[Cite as State v. Brock, 2024-Ohio-1036.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. 22CA38 & 22CA39
v. :
RASHEED BROCK, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
_________________________________________________________________
APPEARANCES:
Christopher Bazeley, Cincinnati, Ohio, for appellant1.
Anna Villarreal, Chillicothe Law Director, and Jason M. Miller, Assistant Law Director, Chillicothe, Ohio, for appellee. ___________________________________________________________________ CRIMINAL APPEAL FROM MUNICIPAL COURT DATE JOURNALIZED:3-15-24 ABELE, J.
{¶1} This is an appeal from a Chillicothe Municipal Court
judgment of conviction and sentence. Rasheed Brock, defendant
below and appellant herein, assigns five errors for review:
FIRST ASSIGNMENT OF ERROR:
“BROCK’S CONVICTION FOR HAVING FICTITIOUS PLATES IS NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE.”
1 Different counsel represented appellant during the trial court proceedings. ROSS, 22CA38 & 22CA39 2
SECOND ASSIGNMENT OF ERROR:
“THE JURY INSTRUCTION REGARDING THE ELEMENTS OF THE OFFENSE OF FICTITIOUS PLATES IS ERRONEOUS AS A MATTER OF LAW.”
THIRD ASSIGNMENT OF ERROR:
“THE FINDING THAT BROCK WAS IMPAIRED WHILE DRIVING IS SUPPORTED BY INSUFFICIENT EVIDENCE.”
FOURTH ASSIGNMENT OF ERROR:
“BROCK’S CONVICTION FOR FAILURE TO COMPLY IS NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE OR LEGALLY SUFFICIENT EVIDENCE.”
FIFTH ASSIGNMENT OF ERROR:
“BROCK’S CONVICTION FOR DRIVING WITHOUT AN OPERATOR’S LICENSE IS SUPPORTED BY INSUFFICIENT EVIDENCE.”
{¶2} On June 15, 2021, Victoria Bartlett observed a gold
Chevrolet Impala driving erratically and called 911. After
appellant eluded Chillicothe Police Officer Adam Steele for several
blocks, Steele eventually stopped appellant for multiple
violations.
{¶3} In Case No. 22CA38, the complaint charged appellant with
(1) operating a motor vehicle while under the influence of alcohol
or a drug of abuse in violation of R.C. 4511.19(A)(1)(a), a first-
degree misdemeanor, (2) driving without a license in violation of
R.C. 4510.12, an unclassified misdemeanor, (3) fictitious
registration in violation of R.C. 4549.08, a fourth-degree ROSS, 22CA38 & 22CA39 3
misdemeanor, and (4) driving left of center in violation of R.C.
4511.29, a minor misdemeanor.
{¶4} In Case No. 22CA39, the complaint charged appellant with
(1) failure to comply with an order or signal of a police officer
in violation of R.C. 2921.331, a first-degree misdemeanor, and (2)
possession of drug paraphernalia in violation of R.C. 2925.14(C), a
fourth-degree misdemeanor.
{¶5} At trial, Victoria Bartlett testified that around 6:00
p.m. on June 15, 2021, she and her husband observed someone in an
Impala throw “something large out the window. * * * Like, it was
huge. Like, I had to go around it.” Barlett and her husband also
observed the vehicle drive erratically, “sometimes going off the
roadway,” “sometimes going into the other lane almost hitting
several vehicles.” Bartlett called 911 while her husband
photographed the license plate.
{¶6} Officer Steele testified that he responded to a dispatch
regarding a reckless driver and, after he began to follow appellant
and make his own observations, he activated his overhead lights.
Appellant, however, continued to drive another block and a half.
At that time, Steele activated his audible siren and appellant
drove another quarter of a mile before he stopped. Steele
testified that he observed appellant drive left of center
“completely over” the line and moved “from left to right inside the ROSS, 22CA38 & 22CA39 4
vehicle, making furtive movements * * * that could either be
attempting to hide contraband or something of that nature.” Also
during the pursuit, appellant drove approximately 10 miles per hour
in a 25-mile-per-hour zone. Steele estimated that with activated
lights he drove “several blocks, seven to eight blocks and around
the corner.” When appellant exited his vehicle, “[h]is clothes
were disheveled,” and he “was unsteady on his feet when I was
talking to him.” Steele advised appellant of his Miranda Rights
and observed appellant’s pupils:
His eyes were pinpoint, constricted, not reactive to the light. It was daylight during that time. And once he was advised of his rights, he stated that he understood. And I asked him why it took him so long to pull over. He stated that he was doing a pill.
{¶7} Officer Steele described appellant’s speech as “slow and
slurred * * * difficult to understand,” and noted that appellant
said he had been “snorting a perc (Percocet).” Steele was familiar
with appellant and believed appellant “was under the influence of
some kind of narcotic.” Video and audio from Steele’s body camera
recorded appellant’s statement that he had been “snorting a f*cking
pill.”
{¶8} Officer Steele testified that he placed appellant “under
arrest for OVI and put him in the back of my cruiser for failure to
comply.” As appellant entered the back of Steele’s cruiser, he
said, “I did one perc but one perc ain’t going to do sh*t to me.” ROSS, 22CA38 & 22CA39 5
Steele checked appellant’s information that “showed that he did not
have a valid license through the State of Ohio nor any other state
for that matter.” In addition, Steele checked appellant’s license
plate with the LEADS database and discovered it registered to a
gray Dodge, not the Impala.
{¶9} During Officer Steele’s inventory search, he discovered
inside the driver’s door a plastic straw that contained white
residue. Steele knew from his training and experience that straws
are “commonly used to snort illicit narcotics.” Further, Steele
found a glass pipe with burn marks and residue, which, he knew from
experience, is associated with the “use of illicit narcotics,
specifically methamphetamine.”
{¶10} At the police station Officer Steele invited appellant to
participate in field sobriety and chemical tests. Appellant,
however, refused and replied, “f*ck no.” As Steele read appellant
the BMV 2255 form regarding the consequences for an OVI chemical
test refusal, appellant’s speech and mannerisms became slower and
he appeared “a lot more lethargic” at the jail. Steele also
explained that, even if appellant had a legitimate prescription for
Percocet, the jury could nevertheless find him guilty of OVI.
{¶11} After hearing the evidence adduced at trial, the jury
found appellant guilty of OVI, fictitious plates, failure to
comply, and the possession of drug paraphernalia. After a bench ROSS, 22CA38 & 22CA39 6
trial, the trial court found appellant guilty of no operator’s
license and driving left of center. The trial court sentenced
appellant to serve 120 days in jail for the OVI and for the failure
to comply, to be served concurrently, and pay the court costs on
the remaining charges. This appeal followed and this court
consolidated the two appeals on February 16, 2023.
Standard of Review
{¶12} As a threshold matter, because appellant challenges both
the sufficiency of the evidence and the manifest weight of the
evidence, we initially address both standards of review.
{¶13} A claim of insufficient evidence invokes a due process
concern and raises the question whether the evidence is legally
sufficient to support the verdict as a matter of law. State
v. Thompkins, 78 Ohio St.3d 380,386, 678 N.E.2d 541 (1997),
syllabus; State v. Blevins, 2019-Ohio-2744, 140 N.E.3d 27, ¶ 18
(4th Dist.). When reviewing the sufficiency of the evidence, an
appellate court’s inquiry focuses primarily on the adequacy of the
evidence; that is, whether the evidence, if believed, could
reasonably support a finding of guilt beyond a reasonable doubt.
Id. at syllabus. The standard of review is whether, after viewing
the probative evidence and inferences reasonably drawn therefrom in
the light most favorable to the prosecution, any rational trier of
fact could have found all the essential elements of the offense ROSS, 22CA38 & 22CA39 7
beyond a reasonable doubt. E.g., Jackson v. Virginia, 443 U.S.
307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Jenks, 61
Ohio St.3d 259, 273, 574 N.E.2d 492 (1991).
{¶14} Furthermore, under the sufficiency of the evidence
standard a reviewing court does not assess “whether the state’s
evidence is to be believed, but whether, if believed, the evidence
against a defendant would support a conviction.” State v.
Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997) (Cook, J.,
concurring). Therefore, when reviewing a sufficiency of the
evidence claim, an appellate court must construe the evidence in a
light most favorable to the prosecution. See, e.g., State v. Hill,
75 Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. Grant, 67
Ohio St.3d 465, 477, 620 N.E.2d 50 (1993). A reviewing court will
not overturn a conviction on a sufficiency of the evidence claim
unless reasonable minds could not reach the conclusion the trier of
fact did. State v. Tibbetts, 92 Ohio St.3d 146, 162, 749 N.E.2d
226 (2001); State v. Treesh, 90 Ohio St.3d 460, 484, 739 N.E.2d 749
(2001).
{¶15} “Although a court of appeals may determine that a
judgment of a trial court is sustained by sufficient evidence,
that court may nevertheless conclude that the judgment is
against the weight of the evidence.” Thompkins, 78 Ohio St.3d
at 387. “The question to be answered when a manifest weight ROSS, 22CA38 & 22CA39 8
issue is raised is whether ‘there is substantial evidence upon
which a jury could reasonably conclude that all the elements
have been proved beyond a reasonable doubt.’” State v. Leonard,
104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 81, quoting
State v. Getsy, 84 Ohio St.3d 180, 193–194, 702 N.E.2d 866
(1998), citing State v. Eley, 56 Ohio St.2d 169, 383 N.E.2d 132
(1978), syllabus. A court that considers a manifest weight
challenge must “‘review the entire record, weigh the evidence
and all reasonable inferences, and consider the credibility of
witnesses.’” State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493,
108 N.E.3d 1028, ¶ 208, quoting State v. McKelton, 148 Ohio St.3d
261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 328. However, the reviewing
court must bear in mind that credibility generally is
an issue for the trier of fact to resolve. State v. Issa, 93
Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State v. Murphy, 4th
Dist. Ross No. 07CA2953, 2008-Ohio-1744, ¶ 31. “‘Because the
trier of fact sees and hears the witnesses and is particularly
competent to decide “whether, and to what extent, to credit the
testimony of particular witnesses,” we must afford substantial
deference to its determinations of credibility.’” Barberton v.
Jenney, 126 Ohio St.3d 5, 2010-Ohio-2420, 929 N.E.2d 1047, ¶ 20,
quoting State v. Konya, 2d Dist. Montgomery No. 21434, 2006-
Ohio-6312, ¶ 6, quoting State v. Lawson, 2d Dist. Montgomery No. ROSS, 22CA38 & 22CA39 9
16288, 1997 WL 476684 (Aug. 22, 1997).
{¶16} Thus, an appellate court will generally defer to the
trier of fact on issues of evidence weight and credibility, as long
as a rational basis exists in the record for the fact-finder’s
determination. State v. Picklesimer, 4th Dist. Pickaway No. 11CA9,
2012-Ohio-1282, ¶ 24; accord State v. Howard, 4th Dist. Ross No.
07CA2948, 2007- Ohio-6331, ¶ 6 (“We will not intercede as long as
the trier of fact has some factual and rational basis for its
determination of credibility and weight.”). Accordingly, if the
prosecution presented substantial credible evidence upon which the
trier of fact reasonably could conclude, beyond a reasonable doubt,
that the essential elements of the offense had been established,
the judgment of conviction is not against the manifest weight of
the evidence. E.g., Eley. Accord Eastley v. Volkman, 132 Ohio
St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 12, quoting Thompkins,
78 Ohio St.3d at 387, quoting Black’s Law Dictionary 1594 (6th
ed.1990) (a judgment is not against the manifest weight of the
evidence when “‘“the greater amount of credible evidence”’”
supports it).
{¶17} Consequently, when a court reviews a manifest weight of
the evidence claim, a court may reverse a judgment of conviction
only if it appears that the fact-finder, when it resolved the
conflicts in evidence, “‘clearly lost its way and created such a ROSS, 22CA38 & 22CA39 10
manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.’” Thompkins, 78 Ohio St.3d at
387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d
717 (1st Dist.1983); accord McKelton at ¶ 328. Finally, a
reviewing court should find a conviction against the manifest
weight of the evidence only in the “‘exceptional case in which the
evidence weighs heavily against the conviction.’” Thompkins, 78
Ohio St.3d at 387, quoting Martin, 20 Ohio App.3d at 175, 485
N.E.2d 717; accord State v. Clinton, 153 Ohio St.3d 422, 2017-Ohio-
9423, 108 N.E.3d 1, ¶ 166; State v. Lindsey, 87 Ohio St.3d 479,
483, 721 N.E.2d 995 (2000).
I.
{¶18} In his first assignment of error, appellant asserts that
sufficient evidence does not support his fictitious plates
conviction. In particular, appellant contends that the state
failed to produce evidence that appellant had knowledge of, or
reason to suspect, that the license plate he displayed on his
vehicle came from another vehicle.
{¶19} R.C. 4549.08 sets forth the essential elements of use of
unauthorized plates:
(A) No person shall operate or drive a motor vehicle upon the public roads and highways in this state if it displays a license plate or a distinctive number or identification mark that meets any of the following criteria: ROSS, 22CA38 & 22CA39 11
(1) Is fictitious;
(2) Is a counterfeit or an unlawfully made copy of any distinctive number or identification mark;
(3) Belongs to another motor vehicle, provided that this section does not apply to a motor vehicle that is operated on the public roads and highways in this state when the motor vehicle displays license plates that originally were issued for a motor vehicle that previously was owned by the same person who owns the motor vehicle that is operated on the public roads and highways in this state, during the thirty-day period described in division (A)(4) of section 4503.12 of the Revised Code.
(B) A person who fails to comply with the transfer of a registration provisions of section 4503.12 of the Revised Code and is charged with a violation of that section shall not be charged with a violation of this section.
(C) Whoever violates division (A)(1),(2), or (3) of this section is guilty of operating a motor vehicle bearing an invalid license plate or identification mark, a misdemeanor of the fourth degree on a first offense and a misdemeanor of the third degree on each subsequent offense.
{¶20} However, R.C. 4549.08 does not set forth a culpable
mental state, and therefore indicates a purpose to impose strict
liability. In State v. Johnson, 128 Ohio St.3d 107, 2010-Ohio-
6301, 942 N.E.2d 347, the Supreme Court of Ohio observed:
[A] separate mental state need not be specified for every element of an offense. And although the general rule for criminal liability requires a culpable mental state, a guilty intent is not necessary for every offense. State v. Morello (1959), 169 Ohio St. 213, 8 O.O.2d 192, 158 N.E.2d 525. Offenses without any culpable mental state are strict-liability offenses, and they impose liability for simply doing a prohibited act. In this type of case, ignorance of a fact or an element of the offense is not a defense. See State v. Kelly (1896), 54 Ohio St. 166, 43 ROSS, 22CA38 & 22CA39 12
N.E. 163.
Johnson at ¶ 17.
{¶21} Because strict liability for an offense is the exception
to the rule, the General Assembly set forth in R.C. 2901.21(B) a
test that indicates whether an offense is a strict liability
offense:
“When the section defining an offense does not specify any degree of culpability, and plainly indicates a purpose to impose strict criminal liability for the conduct described in the section, then culpability is not required for a person to be guilty of the offense. When the section neither specifies culpability nor plainly indicates a purpose to impose strict liability, recklessness is sufficient culpability to commit the offense.” (Emphasis added.)
{¶22} Here, we believe that the language of R.C. 4549.08
suggests that the General Assembly intended to impose strict
criminal liability. As noted previously, the statute does not
specify a culpable mental state. “Statutes and ordinances enacted
for the purpose of promoting the safety, health or well-being of
the public are generally meant to be enforced under a strict
liability standard.” Columbus v. Shirkey, 10th Dist. Franklin No.
08AP-752, 2009-Ohio-1329, ¶ 30. In fact, traffic offenses and
motor vehicle laws are areas that the United States Supreme Court
lists as being amenable to the imposition of strict liability.
United States v. Morissette, 342 U.S. 246, 262, 72 S.Ct. 240, 96 ROSS, 22CA38 & 22CA39 13
L.Ed. 288 (1952). Ohio courts have held likewise, even for much
more serious traffic offenses such as driving under the influence.
See State v. Cleary, 22 Ohio St.3d 198, 199, 490 N.E.2d 574 (1986).
See, also, State v. Bentz, 2 Ohio App.3d 352, 442 N.E.2d 90 (1st
Dist. 1981). But see, State v. Besler, 1st Dist. Hamilton No. C-
120390, 2013-Ohio-1284, ¶ 9 (nothing in plain language of R.C.
4549.08 indicates purpose to impose strict liability); see also
State v. Frazier, 7th Dist. No. 01CA65, 2003-Ohio-1216, ¶ 14–19.
{¶23} In the case sub judice, we believe the evidence adduced
at trial supported appellant’s fictitious plate conviction pursuant
to R.C. 4549.08. Accordingly, we overrule appellant’s first
assignment of error.
II.
{¶24} In his second assignment of error, appellant asserts that
the jury instruction regarding the elements of the offense of
fictitious plates is erroneous as a matter of law. In particular,
appellant argues that the trial court misadvised the jury of the
recklessness element of the fictitious plates charge.
{¶25} During jury instructions, when defining the elements of
R.C. 4549.08, the trial court stated:
1) That on or about the 15th Day of June 2021, in Chillicothe, Ross County, Ohio; (2) The Defendant; (3) Recklessly operated or drove a motor vehicle upon the ROSS, 22CA38 & 22CA39 14
public roads and highways of Ohio; (4) The motor vehicle displayed a license plate; and (5) The license plate belonged to another motor vehicle that was issued for the same person who owned the motor vehicle in this case and that person failed to apply to transfer the registration within thirty days of the date of transfer of the registration.
{¶26} Appellant argues that the instruction that required them
to find that appellant drove recklessly on public roads misled the
jury.
{¶27} “A criminal defendant has the right to expect that the
trial court will give complete jury instructions on all issues
raised by the evidence.” State v. Howard, 4th Dist. Ross No.
07CA2948, 2007-Ohio-6331, ¶ 26. “[A] trial court should give a
proposed jury instruction if it is a correct statement of the law
and is applicable to the facts of the particular case.” Id.,
citing Murphy v. Carrollton Mfg. Co., 61 Ohio St.3d 585, 591, 575
N.E.2d 828 (1991).
{¶28} When reviewing errors in a jury instruction, a trial
court must consider a jury charge as a whole. State v. Huish,
2023-Ohio-365, 208 N.E.3d 270, ¶ 54 (10th Dist.), citing Cromer v.
Children's Hosp. Med. Ctr. of Akron, 142 Ohio St.3d 257, 2015-Ohio-
229, 29 N.E.3d 921, ¶ 35-36. However, “[a]n unnecessary,
ambiguous, or even affirmatively erroneous portion of a jury charge
does not inevitably constitute reversible error.” Id. When a jury ROSS, 22CA38 & 22CA39 15
instruction incorrectly states the law, a reviewing court applies a
mixed de novo and abuse of discretion standard of review, examining
the jury charge as a whole and determining “whether the jury charge
probably misled the jury in a matter materially affecting the
complaining party's substantial rights.” Id.
{¶29} Appellee points out that appellant failed to object to
the jury charge at trial. An appellant who fails to object as
Crim.R. 30(A)5 requires “is precluded from claiming error in the
instructions to the jury unless the instructions constitute plain
error under Crim.R. 52(B).” State v. McCown, 10th Dist. No. 06AP-
153, 2006-Ohio-6040, ¶ 36. Crim.R. 52 states, “[p]lain errors or
defects affecting substantial rights may be noticed although they
were not brought to the attention of the court.” Here, counsel for
appellant failed to object to the alleged issue in the jury
instructions before the trial court. Thus, we examine the claimed
error under a plain error analysis.
{¶30} The Supreme Court of Ohio has found that an erroneous
jury instruction does not meet the plain error threshold unless, “
‘but for the error, the outcome of the trial clearly would have
been otherwise.’ ” McCown at ¶ 38, quoting State v. Long, 53 Ohio
St.2d 91, 372 N.E.2d 804 (1978), paragraph two of the syllabus;
State v. Cunningham, 105 Ohio St.3d 197, 2004-Ohio-7007, 824 N.E.2d
504, ¶ 56, citing State v. Underwood, 3 Ohio St.3d 12, 444 N.E.2d ROSS, 22CA38 & 22CA39 16
1332 (1983), syllabus.
{¶31} In State v. White, 2d Dist. Montgomery No. 17739, 2000 WL
799762 (June 23, 2000), language in a jury instruction did not
track the domestic violence statute. The court concluded that the
defendant did not demonstrate any confusion that stemmed from the
slight rewording of the charge in the complaint and the jury
instruction. Further, the court noted that it did not see how the
trial’s result would have been otherwise if the statute had been
tracked word-for-word. Consequently, in the absence of such a
determination, the court could not find plain error. Id. at 3,
citing Underwood, supra, at the syllabus.
{¶32} In State v. Hayes, 4th Dist. Adams No. 17CA1056, 2019-
Ohio-257, a grand jury returned an indictment that charged the
defendant with 92 counts of unauthorized use of OHLELG and 17
counts of unauthorized use of LEADS. On appeal, the defendant
argued that trial counsel should have requested an affirmative
defense instruction. This court concluded that no reasonable
probability existed that the outcome of the trial would have been
different if the court had given a R.C. 2913.03(C)(2) affirmative
defense instruction. Id. at ¶ 63. See also State v. Miller, 1st
Dist. Hamilton No. C-990166, 2000 WL 216632 (Feb.25, 2000)(no plain
error when trial court omitted part of reasonable doubt
instruction), State v. Douthit, 1st Dist. Hamilton No. C-910394, C- ROSS, 22CA38 & 22CA39 17
910395, 1992 WL 180875 (July 29, 1992)(no plain error when trial
court made erroneous references to defendant's burden of proof in
closing argument and in initial jury instructions because outcome
would not have been different), State v. Reeves, 12th Dist.
Clermont No. CA2020-01-001, 2020-Ohio-5565, ¶ 16 (no plain error
when trial court failed to instruct jury on abandonment in theft
trial because outcome would not have been different), State v.
Curtis, 5th Dist. Stark No. 2022CA00036, 2023-Ohio-1652, ¶ 34-35
(charge did not mislead jury in matter materially affecting
defendant’s substantial rights when jury charge did not correctly
state Ohio law on complicity), Huish, supra at ¶ 59 (conviction
upheld when written instructions inadvertently stated “find the not
defendant guilty” instead of “find the defendant not guilty.”)
{¶33} In the case sub judice, we recognize that the trial court
inserted a reckless driving requirement into the fictitious plates
jury instruction. However, we cannot say that the error affected
appellant’s substantial rights and impacted the trial’s outcome.
Long, supra. Here, the court’s instruction did not increase the
likelihood of a guilty verdict, but instead added another element
that arguably decreases the potential for a guilty verdict. Thus,
we believe that appellant failed to demonstrate that, but for the
incorrect jury instruction, the trial would have had a different
outcome. ROSS, 22CA38 & 22CA39 18
{¶34} Accordingly, we overrule appellant’s second assignment of
error.
III.
{¶35} In his third assignment of error, appellant asserts that
sufficient evidence does not support his conviction for operating a
motor vehicle while impaired.
{¶36} The state charged appellant with OVI in violation of R.C.
4511.19(A)(1)(a). Pursuant to the statute, “[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.” R.C. 4511.19(A)(1)(a).”
Appellant contends that the evidence adduced at trial failed to
prove that he had been impaired at the time he drove the vehicle.
{¶37} We point out that this particular section of the statute
does not require evidence of a specific blood, breath, or urine
alcohol concentration to prove impairment. Instead, this section
requires the state to establish that a defendant operated a vehicle
“when his faculties where appreciably impaired * * *.” State v.
Smith, 7th Dist. Mahoning No. 05 MA 219, 2007-Ohio-3182, ¶ 76,
quoting State v. Crites, 7th Dist. Harrison No. 99-518-CA, 2000 WL
1781450 (Nov.30, 2000). “As such, the defendant's behavior is the
primary consideration.” Id.
{¶38} In State v. Murphy, 4th Dist. Ross No. 07CA2953, 2008- ROSS, 22CA38 & 22CA39 19
Ohio-1744, an officer testified that the defendant appeared
disoriented, confused, slurred his speech, and smelled of an
alcoholic beverage at the crash scene. Id. at ¶ 26. This court
concluded that sufficient evidence supported the conviction. Id.
at ¶ 18. See also State v. May, 2018-Ohio-1510, 111 N.E.3d 48 (8th
Dist.) (evidence sufficient to show defendant driving under
influence when physiological factors like glassy or bloodshot
eyes, slurred speech, and confused appearance demonstrated impaired
physical and mental ability to drive), State v. Gladman, 2d Dist.
Darke No. 2013 CA 99, 2014-Ohio-2554, (odor of alcohol, bloodshot,
glassy eyes, slurred speech, difficulty walking demonstrated
violation of R.C. 4511.19(A)(1)(a)), State v. May, 2011-Ohio-6637,
970 N.E.2d 1029 (7th Dist)(defendant’s glassy eyes, slow and
slurred speech, stumbling gait and refusal to take field sobriety
supported R.C. 4511.19(A)(1)(a) conviction), State v. Iloba, 9th
Dist. Wayne No. 20AP0030, 2021-Ohio-3700, ¶ 17 (“both reasonable
suspicion and probable cause can be demonstrated with reference to
physiological factors that tend to indicate impairment, such as an
odor of alcohol on a suspect's person, bloodshot or glassy eyes,
slurred speech, or a confused manner.”), State v. Homan, 89 Ohio
St.3d 421, 732 N.E.2d 952 (2000)(defendant's erratic driving, red
and glassy eyes, the smell of alcohol on her breath, and admission
to consuming alcoholic beverages, amply supported decision to ROSS, 22CA38 & 22CA39 20
arrest, even where no field sobriety tests were performed or where
the results were suppressed).
{¶39} In the case at bar, appellant refused both field sobriety
and chemical tests. However, an eye witness and Officer Steele
testified that appellant drove erratically. Moreover, appellant
eluded Steele for several blocks, appellant’s clothing appeared
“dissheveled,” appellant appeared “unsteady on his feet,” exhibited
speech “slow and slurred * * * difficult to understand,” pupils
“constricted,” and stated he had been, “snorting a Perc
(Percocet).”
{¶40} After our review of the evidence adduced at trial, we
conclude that the prosecution adduced sufficient evidence at trial,
if believed, to support the finding of guilt beyond a reasonable
doubt for a violation of R.C. 4511.19(A)(1)(a). Here, when viewed
in a light most favorable to the prosecution, any rational trier of
fact could have found all essential elements beyond a reasonable
doubt.
{¶41} Accordingly, based upon the foregoing reasons, we
overrule appellant’s third assignment of error.
IV.
{¶42} In his fourth assignment of error, appellant asserts that
insufficient evidence supports his conviction for failure to comply
and his conviction is also against the manifest weight of the ROSS, 22CA38 & 22CA39 21
evidence. Specifically, appellant asserts that the state must
produce some evidence to show that he attempted to flee or evade
police officers to support a conviction.
{¶43} In this assignment of error, appellant challenges both
the weight and sufficiency of the evidence. As noted above, the
issue of whether the prosecution adduced sufficient evidence at
trial to sustain a conviction is a question of law. R.C.
2921.331(B) required the state to prove that appellant operated his
vehicle “so as willfully to elude or flee a police officer after
receiving a visible or audible signal from a police officer to
bring the person’s motor vehicle to a stop.”
{¶44} We begin with appellant’s sufficiency argument. A
challenge to the sufficiency of the evidence tests “whether, when
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. Hunter,
131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 118, quoting
State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph
two of the syllabus.
{¶45} Appellant maintains that the evidence adduced at trial
failed to show that he willfully eluded or fled from Officer
Steele. Appellant contends that, if appellant intended to flee and
evade police, he “did an exceptionally bad job of it,” and points ROSS, 22CA38 & 22CA39 22
to the fact that “he drove slowly at about 10 miles per hour -
fifteen miles per hour below the speed limit,” and “never exceeded
20 miles per hour.” Finally, appellant argues that no evidence
exists to show that he did anything to avoid contact with Officer
Steele once he came to a stop.
{¶46} In State v. Butler, 9th Dist. Summit No. 21870, 2004-
Ohio-5164, the court affirmed the defendant’s fleeing and eluding
conviction when the defendant engaged in a low-speed chase,
traveled at approximately 25 m.p.h., and used appropriate signals.
Id. at ¶ 3. See also State v. Rupp, 12th Dist. Butler No. CA2001–
06–135, 2002-Ohio-1600 (“slow-speed chase” conviction for failure
to comply with order or signal of police officer not against
manifest weight of evidence), State v. Elijah, 2d Dist. Montgomery
No. 18034, 2000 WL 968781 (July 14, 2000) (evidence supported
failure to comply when defendant failed to stop for cruiser’s
lights and sirens during a five-minute low-speed chase), State v.
Scott, 8th Dist. Cuyahoga No. 97676, 2012-Ohio- 3811 (failure to
comply upheld when chase short and slow, but evidence established
defendant did not stop or pull over after police activated siren
and lights, traveled approximately five blocks, drove over posted
speed limit and through several stop signs).
{¶47} The evidence adduced in Butler and the foregoing cases ROSS, 22CA38 & 22CA39 23
bear great similarity to the evidence adduced in the case sub
judice. Thus, even though appellant drove slowly and did not
exceed 20 miles per hour, his failure to stop when the officer
activated his siren and lights constituted a violation of R.C.
2921.331(B). Thus, we conclude that the prosecution adduced
sufficient evidence at trial to support a guilty verdict for
failing to comply in violation of R.C. 2921.331(B).
{¶48} Appellant also contends that his conviction for failure
to comply is against the manifest weight of the evidence. As noted
above, in a manifest weight review, we must “weigh the evidence and
all reasonable inferences, consider the credibility of the
witnesses, and determine whether, in resolving conflicts in the
evidence, the trier of fact clearly lost its way and created a
manifest miscarriage of justice.” Thompkins, 78 Ohio St.3d 380,
387, 678 N.E.2d 541 (1997).
{¶49} In the case at bar, when we weigh the evidence and all
reasonable inferences from Officer Steele’s testimony, we cannot
conclude that the trier of fact lost its way. Although appellant
drove slowly during his flight from Officer Steele, the fact
remains that appellant drove approximately seven or eight blocks
before he stopped his vehicle after Steele activated his lights and
siren. Thus, appellant’s behavior may be reasonably understood as
an attempt to evade law enforcement. See Scott, 8th Dist. Cuyahoga ROSS, 22CA38 & 22CA39 24
No. 97676, 2012-Ohio-3811 (although chase “may not have been long”
and defendant “not traveling at a high rate of speed,” evidence
established defendant did not stop or pull over to the right after
the police activated their siren and lights). Here, the evidence
adduced at trial showed that appellant drove another block and a
half after Officer Steele activated his overhead lights, and
another quarter of a mile after Officer Steele activated his
audible siren. Thus, in view of the foregoing, we conclude that
appellant’s conviction for failure to comply is not against the
manifest weight of the evidence.
{¶50} Accordingly, based upon the foregoing reasons, we
overrule appellant’s fourth assignment of error.
V.
{¶51} In his final assignment of error, appellant asserts that
insufficient evidence supports his conviction for driving without
an operator’s license.
{¶52} R.C. 4510.12 sets forth the offense of operating a motor
vehicle without a valid license. R.C. 4510.12(C)(1) and (2)
provide that if the trier of fact finds that the offender “never
has held a valid driver’s license * * * issued by this state or any
other jurisdiction * * * the offense is an unclassified
misdemeanor.” R.C. 4510.12(C)(1). In contrast, if the offender’s
license has expired, the offense is a minor misdemeanor. R.C. ROSS, 22CA38 & 22CA39 25
4510.12(C)(2).
{¶53} In the case sub judice, the trial court found appellant
guilty of driving without an operator’s license, after a bench
trial conducted simultaneously with his other charges, and
sentenced him to pay court costs. However, appellant contends that
the trial court failed to make a finding that appellant has never
held a driver’s license as required by R.C. 4510.12(C)(1) to
qualify the offense as an unclassified misdemeanor. Appellant
argues that although Officer Steele testified that appellant did
not have a valid license at the time of the offense, he did not
specify whether appellant ever had a license, or that he had one,
but his license expired or had been suspended. However, because
appellant did not object at trial, we must conduct a plain error
review of this issue.
{¶54} R.C. 4510.12(B) allows non-certified copies of LEADS
records or BMV records to be submitted as prima facie evidence of
the fact that an individual did not have a valid driver’s license
at the time of an alleged R.C. 4510.12(A)(1) violation. Further,
R.C. 4510.12(B) provides that “[t]he person charged with a
violation of division (A)(1) or (2) of this section may offer
evidence to rebut this prima-facie evidence.” We find no LEADS or
BMV records in the record or evidence that appellant rebutted the
charge. The traffic ticket is marked “No OL” and cites R.C. ROSS, 22CA38 & 22CA39 26
4510.12, but does not specify (C)(1) or (C)(2). Officer Steele
testified at trial that he checked appellant’s record “and it
showed that he did not have a valid license through the State of
Ohio nor any other state for that matter.” While the testimony
could arguably be viewed that appellant “never” had a license, the
testimony sufficiently established that appellant did not have a
valid license as per R.C. 4510.12(C)(1) to support an unclassified
misdemeanor. We also recognize that appellant offered no evidence
to the contrary. See e.g., State v. Deacey, 2d Dist. Montgomery
No. 27308, 2017-Ohio-8102. Here appellant did not appear to
dispute at trial that he had no valid license on June 15, 2021.
See State v. Thomas, 7th Dist. Mahoning No. 08 MA 89, 2009-Ohio-
2652, ¶, State v. Johnson, 6th Dist. Lucas No. L-18-1214, 2019-
Ohio-4613 (upheld R.C. 4510.12 conviction even though traffic
ticket did not include degree of misdemeanor or indicate whether
defendant had prior offenses). Consequently, after our review we
believe that the state adduced sufficient evidence to support
appellant’s conviction for violating R.C. 4510.12. Therefore, we
overrule appellant’s final assignment of error.
{¶55} Accordingly, for all of the foregoing reasons, we affirm
the trial court’s judgment.
JUDGMENT AFFIRMED.
JUDGMENT ENTRY ROSS, 22CA38 & 22CA39 27
It is ordered that the judgment be affirmed. Appellant shall pay the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Chillicothe Municipal Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted by the trial court or this court, it is temporarily continued for a period not to exceed 60 days upon the bail previously posted. The purpose of a continued stay is to allow appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of the proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 60-day period, or the failure of the appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of 60 days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Hess, J. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
BY:_____________________________ Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.