State v. Harris , 92 N.E.3d 1283 ( 2017 )

[Cite as State v. Harris, 2017-Ohio-5594.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO : APPEAL NOS. C-160279
C-160280
Plaintiff-Appellee, : C-160281
TRIAL NOS. C-15TRC-31149A
vs. : C-15TRC-31149C
C-15TRC-31149D
MASON ANGILO HARRIS, JR., :
Defendant-Appellant. : O P I N I O N.
Criminal Appeals From: Hamilton County Municipal Court
Judgments Appealed From Are: Affirmed in C-160279; Appeals Dismissed in
C-160280 and C-160281
Date of Judgment Entry on Appeal: June 30, 2017
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Carrie Wood, Assistant
Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
C UNNINGHAM , Presiding Judge.
{¶1} Defendant-appellant Mason Angilo Harris, Jr., appeals from the trial
court’s denial of his post-verdict motion for judgment of acquittal. In these
consolidated appeals, he claims that following a jury trial, the jury returned
inconsistent verdicts on two offenses of operating a vehicle under the influence of
alcohol (“OVI”) pursuant to R.C. 4511.19(A), and that the state failed to present
evidence to establish that Harris had had a prior OVI conviction within 20 years—an
element of one of the two OVI offenses. Because the two OVI charges were decided
independently and separately, and one conviction was not dependent upon a finding
of guilt on the other charge, and because Harris had entered into a stipulation as to
his prior OVI conviction, we affirm the trial court’s judgment in the appeal numbered
C-160279. Because Harris abandoned his two other appeals, we dismiss them.
I. The Traffic Stop and Jury Trial
{¶2} Officer Thomas Shreve, a Montgomery, Ohio police officer, observed a
motor vehicle operated by Harris in the left-turn-only lane at the interchange of
Ronald Reagan Highway and Interstate 71 northbound. Instead of turning left,
however, Harris’ vehicle proceeded straight through the interchange and turned onto
the southbound Interstate 71 ramp. Officer Shreve stopped the vehicle.
{¶3} Officer Shreve approached the vehicle and detected the odor of alcohol
coming from inside the vehicle. Harris told the officer that his driver’s license was
suspended and that he and his passenger had just left a local tavern where Harris
had consumed two beers. Officer Shreve had Harris step from the vehicle. He
smelled alcohol on Harris’ person and observed that his eyes were bloodshot. When
the officer asked Harris to submit to a field sobriety test, Harris declined. Harris
explained, “I’ve been there before. You can see it on my jacket that I’ve been there on
the DUI’s [sic] and all that. I understand how it goes.” Officer Shreve then placed
2
OHIO FIRST DISTRICT COURT OF APPEALS
Harris under arrest for operating his vehicle under the influence of alcohol. At the
police station, Harris also refused to submit to a breathalyzer test of his blood alcohol
level.
{¶4} Officer Shreve issued a uniform traffic ticket charging Harris with four
offenses: driving under a suspended license, disobeying a traffic control device, and
two OVI charges. Because Harris had operated a motor vehicle under the influence
of alcohol, had had a prior OVI conviction in 2015, and had refused to submit to a
chemical test of his blood alcohol level, he was charged, in the case numbered C-
15TRC-31149A, with operating a motor vehicle under the influence of alcohol, in
violation of R.C. 4511.19(A)(2). In the case numbered C-15TRC-31149B, Harris was
charged with operating a motor vehicle under the influence of alcohol in violation of
R.C. 4511.19(A)(1)(a).
{¶5} Harris entered pleas of not guilty to the two OVI offenses and the cases
proceeded to a jury trial in Hamilton County Municipal Court. At the beginning of
the trial, the state offered a certified copy of Harris’ prior OVI conviction and Harris
did not contest its use. Officer Shreve testified about the traffic stop and Harris’
refusal to submit to the breathalyzer test. Without objection, the trial court
instructed the jury that:
The defendant is charged with two separate and distinct
offenses. You must consider each offense and the evidence applicable
to each offense separately and you must state your verdict as to each
* * * offense uninfluenced by your verdict as to each of the other
offenses. The defendant may be found guilty or not guilty of any one
or all two of the offenses charged.
{¶6} When the jury retired to consider its verdicts it was given the certified
copy of Harris’ prior OVI conviction.
3
OHIO FIRST DISTRICT COURT OF APPEALS
{¶7} During its deliberations, the jury panel informed the court that they
were unsure if they were required to consider one of the charges only if they had first
found Harris guilty of the other charge. The trial court told the jury, “Well, there are
two separate offenses, and I would just tell you to look at the jury instructions and
it’s – consider the offenses separately.”
{¶8} The jury continued its deliberations and found Harris not guilty of R.C.
4511.19(A)(1)(a), and guilty of R.C. 4511.19(A)(2). The trial court thanked the jurors for
their service and excused them.
{¶9} Harris immediately made an oral Crim.R. 29(C) motion for a judgment
of acquittal on grounds that the verdicts were inconsistent. He maintained that if the
jury had acquitted him of operating a vehicle under the influence of alcohol under
R.C. 4511.19(A)(1)(a), “it was not possible that he could [commit the] operate a
vehicle under the influence and refuse [offense]” as the jury had found. He
concluded that, “Operating a motor vehicle under the influence is a part of the other
charge, judge.” The trial court denied the oral motion on the grounds that, as it had
instructed the jury, the charges were separate and independent offenses.
{¶10} Within the 14-day time period provided, Harris filed a motion for a
new trial pursuant to Crim.R. 33(A)(4) and renewed his motion for judgment of
acquittal pursuant to Crim.R. 29(C). Each motion raised only the single issue of the
sufficiency of the evidence to support the inconsistent verdicts. These motions were
denied and Harris brought these appeals. 1
II. Inconsistent Verdicts
{¶11} In his first assignment of error, Harris contends that the trial court
erred in denying his Crim.R. 29(C) post-verdict motion for judgment of acquittal on
the grounds that the jury’s verdicts were inconsistent. The gravamen of Harris’
argument is that the jury’s verdict acquitting him of driving under the influence
1 Harris has not assigned the trial court’s denial of his Crim.R. 33(A)(4) motion as error on appeal.
4
OHIO FIRST DISTRICT COURT OF APPEALS
under R.C 4511.19(A)(1)(a) negated an essential element of R.C. 4511.19(A)(2) and
necessitated an acquittal on that charge as well.
a. Crim.R. 29(C) motion
{¶12} A Crim.R. 29 motion challenges whether the state has presented
evidence upon which a jury could have found the defendant guilty. See Dayton v.
Rodgers, 60 Ohio St. 2d 162, 163, 398 N.E.2d 781 (1979), overruled on other
grounds, State v. Lazzaro, 76 Ohio St. 3d 261, 667 N.E.2d 384 (1996).
{¶13} Crim.R. 29(C) provides, in pertinent part, that:
If a jury returns a verdict of guilty or is discharged without
having returned a verdict, a motion for judgment of acquittal may be
made or renewed within fourteen days after the jury is discharged or
within such further time as the court may fix during the fourteen day
period. If a verdict of guilty is returned, the court may on such motion
set aside the verdict and enter judgment of acquittal. * * * It shall not
be a prerequisite to the making of such motion that a similar motion
has been made prior to the submission of the case to the jury.
{¶14} Thus a Crim.R. 29(C) motion is not merely a delayed motion for
judgment of acquittal. It can be used, as here, to challenge defects in the sufficiency
of the evidence that only become apparent after the jury returns its verdicts. E.g.,
State v. Glenn, 1st Dist. Hamilton No. C-090205, 2011-Ohio-829, ¶ 68.
{¶15} We note as an initial matter that Harris urges this court to review this
assignment of error under a plain-error standard as if he had forfeited his challenge
to the inconsistent verdicts. See State v. Rogers, 143 Ohio St. 3d 385, 2015-Ohio-
2459, 38 N.E.3d 860, ¶ 21. But Harris has preserved the inconsistent-verdicts issue
for review. A defendant does not forfeit issues that he has raised with specificity in a
timely Crim.R. 29(C) motion. Here, Harris raised the inconsistent-verdicts issue,
5
OHIO FIRST DISTRICT COURT OF APPEALS
and only that issue, in both his oral and his written post-verdict motions for
judgment of acquittal. His oral and written motions drew the trial court’s attention
to the alleged error at a time when the error could have been corrected or avoided.
And he has assigned the denial of his post-verdict motion as error on appeal. Thus
Harris has preserved the inconsistent-verdicts issue for appellate review. See State
v. Morgan, 181 Ohio App. 3d 747, 2009-Ohio-1370, 910 N.E.2d 1075, ¶ 14 (1st Dist.);
see also State v. Quarterman, 140 Ohio St. 3d 464, 2014-Ohio-4034, 19 N.E.3d 900,
¶ 15.
{¶16} The standard for reviewing a post-verdict motion for judgment of
acquittal made pursuant to Crim.R. 29(C) is identical to the standard for reviewing a
motion for an acquittal made during a trial pursuant to Crim.R. 29(A). See State v.
Metcalf, 1st Dist. Hamilton No. C-950190, 1996 WL 411620, *1 (July 24, 1996); see
also State v. Misch, 101 Ohio App. 3d 640, 650, 656 N.E.2d 381 (6th Dist.1995). On
review of a Crim.R. 29(C) post-verdict motion for judgment of acquittal, a court must
view the evidence in a light most favorable to the state to determine if reasonable
minds could differ as to whether each material element of the crime has been proven
beyond a reasonable doubt. See State v. Callins, 1st Dist. Hamilton No. C-930428,
1994 WL 376752, *1 (July 20, 1994), citing State v. Bridgeman, 55 Ohio St. 2d 261,
381 N.E.2d 184 (1978), syllabus; but see State v. Wright, 1st Dist. Hamilton. No. C-
080437, 2009-Ohio-5474, ¶ 26 (applying the standard used to review a sufficiency-
of-the-evidence claim).
b. Inconsistent responses to different counts
{¶17} Harris maintains that because the jury acquitted him of driving under
the influence of alcohol under the R.C. 4511.19(A)(1)(a) charge, there was insufficient
evidence to convict him of R.C. 4511.19(A)(2). Harris maintains that he had been
charged with a single offense, driving under the influence of alcohol, and that
additional proof that he had refused a breathalyzer test and had had a prior OVI
6
OHIO FIRST DISTRICT COURT OF APPEALS
conviction were merely facts that supported a sentencing enhancement if he had
been convicted of driving under the influence in the first instance. We disagree.
{¶18} There are four types of OVI offenses described in R.C. 4511.19(A).
Each constitutes a separate offense. Operation of a motor vehicle under the
influence of alcohol or drugs, as proscribed in R.C. 4511.19(A)(1)(a), is the basic OVI
offense. The jury found Harris not guilty of this offense.
{¶19} A conviction under R.C. 4511.19(A)(2) also requires proof beyond a
reasonable doubt that the defendant operated a motor vehicle while under the
influence of alcohol or drugs. But this offense is distinguished from a violation under
R.C. 4511.19(A)(1)(a) because the state must also prove that the defendant refused to
submit to a chemical test while under arrest for the current OVI violation and that he
had a prior OVI conviction within 20 years of the current violation. See State v.
Hoover, 123 Ohio St. 3d 418, 2009-Ohio-4993, 916 N.E.2d 1056, ¶ 21. While the
refusal to take a chemical test is not itself an offense, refusal is an element of this
offense. Id. The prior OVI conviction is also an element of this offense. Id. It is not
proved merely to enhance the available sentence, as in other OVI offenses. See
Weiler & Weiler, Ohio Driving Under the Influence Law, Section 1:31 (2016); see
also State v. Leasure, 2015-Ohio-5327, 43 N.E.3d 477, ¶ 19 (4th Dist.). The jury
found Harris guilty of this offense.
{¶20} It is well settled that seeming inconsistency between verdicts on two
different charges is not a basis for reversal. See State v. Everett, 1st Dist. Hamilton
No. C-140275, 2015-Ohio-5273, ¶ 18; see also State v. Gapen, 104 Ohio St. 3d 358,
2004-Ohio-6548, 819 N.E.2d 1047, ¶ 138. “A verdict responding to a designated
count will be construed in the light of the count designated, and no other.”
Browning v. State, 120 Ohio St. 62, 165 N.E. 566 (1929), paragraph four of the
syllabus. Thus the “several counts of an indictment containing more than one count
are not interdependent and an inconsistency in a verdict does not arise out of
7
OHIO FIRST DISTRICT COURT OF APPEALS
inconsistent responses to different counts, but only arises out of inconsistent
responses to the same count.” State v. Lovejoy, 79 Ohio St. 3d 440, 683 N.E.2d 1112
(1997), syllabus; see Glenn, 1st Dist. Hamilton No. C-090205, 2011-Ohio-829, at ¶
69.
{¶21} These criminal proceedings against Harris were initiated not by
indictment but by the filing of uniform traffic tickets by Officer Shreve. Each charge
was the subject of a separate traffic citation. But the two operating-under-the-
influence charges were tried together to the same jury much as the separate counts of
an indictment would be. This is not a meaningful difference for the purposes of our
analysis. E.g., State v. Large, 5th Dist. Stark No. 2006CA00359, 2007-Ohio-4685
(employing inconsistent-verdicts analysis to OVI offenses begun by traffic citation).
{¶22} Applying Lovejoy, the Fifth Appellate District has twice held that there
were no reversible inconsistencies in jury verdicts that found defendants not guilty
under R.C. 4511.19(A)(1)(a) yet guilty under R.C. 4511.19(A)(2)—the identical
verdicts returned by Harris’ jury. See State v. Muetzel, 5th Dist. Ashland No. 12-
COA-008, 2013-Ohio-1328, ¶ 18; see also Large at ¶ 22. We find their reasoning to
be in agreement with our analysis of inconsistent verdicts and hold that, in this case,
the trial court did not err in allowing the allegedly inconsistent guilty verdict to
stand. The evidence supported the conviction under R.C. 4511.19(A)(2), the court
instructed the jury that the two operating-under-the-influence charges were to be
decided independently and separately, and the R.C. 4511.19(A)(2) conviction was not
dependent upon a finding of guilt on the other charge. See Glenn, 1st Dist. Hamilton
No. C-090205, 2011-Ohio-829, at ¶ 71; see also Lovejoy at syllabus.
{¶23} A jury’s verdicts need not deliver rationally consistent results in order
for the verdicts to be upheld. See State v. Adams, 53 Ohio St. 2d 223, 374 N.E.2d 137
(1978), vacated in part on other grounds, 439 U.S. 811, 99 S. Ct. 69, 58 L. Ed. 2d 103
(1978). “ ‘[T]his deference to the jury brings to the criminal process, in addition to
8
OHIO FIRST DISTRICT COURT OF APPEALS
the collective judgment of the community, an element of needed finality.’ ” Lovejoy,
79 Ohio St. 3d at 445, 683 N.E.2d 1112, quoting United States v. Powell, 469 U.S. 57,
66-67, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984). As the United States Supreme Court has
noted, “ ‘[t]he most that can be said in such a case is that the verdict shows that
either in the acquittal or the conviction the jury did not speak their real conclusions,
but that does not show that they were not convinced of the defendant’s guilt.’ ” Dunn
v. United States, 284 U.S. 390, 393, 52 S. Ct. 189, 76 L. Ed. 356 (1932), quoting
Steckler v. United States, 7 F.2d 59, 60 (2d Cir.1925).
{¶24} Since reasonable minds could differ as to whether each material
element of the crime charged has been proven beyond a reasonable doubt, the trial
court properly denied Harris’ Crim.R. 29(C) motion challenging the inconsistent
verdicts. See Bridgeman, 55 Ohio St. 2d 261, 381 N.E.2d 184, at syllabus.
III. Verdict-Form and Jury-Instruction Errors
{¶25} Harris next claims, still under his first assignment of error directed at
the denial of his Crim.R. 29(C) motion, that the trial court gave erroneous
instructions and submitted a deficient verdict form to the jury on the R.C.
4511.19(A)(2) charge. We note that these alleged errors were not brought to the trial
court’s attention before the jury retired to consider its verdicts. See Crim.R. 30(A).
They were not specified in Harris’ oral or written post-verdict motions. Nor are they
separately challenged in these appeals. But Harris now urges us to review them as
errors affecting the trial court’s denial of his Crim.R. 29(C) motion. We disagree.
{¶26} Crim.R. 29 provides that a trial court “shall order the entry of a
judgment of acquittal * * * if the evidence is insufficient to sustain a conviction of
such offense or offenses.” Thus the sole purpose of a Crim.R. 29 motion is to test the
sufficiency of the evidence and, when that evidence is insufficient, to take the case
from the jury. See Rodgers, 60 Ohio St. 2d at 163, 398 N.E.2d 781; see also State v.
Hampton, 134 Ohio St. 3d 447, 2012-Ohio-5688, 983 N.E.2d 324, ¶ 22-23; 2A
9
OHIO FIRST DISTRICT COURT OF APPEALS
Wright, Federal Practice and Procedure: Criminal, Section 466 (4th Ed.2016)
(construing identical language in Fed.R.Crim.P. 29).
{¶27} The errors advanced by Harris questioning the jury instructions or
verdict form challenge trial errors allegedly committed by the trial court after the
state had rested its case. The errors do not challenge the sufficiency of the evidence
adduced by the state. Thus a Crim.R. 29 motion is not the proper vehicle for raising
them. See State v. Porter, 9th Dist. Summit No. 15511, 1992 WL 308528, *2 (Oct. 21,
1992); see also United States v. Crowe, 563 F.3d 969 (9th Cir.2009), fn. 5 (holding
that a motion for judgment of acquittal is not the proper vehicle for challenging jury
instructions); United States v. Chujoy, 207 F. Supp. 3d 626 (W.D.Va.2016); United
States v. Williams, 218 F. Supp. 3d 730 (N.D.Ill.2016).
{¶28} Ordinarily if a trial court has given a prejudicial jury instruction or
verdict form, the appropriate remedy is the granting of a new trial. E.g., State v.
Duncan, 154 Ohio App. 3d 254, 2003-Ohio-4695, 796 N.E.2d 1006 (1st Dist.). But
because a conviction based on legally insufficient evidence constitutes a denial of due
process, retrial is barred if a motion for judgment of acquittal is granted. See State v.
Thompkins, 78 Ohio St. 3d 380, 386-387, 678 N.E.2d 541 (1997). Thus even if this
court agreed that the instructions or verdict form were defective, we lack the
authority to grant the appropriate relief under Crim.R. 29(C).
{¶29} Harris has not demonstrated how the jury instructions or verdict form
affected the sufficiency of the state’s evidence. Since the alleged errors had no
impact on the sufficiency of the state’s evidence, we overrule the remainder of Harris’
first assignment of error. See Rodgers, 60 Ohio St. 2d at 163, 398 N.E.2d 781; see
also Bridgeman, 55 Ohio St. 2d 261, 381 N.E.2d 184, at syllabus.
IV. Harris’ Prior OVI Conviction
{¶30} In his second assignment of error, Harris again argues that the trial
court erred in denying his Crim.R. 29(C) post-verdict motion for judgment of
10
OHIO FIRST DISTRICT COURT OF APPEALS
acquittal. In this instance, he maintains that the state failed to present “any”
evidence to establish that Harris had had a prior OVI conviction within 20 years—an
element of the offense of driving under the influence of alcohol as charged under R.C.
4511.19(A)(2).
{¶31} This argument is properly directed at the sufficiency of the state’s
proof at trial and is thus cognizable under Crim.R. 29(C). But the alleged error was
not the subject of Harris’ Crim.R. 29(C) post-verdict motion for judgment of
acquittal. Harris challenged only the inconsistent verdicts in that motion.
{¶32} If a defendant sets forth specific grounds in his motion for judgment of
acquittal, he forfeits review of all grounds not specified. See State v. Cayson, 8th
Dist. Cuyahoga No. 72712, 1998 WL 241949, *2 (May 14, 1998), citing United States
v. Dandy, 998 F.2d 1344, 1356-1357 (6th Cir.1993) (holding that “[a]lthough
specificity of grounds is not required in a Rule 29 motion, * * * all grounds not
specified are waived”); see also State v. Swanner, 4th Dist. Scioto No. 00CA2732,
2001 WL 548719 (May 18, 2001); State v. Payne, 8th Dist. Cuyahoga No. 92976,
2010-Ohio-2459, ¶ 15; State v. Pruiett, 9th Dist. Summit No. 21889, 2004-Ohio-
4321, ¶ 26.
{¶33} Because Harris set forth a specific ground as the basis of his Crim.R.
29(C) motion—inconsistent verdicts—but did not include the prior-OVI-conviction
argument, he has forfeited all but plain error on that issue. Thus we will not sustain
the assignment of error unless the trial court’s denial of the motion on that basis was
so extreme that it affected the outcome of the trial and must be corrected to prevent a
manifest miscarriage of justice. See Rogers, 143 Ohio St. 3d 385, 2015-Ohio-2459, 38
N.E.3d 860, at ¶ 22-23.
{¶34} Harris argues that while the state moved a certified copy of a judgment
entry from Clermont County, dated February 13, 2015, convicting “Mason Angilo
Harris, Jr.” of an OVI offense into evidence as an exhibit, it nonetheless failed to
11
OHIO FIRST DISTRICT COURT OF APPEALS
present evidence sufficient to identify the person named in that entry as Harris—the
offender in this case. See R.C. 2945.75(B)(1). Harris does not claim that the
Clermont County document is not a judgment entry as defined in Crim.R. 32(C).
Rather he maintains that the state did not have “any witness testify about that entry
or identify [Harris] as the same Mason Angilo Harris, Jr.” convicted in Clermont
County.
{¶35} But Harris’ argument is disingenuous at best in light of his in-court
stipulation to the prior conviction and his other actions at trial. The method of
proving a prior conviction set forth in R.C. 2945.75(B)(1) is not the only means
available to the state to carry its burden of proof. See State v. Gwen, 134 Ohio St. 3d
284, 2012-Ohi0-5046, 982 N.E.2d 626, paragraph one of the syllabus. An offender’s
stipulation that he has the prior conviction satisfies the state’s obligation of proof.
See id. at ¶ 14; see also State v. Waheed, 1st Dist. Hamilton No. C-150254, 2016-
Ohio-2951, ¶ 6.
{¶36} Here, immediately before the opening statements and outside the
presence of the jury, Harris’ defense counsel, the assistant prosecuting attorney, and
the trial court discussed the admission into evidence of Harris’ prior OVI conviction
as reflected by the Clermont County judgment entry.
THE COURT: Are there any stipulations about that prior or are
we good: how is this going to work?
ASSISTANT PROSECUTING ATTORNEY: We’re going to
enter the records.
THE COURT: Okay. Is there going to be a stipulation as to
that? I’m just asking.
12
OHIO FIRST DISTRICT COURT OF APPEALS
DEFENSE COUNSEL: I would love to. I think [the assistant
prosecuting attorney] wants to -- she actually wants to put it in the
record.
THE COURT: Oh, okay. I’m just checking.
ASSISTANT PROSECUTING ATTORNEY: My understanding
is there won’t be an objection to the record.
THE COURT: I’m just checking.
{¶37} Harris and his counsel remained silent and did not challenge the
stipulation. The jury was then brought into the courtroom and the trial began with
opening statements. Agreements, waivers, and stipulations made by a defendant, or
by his counsel in his presence, in open court are binding and enforceable. See State
v. Post, 32 Ohio St. 3d 380, 393, 513 N.E.2d 754 (1987), citing State v. Robbins, 176
Ohio St. 362, 199 N.E.2d 742 (1964).
{¶38} Moreover, Harris’ other actions in the trial court confirm that he
understood that he had stipulated to the prior OVI conviction. We note that the
uniform traffic ticket that Officer Shreve executed to begin this prosecution named
the offender as “Mason Angilo Harris, Jr.” The state had notified the prospective
jurors, at voir dire, that “you will hear evidence that the defendant was convicted of
an OVI on February 13th, 2015.” Harris did not contest this statement.
{¶39} Moments after the stipulation discussion, the state informed the jury,
in its opening statement, that “[i]n this case you will hear evidence that the
defendant * * * had a prior OVI conviction on February 13th of 2015.” Harris did not
object, seek a curative instruction, or move for a mistrial. Harris’ defense counsel
then informed the jury, in his opening statement, that “Mr. Harris has had a DUI in
the past.”
{¶40} Based upon the foregoing exchanges, we hold that Harris had entered
into a stipulation as to the authenticity and admissibility of the certified copy of the
13
OHIO FIRST DISTRICT COURT OF APPEALS
February 13, 2015 Clermont County judgment entry as proof of his prior OVI
conviction. See Waheed, 1st Dist. Hamilton No. C-150254, 2016-Ohio-2951, at ¶ 10.
In light of that stipulation and Harris’ acknowledgement of the prior OVI conviction
in open court, reasonable minds could have reached different conclusions as to
whether the prior-conviction element of the charged crime had been proved beyond
a reasonable doubt. See R.C. 4511.19(A)(2). Thus the trial court did not err, much
less commit plain error, in failing to grant Harris’ Crim.R. 29(C) motion for
judgment of acquittal. See Bridgeman, 55 Ohio St. 2d 261, 381 N.E.2d 184, at
syllabus.
{¶41} The second assignment of error is overruled.
V. Harris Abandons Other Appeals
{¶42} Harris has sought appellate review of two additional judgments
entered against him in the trial court, for driving with a suspended license, and for
disobeying a traffic control device, as charged in the cases numbered C-15TRC-
31149C and C-15TRC-31149D. But Harris has failed to raise any assignments of error
challenging those judgments. Therefore we must dismiss those appeals.
{¶43} On direct appeal, this court is limited to determining the merits of any
appeal “on the assignments of error set forth in the briefs.” App.R. 12(A)(1)(b). Thus
to receive consideration on appeal, trial court errors must be raised by assignment of
error and must be argued and supported by legal authority and citation to the record.
See App.R. 16(A); see also State v. Perez, 1st Dist. Hamilton Nos. C-040363, C-
040364 and C-040365, 2005-Ohio-1326, ¶ 21-23. Since Harris has failed to take
these actions with respect to these judgments, we dismiss the appeals numbered C-
160280 and C-160281. See Perez at ¶ 24.
14
OHIO FIRST DISTRICT COURT OF APPEALS
VI. Conclusion
{¶44} Accordingly, having overruled both of Harris’ assignments of error, we
affirm the trial court’s judgment in the appeal numbered C-160279. Because Harris
has abandoned his other appeals, we dismiss the appeals numbered C-160280 and
C-160281.
Judgment accordingly.
MYERS and Deters, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
15