State v. Panzeca

[Cite as State v. Panzeca, 2020-Ohio-4448.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-190474
C-190475
Plaintiff-Appellee, : TRIAL NOS. C-19TRC-9140A, B
vs. :
JOSEPH PANZECA : O P I N I O N.
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Municipal Court
Judgments Appealed From Are: Affirmed
Date of Judgment Entry on Appeal: September 16, 2020
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Adam Tieger,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and David Hoffmann,
Assistant Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} After a bench trial, defendant-appellant Joseph Panzeca was convicted
of operating a vehicle while under the influence of alcohol (“OVI”) in violation of R.C.
4511.19(A)(1)(a) and operation without reasonable control in violation of R.C.
4511.202(A). He has appealed, and argues in two assignments of error that the trial
court erred in considering the testimony of a witness who was not competent to
testify, and that his convictions were based upon insufficient evidence and against
the manifest weight of the evidence.
{¶2} For the reasons discussed below, we overrule the assignments of error
and affirm the judgments of the trial court.
Factual Background
{¶3} Delhi Township Police Officer Steve Sommers testified that he
responded to a call about a car accident at the intersection of Rapid Run Road and
Sundance Road in which a vehicle had struck a concrete sewer culvert. When
Sommers arrived on the scene, he saw tire tracks that went off the road and debris all
over the roadway, including large chunks of concrete, metal rebar from the sewer
grate, and automotive parts. Sommers observed a bumper and pieces of a vehicle’s
undercarriage in the roadway.
{¶4} Sommers testified that a mile down the road he discovered Panzeca’s
vehicle parked on the side of the road. As he pulled up, he witnessed Panzeca exit
the vehicle from the driver’s side. Sommers walked around Panzeca’s vehicle and
noticed that only the driver’s side airbag was deployed, and that there was “heavy
front-end damage” to the vehicle. He testified that Panzeca’s vehicle was missing its
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OHIO FIRST DISTRICT COURT OF APPEALS
front bumper, the undercarriage had been damaged, and that the damage “line[d]
up” with the debris on the road by the tire tracks.
{¶5} Video from Sommers’s body camera was admitted into evidence and
played during trial. When Sommers asked Panzeca what had happened, Panzeca
responded, “I kinda messed my car up.” Panzeca informed Sommers that he was
coming from Linnie’s, a local bar. When asked why he did not stop after hitting the
sewer culvert, Panzeca shrugged. When asked if he realized that he had driven
through people’s yards, Panzeca nodded yes. Another officer on scene asked Panzeca
where he was headed, and he responded, “Right here.” He denied consuming any
alcohol. Sommers testified that Panzeca had slurred speech, seemed unsteady on his
feet and was swaying, had dilated and glassy eyes, and had “the strong odor of an
alcoholic beverage” coming from his person.
First Assignment of Error
{¶6} In his first assignment of error, Panzeca argues that the trial court
committed plain error in considering testimony from a witness who was not
competent to testify as a witness at trial. Panzeca contends that Sommers was not
competent to testify because the state did not establish that he was wearing a
distinctive uniform as required by R.C. 4549.16. R.C. 4549.16 states:
Any officer arresting, or participating or assisting in the arrest of, a
person charged with violating the motor vehicle or traffic laws of this
state, provided the offense is punishable as a misdemeanor, such officer
being on duty exclusively or for the main purpose of enforcing such laws
is incompetent to testify as a witness in any prosecution against such
arrested person if such officer at the time of the arrest was not wearing a
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distinctive uniform in accordance with section 4549.15 of the Revised
Code.
{¶7} Panzeca admits that that he did not raise the issue of the officer’s
competency at trial and contends that we should review this issue under the plain-
error standard of review. However, we find that because Panzeca did not raise the
issue of Sommer’s competency at trial, he has waived the issue on appeal.
{¶8} Ohio courts have held that “the incompetency of a witness may be
waived by allowing him to testify without objection, with knowledge of his
incompetency.” State v. Clark, 10 Ohio App.3d 308, 311, 462 N.E.2d 436 (3d
Dist.1983); see State v. Johnson, 2d Dist. Montgomery No. 20624, 2005-Ohio-1367,
¶ 14 (where the defendant failed to object regarding the officer’s competency to
testify at trial, he waived that issue for purposes of appeal). Thus, “the failure to
object to the competency of a witness at the proper time is a waiver of it.” Clark at
311.
{¶9} Accordingly, the first assignment of error is overruled.
Second Assignment of Error
{¶10} In his second assignment of error, Panzeca argues that his convictions
for driving under the influence in violation of R.C. 4511.19(A)(1)(a) and operation of
a motor vehicle without reasonable control in violation of R.C. 4511.202 were based
upon insufficient evidence and were against the manifest weight of the evidence.
{¶11} The test for determining if the evidence was sufficient to sustain a
conviction is whether “after viewing the probative evidence and inferences
reasonably drawn therefrom in the light most favorable to the prosecution, any
rational trier of fact could have found all the essential elements of the offense beyond
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a reasonable doubt.” State v. MacDonald, 1st Dist. Hamilton No. C-180310, 2019-
Ohio-3595, ¶ 12, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717(1st Dist.1983). It is a question of law for the court to determine, the court is not to
weigh the evidence. MacDonald at ¶ 12.
{¶12} Panzeca was convicted of OVI under R.C. 4511.19(A)(1)(a), which
provides, “No person shall operate any vehicle * * * if, at the time of the operation, *
* * [t]he person is under the influence of alcohol, a drug of abuse, or a combination
of them.”
{¶13} “Operate” means to “to cause or have caused movement of a vehicle.”
R.C. 4511.01(HHH). The state was not required to produce direct evidence of
Panzeca operating the vehicle. Rather, the element of “operate” in R.C.
4511.19(A)(1)(a) may be satisfied by circumstantial evidence. See State v. Colyer, 1st
Dist. Hamilton Nos. C-120347, C-120348 and C-120349, 2013-Ohio-1316, ¶ 8
(although the officer discovered the defendant in a stationary vehicle on the side of
the road, circumstantial evidence demonstrated that the defendant had operated the
vehicle while impaired).
{¶14} Sommers testified that when he discovered Panzeca’s vehicle, he
witnessed Panzeca exit the car from the driver’s side, only the driver’s side airbag
was deployed, and Panzeca said something to the effect of, “I kinda messed my car
up.” Sommers asked Panzeca why he did not stop after hitting the culvert, and
Panzeca shrugged. Sommers also asked him if he realized that he had driven
through people’s yards, and Panzeca nodded yes.
{¶15} To prove that Panzeca was “under the influence of alcohol,” it was not
necessary for the state to prove a particular level of alcohol concentration in his body.
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See State v. Bakst, 30 Ohio App.3d 141, 146, 506 N.E.2d 1208 (1st Dist.1986).
Rather, the state was required to prove that Panzeca had consumed alcohol in a
quantity that had “adversely and appreciably impaired [his] actions or mental
processes and deprived [him] of that clearness of intellect and control of [him]self
which he would otherwise have had.” See State v. Hall, 2016-Ohio-783, 60 N.E.3d
675, ¶ 29 (1st Dist.), quoting Bakst at 145.
{¶16} Field-sobriety tests are not required in order to obtain an OVI
conviction. City of Cleveland v. Giering, 2017-Ohio-8059, 98 N.E.3d 1131, ¶ 30 (8th
Dist.). To prove impairment, the state can rely on “physiological factors such as
slurred speech, bloodshot eyes, and the odor of alcohol.” Id. In Colyer, this court
held that the evidence was sufficient to sustain the defendant’s OVI conviction
despite the lack of field-sobriety tests where “the record is replete with evidence of
his intoxication, including his slurred speech, his strong odor of alcohol, his
bloodshot eyes, and his general demeanor, as well as the evidence that his car
recently had been in an accident.” Colyer, 1st Dist. Hamilton Nos. C-120347, C-
120348 and C-120349, 2013-Ohio-1316, at ¶ 9.
{¶17} Sommers testified that he discovered Panzeca approximately a mile
down the road from the scene of the accident and that the damage to Panzeca’s
vehicle was consistent with the scene of the accident. Sommers testified that
Panzeca had slurred speech, seemed unsteady on his feet and was swaying, had
dilated and glassy eyes, and had “the strong odor of an alcoholic beverage” coming
from his person. He testified that Panzeca told him that prior to the accident he had
been at Linnie’s, a local bar. We find that Panzeca’s conviction for OVI was based
upon sufficient evidence.
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{¶18} Although Panzeca claims that his conviction for operation without
reasonable control under R.C. 4511.202 was based on insufficient evidence, he
presents no argument or reasoning as to why. In order to convict Panzeca for
operation without reasonable control, the state was required to prove that he
operated a motor vehicle on a street or highway without being in reasonable control
of the vehicle. See R.C. 4511.202. Operating a vehicle while intoxicated and crashing
into a sewer culvert on the side of the road demonstrates that Panzeca was not in
reasonable control of his vehicle. We find that the evidence was sufficient to sustain
Panzeca’s conviction under R.C. 4511.202.
{¶19} Once we determine that there was sufficient evidence presented to
sustain the convictions, we consider Panzeca’s claim that his convictions were
against the manifest weight of the evidence. In doing so, “we review the record,
weigh the evidence and all reasonable inferences, consider the credibility of the
witnesses, and determine whether the trier of fact, in resolving conflicts in the
evidence, ‘clearly lost its way and created such a manifest miscarriage of justice that
the conviction must be overturned.’ ” Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717.
Reversal of a conviction and a grant of a new trial should only be done in
“exceptional cases in which the evidence weighs heavily against the conviction.” Id.{¶20} “The trier of fact is in the best position to judge the credibility of the
witnesses and the weight to be given to the evidence presented.” State v. Carson, 1st
Dist. Hamilton No. C-180336, 2019-Ohio-4550, ¶ 16. In announcing its guilty
verdicts, the trial court explicitly found Sommers to be a credible witness.
{¶21} Panzeca denied consuming any alcohol, but that was contradicted by
the body camera video and Sommers’s testimony. Panzeca argues that the physical
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symptoms observed by Sommers were the result of a head injury, but at trial he did
not produce any evidence of a head injury, and Sommers testified that he did not
observe any injuries on Panzeca. Panzeca’s convictions were not against the manifest
weight of the evidence. The second assignment of error is overruled.
Conclusion
{¶22} For the foregoing reasons, we overrule the assignments of error and
affirm the judgments of the trial court.
Judgments affirmed.
ZAYAS, P.J., and MYERS, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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