State v. Potter

2020 Ohio 733

Opinion

[Cite as State v. Potter, 2020-Ohio-733.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

ASHTABULA COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, : CASE NO. 2019-A-0051 - vs - :

KAYLA M. POTTER, :

Defendant-Appellant. :

Criminal Appeal from the Ashtabula Municipal Court, Case No. 2018 TRD 02872.

Judgment: Affirmed.

Michael Franklin, Ashtabula City Solicitor, and Lori B. Lamer, Assistant Solicitor, Ashtabula Municipal Court, 110 West 44th Street, Ashtabula, Ohio 44004 (For Plaintiff- Appellee).

Kayla Potter, pro se, 5129 North Ridge Road, Ashtabula, Ohio 44004 (Defendant- Appellant).

THOMAS R. WRIGHT, J.

{¶1} Appellant, Kayla M. Potter, appeals her conviction for wrongful entrustment

of a motor vehicle. She contests the validity of the traffic citation, the propriety of an

evidentiary ruling, and the sufficiency of the evidence. We affirm.

{¶2} Appellant lived in the City of Ashtabula for at least seven years before the

incident. She sometimes stayed at her parents’ home, but primarily lived with her

boyfriend, Orlando Lewis Bradley, at a separate residence. {¶3} During this time, Bradley did not have a driver’s license. Nonetheless, he

often drove vehicles appellant owned. On numerous occasions, he was cited by the City

of Ashtabula Police Department for driving while under suspension.

{¶4} On September 4, 2018, appellant spent the evening at Bradley’s home.

Having to work the next day, she went to bed at approximately 10:00 p.m. and did not

awake until 4:00 a.m. That night, Bradley removed appellant’s keys from her jacket and

drove her vehicle.

{¶5} Shortly before 4:00 a.m. on September 5, Patrolman Cody Caruso observed

Bradley speeding on Lake Avenue within the city limits. Before Caruso could turn around

and catch up, Bradley pulled into his driveway. As Bradley was exiting the vehicle, Caruso

arrived and initiated a traffic stop. Bradley told Caruso that he did not have a driver’s

license. Caruso confirmed this by viewing a LEADS report on the computer in his cruiser.

{¶6} While Patrolman Caruso was citing Bradley, a second patrolman, Logan

Nickles, arrived to assist. At some point, appellant came outside and spoke with

Patrolman Nickles and said Bradley could not be cited for driving under suspension

because he has never had a driver’s license.

{¶7} Upon hearing of the traffic stop over the radio, Lieutenant Rodney Blaney

responded to the scene. Lieutenant Blaney recognized Bradley’s name because he had

stopped him multiple times in the past and cited him for driving under suspension. During

one of these traffic stops, Lieutenant Blaney warned Bradley that if he was again stopped

while driving appellant’s vehicle, she could be charged with wrongful entrustment of a

motor vehicle. Lieutenant Blaney had also warned appellant that she would be cited if

she continued to allowed Bradley to drive her vehicles.

2 {¶8} At Lieutenant Blaney’s instruction, Patrolman Caruso cited appellant for

wrongful entrustment. The citation charges wrongful entrustment in violation of Ashtabula

City Codified Ordinance 335.05 but does not state a subsection.

{¶9} Appellant moved for discovery and a bill of particulars requesting a

description of the conduct supporting the charge. Discovery was provided, but the state

did not submit a bill of particulars.

{¶10} The case was scheduled for a change-of-plea on March 4, 2019. The

parties informed the court that no agreement had been reached and to schedule the

matter for trial. In a judgment entry signed by appellant and counsel the magistrate states

that appellant was charged with wrongful entrustment in violation of subsection (a)(1) of

Ordinance 335.05.

{¶11} The matter was tried to the bench on May 16, 2019. The officers present

at the traffic stop testified on behalf of the state, and Bradley’s LEADS report was admitted

over objection.

{¶12} Appellant testified that she did not give Bradley her keys on the night of the

incident and did not know that he drove her vehicle until after the traffic stop. During

cross-examination, she admitted that she knew Bradley did not have valid driver’s license

and previously had been told that she should not permit him to drive her vehicle.

{¶13} The trial court found appellant guilty of wrongful entrustment, fined her

$250, ordered her to perform 24 hours of community service, and to pay court costs.

{¶14} Appellant appeals, raising three assignments of error:

{¶15} “[1.] The trial court erred in allowing the prosecution, mid-trial, to obtain,

disclose to the defendant, and submit into the record inadmissible LEADS information of

3 a person other than the defendant.

{¶16} “[2.] The trial court erred in failing to grant the defendant’s Criminal Rule 29

motion based upon the insufficiency of the evidence presented.

{¶17} “[3.] The trial court erred as a matter of law by constructively amending the

original traffic complaint from one that failed to charge an offense to one charging wrongful

entrustment under Ashtabula Traffic Code 335.05(a)(1).”

{¶18} Under her first assignment, appellant asserts the LEADS report was

inadmissible.

{¶19} Appellant objected to admission on the grounds that it was not certified or

provided in discovery. On appeal appellant argues inadmissibility based on hearsay and

a statutory prohibition. Neither was raised at trial.

{¶20} A party is not permitted to assert new legal theories on appeal for the first

time. Mulqueeny v. Mentor Chiropractic Center, 11th Dist. Lake No. 2001-L-034, 2002

WL 549969, *2 (Apr. 12, 2002). “Generally, the failure to raise an issue or argument at

the trial court level that is apparent at the time of trial constitutes a waiver of such issue.”

State v. Sawyer, 11th Dist. Portage No. 2011-P-0003, 2012-Ohio-5119, ¶ 6.

{¶21} Alternatively, the LEADS report established that Bradley lacked a driver’s

license for many years. Appellant admitted on cross-examination that she knew Bradley

lacked a valid license. Admission was therefore harmless. Appellant’s first assignment

lacks merit.

{¶22} Under her next assignment, appellant argues her conviction is not

supported with sufficient evidence because the state failed to present evidence that she

gave Bradley express permission to drive her vehicle on the night of the incident.

4 {¶23} “An appellate court reviewing the sufficiency of the evidence in a criminal

matter examines the evidence admitted at trial and determines whether, after viewing the

evidence in a light most favorable to the state, any rational trier of fact could have found

the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks,

61 Ohio St.3d 259, 273, 574 N.E.2d 492 (1991). ‘On review for sufficiency, courts are to

assess not 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). Whether the evidence is

legally sufficient to sustain a verdict is a question of law that we review de novo. Id. at

386, 678 N.E.2d 541.” State v. Macko, 11th Dist. Lake No. 2016-L-022, 2017-Ohio-253,

¶ 28.

{¶24} Ashtabula City Codified Ordinance 335.05(a)(1) provides:

{¶25} “(a) No person shall permit a motor vehicle owned by the person or under

the person’s control to be driven by another if any of the following apply:

{¶26} “(1) The offender knows or has reasonable cause to believe that the other

person does not have a valid driver’s or commercial driver’s license or permit or valid

nonresident driving privileges.”

{¶27} In State v. Finfrock, 196 Ohio App.3d 249, 2011-Ohio-3862, 963 N.E.2d 177

(2d Dist.), the defendant’s adult son continued to drive his mother’s car while his license

was suspended following an accident. After he was again involved in a high-speed chase

with local police officers while driving his mother’s car, she was cited for wrongful

entrustment under R.C. 4511.203(A)(1) & (2). This statute is identical to Ashtabula City

Codified Ordinance 335.05(a)(1).

5 {¶28} In appealing her conviction for wrongful entrustment, she argued that the

state failed to present any evidence that she permitted her son to drive her car. In

affirming the conviction, Finfrock referenced Black’s Law Dictionary’s definition of “permit”

as including both an affirmative act or omission; i.e., the act of permitting another do

something can occur through acquiescence. Id. at ¶ 22, quoting Black’s Law Dictionary

(5 Ed.Rev.1979) 1026. The court then stated:

{¶29} “We disagree that Finfrock must have committed an overt, affirmative act of

consent. The definition of ‘permit’ and the case law relied upon by Finfrock stress that a

defendant can be culpable through omission, or by failing to prevent the doing of an act.

In the case before us, Finfrock was well aware that [her son] had improperly driven her

car on a number of occasions. Finfrock had also been warned by the police not to allow

this to happen. Yet despite this knowledge and awareness of the danger that [her son’s]

driving could pose, Finfrock left her keys on the table where [her son] could easily retrieve

them and drive the car. Her excuse was that she was tired and had other things on her

mind.

{¶30} “This conduct fits within the concept, noted by the trial court, that Finfrock

should have been aware of her actions and the consequences of those actions. * * * The

trial court noted that Finfrock had acted irresponsibly by allowing a dangerous situation

to be created when she left her keys in a place where they could easily have been used.

* * *.

{¶31} “* * *

{¶32} “Essentially, the trial court inferred from Finfrock’s repeated failures to

prevent her son from driving her car that she had given her implicit permission to drive it.

6 We conclude that this was a reasonable inference for the trial court, as the finder of fact,

to draw from the evidence in this record. Accordingly, the judgment of conviction is based

on legally sufficient evidence.” (Citation omitted). Id. at ¶ 27-30.

{¶33} Finfrock is both persuasive and applicable. Here, there is no dispute that

Bradley drove appellant’s vehicle on many occasions during a multi-year period.

Similarly, Lieutenant Blaney had previously warned appellant that she could face charges

if she continued to allow Bradley to drive her vehicle. In addition, appellant testified that

on the evening of the incident, she left her keys in her coat pocket, thereby giving Bradley

easy access to them while she was asleep.

{¶34} As a separate argument, appellant asserts that her conviction must be

reversed because the state did not prove that she and Bradley lived in the same

household. Although cohabitation is not an element of wrongful entrustment under

Ashtabula City Codified Ordinance 335.05(a)(1), appellant notes that under subsection

(b)(1), if the accused and the driver of the vehicle reside in the same household, this is

prima facie evidence that the accused knows the driver does not have a valid driver’s

license. Appellant appears to argue that her conviction relies on subsection (b)(1).

{¶35} However, Patrolman Nickles testified that appellant stated in front of him

that “she knew that Bradley had never had a driver’s license.” This demonstrates that

appellant knew Bradley lacked a valid driver’s license and her conviction is not reliant

upon City Ordinance 335.05(b)(1).

{¶36} Last, appellant maintains that the state’s evidence was insufficient because

the three police officers gave confusing testimony as to the nature of Bradley’s prior traffic

convictions. She claims that it is inconsistent for Bradley to have nine “driving while under

7 a suspension” convictions on his record when he has not had a valid driver’s license the

entire time. Regardless of the nature of Bradley’s prior convictions, the state presented

undisputed evidence that he did not have a valid license for a sustained period and

notwithstanding her knowledge, appellant continued to allow him to drive her vehicle.

{¶37} Because appellant’s conviction is supported by sufficient evidence, the trial

court did not err in overruling her motion for acquittal, and her second assignment lacks

merit.

{¶38} Under her last assignment, appellant contends that the traffic citation fails

to charge her with an offense because it does not state which subsection of Ordinance

335.05 she violated. She further contends that when the trial court subsequently found

her guilty under 335.05(a)(1), the court improperly amended the citation without giving

her adequate notice.

{¶39} “A traffic ticket that complies with Traf.R. 3 standards will serve as the

complaint and summons for a traffic violation. In Cleveland v. Austin (1978), 55 Ohio

App.2d 215, 220, 380 N.E.2d 1357, the court stated that ‘(* * *) the ticket need not contain

every element of the offense in its description. It will satisfy legal requirements if it

apprises the defendant of the nature of the charge (t)ogether with a citation of the statute

or ordinance involved.’

{¶40} “The traffic ticket in Austin was sufficient even though it charged the

defendant with fleeing a police officer, in violation of R.C. 4511.02, without stating the

element of willfulness. Moreover, an instrument charging a minor offense will not be

judged as strictly as one charging a major offense, and the focus of inquiry is whether the

defendant had notice of the nature and cause of the accusation. Youngstown v. Starks

8 (1982), 4 Ohio App.3d 269, 271, 448 N.E.2d 480, citing Strongsville v. McPhee (1944),

142 Ohio St. 534, 538, 53 N.E.2d 522.” City of Niles v. Yeager, 11th Dist. Trumbull No.

2004-T-0004, 2004-Ohio-6698, ¶ 16-17.

{¶41} In Yeager, the traffic citation stated that the accused had violated Niles City

Codified Ordinance 331.08 but did not state the subsection. Despite this, we found the

citation adequate since it gave Yeager notice of the nature and cause of the accusation

and did not mislead him in preparing his defense. Id. at ¶ 18.

{¶42} Here, the citation states both the name of the charged offense, wrongful

entrustment, and the city ordinance, 335.05, violated. The citation is valid and adequately

informed appellant of the nature of the charges.

{¶43} Moreover, on March 4, 2019, more than two months before trial, a final pre-

trial hearing was held before a court magistrate. Afterward, the magistrate issued a

judgment entry that was signed by appellant and counsel stating that appellant is charged

with wrongful entrustment under Codified Ordinance 335.05(a)(1).

{¶44} Seventy days is clearly ample time for appellant to prepare her defense to

the charged offense. Furthermore, as noted, subsection (a)(1) prohibits permitting

another to use a motor vehicle when that person knows the other individual does not

possess a valid driver’s license. Given that the state presented undisputed evidence that

appellant knew Bradley did not have a valid license, her conviction is for the offense of

which she was given notice on March 4, 2019. Appellant’s third assignment also lacks

{¶45} The judgment of the Ashtabula Municipal Court is affirmed.

9 TIMOTHY P. CANNON, P.J.,

CYNTHIA WESTCOTT RICE, J.,

concur.