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State v. Ferguson3/7/2005
{ } Defendant-appellant, Patrick Ferguson, appeals his conviction in Hamilton Municipal Court for driving under the influence ("DUI"). We affirm the conviction.
{ } Appellant was charged with DUI following a single-car accident on the street outside of his residence in July 2003. Appellant was found guilty in a trial to the bench. Appellant filed this appeal, setting forth two assignments of error.
{ } Assignment of Error No. 1:
{ } "THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT/ APPELLANT ON OVERRULING APPELLANT'S MOTION FOR DISMISSAL PURSUANT TO CR. R. 29, WHEN THE EVIDENCE WAS INSUFFICIENT TO SUPPORT A CONVICTION[.]"
{ } Assignment of Error No. 2:
{ } "THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT/ APPELLANT IN ENTERING A VERDICT OF GUILTY TO THE OFFENSE OF DRIVING UNDER THE INFLUENCE OF ALCOHOL AS THE VERDICT IS NOT SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE."
{ } Appellant argues in his first assignment of error that the state failed to prove that he was operating a vehicle under the influence of alcohol.
{ } Pursuant to Crim.R. 29, a trial court must determine 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. State v. Williams, 74 Ohio St.3d 569, 576, 1996-Ohio-91.
{ } R.C. 4511.19(A)(1), states, in part, that no person shall operate any vehicle, if, at the time of the operation, he is under the influence of alcohol, a drug of abuse, or a combination of thereof.
{ } Appellant's neighbor testified that she heard a crash outside that shook her entire house. The neighbor went outside and saw a vehicle situated "head on" into a telephone pole that was split in half. The neighbor recognized appellant, who was sitting in the driver's seat of the vehicle.
{ } The neighbor went inside to place a phone call to police. Returning outside, the neighbor observed appellant's wife at the driver's side of the vehicle assisting appellant out of the vehicle and helping him into appellant's house. The neighbor estimated that emergency personnel arrived five to seven minutes after she called 911.
{ } The arresting officer testified that the vehicle was unoccupied when she arrived at the scene, but the vehicle's registration led her to appellant's house. Police observed appellant lying on the couch inside his home, complaining of pain. The officer testified that she noticed a heavy odor of alcohol about appellant. The officer observed that appellant had onion peels on his chest and around his body. The officer stated that appellant also smelled as if he had eaten an onion. The officer indicated that appellant's speech was slurred "quite a bit," and that his eyes were bloodshot.
{ } Appellant admitted driving the vehicle and told police that the accident occurred when he pressed the gas pedal too hard. The life squad transported appellant to the hospital. The arresting officer, after observing appellant at the hospital, left the hospital to locate a kit to test appellant's alcohol level. Appellant left the hospital before the officer returned with the kit.
{ } The officer testified that she observed the slurred speech and odor of alcohol at the hospital and again at appellant's house, where he had returned after leaving the hospital. Appellant told the officer that he left the hospital because he was "fine" and did not need medical attention.
{ } We are cognizant that this case involves a factual situation wherein the police officers did not observe the mann
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