[Cite as State v. Tussing,
2024-Ohio-5757.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
CASE NO. 1-24-03
PLAINTIFF-APPELLEE,
v.
DEREK TUSSING, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR2023 0034
Judgment Affirmed
Date of Decision: December 9, 2024
APPEARANCES:
Kenneth J. Rexford for Appellant
John R. Willamowski, Jr. for Appellee
Case No. 1-24-03
MILLER, J.
{¶1} Defendant-Appellant, Derek Tussing (“Tussing”), appeals from the
December 22, 2023 judgment of the Allen County Court of Common Pleas,
following a jury trial where he was found guilty of committing robbery and grand
theft of a motor vehicle. On appeal, among other arguments, Tussing claims the
trial court erred in its rulings concerning intoxication, the defense of not guilty by
reason of insanity, and jury instructions for a lesser included offense. For the
reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶2} On February 16, 2023, Tussing was indicted on three charges: (1)
robbery, in violation of R.C. 2911.02(A)(3), a third-degree felony; (2) grand theft
of a motor vehicle, in violation of R.C. 2913.02(A)(1), a fourth-degree felony; and
(3) felonious assault, in violation of R.C. 2903.11(A)(1), a second-degree felony.
{¶3} The charges arose from an incident that took place on October 29, 2022.
According to Teresa Ring (“Teresa”), Tussing opened her car door, grabbed her
arm, and pulled her out of the car. She was able to break away from Tussing, got
back in her car, and locked the doors. After Tussing pounded on her car window,
he turned around and went to a nearby truck, which belonged to Teresa’s brother,
Ron Ring (“Ron”). Without Ron’s permission, Tussing opened the truck’s door,
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started it, and drove it directly into a silo, causing significant damage to the truck.
(See, e.g., Trial Tr. at 248, 250; State’s Exhibits 6, 11).
{¶4} Officer Clayton Eichman (“Officer Eichman”) arrived shortly
thereafter, and he witnessed Tussing yelling that the police needed to save his
daughter. After Officer Eichman placed Tussing in the back of his police cruiser,
Tussing said that people had taken his daughter to the grain elevator, they were
going to kill her, that is why he took the truck, and he was going to kill those people
for taking her. Referring to driving the truck into the silo, Tussing said, “I rammed
them. I did that.” (Trial Tr. at 270). According to Officer Eichman, Tussing was
very irrational and exhibiting signs consistent with intoxication.
{¶5} On May 10, 2023, Tussing entered a written plea of not guilty by reason
of insanity (“NGRI”). Pursuant to R.C. 2945.371, he moved the trial court to order
evaluations of his present mental condition (competency) and his mental condition
at the time of the offenses charged. The court granted the motion and ordered the
evaluations, which were conducted by Dr. Carla Dreyer (“Dr. Dreyer”), a forensic
psychologist.
{¶6} According to Dr. Dreyer’s reports, Tussing “noted that he was
psychotic at the time of the offenses charged, with hallucinations and delusions that
he believes were related to his voluntary substance abuse.” (Aug. 10, 2023 Entry).
Tussing’s statements to Dr. Dreyer also included “that he purchased what he
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believed to be heroin from an unknown dealer, used the drugs, and that his memory
became fuzzy.” (Oct. 23, 2023 Judgment Entry). After the events of October 29,
Tussing “learned that he tested positive for methamphetamine and cocaine.” (Id.)
Tussing also told Dr. Dreyer that on October 29 he believed people “had his
daughter and were trying to put her into some machinery to grind her up,” which
“led him to engage in the activities” that are the subject of this case. (Id.).
{¶7} Dr. Dreyer also reviewed police reports and Tussing’s medical records
before providing her opinion concerning Tussing’s mental condition at the time of
the charged offenses: “Given the available information, it is my professional opinion
that the defendant did not suffer from a severe mental defect or a severe mental
disease that prevented him from knowing the wrongfulness of his behavior at the
time of the offenses charged.” (Id.). At a subsequent pretrial hearing, Dr. Dreyer
testified that, “[a]t the time of the offense, [Tussing’s] substance induced psychosis
prevented him from knowing the wrongfulness of his behavior at the time.” (Id.).
Consisted with the opinion in her reports, she also testified that this voluntary
intoxication did not amount to being not guilty by reason of insanity, because
Tussing did not have a severe mental illness or defect. (Id.).
{¶8} In a pretrial ruling, the trial court decided that Dr. Dreyer would be
allowed to “testify that the drugs found in the defendant’s system (if there is actual
evidence of what drugs were in his system) can result in a delusional state of mind,
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if she is of this opinion.” (Emphasis deleted.) (Dec. 4, 2023 Judgment Entry).
Additionally, Dr. Dreyer would be allowed to testify “about what a delusional state
of mind means and how a person may behave while delusional.” (Id.). However,
she was barred from testifying “as to the defendant’s state of mind at the time of the
offense, particularly whether he acted purposely, knowingly, reckless, and/or
negligently.” (Id.).
{¶9} The trial took place on December 18 and 19, 2023. Tussing testified
that, on October 29, 2022, he purchased some “street drugs” from someone he did
not know, took them of his own volition, and, as the effects hit him, he realized that
the drugs had the effects of methamphetamine. He explained that he knew the
effects of methamphetamine because, according to Tussing, he had been
hospitalized once before for hallucinations and treated for methamphetamine
psychosis.
{¶10} According to Tussing, after using the drugs, he started hallucinating
that his daughter was in danger. He heard screaming from a catwalk at the top of a
granary and saw people up there with his daughter, so he began looking for a way
to shut off the power to the granary. He saw a woman in her vehicle (who turned
out to be Teresa), pounded on the window, thought she invited him to come into the
vehicle, opened the vehicle’s door, told her something was going on with his
daughter, and asked her for help. Teresa “said no and she pulled her door shut and
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locked it.” (Trial Tr. at 387). Tussing testified that it was not his intent to take
Teresa’s vehicle.
{¶11} According to Tussing, he then turned around and saw Ron’s truck
(which had the keys in it), got into the truck, and drove toward the electrical power
box on the exterior of the silo. At the time, he thought the people who he believed
had his daughter “were putting [his] daughter down in that thing, the grinder, so [he]
was trying to hit the power grid to cut the power off.” (Id. at 388). Tussing crashed
the truck into the wall of the silo, crushing the truck. He testified that, as he was
approaching the wall, his intention was “to drive into the power grid and knock the
power out to the grinder.” (Id. at 430). Tussing explained at trial that he now knows
that his daughter was not really taken by people, but he believed at the time that “it
was totally real.” (Id. at 433).
{¶12} Tussing’s position at trial was that he “had no intent to take anything
from [Teresa], such that no robbery occurred,” and he “had no intent to permanently
deprive [Ron] of his truck, such that no Grand Theft occurred.” (Appellant’s Brief
at 8). Instead, his alleged purpose essentially was to borrow a vehicle in order to
save his daughter.
{¶13} The jury found Tussing guilty of the first two charges, robbery and
grand theft of a motor vehicle. The trial court then sentenced him to a total term of
48 months in prison. This appeal followed.
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II. ASSIGNMENTS OF ERROR
{¶14} Tussing raises four assignments of error for our review:
First Assignment of Error
The Trial Court deprived Mr. Tussing of a fair trial, in violation of his
rights protected by the Ohio Constitution and the United States
Constitution, by pre-judging the issue of voluntariness of intoxication
and in refusing to allow Mr. Tussing to pursue the defense of Not Guilty
by Reason of Insanity.
Second Assignment of Error
The Trial Court erred in refusing to give to the Jury an instruction on
Unauthorized Use of Property.
Third Assignment of Error
The Trial Court erred as to Count I by severely limiting the defense
ability to discuss Mr. Tussing’s actual mental state at the time, because
R.C. 2901.21, if interpreted in agreement with the Trial Court, is
unconstitutional.
Fourth Assignment of Error
The Trial Court erred by not crediting time served between execution of
warrant and sentencing.
III. DISCUSSION
{¶15} For ease of discussion and analysis, we elect to review Tussing’s
assignments of error partially out of order, in a manner that facilitates our analysis.
A. First Assignment of Error
{¶16} In the first assignment of error, Tussing asserts he “was insane at the
time of the acts alleged in the Indictment.” (Appellant’s Brief at 9). He also asserts
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that he was involuntarily intoxicated at the time and that the jury (as the trier of
fact), not Dr. Dreyer, should have resolved whether his intoxication was voluntary.
(Id. at 11-12). Accordingly, he argues the trial court made two errors of law. First,
by deciding prior to trial that Tussing was not involuntarily intoxicated, the trial
court erred in barring Tussing from making that defense to the jury at trial. Second,
the trial court erred by (allegedly) concluding the defense of NGRI is not “available
even if the accused was, at the time, voluntarily intoxicated.” (Id. at 10).
1. Applicable Law
a. Offenses at issue
{¶17} As charged in this case, the robbery statute prohibits a “person, in
attempting or committing a theft or in fleeing immediately after the attempt or
offense,” from using or threatening “the immediate use of force against another.”
R.C. 2911.02(A)(3). In turn, the theft statute prohibits a “person, with purpose to
deprive the owner of property or services,” from “knowingly obtain[ing] or
exert[ing] control over either the property or services . . . [w]ithout the consent of
the owner or person authorized to give consent.” R.C. 2913.02(A)(1); see also R.C.
2913.02(B)(5) (clarifying that if the property stolen is a motor vehicle, then a
violation of the section is grand theft of a motor vehicle). Thus, in this case, the
culpable mental state for both the predicate theft for the robbery offense and the
grand theft of a motor vehicle offense includes the mental states of ‘purpose’ and
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‘knowingly.’ Id.; State v. Godsey, 2024-Ohio-629, ¶ 9 (3d Dist.). The culpable
mental states statute provides,
(A) A person acts purposely when it is the person’s specific intention
to cause a certain result, or, when the gist of the offense is a
prohibition against conduct of a certain nature, regardless of what the
offender intends to accomplish thereby, it is the offender’s specific
intention to engage in conduct of that nature.
(B) A person acts knowingly, regardless of purpose, when the person
is aware that the person’s conduct will probably cause a certain result
or will probably be of a certain nature. A person has knowledge of
circumstances when the person is aware that such circumstances
probably exist. When knowledge of the existence of a particular fact
is an element of an offense, such knowledge is established if a person
subjectively believes that there is a high probability of its existence
and fails to make inquiry or acts with a conscious purpose to avoid
learning the fact.
R.C. 2901.22(A), (B).
b. Intoxication
{¶18} The term “intoxication” includes intoxication resulting from the
ingestion of a drug. R.C. 2901.21(F)(4). Voluntary intoxication is not an
affirmative defense and “may not be taken into consideration in determining the
existence of a mental state that is an element of a criminal offense.” R.C.
2901.21(E); see also State v. Luebrecht, 2019-Ohio-1573, ¶ 25 (3d Dist.). However,
involuntary intoxication is an affirmative defense.
Luebrecht at ¶ 25. The defendant
bears the burden of proof—by a preponderance of evidence—for the affirmative
defense of involuntary intoxication. Id.; R.C. 2901.05(A).
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{¶19} Examples of when a successful involuntary intoxication defense may
arise include (1) the defendant’s proper use of a prescribed medication that resulted
in intoxicating effects unknown to the defendant, and (2) eating or drinking a non-
intoxicating substance that—without the defendant’s knowledge or consent—
contained an intoxicating substance someone else secretly placed into it. State v.
Williamson, 2019-Ohio-4380, ¶ 48 (6th Dist.); State v. Jones,
2010-Ohio-2777, ¶
18-19 (8th Dist.) (trial court erred in refusing to allow defendant to pursue
involuntary intoxication defense, where he claimed that someone slipped something
into a drink he believed to be non-alcoholic). On the other hand, an involuntary
intoxication defense does not apply if the defendant voluntarily used illegal drugs
that, unbeknownst to the defendant, turned out to actually be a different illegal drug.
E.g., People v. Gallego,
52 Cal.3d 115, 183-184 (1990) (defendant could not have
been involuntarily intoxicated where he “voluntarily consumed alcohol and drugs
[prior to the crime], but he asserts PCP was secretly given to him while he was
taking other illegal drugs”); United States v. Bindley,
157 F.3d 1235, 1242 (10th
Cir. 1998) (“a key component” in the defense of involuntary intoxication “is lack of
culpability on the part of the defendant in causing the intoxication,” so it was “not
surprising” neither the defendant nor the court found caselaw “in which the defense
has been recognized where a defendant has knowingly ingested an illegal
substance”); People v. Davis,
2017 IL App (1st) 150134-U, ¶ 32 (collecting cases).
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An Illinois appellate court, having surveyed similar cases across the country,
explained:
[D]efendant argues that the defense of involuntary intoxication was
available to him based on his ingestion of marijuana, which he
believed was laced with another substance. However, defendant
knowingly ingested the marijuana prior to committing the offenses on
March 29, 2004, a fact he concedes on appeal. In 2004, marijuana
possession and usage were unlawful. . . . The fact that the marijuana
might have been laced with something else, causing defendant’s
substance-induced psychosis, is immaterial to whether the defense
would have been available to him. See United States v. Bindley, 157
F.3d 1235, 1243 (10th Cir. 1998) (finding an involuntary intoxication
defense unavailable to a defendant who voluntarily smoked a
marijuana cigarette that he subsequently believed was laced with
another drug because he ‘had no right to assume smoking the
marijuana cigarette would produce a predictable effect’ and not
possibly be ‘laced with an adulterant,’ and therefore, ‘by voluntarily
choosing to smoke the marijuana cigarette, any resulting intoxication
(whatever that may have been) was likewise voluntary’).
. . . The fact that the marijuana defendant ingested may have reacted
with an unknown substance and produced adverse side effects is
immaterial. That is the risk defendant took when he voluntarily
ingested an illegal substance. See Bindley, 157 F.3d at 1243.
...
Given the defense of involuntary intoxication would have been
unavailable to defendant at trial, his petition has not made a
substantial showing that he was prejudiced by trial counsel’s alleged
failure to investigate and pursue the defense.
Davis, 2017 IL App (1st) 150134-U, at ¶ 29-33.
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c. NGRI
{¶20} Like involuntary intoxication, “NGRI is an affirmative defense that a
defendant must prove by a preponderance of the evidence.” State v. Grate, 2020-
Ohio-5584, ¶ 76; see also R.C. 2901.05(A). “A person is ‘not guilty by reason of
insanity’ relative to a charge of an offense only if the person proves, in the manner
specified in [R.C. 2901.05], that at the time of the commission of the offense, the
person did not know, as a result of a severe mental disease or defect, the
wrongfulness of the person’s acts.” (Emphasis added.) R.C. 2901.01(A)(14); see
also R.C. 2945.371 (evaluations of mental condition). “The proper standard for
determining whether a defendant has successfully demonstrated this defense and
thus is entitled to an NGRI instruction is whether he has introduced sufficient
evidence, which if believed, would raise a question in the mind of a reasonable
person concerning the existence of the issue.” Grate at ¶ 76-78 (counsel was not
ineffective for not pursuing NGRI defense based on expert findings that defendant
did not qualify for an insanity defense). Additionally, “[p]roof that a person’s
reason, at the time of the commission of an offense, was so impaired that the person
did not have the ability to refrain from doing the person’s act or acts, does not
constitute a defense.” R.C. 2945.391.
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2. Analysis
{¶21} We find no error by the trial court. First, the facts presented never
supported a possible involuntary intoxication defense. From the onset, Tussing’s
own statements to Dr. Dreyer included “that he purchased what he believed to be
heroin from an unknown dealer [and] used the drugs.” (Oct. 23, 2023 Judgment
Entry). At trial, Tussing admitted to freely and willingly using illegal drugs
purchased from an unknown dealer that, according to Tussing, he believed was one
type of drug but ended up being something different. (Trial Tr. at 381-382, 416-
417, 434). Therefore, there was never any factual basis to find that Tussing was
involuntarily intoxicated. Gallego, 52 Cal.3d at 183-184; Bindley,
157 F.3d at 1242;
Davis,
2017 IL App (1st) 150134-U, at ¶ 32. Tussing is mistaken when he contends
that Dr. Dreyer was the one who decided his intoxication was voluntary. Instead,
by his own admission of using illegal drugs, he was voluntarily intoxicated under
the law.
Id. As shown above, voluntary intoxication is not an affirmative defense
and could not be taken into consideration at trial in determining the existence of a
mental state that is an element of a criminal offense. R.C. 2901.21(E); see also
Luebrecht,
2019-Ohio-1573, at ¶ 25 (3d Dist.).
{¶22} Second, regarding NGRI, Tussing did not introduce evidence that
would have raised a question in the mind of a reasonable person that he “did not
know, as a result of a severe mental disease or defect, the wrongfulness of” his acts
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at the time of the offenses. (Emphasis added.) R.C. 2901.01(A)(14). In fact, Dr.
Dreyer’s opinion found the exact opposite: Tussing “did not suffer from a severe
mental defect or a severe mental disease that prevented him from knowing the
wrongfulness of his behavior at the time of the offenses charged.” Thus, even if
Tussing showed that he did not know the wrongfulness of his acts because of the
drugs he had ingested, he failed to prove that he did not know the wrongfulness of
his acts “as a result of a severe mental disease or defect.” Id.
{¶23} Tussing contends that involuntary intoxication “can be that ‘mental
disease or defect,’ specifically the ‘defect,’ that can support NGRI, which addresses
not voluntariness but sanity.” (Appellant’s Brief at 11). However, Tussing cites no
legal authority for this contention. We also note Tussing’s proposition neglects to
address that he voluntary chose to consume illegal drugs. More importantly, legal
authority contradicts his contention. The issue was addressed by the Second District
in a case involving a psychologist who examined the defendant and provided a
report. State v. Johnston, 2015-Ohio-450, ¶ 4 (2d Dist.).
Since [the doctor’s] testimony indicates that it was Johnston’s
voluntary overdose of medication, not a mental disease or defect,
which affected his mental state on the night of the offenses, his
testimony necessarily implicates voluntary intoxication as opposed to
insanity. See State v. Swanson, 6th Dist. Wood No. WD–12–003,
2014–Ohio–549, ¶ 14 (“[w]here the insanity is simply a temporary
condition brought on by the voluntary ingestion of drugs or alcohol,
it does not suffice to establish [a not guilty by reason of insanity]
defense”).
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Id. at ¶ 32. Similarly, the Sixth District addressed the issue in a case where a doctor
testified that the defendant was previously diagnosed with a schizotypal personality
disorder and “suffered from a drug-induced psychotic break at the time of the
offenses.” State v. Swanson, 2014-Ohio-549, ¶ 8, 17 (6th Dist.). The appellate court
affirmed the trial court’s rejection of the NGRI defense. It explained that, although
the defendant “suffered from a personality disorder that can include delusions,” the
defendant’s admission that he had taken more illegal drugs than he could handle
supported the court’s finding that defendant’s psychosis at the time of the offenses
“was the result of his voluntary ingestion of drugs and not a delusion brought about
by his personality disorder.” Id. at ¶ 17.
{¶24} To support his assignment of error, Tussing relies heavily on State v.
Davis, 2021-Ohio-237 (11th Dist). However, critically, in that case “[t]here was no
dispute from the physicians and experts who either treated Mr. Davis and/or
evaluated his voluminous medical and psychological treatment records that he
suffered from a mental disease and/or mental defect.” Id. at ¶ 20. Davis “had a
long-standing history of mental illness and psychiatric treatment.” Id. at ¶ 1.
Therefore, in contrast to the case here, “[t]he central issue of Mr. Davis’s NGRI
defense was whether he appreciated the wrongfulness of his actions since no one
disputed that he suffered from mental illness.” Id. at ¶ 20, 26-27.
{¶25} Tussing’s first assignment of error is overruled.
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B. Third Assignment of Error
{¶26} In the third assignment of error, Tussing challenges the
constitutionality of R.C. 2901.21(E) (concerning voluntary intoxication) as the trial
court allegedly applied that statute. Tussing argues that, while he is entitled to a fair
trial under the U.S. and Ohio Constitutions, “[o]ne cannot logically have a fair trial
if the trier of fact cannot consider evidence of what Mr. Tussing intended with his
actions, when intent is elemental as to each of the three counts, at least if what he
intended was a fruit of psychosis from voluntary intoxication.” (Appellant’s Brief
at 18). He alleges that Dr. Dreyer’s “full testimony was intended to bolster”
Tussing’s claims regarding what he did and why for purposes of negating the mens
rea element of the charges. (Id. at 20). According to Tussing, “[i]f R.C.
§2901.21(E) is deemed to bar such testimony because the credibility of Derek
Tussing pertains to the issue of mens rea, then the statute as applied violated the
Ohio Constitution.” ((Emphasis in original.) Id.).
1. Applicable Law
{¶27} “Legislation is entitled to a strong presumption of constitutionality.”
State v. Hacker, 2023-Ohio-2535, ¶ 11. A party bringing an “as-applied” challenge
to a statute must show that the legislation is unconstitutional as applied to the
specific set of facts, i.e., application of the statute in the particular context in which
the party acted is unconstitutional. Id.; Belden v. Union Cent. Life Ins. Co., 143
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Ohio St. 329 (1944), paragraph six of the syllabus (“[w]here an act is challenged on
the ground that it is unconstitutional when applied to a particular state of facts, the
burden rests upon the party making such attack to present clear and convincing
evidence of a presently existing state of facts which makes the act unconstitutional
and void when applied thereto”).
2. Analysis
{¶28} Tussing’s argument in support of this assignment of error is based on
a faulty premise. Tussing was not severely limited in discussing his actual mental
state at the time of his offenses, and the jury was able to consider evidence of what
Mr. Tussing intended with his actions. In fact, Tussing testified at trial regarding:
his use of illegal drugs prior to the offenses; his hallucinations and delusions that
his daughter was in danger; that it was not his intent to take Teresa’s vehicle, but
instead his intent was to ask her for help, including to use her phone; and his
intention in taking Ron’s vehicle was “to drive into the power grid and knock the
power out to the grinder” because he believed people were putting his daughter into
the grinder. (Trial Tr. at 430). He also testified that he did not intend to keep Ron’s
truck but instead was trying to save his daughter with it. Thus, contrary to the
premise of this assignment of error, Tussing was able to attempt to persuade the jury
by testifying extensively about his own intentions at the time he committed the
offenses.
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{¶29} Turning to Dr. Dreyer’s testimony, the trial court was concerned about
witness vouching and the dangers of confusing the issues and misleading the jury,
pursuant to Evid.R. 403. (E.g., Dec. 4, 2023 Judgment Entry; Trial Tr. at 354-355).
The trial court ruled Dr. Dreyer—who did not witness any of the offenses—could
not testify “as to the defendant’s state of mind at the time of the offense, particularly
whether he acted purposely, knowingly, reckless, and/or negligently.” (Dec. 4, 2023
Judgment Entry). However, the trial court permitted Dr. Dreyer to testify that
methamphetamine and cocaine are substances that “could cause mental status
changes,” and it was “probable” those mental status changes could involve
hallucinations. (Trial Tr. at 370). Dr. Dreyer also testified it was “probable” that
delusions could be caused by using methamphetamine and cocaine. (Id. at 371).
Dr. Dreyer further explained that hallucinations “are sensory perceptions” and a
delusion is a “belief that is not found to be in reality.” (Id.). Thus, the jury heard
that delusions and hallucinations were possible results of Tussing’s drug usage.
Ultimately, Tussing has not shown that R.C. 2901.21 was unconstitutionally
interpreted and applied in this case by the trial court.
{¶30} Tussing’s third assignment of error is overruled.
C. Second Assignment of Error
{¶31} In the second assignment of error, Tussing argues that the trial court
erred in denying his request for a jury instruction on the (alleged) lesser-included
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offense of unauthorized use of a vehicle, in violation of R.C. 2913.03(B). At trial,
Tussing requested a lesser included offense instruction specifically relating to R.C.
2913.03(B), and he now asserts that “[t]he evidence certainly supports a conclusion
that Mr. Tussing had no intent to deprive Mr. Ring of his truck.” (Appellant’s Brief
at 16).
1. Applicable Law
{¶32} “We review a trial court’s refusal to give a requested instruction,
including an instruction on a lesser-included offense, under an abuse of discretion
standard.” State v. Robertson, 2023-Ohio-2200, ¶ 46 (3d Dist.). A trial court abuses
its discretion when its conduct is unreasonable, arbitrary, or unconscionable. State
v. Hill,
2022-Ohio-4544, ¶ 9.
{¶33} “The trial court must view the evidence in the light most favorable to
the defendant when deciding whether to instruct the jury on
a lesser included offense.” State v. Trimble, 2009-Ohio-2961, ¶ 192. “To determine
whether a criminal defendant was entitled to a jury instruction (charge) on a lesser
included offense requires a two-step analysis.” State v. Turks,
2010-Ohio-5944, ¶
18 (3d Dist.). “First, the reviewing court must determine whether the one offense
is, in fact, a lesser included offense of the other offense.”
Id. “Second, the
reviewing court must determine whether the trial court was obligated to give a jury
instruction on the lesser included offense under the specific facts of the case.”
Id.
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A jury instruction on a “lesser included offense is required only where the evidence
presented at trial would reasonably support both an acquittal on the crime charged
and a conviction upon the lesser included offense.” State v. Thomas, 40 Ohio St.3d
213 (1988), paragraph two of the syllabus.
{¶34} The theft statute prohibits a “person, with purpose to deprive the
owner of property or services,” from “knowingly obtain[ing] or exert[ing] control
over either the property or services . . . [w]ithout the consent of the owner or person
authorized to give consent.” R.C. 2913.02(A)(1). The term “deprive” means any
of the following:
(1) Withhold property of another permanently, or for a period that
appropriates a substantial portion of its value or use, or with purpose
to restore it only upon payment of a reward or other consideration;
(2) Dispose of property so as to make it unlikely that the owner will
recover it;
(3) Accept, use, or appropriate money, property, or services, with
purpose not to give proper consideration in return for the money,
property, or services, and without reasonable justification or excuse
for not giving proper consideration.
R.C. 2913.01(C).
{¶35} On the other hand, the criminal statute for unauthorized use of a
vehicle—which Tussing requested be included in jury instructions—provides, in
part, that “[n]o person shall knowingly use or operate . . . [a] motor vehicle . . .
without the consent of the owner or person authorized to give consent . . . and either
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remove it from this state or keep possession of it for more than forty-eight hours.”
R.C. 2913.03(B). Thus, among other distinctions, this statute does not include the
“purpose to deprive” element for grand theft of a motor vehicle. Instead, the statute
requires the offender remove the vehicle from the state or keep possession of it for
more than 48 hours.
2. Analysis
{¶36} The trial court did not abuse its discretion in refusing to give a jury
instruction on unauthorized use of a vehicle. Even if we assume unauthorized use
of a vehicle is a lesser included offense of grand theft of a motor vehicle, Tussing’s
argument fails at the second step of the analysis for multiple reasons. First, the
evidence presented would not reasonably support a conviction on that offense.
There was no evidence Tussing removed Ron’s truck from this state or kept
possession of it for more than 48 hours, as required for a violation of R.C.
2913.03(B).
{¶37} Second, the evidence presented also would not reasonably support an
acquittal on the crime charged—grand theft of a motor vehicle. According to
Tussing’s own testimony, he took Ron’s truck with the intention of ramming the
silo to destroy the power box affixed to the side of the structure, and he drove into
the silo at such speed that the truck was crushed. Photos admitted during the trial
showed the truck suffered significant damage and was clearly inoperable after
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Tussing drove it into the silo. (E.g., State’s Exhibits 6, 11). In line with
requirements of the offense, this evidence demonstrated that Tussing, with purpose
to deprive Ron of the truck, knowingly obtained control over the truck without
Ron’s consent. R.C. 2913.02(A)(1). E.g., State v. Stoychoff, 2021-Ohio-4248, ¶
11-12 (3d Dist.) (where the trial court instructed on robbery and grand theft of a
motor vehicle, no error in refusing to instruct on unauthorized use of a vehicle, even
though defendant arguably only was using the vehicle to flee from law enforcement
at high speed, resulting in its engine exploding). Tussing took the truck fully
intending to crash it into the power box attached to the side of the granary. Clearly,
he had no intention of returning the truck in the same condition as when he took it,
thereby depriving Ron of the use of his truck, which was ruined.
{¶38} Tussing’s second assignment of error is overruled.
D. Fourth Assignment of Error
{¶39} In the fourth assignment of error, Tussing argues the trial court erred
by not crediting him for certain time served in custody while awaiting trial.
According to Tussing, although the trial court set an own-recognizance bond, he did
not sign the bond to effectuate it. To Tussing, this this means he should have been
given credit for time served in custody awaiting trial and sentencing on this case.
He asks that this matter be remanded to calculate time served from when the sheriff
served him with the warrant and indictment in this case (February 22, 2023) until
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bond was posted (October 31, 2023). The State counters that throughout the time
Tussing claims he should have been credited, he was already imprisoned pursuant
to another conviction and is not entitled to double credit.
1. Applicable Law
{¶40} If the sentencing court determines at the sentencing hearing that a
prison term is necessary or required, then “the sentencing court shall determine the
number of days ‘the offender has been confined for any reason arising out of the
offense for which the offender is being sentenced . . . .’” State v. Dyer, 2022-Ohio-
1519, ¶ 13 (7th Dist.), quoting R.C. 2929.19(B)(2)(g)(i). In turn, the statute
concerning “credit for confinement awaiting trial and commitment” provides, “The
department of rehabilitation and correction shall reduce the prison term of a prisoner
. . . by the total number of days that the prisoner was confined for any reason arising
out of the offense for which the prisoner was convicted and sentenced . . . .” R.C.
2967.191(A). Thus, there is no jail-time credit for time served on unrelated
offenses. State v. Struble, 2006-Ohio-3417, ¶ 11 (11th Dist.) (explaining this is the
case “even if that time served runs concurrently during the pre-detention phase of
another matter”).
2. Analysis
{¶41} Tussing was incarcerated on an unrelated matter at the time of the
indictment in this case. This is evidenced in the record by the State’s February 16,
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2023 Request for Issuance of Warrant, which was directed to inmate Tussing at a
state correctional institution. On the same day as the indictment, the trial court
issued an order setting an own-recognizance bond. Then, on October 24, 2023 while
this case was pending and in anticipation of Tussing being released from prison on
November 2, the State filed a motion to modify Tussing’s bond to a cash or surety
bond. On October 26, 2023, the trial court amended the bond from an own-
recognizance bond to a $50,000.00 cash or surety bond. According to the docket,
the deposit for that bond was posted, and an order to release was issued, on October
31, 2023.
{¶42} At the December 21, 2023 sentencing hearing, the trial court addressed
jail-time credit. The trial court explained that it had imposed a prison term on
Tussing prior to the incident that led to this case. Tussing’s counsel then interjected
that the own-recognizance bond set in this case was “never executed.” (Dec. 21,
2023 Tr. at 31). The trial court responded that, even so, Tussing had been in prison
through the pendency of this case for a reason separate from the offenses in this
case.
{¶43} Upon review, we see no error in the trial court’s decision not to credit
Tussing for time served in custody between February 22 and October 31, 2023.
There is no indication that Tussing was “confined for any reason arising out of the
offense for which the offender” was convicted and sentenced. R.C.
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2929.19(B)(2)(g)(i); R.C. 2967.191(A). The fact Tussing refused to sign his own-
recognizance bond is of no matter as Tussing was imprisoned for an unrelated crime.
{¶44} The Seventh District previously addressed, and rejected, an argument
similar to Tussing’s argument. See State v. Barrow, 2021-Ohio-2340, ¶ 12-14 (7th
Dist.). In Barrow, the appellant was serving a prison term on an unrelated case
when he was indicted on new charges. The appellant refused to sign the
recognizance bond and later suggested on appeal he therefore was not subject to the
Supreme Court of Ohio’s holding in State v. Cupp,
2018-Ohio-5211, syllabus, that
“[a] defendant is not entitled to jail-time credit while held on bond if, at the same
time, the defendant is serving a sentence on an unrelated case.” The Seventh District
rejected the appellant’s argument and held that a defendant who was indicted while
serving a prison term on an unrelated case is not entitled to jail-time credit for the
time served on that unrelated case.
Barrow at ¶ 12-14. The fact the appellant did
not sign the recognizance bond was irrelevant to the issue because he was already
serving an unrelated prison sentence. Id.; see also Dyer,
2022-Ohio-1519, at ¶ 19
(7th Dist.). The same is true for Tussing.
{¶45} Tussing’s fourth assignment of error is overruled.
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IV. CONCLUSION
{¶46} For the foregoing reasons, Tussing’s assignments of error are
overruled. Having found no error prejudicial to the appellant in the particulars
assigned and argued, we affirm the judgment of the Allen County Court of Common
Pleas.
Judgment Affirmed
WALDICK and ZIMMERMAN, J.J., concur.
/jlm
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