STATE OF OHIO, Plaintiff-Appellee, vs. KATHERINE WILSON, Defendant-Appellant.
APPEAL NO. C-190281
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
April 22, 2020
2020-Ohio-1584
TRIAL NO. 19TRD-6288
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Reversed and Appellant Discharged
Date of Judgment Entry on Appeal: April 22, 2020
Paula Boggs Muething, City Solicitor, William T. Horsley, Interim City Prosecutor, and Jon Vogt, Appellate Director, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and David Hoffmann, Assistant Public Defender, for Defendant-Appellant.
{¶1} After a night of partying, defendant-appellant Katherine Wilson and her friends were kicked out of the house early in the morning by parents who were less than pleased with the festivities. They stumbled across the street and decided to “sleep it off” in a car parked across from the house. Ms. Wilson made herself at home in the driver‘s seat, and when a police officer interrupted their slumber to see what was going on, he discovered that she had a suspended license and cited her for “operating” a vehicle with a suspended license. The state concedes that Ms. Wilson did not actually drive the car anywhere, and thus this case boils down to whether the term “operating” requires actual physical movement of the car. Consistent with the structure of the relevant statute and recent interpretative guidance from the General Assembly, we conclude that it does. We therefore find that the state failed to produce sufficient evidence that Ms. Wilson improperly operated a vehicle, and we reverse her conviction.
I.
{¶2} On a brisk February morning, Officer Charles Hains responded to a call placed at 5:30 a.m. by a concerned neighbor who spotted a vehicle crowded with young people parked on a residential street. Arriving three hours later, at roughly 8:30, Officer Hains identified the reported vehicle and approached, finding four individuals fast asleep inside the running car, with Ms. Wilson at the helm of the driver‘s seat. Promptly waking everyone up, Officer Hains soon uncovered the reason for their sleeping in the car. One of the individuals lived in the house right across the street and, upon the parent tossing the group out, the foursome sought refuge in the car to sleep (sleep it off, really). Continuing
{¶3} At trial, neither the state nor Ms. Wilson disputed the events of that February morning. Instead, the trial hinged on the meaning of the term “operate” for purposes of
{¶4} Ultimately, the court sided with the state, maintaining that “as the Supreme Court has indicated, operation is more than actually driving,” it is “having the ability to move the vehicle,” and accordingly denied her Crim.R. 29 motion and convicted her of driving under an OVI suspension.1 Ms. Wilson now appeals, challenging in her sole assignment of error the sufficiency of the evidence supporting her conviction.
A.
{¶5} Generally, when reviewing the sufficiency of the evidence, we inquire whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found all the necessary elements of the crime beyond a reasonable doubt. See State v. Anderson, 1st Dist. Hamilton No. C-160920, 2017-Ohio-8641, ¶ 10, citing State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. But in this case, since neither side disputes the facts, we confront a pure issue of statutory interpretation, warranting de novo review. See State v. Pountney, 152 Ohio St.3d 474, 2018-Ohio-22, 97 N.E.3d 478, ¶ 20 (“Interpretation of a statute is a question of law that we review de novo.“).
{¶6} Pursuant to
{¶7} The parties essentially frame the debate as a choice between a statutory definition of “operate” from another section of the Revised Code—
{¶9} A few years later, in State v. Gill, 70 Ohio St.3d 150, 637 N.E.2d 897 (1994), the Ohio Supreme Court built upon its holding in Cleary. Distinguishing themselves from Cleary, the defendants in Gill emphasized that, while positioned in the driver‘s seat with the key in the ignition, the engine was not running, and thus this critical difference prohibited the court from finding a
{¶10} Taking a cue from Justice Pfeifer, the General Assembly had misgivings about the breadth of the judicial definition of operate, and thus it interceded. Effective January 1, 2004, it defined the term “operate” as used in R.C. Chapter 4511, as “to cause or have caused movement of a vehicle[.]”
{¶11} The state says that this history is all well and good, but largely beside the point because the statutory definition in
B.
{¶13} We first consider how the General Assembly employed “operate” in
{¶14} Turning to
{¶15} Wandering further down the page of
C.
{¶16} Another statutory construction canon (in pari materia) reinforces this interpretation of the term “operate.” In re Application of Duke Energy Ohio, Inc., 150 Ohio St.3d 437, 2017-Ohio-5536, 82 N.E.3d 1148, ¶ 27 (“The in pari materia rule may be used to interpret a statute but only when some doubt or ambiguity exists.“). Under this rule, ” ‘statutes relating to the same matter or subject, although passed at different times and making no reference to each other, are in pari materia and should be read together to ascertain and effectuate if possible the legislative intent,’ ” based on the assumption “that the General Assembly, in enacting a statute, is assumed to have been aware of other statutory provisions concerning the subject matter of the enactment even if they are found in separate sections of the Code.” Meeks v. Papadopulos, 62 Ohio St.2d 187, 191-192, 404 N.E.2d 159 (1980), quoting State ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 466, 132 N.E.2d 191 (1956). Accordingly, while not controlling, we may consider
{¶17} And, we pause to note, we are not the first to do so. The Ohio Supreme Court itself turned to
{¶18} Similarly, the Eleventh District in State v. Miranda, 11th Dist. Lake No. 2014-L-020, 2014-Ohio-5312, considered
{¶19} Likewise, it makes sense to read
{¶21} Stated differently, this new physical control offense essentially codified portions of Gill‘s judicial definition of “operate,” defining “physical control” as ” ‘being in the driver‘s position of the front seat of a vehicle and having possession of the vehicle‘s ignition key or other ignition device.’ ” Barnard, 5th Dist. Stark No. 2010-CA-00082, 2010-Ohio-5345, at ¶ 27, quoting Schultz at ¶ 21; see
D.
{¶22} Beyond the historical and context-based reasons, Gill and Cleary do not control for another reason—they premised their results on a purpose-driven analysis of
{¶23} But the same close relationship does not exist between driving a motor vehicle under the influence and driving under an OVI suspension, and the Supreme Court advised us to be mindful of this consideration in Doe. See Doe, 122 Ohio St.3d 12, 2009-Ohio-1360, 907 N.E.2d 706, at ¶ 22 (declining to extend Cleary‘s interpretation of “operate” to
{¶24} The state, however, urges us to follow the Second District‘s decision in Cochran, which seemingly reached a contrary result by indicating that “the definition of ‘operate’ in
E.
{¶26} With this backdrop in mind, we turn to the case at hand, evaluating whether the state provided sufficient evidence to prove Ms. Wilson caused or had caused movement of the vehicle. On appeal, the state itself does not contend the vehicle moved, an appropriate concession in light of the lack of evidence on this point.
{¶27} At trial, Officer Hains recalled the events of that day, discovering Ms. Wilson sleeping in the parked vehicle with three others, positioned in the driver‘s seat, with the key in the ignition, and the engine running. However, absent from his testimony, were any “additional facts” illustrating an “inference of movement.” See Anderson at ¶ 24. In fact, Officer Hains testified he did not recall any statements from Ms. Wilson concerning her moving the vehicle, nor did any other neighbor or witness testify to observing as much. See Anderson at ¶ 31 (“None of the firefighters and paramedics testified * * * that they had observed [the defendant] driving the vehicle.“); Cleveland v. Dumas, 8th Dist. Cuyahoga No. 99558, 2013-Ohio-4600, ¶ 16 (“On this record, there was * * * no evidence that the defendant had driven the vehicle.“). Further, the state offered no evidence that Ms. Wilson,
III.
{¶28} Absent direct or circumstantial evidence that Ms. Wilson operated the vehicle, an essential element of a driving under an OVI suspension offense under
Judgment reversed and appellant discharged.
ZAYAS, J., concurs.
MOCK, P.J., dissents.
MOCK, P.J., dissenting.
{¶29} In this case, we are asked to resolve a relatively simple question. Did the General Assembly intend to supersede the judicially-created definition of “operate” found in
{¶30} Admittedly, while the question is simple, answering it is decidedly less so. We begin with the judicially-created definition. In 1986, the Ohio Supreme Court defined the word “operate” in the context of the OVI statute—
{¶31} The Cleary definition of “operate” remained the law of Ohio for eight years until the court addressed the question again in State v. Gill, 70 Ohio St.3d 150, 637 N.E.2d 897 (1994). At that time, the court clarified its analysis of the question by articulating that the engine need not be running in order for a defendant to be found to have operated a motor vehicle. Cleary was “intended to establish that if a person is found intoxicated in the driver‘s seat of a parked vehicle with the ignition key in the ignition, the person is guilty of violating the statute.” Id. at 154. The legislature need not create a statute that criminalizes only driving while intoxicated, because the “[p]rohibition of potentially harmful conduct need not await occurrence of the act.” Id. Noting that “the gravity of the problem of driving while intoxicated is revealed by the number of needless tragic injuries and deaths that occur annually on the roadways in this state,” id., the court concluded that “A person who is in the driver‘s seat of a motor vehicle with the ignition key in the ignition and who, in his or her body has a prohibited concentration of alcohol, is ‘operating’ the vehicle within the meaning of
{¶33} The initial problem with this analysis is that it assumes that the legislature was attempting to correct the definition in Cleary/Gill.
{¶34} Further, consideration of
{¶35} One of the main things that the General Assembly did was it created a new offense named “having physical control of a vehicle while under the influence.” This
The new offense is linked to the definition of “operate” that the act enacts in
R.C. 4511.01 and that, in relevant part, applies to the offenses of state OVI and state OVUAC under the act. Under the act, state OVI and state OVUAC prohibit a person from operating a vehicle, streetcar, or trackless trolley in specified circumstances. And under the act‘s definition of “operate,” a person must cause, or have caused, movement of the vehicle, streetcar, or trackless trolley on any public or private property used by the public for purposes of vehicular travel or parking. Thus, under the act, if a person does not cause, and has not caused, movement of a vehicle, streetcar, or trackless trolley in the specified manner, the person has not committed state OVI or state OVUAC. However, if the person is in the driver‘s position of a stationary vehicle, streetcar, or trackless trolley and possesses the ignition device, the person might have committed the new offense of having physical control of a vehicle while under the influence. (R.C. 4511.01(HHH) ,4511.19(A) and(B) , and4511.194 .)
Ohio Bill Analysis, 2002 S.B. 123. Thus, the legislative history of the new definition of the word “operate” was tied to the legislature‘s decision to create a separate offense for physical control.
Relocates the offense of “driving under OMVI suspension or revocation,” includes within the offense the prohibition against operating a vehicle while under a Vehicle Implied Consent Law or an
R.C. 4511.196 suspension, renames the offense as “driving under OVI suspension,” expands and modifies some of its elements, extends to six years the “look back” period used in determining the sentence for the offense, enacts a new sentencing structure for the offense, specifies that certain vehicle immobilization, impoundment, and forfeiture provisions apply only if the involved vehicle is registered in the offender‘s name, relocates the pretrial vehicle seizure and retention provisions applicable regarding the offense, and modifies the procedures to conform them to the act‘s vehicle immobilization, impoundment, and forfeiture provision changes.
Ohio Bill Analysis, 2002 S.B. 123. As for the offense itself, the act:
prohibits a person whose driver‘s or commercial driver‘s license or permit or nonresident operating privilege has been suspended subsequent to a conviction of state OVI or state OVUAC, under the Vehicle Implied Consent
Law * * *, under R.C. 4511.196 * * *, or for a violation of a municipal OVI ordinance * * * from operating any motor vehicle upon Ohio‘s highways or streets during the period of the suspension (R.C. 4510.14(A) ). The act does not include within this prohibition the former prohibition against a person operating a vehicle contrary to the terms of occupational driving privileges granted to the person, but it enacts a related prohibition inR.C. 4510.11 , as described below in “Driving under suspension other than under the Financial Responsibility Law, or in violation of a license restriction” (R.C. 4510.11 ).
(Selected internal references omitted.) Id.
{¶37} And so we are faced with two distinct sets of legislation within the bill. First, as it relates to OVI offenses, we have that portion of the act that creates a separate definition of “operate” designed to allow for the separate prosecution for driving while impaired and being in physical control of a vehicle while impaired. But also, in this same act, the General Assembly reorganized the offense of operating a motor vehicle with an OVI suspension and crafted the legislation so that the definition of “operate” found in
{¶38} Given this information, how do we divine the legislative intent? There are several rules of statutory construction that guide our inquiry. First, “[i]t is presumed that the General Assembly is fully aware of any prior judicial interpretation of an existing statute when enacting an amendment.” Clark v. Scarpelli, 91 Ohio St.3d 271, 278, 744 N.E.2d 719 (2001). Thus, while I cannot agree that
{¶40} And this leads us to the next point: the legislature enacted both
{¶41} Considering the rules of statutory construction, we have reached the following conclusions: the legislature knew about the judicially-created definition of operate, it decided to refine the definition to allow for the separate OVI prosecution of driving and having physical control, it moved and completely revised the driving with an OVI suspension offense, and it did not utilize the new definition of operate in that context.
{¶43} And contrary to the majority‘s assertion, the legislature does not consider operate and drive to be synonymous. For example, in the definitional section applicable to all of R.C. Title 45, the General Assembly defines “operator” as “any person who drives or operates a motor vehicle upon the public highways.”
{¶44} The majority also finds significant the analysis from the Ohio Supreme Court in Doe v. Marlington Local School Dist. Bd. of Edn., 122 Ohio St.3d 12, 2009-Ohio-1360, 907 N.E.2d 706. But that case is different on a fundamental level from the issues this court is addressing. In Doe, the parents of a child who was sexually molested on a school bus sued the school district claiming that the bus driver had been negligent for failing to properly monitor the children on the bus. The parents sought to establish that the district was not entitled to sovereign immunity because the bus driver had been negligent in his operation of
{¶45} In the context of our analysis, the Doe court stated the following:
Since Cleary, the General Assembly has amended
R.C. 4511.01 to add a definition of “operate.”Am.Sub.S.B. No. 123, 149 Ohio Laws, Part II, 2467, 2951 .R.C. 4511.01(HHH) provides that “operate” means “to cause or have caused movement of a vehicle, streetcar, or trackless trolley.” That statute was in effect at the time of the events that precipitated this case. Id. at 3216.Although the
R.C. 2744.02(B)(1) exception to immunity for the negligent operation of a motor vehicle predates the General Assembly‘s addition ofR.C. 4511.01(HHH) ‘s definition of “operate,” that definition nevertheless sheds light on the meaning of “operation” inR.C. 2744.02(B)(1) .R.C. 2744.01(E) expressly points toR.C. 4511.01 for the definition of “motor vehicle” in R.C. Chapter 2744. The definition of “operate” inR.C. 4511.01 is also useful in gleaning the meaning of “operation” inR.C. 2744.02(B)(1) . See, e.g., Meeks v. Papadopulos, 62 Ohio St.2d 187, 191-92, 404 N.E.2d 159 (1980) (“the General Assembly, in enacting a statute, is assumed to have been aware of other statutory provisions concerning the subject matter of the enactment even if they are found in separate sections of the Code“).In any event, the definition of “operate” in
R.C. 4511.01(HHH) is generally consistent with the interpretation courts have given to “operation” underR.C. 2744.02(B)(1) . For example, in Doe v. Jackson Local School Dist., 5th Dist. [Stark] No. 2006CA00212, 2007-Ohio-3258, ¶ 23, the court rejected a claim that the immunity exception for the negligent operation of a motor vehicle included the supervision of students who were passengers in a school minivan. The court noted that while pupil management may well be part of the driver‘s responsibility, it is a responsibility that is separate and distinct from that of the operation of the motor vehicle. Id. And in Doe v. Dayton City School Dist. Bd. of Edn., 137 Ohio App.3d 166, 738 N.E.2d 390 (2d Dist.1999), the court rejected an argument that the alleged negligent supervision of students on a school bus, which failed to prevent a sexual assault of a minor student, amounted to negligent operation of a motor vehicle. [Id. at 172.] The court reasoned that the student suffered harm as a result of an external factor, the conduct of another student, and that the harm was not directly traceable to the driver‘s operation of the bus, as required byR.C. 2744.02(B)(1) . Id.
{¶46} There are several distinctions between the analysis in Doe and this case. First, as the Doe court notes, the legislature specifically looked to the definitional section in
{¶47} But this logic does not hold true in the context of
After a night of partying, defendant-appellant Katherine Wilson and her friends were kicked out of the house early in the morning by parents who were less than pleased with the festivities. They stumbled across the street and decided to “sleep it off” in a car parked across from the house. Ms. Wilson made herself at home in the driver‘s seat * * *.
Three hours after the group was reported to the police, “Officer Hains identified the reported vehicle and approached, finding four individuals fast asleep inside the running car, with Ms. Wilson at the helm of the driver‘s seat.”
{¶48} Ms. Wilson, having been previously convicted of OVI, having previously been told not to operate a vehicle, decided to party with her friends and sleep it off in a running car. Ms. Wilson is the example of why the legislature would not want someone with an OVI suspension to be behind the wheel of a car with the means to drive it in her possession. Having made this series of poor decisions, the legislature had every right to cut her off
a broader term than driving. It includes not only a person being in control of a vehicle while it is in motion but also a person, whether conscious or unconscious, in the driver‘s location in the front seat of a stationary vehicle so as to be capable of doing any act or series of acts which could cause or contribute to the vehicle being put in motion. It is not necessary to prove that the defendant ever had the vehicle in motion or intended to put the vehicle in motion.
Ohio Jury Instructions, CR Section 710.12(A)(1)(a) (Rev. Nov. 20, 2004). And in the comment section to that instruction, the author notes “[t]he statutory definition of “operate” created by
{¶49} The legislature limited the application of
Please note:
The court has recorded its own entry on the date of the release of this opinion.