State v. Blount , 2019 Ohio 3498 ( 2019 )

[Cite as State v. Blount, 2019-Ohio-3498.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-180296
TRIAL NO. 18TRD-8475
Plaintiff-Appellee, :
vs. : O P I N I O N.
KEILOW BLOUNT, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: August 30, 2019
Paula Boggs Muething, City Solicitor, Natalia Harris, City Prosecutor, and Ashley
Melson, Assistant City Prosecutor for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Sarah E. Nelson,
Assistant Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} This appeal stems from plaintiff-appellant Keilow Blount’s conviction
following a bench trial for driving under OVI suspension in violation of R.C.
4510.14(A). He was sentenced to 180 days suspended, a one-year driving
suspension, and a $250 fine. In his sole assignment of error, Blount contends that
his conviction was contrary to the manifest weight of the evidence. Because we
determine that the trial court was correct in its finding of guilt, we affirm.
Factual Background and Procedural Posture
{¶2} On March 4, 2018, at approximately 4:45 a.m., Cincinnati Police
Officer Rocky Helton was dispatched to Rally’s on Spring Grove Avenue in Cincinnati
for the report of a person who was unconscious or asleep in a vehicle located in the
drive-through lane of the Rally’s parking lot. Upon his arrival, Helton observed
Keilow Blount asleep in the driver’s seat of a vehicle parked in front of the speaker in
the Rally’s drive-through lane. The engine was running, the headlights were on, and
the door was locked. No one else was in the vehicle. When emergency medical
technicians (“EMTs”) arrived on the scene, they began trying to wake Blount. The
driver’s side window was halfway down so one of the EMTs reached in and unlocked
the driver’s door. After some prodding by the EMT and Helton, Blount awoke.
Blount stated that he was just getting something to eat and then going home.
Through investigation, Helton learned that the vehicle was registered to Blount, and
that Blount’s driver’s license was OVI-suspended. Helton also observed that Rally’s
appeared to be closed, and that no one was around. At trial, Helton testified that the
Rally’s lot was private property.
2
OHIO FIRST DISTRICT COURT OF APPEALS
{¶3} Blount and his two friends, Charee Morris and Mark Adams, testified
at trial in Blount’s defense. They testified that on the morning in question, they had
been spending time together at Blount’s house when they decided to go to Rally’s.
Morris was the only one of the three with a valid driver’s license, so she drove them
in Blount’s car. Neither Morris nor Adams recalled what time they went to Rally’s.
Blount testified it was around 1:00 a.m. or 1:30 a.m. On the way to Rally’s, Morris
and Adams began fighting. Once they were stopped in the drive-through lane,
Morris put the vehicle in park, and she and Adams got out and continued to fight,
walking away from Rally’s. Morris said that they had walked off under an underpass,
while Adams said that they had walked down the street. Neither Morris nor Adams
recalled where in the drive-through lane they had left the vehicle. Morris testified
that she and Adams had been gone for a while and were coming back when she saw
Blount with the police, and that Blount’s vehicle had still been where she left it.
Rather than go to Blount to assist him or explain the situation, Morris and Adams
instead decided to go home. Morris testified that she does not trust the police and
did not want to approach them. Morris and Adams testified differently as to how
they had gotten home. Morris was adamant that they both had walked to the BP gas
station and called a ride together, while Adams said he had taken a bus home alone.
{¶4} Blount denied ever moving the vehicle. He testified that he had moved
from the passenger seat to the driver’s seat after Morris and Adams disappeared in
order to raise the window and lock the doors, as it was a rough part of town.
However, Helton’s testimony and his body-camera video revealed that the driver’s
side window was half way down. Blount testified that the vehicle had already been in
park and running. While he waited for Morris and Adams to return, he called a few
3
OHIO FIRST DISTRICT COURT OF APPEALS
people to come pick him up without success and then fell asleep. Blount testified
that he had not tried to call Morris and Adams. Blount stipulated that his driver’s
license had been OVI-suspended.
{¶5} At trial, Blount’s counsel moved for dismissal under Crim.R. 29 at the
conclusion of the state’s case and again at the conclusion of the trial based on the
lack of evidence that defendant was operating the vehicle, arguing that there was no
testimony that he had operated a vehicle upon a public road or highway. The trial
court overruled the motions, ultimately finding the defense witnesses lacked
credibility because there were major discrepancies in each of their versions of the
events. Specifically, the court noted that Blount’s statement to Helton that he was
getting food and then going home did not dispel the circumstantial evidence that he
had operated the vehicle. The court found the circumstantial evidence more
compelling—Blount was the registered owner of the vehicle, he was in the driver’s
seat with the key in the ignition and the engine running while parked in the drive-
through lane of Rally’s, and he said, “I’m getting food and going home.” Blount
never mentioned Morris or Adams or that he was stranded and waiting for a driver
or a ride when he was talking to Helton. The court, upon pronouncing judgment
stated, “I am firmly convinced that the defendant was driving the vehicle upon a
public highway to get to the Rally’s and that he was under suspension for OVI.”
Law and Analysis
{¶6} Blount’s sole assignment of error is that his conviction for driving
under OVI suspension is contrary to the manifest weight of the evidence because the
evidence did not demonstrate that he had moved the vehicle prior to it being parked
4
OHIO FIRST DISTRICT COURT OF APPEALS
in the private lot. To reverse a conviction on manifest weight of the evidence, this
court must review the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of the witnesses, and determine whether, in
resolving the conflicts in the evidence, the trier of fact clearly lost its way and created
a manifest miscarriage of justice in finding the defendant guilty. State v. Thompkins,
78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997). When a court of appeals
reverses a judgment of a trial court on the basis that the verdict is against the weight
of the evidence, the appellate court sits as a “thirteenth juror” and disagrees with the
factfinder’s resolution of the conflicting testimony. Tibbs v. Florida, 457 U.S. 31, 42,
102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).
{¶7} The evidence in the record is that the Rally’s lot was private property.
Blount was convicted for driving under OVI suspension, in violation of R.C.
4510.14(A) which provides, “No person whose driver’s license * * * has been
suspended under section 4511.19, 4511.191, or 4511.196 of the Revised Code * * * shall
operate any motor vehicle upon the public roads or highways within this state during
the period of the suspension.” The definition of public roads and highways, “for
vehicles includes all public thoroughfares, bridges, and culverts.” R.C. 4501.01(AA).
Thus, as found by the trial court, the issue is whether Blount operated the vehicle on
the public roads or highways before arriving in the Rally’s drive-through.
{¶8} As an initial matter, the state refers in its brief to the statutory
definition of operate under R.C. 4511.01(HHH),1 but there is also a judicial definition
1 R.C. 4511.01(HHH) defines “operate” as “means to cause or have caused movement of a vehicle,
streetcar, or trackless trolley.”
5
OHIO FIRST DISTRICT COURT OF APPEALS
of operate2 that may apply to driving-under-suspended-license cases. The preamble
to R.C. 4511.01 states, “As used in this chapter and in Chapter 4513 of the Revised
Code.” Because Blount’s charge is driving under OVI suspension, located in R.C.
Chapter 4510, the R.C. 4511.01(HHH) definition of operate may not apply. See, e.g.,
State v. Anderson, 1st Dist. Hamilton No. C-160920, 2017-Ohio-8641, ¶ 22 (“In
[State v.] Cochran, [2d Dist. Montgomery No. 22240, 2008-Ohio-3612,] the Second
Appellate District stated it was not bound by the definition of operate in R.C.
4511.01(HHH) because the defendant had not been convicted of an offense under
R.C. Chapter 4511.”) Nevertheless, for the purposes of Blount’s case, we do not need
to resolve which definition of operate applies, because under either definition the
state presented circumstantial evidence that Blount had operated the vehicle on the
public roads or highways before arriving in the private driveway.
{¶9} Blount argues that while circumstantial evidence is given the same
weight as direct evidence, any circumstantial evidence of operation was outweighed
by the testimony of the defense witnesses in this case. However, the trial court found
that the defense witnesses lacked credibility because of discrepancies in their varying
accounts of events, and we do not find it clearly lost its way in doing so. Because the
trier of fact is in a better position to observe the witnesses’ demeanor and to weigh
their credibility, the weight of the evidence and the credibility of the witnesses are
2 The term “operate” is a broader term than driving. It includes not only a person being in control
of a vehicle while 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 person in the driver’s location of a stationary vehicle ever had the vehicle in motion
or intended to put the vehicle in motion. Ohio Jury Instructions CR Section 710.11(A) (Rev. Jan.
23, 2010); State v. Gill, 70 Ohio St.3d 150, 152, 153, 637 N.E.2d 897 (1994); State v. McGlone, 59
Ohio St.3d 122, 123, 124, 570 N.E.2d 1115 (1991); State v. Cleary, 22 Ohio St.3d 198, 490 N.E.2d
574 (1986), syllabus.
6
OHIO FIRST DISTRICT COURT OF APPEALS
primarily for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212(1967), paragraph one of the syllabus.
{¶10} The trial court relied on circumstantial evidence and Blount’s
statements to Helton when it found Blount had, while his license was suspended for
OVI, operated his vehicle on the public roads and highways to get to the Rally’s
drive-through. And in this case, the circumstantial evidence was overwhelming.
Blount was alone in the driver’s seat of a vehicle registered to him, with the key in the
ignition, the engine running, and the headlights on, in the drive-through lane and
sound asleep. The only statement Blount made to the responding officer that night
was that he was getting food and going home. No one else was in the area. He did
not mention that someone else had driven him there and abandoned him. See
Cochran, 2d Dist. Montgomery No. 22240, 2008-Ohio-3612, at ¶ 25, citing State v.
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph one of the syllabus
(“Those facts are circumstantial evidence that the accused operated the vehicle to
bring it to the place where it was found, and circumstantial and direct evidence
inherently possess the same probative value.”) It is well established that the state
does not have to present direct evidence of a crime in order to sustain a conviction.
State v. Williams, 2016-Ohio-5827, 71 N.E.3d 592 ¶ 67 (1st Dist.), citing Jenks, at
paragraph one of the syllabus.
{¶11} Under these facts, the trial court, as the trier of fact, did not clearly
lose its way and create a manifest miscarriage of justice in finding Blount guilty of
driving under OVI suspension. For the foregoing reasons, Blount’s sole assignment
of error is overruled and the judgment of the trial court is affirmed.
Judgment affirmed.
7
OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, P.J., and WINKLER, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
8