2005 Ohio 6706 | Ohio Ct. App. | 2005
{¶ 2} On November 13, 2003, appellant was indicted by the Lake County Grand Jury on one count of DUI, a felony of the third degree, in violation of R.C.
{¶ 3} On December 19, 2003, appellant filed a motion to suppress evidence. Appellee, the state of Ohio, filed a response to appellant's motion to suppress on January 27, 2004. A hearing was held on January 29, 2004.
{¶ 4} At that hearing, Officer Terrell Stevenson ("Officer Stevenson") with the Willoughby Hills Police Department testified for appellee that on August 10, 2003, at approximately 11:00 p.m., he was driving eastbound on State Route 2 in a marked police cruiser. Officer Stevenson noticed appellant's vehicle, which was directly in front of his cruiser, weave over the white solid line onto the shoulder of the right side of the freeway and back into the right lane on two separate occasions within a quarter of a mile. He indicated that in each instance, both wheels on the right side of appellant's car crossed completely over the white line by several inches. At that time, Officer Stevenson activated his emergency lights and initiated a traffic stop of appellant's vehicle.
{¶ 5} After approaching appellant's automobile, Officer Stevenson stated that appellant's eyes were bloodshot, his speech was slurred, and he smelled strongly of alcohol. He administered three field sobriety tests, including the Horizontal Gaze Nystagmus, the one-legged stand, and the walk and turn. According to Officer Stevenson, appellant performed poorly on all three tests. He concluded that appellant was impaired and should not be driving. Officer Stevenson then arrested appellant for DUI and transported him to the station.
{¶ 6} According to appellant, while driving on Route 2, he was aware that a police car was behind him. He testified that he had no memory of driving twice over the white line. Appellant indicated that he had absolutely no knowledge of why Officer Stevenson stopped him.
{¶ 7} Pursuant to its March 1, 2004 judgment entry, the trial court overruled appellant's motion to suppress.
{¶ 8} A jury trial was held on May 3, 2004.
{¶ 9} At the jury trial, Evelyn Porter ("Porter"), a felony adult probation officer with the Lake County Probation Department, testified for appellee that appellant was convicted of DUI in 1999 and was on probation.
{¶ 10} Officer Stevenson testified for appellee at the jury trial to the same sequence of events as he did at the suppression hearing. In addition, Officer Stevenson said that appellant refused to take a breathalyzer test. Officer Stevenson indicated that initially upon questioning appellant, he denied consuming any alcohol. However, when asked again after the tests were administered, appellant admitted to having a "few." At the station, Officer Stevenson stated that appellant again denied consuming any alcohol that evening.
{¶ 11} On May 5, 2004, the jury returned a verdict of guilty.
{¶ 12} Pursuant to its July 7, 2004 judgment entry, the trial court sentenced appellant to serve five years in prison, ordered him to pay a fine of $800, and suspended his driver's license for life. It is from that judgment that appellant filed a timely notice of appeal and makes the following assignments of error:
{¶ 13} "[1.] The trial court erred to the prejudice of [appellant] by overruling the motion to suppress evidence[.]
{¶ 14} "[2.] [Appellant's] sentence of five (5) years in prison violates the jury trial clause of the
{¶ 15} "[3.] The maximum sentence for one conviction, irrespective of Blakely, is contrary to law.
{¶ 16} "[4.] The trial court abused its discretion in allowing a witness to testify about [appellant's] prior felony conviction for DUI.
{¶ 17} "[5.] The verdict is against the manifest weight of the evidence."
{¶ 18} In his first assignment of error, appellant argues that the trial court erred by overruling his motion to suppress.
{¶ 19} This court stated in State v. Jones, 11th Dist. No. 2001-A-0041, 2002-Ohio-6569, at ¶ 16, that:
{¶ 20} "[a]t a hearing on a motion to suppress, the trial court assumes the role of the trier of facts and, therefore, is in the best position to resolve questions of fact and evaluate the credibility of witnesses. State v. Mills (1992),
{¶ 21} "As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." Whren v.United States (1996),
{¶ 22} This court stated in State v. Carter, 11th Dist. No. 2003-P-0007,
{¶ 23} "[s]topping a vehicle and detaining its occupants is a seizure within the meaning of the
{¶ 24} R.C.
{¶ 25} In the case at bar, Officer Stevenson had probable cause to make the stop due to the R.C.
{¶ 26} Officer Stevenson's testimony provided sufficient evidence to support the trial court's determination that he had probable cause to stop the vehicle after observing the traffic violation. Also, the nature of the weaving suggested the possibility of impaired driving which justified the traffic stop. Again, Officer Stevenson noticed appellant's vehicle, which was directly in front of his cruiser, weave over the white solid line onto the shoulder of the right side of the freeway and back into the right lane on two separate occasions within a quarter of a mile. He indicated that in each instance, both wheels on the right side of appellant's car crossed completely over the white line by several inches.
{¶ 27} Appellant alleges that because he moved his car outside its marked lane in a safe manner, he did not violate R.C.
{¶ 28} We note that there is no indication in the record that there were any adverse conditions present which may have caused appellant to leave his lane of travel on two separate occasions. Appellant committed a readily apparent traffic violation since he left the lane in which he was traveling when it was practicable to stay within his own lane of travel. State v. Hodge,
{¶ 29} In his second assignment of error, appellant alleges that his sentence of five years in prison violates the jury trial clause of the
{¶ 30} Because appellant's second and third assignments of error are interrelated, we will address them in a consolidated fashion.
{¶ 31} R.C.
{¶ 32} "(1) At the time of committing the offense, the offender was under release from confinement before trial or sentencing * * * or under post-release control * * * for an earlier offense * * *.
{¶ 33} "(2) The offender * * * has a history of criminal convictions.
{¶ 34} "(3) The offender has not * * * responded favorably to sanctions previously imposed for criminal convictions.
{¶ 35} "(4) The offender has demonstrated a pattern of drug or alcohol abuse that is related to the offense * * *.
{¶ 36} "(5) The offender shows no genuine remorse for the offense."
{¶ 37} In order to sentence a defendant to the maximum term of incarceration, a trial court must make certain findings pursuant to R.C.
{¶ 38} The Supreme Court in State v. Comer,
{¶ 39} Additionally, when the sentencing court wishes to impose the maximum sentence on a defendant, it must give its reasons pursuant to R.C.
{¶ 40} According to Apprendi v. New Jersey (2000),
{¶ 41} "Blakely refined the Apprendi rule when it held that `the "statutory maximum" for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of thefacts reflected in the jury verdict or admitted by thedefendant.' (Emphasis sic.)" State v. Rupert, 11th Dist. No. 2003-L-154,
{¶ 42} As a general rule, sentences that fall within the statutory range do not violate the constitutional provision regarding excessive punishments. State v. Gladding (1990),
{¶ 43} In the case at bar, the trial court stated at the sentencing hearing that:
{¶ 44} "[t]he [c]ourt has considered the record, oral statements made, the pre-sentence report, drug and alcohol and psychological evaluations, the statement of [appellant] and counsel, as well as the principles and purposes of sentencing under [R.C.] 2929.11, and I've balanced the seriousness and recidivism factors under [R.C.] 2929.12. In that regard, I find no factors making this offense any more or less serious. In terms of recidivism under [R.C. 2929].12(D), I find that there is an extreme history of criminal convictions. * * * Thirteen DUI charges, eight of which are shown to have resulted in convictions[.] * * * Seven disorderly conduct/intoxication, resisting arrest and a dismissed domestic violence. [Appellant] has not responded favorably to previously imposed sanctions in those DUI cases. * * * [Appellant] has an extreme problem and has refused to obtain treatment. He just does not maintain any kind of sobriety no matter what he does. He does poorly on probation. The [c]ourt finds no genuine remorse. * * * [T]he Euclid ECAP program, the jail treatment program, Lake Geauga Center on Alcoholism and Drug Abuse, the NEO Camp program, Alcoholics Anonymous; none of those have sunk in to [appellant] and that is the biggest consideration for this [c]ourt and why the [c]ourt believes that [appellant] poses the greatest likelihood of committing future crimes. He is a chronic alcoholic and a chronic driver. The alcoholism by itself is bad enough but it doesn't endanger society. But he gets behind the wheel every time he drinks. * * * After weighing the seriousness and recidivism factors, the [c]ourt finds that a prison sentence is consistent with the purposes and principles of sentencing set forth in [R.C.] 2929.11, and that [appellant] is not amenable to an available community control sanction. The [c]ourt also finds, pursuant to [R.C.] 2929.14(B), that the shortest prison term will demean the seriousness of [appellant's] conduct and, more importantly, the shortest prison term will not adequately protect the public from future crime by [appellant] or, by example, others. * * * In accordance with [R.C.] 2929.19(B)(2)[d], having considered the factors set forth in [R.C. 2929].12 and [R.C. 2929].13 and for the other reasons stated, I am imposing the maximum sentence under [R.C.] 2929.14(C)."
{¶ 45} In addition to the foregoing, the trial court made a similar pronouncement in its July 7, 2004 judgment entry.
{¶ 46} Here, the trial court sentenced appellant to five years imprisonment for one count of DUI. The standard statutory range for this third degree felony offense is one to five years. R.C.
{¶ 47} In his fourth assignment of error, appellant contends that the trial court abused its discretion in allowing Porter to testify about his prior felony conviction for DUI.
{¶ 48} The trial court has broad discretion in the admission and exclusion of evidence. State v. Hymore (1967),
{¶ 49} When a prior conviction elevates the degree of an offense, the prior conviction is an essential element of the offense and must be proved as a matter of fact. State v. Flasck
(Dec. 29, 2000), 11th Dist. No. 99-T-0173, 2000 Ohio App. LEXIS 6229, at 4, citing State v. Allen (1987),
{¶ 50} Here, appellant was previously convicted of felony DUI in violation of R.C.
{¶ 51} Appellant's reliance on Old Chief v. United States
(1997),
{¶ 52} The United States Supreme Court in Old Chief considered the propriety of allowing evidence of a defendant's prior conviction record for the sole purpose of allowing the prosecution to prove the `prior felony' element of the charged offense, even though the defendant offered to stipulate to a prior felony conviction. The Supreme Court held that because the defendant had offered to stipulate to the prior conviction, "the only reasonable conclusion was that the risk of unfair prejudice did substantially outweigh the discounted probative value of the record of conviction, and it was an abuse of discretion to admit the record when an admission was available." Id. at 191.
{¶ 53} Again, at the jury trial, Porter testified for appellee that appellant was convicted of DUI in 1999, and was on probation. Appellee handed Porter exhibit number one, the judgment entry from the 1999 case. Porter stated that appellant was the subject in that judgment entry and was convicted for DUI. Appellant did not object at that time. At the conclusion of appellee's case, which was after Officer Stevenson's testimony, appellant's counsel objected to exhibit number one, referencing a prior motion in limine regarding appellant's prior DUI conviction, which is not in our record. However, the trial court admitted exhibit number one into evidence.
{¶ 54} Unlike the federal statute in Old Chief, evidence concerning the name and nature of appellant's prior conviction here was necessary in order for the jury to find him guilty of the charged offense. In addition, unlike the appellant in OldChief, appellant in the case sub judice did not offer to stipulate to his prior 1999 DUI conviction. Appellant's fourth assignment of error is without merit.
{¶ 55} In his fifth assignment of error, appellant argues that the verdict is against the manifest weight of the evidence.
{¶ 56} As this court stated in State v. Schlee (Dec. 23, 1994), 11th Dist. No. 93-L0-82, 1994 Ohio App. LEXIS 5862, at 13-15:
{¶ 57} "`Sufficiency' challenges whether the prosecution has presented evidence on each element of the offense to allow the matter to go to the jury, while `manifest weight' contests the believability of the evidence presented.
{¶ 58} "* * *
{¶ 59} "* * * `[M]anifest weight' requires a review of the weight of the evidence presented, not whether the state has offered sufficient evidence on each element of the offense.
{¶ 60} "`In determining whether the verdict was against the manifest weight of the evidence, "(* * *) the court reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. (* * *)"' (Citations omitted.) * * *" (Emphasis sic.)
{¶ 61} A judgment of a trial court should be reversed as being against the manifest weight of the evidence "only in the exceptional case in which the evidence weighs heavily against the conviction." State v. Thompkins (1997),
{¶ 62} In the instant matter, the evidence clearly shows that appellant was driving his vehicle while under the influence of alcohol. Again, Officer Stevenson testified that he witnessed appellant's car weave over the white solid line by several inches on two separate occasions within a quarter of a mile. Further, Officer Stevenson indicated that when he stopped appellant, his eyes were bloodshot, his speech was slurred, and he smelled strongly of alcohol. According to Officer Stevenson, appellant performed poorly on all three field sobriety tests. Although appellant denied consuming alcohol on the evening at issue, Officer Stevenson stated that after the tests were administered, appellant admitted to having a "few."
{¶ 63} Based on Officer Stevenson's testimony and the videotape from the police cruiser, it is apparent that appellant exhibited signs of impairment. Thus, pursuant to Schlee andThompkins, supra, the jury did not clearly lose its way in convicting appellant of DUI. Appellant's fifth assignment of error is without merit.
{¶ 64} For the foregoing reasons, appellant's assignments of error are not well-taken. The judgment of the Lake County Court of Common Pleas is affirmed.
Rice, J., O'Toole, J., concur.
