State v. Sanders ( 2020 )

[Cite as State v. Sanders, 2020-Ohio-3214.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio/City of Toledo Court of Appeals No. L-19-1192
Appellee Trial Court No. TRC-19-00742
v.
Samuel David Sanders, Jr. DECISION AND JUDGMENT
Appellant Decided: June 5, 2020
*****
David Toska, Chief Prosecutor, and Jimmie Jones, Assistant
Prosecutor, for appellee.
Laurel A. Kendall, for appellant.
*****
SINGER, J.
{¶ 1} Appellant, Samuel Sanders, appeals the September 9, 2019 judgment of the
Toledo Municipal Court after he was convicted of operating a motor vehicle under the
influence (“OVI”). For the reasons that follow, we affirm the judgment.
{¶ 2} Appellant sets forth two assignments of error:
I. Appellant’s conviction for OVI was based on insufficient
evidence.
II. Appellant’s conviction for driving under the influence of alcohol
was against the manifest weight of the evidence.
Background
{¶ 3} Early in the morning of November 18, 2018, an Ohio State Highway Patrol
trooper encountered a pick-up truck, partially off of the road, on the Miami Street exit
ramp from Interstate 75 in Toledo, Ohio. The truck’s engine was running, a female was
in the driver’s seat, and a man was outside of the truck. There was also a vehicle parked
a short distance away from the truck, in the middle of the road, with flashers on.
{¶ 4} As the trooper exited his patrol car and approached the truck, the female
starting walking towards the vehicle with its flashers on. The trooper questioned her and
she said she was trying to help appellant get the truck unstuck; she was allowed to leave.
{¶ 5} The trooper then made contact with the man, appellant, and ultimately
arrested him. Appellant was charged with OVI in violation of R.C. 4511.19(A)(1)(a),
and rules for driving in marked lanes in violation of R.C. 4511.33. Appellant pled not
guilty.
{¶ 6} On August 13, 2019, a bench trial was held, and appellant was found not
guilty of driving in marked lanes, but guilty of the OVI charge. The court sentenced
appellant to 180 days of incarceration, with 177 days suspended, three days in the Driver
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Intervention Program and six months of probation. The court suspended appellant’s
license for one year, but granted him occupational driving privileges. In addition, the
court ordered appellant to pay court costs and fines. Appellant timely appealed.
First Assignment of Error
{¶ 7} Appellant argues the trial court erred in finding him guilty of OVI as the
evidence was insufficient to support the verdict. He contends the facts support a finding
that a sober female was operating the truck, within the meaning of Ohio law. Appellant
asserts the court should find there was no OVI, because the driver of the truck was sober,
and there was conflicting evidence as to whether appellant was ever in control of the
truck.
Law
{¶ 8} R.C. 4511.19(A)(1)(a) states “[n]o person shall operate any vehicle * * *
within this state, if, at the time of the operation * * * [t]he person is under the influence
of alcohol * * *.” And, “‘[o]perate’ means to cause or have caused movement of a
vehicle * * *.” R.C. 4511.01(HHH).
{¶ 9} “A sufficiency of the evidence argument challenges whether the State has
presented adequate evidence on each element of the offense to allow the case to go to the
jury or to sustain the verdict as a matter of law.” State v. Shaw, 2d Dist. Montgomery
No. 21880, 2008-Ohio-1317, ¶ 28, citing State v. Thompkins, 78 Ohio St.3d 380, 387,
678 N.E.2d 541 (1997). During a sufficiency of the evidence review, an appellate court’s
function is to “examine the evidence admitted at trial to determine whether such
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evidence, if believed, would convince the average mind of the defendant’s guilt beyond a
reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph
two of the syllabus. “The relevant inquiry is whether, after viewing the evidence in a
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime proven beyond a reasonable doubt.” Id.Trial Transcript
{¶ 10} At the bench trial, the state called one witness, the trooper, and appellant
testified in his own defense. The testimony relevant to appellant’s appeal is summarized
below.
{¶ 11} The trooper testified that on November 18, 2018, at 3:37 a.m., he was
working traffic enforcement, when he came upon a truck which had slid off of the road of
the exit ramp, in the vicinity of the casino. The trooper stopped his patrol car to assess
the situation, and observed the truck’s engine was running, a female was in the driver’s
seat and a man, appellant, was outside of the truck, attempting to push the truck out of the
ditch. There was also a vehicle parked a short distance up the road, in the middle of the
road, with its four-way flashers on.
{¶ 12} The trooper exited his patrol car and approached the truck, at which time
the female starting walking away, towards the vehicle with the flashers on. He asked her
to stop and he questioned her. The female said appellant got his truck stuck in the mud,
and she was trying to help appellant get the truck unstuck. The trooper did a “quick little
test, on her, to make sure she was good to go.” After the female said appellant was
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driving and it was determined she “was good to go,” she was cleared to leave. The
female got into the vehicle that had its flashers on and drove away.
{¶ 13} The trooper then made contact with appellant, who offered two different
stories about how the truck slid off of the road. One version was a car ran the truck off of
the road, when the car “crossed off Miami Street onto the exit ramp.” This confused the
trooper because that car would have been disabled from the big curb it would have hit.
The trooper kind of challenged appellant’s version, so his story changed, and he said he
had to slow down and swerve to avoid another car. At no point did appellant say he was
not driving or that he was a passenger.
{¶ 14} The trooper did “a quick test, on his eyes, just to see how his eyes would
react to my finger just going back and forth,” and appellant’s eyes did not roll smoothly,
they jumped a little. This warranted further evaluation, so the trooper brought appellant
to the patrol car, and detected the odor of alcohol on appellant’s person. The trooper
performed field sobriety tests on appellant, including the HGN (horizontal gaze
nystagmus) test, where there were “four clues out of six” and the walk and turn test,
where appellant started prior to being told, he did not touch heel-to-toe and he had a
slight stumble. Appellant failed these tests. Appellant was also given the one-leg stand
test, which he passed. The trooper arrested appellant. Although appellant was offered a
portable breath test and a breathalyzer test at the jail, he refused both.
{¶ 15} The trooper recalled appellant was not the owner of the truck. When asked
whose vehicle was towed that day, the trooper testified “[i]n my statement, I indicate that
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he [appellant] tells me it’s the child’s -- it’s the mother of his child’s vehicle. And he
mentioned his tools were inside the vehicle.”
{¶ 16} Appellant testified to the following. He was with a group of seven people,
in two cars, on the day in question. His “cousin was driving the car in front.” Appellant
was not driving the truck as he “never drove at all.” He said “we were getting off going
to Hollywood Casino. And my cousin she ended up driving -- driving too fast, and kind
of swerved off, and was going in a circle. And the car in front of us was my cousin. And
they told her they was so scared. We didn’t know what was going on.” Appellant said
“[t]he car in front of us was my cousin and them.” After the truck spun out, it was in a
ditch. “She got caught in a ditch, and I tried to push her out of there. And then when she
was getting pushed out, I seen the highway patrol coming up. Which I was trying to push
it out and he came up. And the door -- the one door -- the driver door was broke. So she
ended up -- we -- we had to get her out of there or whatever. He gave her like a little eye
test or whatever, and he sent her on her way.”
{¶ 17} Appellant testified “I kind of told him [the trooper], in the beginning, I
wasn’t even driving. And then I told him the story. * * * * And I specifically told him I
never drove, and I never -- I never drove. I didn’t drive at all.” Appellant said the truck
was “her cousin -- her people’s. Rica. (ph)”
{¶ 18} On cross-examination, appellant said his group was going to the casino at
3:30 in the morning but he was not coming from a party. He said he “was at home, and
then it was my cousin -- it was my cousin [sic] birthday. And she said * * * I owe her
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some money or whatever. Can I take her to the casino or whatever. So we were going to
the casino, yes.” As to the vehicles, appellant testified he was pushing his cousin’s
friend’s car and he did not know who owned the other vehicle. He said Moo-Moo was
driving the car and “I never even touched the car. When she spunned out, I walked
around. And we seen the state trooper coming up. I didn’t even attempt to try and push
it.” Appellant again reiterated “I never touched nothing. Not the key. Never drove
nothing. I didn’t drive.”
Analysis
{¶ 19} A review of the record and the relevant law shows there was substantial
evidence offered to establish that appellant had operated the truck in the early morning
hours of November 18, 2018, while under the influence. The trooper testified both the
female and appellant implied that appellant was driving the truck when it went into the
ditch, and appellant never said he was not driving the truck. After viewing this evidence
in a light most favorable to the state, we find that any rational trier of fact could have
found the essential elements of OVI were proven beyond a reasonable doubt. Therefore,
we find there was sufficient evidence to support appellant’s OVI conviction.
Accordingly, appellant’s first assignment of error is not well-taken.
Second Assignment of Error
{¶ 20} Appellant asserts his OVI conviction was against the manifest weight of the
evidence. He maintains the burden is on the state to prove the elements of OVI, and there
was no OVI as the facts are that “an unnamed sober female was observed to be driving
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the vehicle which the trooper observed to be stuck in the ditch. The vehicle was running,
the key was in the ignition, and she was in the driver’s seat.” Appellant contends the
officer turned his attention to appellant, who was outside of the vehicle, denied driving
and “gave an explanation for the circumstance of the vehicle which was consistent with
the second vehicle of the party being stopped in the middle of the road with its flashers
on.” Appellant argues, “there was no inquiry into the role of the second vehicle in the
first ending up in the ditch.”
Law
{¶ 21} The standard of review for manifest weight is the same in a criminal case
as in a civil case, and an appellate court’s function is to determine whether the greater
amount of credible evidence supports the verdict. Eastley v. Volkman, 132 Ohio St.3d
328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 12; Thompkins at 387. “A manifest weight of
the evidence challenge contests the believability of the evidence presented.” (Citation
omitted.) State v. Wynder, 11th Dist. Ashtabula No. 2001-A-0063, 2003-Ohio-5978,
¶ 23. In deciding whether a conviction is against the manifest weight, the appellate court
must review the record, weigh the evidence and all reasonable inferences, consider the
witnesses’ credibility and decide, in resolving any conflicts in the evidence, whether the
trier of fact “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. Prescott, 190 Ohio
App.3d 702, 2010-Ohio-6048, 943 N.E.2d 1092, ¶ 48 (6th Dist.), citing Thompkins at
387.
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Analysis
{¶ 22} After reviewing the record, weighing inferences, and examining the
credibility of the trooper and appellant, we find the greater amount of credible evidence
supports the verdict. In resolving the conflicts in the evidence, as to whether appellant
had operated the truck while under the influence, we find the trier of fact did not lose its
way, nor did the trier of fact create a manifest miscarriage of justice. Thus, we find
appellant’s OVI conviction was not against the manifest weight of the evidence.
Accordingly, appellant’s second assignment of error is not well-taken.
Conclusion
{¶ 23} On consideration whereof, the judgment of the Toledo Municipal Court is
affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________
JUDGE
Christine E. Mayle, J.
_______________________________
Gene A. Zmuda, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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