STATE OF OHIO, PLAINTIFF-APPELLEE, v. WILLIE J. OWENS, DEFENDANT-APPELLANT.
CASE NO. 1-18-48, CASE NO. 1-18-49
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
February 11, 2019
2019-Ohio-440
Appeals from Lima Municipal Court, Trial Court Nos. 18TRD01769 and 18TRD01812. Judgments Affirmed.
Michael J. Short for Appellant
Anthony M. DiPietro for Appellee
{¶1} Defendant-appellant, Willie J. Owens (“Owens“), appeals the August 21, 2018 judgments of sentence of the Lima Municipal Court. For the reasons that follow, we affirm.
{¶2} On October 10, 2016, Owens was placed under an administrative license suspension, which was to last until October 10, 2018. (State‘s Ex. A).
{¶3} On February 23, 2018, Owens was issued a citation for driving under OVI suspension in violation of
{¶4} Following a bench trial on July 24, 2018, the trial court found Owens guilty of both charges. (See Case No. 18TRD01769, Doc. Nos. 8, 9); (See Case No. 18TRD01812, Doc. Nos. 8, 9). The trial court filed its judgment entries of conviction on August 3, 2018. (Case No. 18TRD01769, Doc. No. 9); (Case No. 18TRD01812, Doc. No. 9).
{¶5} On August 21, 2018, the trial court sentenced Owens to 90 days in jail in case number 18TRD01769, suspending all but 3 of those days on condition that
{¶6} On August 21, 2018, Owens filed notices of appeal. (Case No. 18TRD01769, Doc. No. 15); (Case No. 18TRD01812, Doc. No. 14). Owens‘s appeals were subsequently consolidated for purposes of briefing and argument. He raises two assignments of error, which we address together.
Assignment of Error No. I
The convictions were against the manifest weight of the evidence.
The convictions were based on insufficient evidence.
{¶7} In his first and second assignments of error, Owens argues that his driving-under-OVI-suspension convictions are against the manifest weight of the evidence and unsupported by sufficient evidence. Specifically, Owens argues that his convictions are against the manifest weight of the evidence because “[t]he State failed to prove beyond a reasonable doubt that [he] was operating his vehicle outside of the scope of his driving privileges.” (Appellant‘s Brief at 7). Furthermore, Owens argues that because he was operating his motor vehicle within the scope of his driving privileges, his convictions are not supported by sufficient evidence as “[n]o reasonable fact finder could have found each element of the offense proven beyond a reasonable doubt.” (Id. at 8).
{¶8} Before addressing the merits of Owens‘s assignments of error, we must first determine the proper scope of our review. Owens was convicted of two counts of driving under OVI suspension in violation of
No person whose driver‘s * * * license or permit * * * has been suspended under section
4511.19 ,4511.191 , or4511.196 of the Revised Code or under section4510.07 of the Revised Code for a conviction of a violation of a municipal OVI ordinance shall operateany motor vehicle upon the public roads or highways within this state during the period of the suspension.
Thus, to sustain a conviction for driving under OVI suspension, the State must prove beyond a reasonable doubt that a defendant (1) operated (2) any motor vehicle (3) on a public road or highway (4) during the period of a license suspension rendered under
{¶9} On appeal, Owens does not dispute that he was operating a motor vehicle on public roads or that his license was suspended under any of
{¶10} However, contrary to Owens‘s assertion,
{¶11} While Owens asks this court to consider the trial court‘s purported error under both sufficiency-of-the-evidence and manifest-weight-of-the-evidence review, the error alleged by Owens is not subject to sufficiency-of-the-evidence review. Sufficiency-of-the-evidence review concerns “the sufficiency of the state‘s evidence, not the strength of defense evidence” and is accordingly “‘applied with explicit reference to the substantive elements of the criminal offense as defined by
{¶12} Nevertheless, the error alleged by Owens does not escape our review entirely. “When reviewing a claim by a defendant that evidence supports an affirmative defense, the manifest weight standard is the proper standard of review.” State v. Johns, 3d Dist. Seneca Nos. 13-04-23, 13-04-24 and 13-04-25, 2005-Ohio-1694, ¶ 19; State v. Coleman, 8th Dist. Cuyahoga No. 80595, 2002-Ohio-4421, ¶ 30. See Hancock at ¶ 39-42; Wagner at ¶ 7. In determining whether a conviction is against the manifest weight of the evidence, a reviewing court must 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 [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. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing court must, however, allow the trier of fact appropriate discretion on matters relating to the weight of the evidence and the credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight standard, “[o]nly in exceptional cases, where the evidence ‘weighs heavily against the conviction,’ should an appellate court overturn the trial court‘s judgment.” State v. Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.
{¶13} Here, Owens does not dispute that the State proved the substantive elements of the offense of driving under OVI suspension. Therefore, we limit our analysis to determining whether the trial court‘s rejection of Owens‘s driving-
{¶14} At the July 24, 2018 trial, the State first offered the testimony of Sergeant Nicholas Hart (“Sergeant Hart“) of the City of Lima Police Department. (July 24, 2018 Tr. at 11). Sergeant Hart testified that at approximately 10:30 on the morning of February 26, 2018, he was on motor patrol when he observed a gray Ford Taurus turn northbound from Vine Street onto a dead-end street. (Id.). He testified that he observed the vehicle stop and that he watched as a woman “believed to possibly be a local street walker or a prostitute” approached the vehicle. (Id. at 12). Soon thereafter, Sergeant Hart watched as the vehicle pulled away from the female, at which point he “got behind the vehicle and followed it.” (Id.). After observing the driver of the vehicle commit a marked lane violation, Sergeant Hart executed a traffic stop. (Id.).
{¶15} Sergeant Hart identified Owens as the driver of the gray Ford Taurus. (Id.). Sergeant Hart testified that, after making contact with Owens, he conducted a routine check of Owens‘s driving status that revealed that Owens‘s driver‘s license was suspended. (Id. at 13). He stated that although Owens advised him that he had driving privileges, he could not recall whether Owens produced his driving privileges card during the stop. (Id.). Sergeant Hart testified that Owens “said he had privileges to drive to and from work and for doctor‘s appointments.” (Id.).
{¶16} Sergeant Hart then identified State‘s Exhibit C as Owens‘s “administrative license suspension limited driving privileges permit card.” (Id.). (See State‘s Ex. C). Owens‘s driving privileges permit card provides that Owens‘s driver‘s license had been “suspended except for the privileges to drive to, from and for work purposes in a non-commercial vehicle and as noted below.” (State‘s Ex. C). However, the spaces on the privileges card reserved for identification of Owens‘s place of employment, days of employment, and hours of employment are blank. (Id.). In addition, the card provides that he could drive “to/from any and all regularly scheduled medical and dental appointments for himself” and that he must carry the privileges card with him at all times. (Id.).
{¶17} Sergeant Hart testified that based on his experience with other drivers with limited driving privileges, driving privileges cards typically specify the driver‘s
{¶18} On cross-examination, Sergeant Hart testified that while he could not remember whether Owens produced his driving privileges card during the traffic stop, he also could not “recall that [Owens] did not show it.” (Id. at 17-18). In addition, Sergeant Hart testified that he was familiar with “a body shop on 214 South Central [Avenue],” Owens‘s place of employment, but that “several blocks,” “a dead end,” and “an open field” separated the body shop from the location where he first observed Owens. (Id. at 18). Finally, he testified that he remembered that there was a fire at “Howard‘s E-Z Check” but that he could not recall exactly when the fire occurred or whether it occurred at or near the time he executed the stop of Owens‘s vehicle. (Id.).
{¶19} On redirect-examination, Sergeant Hart testified that Owens‘s course of travel was not consistent with him returning home from P1 Automotive, the body shop on 214 South Central Avenue. (Id. at 18-19). Sergeant Hart opined that “[i]f
{¶20} Next, Deputy Jared Gesler (“Deputy Gesler“) of the Allen County Sheriff‘s Office testified that on February 23, 2018, he executed a traffic stop of Owens‘s vehicle near the intersection of “St. John[s] [Avenue] and 4th Street” after Owens “failed to utilize his turn signal.” (Id. at 20-22). Deputy Gesler identified Owens as the driver of the vehicle he pulled over. (Id. at 22). He testified that when he asked Owens for his driver‘s license, Owens told him that he “had driving privileges but he didn‘t have them with him.” (Id. at 22-23). Deputy Gesler stated that he was able to determine that Owens‘s driver‘s license was suspended. (Id. at 23).
{¶21} Deputy Gesler testified that when he asked Owens why he was driving that day, Owens “told [him] he was just driving around.” (Id.). Deputy Gesler then examined State‘s Exhibit C and testified that it was consistent with driving privileges cards he had encountered in the past. (Id. at 23-24). He testified that the driving privileges card did not indicate that Owens had driving privileges for work or that he had driving privileges “to just drive around.” (Id. at 24). He also stated that the driving privileges card indicated that Owens was required to carry the card
{¶22} Thereafter, the State moved to admit its exhibits and rested. (Id. at 26). Owens and the State stipulated to the admission of State‘s Exhibits A, B, and C, and the same were admitted without objection.1 (Id. at 27). (See State‘s Exs. A, B, C).
{¶23} Owens then testified in his own defense. He testified that on February 26, 2018, he was “headed home” from work at P1 Automotive when he was pulled over by Sergeant Hart. (July 24, 2018 Tr. at 29, 31-32). He testified that he entered the dead-end street where Sergeant Hart first observed him because he believed that it would “lead back to Center Street” and that he turned around once he realized it was a dead-end. (Id. at 29). Owens mentioned seeing “a lady walking across the field” at the end of the dead-end street but he did not state that she approached his car or that he spoke with her. (Id. at 30). Owens then described the route he allegedly took home from work that morning, insisting that he was forced to take a
{¶24} Owens then testified regarding the traffic stop initiated by Deputy Gesler on February 23, 2018. Owens testified that he was headed home from work when Deputy Gesler pulled him over. (Id. at 33). He testified that he told Deputy Gesler that he “just had got off of work” and denied telling Deputy Gesler that he was “just riding around.” (Id.).
{¶25} Owens reiterated that he was working for the body shop on both February 23 and 26, 2018. (Id.). To support his claim, Owens introduced Defendant‘s Exhibit 1, a letter from his employer at P1 Automotive. (Id. at 34). (See Defendant‘s Ex. 1). Defendant‘s Exhibit 1 states: “Willie James Owens is an employee at P-I Automotive. He works six days a week (Monday thru Saturday) from 9:00 a.m. to 8:00 p.m. On the dates in question, February 23 and 26, 2018, Mr. Owens was in route to work.” (Defendant‘s Ex. 1).
{¶26} Owens then examined State‘s Exhibit C. He testified that although his driving privileges card did not specify his employer, days of employment, or hours of employment, he understood the driving privileges card as granting him “driving privilege to drive to and from work at all times * * * just during the work hours and nothing else.” (July 24, 2018 Tr. at 35). In addition, he testified that he understood
{¶27} On cross-examination, Owens reviewed State‘s Exhibit B, a copy of the November 14, 2016 judgment entry of conviction and sentence of the Lima Municipal Court that sets forth his driving privileges. Owens admitted that the judgment entry does not contain language granting him privileges to drive to and from work, privileges for “joyriding,” or privileges to drive to and from court. (Id. at 38-39). (See State‘s Ex. B).
{¶28} Thereafter, Owens moved to admit his exhibit and rested. (July 24, 2018 Tr. at 43). Defendant‘s Exhibit 1 was admitted without objection. (Id.). The State did not present any evidence on rebuttal. (Id. at 44).
{¶29} We conclude that Owens‘s driving-under-OVI-suspension convictions are not against the manifest weight of the evidence because the trial court did not clearly lose its way by rejecting Owens‘s driving-privileges affirmative defense. We note that Owens and the State dispute the scope of Owens‘s driving privileges. According to Owens, at the time he received the citations, he had privileges to drive to and from work, and he was en route home from work when he was cited. In contrast, the State argues that Owens‘s driving privileges at the time he received the citations were strictly limited to driving to and from any regularly scheduled medical or dental appointments. The trial court agreed with the State‘s
{¶30} First, Owens‘s claim that he was returning home from work when he received each of the citations did not go unchallenged by the State. Sergeant Hart testified that Owens told him that he was returning home from one of the courthouses in Lima; Deputy Gesler testified that Owens remarked that he was “just driving around.” (July 24, 2018 Tr. at 13, 23). If believed by the trial court, Sergeant Hart‘s and Deputy Gesler‘s testimony weighs against Owens‘s claim that he was driving within the scope of his occupational driving privileges because driving to and from court and “just driving around” would be clearly outside of the scope of those limited privileges. Ultimately, the trial court elected to believe Sergeant Hart‘s and Deputy Gesler‘s testimony, explicitly finding that each of them was a credible witness. (See Case No. 18TRD01769, Doc. No. 9); (See Case No.
{¶31} In addition, the hours at which Owens was issued the citations weigh against a finding that he was driving within the scope of any occupational driving privileges. Owens was cited at approximately 6:10 p.m. on February 23, 2018 and at approximately 10:35 a.m. on February 26, 2018. (Case No. 18TRD01769, Doc. No. 1); (Case No. 18TRD01812, Doc. No. 1). Given that the letter from Owens‘s employer states that his work hours were “from 9:00 a.m. to 8:00 p.m.,” it is unlikely that Owens would be expected to be returning home from work at 10:35 a.m. or
{¶32} Moreover, the letter from Owens‘s employer does not weigh strongly in favor of Owens‘s affirmative defense. The letter from Owens‘s employer states that Owens “was in route to work” when he received the citations. (Emphasis added.) (Defendant‘s Ex. 1). Conversely, Owens testified that he was returning home from work on both occasions. (July 24, 2018 Tr. at 29-33). Owens did not explain this contradiction. Thus, the letter‘s value to Owens‘s affirmative defense is questionable.
{¶33} Finally, at least with respect to the February 26, 2018 citation issued by Sergeant Hart, Sergeant Hart also testified that Owens‘s course of travel was inconsistent with him returning home from work. (Id. at 18-19). Owens argues that
{¶34} Altogether, we cannot conclude that the trial court, by rejecting Owens‘s driving-privileges affirmative defense, clearly lost its way and created such a manifest miscarriage of justice that Owens‘s driving-under-OVI-suspension convictions must be reversed and new trials ordered.
{¶35} Owens‘s assignments of error are overruled.
{¶36} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgments of the trial court.
Judgments Affirmed
SHAW and WILLAMOWSKI, J.J., concur.
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