[Cite as State v. Samples,
2023-Ohio-1186.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
STATE OF OHIO C.A. No. 21AP0048
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
NICHOLAS SAMPLES WAYNE COUNTY MUNICIPAL COURT
COUNTY OF WAYNE, OHIO
Appellant CASE No. 2020 TR-C 006544
DECISION AND JOURNAL ENTRY
Dated: April 10, 2023
CARR, Judge.
{¶1} Appellant, Nicholas Samples, appeals the judgment of the Wayne County
Municipal Court. This Court reverses and remands.
I.
{¶2} On the morning of November 20, 2020, a Chippewa Township roadworker
observed Samples hanging out the window of a van parked in a residential driveway. Samples
subsequently pulled himself into the vehicle and began to drive away in an erratic manner. The
road worker followed Samples and notified law enforcement. Police ultimately made contact with
Samples after he pulled off to the side of the road. Samples was charged with one count of driving
under the influence in violation of R.C. 4511.19(A)(1)(a). Samples pleaded not guilty to the charge
at arraignment. The matter proceeded to a bench trial where Samples was found guilty. The trial
court imposed a community control sanction as well as a three-day jail term which could be served
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by attending a 72-hour driver intervention program. The trial court further imposed a $600 fine
and a 12-month license suspension.
{¶3} On appeal, Samples raises one assignment of error.
II.
ASSIGNMENT OF ERROR
SAMPLES[’] CONVICTION WAS BASED ON INSUFFICIENT EVIDENCE AS
A MATTER OF LAW.
{¶4} In his sole assignment of error, Samples contends that his conviction for driving
under the influence of drugs was not supported by sufficient evidence because the State failed to
demonstrate that he was under the influence of a drug of abuse.
{¶5} When reviewing the sufficiency of the evidence, this Court must review the
evidence in a light most favorable to the prosecution to determine whether the evidence before the
trial court was sufficient to sustain a conviction. State v. Jenks, 61 Ohio St.3d 259, 279 (1991).
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. The 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. at paragraph two of the syllabus.
{¶6} Samples was convicted of driving under the influence of drugs in violation of R.C.
4511.19(A)(1)(a), which states, “[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.” Former R.C. 4506.01(M) defines “[d]rug of abuse” as “any controlled
substance, dangerous drug as defined in section 4729.01 of the Revised Code, or over-the-counter
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medication that, when taken in quantities exceeding the recommended dosage, can result in
impairment of judgment or reflexes.”
{¶7} At trial, the State presented evidence supporting the following narrative. On the
morning of November 20, 2020, J.W. was performing his duties as a roadworker for Chippewa
Township. J.W. was driving on Surface Road when he noticed a man hanging out of a van in a
residential driveway. The man, who was later identified as Samples, was not moving and his head
and arms were hanging out the window of the vehicle. J.W. pulled over because he feared that the
man might be deceased. After two or three minutes, Samples woke up and pulled himself back
into the van. Samples proceeded to reverse the van out of the driveway and drive away. Samples
was driving erratically as he passed the location where J.W. was parked. J.W. followed Samples
and observed Samples swerve left of center on multiple occasions. Fearing that Samples might
cause an accident, J.W. called Casey Tester, the Chief of Police in Doylestown, and informed him
of the situation. J.W. continued to follow Samples and provided continual updates until Chief
Tester was able to locate Samples’ van.
{¶8} Samples had pulled off the road by the time that Chief Tester was able to locate the
van. Samples’ van was perpendicular to the roadway. Chief Tester thought the situation looked
suspicious, almost as though Samples was having trouble with his vehicle. Chief Tester observed
Samples stumble as he exited the van. Samples expressed concern that he might have a flat tire.
Samples appeared “very erratic, very excited, and had very exaggerated reflexes.” Chief Tester
testified that Samples was talkative, unsteady on his feet, and appeared to be under the influence
of something. Samples acknowledged that he had recently used a vape pen. When Chief Tester
inquired as to what was in the vape pen, Samples responded that it was nicotine. The vape pen
was not tested for illegal substances.
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{¶9} While Chief Tester had been certified as a drug recognition expert for ten years, his
certification lapsed during the COVID-19 pandemic and he was not certified at the time of the
incident. At trial, Chief Tester testified that based on his training and experience he thought
Samples was under the influence of a central nervous system stimulant. Chief Tester explained
that his opinion was based on the fact that Samples was extremely talkative, had an exaggerated
sense of alertness, and remained in constant motion. Chief Tester testified central nervous system
stimulants are substances that will increase your heart rate, such as cocaine, methamphetamine,
and caffeine.
{¶10} State Trooper Aaron Boggs arrived on the scene shortly after Chief Tester. Trooper
Boggs initially wondered whether Samples had a medical condition given the way his body was
in constant motion. Trooper Boggs administered a series of field sobriety tests. Samples was able
to recite the alphabet and count backwards without issue. Trooper Boggs administered the
horizontal gaze nystagmus test and did not notice anything irregular, other than the fact that
Samples’ eyes appeared to be pinpoint. Trooper Boggs also administered the walk-and-turn test.
Samples remained in constant motion as Trooper Boggs explained the directions and Trooper
Boggs observed four clues of impairment during the test. When Trooper Boggs attempted to
administer the one-leg stand test, Samples indicated that he understood the directions but, when
placed in position, Samples simply began to walk toward Chief Tester. Trooper Boggs concluded
that Samples could not complete the test because of his constant movements. Although Trooper
Boggs testified that the field sobriety tests can be used to detect drug use, he had more experience
with detecting alcohol use and he did not express an opinion as to whether Samples was under the
influence of a particular drug.
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{¶11} In announcing its verdict, the trial court observed that the lapsing of Chief Tester’s
certification did not mean that his experience should be discounted. The trial court pointed to
Chief Tester’s testimony that, based on an array of behaviors exhibited by Samples, Chief Tester
believed that Samples was under the influence of a stimulant. The trial court found Samples guilty
on the basis that the State had demonstrated that Samples was under the influence of a stimulant
and thus a drug of abuse.
{¶12} On appeal, Samples challenges his conviction on the basis that the State failed to
demonstrate that he was under the influence of a specific drug of abuse. Samples points to the
Seventh District’s recent decision in State v. Love, 7th Dist. Columbiana No. 21 CO 0009, 2022-
Ohio-1454, ¶ 21, where the court reversed an OVI conviction under circumstances where “[t]he
officers ‘guessed’ that Appellant’s behavior and lack of body control was the result of
methamphetamine use because she allegedly demonstrated behavior consistent with use of that
drug.” Samples further stresses the Love court’s observation that, if law enforcement does not
obtain a chemical test, then the State “face[s] a substantial burden to convict under this statute
absent a clear admission to use of a specific drug of abuse or the existence of physical evidence
showing a specific drug of abuse.” Id. at ¶ 26.
{¶13} In response, the State argues that it was permitted to rely on physiological factors
in order to demonstrate that Samples’ ability to drive was impaired. The State further emphasizes
that, even though Chief Tester’s drug recognition expert certification had expired, it is well-settled
that a lay witness may testify as to whether an individual is intoxicated. The State points to State
v. Strebler, 9th Dist. Summit No. 23003, 2006-Ohio-5711, in support of the proposition that while
the prosecution’s reliance on physiological factors and lay-witness testimony is common in OVI
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cases involving alcohol, this Court has applied the same line of reasoning in determining whether
an individual is under the influence of a drug of abuse. See id. at ¶ 7.
{¶14} This Court has observed that R.C. 4511.19(A)(1)(a) requires the State “to do more
than prove impairment in a vacuum.” State v. Collins, 9th Dist. Wayne No. 11CA0027, 2012-
Ohio-2236, ¶ 19. “R.C. 4511.19(A)(1)(a) specifically requires that the State demonstrate that the
source of the defendant’s impairment was ‘alcohol, a drug of abuse, or a combination of them.’”
Id. Neither officer in this case testified that Samples appeared to be under the influence of alcohol.
Accordingly, the State was required to demonstrate that Samples was under the influence of a drug
of abuse.
{¶15} Under the specific circumstances of this case, we are compelled to sustain Samples’
sufficiency challenge. There is no dispute that Samples appeared to be impaired and that he
engaged in erratic driving. Notably, however, Chief Tester’s testimony that Samples appeared to
be under the influence of some kind of stimulant is not akin to demonstrating that Samples was
under the influence of a drug of abuse as defined by the Revised Code. Although Chief Tester
identified examples of substances that qualify at stimulants, neither Chief Tester nor Officer Boggs
identified the substance that might explain Samples’ behavior. The State did not introduce any
test results with respect to Samples himself or the vape pen in his vehicle.
{¶16} Moreover, the State’s reliance on Strebler is misguided. Strebler involved a set of
circumstances where the defendant admitted to using prescription Methadone and the State also
introduced the testimony of a chemist who testified that the defendant’s urine tested positive for
Methadone. Strebler, 2006-Ohio-5711, at ¶ 12, 14. The defendant also produced two prescription
bottles at the scene. Id. at ¶ 12. Thus, while this Court in Strebler noted that a lay witness may
testify regarding whether an individual is under the influence, id. at ¶ 7, the State produced a litany
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of evidence in that case connecting the defendant to a particular drug of abuse. See id. at ¶ 12, 14.
By contrast, the State here relied solely on Chief Tester’s observation that, based on his
observations, Samples appeared to be under the influence of some type of stimulant.
{¶17} Samples’ assignment of error is sustained.
III.
{¶18} Samples’ sole assignment of error is sustained. The judgment of the Wayne County
Municipal Court is reversed and the cause remanded for further proceedings consistent with this
decision.
Judgment reversed,
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Wayne County
Municipal Court, County of Wayne, State of Ohio, to carry this judgment into execution. A
certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellee.
DONNA J. CARR
FOR THE COURT
8
HENSAL, P. J.
SUTTON, J.
CONCUR.
APPEARANCES:
WESLEY A. JOHNSTON, Attorney at Law, for Appellant.
ANGELA WYPASEK, Prosecuting Attorney, and BRIANNA DIETRY, Assistant Prosecuting
Attorney, for Appellee.
