Wiebe, a forensic toxicologist from the Montgomery County Coroner's Office and Miami
Valley Regional Crime Laboratory. The state’s evidence also included the laboratory
analysis report of appellant's urine sample collected after her arrest. In her defense,
appellant presented the testimony of Dr. Nelson, the medical doctor treating her for pain
management, and Dr. Greer, her primary care physician. Appellant’s evidence also
included medical records relating to a sleep study conducted on her by a third doctor. The
following facts were adduced from the trial.
{¶ 3} On March 24, 2019, Gail Nies, was driving on I-675 in Montgomery County,
Ohio when she observed another vehicle swerving and intermittently changing its speed.
Nies called 9-1-1 to report the erratic driving and expressed her concern that there must be
something wrong with the driver of the vehicle. Nies continued to follow the vehicle as it
traveled into Warren County, Ohio and kept watch until police could respond. Nies followed
the vehicle for 30 to 45 minutes. While she followed the vehicle, she observed it cross the
center line and drive into the oncoming lane of traffic dozens of times. Nies also saw the
vehicle drive off the road into an adjoining yard and strike a mailbox. Nies was present
when police officers stopped the vehicle.
{¶ 4} Clearcreek Township police officer, Corporal Ney, was the first law
enforcement officer to locate the vehicle. He was able to confirm that he had the correct
vehicle based on the license plate number and description provided by Nies. When Ney
first encountered the vehicle, he observed it stopped at a traffic light at the intersection of
State Route 48 and State Route 73. He noticed that the vehicle remained stationary at the Warren CA2020-05-032
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intersection through three light cycles. This suspicious behavior supported the 9-1-1 reports
from other motorists. Ney then initiated a traffic stop of the vehicle. The vehicle pulled over
at a local park on State Route 48.
{¶ 5} Upon approaching the vehicle, Ney found the driver, whom he identified as
appellant, slumped over and apparently asleep. Ney, who had experience with drivers
suffering from medical emergencies, inquired into appellant's well-being. Appellant
responded that she had a lot going on with her medical condition, was on a lot of medication,
and trying to find her way home. Appellant told the officer that she lived in Riverside. This
raised an additional concern as to appellant's impairment because her home was located
in the opposite direction from the direction she was traveling. Ney requested appellant's
license and registration. When she reached into her purse for her driver’s license, she
appeared to fall asleep again. Ney had to gently rouse her so that she could produce her
license and registration. Ney noticed that appellant displayed glassy eyes, slurred speech,
and had uncoordinated, slowed motor skills. Ney described appellant as disoriented and
confused.
{¶ 6} Ney returned to his police cruiser to verify appellant's identity. While
performing this task, a back-up Clearcreek Township police officer, Officer Holbrook,
arrived. Ney and Holbrook returned to appellant's vehicle and found that she had fallen
asleep again. Ney woke her up and asked her to exit the vehicle in order to conduct field
sobriety testing. Both officers testified that appellant had difficulty exiting the vehicle. Ney
attempted to administer the horizontal gaze nystagmus test, but appellant kept falling
asleep and needed help from Holbrook to remain standing. Ney decided not to conduct
further field sobriety testing based on appellant's condition. Holbrook, who is trained in
alcohol and drug impairment, testified that appellant appeared to be under the influence of
"some sort of depressant or narcotic" based on appellant's physiological condition during Warren CA2020-05-032
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the roadside investigation.
{¶ 7} Ney arrested appellant for OVI and transported her to the police department.
Appellant agreed to provide a urine sample for chemical testing, however, she again fell
asleep while providing the specimen. It took nearly an hour for appellant to successfully
complete the specimen collection process. After completing the collection, appellant sat at
a table and slept until her husband picked her up.
{¶ 8} The laboratory analysis of appellant's urine screen revealed the presence of
several drugs: desvenlafaxine, quetiapine, venlafaxine, diphenhydramine, diazepam,
nordiazepam, oxazepam, temazepam, cetirizine, metoprolol, promethazine, and ranitidine
breakdown.1 Appellant's witness, Dr. Greer, testified that each of the chemical substances
found in appellant’s urine screen appeared to be from medications he prescribed to
appellant or over-the-counter medication. He prescribed duloxetine and quetiapine to treat
depression. Dr. Greer explained that the desvenlafaxine and venlafaxine substances found
in appellant's urine were likely metabolites of duloxetine. Dr. Greer also prescribed
diazepam, a benzodiazepine, to treat appellant's depression and muscle spasms. He
explained that the nordiazepam, oxazepam, and temazepam were likely metabolites from
the diazepam. Dr. Greer also testified that he prescribed promethazine to treat nausea and
metoprolol to treat high blood pressure. Diphenhydramine, commonly known by its
commercial name Benadryl, is an over-the-counter medication used to treat allergy
symptoms. Another medication prescribed to appellant by Dr. Nelson, the opiate
buprenorphine, was not detected in the urine screen.
{¶ 9} The forensic toxicologist opined that each of the drugs found in the urine
1. The laboratory report indicated only a presumptive identification for metoprolol, cetirizine, and the ranitidine
breakdown. The forensic toxicologist testified that the standard analysis process involves two tests. When a
substance is identified in one test but is not identified in a second test, or there is no second testing method
available for that substance, the policy of the laboratory is to report a presumed positive for the substance. Warren CA2020-05-032
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screen have commonly known side effects of drowsiness, dizziness, blurred vision,
confusion, and faintness. She also opined that appellant's behavior on the day of the
offense was consistent with these known side effects. Dr. Greer conceded that the
medications he prescribed, and the over-the-counter medications, may produce those side
effects which could impair driving.
{¶ 10} However, Dr. Greer opined that it was unlikely appellant suffered these side
effects because she had been taking these medications for nearly a decade and had not
reported adverse effects to him in the past. Dr. Greer acknowledged that his opinion
regarding the medications' effects upon appellant was generally limited to appellant's selfreporting. Dr. Nelson similarly opined that the medication he prescribed, buprenorphine,
was not affecting appellant because it did not show up in the urine screen. Both of the
doctors opined that appellant’s condition on the day of the offense was not caused by her
medications. A medical report from a third doctor diagnosed appellant with sleep apnea.
Dr. Greer testified that individuals with sleep apnea lack a restful sleep and are fatigued
during the day. This fatigue may cause the individual to easily fall asleep when the body
becomes relaxed. The rapid onset of sleep from sleep apnea could occur while driving due
to the fatigue and relaxed seated position.
{¶ 11} At the conclusion of the trial, the jury found appellant guilty of the OVI offense.
The trial court also found appellant guilty of the failure to maintain control offense. The trial
court sentenced appellant according to law. Appellant now appeals her conviction for the
OVI offense. She assigns two errors for review. For ease of discussion, we will consider
both assignments of error together.
{¶ 12} Assignment of Error No. 1:
{¶ 13} THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S RULE 29
MOTION. Warren CA2020-05-032
- 6 -
{¶ 14} Assignment of Error No. 2:
{¶ 15} APPELLANT'S CONVICTION WAS ENTERED AGAINST THE WEIGHT OF
THE EVIDENCE.
{¶ 16} In her first assignment of error, appellant argues that the trial court erred by
denying her Crim. R. 29 motion for acquittal. She claims that there was insufficient evidence
to convict her of the OVI offense because the state failed to prove that her impairment was
caused by a drug of abuse. Appellant concedes that she was impaired but contends that
the state was required to put forth more evidence that the impairment was caused by a
"drug of abuse." In her second assignment of error, appellant challenges the jury's guilty
verdict as being against the manifest weight of the evidence.
{¶ 17} The standard of review for a denial of a Crim.R. 29 motion is the same
standard of review used for a sufficiency of the evidence challenge. State v. Baughn, 12th
Dist. Clermont No. CA2020-04-020, 2020-Ohio-5566, ¶ 12, citing State v. Robinson, 12th
Dist. Butler No. CA2015-01-013, 2015-Ohio-4533, ¶ 37. Whether the evidence is legally
sufficient to sustain a verdict is a question of law. State v. Ruth, 12th Dist. Fayette No.
CA2019-08-018, 2020-Ohio-4506, ¶ 18. The relevant inquiry in reviewing the sufficiency of
the evidence is whether the evidence, viewed in a light most favorable to the prosecution,
would allow any rational trier of fact to find the essential elements of the crime proven
beyond a reasonable doubt. State v. Kaufhold, 12th Dist. Butler No. CA2019-09-148, 2020-
Ohio-3835, ¶ 9. In determining the sufficiency of the evidence, the reviewing court does
not consider credibility of a witness. State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347,
¶ 169.
{¶ 18} A manifest weight of the evidence challenge, on the other hand, requires this
court to examine the inclination of the greater amount of credible evidence, offered at trial,
to support one side of the issue over the other. State v. Grindstaff, 12th Dist. Clermont No. Warren CA2020-05-032
- 7 -
CA2013-09-074, 2014-Ohio-2581, ¶ 46. In analyzing a challenge to the manifest weight of
the evidence, this court must review the entire record, "weigh the evidence and all
reasonable inferences, consider the credibility of the witnesses, and determine whether in
resolving the 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 and a new trial
ordered." State v. Erickson, 12th Dist. Warren No. CA2014-10-131, 2015-Ohio-2086, ¶ 25.
Although a manifest weight challenge requires this court to consider witness credibility, we
must be mindful that the determination of witness credibility is primarily for the trier of fact
to decide. State v. Baker, 12th Dist. Butler No. CA2019-08-146, 2020-Ohio-2882, ¶ 30,
citing State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. To that
end, this court will overturn a conviction due to the manifest weight of the evidence only in
the extraordinary circumstance where the evidence presented at trial weighs heavily in favor
of acquittal. State v. Thomin, 12th Dist. Butler Nos. CA2019-11-188 and CA2019-12-199,
2020-Ohio-4625, ¶ 18.
{¶ 19} Appellant was convicted of OVI in violation of R.C. 4511.19(A)(1)(a). This
statute provides that "[n]o person shall operate any vehicle * * * within this state, if, at the
time of the operation * * * [t]he person is under the influence of alcohol, a drug of abuse, or
a combination of them." At trial, there was no evidence that alcohol was involved, therefore
the conviction is contingent upon impairment by a drug of abuse. A "drug of abuse" is
defined in R.C. 4511.181(E) by reference to R.C. 4506.01. According to that section, a drug
of abuse is "any controlled substance, dangerous drug as defined in section 4729.01 of the
Revised Code, or over-the-counter medication that, when taken in quantities exceeding the
recommended dosage, can result in impairment of judgment or reflexes." R.C. 4506.01(M).
R.C. 4729.01(F)(1)(b), in turn, defines dangerous drug as a "drug [that] may be dispensed
only upon a prescription." Warren CA2020-05-032
- 8 -
{¶ 20} The trial court instructed the jury that some of the various substances found
in the urine screen — for example diazepam, venlafaxine, and quetiapine — were to be
considered drugs of abuse. Appellant did not object to that instruction at trial and does not
argue the instruction was plain error in this appeal. Instead, appellant argues there was no
evidence to prove the nexus between her state of impairment and the medications she
used. The Second District Court of Appeals has explained that "in order to establish a
violation of R.C. 4511.19(A)(1)(a) based on medication, the State must also present some
evidence (1) of how the particular medication actually affects the defendant, and/or (2) that
the particular medication has the potential to impair a person's judgment or reflexes."
(Internal citation omitted.). State v. May, 2d Dist. Montgomery No. 25359, 2014-Ohio-1542,
¶ 48. In addressing the question of sufficiency of the evidence for an OVI based on a drug
of abuse, the Ohio Supreme Court has explained that the state must prove administration
of the drug into the body, such as by ingestion, and a resulting impairment. State v.
Richardson, 150 Ohio St.3d 554, 2016-Ohio-8448, ¶ 14. Similarly, we have explained that
the state is not required to prove the quantity of a drug of abuse or even the timing of when
the drug was administered; it is only necessary for the state to show the defendant's use of
the drug and impairment. State v. Comer, 12th Dist. Warren No. CA2017-09-135, 2018-
Ohio-2264, ¶ 23. The state is not required to prove a "definitive" nexus between the drug
and the impairment. State v. Bowden, 1st Dist. Hamilton No. C-190396, 2020-Ohio-4556,
¶ 16, citing Richardson at ¶ 18.
{¶ 21} The evidence sufficiently established that appellant had ingested the
medications with resulting impairment. First, appellant told the arresting officer, Ney, that
she had a lot going on with her medical condition and was on a lot of medication. Appellant's
statement suggests that she believed her medications to be adversely affecting her.
Beyond appellant's statements, the urine screen confirmed the presence of several Warren CA2020-05-032
- 9 -
substances in appellant's body. Officer Holbrook testified that based on his training and
experience, appellant appeared to be under the influence of a depressant or narcotic drug.
Second, there was evidence that each of the substances found in appellant's urine screen
had possible side effects that could impair a person's ability to drive. The forensic
toxicologist testified that each of the substances found had common side effects of
drowsiness, dizziness, and confusion. Appellant's expert witness, Dr. Greer acknowledged
that the medications he prescribed to appellant had these known side effects. Based on
the foregoing, we find that the state provided sufficient evidence for any rational trier of fact
to find that appellant's impairment was linked to a drug or drugs of abuse. There was
evidence that appellant administered medication to herself, was impaired, and that her
impairment was related to the medication. We do not consider or weigh witness credibility
when considering the sufficiency of the evidence. Accordingly, appellant's first assignment
of error is overruled.
{¶ 22} Turning now to the manifest weight of the evidence challenge, based upon
the evidence detailed above, we find that the jury did not clearly lose its way convicting
appellant of the OVI offense. While appellant presented evidence that she was diagnosed
with sleep apnea as an alternative explanation for her behavior on the day of the offense,
a conviction is not against the manifest weight of the evidence because the jury instead
believed the evidence presented by the state. Erickson, 2015-Ohio-2086 at ¶ 42. The jury
is free to believe or disbelieve all, or part of, the evidence presented at trial. Thomin, 2020-
Ohio-4625 at ¶ 19. This is not the extraordinary case where the evidence weighs heavily
in favor of acquittal. Appellant's second assignment of error is overruled.
Outcome: Judgment affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: