Columbus v. FreemanColumbus v. Freeman
Yeura R. Venters, Franklin County Public Defender, and John W. Keeling, Staff Attorney, for appellant.
APPEAL from the Franklin County Municipal Court.
O P I N I O N
Rendered on March 10, 2009
MCGRATH, Judge.
{¶1} Defendant-appellant, Nicholas E. Freeman, appeals from the judgment of the Franklin County Municipal Court, which, after a jury trial, convicted him of operating a motor vehicle while under suspension, a first-degree misdemeanor in violation of Columbus City Codes (C.C.) 2141.16(A), and reckless operation, a fourth-degree misdemeanor in violation of
{¶3} Columbus Police Officer Cynthia Shaw was off duty that night and traveling several hundred yards behind Vanderpool‘s car. Officer Shaw saw the vehicle veer off the roadway and stopped to see whether anyone needed assistance. When Officer Shaw arrived at the car, appellant was out of the car, and Vanderpool was sitting with her legs out of the car.
{¶4} Columbus Police Officer Robert Altherr responded to the scene. After talking with Vanderpool, Officer Altherr cited appellant for a number of traffic violations under the Columbus City Codes. Two of these charges were submitted to a jury, and, as noted above, the jury found appellant guilty of operating a motor vehicle while under suspension and reckless operation.
{¶5} Appellant was sentenced to 180 days on the driving-under-suspension charge and 30 days on the reckless-operation charge. The trial court also imposed a $100 fine, plus court costs, and suspended appellant‘s driving privileges for one year.
The trial court, over objection, improperly instructed the jury that it could find that the defendant operated the vehicle, even if he was a passenger and not the driver, if they found that the defendant grabbed the steering wheel. This in effect, constituted a directed verdict on the element of operation and relieved the jury from making a factual finding on this issue. It also was an improper comment by the court upon the facts.
{¶7} Under this assigned error, appellant first asserts that his alleged conduct did not constitute “operation” of a vehicle as defined by law. Appellant was convicted of driving under financial-responsibility-law suspension or cancellation, in violation of
(A) No person, whose driver‘s or commercial driver‘s license * * * has been suspended or canceled pursuant to
Chapter 4509 of the Ohio Revised Code , shall operate any motor vehicle within the city, during the period of the suspension or cancellation, except as specifically authorized byChapter 4509 of the Ohio Revised Code .
{¶8} Appellant was also convicted of reckless operation of a vehicle in violation of
(b) No person shall operate a vehicle on any street, highway, or on any public or private property other than streets or highways, in willful or wanton disregard of the safety of persons or property.
{¶9} As defined in
{¶10} Because he was not sitting in the driver‘s seat and did not operate the accelerator or the brake, appellant contends that by law he did not operate the vehicle. It is appellant‘s position that while his alleged conduct, i.e., grabbing the steering wheel,
{¶11} Prior to the enactment of S.B. 123, effective January 1, 2004, there was no statutory definition of “operate.” Thus, the meaning of the word “operate” as used in
{¶12} With the enactment of S.B. 123, effective January 1, 2004, the General Assembly specifically defined “operate” as used in
{¶13} “Where the words of a statute are free of ambiguity and express plainly and distinctly the sense of the lawmaking body, the courts should look no further in their efforts to interpret the intent of the General Assembly.” State v. Smorgala (1990), 50 Ohio St.3d 222, 223.
{¶15} In answering this question in the affirmative, the Wallace court stated, “The plain meaning of
{¶16} The Eighth Appellate District has tacitly adopted Wallace‘s holding in Schultz, 2008-Ohio-4448. The issue in Schultz was whether there was sufficient evidence to support an enhanced OVI conviction. However, the Schultz court noted the General Assembly‘s amendments to Ohio‘s OVI statute and narrowing of the definition of “operate” to require that the person cause movement of the vehicle. Id. at ¶30. In footnote 6, the court stated the following: “The term ‘operate’ is still broad enough to encompass an impaired passenger who grabs the steering wheel of a moving vehicle. See, Wallace, supra. But an impaired passenger cannot be convicted of a physical control violation because he is not in the driver‘s seat. See
{¶17} We agree with the reasoning and analysis of the First Appellate District in Wallace, 166 Ohio App.3d 845, 2006-Ohio-2477. The statutory definition of “operate” in
{¶18} Appellant next argues that if Wallace is correct in its holding, and the meaning of the word “operate” is plain and unambiguous, then there is no reason for the court to have explained the definition of “operate” to the jury.
{¶19} The instruction given to the jury and that which appellant now challenges is as follows:
The term operate means to cause or have caused the movement of a vehicle. The term operate is not limited only to a driver, but rather it applies to anyone who causes movement of a vehicle in any direction. If you find beyond a reasonable doubt that [appellant] caused vehicle movement by grabbing the steering wheel, then you may find that [appellant] operated the vehicle.
{¶20} According to appellant, this definition of “operate” went “far beyond the statutory version” and effectively directed a verdict against appellant on the element of operation. Appellant further argues that appellee improperly had the trial court comment upon a fact in the case and then instruct the jury that this constituted operating. Thus, it is appellant‘s position that this jury instruction was improper because it relieved the jurors of their fact-finding obligation, effectively directed a verdict against him, and thereby denied him his right to a jury trial. We disagree.
{¶21} A determination as to which jury instructions are proper is a matter left to the sound discretion of the trial court. State v. Guster (1981), 66 Ohio St.2d 266, 271. Crim.R. 30(A) requires a trial court to fully and completely give the jury all instructions that are relevant and necessary for the jury to weigh the evidence and discharge its duty as a fact-finder. State v. Covington, Franklin App. No. 06AP-826, 2007-Ohio-5008, ¶3, citing State v. Comen (1990), 50 Ohio St.3d 206. Further, a party is entitled to the inclusion of its requested instruction only if it is a correct statement of the law applicable to the facts of the case. Covington at ¶8, citing Murphy v. Carrollton Mfg. Co. (1991), 61 Ohio St.3d 585. “Jury instructions are proper if they correctly state the law as applied to the facts of the case, and if reasonable minds can properly reach the conclusion sought by the instructions.” Id.
{¶23} In contrast, in State v. Getsy (1998), 84 Ohio St.3d 180, the Supreme Court of Ohio considered a trial court‘s jury instruction that “[i]f a wound is inflicted upon a person with a deadly weapon in a manner calculated to destroy life the purpose to kill may be inferred from the use of the weapon.” Id. at 196. The defendant argued that this instruction created a mandatory presumption in violation of the Ohio and United States Constitutions. The Supreme Court of Ohio determined that the use of “may” in the instruction indicated that the presumption was permissive, not one the jury was required to accept, and, therefore, did not run afoul of the defendant‘s constitutional rights.
{¶24} Likewise, the trial court here used “may” in its jury instruction, and pursuant to Getsy, the jury instruction given did not on its face create an impermissible presumption. Therefore, the jury instruction in this case may not reasonably be interpreted as creating a mandatory presumption. Evans, 2001 WL 1653864 (jury instruction stating that purpose to cause death may be inferred from use of the weapon along with all other facts and circumstances in evidence did not create a mandatory
{¶25} For the foregoing reasons, appellant‘s single assignment of error is overruled, and the judgment of the Franklin County Municipal Court is hereby affirmed.
Judgment affirmed.
FRENCH, P.J., concurs.
TYACK, J., dissents.
TYACK, Judge, dissenting.
{¶26} I respectfully dissent.
{¶27} The issue before us is not whether a jury verdict was against the manifest weight of the evidence. The issue is whether the trial court judge made a mistake by taking the word “operate,” which is defined by statute, and amplifying the definition in a way that made it seem much more likely that the defendant would be found guilty. I believe the trial court should simply have given the statutory definition of “operate” and then let the jury decide whether or not causing a vehicle to swerve is the same as causing a vehicle to move. The trial judge, in his charge, decided that key issue for the jury, thereby invading the province of the jury.
{¶28} The majority opinion sanctions a revised definition of “operate” that leads to some clearly absurd results. A pedestrian who steps in front of a moving vehicle and forces the driver to swerve to miss him or her could be someone who “operated” the
{¶29} The jury charge sanctioned by the majority in this case allows operation by a person not inside the motor vehicle and not touching the motor vehicle. I do not believe that is what the legislature intended when it defined “operate.” What the legislature intended was to correct the absurd definition of operation created by case law in which a person who was doing the right thing by sleeping off his or her intoxication was to be found guilty of operating a motor vehicle.
{¶30} The courts really should not be expanding statutory definitions to encourage juries to reach verdicts that individual trial judges would like to see in a given case. Instead, the courts should be trusting juries to reach the correct verdict in a given case. We have a constitutional right to a trial by jury for a reason. The framers of our constitutions wanted important decisions about a person‘s guilt or innocence to be made by average citizens, not persons drawing a government paycheck. We should respect that right.
{¶31} Again, I respectfully dissent.