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8th District Vacates Conviction of Woman Charged with OVI Despite Negative Chemical Test

The 8th District Court of Appeals recently vacated the conviction of a woman charged with operating a vehicle under the influence of alcohol or drugs and failure to control a vehicle. In City of Cleveland v. Kuhlman, the court held that the defendant’s conviction was not supported by sufficient evidence, and that the trial court should have granted her motion for acquittal under Crim. R. 29.

The case arose when restaurant employees saw the defendant parked with her car over the curb in the restaurant’s parking lot. Defendant came into the restaurant. According to one of the employees, she was “obviously drunk,” however that employee made this judgment based only on seeing defendant drive over the curb, and she had no personal interaction with the defendant.

That employee called 911, and police officers responded to the restaurant. The officers testified that defendant appeared “a little incoherent,” and that she was “not walking in a normal gait.” They suspected, based on her behavior, that she was under the influence of both alcohol and narcotics. The officers took a water bottle from her car, which they claimed smelled like alcohol, but did not collect a sample of its contents. The officers then transported the defendant to the hospital.

At the hospital, nurses were able to collect a urine sample from defendant. However, she then apparently changed her mind and instructed the nurse not to give the sample to the police. Because of this, the officers marked that she refused to submit to testing, and she was charged with refusing to submit to a test. One of the officers instructed the nurses to pour out the sample. The sample was not poured out, and a test eventually revealed no alcohol or drugs were in the defendant’s system.

At trial, the jury found defendant guilty of driving under the influence and failure to control, but not guilty of refusing to submit to testing. Defendant appealed, raising thirteen assignments of error, including insufficiency of the evidence, prosecutorial misconduct, and exclusion of expert testimony.

The Court of Appeals found that there was insufficient evidence to support a conviction for operating under the influence in light of the negative test results for both alcohol and drugs. As to the conviction for failure to control, the court noted that this ordinance only applies on public roads, whereas defendant was only observed driving in a private parking lot. Therefore, the court vacated that conviction as well. Because the court found the insufficiency of the evidence claim dispositive, it did not reach the defendant’s twelve other assignment of errors. Nevertheless, it took the unusual step of addressing numerous other errors made by the trial court. The Court of Appeals stated that “charges in this case should have never been filed. The city was, or should have been aware, that Kuhlman, at the request of arresting officer Haggerty, did submit a urine specimen during treatment . . . and the city knew, or should have known, that Haggerty was advised in the emergency department that the specimen did not show the presence of alcohol or any drug . . . (f)urther, the evidence that Haggerty instructed a nurse to ‘pour out’ the urine specimen is appalling and could be construed as tampering with evidence.” The Court of Appeals also noted that the trial court misapplied the rules of criminal procedure in precluding testimony by defendant’s expert witness, refused to allow the defendant to make an offer of proof as to the expert’s testimony, and provided erroneous jury instructions as to the law on operating a vehicle under the influence. The Court of Appeals concluded by stating that “review of the record reflects that the trial court sought to expeditiously obtain a verdict at the expense of providing counsel with sufficient opportunity to review the instructions prior to submitting them to the jury, and it failed to review the instructions proposed by either side.”

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10th District Upholds Trial Court’s Refusal to Instruct Jury on Self-Defense

In May of 2019, Ohio amended its self-defense law. Previously, a defendant had the burden of proving self-defense by a preponderance of the evidence. After the amendment, the defendant still has the burden of producing some evidence tending to show self-defense, but after this, the burden shifts to the State to prove lack of self-defense beyond a reasonable doubt.

Interpreting the revised statute, Ohio’s Court of Appeals for the 10th District recently found that a trial court did not err in refusing to instruct the jury on self-defense or the related castle doctrine.

In State v. Collins, the defendant was charged with aggravated murder. At trial, a neighbor of the defendant testified that he had heard and seen the defendant, Collins, arguing with another man. Collins was slowly approaching the other man, who backed away. Collins eventually drew a gun and shot him twice. Video footage from a security camera on the street showed that Collins had in fact fired four times, but was otherwise largely consistent with the witness’ testimony.

 The defendant testified that he shot the victim, DeSean Bonet, in self-defense. Collins admitted that he sold marijuana out of his home. He claimed that on the night of the incident, he was sitting on his front porch, waiting for a friend to arrive to buy marijuana from him. Bonet, who he had never met before, approached him on the porch and asked if he was selling marijuana. Collins testified he was suspicious of Bonet, because he had never met him before, it was the middle of the night, and Bonet kept one hand in his pocket, as if holding a gun. He claimed Bonet then pushed him against the front door and grabbed the bag of marijuana from his pocket. Fearing for his life, Collins claimed he drew his gun, and fired at the ground, in order make Bonet release him. He claimed that as Bonet ran away, he still kept one hand inside his pocket. Worried that Bonet had a gun and would fire back at him, Collins kept shooting. Collins testified on cross-examination that he only shot in Bonet’s general direction, and had not intended to hit him, but was only trying to make Bonet run far enough away that he himself could safely retreat into his house.

The trial court denied Collins’ motion for jury instructions on both self-defense and the castle doctrine. The jury returned a guilty verdict.

The Court of Appeals affirmed the decision. It held that because Collins testified he was not aiming directly at Bonet, he could not claim self-defense. Citing one of its earlier opinions, the Court held “ by its terms self-defense presumes intentional, willful use of force . . . thus, when an individual testifies that they did not intend to cause harm such testimony prevents the individual from claiming self-defense.”

Does this rule make sense? If the doctrine of self-defense protects someone who shoots to kill, why should it not also protect someone who fires a warning shot? Someone who fires in another person’s general direction can do so willfully, as self-defense requires.

The court also cited to State v. Herrington from the 9th District supporting this holding. However, that case discussed the self-defense doctrine in a different context. The defendant in Herrington argued on appeal that his trial counsel was ineffective for failing to request a jury instruction on self-defense. Because the defendant testified that he did not intend to hurt anyone, and that he did not in fact cause anyone serious physical harm, the court held a self-defense claim would have been unsupported, and it was therefore not ineffective assistance of counsel not to request the instruction. A holding that it was not ineffective assistance to fail to request the instruction, when the defendant did not actually cause anyone serious physical harm has little persuasive value in determining whether a defendant who did request the jury instruction was entitled to one, in a case in which he killed someone, but claims self-defense. Also, Herrington was decided in 2010, when the defendant still bore the burden of proof for self-defense. Therefore, even if the analysis of the self-defense issue within the context of an ineffective assistance of counsel claim had any persuasive value in a case addressing self-defense directly, Herrington would still not control, since it addressed a different standard for proving self-defense; a defendant who did not have a viable self-defense claim under the law as it existed in 2010 might have a viable claim in 2020. 

In this case, the decision may have been harmless error, since all evidence showed the victim was running away when he was shot. Still, the 10th District’s rule is confusing. I am curious to see if this issue comes up again, and how another court would address it.