State v. Nelson

[Cite as State v. Nelson, 2020-Ohio-4657.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 19AP-548
(C.P.C. No. 17CR-1366)
v. :
(REGULAR CALENDAR)
Homer L. Nelson, III, :
Defendant-Appellant. :
D E C I S I O N
Rendered on September 29, 2020
On brief: Ron O'Brien, Prosecuting Attorney, and Seth L.
Gilbert, for appellee.
On brief: Yeura R. Venters, Public Defender, and Ian J.
Jones, for appellant.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Defendant-appellant, Homer L. Nelson, III, appeals the judgment of the
Franklin County Court of Common Pleas convicting him of felony level operating a vehicle
under the influence of alcohol ("OVI") and an attached specification for certain repeat OVI
offenders. For the following reasons, we affirm the trial court judgment.
I. Facts and Procedural History
{¶ 2} By indictment filed March 8, 2017, plaintiff-appellee, State of Ohio, charged
Nelson with two counts of OVI arising out of a single February 24, 2017 incident. Count 1
charged Nelson with operating a vehicle while "under the influence of alcohol, a drug of
abuse, or a combination of them" in violation of R.C. 4511.19(A)(1)(a) and Count 2 charged
Nelson with operating a vehicle while having "a concentration of seventeen-hundredths of
one gram or more by weight of alcohol per two hundred ten liters of his breath, to wit: .20
grams" in violation of R.C. 4511.19(A)(1)(h). (Indictment at 1, 3.) Each count was elevated
No. 19AP-548 2
to a fourth-degree felony and included an R.C. 2941.1413(A) specification for an additional
prison term for certain repeat OVI offenders, based on Nelson having previously been
convicted of or pleaded guilty to 5 or more violations of R.C. 4511.19(A) or (B) or other
equivalent offenses within 20 years of the indicted offense.
{¶ 3} Nelson entered a plea of not guilty and filed a motion to amend or dismiss the
indictment asserting that one of the five convictions used to elevate the OVI to a felony was
constitutionally infirm. After a hearing on the matter, the trial court denied the motion.
Thereafter, Nelson waived his right to a trial by jury and elected for the case to proceed as
a bench trial.
{¶ 4} The state called Officer Alexander Stallings to testify. Officer Stallings
testified that around 7:30 p.m. on February 24, 2017, he responded to a call reporting a
man "passed out" inside a vehicle at the intersection of Cleveland Avenue and State Route
161. (July 9, 2019 Tr. at 11.) When he arrived, Officer Stallings observed a vehicle stopped
in a turn lane at a busy intersection with the engine still running. The driver, who the parties
stipulated to be Nelson, was "incoherent and slumped over" inside the car, holding a bottle
of alcohol that turned out to be "Mad Dog 20/20." (July 9, 2019 Tr. at 13, 14.) Beer cans
were visible in the vehicle as well. The officers at the scene put the vehicle into park and
shut off the engine.
{¶ 5} Medics were eventually able to rouse Nelson. Because of the open containers
of alcohol in the vehicle, the smell of alcohol on Nelson's breath, his bloodshot eyes and
incoherence, the officers opened an OVI investigation. Officer Stallings conducted a
horizontal gaze nystagmus ("HGN") test, and Nelson exhibited six out of six clues. Nelson
refused to perform physical tests, such as the one-leg stand and walk-and-turn test. The
parties stipulated the HGN test was properly conducted and physical tests were not
performed.
{¶ 6} Based on the HGN test and his observations of Nelson and the vehicle, Officer
Stallings placed Nelson under arrest for OVI. Thereafter, Nelson admitted to drinking 3 24-
ounce beers in addition to the Mad Dog, and he agreed to take a breath test. The parties
stipulated that the result of the breath test showed Nelson had a blood alcohol content of
.200 and that the breath test machine was working properly.
{¶ 7} To formulate charges against Nelson, Officer Stallings testified he used
"LEADS" to access the Ohio Bureau of Motor Vehicles ("BMV") database to view Nelson's
license and vehicle information as well as his previous driving offenses. (July 9, 2019 Tr. at
No. 19AP-548 3
29.) The state offered a certified copy of Nelson's driving record maintained by the registrar
of motor vehicles ("BMV record") as an exhibit to show Nelson had 5 previous OVI
convictions in the past 20 years. Nelson objected to admission of the BMV record on
hearsay and confrontation clause grounds; the trial court admitted the records over
Nelson's objection. In pertinent part, the BMV record listed 5 OVI convictions within the
20 years prior to the date of the indicted offenses:
OFF: OVI-ALCOHOL &/OR DRUG
BAC: .13
CONVICTION DATE: 09/15/2006
OFFENSE DATE: 03/17/2006
COURT: 0110-ADAMS COUNTY COURT
POINTS: 06
OFF: OVI/REFUSAL
CONVICTION DATE: 08/02/2005
OFFENSE DATE: 02/15/2005
COURT: 2520-FRANKLIN CO MUNI COURT
POINTS: 06
***
OFF: OVI/REFUSAL
CONVICTION DATE: 08/02/2005
OFFENSE DATE: 06/18/2005
COURT: 2520-FRANKLIN CO MUNI COURT
POINTS: 06
***
OFF: OVI-ALCOHOL &/OR DRUG
CONVICTION DATE: 11/18/1999
OFFENSE DATE: 10/29/1999
COURT: 6610-PIKE COUNTY COURT
POINTS: 06
***
OFF: OVI-ALCOHOL &/OR DRUG
CONVICTION DATE: 05/19/1998
OFFENSE DATE: 10/28/1997
COURT: 6610-PIKE COUNTY COURT
POINTS: 06
No. 19AP-548 4
(State's Ex. No. 3 at 9-10.) Nelson stipulated that his name and social security number
appeared on the BMV record, but argued, in support of a Crim.R. 29 motion for acquittal
and in closing argument, the state failed to prove beyond a reasonable doubt that the five
prior offenses were "substantially equivalent" to R.C. 4511.19 to support the felony
enhancement or the specification. (July 9, 2019 Tr. at 76.)
{¶ 8} The trial court disagreed. After finding Nelson guilty of both impaired and
"per se" OVI under R.C. 4511.19, the trial court found that, based on the BMV record, the
state established both OVIs should be elevated to fourth-degree felonies and proved the
specifications under R.C. 2941.1413 attached to both counts. The parties stipulated the
offenses merged and the state elected to proceed on sentencing on Count 2 (the per se OVI
offense). The court imposed a 15-month prison term on Count 2, of which 4 months is
mandatory time, consecutive to a 1-year mandatory prison term for the associated repeat
offender OVI specification. The trial court further ordered alcohol counseling while
incarcerated, a lifetime driver's license suspension without work privileges, and a
mandatory fine.
II. Assignments of Error
{¶ 9} Nelson appeals and assigns the following three assignments of error for our
review:
[I.] The State did not prove the prior convictions for OVI were
"equivalent offenses" beyond a reasonable doubt under RC
4511.181.
[II.] The State did not provide evidence that the elements of
the prior convictions were for violations of RC 4511.19, for
violations of municipal OVI ordinances, or for current or
former laws substantially equivalent to RC 4511.19, therefore
the convictions for felony OVI were against the manifest
weight of the evidence.
[III.] The evidence was legally insufficient to support the
convictions for OVI with specifications.
III. Analysis
{¶ 10} In his three assignments of error, Nelson essentially contends the evidence
the state used to prove his prior OVI convictions (the BMV record) was insufficient to
support his felony-level OVI conviction and the attached repeat offender specification and,
for that same reason, his conviction for felony level OVI was against the manifest weight of
No. 19AP-548 5
the evidence. Because the assignments of error all concern whether the BMV record in this
case establishes Nelson's five previous OVI convictions, we will consider Nelson's
assignments of error together.
{¶ 11} "Sufficiency of the evidence is a legal standard that tests whether the evidence
introduced at trial is legally sufficient to support a verdict." State v. Cassell, 10th Dist. No.
08AP-1093, 2010-Ohio-1881, ¶ 36, citing State v. Thompkins, 78 Ohio St.3d 380, 386
(1997). In reviewing a challenge to the sufficiency of the evidence, an appellate court must
determine "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." State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
Where the evidence, "if believed, would convince the average mind of the defendant's guilt
beyond a reasonable doubt," it is sufficient to sustain a conviction. Id. Because a Crim.R. 29
motion questions the sufficiency of the evidence, we apply the same standard of review on
appeal of a denial of a Crim.R. 29 motion as in a challenge to the sufficiency of the evidence.
State v. Kearns, 10th Dist. No. 15AP-244, 2016-Ohio-5941, ¶ 44.
{¶ 12} "While sufficiency of the evidence is a test of adequacy regarding whether the
evidence is legally sufficient to support the verdict as a matter of law, the criminal manifest
weight of the evidence standard addresses the evidence's effect of inducing belief." Cassell
at ¶ 38, citing State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶ 25. When evaluating
a challenge to a verdict as being against the manifest weight of the evidence, "an appellate
court may not merely substitute its view for that of the trier of fact, but must review the
entire record, weigh the evidence and all reasonable inferences, consider the credibility of
witnesses and determine whether in resolving conflicts in the evidence, 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. McCrary, 10th Dist. No. 10AP-881,
2011-Ohio-3161, ¶ 12, citing Thompkins at 387. An appellate court should reserve reversal
of a conviction as being against the manifest weight of the evidence for only the
" 'exceptional case in which the evidence weighs heavily against the conviction.' "
Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
{¶ 13} In this case, Nelson was charged with OVI, pursuant to R.C. 4511.19(A)(1)(a)
(driving under the influence) and R.C. 4511.19(A)(1)(h) (driving with a breath-alcohol
concentration over 0.17 percent). A person who violates section R.C. 4511.19(A)(1)(a) or (h)
is normally guilty of a first-degree misdemeanor. R.C. 4511.19(G)(1)(a). However, in
No. 19AP-548 6
pertinent part to this case, an OVI is elevated from a misdemeanor to a fourth-degree felony
when an "offender * * * within twenty years of the offense, previously has been convicted of
or pleaded guilty to five or more violations of [division (A) or (B) of this section or other
equivalent offenses]." R.C. 4511.19(G)(1)(d). Similarly, the repeat OVI offender
specification stated in R.C. 2941.1413 permits the addition of a mandatory additional prison
term where "the offender, within twenty years of the offense, previously has been convicted
of or pleaded guilty to five or more equivalent offenses." R.C. 2941.1413(A). See State v.
Klembus, 146 Ohio St.3d 84, 2016-Ohio-1092 (holding that the application of R.C.
4511.19(G)(1)(d) and 2941.1413 to offenders with 5 or more convictions in the preceding 20
years for OVI does not violate equal protection).
{¶ 14} The term "equivalent offense" as it pertains to both R.C. 4511.19 and to the
2941.1413 specification is defined in R.C. 4511.181. R.C. 4511.181(A); 2941.1413(B). In
relevant part, " 'equivalent offense' means any of the following:"
(1) A violation of division (A) or (B) of section 4511.19 of the
Revised Code;
(2) A violation of a municipal OVI ordinance;
***
(8) A violation of an existing or former municipal ordinance,
law of another state, or law of the United States that is
substantially equivalent to division (A) or (B) of section 4511.19
* * *;
(9) A violation of a former law of this state that was
substantially equivalent to division (A) or (B) of section 4511.19
* * *.
(Emphasis added.) R.C. 4511.181(A). A "[m]unicipal OVI ordinance" means "any municipal
ordinance prohibiting a person from operating a vehicle while under the influence of
alcohol, a drug of abuse, or a combination of them or prohibiting a person from operating
a vehicle with a prohibited concentration of alcohol, a controlled substance, or a metabolite
of a controlled substance in the whole blood, blood serum or plasma, breath, or urine." R.C.
4511.181(C). Sections (A) and (B) of R.C. 4511.191 comprise a broad list of circumstances
1Nelson has not argued that his prior convictions fail to be "equivalent offense(s)" under R.C. 4511.181(A) due
to a difference in type of OVI conviction (for example, whether a prior "impaired" OVI conviction is an
equivalent offense to a "per se" OVI conviction).
No. 19AP-548 7
constituting OVI, including operating any vehicle while: under the influence of alcohol, a
drug of abuse, or a combination of them; having certain concentrations of alcohol on their
breath, in their blood, blood serum or plasma, or in their urine; or having a certain
concentration of controlled substances or metabolites of a controlled substance in their
blood, blood serum or plasma, or urine. The Ohio legislature specifically addresses how the
state may prove prior convictions. R.C. 2945.75(B) states:
(1) Whenever in any case it is necessary to prove a prior
conviction, a certified copy of the entry of judgment in such
prior conviction together with evidence sufficient to identify
the defendant named in the entry as the offender in the case at
bar, is sufficient to prove such prior conviction.
(2) Whenever in any case it is necessary to prove a prior
conviction of an offense for which the registrar of motor
vehicles maintains a record, a certified copy of the record that
shows the name, date of birth, and social security number of
the accused is prima-facie evidence of the identity of the
accused and prima-facie evidence of all prior convictions
shown on the record. The accused may offer evidence to rebut
the prima-facie evidence of the accused's identity and the
evidence of prior convictions. Proof of a prior conviction of an
offense for which the registrar maintains a record may also be
proved as provided in division (B)(1) of this section.
(3) If the defendant claims a constitutional defect in any prior
conviction, the defendant has the burden of proving the defect
by a preponderance of the evidence.
Thus, to prove a prior OVI conviction, Ohio law permits the state to submit either the
certified copy of the accused's record maintained by the registrar of motor vehicles or a
certified copy of the entry of judgment in the prior conviction.2 R.C. 2945.75(B)(2).
{¶ 15} Where a prior conviction raises the degree of an OVI offense from a
misdemeanor to a felony, the state is required to prove the prior conviction beyond a
reasonable doubt. State v. Curtis, 10th Dist. No. 09AP-1199, 2011-Ohio-3298, ¶ 42-49
(disagreeing with the appellant's contention that R.C. 2945.75(B)(2) improperly shifts the
burden of proof and relieves the prosecution of its burden of proving all the elements,
including the offender's prior OVI convictions, beyond a reasonable doubt). See State v.
2 We note the methods listed in R.C. 2945.75(B) are not exclusive: "[W]hile R.C. 2945.75(B)(1) permits the
state to prove a prior conviction by submitting a judgment entry of the conviction, the statute does not restrict
the manner of proof to that method alone." (Emphasis sic.) State v. Gwen, 134 Ohio St.3d 284, 2012-Ohio-
5046, ¶ 1. Columbus v. D'Andrea, 10th Dist. No. 11AP-207, 2011-Ohio-6132, ¶ 14.
No. 19AP-548 8
Tate, 138 Ohio St.3d 139, 2014-Ohio-44, ¶ 17, quoting State v. Allen, 29 Ohio St.3d 53, 54
(1987), and State v. Henderson, 58 Ohio St.2d 171, 173 (1979) ("When a prior conviction
elevates a misdemeanor to a felony, 'the prior conviction is an essential element of the
crime, and must be proved by the state.' "). Thus, while "R.C. 2945.75(B)(2) permits the
[s]tate to make a prima facie showing as to [the accused's] prior convictions * * * it does not
relieve the [s]tate of its burden of proof nor shift the burden of proof to the accused." Curtis
at ¶ 49.
{¶ 16} In this case, the offense predicating the instant OVI charges occurred on
February 24, 2017. The state offered a certified copy of Nelson's BMV record showing
Nelson was convicted in September 2006 of "OVI-alcohol &/or drug" with a blood alcohol
content of .13 in Adams County Court; in August 2005 of two "OVI/refusal[s]" in Franklin
County Municipal Court (associated with two separate offense dates); in November 1999 of
"OVI-alcohol &/or drug" in Pike County Court; and in May 1998 of "OVI-alcohol &/or drug"
in Pike County Court. Nelson at trial stipulated to his identity on the BMV record.
{¶ 17} Contrary to Nelson's position, the BMV record here is legally sufficient to
support the felony level OVI conviction and attached repeat offender specification. R.C.
2945.75(B)(2) expressly allows the state to rely on a certified copy of the accused's BMV
record as prima facie evidence of prior OVI convictions. Curtis at ¶ 62. Similar to this case,
in Curtis we upheld a trial court's determination that the appellant had three prior OVI
convictions based on his BMV record alone, which showed "convictions for offenses related
to operating a motor vehicle while under the influence." Id. at ¶ 20, 62-63. Specifically, in
addressing the appellant's sufficiency and manifest weight challenge on this point, we held
the state's use of a certified copy of the appellant's BMV record to prove prior OVI
convictions was proper since the BMV record is prima facie evidence under R.C.
2945.75(B)(2), the appellant did not dispute the accuracy of the record or his convictions,
and the appellant's due process challenge to the evidence failed. Id. at ¶ 62-63.
{¶ 18} Nelson agrees "[t]he BMV records showed Mr. Nelson had five convictions
for OVI within the prior twenty years." (Nelson's Brief at 4.) He also agrees "the certified
BMV records may have been admissible as 'prima-facie evidence of all prior convictions
shown on the record' " under R.C. 2945.75(B)(2). (Nelson's Brief at 12.) However, Nelson
contends that "without listing a code section for the violations, the records were not
sufficient to allow a trier of fact to look to 'the elements of the relevant criminal statutes' "
as required by State v. Lloyd, 132 Ohio St.3d 135, 2012-Ohio-2015. (Nelson's Brief at 12.)
No. 19AP-548 9
Nelson believes the trial court should have followed the analysis in Lloyd and looked not
only at the fact of conviction for "OVI" but also to the elements of the statutes involved to
determine whether Nelson violated R.C. 4511.19, a municipal OVI ordinance, or a current
or former law substantially equivalent to R.C. 4511.19.3
{¶ 19} Nelson's argument concerning Lloyd does not compel us to diverge from
Curtis in this case. In Lloyd, the Supreme Court of Ohio in pertinent part "explain[ed] the
analysis that a court must undertake in determining * * * whether an out-of-state conviction
is a sexually oriented offense that triggers a duty to register in Ohio." Id. at ¶ 1. The statute
involved, R.C. 2950.01(A)(11), labeled an out of state conviction as a sexually oriented
offense under Ohio law if it is or was "substantially equivalent" to certain Ohio offenses. Id.
at ¶ 13. The Lloyd court held that a court must initially look only to the fact of conviction
and the elements of the relevant statutes to determine whether an out-of-state conviction
is substantially equivalent to a listed Ohio offense, and, if that route fails, the court may, in
some cases, go beyond the statutes and rely on portions of the record to make this
determination. Id. at ¶ 31.
{¶ 20} Lloyd is distinguishable from the instant case on several grounds, namely: it
does not concern comparison of prior in-state convictions with a later Ohio offense, it does
not address the OVI statutory scheme, and it does not involve a statute such as R.C. 2945.75
that specifically authorizes a certified, Ohio state record as prima facie evidence of a prior
conviction. Rather than proceeding as Nelson suggests, an appellate court addressing the
issue of proof of prior convictions specifically in the OVI context found that "R.C.
2945.75(B)(2) * * * does not require the inclusion of the particular statute, code, or
ordinance under which the [s]tate obtained a particular conviction." State v. Simin, 9th
Dist. No. 26016, 2012-Ohio-4389, ¶ 38 (disagreeing with the appellant's argument that
state's proof of prior OVI conviction was insufficient because the certified copy of his
driving record did not indicate which particular statute his conviction fell under and only
listed each offense as "OVI — ALCOHOL &/OR DRUG.").
3 While Nelson argued to the trial court that, in the past, the Ohio OVI statute included physical control of a
vehicle, he makes no such argument here, and we decline to create an argument on his behalf in this regard.
State v. Sims, 10th Dist. No. 14AP-1025, 2016-Ohio-4763, ¶ 11 (stating general rule that an appellant bears the
burden of affirmatively demonstrating error on appeal); State v. Hubbard, 10th Dist. No. 11AP-945, 2013-
Ohio-2735, ¶ 34 ("[a]n appellant must support their assignments of error with an argument, which includes
citation to legal authority"), citing App.R. 16(A)(7) and 12(A)(2); State v. Smith, 9th Dist. No. 15AP0001n,
2017-Ohio-359, ¶ 22 (noting that it is not the duty of an appellate court to create an argument on an appellant's
behalf).
No. 19AP-548 10
{¶ 21} For these reasons, we disagree with Nelson that Lloyd required the state in
this case to provide evidence of the elements of each prior OVI conviction to support felony
OVI under R.C. 4511.19(G)(1)(d) or the repeat OVI offender specification under R.C.
2941.1413. As a result, we find the trial court did not err in not applying the Lloyd analysis
to OVI law, and Nelson did not demonstrate the BMV record is insufficient to serve as prima
facie evidence of Nelson's prior, equivalent OVI offenses as defined under R.C. 4511.181(A).
{¶ 22} Considering all the above, and after viewing the BMV record in a light most
favorable to the prosecution, we find a rational trier of fact could have found Nelson's 5 OVI
convictions in the 20 years prior to the instant offense to be proven beyond a reasonable
doubt under the definition set forth in R.C. 4511.181(A). Jenks. As a result, Nelson's first
and third assignments of error lack merit.
{¶ 23} Nelson's second assignment of error contends his convictions for felony OVI
were against the manifest weight of the evidence. Specifically, Nelson asserts the state failed
to "provide evidence that the elements of the prior convictions were for violations of R.C.
4511.19, for violations of municipal OVI ordinances, or for current or former laws
substantially equivalent to R.C. 4511.19." (Nelson's Brief at 15.) Therefore, in Nelson's view,
"[b]ecause such evidence was necessary to prove the essential element of all five prior
convictions to elevate the charge to a felony OVI, the guilty verdict in the present case was
against the manifest weight of the evidence." (Nelson's Brief at 15.)
{¶ 24} Nelson's manifest weight of the evidence argument is again premised on the
state's failure to provide evidence of the elements of Nelson's five previous OVI convictions,
resulting in the state failing to prove those convictions were "equivalent offenses" under
R.C. 4511.181(A) and 4511.19(G)(1)(d). We already found this argument to lack merit,
having determined the state's evidence of the BMV record showing Nelson was convicted
in Ohio of either "OVI-alcohol &/or drug" or "OVI refusal" 5 times in the 20 years prior to
the instant offense was sufficient pursuant to R.C. 2945.75(B)(2) to serve as prima facie
evidence of those convictions. Curtis at ¶ 62-63; Simin at ¶ 38.
{¶ 25} As previously explained, having presented its prima facie case of Nelson's
prior OVI convictions, the state retained the burden of proof. Curtis at ¶ 49; Cleveland v.
Keah, 157 Ohio St. 331 (1952), paragraph two of the syllabus ("A prima facie case is one in
which the evidence is sufficient to support but not to compel a certain conclusion and does
no more than furnish evidence to be considered and weighed but not necessarily to be
No. 19AP-548 11
accepted by the trier of the facts."). In this case, the trier of fact determined the evidence
established Nelson's five prior convictions.
{¶ 26} We find no error in this conclusion. Although R.C. 2945.75(B)(2) permits the
accused to offer evidence to rebut the prima facie evidence of prior convictions, in this case
Nelson did not offer evidence that any of the five convictions were not for equivalent
offenses under the statutory definition set forth in R.C. 4511.181. Contrary to Nelson's
argument, we cannot say the trier of fact lost its way, creating a manifest miscarriage of
justice in these circumstances. Curtis at ¶ 62-63.
{¶ 27} Accordingly, because we conclude sufficient evidence supported the fourth-
degree felony OVI conviction and the attached repeat OVI offender specification, and the
conviction was not against the manifest weight of the evidence, we overrule Nelson's three
assignments of error.
IV. Conclusion
{¶ 28} Having overruled Nelson's three assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
SADLER, P.J., and BEATTY BLUNT, J., concur.