State v. TranovichState v. Tranovich
Jonathan N. Fox, 8310 Princeton-Glendale Road, West Chester, OH 45069, for defendant-appellant
O P I N I O N
YOUNG, J.
{¶1} Defendant-appellant, John R. Tranovich, appeals his conviction in the Butler County Area III Court for wrongful entrustment.
{¶2} On June 21, 2008, a West Chester Township police officer arrested Mark Tranovich for driving under suspension. The vehicle driven by Mark, a Jeep, was registered to appellant. Mark is appellant‘s 20-year-old son; at the time of the offense, Mark resided
{¶3} Appellant appeals, raising two assignments of error.
{¶4} Assignment of Error No. 1:
{¶5} “THE TRIAL COURT ERRED IN FINDING THE DEFENDANT/APPELLANT GUILTY OF VIOLATING [R.C.] 4511.203 WHEN THE STATE FAILED TO PROVE ESSENTIAL ELEMENTS REQUIRED TO SUSTAIN A CONVICTION.”
{¶6} Appellant argues that the trial court erred by convicting him of wrongful entrustment in violation of
{¶7} When considering whether a judgment is against the manifest weight of the evidence in a bench trial, an appellate court will not reverse a conviction where the trial court could reasonably conclude from substantial evidence that the state has proved the offense beyond a reasonable doubt. State v. Eskridge (1988), 38 Ohio St.3d 56, 59; State v. Godby, Butler App. No. CA2005-03-056, 2006-Ohio-205.
{¶8} The appellate court reviews 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 trial court “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-Ohio-52. An appellate court should
{¶9}
{¶10} To prove a violation of
{¶11} At trial, the officer testified as to the following: Mark knew he was under suspension when he was arrested by the officer on June 21, 2008. Later that day, the officer talked to appellant on the phone about Mark‘s citation. During their conversation, appellant asked why Mark was cited, and asked for specific information about the type of suspension his son was under. According to the officer, appellant felt the wrongful entrustment charge “was a revolving door” and was unreasonable. The officer admitted appellant never told him he knew Mark was driving under suspension on June 21, 2008.
{¶12} Following the denial of his Crim.R. 29 motion, appellant testified on his behalf.
{¶13} Appellant further testified that (1) before June 21, 2008, he never received a notice from the BMV regarding Mark‘s current suspension; (2) no one, including Mark, informed him of Mark‘s current suspension; (3) upon talking to the officer, appellant specifically asked Mark if he was under suspension; Mark told him he was not; however, appellant later found out he was; and (4) he and his wife try to find out everything about their children; however, he does not open mail addressed to others.
{¶14} Because knowledge is “a constituent part of the crime under [R.C. 4511.203], it must be alleged and proved. [W]hile it might be prudent, there is no affirmative duty under
{¶15} The record clearly indicates that appellant knew about Mark‘s previous suspension. However, given appellant‘s testimony and the officer‘s admission that appellant never told him he knew about Mark‘s current suspension, we find the state failed to prove beyond a reasonable doubt that on June 21, 2008, the day of the entrustment of the Jeep to Mark, appellant knew or had reasonable cause to believe Mark had no legal right to drive. Given the evidence presented, the trial court could not reasonably find that the state proved
{¶16} We therefore find the trial court‘s judgment contrary to the manifest weight of the evidence. Appellant‘s first assignment of error is accordingly sustained. We hereby order appellant‘s conviction reversed and appellant discharged. See Mason v. Reid (Dec. 27, 1993), Warren App. No. CA92-12-105 (reversing a bench trial conviction on manifest weight grounds).
{¶17} Assignment of Error No. 2:
{¶18} “THE PRIMA FACIE STANDARD MANDATED BY [R.C.] 4511.203(B) VIOLATES DUE PROCESS BY FORCING THE DEFENDANT TO TESTIFY AND SHIFTS THE BURDEN OF PROOF TO THE DEFENDANT.”
{¶19} Appellant argues that the prima facie standard under
{¶20} This assignment of error is moot given our resolution of appellant‘s first assignment of error. Further, “Failure to raise at the trial court level the issue of the constitutionality of a statute or its application, which issue is apparent at the time of trial, constitutes a waiver of such issue and a deviation from this state‘s orderly procedure, and therefore need not be heard for the first time on appeal.” State v. Awan (1986), 22 Ohio St.3d 120, syllabus.
{¶21} Judgment reversed and appellant discharged.
BRESSLER, P.J., and RINGLAND, J., concur.