[Cite as State v. Anthony, 2016-Ohio-2905.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. Sheila G. Farmer, P.J. : Hon. W. Scott Gwin, J. Plaintiff-Appellee : Hon. John W. Wise, P.J. : -vs- : : Case No. 2015CA00226 CHARLES T. ANTHONY : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Canton Municipal Court, Case No. 2015-TRC-3571
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 9, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOSEPH MARTUCCIO EARLE E. WISE, JR. CANTON LAW DIRECTOR 122 Central Plaza North Canton, OH 44702 TYRONE HAURITZ CANTON CITY PROSECUTOR 218 Cleveland Ave. S.W. Canton, OH 44701-4218
KELLY PARKER ASSISTANT CITY PROSECUTOR 218 Cleveland Ave. S.W. Canton, OH 44701-4218 [Cite as State v. Anthony, 2016-Ohio-2905.]
Gwin, J.,
{¶1} Appellant Charles T. Anthony [“Anthony”] appeals his conviction and
sentence after a jury trial in the Canton Municipal Court on one count OVI in violation of
R.C. 4511.19(A)(1)(a).
Facts and Procedural History
{¶2} On May 25, 2015, Judith Frederick drove past the intersection of Market
Avenue and Sixth Street North in Canton, Ohio. Ms. Frederick observed Anthony's
disabled SUV. Anthony was seated in the front driver's seat and a female was seated in the
front passenger seat. Ms. Frederick did not stop at this time because she was alone. She
continued north on Market Avenue to pick up her son. Approximately ten minutes later,
Ms. Frederick, now traveling south on Market Avenue stopped to assist Anthony. At
this time, she again observed Anthony in the front driver's side seat and a female in the
front passenger's side seat. Ms. Frederick identified Anthony as the male in the front
driver’s seat.
{¶3} Upon his arrival, Canton Police Officer Schilling found a disabled SUV in the
roadway on Market Avenue at the intersection of Sixth Street North, with its hood open.
Anthony was hooking jumper cables to the battery of his vehicle. He attempted several
times to start the car. The disabled car's motor was not running. The officer never saw the
disabled car move. The officer noted Anthony had an odor of alcohol on his person and
his speech was slurred.
{¶4} Officer Schilling called for backup. Officers Wells and Braswell arrived on
the scene and testified at trial. Stark County, Case No. 2015CA00226 3
{¶5} While Officer Christopher Wells was conducting his initial investigation,
Anthony appeared unsteady on his feet as he was walking around his vehicle. An odor
of alcohol was on Anthony’s breath.
{¶6} Officer Braswell was equipped with a video recorder and the video (DVD)
was played for the jury. On the video, Anthony appeared to be highly intoxicated and
agitated.
{¶7} Marilyn Grant, Anthony's sister, testified she witnessed Anthony leave her
residence on the evening of May 25, 2016 as the passenger in his vehicle. Ms. Grant
testified that a woman named Jayda or Jayla was driving.
{¶8} Anthony testified that he was the passenger in his vehicle that was driven
by a woman named Jaylo. The car stopped working at Market and Sixth while she was
driving. Anthony testified that Jaylo left to summons help before the police arrived. He
claimed that Jaylo resides in Atlanta, Georgia and had been in town on May 25, 2015
visiting. She returned home to Georgia after the incident. He became scared, upset and
agitated at the number of officers that arrived on the scene. Anthony testified that he told
the officers he had a designated driver and that she would return after calling for
assistance.
{¶9} On November 18, 2015, Anthony was convicted by a jury of one count
OVI in violation of R.C. 4511.19(A)(1)(a). The conviction and sentenced were
memorialized in a Judgment Entry filed by the court on November 19, 2015. Anthony was
sentenced to 180 days in jail; all but 8 days suspended and was given credit for 2 days
served. He was ordered to sign up, comply with Quest, and do 50 hours of community Stark County, Case No. 2015CA00226 4
service. His driver's license was suspended for 6 months beginning May 25, 2015 and
he received 6 points against his license.1
Assignment of Error
{¶10} Anthony raises one assignment of error,
{¶11} “I. THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO
SUSTAIN THE CONVICTION AND THE VERDICT WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.”
Law and Analysis
{¶12} Our review of the constitutional sufficiency of evidence to support a criminal
conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979), which requires a court of appeals to determine whether “after viewing
the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” Id.; see also
McDaniel v. Brown, 558 U.S. 120, 130 S.Ct. 665, 673, 175 L.Ed.2d 582(2010) (reaffirming
this standard); State v. Fry, 125 Ohio St.3d 163, 926 N.E.2d 1239, 2010–Ohio–1017,
¶146; State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d 296, 2010–Ohio–2720, ¶68.
{¶13} Weight of the evidence addresses the evidence's effect of inducing belief.
State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), superseded by
constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio St.3d
89, 684 N.E.2d 668, 1997-Ohio–355. Weight of the evidence concerns “the inclination of
the greater amount of credible evidence, offered in a trial, to support one side of the issue
rather than the other. It indicates clearly to the jury that the party having the burden of
1 The Judgment Entry cites a separate case (2015TRD7384) which was a distinct matter involving a traffic incident on a different date than the charge in the case at bar. Stark County, Case No. 2015CA00226 5
proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall
find the greater amount of credible evidence sustains the issue, which is to be established
before them. Weight is not a question of mathematics, but depends on its effect in
inducing belief.” (Emphasis sic.) Id. at 387, 678 N.E.2d 541, quoting Black's Law
Dictionary (6th Ed. 1990) at 1594.
{¶14} When a court of appeals reverses a judgment of a trial court on the basis
that the verdict is against the weight of the evidence, the appellate court sits as a
“’thirteenth juror’” and disagrees with the fact finder’s resolution of the conflicting
testimony. Id. at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102
S.Ct. 2211, 72 L.Ed.2d 652 (1982). However, an appellate court may not merely
substitute its view for that of the jury, but must find that “‘the jury clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and
a new trial ordered.’” State v. Thompkins, supra, 78 Ohio St.3d at 387, quoting State v.
Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721 (1st Dist. 1983). Accordingly,
reversal on manifest weight grounds is reserved for “‘the exceptional case in which the
evidence weighs heavily against the conviction.’” Id.
“[I]n determining whether the judgment below is manifestly against
the weight of the evidence, every reasonable intendment and every
reasonable presumption must be made in favor of the judgment and the
finding of facts.
***
“If the evidence is susceptible of more than one construction, the
reviewing court is bound to give it that interpretation which is consistent with Stark County, Case No. 2015CA00226 6
the verdict and judgment, most favorable to sustaining the verdict and
judgment.”
{¶15} Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273
(1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192
(1978).
{¶16} In the case at bar, Anthony was charged with OVI as a violation of R.C.
4511.19(A)(1)(a) [“under the influence”]. Therefore, in the case at bar, to convict Anthony,
the jury would have to find that he “operated” a vehicle while under the influence of
alcohol, a drug of abuse, or a combination of them. R.C. 4511.19(A)(1)(a).
The evidence was sufficient to prove Anthony “operated” a vehicle.
{¶17} Anthony conceded that he was intoxicated when the police approached
him. 2T. at 146. Further, the evidence produced at trial supports the inference that
Anthony’s consumption of alcohol on the night in question adversely affected his actions,
reactions, conduct, movement or mental processes or impaired his reactions to an
appreciable degree, thereby lessening his ability to operate his SUV on the night in
question. Accordingly, Anthony argues only that there is insufficient evidence to prove
that he “operated” the SUV on May 25, 2015.
{¶18} R.C. 4511.01 provides,
(Y) “Driver or operator” means every person who drives or is in
actual physical control of a vehicle, trackless trolley, or streetcar.
{¶19} Prior to the Revised Code's definition of "operate," the meaning of the term
was "exclusively a matter of judicial interpretation.” State v. Wallace, 1st Dist. Hamilton
Nos. C-050530, C-050531, 2006-Ohio-2477, ¶ 8. The Ohio Supreme Court held that "[a] Stark County, Case No. 2015CA00226 7
person who is in the driver's seat of a motor vehicle with the ignition key in the ignition
and who, in his or her body has a prohibited concentration of alcohol is 'operating' the
vehicle within the meaning of R.C. 4511.19 whether or not the engine of the vehicle is
running.” State v. Gill, 70 Ohio St.3d 150, 1994-Ohio-403, 637 N.E.2d 897, syllabus.
{¶20} “Effective January 1, 2004, the term ‘operate,’ as used in R.C. Chapter
4511, ‘means to cause or have caused movement of a vehicle * * *.’ R.C. 4511.01(HHH).
This modification narrows the definition of ‘operate,’ which effectively eliminates ‘drunk
radio listeners, or people who use their cars as a four-wheeled, heated hotel room’ from
being convicted of OVI. Gill, 70 Ohio St.3d at 157-158, 637 N.E.2d 897 (Pfeifer, J.,
dissenting).” State v. Barnard, 5th Dist. Stark No. 2010-CA-00082, 2010-Ohio-5345, ¶25,
quoting State v. Schultz, 8th Dist. Cuyahoga No. 90412, 2008-Ohio-444, ¶ 19. (Footnotes
omitted).
{¶21} “Notably, and in relation to movement of a vehicle, R.C. 4511.01(HHH)
employs both the present tense (‘to cause’) and, alternatively, the past tense (to ‘have
caused’), in defining the conduct to which that section applies. The past tense indicates
action already completed. For purposes of R.C. 4511.19, to ‘have caused’ movement of
a vehicle is a fact that may be proved by circumstantial evidence, which inherently
possesses the same probative value as direct evidence. State v. Jenks (1991), 61 Ohio
St.3d 259, 574 N.E.2d 492.” State v. Halpin, 2nd Dist. Clark App. No. 07CA78, 2008-
Ohio-4136, ¶ 24; Barnard, 2010-Ohio-5345, ¶29.
{¶22} As our brethren in the Eight District has recognized,
Today, the difference between an OVI and a physical control
violation, besides the penalties, is that an OVI requires actual movement of Stark County, Case No. 2015CA00226 8
the vehicle, whereas a physical control violation does not. After January 1,
2004, if there is no evidence that the person moved or caused the vehicle
to move, that person cannot be convicted of OVI, but may be convicted of
being in physical control of a vehicle while under the influence. Still, a
person who is found passed out in his vehicle on the side of the highway
may be convicted of an OVI because a jury could infer that the vehicle was
moved to that location. However, if a person decides to “sleep it off” in the
parking lot of the bar where the person drank, the person could be convicted
only of a physical control violation, unless there is evidence of movement.
State v. Schultz, 8th Dist. Cuyahoga No. 90412, 2008-Ohio-444, 25.
{¶23} In the case at bar, the evidence produced at trial established beyond a
reasonable doubt that the SUV belonged to Anthony. The evidence further established
that the vehicle was disabled on a public street. Ms. Fredrick testified that on two
occasions ten minutes apart she observed Anthony in the driver’s seat of the SUV. Officer
Schilling testified that he observed Anthony attaching jumper cable to the SUV. No one
else at the scene claimed to have driven the SUV to the location where it broke down.
{¶24} If the state relies on circumstantial evidence to prove an essential element
of an offense, it is not necessary for “such evidence to be irreconcilable with any
reasonable theory of innocence in order to support a conviction.” State v. Jenks, 61 Ohio
St.3d 259, 272, 574 N.E.2d 492(1991), paragraph one of the syllabus, superseded by
State constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio
St.3d 89, 684 N.E.2d 668(1997). Circumstantial evidence and direct evidence inherently
possess the same probative value [.]” Jenks, 61 Ohio St.3d at paragraph one of the Stark County, Case No. 2015CA00226 9
syllabus. Furthermore, “[s]ince circumstantial evidence and direct evidence are
indistinguishable so far as the jury's fact-finding function is concerned, all that is required
of the jury is that i[t] weigh all of the evidence, direct and circumstantial, against the
standard of proof beyond a reasonable doubt.” Jenks, 61 Ohio St.3d at 272, 574 N.E.2d
492. While inferences cannot be based on inferences, a number of conclusions can result
from the same set of facts. State v. Lott, 51 Ohio St.3d 160, 168, 555 N.E.2d 293(1990),
citing Hurt v. Charles J. Rogers Transp. Co, 164 Ohio St. 329, 331, 130 N.E.2d 820(1955).
Moreover, a series of facts and circumstances can be employed by a jury as the basis for
its ultimate conclusions in a case. Lott, 51 Ohio St.3d at 168, 555 N.E.2d 293, citing Hurt,
164 Ohio St. at 331, 130 N.E.2d 820.
{¶25} Viewing the evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt that
Anthony “operated” the SUV. We hold, therefore, that the state met its burden of
production regarding each element of the crime of OVI in violation of R.C.
4511.19(A)(1)(a) and, accordingly, there was sufficient evidence to support Anthony’s
conviction.
{¶26} As an appellate court, we are not fact finders; we neither weigh the
evidence nor judge the credibility of witnesses. Our role is to determine whether there is
relevant, competent and credible evidence, upon which the fact finder could base his or
her judgment. Cross Truck v. Jeffries, 5th Dist. Stark No. CA–5758, 1982 WL 2911(Feb.
10, 1982). Accordingly, judgments supported by some competent, credible evidence
going to all the essential elements of the case will not be reversed as being against the
manifest weight of the evidence. C.E. Morris Co. v. Foley Construction, 54 Ohio St.2d Stark County, Case No. 2015CA00226 10
279, 376 N.E.2d 578(1978). The Ohio Supreme Court has emphasized: “‘[I]n determining
whether the judgment below is manifestly against the weight of the evidence, every
reasonable intendment and every reasonable presumption must be made in favor of the
judgment and the finding of facts. * * *.’” Eastley v. Volkman, 132 Ohio St.3d 328, 334,
972 N.E.2d 517, 2012-Ohio-2179, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio
St.3d 77, 80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate
Review, Section 603, at 191–192 (1978). Furthermore, it is well established that the trial
court is in the best position to determine the credibility of witnesses. See, e.g., In re
Brown, 9th Dist. Summit No. 21004, 2002–Ohio–3405, ¶ 9, citing State v. DeHass, 10
Ohio St.2d 230, 227 N.E.2d 212(1967).
{¶27} Ultimately, “the reviewing court must determine whether the appellant or
the appellee provided the more believable evidence, but must not completely substitute
its judgment for that of the original trier of fact ‘unless it is patently apparent that the fact
finder lost its way.’” State v. Pallai, 7th Dist. Mahoning No. 07 MA 198, 2008-Ohio-6635,
¶31, quoting State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964
(2nd Dist. 2004), ¶ 81. In other words, “[w]hen there exist two fairly reasonable views of
the evidence or two conflicting versions of events, neither of which is unbelievable, it is
not our province to choose which one we believe.” State v. Dyke, 7th Dist. Mahoning No.
99 CA 149, 2002-Ohio-1152, at ¶ 13, citing State v. Gore, 131 Ohio App.3d 197, 201, 722
N.E.2d 125(7th Dist. 1999).
{¶28} The weight to be given to the evidence and the credibility of the witnesses
are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212(1967),
paragraph one of the syllabus; State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 Stark County, Case No. 2015CA00226 11
N.E.2d 955, ¶118. Accord, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86
L.Ed. 680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct. 843, 74 L.Ed.2d
646 (1983).
{¶29} Although Anthony testified that he had not driven the SUV on the night in
question, the jury as the trier of fact was free to accept or reject any and all of the evidence
offered by the parties and assess the witness’s credibility. "While the jury may take note
of the inconsistencies and resolve or discount them accordingly * * * such inconsistencies
do not render defendant's conviction against the manifest weight or sufficiency of the
evidence.” State v. Craig, 10th Dist. Franklin No. 99AP-739, 1999 WL 29752 (Mar 23,
2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09-1236, 1996 WL 284714
(May 28, 1996). Indeed, the jury need not believe all of a witness' testimony, but may
accept only portions of it as true. State v. Raver, 10th Dist. Franklin No. 02AP-604, 2003-
Ohio-958, ¶21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964); State v.
Burke, 10th Dist. Franklin No. 02AP-1238, 2003-Ohio-2889, citing State v. Caldwell, 79
Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although the evidence may have
been circumstantial, we note that circumstantial evidence has the same probative value
as direct evidence. State v. Jenks, supra.
{¶30} We find that this is not an “‘exceptional case in which the evidence weighs
heavily against the conviction.’” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541,
quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The jury neither lost his way nor
created a miscarriage of justice in convicting Anthony of the charge.
{¶31} Based upon the foregoing and the entire record in this matter, we find
Anthony’s conviction was not against the sufficiency or the manifest weight of the Stark County, Case No. 2015CA00226 12
evidence. To the contrary, the jury appears to have fairly and impartially decided the
matters before them. The jury as a trier of fact can reach different conclusions concerning
the credibility of the testimony of the state’s witnesses and Anthony and his witnesses.
This court will not disturb the jury's finding so long as competent evidence was present to
support it. State v. Walker, 55 Ohio St.2d 208, 378 N.E.2d 1049 (1978). The jury heard
the witnesses, evaluated the evidence, and was convinced of Anthony’s guilt.
{¶32} Finally, upon careful consideration of the record in its entirety, we find that
there is substantial evidence presented which if believed, proves all the elements of the
crime of OVI in violation of R.C. 4511.19(A) (1)(a) beyond a reasonable doubt.
{¶33} Anthony’s sole assignment of error is overruled.
{¶34} For the foregoing reasons, the judgment of the Canton Municipal Court,
Stark County, Ohio is affirmed.
By Gwin, J.,
Farmer, P.J., and
Wise, J., concur