State v. Fritsch

1

2023-Ohio-2676

STATE OF OHIO, Plaintiff-Appellee, v. JEREMY FRITSCH, Defendant-Appellant.

No. C-220570

Court of Appeals of Ohio, First District, Hamilton

August 2, 2023

Criminal Appeal From: Hamilton County Municipal Court Trial No. C-22TRC-23421-A

Judgment Appealed From Is: Affirmed

Melissa A. Powers, Hamilton County Prosecuting Attorney, and Sean M. Donovan, Assistant Prosecuting Attorney, for Plaintiff-Appellee

Raymond T. Faller, Hamilton County Public Defender, and Krista Gieske, Assistant Public Defender, for Defendant-Appellant.

OPINION

WINKLER, JUDGE

{¶1} Following a bench trial in municipal court, defendant-appellant Jeremy Fritsch was convicted of one misdemeanor count of operating a vehicle while intoxicated ("OVI") in violation of R.C. 4511.19. He has appealed that conviction, raising three assignments of error for review. For the following reasons, we affirm his conviction.

Facts and Procedural History

{¶2} Over the course of October 3, 2022, Fritsch had three encounters with Officer Joesph Stone at Delhi Township Park. These interactions culminated in Officer Stone arresting Fritsch for OVI. Fritsch and Officer Stone first interacted in the afternoon when Officer Stone responded to a complaint that Fritsch was sitting by some children and unsettling the other park-goers. Officer Stone told Fritsch to hang out somewhere else.

{¶3} The second encounter came not much later, around 9:00 p.m. Officer Stone was called to help Fritsch because he had locked himself out of his car. Fritsch had gone to a nearby house to try to borrow a phone to call for help. Officer Stone unlocked Fritsch's vehicle, but Fritsch refused to go to it, claiming he was concerned about coyotes in the park. Officer Stone testified he has never seen coyotes while patrolling Delhi Park over the previous year.

{¶4} The third encounter began just 30 minutes later. Officer Stone noticed people yelling and waving to get his attention. As he approached, Officer Stone saw those people chase Fritsch away. One of them told Officer Stone that Fritsch had stood on top of the neighbor's truck talking about coyotes. Officer Stone caught up with Fritsch and told him he had to leave the park at that time. Officer Stone asked Fritsch if he was okay to drive because, up to that time, Officer Stone thought the interactions with Fritsch were "slightly off," though Officer Stone was not "100 percent sure at that time that [Fritsch] was intoxicated." Fritsch maintained that he was fine and then got in his car and drove off the road onto the grass.

{¶5} Officer Stone got into his police cruiser and pursued Fritsch through the grass and the adjacent Floral Paradise Park. Officer Stone activated his overhead lights and eventually his siren, but Fritsch continued driving through the grass until he reached a paved driveway abutting Floral Paradise Park. Officer Stone's body-worn camera indicated the pursuit lasted about one minute and Officer Stone estimated the pursuit covered 500 to 1,000 feet.

{¶6} At the stop, Officer Stone observed Fritsch to have bloodshot eyes and dilated pupils, but Officer Stone did not smell the odor of an alcoholic beverage. Fritsch's speech was slow and sometimes muffled, but not slurred. Officer Stone recovered a marijuana pipe from Fritsch, but did not locate any marijuana. Fritsch denied having "consumed anything." When asked what he was doing driving through the park's grass, Fritsch responded that he was leaving the park as ordered, but wanted to take a shortcut to visit his "garden." Believing him to be impaired, Officer Stone then conducted standardized field-sobriety tests on Fritsch. While administering the horizontal-gaze-nystagmus test, Officer Stone detected three out of six possible clues of impairment. On the walk-and-turn test, Officer Stone again observed three out of six possible clues of impairment. After instructing Fritsch on the one-leg-stand test, Fritsch reattempted the walk-and-turn test. Officer Stone then readministered the one-leg-stand test and Fritsch displayed two of four possible clues of impairment. Officer Stone asked again if Fritsch had ingested anything and Fritsch again denied that he had.

{¶7} At the time of the incident, Officer Stone was an eight-year veteran of the Delhi Township Police Department. Based on his observations, his training and his experience, Officer Stone concluded that Fritsch was impaired and arrested him for OVI.

{¶8} After the arrest, Officer Stone and another officer who had just arrived on the scene searched Fritsch's vehicle. Inside, Officer Stone found a rolled up sticky note with residue on it tucked in the driver's side visor. Laboratory testing later identified the residue as methamphetamine. Fritsch denied any knowledge of the sticky note. After searching the vehicle, Officer Stone transported Fritsch to a nearby police station and interviewed him. Officer Stone testified that Fritch admitted to drinking "a couple beers" and that he began drinking the day before and stopped a few hours earlier. Officer Stone further testified that Fritsch admitted that he was under the influence of alcohol at that time. Officer Stone asked Fritsch to submit to a urine test because he believed he had drugs in his system. But Fritsch refused, citing an inability to use the restroom at the time. Officer Stone testified that he believed Fritsch was under the influence of alcohol or drugs and that he should not be driving. Fritsch was charged with possession of drug paraphernalia, OVI, and failure to maintain reasonable control. Officer Stone sent the sticky note with the residue to the Hamilton County Crime Lab for analysis.

{¶9} Before trial, the drug-paraphernalia charge was dismissed by the state. At trial, Hamilton County Crime Lab analyst Laura Kimble was called to testify. Defense counsel objected to her testimony as irrelevant. Defense counsel argued that because the drug-paraphernalia charge had been dismissed and Officer Stone had not testified to methamphetamine use as the basis for OVI, all evidence about the sticky note was irrelevant. The trial court overruled the objection and permitted the analyst to testify that she found methamphetamine residue on the sticky note and admitted her laboratory report detailing those findings. The trial court convicted Fritsch of the OVI charge but acquitted him of the failure-to-maintain-reasonable-control charge. The court sentenced Fritsch to eight days, with credit for eight days already served, suspended his license for one year and placed him on a six-month period of community control. Fritsch now appeals, raising three assignments of error.

Admission of the Analyst's Testimony and Report

{¶10} In Fritsch's first assignment of error, he argues the trial court erred in permitting the analyst to testify about the methamphetamine residue on the sticky note and admitting the analyst's report. A trial court's decision to admit or exclude evidence is reviewed for an abuse of discretion. State v. Morris, 132 Ohio St.3d 337 2012-Ohio-2407, 972 N.E.2d 528, ¶ 19. An abuse of discretion connotes a judgment that is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). "[A]s the [Ohio] Supreme Court recently clarified, 'courts lack the discretion to make errors of law.'" State v. Austin, 1st Dist. Hamilton Nos. C-210140 and C-210141, 2021-Ohio-3608, ¶ 5, quoting Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 39. But an error in an evidentiary ruling does not warrant reversal when the error does not affect the substantial rights of the complaining party. Evid.R. 103(A); State v. Griffin, 1st Dist. Hamilton No. C-020084, 2003-Ohio-3196, ¶ 13.

{¶11} Fritsch objected to the testimony of the lab analyst under Evid.R. 403, arguing that the test of the residue on the sticky note in Fritsch's car is more unfairly prejudicial than probative after the drug-paraphernalia charge was dismissed. Generally, all relevant evidence is admissible. Morris at ¶ 11, quoting Evid.R. 402. Evid.R. 403 provides exceptions to this general principle and provides circumstances for the exclusion of relevant evidence. Id., citing Evid.R. 403. Evidence is relevant when it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Evid.R. 401. Relevant evidence is admissible unless its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury. State v. Brown, 2d Dist. Montgomery No. 24541, 2012-Ohio-1848, ¶ 31, citing Evid.R. 402; Evid.R. 403(A).

{¶12} Here, the analyst's testimony and report are probative of whether Fritsch operated a vehicle while "under the influence of alcohol, a drug of abuse, or a combination of them." See R.C. 4511.19. The analyst's testimony and report both establish that the rolled sticky note found tucked under the sun visor of Fritsch's car had methamphetamine residue on it. While the drug-paraphernalia charge had been dismissed, methamphetamine is a drug of abuse, thus the evidence was relevant to whether Fritsch operated a vehicle under the influence of a combination of alcohol and a drug of abuse. While the sticky note with methamphetamine residue does not-standing alone-conclusively establish Fritsch consumed methamphetamine on that day, it is evidence of constructive possession. See State v. Johnson, 1st Dist. Hamilton No. C-170354, 2019-Ohio-3877, ¶ 49, quoting State v. Fry, 4th Dist. Jackson No. 03CA26, 2004-Ohio-5747, ¶ 41 (" 'when one is the driver of a car in which drugs are within easy access of the driver, constructive...