State v. Price ( 2020 )

[Cite as State v. Price, 2020-Ohio-220.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
ERIE COUNTY
State of Ohio Court of Appeals No. E-19-003
Appellee Trial Court No. TRC 1802535
v.
Bradley A. Price DECISION AND JUDGMENT
Appellant Decided: January 24, 2020
*****
Kevin J. Baxter, Erie County Prosecuting Attorney, and Anthony A.
Battista III, Assistant Prosecuting Attorney, for appellee.
Danielle C. Kulik, for appellant.
*****
SINGER, J.
{¶ 1} Appellant, Bradley Price, appeals the judgment entered in the Erie County
Municipal Court after a jury found him guilty of driving under suspension. For the
following reasons, we affirm the judgment, in part, and reverse, in part.
{¶ 2} Appellant sets forth five assignments of error:
1. The court erred in denying the defendant his right to allocution.
2. The court erred in allowing the introduction of the LEADS report
contrary to the rules of evidence.
3. The court erred in sentencing the defendant to thirty (30) days
[of] incarceration.
4. The jury erred in finding the defendant guilty of driving under
suspension.
5. The court erred in overruling the Rule 29 motion for acquittal.
Background
{¶ 3} In the early morning hours of April 22, 2018, an Erie County deputy sheriff
responded to a call regarding a suspicious vehicle parked in the driveway of a private
home. Upon arriving at the location, the deputy discovered a truck with its engine
running, dome light on and appellant asleep in the driver’s seat. The deputy knocked on
the truck’s window and woke up appellant, who seemed disoriented. The deputy
inquired if appellant had any alcoholic beverages, and appellant said he had a couple.
The deputy asked appellant for his driver’s license, but appellant said he did not have one
on him. Although it was requested, appellant refused to perform any field sobriety tests
or take a portable breath test. Appellant was arrested.
{¶ 4} The deputy obtained information about appellant through the Law
Enforcement Automated Data System (“LEADS”) database and discovered appellant’s
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driver’s license was under a pretrial suspension out of Sandusky Municipal Court, and
that appellant had convictions for operating a motor vehicle under the influence (“OVI”)
in 2002 and 2016.
{¶ 5} Appellant was charged with OVI in violation of R.C. 4511.19(A)(1)(a), OVI
in violation of R.C. 4511.19(A)(2), and driving under a pretrial license suspension in
violation of R.C. 4510.11.
{¶ 6} On December 13, 2018, a jury trial commenced and appellant was found not
guilty of the OVI charges, but guilty of driving under suspension in violation of R.C.
4510.11. The court sentenced appellant to 180 days of incarceration, with 150 days
suspended, court costs and fines. Appellant timely appealed.
First Assignment of Error
{¶ 7} Appellant argues the trial court erred by denying his right to allocution, as
the court proceeded to sentencing without allowing him to speak. Appellant contends his
trial counsel was in failing health and requested a continuance, but the request was denied
and the jury trial proceeded. Appellant observes that after the jury was instructed, his
counsel advised the court he was leaving and stand-in counsel would wait for the verdict,
which the court allowed. Appellant notes after the jury returned with its verdict, the court
proceeded right to sentencing, with stand-in counsel, and without hearing any mitigation
or asking appellant to speak.
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Law
{¶ 8} At the time sentence is imposed, Crim.R. 32(A)(1) mandates that the trial
court “[a]fford counsel an opportunity to speak on behalf of the defendant and address the
defendant personally and ask if he * * * wishes to make a statement in his * * * own
behalf or present any information in mitigation of punishment.” It is not enough for the
court to allow defense counsel to speak on behalf of the defendant before the sentence is
imposed. State v. Green, 90 Ohio St. 3d 352, 359-360, 738 N.E.2d 1208 (2000). “The
purpose of allocution is to allow the defendant an opportunity to state for the record any
mitigating information which the judge may take into consideration when determining
the sentence to be imposed.” State v. Turjonis, 7th Dist. Mahoning No. 11 MA 28, 2012-
Ohio-4215, ¶ 6. See also State v. Gray, 6th Dist. Erie No. E-16-066, 2017-Ohio-7271,
¶ 17. If the court imposes sentence without asking whether the defendant has anything to
say, resentencing is required unless the error is invited or harmless. State v. Campbell, 90
Ohio St. 3d 320, 326, 738 N.E.2d 1178 (2000). Invited error is a fault which a party
prompted the court to make. Davis v. Wolfe, 92 Ohio St. 3d 549, 552, 751 N.E.2d 1051
(2001). Harmless error is “[a]ny error, defect, irregularity, or variance which does not
affect substantial rights * * *.” Crim.R. 52(A).
Analysis
{¶ 9} The record shows that when the trial court proceeded directly to sentencing
after the verdict was received, the state requested, inter alia, that appellant be sentenced
to 90 days in jail, with 80 days suspended. Appellant’s trial counsel was not present, so
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stand-in counsel suggested that the court “be lenient on him because he actually works
* * * and would probably lose his job if he is to go to jail for 10 days * * *.” The court
addressed appellant telling him he should not have been driving at all or drinking before
driving, and asked if he understood, to which appellant answered, “Yes, sir.” The court
then sentenced appellant without providing him the opportunity for allocution in
mitigation of sentence.
{¶ 10} Upon review, we find the trial court did not comply with Crim.R. 32(A)(1),
as appellant was not provided the chance to exercise his right of allocution. We further
find that nothing in the record indicates appellant, his trial counsel or stand-in counsel
invited the error, or that the error was harmless. Therefore, the sentencing judgment must
be vacated, and the matter remanded for resentencing. Accordingly, appellant’s first
assignment of error is well-taken.
Second Assignment of Error
{¶ 11} Appellant argues the trial court abused its discretion in allowing the
LEADS report to be introduced as evidence, as it was not properly authenticated.
Appellant asserts the officer who testified at trial regarding the report was not trained in
the LEADS program and did not generate the LEADS report which was offered and
admitted as an exhibit.
Law
{¶ 12} “The admission of evidence lies within the broad discretion of a trial court,
and a reviewing court should not disturb evidentiary decisions in the absence of an abuse
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of discretion that has created material prejudice.” State v. Noling, 98 Ohio St. 3d 44,
2002-Ohio-7044, 781 N.E.2d 88, ¶ 43. Abuse of discretion is more than an error of law
or judgment, it implies the court acted unreasonably, arbitrarily, or unconscionably.
Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 13} A LEADS report is admissible under the public records exception to the
hearsay rule, pursuant to Evid.R. 803(8)(a). Cleveland v. Craig, 8th Dist. Cuyahoga No.
99619, 2013-Ohio-5742, ¶ 37. As a public record, a LEADS report requires
authentication prior to being admitted into evidence, pursuant to Evid.R. 901(B)(7).
While extrinsic evidence of authenticity is not required for certified copies of public
records, as they are self-authenticating pursuant to Evid.R. 902(1), (2) and (4), a seal
must accompany the certification before the certified copy is considered self-
authenticating. State v. Peterson, 11th Dist. Trumbull No. 96-T-5456, 1996 WL 761231,
*6 (Nov. 29, 1996).
Analysis
{¶ 14} A review of the record shows the LEADS report offered and admitted into
evidence was signed, sealed and certified. Thus, the report was properly self-
authenticated. Further, although not required, a deputy testified to the authenticity of the
LEADS report. We therefore find the trial court did not err in admitting the LEADS
report. Accordingly, appellant’s second assignment of error is not well-taken.
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Third Assignment of Error
{¶ 15} Appellant contends the trial court erred in sentencing him to 30 days in jail.
Given our conclusion that the sentencing judgment must be vacated and the matter
remanded for resentencing, this assignment of error is denied as moot.
Fourth and Fifth Assignments of Error
{¶ 16} In the fourth assignment of error, appellant argues the jury erred in finding
him guilty of driving under suspension as the evidence was insufficient to support the
verdict and was against the manifest weight of the evidence. Appellant contends the
evidence was not sufficient to support the conviction, as the only evidence offered was
the LEADS report, which was inadmissible. Appellant also asserts no one testified as to
the provision of the Ohio Revised Code under which he was suspended, only that
appellant was “on a pretrial suspension.”
{¶ 17} Appellant claims the verdict was against the manifest weight, as the officer
was not credible to testify about the LEADS program. Appellant further argues “the
information from the LEADS report was obtained against [appellant’s] Fourth
Amendment Rights” since the jury found him not guilty of OVI which was the only
reason the officers seized appellant and his license information.
{¶ 18} In the fifth assignment of error, appellant argues the court erred in
overruling the Crim.R. 29 motion as there was no indication under which section of R.C.
4510.11 he was charged, section (A) or section (B), and “[t]he words ‘pretrial
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suspension’ do not indicate [with] which sections the Defendant-Appellant has been
charged.”
Law
{¶ 19} R.C. 4510.11, entitled “Driving under suspension or in violation of license
restriction,” provides in relevant part:
(A) Except as provided in division (B) of this section and in sections
4510.111 [dismissed or reduced charges in abstracts and suspensions
relating to: unruly/truant juveniles; tobacco; security for court appearance;
child support; liquor; failure to appear in court or pay fines] and 4510.16
[financial responsibility law/nonpayment of judgment suspensions], of the
Revised Code, no person whose driver’s * * * license * * * has been
suspended under any provision of the Revised Code, other than Chapter
4509. of the Revised Code [financial responsibility] * * * shall operate any
motor vehicle upon the public roads and highways or upon any public or
private property used by the public for purposes of vehicular travel or
parking within this state during the period of suspension unless the person
is granted limited driving privileges and is operating the vehicle in
accordance with the terms of the limited driving privileges.
(B) No person shall operate any motor vehicle upon a highway or
any public or private property used by the public for purposes of vehicular
travel or parking in this state in violation of any restriction of the person’s
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driver’s * * * license * * * imposed under division (D) of section 4506.10
[driving ability/control devices] or under section 4507.14 [special control
devices] of the Revised Code.
{¶ 20} “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
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.
{¶ 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. When determining whether a conviction is against the manifest weight, the
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appellate court must review the record, weigh the evidence and all reasonable inferences
drawn from it, 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.
{¶ 22} Crim.R. 29 provides that upon a defendant’s motion or the court’s own
motion, after the evidence of either side is closed, the court shall order entry of judgment
of acquittal if the evidence is insufficient to sustain a conviction of the charged offense.
We review a ruling on a Crim.R. 29 motion for acquittal under the same standard used to
determine whether there was sufficient evidence to sustain a conviction. State v. Merritt,
6th Dist. Fulton No. F-12-009, 2013-Ohio-4834, ¶ 8.
{¶ 23} A final judgment of conviction “must either fully describe the crime for
which the accused was convicted or set forth the Revised Code section number under
which he was convicted. Either is sufficient.” State v. Tanner, 10th Dist. Franklin Nos.
91AP-263 and 91AP-651, 1991 WL 281410, *9 (Dec. 31, 1991), citing Braxton v.
Maxwell, 1 Ohio St. 2d 134, 136, 205 N.E.2d 397 (1965).
Analysis
{¶ 24} Regarding appellant’s sufficiency of the evidence and Crim.R. 29 motion
claims, the record demonstrates appellant was charged with “DRIVER LICENSE * * *
Suspended * * * Suspension Type: Pre trial suspension * * * ORC 4510.11.” The trial
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transcript reveals that after the state rested its case, appellant’s defense attorney made a
Crim.R. 29 motion “based on what the officer indicated on the charge * * * he never put
in which it was A or B [of R.C. 4510.11].” The court stated “[p]retrial suspension is just
section A[,] * * * B is not a pretrial suspension.” The court then denied the Crim.R. 29
motion, finding “that it should have had a subsection A or B on it, but * * * the
suspension type indicating a pretrial suspension cured that error.” There is also a side bar
discussion in the transcript concerning the admissibility of the LEADS report, during
which the court ordered redacted the entry which reflected “an administrative license
suspension, slash, positive” “for a case pending currently in Sandusky Municipal Court,”
as it was prejudicial to appellant.
{¶ 25} The LEADS report, which we found was admissible, contains an entry that
appellant’s driver’s license was “suspended from: 01/05/2018 to: indefinite” due to a
“pretrial suspension” from “Sandusky Municipal Court * * * case: TRC1706281A.”
{¶ 26} The record further includes the body camera video (“video”) of one of the
deputies who encountered appellant on April 22, 2018. In the video, appellant states,
inter alia, he was not driving, but when asked what he was doing, appellant responded he
just pulled over, made a phone call and must have passed out and fallen asleep.
{¶ 27} An examination of R.C. 4510.11 discloses that subsection (A) addresses
driving under suspension, while subsection (B) concerns driving in violation of license
restrictions.
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{¶ 28} A review of the entire record, including the LEADS report, the trial
transcript, the video and the relevant law shows there was substantial evidence to
establish that appellant’s driver’s license was suspended under R.C. 4510.11(A) as of
April 22, 2018, and that appellant operated the vehicle during the suspension. Therefore,
we find there was sufficient evidence to support appellant’s conviction for driving under
suspension in violation of R.C. 4510.11, and the court did not err in denying the Crim.R.
29 motion.
{¶ 29} Regarding the manifest weight of the evidence challenge, appellant
contends the officer was not credible to testify about LEADS, and “the information from
the LEADS report was obtained against [his] Fourth Amendment Rights.” As we already
determined, the LEADS report was properly self-authenticated and no testimony by the
deputy was required. In addition, the law is clear that a police officer’s check of a
person’s Bureau of Motor Vehicles records does not implicate Fourth Amendment rights,
as it does not does not constitute an invasion as it involves no intrusion. State v. Begovic,
11th Dist. Lake No. 97-L-041, 1997 WL 772951, *3 (Dec. 5, 1997). Moreover, “[a]
police officer does not need to possess specific and articulable facts warranting suspicion
of criminal behavior to run a license plate check on a vehicle * * * [since] [t]here exist no
privacy interest in license plates as they are in plain view.” State v. Pennington, 6th Dist.
Wood No. WD-97-122, 1998 WL 456597, *1 (July 17, 1998).
{¶ 30} After reviewing the record and weighing the evidence, we find nothing
which shows the jury lost its way and committed a manifest miscarriage of justice in
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convicting appellant of driving under suspension. Thus, we conclude that appellant’s
conviction was not against the manifest weight of the evidence. Accordingly, appellant’s
fourth and fifth assignments of error are not well-taken.
Conclusion
{¶ 31} On consideration whereof, the judgment of the Erie County Municipal
Court is affirmed, in part, and reversed, in part. We affirm appellant’s conviction for
driving under suspension but vacate the sentence and remand the cause to the trial court
for resentencing. Appellant is ordered to pay the costs of this appeal pursuant to App.R.
24.
Judgment affirmed, in part,
reversed, in part, and remanded.
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
Thomas J. Osowik, 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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