Cleveland v. Pate

[Cite as Cleveland v. Pate, 2013-Ohio-5571.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99321
CITY OF CLEVELAND
PLAINTIFF-APPELLEE
vs.
EUGENE M. PATE, II
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cleveland Municipal Court
Case No. 2012 TRD 052202
BEFORE: Blackmon, J., Stewart, A.J., and McCormack, J.
RELEASED AND JOURNALIZED: December 19, 2013
-i-
ATTORNEY FOR APPELLANT
Joseph Vincent Pagano
P.O. Box 16869
Rocky River, Ohio 44116
ATTORNEYS FOR APPELLEE
Barbara A. Langhenry
Director of Law
City of Cleveland
By: Victor R. Perez
Chief Prosecutor
Connor P. Nathanson
Bidisha Bagchi
Assistant City Prosecutors
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:
{¶1} Appellant Eugene M. Pate, II appeals his conviction following a bench trial
in the Cleveland Municipal Court. Pate assigns the following errors for our review:
I. The trial court erred when it denied appellant’s motion for acquittal under
Crim.R. 29 because the state failed to present sufficient evidence to
establish beyond a reasonable doubt the elements necessary to support the
conviction.
II. Appellant’s convictions are against the manifest weight of the evidence.
III. The trial court erred by imposing separate sentences for convictions
involving allied offenses of similar import.
IV. The trial court erred by ordering restitution in violation of the
provisions of R.C. 2929.28(A).
{¶2} Having reviewed the record and pertinent law, we affirm Pate’s
convictions. The apposite facts follow.
{¶3} On September 12, 2012, the city of Cleveland (“the City”) cited Pate for
failing to stop following a collision with an unoccupied vehicle; failure to control his
vehicle; and driving with expired plates. At his arraignment, Pate pleaded not guilty to
the charges and the trial court scheduled the matter for trial.
{¶4} At a bench trial on November 5, 2012, the City presented the testimony of
three witnesses including police officers Joseph Matt and Shawn Huff. Officers Matt
and Huff both testified that on September 12, 2012, at approximately 3:45 a.m., they
observed Pate’s vehicle stopped in the middle of Fulton Road with the hazard lights
flashing. When the officers approached to inquire if he needed assistance, Pate indicated
that he had hit a pothole, had called AAA roadside assistance for a tow truck, and was
waiting for his mother to arrive.
{¶5} Both officers testified that they did not see any potholes nearby, both
observed brake fluid leaking from the vehicle’s damaged front wheel that created an
unbroken trail directly to another vehicle parked approximately 150 feet away on Fulton
Road. After noticing what they described as “fresh collision marks” on the vehicle
where the trail ended, the officers ran the license plate of the vehicle and discovered that
the owner, Elizabeth Vega, lived on Fulton Road.
{¶6} Officers Matt and Huff testified that they woke up Vega and questioned her
about the condition of her vehicle prior to that night. The officers testified that despite a
clear language barrier, Vega expressed surprise about the reported condition of her
vehicle and indicated that her vehicle was undamaged prior to that night.
{¶7} Officers Matt and Huff testified that upon returning to Pate after
questioning Vega, Pate vehemently denied hitting the parked vehicle. At that time, the
officers also noticed that the license plate on Pate’s vehicle had expired.
{¶8} Vega, testifying through an interpreter, indicated again that her car was
undamaged prior to that night. Vega also testified that she was unable to drive the
vehicle and had to have it repaired.
{¶9} Pate presented the testimony of his mother, Lorraine Lewis, who testified
that she recalled her son calling her in the early morning hours of September 12, 2012,
to give him a ride home, because something happened to the van he was driving. Lewis
testified that she believed Pate indicated that he had hit a chuckhole.
{¶10} The trial court found Pate guilty of all charges, subsequently sentenced him
to one year inactive probation, fined him a total of $320, and ordered restitution of $450.
The trial court granted a stay of execution pending the instant appeal.
Sufficiency of Evidence
{¶11} In the first assigned error, Pate argues his motion for acquittal should have
been granted because the City failed to present sufficient evidence to support his
convictions.
{¶12} Crim.R. 29 mandates that the trial court issue a judgment of acquittal where
the prosecution’s evidence is insufficient to sustain a conviction for the offense. Crim.R.
29(A) and sufficiency of evidence review require the same analysis. State v. Mitchell,
8th Dist. Cuyahoga No. 95095, 2011-Ohio-1241, citing State v. Tenace, 109 Ohio St.3d
255, 2006-Ohio-2417, 847 N.E.2d 386.
{¶13} A challenge to the sufficiency of the evidence supporting a conviction
requires the court to determine whether the prosecution has met its burden of production
at trial. State v. Givan, 8th Dist. Cuyahoga No. 94609, 2011-Ohio-100, citing State v.
Thompkins, 78 Ohio St.3d 380, 1997 Ohio 52, 678 N.E.2d 541. On review for sufficiency,
courts are to assess not whether the prosecution’s evidence is to be believed, but whether,
if believed, the evidence against a defendant would support a conviction. Id.{¶14} 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. State v. Vickers, 8th Dist.
Cuyahoga No. 97365, 2013-Ohio-1337, citing State v. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492 (1991), paragraph two of the syllabus.
{¶15} In the instant case, the trial court found Pate guilty of failing to stop after an
accident in violation of Cleveland Codified Ordinances 435.15, that states in pertinent
part as follows:
If such accident or collision with an unoccupied or unattended motor
vehicle, the operator so colliding with such motor vehicle shall securely
attach the information required to be given in this section, in writing, to a
conspicuous place in or on such unoccupied or unattended motor vehicle.
{¶16} Initially, we note, Pate denied colliding with the parked vehicle. Thus, the
clear inference of Pate’s denial is that he was not required to comply with the above
ordinance. Instead, Pate insisted that the damage to his vehicle was caused by a pothole
in the street. However, both officers testified that there were no potholes in the street.
{¶17} In addition, the officers testified that brake fluid leaking from Pate’s vehicle
created an unbroken trail leading to Vega’s car that was parked approximately 150 feet
away. The officers further testified that Vega’s car had “fresh collision marks.” Finally,
Vega testified that her car was undamaged prior to that night and both officers testified
that Vega was surprised to see the damage to her car.
{¶18} After viewing the evidence in a light most favorable to the prosecution, the
above evidence, if believed, would support the conclusion that Pate struck Vega’s
unoccupied parked vehicle and had no intention of notifying the owner. As such, any
rational trier of fact would have found the essential elements of failing to stop after an
accident proven beyond a reasonable doubt. Consequently, the trial court did not err
when it denied Pate’s motion for acquittal and subsequently found him guilty of this
charge.
{¶19} Within this assigned error, Pate also argues that the City failed to present
sufficient evidence to support a conviction for failure to control under Cleveland Codified
Ordinances 431.34. This ordinance states in pertinent part that: “No person shall operate
a motor vehicle or motorcycle upon any street or highway without exercising reasonable
and ordinary control of such vehicle.”
{¶20} As previously noted, Pate denied striking the unoccupied parked car.
However, we are required to view the evidence adduced at trial, both direct and
circumstantial, in a light most favorable to the prosecution to determine if a rational trier
of fact could find the essential elements of the offense were proven beyond a reasonable
doubt. State v. Dennis, 79 Ohio St.3d 421, 1997-Ohio-372, 683 N.E.2d 1096; Jenks, 61
Ohio St.3d 259, 574 N.E.2d 492 (1991).
{¶21} We also note that there is no distinction in the particular weight or way of
evaluating the evidence, whether it is direct or circumstantial. State v. Simmons, 8th Dist.
Cuyahoga No. 97557, 2012-Ohio-3454, citing Jenks at paragraph one of the syllabus.
Circumstantial evidence and direct evidence inherently possess the same probative
value. In some instances, certain facts can only be established by circumstantial
evidence. Id.{¶22} Here, the evidence we discussed above in resolving Pate’s argument that
there was insufficient evidence to support his conviction for failing to stop after an
accident, is the same we now consider to resolve the present argument. As discussed
above, viewing the evidence in a light most favorable to the City, the testimony presented,
if believed, would support the conclusion that Pate struck Vega’s unoccupied parked
vehicle. As such, Pate was guilty of failure to control under Cleveland Codified
Ordinances 431.34. Consequently, the trial court did not err when it denied Pate’s
motion for acquittal.
{¶23} Finally, within this assigned error, Pate argues the City failed to present
sufficient evidence to support a conviction for expired plates. At trial, the officers
testified that while issuing the citation, they noticed that the dealer’s plates on Pate’s
vehicle were expired. At trial, Pate offered a photograph of his current license plate that
showed an expiration date of 2014. Pate insisted that dealer’s plates are issued for two
years. We have no way of knowing whether the photograph depicts plates obtained
before or after the citation. However, Officer Huff testified that it was his recollection
that the plate on the vehicle was expired. Tr. 40.
{¶24} Again, viewing the evidence in a light most favorable to the City, Officer
Huff’s testimony, if believed, would support the conclusion that the plates were expired.
As such, the trial court did not err when it denied the motion for acquittal and
subsequently found Pate guilty of this charge.
{¶25} Based on the foregoing, we find that the City presented sufficient evidence
to support all of Pate’s convictions. The trial court did not err when it denied Pate’s
motion for acquittal. Accordingly, we overrule the first assigned error.
Manifest Weight
{¶26} In the second assigned error, Pate argues his convictions were against the
manifest weight of the evidence.
{¶27} In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264,
the Ohio Supreme Court addressed the standard of review for a criminal manifest weight
challenge, as follows:
The criminal manifest-weight-of-the-evidence standard was explained in
State v. Thompkins (1997), 78 Ohio St.3d 380, 1997 Ohio 52, 678 N.E.2d
541. In Thompkins, the court distinguished between sufficiency of the
evidence and manifest weight of the evidence, finding that these concepts
differ both qualitatively and quantitatively. Id. at 386, 678 N.E.2d 541. The
court held that sufficiency of the evidence is a test of adequacy as to
whether the evidence is legally sufficient to support a verdict as a matter of
law, but weight of the evidence addresses the evidence’s effect of inducing
belief. Id. at 386-387, 678 N.E.2d 541. In other words, a reviewing court
asks whose evidence is more persuasive — the state’s or the defendant’s?
We went on to hold that although there may be sufficient evidence to
support a judgment, it could nevertheless be against the manifest weight of
the evidence. Id. at 387, 678 N.E.2d 541. “When a court of appeals
reverses a judgment of a trial court on the basis that the verdict is against
the weight of the evidence, the appellate court sits as a ‘thirteenth juror’ and
disagrees with the factfinder’s resolution of the conflicting testimony.” Id.
at 387, 678 N.E.2d 541, citing Tibbs v. Florida (1982), 457 U.S. 31, 42, 102
S.Ct. 2211, 72 L.Ed.2d 652.
Id. at ¶ 25.
{¶28} An appellate court may not merely substitute its view for that of the
factfinder, but must find that “in resolving conflicts in the evidence, the factfinder 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. Walker, 8th Dist. Cuyahoga No. 99239,
2013-Ohio-3522, quoting Thompkins at 387. Accordingly, reversal on manifest weight
grounds is reserved for “the exceptional case that the evidence weighs heavily against the
conviction.” Id.{¶29} Based on our resolution of the first assigned error where we found that
Pate’s convictions were supported by sufficient evidence, we conclude that this is not the
exceptional case where the evidence weighs heavily against the convictions. Much to the
contrary, Pate’s convictions are not against the manifest weight of the evidence.
Accordingly, we overrule the second assigned error.
Allied Offenses
{¶30} In the third assigned error, Pate argues the trial court erred by imposing
separate sentences for his convictions for failing to stop after an accident and for failure
to control.
{¶31} Our review of an allied offenses question is de novo. State v. Webb, 8th
Dist. Cuyahoga No. 98628, 2013-Ohio-699, ¶ 4, citing State v. Williams, 134 Ohio St.3d
482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28.
{¶32} R.C. 2941.25 is the codification of the judicial doctrine of merger and
provides guidance as follows:
(A) Where the same conduct by defendant can be construed to constitute
two or more allied offenses of similar import, the indictment or information
may contain counts for all such offenses, but the defendant may be
convicted of only one.
(B) Where the defendant’s conduct constitutes two or more offenses of
dissimilar import, or where his conduct results in two or more offenses of
the same or similar kind committed separately or with a separate animus as
to each, the indictment or information may contain counts for all such
offenses, and the defendant may be convicted of all of them.
R.C. 2941.25; State v. Patterson, 8th Dist. Cuyahoga No. 98127, 2012-Ohio-5511, ¶ 33.
{¶33} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061,
the Ohio Supreme Court established the proper analysis for determining whether offenses
qualify as allied offenses subject to merger pursuant to R.C. 2941.25. In doing so, it
expressly overruled State v. Rance, 85 Ohio St.3d 632, 1999-Ohio-291, 710 N.E.2d 699,
and held that rather than compare the elements of the crimes in the abstract, courts must
consider the conduct of the accused:
In determining whether offenses are allied offenses of similar import under
R.C. 2941.25(A), the question is whether it is possible to commit one
offense and commit the other with the same conduct * * *. If the offenses
correspond to such a degree that the conduct of the defendant constituting
commission of one offense constitutes commission of the other, then the
offenses are of similar import.
If the multiple offenses can be committed by the same conduct, then the
court must determine whether the offenses were committed by the same
conduct, i.e., “a single act, committed with a single state of mind.”
If the answer to both questions is yes, then the offenses are allied offenses
of similar import and will be merged.
Conversely, if the court determines that the commission of one offense will
never result in the commission of the other, or if the offenses are committed
separately, or if the defendant has separate animus for each offense, then,
according to R.C. 2941.25(B), the offenses will not merge.
(Citations omitted.) Id. at ¶ 48-51; State v. Burt, 8th Dist. Cuyahoga No. 99097,
2013-Ohio-3525, ¶ 30.
{¶34} In this case, a violation of Cleveland Codified Ordinances 435.15 required
Pate to leave the scene of the accident or fail to provide information in a conspicuous
location when the accident involves an unoccupied vehicle. Cleveland Codified
Ordinances 431.34 required Pate to operate his vehicle with reasonable care and ordinary
control of the vehicle. Simply put, Pate violated Cleveland Codified Ordinances 431.34
by failing to control his vehicle and striking the unoccupied parked car. After striking
the unoccupied car, Pate could have proceeded to place the required information in a
conspicuous location and not be in violation of Cleveland Codified Ordinances 435.15.
{¶35} However, in failing to place the required information in a conspicuous
location after striking the unoccupied parked car, Pate committed a separate act that
required a separate state of mind. As such, the two charges are not allied offenses of
similar import. Consequently, the trial court did not err when it imposed separate
sentences for Pate’s violation of the two charges. Accordingly, we overrule the third
assigned error.
Restitution
{¶36} In the fourth assigned error, Pate argued the trial court erred when it ordered
restitution in violation of R.C. 2929.18. However, because Pate failed to object to the
restitution order, he waived all but plain error.
{¶37} Crim.R. 52(B) provides that “[p]lain errors or defects affecting substantial
rights may be noticed although they were not brought to the attention of the court.
Notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of justice.” State v.
Davis, 8th Dist. Cuyahoga No. 99023, 2013-Ohio-2539, quoting State v. Long, 53 Ohio
St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. In order to find plain
error under Crim.R. 52(B), it must be determined that, but for the error, the outcome of
the proceedings clearly would have been otherwise. Id. at paragraph two of the syllabus.
{¶38} Pate contends the court’s restitution order violates R.C. 2929.18(A)(1) that
provides in relevant part:
Restitution by the offender to the victim of the offender’s
crime * * * in an amount based on the victim’s economic loss. * * * If the
court imposes restitution, at sentencing, the court shall determine the
amount of restitution to be made by the offender. If the court imposes
restitution, the court may base the amount of restitution it orders on an
amount recommended by the victim, the offender, a presentence
investigation report, * * * and other information, provided that the amount
the court orders as restitution shall not exceed the amount of the economic
loss suffered by the victim as a direct and proximate result of the
commission of the offense. If the court decides to impose restitution, the
court shall hold a hearing on restitution if the offender, victim, or survivor
disputes the amount.
{¶39} “Economic loss” is defined as “any economic detriment suffered by a victim
as a direct and proximate result of the commission of an offense and
includes * * * any property loss * * * incurred as a result of the commission of the
offense.” R.C. 2929.01(L).
{¶40} In the instant case, the record reveals that the trial court ordered restitution
in the stated amount required to repair the damage to Vega’s car. At sentencing, the
assistant city prosecutor indicated that she had a receipt for the damage to the vehicle in
the amount of $450. Therefore, the trial court’s judgment ordering Pate to pay restitution
of $450 was not in excess of the economic loss that Vega suffered as a result of Pate’s
action. Accordingly, we overrule the fourth assigned error.
{¶41} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE
MELODY J. STEWART, A.J., and
TIM McCORMACK, J., CONCUR