State v. Grimsley, C-810255

• Citation: 3 Ohio App.3d 265,444 N.E.2d 1071,3 OBR 308
• Decision Date: 10 February 1982
• Docket Number: No. C-810255,C-810255
• Parties: , 27 A.L.R.4th 1060, 3 O.B.R. 308 The STATE of Ohio, Appellee, v. GRIMSLEY, Appellant.
• Court: United States Court of Appeals (Ohio)

Page 265

3 Ohio App.3d 265

444 N.E.2d 1071, 27 A.L.R.4th 1060, 3 O.B.R. 308

The STATE of Ohio, Appellee, v. GRIMSLEY, Appellant.

No. C-810255.

Court of Appeals of Ohio, First District, Hamilton County.

Feb. 10, 1982.

Syllabus by the Court

1. A waiver of trial by jury may be withdrawn by a defendant at any time before commencement of trial, under R.C. 2945.05, and it is error for the court to refuse to honor a written demand for jury trial duly filed under Crim.R. 23(A).

2. The General Assembly plainly indicated a purpose to impose strict criminal liability in R.C. 4511.19. (R.C. 2901.21[B], applied.)

3. The actions of a person with a multiple personality disorder are conscious and voluntary within the meaning of R.C. 2901.21, although at the time of the act she was dissociated from her primary personality and in the state of consciousness of a secondary personality, when the evidence fails to establish the secondary personality was either unconscious or acting involuntarily. It is immaterial whether the person was in one state of consciousness or another, so long as being in the personality then controlling her behavior, she was conscious and her actions were a product of her own volition.

4. An insanity defense is not established where a multiple personality defendant fails to show by a preponderance of the evidence that her mental disorder had so impaired her reason that she, in her primary or secondary personality or both, either did not know that her drunken driving was wrong or did not have the ability to refrain from driving while drunk.

Simon L. Leis, Jr., Pros. Atty., Christian J. Schaefer and Gerald W. Krumpelbeck, Cincinnati, for appellee.

John W. Hauck, Cincinnati, for appellant.

BLACK, Judge.

Ms. Grimsley was convicted in a bench trial of driving under the influence of alcohol in violation of R.C. 4511.19. An intoxilyzer test indicated a concentration of twenty-one hundreds of one percent (0.21 percent) by weight of alcohol in her blood. The first of her four assignments claims error in overruling her demand for a jury trial, and we agree with this claim. The conviction must be reversed and the case remanded for further proceedings.

The other three assignments of error raise issues about statutory interpretation and proof of the affirmative defense of insanity that are likely to arise because a new trial is likely. Parton v. Weilnau (1959), 169 Ohio St. 145, 158 N.E.2d 719 . We believe App.R. 12(A) requires us to address these issues, which we will consider in the following order: whether R.C. 4511.19 imposes strict criminal liability so that proof of a culpable mental state is not necessary (the fourth assignment of error); whether the actions of a person with a multiple personality disorder are voluntary when she is dissociated from her primary personality and in the state of consciousness of a secondary personality (the second assignment of error); and whether that person in such a state of consciousness is legally insane (the third assignment of error).

I

The first assignment of error raises procedural questions about a misdemeanant's right to a jury trial. Charged with driving under the influence of alcohol on September 2, 1980, appellant filed a written jury demand while she was represented by her first lawyer. On his advice, she changed her plea of not guilty to no contest on October 22, 1980, but the judge failed to inform her of the effect of the pleas of guilty, no contest and not guilty as mandated by Crim.R. 11(E). Concurrently, the court accepted appellant's written waiver of a trial by jury, complying with the requirement of R.C. 2945.05. ¹ She was then found guilty, and the case was continued for sentencing on November 20, 1980, after receipt of a presentence report. That sentencing did not take place.

Appellant changed lawyers, and on November 5, 1980, her new lawyer filed a motion under Crim.R. 32.1 to withdraw her plea of no contest. At a hearing on November 13, 1980, the court allowed her to withdraw the earlier plea and enter a plea of not guilty. Appellant's oral request for a jury trial was denied, and the case was referred to the assignment commissioner for trial setting. However, on November 26, 1980, before the trial date was set appellant filed a written jury demand, and the judge promptly denied that demand in open court. He again referred the case to the assignment commissioner for trial setting, and the record indicates that later that same day, the case was set for trial on December 31, 1980. After a continuance not pertinent to this appeal, the trial was held on January 29, 1981, and appellant was found guilty by the court sitting without a jury.

We hold that the court erred when it denied appellant's second jury demand. R.C. 2945.05 states that a waiver of trial by jury may be withdrawn by the defendant at any time before commencement of the trial, ² and Crim.R. 23(A) ³ provides that in petty offense cases, a defendant may demand a jury trial in a writing filed not less than ten days prior to the date set for trial, or on or before the third day following receipt of notice of the date set for trial, whichever is later. Having duly withdrawn her waiver as she had a right to do, appellant filed her jury demand on November 26, 1980, before the case was set down for trial, in complete compliance with Crim.R. 23(A). The first assignment of error has merit.

II

Appellant asserts that the court erred when it held that R.C. 4511.19 imposes strict criminal liability. Because this statute does not specify any degree of culpability, the question is whether it "plainly indicates a purpose to impose strict criminal liability for the conduct described in such section." R.C. 2901.21(B) ⁴

We hold that R.C. 4511.19 imposes strict criminal liability. We find in the language chosen by the legislature a plainly indicated purpose to do so, because the overall design of the statute is to protect against the hazards to life, limb and property created by drivers who have consumed so much alcohol that their faculties are impaired. ⁵ Mentor v. Giordano (1967), 9 Ohio St.2d 140, 224 N.E.2d 343 . Further, the legislature created an elaborate procedure to determine the concentration by weight of alcohol in an accused's blood, together with a presumption that if that concentration is ten hundredths of one percent (0.10 percent) or more, the accused is under the influence of alcohol. The legislature defined the offense in terms of the factual presence of alcoholic influence, without reference to the offender's mental state. Finally, alcoholic abuses are strictly controlled by the General Assembly. A liquor permit, for instance, may be suspended for serving intoxicants to minors even though the seller had no knowledge of the customer's age and may have been deceived by appearances. Hanewald v. Bd. of Liquor Control (1955), 101 Ohio App. 375, 136 N.E.2d 77 ; State v. Burke (Dec. 19, 1979), Hamilton App. No. C-790028, unreported.

The act of driving a vehicle while under the influence of alcohol (or drugs, or a combination of both) is a voluntary act in the eyes of the law, and the duty to refrain from doing so is one that in the interests of public safety must be enforced by strict criminal liability without the necessity of proving a culpable state of mind.

The fourth assignment of error has no merit.

III

Appellant contends that she can not be held liable for any offense because at the time of the offense she was dissociated from her primary personality (Robin) and in the state of consciousness of a secondary personality (Jennifer). She contends that she was not acting either consciously or voluntarily. R.C. 2901.21 ⁶ provides, in effect, that a person who acts unconsciously and without volition, acts involuntarily and cannot be guilty of any offense.

Appellant's contention is based on expert psychiatric testimony that was not controverted and appears to have been conceded by the prosecution. She was diagnosed as having a multiple personality disorder, meeting the following criteria: (1) she is dominated from time to time by two or more separate personalities; (2) the personality who is "in consciousness," or dominant, at any particular time controls her behavior; (3) the transition from one personality to another is involuntary, sudden, and generally without warning; and (4) each personality has unique characteristics, including behavior patterns, memories and social associations. She further maintains that on the day in question, psychological trauma (report of a lump on her breast) caused her to dissociate into the personality of Jennifer, who is impulsive, angry, fearful and anxious. Jennifer has a drinking problem. Finally, appellant contends that when she is Jennifer, Robin is unaware of what is going on, has no control over Jennifer's actions, and no memory of what Jennifer did later on when she is restored to the primary personality of Robin.

The treatment for this disorder has been psychotherapy during which the completeness of dissociation, originally caused by trauma and maintained as a means of blocking that trauma and succeeding traumas, is reduced so that the personalities become integrated into one. Appellant has been in psychotherapy since June 1977, and argues that incarceration will have a devastating effect on her progress.

Appellant submits that on this evidence, it was error to hold her legally responsible because being Jennifer on the day in question, Robin was not conscious of what was happening and lacked voluntary control over Jennifer's actions. This is not an insanity defense but a claim that appellant cannot be found guilty because during the commission of the offense, her acts were beyond the control of her primary personality and were therefore involuntary.

We disagree. Assuming arguendo that the evidence was sufficient to establish such a complete break between appellant's consciousness as Robin and her consciousness as Jennifer that...