[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Richardson, Slip Opinion No. 2016-Ohio-8448.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                          SLIP OPINION NO. 2016-OHIO-8448
          THE STATE OF OHIO, APPELLANT, v. RICHARDSON, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
    may be cited as State v. Richardson, Slip Opinion No. 2016-Ohio-8448.]
Criminal law—R.C. 4511.19(A)—Operating a vehicle while under the influence—
        Court of appeals erred in concluding that prosecution failed to present
        sufficient evidence linking defendant’s ingestion of drug of abuse with his
        impairment—Court of appeals’ judgment reversed and cause remanded.
    (Nos. 2015-0629 and 2015-1048—Submitted February 10, 2016—Decided
                                    December 29, 2016.)
  APPEAL from and CERTIFIED by the Court of Appeals for Montgomery County,
                                No. 26191, 2015-Ohio-757.
                               _______________________
        FRENCH, J.
        {¶ 1} In this appeal, we consider what evidence is sufficient to convict a
defendant charged with operating a vehicle while under the influence (“OVI”) of a
                              SUPREME COURT OF OHIO




drug of abuse. Here, the state presented evidence that the defendant’s driving was
impaired. The state also presented evidence that the defendant had ingested
hydrocodone, a widely known drug of abuse.             And the state presented an
experienced police officer’s testimony that the defendant appeared to be under the
influence of pain medication at the time of his arrest. If believed, this evidence was
sufficient to support the OVI conviction and no expert testimony was necessary.
Because the Second District Court of Appeals reached a contrary holding, we
reverse its judgment.
                           Facts and Procedural History
       {¶ 2} Appellee, Clinton Richardson, set this case in motion by rear-ending
at low speed a car stopped ahead of his pickup truck at a red traffic light. The driver
of the stopped car approached Richardson to speak with him but found his speech
slurred and incomprehensible.        While attempting to exchange information,
Richardson dropped all his cards on the ground. After the driver returned to her
car, she felt it move a couple of times, as though nudged by Richardson’s truck.
She called the police because she feared for the safety of Richardson’s child
passenger.
       {¶ 3} Dayton Police Officer Jonathan Miniard responded to the scene.
When he approached Richardson’s truck, he noticed that Richardson had tried to
light a cigarette but had succeeded only in singeing his hair. Officer Miniard had
to put Richardson’s truck in park after Richardson failed to do so. The officer also
noticed Richardson’s slurred speech. And when he asked Richardson to exit the
truck, he watched Richardson slide out.
       {¶ 4} Officer Miniard administered standard field sobriety tests, which
Richardson failed.      And he asked Richardson to submit to a blood test, but
Richardson refused. Ultimately, he arrested Richardson for OVI.
       {¶ 5} Richardson had a prior felony-OVI conviction, so the grand jury
indicted him on one third-degree-felony-OVI count. See R.C. 4511.19(G)(1)(e).



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                                January Term, 2016




Because his small child was with him in the vehicle, the grand jury also indicted
him on one count of endangering children.
       {¶ 6} The parties tried the case to the court.       The state relied on the
testimony of the woman whose car Richardson rear-ended and Officer Miniard. In
the defense case-in-chief, Richardson testified that he had a prescription for
hydrocodone acetaminophen—pills containing 10 milligrams of hydrocodone and
325 milligrams of acetaminophen—but also that he had last taken the medication
two days prior to the accident. He testified that at the time of the accident he was
actually suffering from withdrawal from the medication. He further testified that
he had been taking the medication for so long that he no longer experienced side
effects from it. Richardson also presented expert testimony from Dr. Charles
Russell, who specializes in emergency medicine and chemical dependency. Dr.
Russell opined that Richardson’s behavior at the time of the accident was consistent
with the effects of withdrawal from an opiate such as hydrocodone and was
inconsistent with being under the influence of an opiate.
       {¶ 7} The trial court convicted Richardson of both charges and sentenced
him to one year in prison. From that judgment, Richardson appealed to the Second
District Court of Appeals.
       {¶ 8} A divided panel of the Second District vacated the trial court’s
judgment, finding insufficient evidence to support Richardson’s OVI conviction.
Specifically, it held that there was no evidence to connect Richardson’s use of
hydrocodone with his impairment. 2015-Ohio-757, 29 N.E.3d 354, ¶ 27. With
reasoning that we largely mirror, Judge Hall dissented: “On this record, where it is
undeniably apparent that the defendant was substantially impaired because he had
taken pain killers, more specifically hydrocodone, I do not believe it was necessary
to introduce evidence of the pharmaceutical properties of what he ingested to find
him guilty of driving under the influence.” Id. at ¶ 36 (Hall, J., dissenting).



                                          3
                              SUPREME COURT OF OHIO




        {¶ 9} The Second District certified that its judgment conflicted with State
v. Stephenson, 4th Dist. Lawrence No. 05CA30, 2006-Ohio-2563. In case No.
2015-1048, we determined that a conflict existed. 143 Ohio St.3d 1439, 2015-
Ohio-3427, 36 N.E.3d 187. The state of Ohio also filed a jurisdictional appeal in
case No. 2015-0629, which we accepted. Id. We consolidated the cases for
briefing. Id.
                                       Analysis
        {¶ 10} We begin with the certified-conflict question:


        “Once the State presents evidence that a person is impaired and has
        taken a specific prescription medication, is the trier of fact able to
        draw a reasonable inference that the driver has violated R.C.
        4511.19(A)(1)(a) or R.C. 4511.19(A)(2) without evidence (lay or
        expert) as to how the medication actually affects the driver and/or
        expert testimony about whether the particular medication has the
        potential to impair a person’s judgment or reflexes?”


143 Ohio St.3d 1439, 2015-Ohio-3427, 36 N.E.3d 187, quoting 2d Dist.
Montgomery No. 26191 (May 27, 2015).
        {¶ 11} Article IV, Section 3(B)(4) of the Ohio Constitution requires the
judges of a court of appeals to certify a conflict to us whenever they reach a different
answer—to the same question—from that reached by any other court of appeals of
this state. Richardson succeeded below on a sufficiency challenge. But the conflict
case, State v. Stephenson, 4th Dist. Lawrence No. 05CA30, 2006-Ohio-2563,
involved only a manifest-weight-of-the-evidence challenge. Id. at ¶ 11. Nearly 20
years ago, we clarified that sufficiency and manifest weight are distinct tests. State
v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), paragraph two
of the syllabus; accord Stephenson at ¶ 13. That alone refutes the certification of a



                                           4
                                    January Term, 2016




conflict here. Yet the case for finding a conflict withers further when we consider
that two of the three judges who decided Stephenson concurred in judgment only.
We decertify the conflict and decline to answer the certified-conflict question.
        {¶ 12} We next turn to the state’s proposition of law:


        When a drug of abuse is at issue in an OVI case, evidence that a
        defendant was driving impaired, combined with evidence that a
        defendant took a specific drug of abuse at the time of the offense, is
        enough to meet a sufficiency of the evidence challenge, pursuant to
        R.C. 4511.19(A)(1).


Under the facts of this case, the proposition of law holds true.
        {¶ 13} The sufficiency of the evidence is a test of adequacy. Thompkins at
386. When evaluating the adequacy of the evidence, we do not consider its
credibility or effect in inducing belief. Id. at 386-387. Rather, we decide whether,
if believed, the evidence can sustain the verdict as a matter of law. Id. This
naturally entails a review of the elements of the charged offense and a review of the
state’s evidence.
        {¶ 14} The state charged Richardson with a third-degree-felony OVI under
R.C. 4511.19(A)(2), which prohibits individuals with an OVI conviction within 20
years of the charged offense from operating a vehicle “while under the influence of
alcohol, a drug of abuse, or a combination of them” and, after an OVI arrest, also
prohibits them from refusing to submit to chemical tests.1 The definition of “drug
of abuse” is imported from R.C. 4506.01. 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 quantities

1
 Offenders who, like Richardson, have a prior felony-OVI conviction face third-degree-felony-OVI
charges in all future OVI prosecutions. R.C. 4511.19(G)(1)(e).


                                               5
                              SUPREME COURT OF OHIO




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” to mean, among other things, a drug that may be dispensed only with a
prescription under R.C. Chapter 3719. And R.C. 3719.41 places hydrocodone in
Schedule II’s list of opium and opium-derived narcotics—a class of drugs that may
be dispensed only with a prescription, R.C. 3719.05(A)(3). Distilled for our
purposes, those statutes say one thing: hydrocodone is a drug of abuse. So if the
evidence, viewed in the light most favorable to the state, proved that Richardson
had ingested hydrocodone and that it impaired his driving, it was sufficient to
support his OVI conviction.
       {¶ 15} The state presented sufficient evidence to prove that Richardson had
ingested hydrocodone. The officer who responded to the accident, Officer Jonathan
Miniard, had 14 years of experience as a Dayton police officer, and he had had
training and refresher courses on impaired-driving detection.          On direct
examination, Miniard testified:


               [I] asked him had he taken any medication. He advised that
       he was on pain medication. I asked him if he had taken any. He
       said yeah.
               ***
               Q. And he said he had taken pain medication.
               A. Yeah, he was on pain medication.
               Q. Okay. And from your conversation with him, the back
       and forth that you guys were engaged in, did it seem like he was
       currently on pain medication?
               A. Yes.


In addition, Richardson testified:



                                        6
                                January Term, 2016




              Q. But the two pain medications that you were taking at that
       point were ibuprofen, about 800 milligrams, and hydrocodone, 10-
       325.
              A. Correct.
              Q. Okay. So when you said to him, and regardless if you
       remember it or not, when you said to Officer Miniard you had taken
       pain medications, would you have been referring to one of those two
       medications?
              A. Yes.


       {¶ 16} After the prosecution played the police video of the incident, the
following exchange occurred with Richardson:


              Q. And you would agree with me that Officer Miniard asked
       you what you had taken. You mouthed something. We can’t really
       hear it. But his response is did you say Oxycodone and you shook
       your head yes.
              A. He said codone. That’s all I heard—
              Q. I apologize. Codone. When you shook—
              A. He said codone.
              Q. —your head yes to that question.
              A. Sure. Hydrocodone.
              Q. And he followed that up with how much did you take and
       you mouthed something and he says 3 milligrams and you shake
       your head no, correct?
              A. Right.



                                        7
                            SUPREME COURT OF OHIO




               Q. And then you mouth what appears to be the word thirty.
       And he says 30 milligrams and you shake your head yes.
               A. I—yes. Can I elaborate?
               Q. No.


       {¶ 17} Thirty milligrams of hydrocodone would be consistent with
Richardson having consumed three of his hydrocodone acetaminophen pills.
Viewed in the light most favorable to the state, this evidence was sufficient to
establish that he had ingested hydrocodone.
       {¶ 18} The state also presented significant—and sufficient—evidence of
Richardson’s impairment. Richardson rear-ended another vehicle. His speech was
slurred. He slid, rather than stepped, out of his truck. He singed his hair while
trying to light a cigarette. And upon testing by the responding officer, Richardson
exhibited numerous indications of impairment: on the walk-and-turn test, he
demonstrated seven out of eight possible signs of impairment, and during a one-
legged stand, he put his foot down multiple times and kept the foot elevated for
only about 8 out of 30 seconds during the longest stretch. Based on his experience,
the officer believed that Richardson “was under the influence of some type of
possibly narcotics.” Again, hydrocodone is classified as a narcotic. This evidence,
if believed, was more than sufficient to establish Richardson’s impairment.
       {¶ 19} The dissent asserts that no rational factfinder could have linked
Richardson’s ingestion of hydrocodone with his demonstrated impairment.
Dissenting opinion at ¶ 32. When the effects of a drug are sufficiently well
known—as they are with hydrocodone—expert testimony linking ingestion of the
drug with indicia of impairment is unnecessary. And there was lay testimony that
connected Richardson’s impairment to the hydrocodone, i.e., the testimony of an
experienced and well-trained police officer. On these facts, we hold that the
evidence was sufficient to support Richardson’s OVI conviction.



                                        8
                                January Term, 2016




       {¶ 20} Because the court of appeals erroneously concluded that expert
testimony was required to link the ingestion of hydrocodone with Richardson’s
impairment, we reverse its judgment.
                                    Conclusion
       {¶ 21} We reverse the judgment of the Second District Court of Appeals.
After holding that the evidence supporting Richardson’s conviction was
insufficient, the Second District held moot his manifest-weight-of-the-evidence
challenge. 2015-Ohio-757, 29 N.E.3d 354, at ¶ 28. We remand the cause to the
appellate court for consideration of that assignment of error.
                                                                  Judgment reversed,
                                                                 and cause remanded.
       O’CONNOR, C.J., and O’DONNELL and KENNEDY, JJ., concur.
       LANZINGER, J., dissents, with an opinion.
       O’NEILL, J., dissents, with an opinion joined by PFEIFER, J.
                               _________________
       LANZINGER, J., dissenting.
       {¶ 22} Based on the competing views of the evidence presented in the
majority and dissenting opinions, it is clear that the issues raised in the certified
conflict and the state’s proposition of law are obscured by the facts and that this
case is not an optimal vehicle for making a statement of law on the questions before
us. I respectfully dissent and would dismiss this case as improvidently allowed.
                               _________________
       O’NEILL, J., dissenting.
       {¶ 23} I must respectfully dissent. For a defendant to be found guilty of
operating a vehicle while under the influence (“OVI”) of a drug of abuse, there
must be evidence that the defendant was under the influence of a drug of abuse and
that the effects of that drug are consistent with the behavior of the defendant at the
time of the alleged offense. The Second District Court of Appeals held that there


                                          9
                             SUPREME COURT OF OHIO




was no evidence to connect the use by appellee, Clinton Richardson, of
hydrocodone acetaminophen to his impairment at the time of the accident. 2015-
Ohio-757, 29 N.E.3d 354, ¶ 27.
       {¶ 24} When a drug of abuse is at issue, in order to prove OVI under R.C.
4511.19(A), the state must prove that (1) the drug of abuse “influence[d]” the
defendant while (2) the defendant was operating a vehicle. By its plain meaning,
the statute imparts the idea of causation between use of the drug and the
impairment. To violate the statute, one must be influenced, and it must be the drug
of abuse doing the influencing. Here we have a case in which the judge as factfinder
had some reason to infer that Richardson had taken a drug of abuse and that he was
acting impaired, but there was no evidence to suggest that it was the drug of abuse
that caused the observed indications of impairment.
       {¶ 25} In this regard, this case is no different than any other criminal case
in Ohio; the state has the burden of establishing every element of the crime with
which the defendant is charged. See R.C. 2901.05(A). Here, the prosecution failed
to present any evidence that Richardson’s behavior, as witnessed by the driver of
the stopped vehicle whom he rear-ended and by the responding officer, was due to
Richardson’s being under the influence of a drug of abuse. Impairment alone, no
matter how severe it may be, is simply not a crime. There were numerous possible
causes of the impairment, including the withdrawal theory offered by the defense
which, unlike the state’s theory, was actually supported by expert testimony.
       {¶ 26} This case was decided on the sufficiency of the evidence. It is well
established that the relevant question when the sufficiency of the evidence is
challenged is “whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” (Emphasis sic.) Jackson v. Virginia, 443
U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This court has stated: “With
respect to sufficiency of the evidence, ‘ “sufficiency” is a term of art meaning that



                                         10
                                January Term, 2016




legal standard which is applied to determine whether the case may go to the jury or
whether the evidence is legally sufficient to support the jury verdict as a matter of
law.’ ” State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997),
quoting Black’s Law Dictionary 1433 (6th Ed.1990).
       {¶ 27} Reviewing the evidence presented at trial, it was undisputed that
Richardson was acting unusually at the scene of the accident. Nobody denies that.
The prosecution’s theory was that he was under the influence of hydrocodone at
that time. This was based, in part, on Richardson’s admission at the scene that he
“was on pain medication” at the time. The problem with that theory is that there
was no evidence that the pain medication that Richardson referred to was
hydrocodone. It could have been the recommended dosage of Advil, Motrin, or
any other over-the-counter pain medication. See R.C. 4506.01(M) (defining “drug
of abuse” as “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”). Richardson testified that he had not taken hydrocodone
since over 48 hours before the accident. Absent expert testimony that hydrocodone
continues to effect bodily functions for more than 48 hours, there was no evidence
that the narcotic was causing or influencing the behavior exhibited. Richardson’s
behavior could have been caused by some undiagnosed medical condition.
       {¶ 28} In fact, Richardson testified that the reason he hit the stopped vehicle
was that he may have fallen asleep behind the wheel. Further, he outlined the side
effects he had been experiencing from withdrawal from hydrocodone
acetaminophen as he had run out of the medication two days earlier. Those side
effects, which included drowsiness, were consistent with the behavior that he
exhibited shortly after the crash.
       {¶ 29} At trial, Richardson presented the expert testimony of Dr. Charles
Russell, who stated that in his medical opinion, the behavior exhibited by


                                         11
                             SUPREME COURT OF OHIO




Richardson was completely consistent with someone going through withdrawal
from hydrocodone, and not with someone being under the influence of
hydrocodone. Oddly, the prosecution presented no expert testimony but, instead,
relied solely on the testimony of the driver of the stopped vehicle and the
responding officer. Not only was neither of them an expert in the area of side
effects of medications, but they did not even testify as lay witnesses that there was
a connection between the use of hydrocodone and the behavior being exhibited by
Richardson. Without having shown this link, the prosecution completely failed to
establish an element of the crime charged. In fact, the only expert testimony
presented supported the conclusion that the behavior exhibited by Richardson was
not consistent with someone who had recently taken hydrocodone but, instead, led
to the conclusion that Richardson was experiencing hydrocodone withdrawal,
exactly as he had stated.
       {¶ 30} Clearly, R.C. 4511.19(A) is intended to prevent impaired individuals
from operating motor vehicles on roads and highways for the safety of everyone
who uses those roads and highways. It is not intended to blindly prohibit or
criminalize the operation of a motor vehicle by someone who takes routine over-
the-counter medications that do not negatively affect a person’s ability to safely
drive a vehicle. When a drug of abuse is at issue, to convict a defendant of OVI,
the state must show that the defendant was under the influence of a drug of abuse
that impaired the defendant’s ability to safely operate a motor vehicle. That simply
did not happen in this case. The prosecution fell woefully short of establishing all
the elements of the OVI offense.
       {¶ 31} In State v. May, 2d Dist. Montgomery No. 25359, 2014-Ohio-1542,
the Second District addressed this exact issue. It stated:


               [W]hen a prosecution under R.C. 4511.19(A)(1)(a) is based
       on driving under the influence of medication, the State must do more



                                         12
                                January Term, 2016




       than simply present evidence that the defendant has taken the
       medication and shows signs of impairment. * * *
               The essence of R.C. 4511.19(A)(1)(a) is to prohibit impaired
       driving while under the influence. It is certainly not intended to
       criminalize the operation of a vehicle by a person taking a
       cholesterol or blood pressure medication, let alone an anti-
       narcoleptic or ADHD prescription, unless that drug negatively
       influences the defendant’s driving abilities. And in many situations,
       especially those involving prescription drugs, this can only be
       proved by direct testimony linking the influence of the drug to the
       driving. This could be established through the testimony of an
       expert who is familiar with the potential side effects of the
       medication, or perhaps of a layperson (such as a friend or family
       member) who witnessed the effect of the particular drug on the
       defendant-driver.


May at ¶ 46-47.
       {¶ 32} Simply stated, for a defendant to be found guilty of operating a
vehicle while under the influence of a drug of abuse, there must be evidence of the
connection between the drug used and the behavior exhibited. The only scientific
evidence presented at trial was that the symptoms exhibited were consistent with
withdrawal from hydrocodone, and that testimony was consistent with the
responding officer’s observations. No rational trier of fact could have found,
beyond a reasonable doubt, that Richardson was driving under the influence of
hydrocodone at the time of the accident and that it was the effects of hydrocodone
that caused his impairment. Not a single witness testified as to the effects of
hydrocodone or that those effects were consistent with Richardson’s behavior. This
was the missing link in this case.


                                        13
                            SUPREME COURT OF OHIO




       {¶ 33} We are violating 200 years of jurisprudence by permitting a lay
person to give an expert opinion without qualification. Surely the responding
officer was qualified to testify as to what he saw. But under no circumstances was
he qualified to testify as to (1) the pharmacology of hydrocodone or (2) how that
drug affected this defendant on that day. In an OVI case involving alcohol, would
this majority affirm an OVI conviction based on a responding officer’s testimony
that “well, he looked like he was over the limit to me” based only on behavior
observed by the officer? No.
       {¶ 34} I must dissent.
       PFEIFER, J., concurs in the foregoing opinion.
                                _________________
       Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and
Carley J. Ingram and Christina E. Mahy, Assistant Prosecuting Attorneys, for
appellant.
       Arnold & Arnold, Ltd., Adam J. Arnold, and Kristin L. Arnold, for appellee.
                                _________________




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