[Cite as State v. Capps, 2018-Ohio-1132.]
COURT OF APPEALS COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : Hon. Earle E. Wise, Jr., J. -vs- : : CODY D. CAPPS : Case No. 2017CA0010 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from Coshocton County Municipal Court, Case No. TRC 1700462 A & B
JUDGMENT: Affirmed
DATE OF JUDGMENT: March 26, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RICHARD J. SKELTON ROBERT E. WEIR Assistant Law Director 239 N. 4th Street 760 Chestnut Street Coshocton, OH 43812 Coshocton, OH 43812 Coshocton County, Case No. 2017CA0010 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant Cody D. Capps appeals the judgement of conviction
entered by the Coshocton Municipal Court, Coshocton County Ohio, finding appellant
guilty of operating a vehicle under the influence and a violation of lanes of travel. Plaintiff-
Appellee is the State of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On February 23, 2017, at approximately 2:00 a.m., the Coshocton County
Sherriff's Department received a report of a reckless driver in a blue Honda on Route 16.
Deputy Brandon Elson was dispatched to the area and located the vehicle. He followed
the driver for two miles and observed several lane violations. The last observed violation
involved both passenger side tires crossing completely over the fog line. Elson thus
initiated a traffic stop.
{¶ 3} Upon approaching the vehicle, Elson made contact with appellant and
noticed he was fidgety, nervous and confused. Elson further noted appellant was trying
to hide something in the center console. Appellant stated he was going home from work
and had not been drinking.
{¶ 4} Based on these observations Elson administered field sobriety tests. On the
horizontal gaze nystagmus, appellant exhibited six of six clues. On the vertical nystagmus
appellant exhibited no clues. Elson also had appellant preform a one-legged stand and
walk and turn. Appellant exhibited three or four clues on the former and five for the latter.
Elson placed appellant under arrest for driving under the influence of alcohol or drugs in
violation of R.C. 4511.19(A)(1)(a). Appellant was further cited for failure to drive in marked
lanes in violation of R.C. 4511.33(A)(1). Coshocton County, Case No. 2017CA0010 3
{¶ 5} Elson obtained appellant's permission to search the car. He found a rolled
up dollar bill with white powder on it, a prescription bottle containing a few tablets of
Suboxone, which is a brand name for Buprenorphine, an opioid medication. Two half
tablets of Suboxone were found on the floorboard along with numerous empty blister
packs of Coricidin, an over-the-counter cold remedy.
{¶ 6} Appellant told Elson he was prescribed Suboxone for opioid addiction and
was to take one and a half pills daily. Appellant's prescription for 45 tablets had been filled
the week before, yet he only had two tablets remaining. Appellant further told Elson he
would crush the tablets and put them under his tongue or snort them.
{¶ 7} Appellant later submitted to a urine screen which was positive for
Buprenorphine.
{¶ 8} On June 28, 2017, appellant elected to proceed to a trial to the court. After
hearing the evidence, the trial court found appellant guilty of OVI and failure to travel in
marked lanes. Appellant’s sentence included a period of probation, a fine and a one year
operator’s license suspension. His sentence was stayed pending this appeal.
{¶ 9} The matter is now before this court for consideration. Appellant raises three
assignments of error:
I
{¶ 10} "THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S CRIM. R.
29 MOTION FOR JUDGMENT OF ACQUITTAL FOLLOWING APPELLEE'S CASE-IN-
CHIEF." Coshocton County, Case No. 2017CA0010 4
II
{¶ 11} "THE DECISION OF THE TRIAL COURT, FINDING APPELLANT GUILTY,
WAS AGAINST THE SUFFICIENCY OF THE EVIDENCE."
III
{¶ 12} "THE DECISION OF THE TRIAL COURT, FINDING APPELLANT GUILTY,
WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."
I, II, III
{¶ 13} We address appellant's assignments of error together.
{¶ 14} Appellant argues the trial court erred when it denied his Crim.R. 29 motion
for acquittal at the close of the state's evidence. He further argues his conviction for OVI
is against the manifest weight and sufficiency of the evidence. We disagree.
{¶ 15} Crim.R. 29 governs motion for acquittal. Subsection (A) states the
following:
The court on motion of a defendant or on its own motion, after the
evidence on either side is closed, shall order the entry of a judgment
of acquittal of one or more offenses charged in the indictment,
information, or complaint, if the evidence is insufficient to sustain a
conviction of such offense or offenses. The court may not reserve
ruling on a motion for judgment of acquittal made at the close of the
state's case. Coshocton County, Case No. 2017CA0010 5
{¶ 16} The standard to be employed by a trial court in determining a Crim.R. 29
motion is set out in State v. Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184 (1978),
syllabus: "Pursuant to Crim.R. 29(A), a court shall not order an entry of judgment of
acquittal if the evidence is such that reasonable minds can reach different conclusions as
to whether each material element of a crime has been proved beyond a reasonable
doubt."
{¶ 17} On review for sufficiency, a reviewing court is to examine the evidence at
trial to determine whether such evidence, if believed, would support a conviction. State
v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). "The relevant inquiry is 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." Jenks at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S.
307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). On review for manifest weight, a reviewing
court is to examine the entire record, weigh the evidence and all reasonable inferences,
consider the credibility of witnesses and determine "whether in resolving conflicts in the
evidence, 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. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). See also, State v. Thompkins, 78 Ohio
St.3d 380, 678 N.E.2d 541 (1997). The granting of a new trial "should be exercised only
in the exceptional case in which the evidence weighs heavily against the conviction."
Martin at 175.
{¶ 18} Appellant was charged with a violation of R.C. 4511.19(A)(1)(a) which
provides no one shall operate a vehicle under the influence of alcohol, a drug of abuse or Coshocton County, Case No. 2017CA0010 6
a combination of the two. He was further charged with a violation of R.C. 4511.33(A)(1)
which provides when a roadway has been divided into two or more marked lanes for
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as State v. Capps, 2018-Ohio-1132.]
COURT OF APPEALS COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. William B. Hoffman, J. : Hon. Earle E. Wise, Jr., J. -vs- : : CODY D. CAPPS : Case No. 2017CA0010 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from Coshocton County Municipal Court, Case No. TRC 1700462 A & B
JUDGMENT: Affirmed
DATE OF JUDGMENT: March 26, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RICHARD J. SKELTON ROBERT E. WEIR Assistant Law Director 239 N. 4th Street 760 Chestnut Street Coshocton, OH 43812 Coshocton, OH 43812 Coshocton County, Case No. 2017CA0010 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant Cody D. Capps appeals the judgement of conviction
entered by the Coshocton Municipal Court, Coshocton County Ohio, finding appellant
guilty of operating a vehicle under the influence and a violation of lanes of travel. Plaintiff-
Appellee is the State of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On February 23, 2017, at approximately 2:00 a.m., the Coshocton County
Sherriff's Department received a report of a reckless driver in a blue Honda on Route 16.
Deputy Brandon Elson was dispatched to the area and located the vehicle. He followed
the driver for two miles and observed several lane violations. The last observed violation
involved both passenger side tires crossing completely over the fog line. Elson thus
initiated a traffic stop.
{¶ 3} Upon approaching the vehicle, Elson made contact with appellant and
noticed he was fidgety, nervous and confused. Elson further noted appellant was trying
to hide something in the center console. Appellant stated he was going home from work
and had not been drinking.
{¶ 4} Based on these observations Elson administered field sobriety tests. On the
horizontal gaze nystagmus, appellant exhibited six of six clues. On the vertical nystagmus
appellant exhibited no clues. Elson also had appellant preform a one-legged stand and
walk and turn. Appellant exhibited three or four clues on the former and five for the latter.
Elson placed appellant under arrest for driving under the influence of alcohol or drugs in
violation of R.C. 4511.19(A)(1)(a). Appellant was further cited for failure to drive in marked
lanes in violation of R.C. 4511.33(A)(1). Coshocton County, Case No. 2017CA0010 3
{¶ 5} Elson obtained appellant's permission to search the car. He found a rolled
up dollar bill with white powder on it, a prescription bottle containing a few tablets of
Suboxone, which is a brand name for Buprenorphine, an opioid medication. Two half
tablets of Suboxone were found on the floorboard along with numerous empty blister
packs of Coricidin, an over-the-counter cold remedy.
{¶ 6} Appellant told Elson he was prescribed Suboxone for opioid addiction and
was to take one and a half pills daily. Appellant's prescription for 45 tablets had been filled
the week before, yet he only had two tablets remaining. Appellant further told Elson he
would crush the tablets and put them under his tongue or snort them.
{¶ 7} Appellant later submitted to a urine screen which was positive for
Buprenorphine.
{¶ 8} On June 28, 2017, appellant elected to proceed to a trial to the court. After
hearing the evidence, the trial court found appellant guilty of OVI and failure to travel in
marked lanes. Appellant’s sentence included a period of probation, a fine and a one year
operator’s license suspension. His sentence was stayed pending this appeal.
{¶ 9} The matter is now before this court for consideration. Appellant raises three
assignments of error:
I
{¶ 10} "THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S CRIM. R.
29 MOTION FOR JUDGMENT OF ACQUITTAL FOLLOWING APPELLEE'S CASE-IN-
CHIEF." Coshocton County, Case No. 2017CA0010 4
II
{¶ 11} "THE DECISION OF THE TRIAL COURT, FINDING APPELLANT GUILTY,
WAS AGAINST THE SUFFICIENCY OF THE EVIDENCE."
III
{¶ 12} "THE DECISION OF THE TRIAL COURT, FINDING APPELLANT GUILTY,
WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."
I, II, III
{¶ 13} We address appellant's assignments of error together.
{¶ 14} Appellant argues the trial court erred when it denied his Crim.R. 29 motion
for acquittal at the close of the state's evidence. He further argues his conviction for OVI
is against the manifest weight and sufficiency of the evidence. We disagree.
{¶ 15} Crim.R. 29 governs motion for acquittal. Subsection (A) states the
following:
The court on motion of a defendant or on its own motion, after the
evidence on either side is closed, shall order the entry of a judgment
of acquittal of one or more offenses charged in the indictment,
information, or complaint, if the evidence is insufficient to sustain a
conviction of such offense or offenses. The court may not reserve
ruling on a motion for judgment of acquittal made at the close of the
state's case. Coshocton County, Case No. 2017CA0010 5
{¶ 16} The standard to be employed by a trial court in determining a Crim.R. 29
motion is set out in State v. Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184 (1978),
syllabus: "Pursuant to Crim.R. 29(A), a court shall not order an entry of judgment of
acquittal if the evidence is such that reasonable minds can reach different conclusions as
to whether each material element of a crime has been proved beyond a reasonable
doubt."
{¶ 17} On review for sufficiency, a reviewing court is to examine the evidence at
trial to determine whether such evidence, if believed, would support a conviction. State
v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). "The relevant inquiry is 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." Jenks at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S.
307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). On review for manifest weight, a reviewing
court is to examine the entire record, weigh the evidence and all reasonable inferences,
consider the credibility of witnesses and determine "whether in resolving conflicts in the
evidence, 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. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). See also, State v. Thompkins, 78 Ohio
St.3d 380, 678 N.E.2d 541 (1997). The granting of a new trial "should be exercised only
in the exceptional case in which the evidence weighs heavily against the conviction."
Martin at 175.
{¶ 18} Appellant was charged with a violation of R.C. 4511.19(A)(1)(a) which
provides no one shall operate a vehicle under the influence of alcohol, a drug of abuse or Coshocton County, Case No. 2017CA0010 6
a combination of the two. He was further charged with a violation of R.C. 4511.33(A)(1)
which provides when a roadway has been divided into two or more marked lanes for
traffic, a vehicle shall be driven entirely within a single lane and shall not be moved from
such lane until the drive has determined movement can be made safely.
{¶ 19} Appellant makes two conclusory statements that his convictions were
against the manifest weight and sufficiency of the evidence. These statements are not
followed by any argument, nor any authority or citations to the record supporting the
argument.
{¶ 20} App.R. 16(A)(7) requires “[a]n argument containing the contentions of the
appellant with respect to each assignment of error presented for review and the reasons
in support of the contentions, with citations to the authorities, statutes, and parts of the
record on which appellant relies. “It is the duty of the appellant, not this court, to
demonstrate [ ] assigned error through an argument that is supported by citations to legal
authority and facts in the record.” State v. Wholley, 5th Dist. Ashland App. No. 16-COA-
003, 2017-Ohio-576 ¶ 20 citing State v. Harrington, 5th Dist. Licking App. No. 15-CA-10,
2015-Ohio-4440. “It is not the function of this court to construct a foundation for [an
appellant's] claims; failure to comply with the rules governing practice in the appellate
courts is a tactic which is ordinarily fatal.” Id., citing Kremer v. Cox, 114 Ohio App.3d 41,
60, 682 N.E.2d 1006 (9th Dist.1996). Coshocton County, Case No. 2017CA0010 7
{¶ 21} Appellant's arguments do not cite to the record and does not describe why
his convictions are against the manifest weight and sufficiency of the evidence. We
therefore overrule the three assignments of error.
By Wise, Earle, J.
Gwin, P.J. and
Hoffman, J. concur.
EEW/rw 314