State v. Neumann-Boles , 2011 Ohio 6684 ( 2011 )

[Cite as State v. Neumann-Boles, 2011-Ohio-6684.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 10CA0013-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
RANDY A. NEUMANN-BOLES COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellant CASE No. 09-CR-0069
DECISION AND JOURNAL ENTRY
Dated: December 27, 2011
BELFANCE, Presiding Judge.
{¶1} Defendant-Appellant Randy Neumann-Boles appeals from her conviction in the
Medina County Court of Common Pleas. For the reasons set forth below, we reverse and
remand for further proceedings consistent with this opinion.
I.
{¶2} On September 16, 2008, Ms. Neumann-Boles was driving under the influence of
alcohol in violation of R.C. 4511.19(A)(1)(a) when she caused the vehicle she was driving to
swerve from the eastbound lane of State Route 18 and collide with a vehicle being driven in the
westbound lane. Both Ms. Neumann-Boles and the other driver were seriously injured in the
collision.
{¶3} As a result of the collision, Ms. Neumann-Boles was charged with one count of
aggravated vehicular assault in violation of R.C. 2903.08(A)(1)(a), and one count of aggravated
vehicular assault in violation of R.C. 2903.08(A)(2)(b). Pursuant to the enhancement provisions
2
of R.C. 2903.08(B)(1)(a) and R.C. 2903.08(C)(2) respectively, the violation of R.C.
2903.08(A)(1)(a) was charged as a second-degree felony and the violation of R.C.
2903.08(A)(2)(b) was charged as a third-degree felony. The indictment for both counts alleged
that at the time of the offense, Ms. Neumann-Boles was “under a driving suspension imposed
under Chapter 4510 or any other provision of the Ohio Revised Code, or any substantial[ly]
equivalent current or former law of another state[.]” See R.C. 2903.08(B)(1)(a), (C)(2), (G).
The matter proceeded to a bench trial and the trial court found Ms. Neumann-Boles guilty of
both counts. The trial court concluded the offenses were allied, and the State elected to have Ms.
Neumann-Boles sentenced for the violation of R.C. 2903.08(A)(1)(a) as a second-degree felony.
The trial court sentenced Ms. Neumann-Boles to seven years in prison. Ms. Neumann-Boles has
appealed, raising three assignments of error for our review.
II.
ASSIGNMENT OF ERROR I
“BECAUSE APPELLANT’S OPEN-ENDED, EXPIRED LICENSE
REVOCATION IN ILLINOIS WAS NOT SUBSTANTIALLY EQUIVALENT
TO A CURRENT LICENSE SUSPENSION IN OHIO, THERE WAS
INSUFFICIENT EVIDENCE TO SUPPORT APPELLANT’S CONVICTIONS
AND THE TRIAL COURT COMMITTED PLAIN ERROR IN FINDING MRS.
BOLES GUILTY OF THE SUSPENSION ENHANCEMENTS.”
{¶4} Ms. Neumann-Boles asserts in her first assignment of error that the State failed to
provide evidence necessary to elevate her conviction to a second-degree felony. Notably, the
State does not dispute Ms. Neumann-Boles’ arguments in its brief in this Court.
{¶5} “Whether a conviction is supported by sufficient evidence is a question of law
that this Court reviews de novo.” State v. Williams, 9th Dist. No. 24731, 2009–Ohio–6955, at
¶18, citing State v. Thompkins (1997), 78 Ohio St. 3d 380, 386. The relevant inquiry is whether
the prosecution has met its burden of production by presenting sufficient evidence to sustain a
3
conviction. Thompkins, 78 Ohio St. 3d at 390 (Cook, J., concurring). In reviewing the evidence,
we do not evaluate credibility and we make all reasonable inferences in favor of the State. State
v. Jenks (1991), 61 Ohio St. 3d 259, 273. The State's evidence is sufficient if it allows the trier of
fact to reasonably conclude that the essential elements of the crime were proven beyond a
reasonable doubt. Id.
{¶6} While Ms. Neumann-Boles was found guilty of a violation of R.C.
2903.08(A)(1)(a) and a violation of R.C. 2903.08(A)(2)(b), she was only convicted of a violation
of R.C. 2903.08(A)(1)(a). See State v. Underwood, 124 Ohio St. 3d 365, 2010-Ohio-1, at ¶26
(“R.C. 2941.25(A) clearly provides that there may be only one conviction for allied offenses of
similar import. Because a defendant may be convicted of only one offense for such conduct, the
defendant may be sentenced for only one offense.”). R.C. 2903.08(A)(1)(a) provides that:
“[n]o person, while operating or participating in the operation of a motor vehicle,
* * * shall cause serious physical harm to another person or another’s unborn * *
* [a]s the proximate result of committing a violation of division (A) of section
4511.19 of the Revised Code or of a substantially equivalent municipal
ordinance[.]”
Ms. Neumann-Boles does not assert that any of the above-listed elements were not proven, but
instead asserts that the State failed to provide any evidence that elevated the offense from a third-
degree felony to a second-degree felony, namely that Ms. Neumann-Boles was driving under a
suspension imposed under Chapter 4510[] or any other provision of the Revised Code, or
committed any violation of any substantially equivalent current or former law of Illinois. See
R.C. 2903.08(B)(1)(a); R.C. 2903.08(G).
{¶7} Essentially, at trial the State appeared to argue that Ms. Neumann-Boles’ status of
being under a revocation in Illinois was substantially equivalent to the status of being under
suspension in Ohio, and thus, Ms. Neumann-Boles could be convicted of a second-degree felony
4
violation of the statute. Ms. Neumann-Boles asserts on appeal that her revoked status in Illinois
was not substantially equivalent to the status of a person under suspension in Ohio. This Court,
however, concludes that the State has misread R.C. 2903.08, and in doing so, has failed to
present sufficient evidence to enhance the penalty Ms. Neumann-Boles faced.
{¶8} Under the facts of the case, a conviction for a violation of R.C. 2903.08(A)(1)(a)
is second-degree felony if “[a]t the time of the offense, the offender was driving under a
suspension imposed under Chapter 4510[] or any other provision of the Revised Code.” R.C.
2903.08(B)(1)(a). There is no dispute that Ms. Neumann-Boles never had an Ohio driver’s
license, and there is no argument being made that Ms. Neumann-Boles was driving under a
suspension imposed under Ohio law. See R.C. 4510.01(H) (defining suspension). However, Ms.
Neumann-Boles did, at least at one point in time, possess a valid Illinois driver’s license. The
State’s theory was that Ms. Neumann-Boles could be convicted of a second-degree felony
violation of R.C. 2903.08 via the application of R.C. 2903.08(G). R.C. 2903.08(G) provides
that:
“For the purposes of this section, when a penalty * * * is enhanced because of a
prior or current violation of a specified law or a prior or current specified offense,
the reference to the violation of the specified law or the specified offense includes
any violation of any substantially equivalent * * * current or former law of
another state[.]”
When solely examining R.C. 2903.08(B)(1)(a) and the language “the offender was driving under
a suspension imposed under Chapter 4510[] or any other provision of the Revised Code[,]”
without considering R.C. 2903.08(G), it is possible to interpret that language as only requiring
proof that the offender was under an active suspension. See, e.g., State v. Hatfield, 11th Dist.
No. 2006–A–0033, 2007-Ohio-7130, at ¶139 (examining similar language in R.C. 2903.06 and
concluding that “evidence of the active suspension was necessary and therefore relevant to
5
increase the severity of the aggravated vehicular homicide charge from a felony three to a felony
two[]”). However, in order for R.C. 2903.08(G) to even apply to R.C. 2903.08(B)(1)(a), we
would need to consider “driving under a suspension[,]” R.C. 2903.08(B)(1)(a), as either a
violation of a law or an offense given the express language contained in R.C. 2903.08(G). We
note that both parties have assumed that R.C. 2903.08(G) applies in this case. We recognize that
application of R.C. 2903.08(G) is problematic because it states that a violation of “a substantially
equivalent * * * current or former law of another state” can be considered as an enhancing
element, but only when R.C. 2903.08 allows for enhancement based upon a violation of a law or
offense; however, R.C. 2903.08(B)(1)(a) appears to speak to the status of the offender (i.e.
under suspension) as opposed to a violation of a law or an offense. Assuming, without deciding,
that R.C. 2903.08(G) can be properly applied in conjunction with R.C. 2903.08(B)(1)(a) in this
case, it would be necessary for the State to show that Ms. Neumann-Boles violated a law of
Illinois that was substantially equivalent to a violation of driving under a suspension in Ohio.
This is so because R.C. 2903.08(G) expressly permits enhancement upon demonstrating “any
violation of any substantially equivalent * * * law of another state[.]” Thus, the State was
required to demonstrate that Ms. Neumann-Boles violated an Illinois law that was substantially
equivalent to driving under a suspension in Ohio.
{¶9} In the instant matter, the State attempted to demonstrate that Ms. Neumann-Boles
was under a suspension within the meaning of Ohio law. It argued that the concept of revocation
in Illinois and suspension in Ohio were substantially equivalent. It also attempted to show that
Ms. Neumann-Boles was under a current revocation that was substantially equivalent to an Ohio
suspension. Although we do not necessarily agree with the State on these issues, even assuming
that the State established that Ms. Neumann-Boles’ status of being revoked under Illinois law
6
was substantially equivalent to the status of being suspended in Ohio, the State failed to allege or
prove what if any Illinois law Ms. Neumann-Boles violated which was substantially equivalent
to driving under a suspension in Ohio. Accordingly, the State failed to produce sufficient
evidence of the fact which would elevate Ms. Neumann-Boles’ conviction to a second-degree
felony
{¶10} Thus, we agree that Ms. Neumann-Boles could not be convicted of a second-
degree felony based upon the evidence presented at trial. However, Ms. Neumann-Boles has not
asserted that the State presented insufficient evidence to convict her of violating R.C.
2903.08(A)(1)(a). Further, the sufficiency of her conviction under R.C. 2903.08(A)(1)(a) is
supported by her agreed stipulation of facts at trial. Generally, a violation of R.C.
2903.08(A)(1)(a), absent a demonstration of facts leading to a penalty enhancement, is a felony
of the third degree. R.C. 2903.08(B)(1). Consequently, we remand to the trial court with
instructions that the trial court enter a conviction against Ms. Neumann-Boles for a third-degree
felony violation of R.C. 2903.08(A)(1)(a) and that she be sentenced accordingly. See App.R.
12(B). Ms. Neumann-Boles’ assignment of error is sustained to the extent she asserts that she
could not be convicted of a second-degree felony based upon the evidence presented at trial.
ASSIGNMENT OF ERROR II
“THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY IMPOSING A
DISPROPORTIONATELY HARSH SENTENCE THAT WAS GROSSLY
INCONSISTENT WITH SENTENCES IMPOSED ON SIMILAR OFFENDERS FOR
SIMILAR CRIMES, AND THAT WAS ALSO UNREASONABLE IN THAT IT WAS
NOT SUPPORTED BY THE RECORD.”
ASSIGNMENT OF ERROR III
“THE APPELLANT WAS DENIED HER RIGHT UNDER THE SIXTH AND
FOURTEENTH AMENDMENTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL
WHEN DEFENSE COUNSEL FAILED TO PROTECT HER RIGHTS BEFORE AND
DURING TRIAL.”
7
{¶11} In Ms. Neumann-Boles’ second assignment of error she asserts that the trial court
erred in imposing her sentence. As we are remanding this matter for a new sentencing hearing
based upon the resolution of the first assignment of error, we decline to address this assignment
of error as it has been rendered moot. See App.R. 12(A)(1)(c). In her third assignment of error
she asserts that her trial counsel was ineffective for failing to demonstrate that Ms. Neumann-
Boles’ was eligible to reapply for a license; and thus, her act of driving under revocation was not
substantially equivalent to an Ohio suspension. However, our resolution of the first assignment
of error also renders this assignment of error moot. See App.R. 12(A)(1)(c).
III.
{¶12} In light of the foregoing, we sustain Ms. Neumann-Boles’ first assignment of
error in part and remand this matter for proceedings consistent with this opinion.
Judgment reversed
and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
8
Costs taxed to Appellee.
EVE V. BELFANCE
FOR THE COURT
MOORE, J.
CONCURS IN JUDGMENT ONLY
CARR, J.
DISSENTS, SAYING:
{¶13} I respectfully dissent as I disagree with the majority that the State was required to
prove that Ms. Neumann-Boles violated an Illinois law that was substantially equivalent to
driving under suspension in Ohio, instead of just demonstrating that the Illinois revocation was
substantially similar to a suspension in Ohio.
APPEARANCES:
MARGARET AMER ROBEY, Attorney at Law, for Appellant.
DEAN HOLMAN, Prosecuting Attorney, and RUSSELL A. HOPKINS, Assistant Prosecuting
Attorney, for Appellee.