State v. Davis , 2019 Ohio 490 ( 2019 )

[Cite as State v. Davis, 2019-Ohio-490.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
LAWRENCE E. DAVIS,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 16 MA 0174
Criminal Appeal from the
Youngstown Municipal Court of Mahoning County, Ohio
Case No. 16 TRD 2153
BEFORE:
Cheryl L. Waite, Carol Ann Robb, Kathleen Bartlett, Judges.
JUDGMENT:
Affirmed.
Atty. Dana Lantz, Youngstown City Prosecutor and
Atty. Shelli Freeze, Assistant Prosecuting Attorney
9 West Front Street, Youngstown, Ohio 44503, for Plaintiff-Appellee
No Brief Filed.
Atty. Wesley A. Johnston, P.O. Box 6041, Youngstown, Ohio 44501, for Defendant-
Appellant.
Dated: February 1, 2019
WAITE, P.J.
–2–
{¶1} Appellant Lawrence E. Davis appeals an October 26, 2016 Youngstown
Municipal Court judgment entry convicting him of driving under suspension. Appellant
argues that his conviction is not supported by sufficient evidence and is against the
manifest weight of the evidence. For the reasons provided, Appellant’s arguments are
without merit and the judgment of the trial court is affirmed.
Factual and Procedural History
{¶2} On June 22, 2016, the Youngstown Police Department received a call
from a woman requesting assistance in an incident involving Appellant, who is the father
of her child. Officers David Wilson, Nicholas Bailey, and Pat Mulligan arrived at the
woman’s house. By that time, the woman informed the officers Appellant had left. As
the officers continued to speak with the woman, she noticed a white van driving around
the corner and identified Appellant as the driver. Appellant parked the van, got out, and
approached the officers. Officer Wilson obtained Appellant’s personal information and
ran it through the Law Enforcement Automated Data System (“LEADS”). Officer Wilson
discovered that Appellant’s driver’s license was suspended and gave him a ticket.
{¶3} The matter proceeded to a one-day bench trial. At trial, Appellant
appeared pro se and argued that he was not driving the van at the time he made
contact with the officers, thus could not have been driving under suspension. The trial
court found Appellant guilty. The court sentenced Appellant to one year of probation.
The court also imposed forty hours of community service and a $100 fine. Appellant
timely appeals his conviction.
ASSIGNMENT OF ERROR
Case No. 16 MA 0174
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THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE TRIAL
COURT'S VERDICT OF GUILTY AS TO DRIVING UNDER
SUSPENSION AND APPELLANT'S CONVICTION WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
{¶4} “Sufficiency of the evidence is a legal question dealing with adequacy.”
State v. Pepin-McCaffrey, 186 Ohio App. 3d 548, 2010-Ohio-617, 929 N.E.2d 476, ¶ 49
(7th Dist.), citing State v. Thompkins, 78 Ohio St. 3d 380, 386, 678 N.E.3d 541 (1997).
“Sufficiency is a term of art meaning that legal standard which is applied to determine
whether a case may go to the jury or whether evidence is legally sufficient to support
the jury verdict as a matter of law.” State v. Draper, 7th Dist. No. 07 JE 45, 2009-Ohio-
1023, ¶ 14, citing State v. Robinson, 162 Ohio St. 486, 124 N.E.2d 148 (1955). When
reviewing a conviction for sufficiency of the evidence, a reviewing court does not
determine “whether the state's evidence is to be believed, but whether, if believed, the
evidence against a defendant would support a conviction.” State v. Rucci, 7th Dist. No.
13 MA 34, 2015-Ohio-1882, ¶ 14, citing State v. Merritt, 7th Dist. No. 09-JE-26, 2011-
Ohio-1468, ¶ 34.
{¶5} In reviewing a sufficiency of the evidence argument, the evidence and all
rational inferences are evaluated in the light most favorable to the prosecution. State v.
Goff, 82 Ohio St. 3d 123, 138, 694 N.E.2d 916 (1998). A conviction cannot be reversed
on the grounds of sufficiency unless the reviewing court determines no rational trier of
fact could have found the elements of the offense proven beyond a reasonable doubt.
Id.
Case No. 16 MA 0174
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{¶6} Weight of the evidence concerns “the inclination of the greater amount of
credible evidence, offered in a trial, to support one side of the issue rather than the
other.” (Emphasis deleted.) Thompkins, 78 Ohio St. 3d at 387. It is not a question of
mathematics, but depends on the effect of the evidence in inducing belief. Id. Weight
of the evidence involves the state's burden of persuasion. Id. at 390 (Cook, J.
concurring). The appellate court reviews the entire record, weighs the evidence and all
reasonable inferences, considers the credibility of witnesses, and determines whether,
in resolving conflicts in the evidence, the jury clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be reversed. State v. Lang, 129
Ohio St. 3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 220, citing Thompkins, at 387.
This discretionary power of the appellate court to reverse a conviction is to be exercised
only in the exceptional case in which the evidence weighs heavily against the
conviction. Id.
{¶7} “[T]he weight to be given the evidence and the credibility of the witnesses
are primarily for the trier of the facts.” State v. Hunter, 131 Ohio St. 3d 67, 2011-Ohio-
6524, 960 N.E.2d 955, ¶ 118, quoting State v. DeHass, 10 Ohio St. 2d 230, 227 N.E.2d
212 (1967), paragraph one of the syllabus. The trier of fact is in the best position to
weigh the evidence and judge the witnesses' credibility by observing their gestures,
voice inflections, and demeanor. Seasons Coal Co. v. Cleveland, 10 Ohio St. 3d 77, 80,
461 N.E.2d 1273 (1984). The jurors are free to believe some, all, or none of each
witness' testimony and they may separate the credible parts of the testimony from the
incredible parts. State v. Barnhart, 7th Dist. No. 09 JE 15, 2010-Ohio-3282, ¶ 42, citing
State v. Mastel, 26 Ohio St. 2d 170, 176, 270 20 N.E.2d 650 (1971). When there are
Case No. 16 MA 0174
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two fairly reasonable views of the evidence or two conflicting versions of events, neither
of which is unbelievable, we will not choose which one is more credible. State v. Gore,
131 Ohio App. 3d 197, 201, 722 N.E.2d 125 (7th Dist.1999).
{¶8} Pursuant to R.C. 4510.11(A):
(A) Except as provided in division (B) of this section and in sections
4510.111 and 4510.16 of the Revised Code, no person whose driver's or
commercial driver's license or permit or nonresident operating privilege
has been suspended under any provision of the Revised Code, other than
Chapter 4509. of the Revised Code, or under any applicable law in any
other jurisdiction in which the person's license or permit was issued, 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.
{¶9} Appellant argues that his conviction is not supported by sufficient evidence
and is against the manifest weight of the evidence. Appellant provides four conclusory
statements as his arguments and does not cite to any legal authority. First, Appellant
claims that Officer Bailey did not run a license check to determine the status of
Appellant’s license. It appears, however, that Appellant did not carefully review the
testimony of Officers Wilson and Bailey. Officer Wilson testified that he ran Appellant’s
personal information through the system and discovered that his driver’s license was
suspended. (9/14/16 Tr., pp. 7-9.) Officer Bailey testified that he did not run a check on
Case No. 16 MA 0174
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Appellant’s information because that process was completed by Officer Wilson.
(9/14/16 Tr., p. 16.) Thus, Appellant’s personal information was processed through
LEADS at the time of the incident.
{¶10} Second, Appellant argues that, although he did not take the stand to
testify, his pro se cross-examination of the witnesses should be considered testimonial
in nature. Appellant’s argument that statements made by him while serving as his own
counsel should serve as testimony must fail as this is an obvious attempt to circumvent
the state’s right to cross-examine him. “[W]hen a defendant takes the stand in his own
defense, he is subject to cross-examination on all relevant issues including his
credibility.” State v. Phillips, 8th Dist. No., 2010-Ohio-5130, ¶ 32, citing State v. Fannin,
8th Dist. No. 80014, 2002-Ohio-4180, ¶ 77; State v. Landrum, 53 Ohio St. 3d 107, 559
N.E.2d 710 (1990). Appellant did not take the stand and was not subject to cross-
examination by the state. He cannot avoid the state’s right to cross-examine him by
disguising his cross-examination of the witnesses as his “testimony.”
{¶11} Regardless, Appellant has not explained how his cross-examination
questioning would affect the case. At trial, Appellant appears to concede that his
license was suspended. However, he argued that he could not be guilty of driving
under suspension because he was not driving the van at the time he made contact with
the officers. (9/14/16 Tr., p. 10.) Even if his statements could be considered
“evidence,” officers observed Appellant driving the van before he parked it and
approached them, and discovered his license was suspended through the use of
LEADS. Thus, the elements of driving under a suspension were met.
Case No. 16 MA 0174
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{¶12} Third, he argues that his driver’s license record was admitted without the
appearance or testimony of the custodians of the record. Exhibit A is a certified copy of
Appellant’s driving record, which revealed his suspension. Importantly, Appellant did
not file a motion to suppress these records and did not object to introduction of the
certified copy of exhibit A at trial. We have previously reviewed whether a LEADS
driving record report constitutes inadmissible hearsay. State v. Lett, 7th Dist. No. 08
MA 194, 2009-Ohio-5268. In Lett, this Court explained:
A LEADS report is a public record, pursuant to Evid.R. 901(B)(7), and
requires authentication prior to being admissible. Extrinsic evidence of
authenticity is not required for certain domestic public documents and for
certified copies of public records as these are self-authenticating. Evid.R.
902(1), (2), and (4). However, “the certification must be accompanied by
a seal before the copies would be self authenticating.”
Id. at ¶ 23, citing State v. Peterson, 11th Dist. No. 96-T-5464, 1996 WL 761231, *6
(Nov. 29, 1996). While exhibit A is not included within the appellate record, the
transcripts reflect that this exhibit consists of a certified copy of Appellant’s driving
record. (9/14/16 Tr., p. 8.) As such, in accordance with Lett, exhibit A is a self-
authenticating public record.
{¶13} In addition to Appellant’s driving record, Officer Wilson testified that he
observed Appellant driving a white paneled van. (9/14/16 Tr., p. 9.) Officer Wilson then
ran Appellant’s personal information through LEADS and discovered his license
suspension. Thus, Appellant’s conviction is supported by sufficient competent and
credible evidence.
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{¶14} Accordingly, Appellant’s sole assignment of error is without merit and is
overruled.
Conclusion
{¶15} Appellant argues that his driving under suspension conviction is not
supported by sufficient evidence and is against the manifest weight of the evidence.
The record contains sufficient competent and credible evidence to support Appellant’s
conviction. Accordingly, Appellant’s arguments are without merit and the judgment of
the trial court is affirmed.
Robb, J., concurs.
Bartlett, J., concurs.
Case No. 16 MA 0174
[Cite as State v. Davis, 2019-Ohio-490.]
For the reasons stated in the Opinion rendered herein, the assignment of error is
overruled and it is the final judgment and order of this Court that the judgment of the
Youngstown Municipal Court of Mahoning County, Ohio, is affirmed. Costs waived.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.