State of Ohio, Plaintiff-Appellee, v. Homer L. Nelson, III, Defendant-Appellant.
No. 19AP-548 (C.P.C. No. 17CR-1366)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
September 29, 2020
2020-Ohio-4657
DORRIAN, J.
(REGULAR CALENDAR)
Rendered on September 29, 2020
On brief: Ron O‘Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellee.
On brief: Yeura R. Venters, Public Defender, and Ian J. Jones, for appellant.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Defendant-appellant, Homer L. Nelson, III, appeals the judgment of the Franklin County Court of Common Pleas convicting him of felony level operating a vehicle under the influence of alcohol (“OVI“) and an attached specification for certain repeat OVI offenders. For the following reasons, we affirm the trial court judgment.
I. Facts and Procedural History
{¶ 2} By indictment filed March 8, 2017, plaintiff-appellee, State of Ohio, charged Nelson with two counts of OVI arising out of a single February 24, 2017 incident. Count 1 charged Nelson with operating a vehicle while “under the influence of alcohol, a drug of abuse, or a combination of them” in violation of
{¶ 3} Nelson entered a plea of not guilty and filed a motion to amend or dismiss the indictment asserting that one of the five convictions used to elevate the OVI to a felony was constitutionally infirm. After a hearing on the matter, the trial court denied the motion. Thereafter, Nelson waived his right to a trial by jury and elected for the case to proceed as a bench trial.
{¶ 4} The state called Officer Alexander Stallings to testify. Officer Stallings testified that around 7:30 p.m. on February 24, 2017, he responded to a call reporting a man “passed out” inside a vehicle at the intersection of Cleveland Avenue and State Route 161. (July 9, 2019 Tr. at 11.) When he arrived, Officer Stallings observed a vehicle stopped in a turn lane at a busy intersection with the engine still running. The driver, who the parties stipulated to be Nelson, was “incoherent and slumped over” inside the car, holding a bottle of alcohol that turned out to be “Mad Dog 20/20.” (July 9, 2019 Tr. at 13, 14.) Beer cans were visible in the vehicle as well. The officers at the scene put the vehicle into park and shut off the engine.
{¶ 5} Medics were eventually able to rouse Nelson. Because of the open containers of alcohol in the vehicle, the smell of alcohol on Nelson‘s breath, his bloodshot eyes and incoherence, the officers opened an OVI investigation. Officer Stallings conducted a horizontal gaze nystagmus (“HGN“) test, and Nelson exhibited six out of six clues. Nelson refused to perform physical tests, such as the one-leg stand and walk-and-turn test. The parties stipulated the HGN test was properly conducted and physical tests were not performed.
{¶ 6} Based on the HGN test and his observations of Nelson and the vehicle, Officer Stallings placed Nelson under arrest for OVI. Thereafter, Nelson admitted to drinking 3 24-ounce beers in addition to the Mad Dog, and he agreed to take a breath test. The parties stipulated that the result of the breath test showed Nelson had a blood alcohol content of .200 and that the breath test machine was working properly.
{¶ 7} To formulate charges against Nelson, Officer Stallings testified he used “LEADS” to access the Ohio Bureau of Motor Vehicles (“BMV“) database to view Nelson‘s license and vehicle information as well as his previous driving offenses. (July 9, 2019 Tr. at
OFF: OVI-ALCOHOL &/OR DRUG
BAC: .13
CONVICTION DATE: 09/15/2006
OFFENSE DATE: 03/17/2006
COURT: 0110-ADAMS COUNTY COURT
POINTS: 06OFF: OVI/REFUSAL
CONVICTION DATE: 08/02/2005
OFFENSE DATE: 02/15/2005
COURT: 2520-FRANKLIN CO MUNI COURT
POINTS: 06* * *
OFF: OVI/REFUSAL
CONVICTION DATE: 08/02/2005
OFFENSE DATE: 06/18/2005
COURT: 2520-FRANKLIN CO MUNI COURT
POINTS: 06* * *
OFF: OVI-ALCOHOL &/OR DRUG
CONVICTION DATE: 11/18/1999
OFFENSE DATE: 10/29/1999
COURT: 6610-PIKE COUNTY COURT
POINTS: 06* * *
OFF: OVI-ALCOHOL &/OR DRUG
CONVICTION DATE: 05/19/1998
OFFENSE DATE: 10/28/1997
COURT: 6610-PIKE COUNTY COURT
POINTS: 06
{¶ 8} The trial court disagreed. After finding Nelson guilty of both impaired and “per se” OVI under
II. Assignments of Error
{¶ 9} Nelson appeals and assigns the following three assignments of error for our review:
[I.] The State did not prove the prior convictions for OVI were “equivalent offenses” beyond a reasonable doubt under RC 4511.181.
[II.] The State did not provide evidence that the elements of the prior convictions were for violations of RC 4511.19, for violations of municipal OVI ordinances, or for current or former laws substantially equivalent to RC 4511.19, therefore the convictions for felony OVI were against the manifest weight of the evidence.
[III.] The evidence was legally insufficient to support the convictions for OVI with specifications.
III. Analysis
{¶ 10} In his three assignments of error, Nelson essentially contends the evidence the state used to prove his prior OVI convictions (the BMV record) was insufficient to support his felony-level OVI conviction and the attached repeat offender specification and, for that same reason, his conviction for felony level OVI was against the manifest weight of
{¶ 11} “Sufficiency of the evidence is a legal standard that tests whether the evidence introduced at trial is legally sufficient to support a verdict.” State v. Cassell, 10th Dist. No. 08AP-1093, 2010-Ohio-1881, ¶ 36, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In reviewing a challenge to the sufficiency of the evidence, an appellate court must determine “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.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. Where the evidence, “if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt,” it is sufficient to sustain a conviction. Id. Because a Crim.R. 29 motion questions the sufficiency of the evidence, we apply the same standard of review on appeal of a denial of a Crim.R. 29 motion as in a challenge to the sufficiency of the evidence. State v. Kearns, 10th Dist. No. 15AP-244, 2016-Ohio-5941, ¶ 44.
{¶ 12} “While sufficiency of the evidence is a test of adequacy regarding whether the evidence is legally sufficient to support the verdict as a matter of law, the criminal manifest weight of the evidence standard addresses the evidence‘s effect of inducing belief.” Cassell at ¶ 38, citing State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶ 25. When evaluating a challenge to a verdict as being against the manifest weight of the evidence, “an appellate court may not merely substitute its view for that of the trier of fact, but must review 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 trier of fact 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. McCrary, 10th Dist. No. 10AP-881, 2011-Ohio-3161, ¶ 12, citing Thompkins at 387. An appellate court should reserve reversal of a conviction as being against the manifest weight of the evidence for only the ” ‘exceptional case in which the evidence weighs heavily against the conviction.’ ” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
{¶ 13} In this case, Nelson was charged with OVI, pursuant to
{¶ 14} The term “equivalent offense” as it pertains to both
(1) A violation of division (A) or (B) of section 4511.19 of the Revised Code;
(2) A violation of a municipal OVI ordinance;
* * *
(8) A violation of an existing or former municipal ordinance, law of another state, or law of the United States that is substantially equivalent to division (A) or (B) of section 4511.19 * * *;
(9) A violation of a former law of this state that was substantially equivalent to division (A) or (B) of section 4511.19 * * *.
(Emphasis added.)
constituting OVI, including operating any vehicle while: under the influence of alcohol, a drug of abuse, or a combination of them; having certain concentrations of alcohol on their breath, in their blood, blood serum or plasma, or in their urine; or having a certain concentration of controlled substances or metabolites of a controlled substance in their blood, blood serum or plasma, or urine. The Ohio legislature specifically addresses how the state may prove prior convictions.
(1) Whenever in any case it is necessary to prove a prior conviction, a certified copy of the entry of judgment in such prior conviction together with evidence sufficient to identify the defendant named in the entry as the offender in the case at bar, is sufficient to prove such prior conviction.
(2) Whenever in any case it is necessary to prove a prior conviction of an offense for which the registrar of motor vehicles maintains a record, a certified copy of the record that shows the name, date of birth, and social security number of the accused is prima-facie evidence of the identity of the accused and prima-facie evidence of all prior convictions shown on the record. The accused may offer evidence to rebut the prima-facie evidence of the accused‘s identity and the evidence of prior convictions. Proof of a prior conviction of an offense for which the registrar maintains a record may also be proved as provided in division (B)(1) of this section.
(3) If the defendant claims a constitutional defect in any prior conviction, the defendant has the burden of proving the defect by a preponderance of the evidence.
Thus, to prove a prior OVI conviction, Ohio law permits the state to submit either the certified copy of the accused‘s record maintained by the registrar of motor vehicles or a certified copy of the entry of judgment in the prior conviction.2
{¶ 15} Where a prior conviction raises the degree of an OVI offense from a misdemeanor to a felony, the state is required to prove the prior conviction beyond a reasonable doubt. State v. Curtis, 10th Dist. No. 09AP-1199, 2011-Ohio-3298, ¶ 42-49 (disagreeing with the appellant‘s contention that
{¶ 16} In this case, the offense predicating the instant OVI charges occurred on February 24, 2017. The state offered a certified copy of Nelson‘s BMV record showing Nelson was convicted in September 2006 of “OVI-alcohol &/OR drug” with a blood alcohol content of .13 in Adams County Court; in August 2005 of two “OVI/refusal[s]” in Franklin County Municipal Court (associated with two separate offense dates); in November 1999 of “OVI-alcohol &/OR drug” in Pike County Court; and in May 1998 of “OVI-alcohol &/OR drug” in Pike County Court. Nelson at trial stipulated to his identity on the BMV record.
{¶ 17} Contrary to Nelson‘s position, the BMV record here is legally sufficient to support the felony level OVI conviction and attached repeat offender specification.
{¶ 18} Nelson agrees “[t]he BMV records showed Mr. Nelson had five convictions for OVI within the prior twenty years.” (Nelson‘s Brief at 4.) He also agrees “the certified BMV records may have been admissible as ‘prima-facie evidence of all prior convictions shown on the record’ ” under
{¶ 19} Nelson‘s argument concerning Lloyd does not compel us to diverge from Curtis in this case. In Lloyd, the Supreme Court of Ohio in pertinent part “explain[ed] the analysis that a court must undertake in determining * * * whether an out-of-state conviction is a sexually oriented offense that triggers a duty to register in Ohio.” Id. at ¶ 1. The statute involved,
{¶ 20} Lloyd is distinguishable from the instant case on several grounds, namely: it does not concern comparison of prior in-state convictions with a later Ohio offense, it does not address the OVI statutory scheme, and it does not involve a statute such as
{¶ 22} Considering all the above, and after viewing the BMV record in a light most favorable to the prosecution, we find a rational trier of fact could have found Nelson‘s 5 OVI convictions in the 20 years prior to the instant offense to be proven beyond a reasonable doubt under the definition set forth in
{¶ 23} Nelson‘s second assignment of error contends his convictions for felony OVI were against the manifest weight of the evidence. Specifically, Nelson asserts the state failed to “provide evidence that the elements of the prior convictions were for violations of R.C. 4511.19, for violations of municipal OVI ordinances, or for current or former laws substantially equivalent to R.C. 4511.19.” (Nelson‘s Brief at 15.) Therefore, in Nelson‘s view, “[b]ecause such evidence was necessary to prove the essential element of all five prior convictions to elevate the charge to a felony OVI, the guilty verdict in the present case was against the manifest weight of the evidence.” (Nelson‘s Brief at 15.)
{¶ 24} Nelson‘s manifest weight of the evidence argument is again premised on the state‘s failure to provide evidence of the elements of Nelson‘s five previous OVI convictions, resulting in the state failing to prove those convictions were “equivalent offenses” under
{¶ 25} As previously explained, having presented its prima facie case of Nelson‘s prior OVI convictions, the state retained the burden of proof. Curtis at ¶ 49; Cleveland v. Keah, 157 Ohio St. 331 (1952), paragraph two of the syllabus (“A prima facie case is one in which the evidence is sufficient to support but not to compel a certain conclusion and does no more than furnish evidence to be considered and weighed but not necessarily to be
{¶ 26} We find no error in this conclusion. Although
{¶ 27} Accordingly, because we conclude sufficient evidence supported the fourth-degree felony OVI conviction and the attached repeat OVI offender specification, and the conviction was not against the manifest weight of the evidence, we overrule Nelson‘s three assignments of error.
IV. Conclusion
{¶ 28} Having overruled Nelson‘s three assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
SADLER, P.J., and BEATTY BLUNT, J., concur.