Cleveland v. GlarosCleveland v. Glaros
JUDGMENT: REVERSED AND REMANDED
RELEASED AND JOURNALIZED: August 2, 2018
Timothy Young
State of Ohio Public Defender
BY: Christina Madriguera
Assistant Public Defender
250 East Broad Street, Suite 1400
Columbus, Ohio 43215
ATTORNEYS FOR APPELLEE
Barbara Langhenry
City of Cleveland Director of Law
BY: Bryan Fritz
Assistant City Prosecutor
1200 Ontario Street, 8th Floor
Cleveland, Ohio 44113
MARY EILEEN KILBANE, P.J.:
{¶1} Defendant-appellant, Karen Glaros (Glaros), appeals from her conviction for a violation of Cleveland Codified Ordinance (C.C.O) 435.05(a)(1), allowing a nonlicensed driver to drive (wrongful entrustment of a motor vehicle). For the reasons set forth below, we reverse and remand.
{¶3} The following was adduced at trial through the testimony of Cleveland Police Officer Charles Holcomb (Officer Holcomb). In September 2017, Officer Holcomb and his colleagues conducted a driver’s license check point. As part of the check point, Officer Holcomb randomly stopped a gray Honda. After talking with the driver of the vehicle, Kent Bowden (Bowden), Officer Holcomb determined that Bowden had a suspended license, and cited him for driving under suspension.
{¶4} Eventually, Glaros, the owner of the vehicle, arrived at the check point. Officer Holcomb cited Glaros, in his words, for allowing another person to drive the vehicle who had no legal right to do so. Officer Holcomb testified that Glaros told him she had to gеt back to work, and was in a hurry to leave. He acknowledged that he did not have much conversation with Glaros other than advising her that [Bowden’s license] was suspended, he shouldn’t be driving hеr car. Officer Holcomb asked Glaros for her driver’s license in order to determine whether she was the owner of the vehicle. After Officer Holcomb returned Glaros’s license, Glаros got into a cab and left the area.
{¶5} Officer Holcomb testified that he was not a hundred percent sure what the relationship is between [Bowden and Glaros]. * * * I just know the car bеlonged to [Glaros,] and [Bowden] * * * was driving it.
{¶6} At the conclusion of the City’s evidence, the defense moved for acquittal under Crim.R. 29, arguing that [t]he City has failed to prove any evidence that [Glaros] knew the car
{¶7} The trial court denied defense counsel’s Crim.R. 29 motion, and found Glaros guilty of the single count of wrongful entrustment. The trial court ordered Glaros to pay a $1,000 fine as well as court costs and sentenced her to 180 days in jail, suspending $900 of the fine and the entire jail sentence. The trial court further ordered Glaros’s sentence to be held in abeyance pending appeal.
{¶8} It is from this order that Glaros appeals, raising the following two аssignments of error for our review:
Assignment of Error One
[Glaros’s] conviction for a violation of [C.C.O.] 435.05(a)(1), allowing a non-licensed driver to drive, is not supported by sufficient evidence.
Assignment of Error Two
There is insufficient evidence to support an increase from an unclassified misdemeanor to a first degree misdemeanor violation of [C.C.O.] 435.05(a)(1).
Wrongful Entrustment
{¶9} In the first assignment of error, Glaros argues the City failed to prеsent sufficient evidence to support her wrongful entrustment conviction.
{¶10} Sufficiency of the evidence is a test of adequacy — whether the evidence is legally sufficient to sustain а conviction. State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. The Double Jeopardy Clause bars retrial of a defendant for an offense reversed upon a finding that the evidence was legally insufficient to support the сonviction. Id., citing Tibbs v. Florida, 457 U.S. 31, 47, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).
{¶12} Here, the trial court found Glaros guilty of violating
No person shall permit a motor vehicle owned by the person or under the person’s control to be driven by аnother if * * * :
(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.
{¶13} Thus, in order to prove a violation of
{¶14} Glaros argues that the City did not meet its burden to prove beyond a reasonable doubt thаt she permitted Bowden to drive her vehicle, or that she knew or had reasonable cause to believe that Bowden’s license had been suspended. We agree.
{¶15} This court hаs defined permit as “‘1. [t]o consent to formally * * * 2. [t]o give opportunity for * * * 3. [t]o allow or admit of * * *.’” Bedford v. Davis, 8th Dist. Cuyahoga No. 89049, 2007-Ohio-5949, ¶ 32, quoting Black’s Law Dictionary 1176 (8th Ed.2004). At both her
{¶16} Likewise, the record does not demonstrate that Glaros was aware that Bowden’s license had been suspended until Officer Holcomb so advised her. This court has explained that for wrongful entrustment under
{¶17} In Elkins, this court found insufficient evidence to support the defendant — Elkins’s wrongful entrustment conviction under
{¶18} On appeal, we determined that although it was undisputed that Butler had Elkins’s permission to drive the vehicle, the City failed to introduce any evidence that Elkins had actual or constructive knowledge that Butler had no legal right to drive a vehiсle. Id. at 31.
{¶19} Here, the City did not establish that Glaros had actual or constructive knowledge that Bowden did not have a valid driver’s license. The City did not present evidence demonstrating the existence of any circumstances from which Glaros’s knowledge that Bowden was not licensed could be inferred. As discussed above, the City called one witness — Officer Holcomb. Officer Holcomb testified that he was not a hundred percent sure what the relationship is between [Bowden and Glaros]. * * * I just know the car belonged to [Glaros,] and [Bowden] * * * was driving it. This testimony establishes оnly that Glaros owned the vehicle — it is not evidence that she permitted Bowden to drive her car, or that she knew or had reasonable cause to believe that he did not havе a valid driver’s license. We note that the total trial transcript is eight pages long. At trial, the City never addressed whether Bowden had permission to drive Glaros’s car, or whether Glaros hаd knowledge that Bowden did not have a valid driver’s license. In Elkins, we explained that mere ownership of the vehicle does not constitute a violation of the statute. Id. at 31.
{¶20} In viewing the evidеnce in a light most favorable to the City, we find that no rational trier of fact could have found all of the essential elements of
{¶22} We note that the City concedes Glaros’s second assignment of error in part. However, in light of our resolution of the first assignment оf error, Glaros’s second assignment of error is moot. See
{¶23} Judgment is reversed, and we remand this matter to the trial court to vacate Glaros’s conviction.
It is ordered that appellant recover of appellee costs herein taxed.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, PRESIDING JUDGE
MELODY J. STEWART, J., and
LARRY A. JONES, SR., J., CONCUR
Notes
(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:
(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.