State v. Pottorf , 2014 Ohio 5399 ( 2014 )

[Cite as State v. Pottorf, 2014-Ohio-5399.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2014-03-046
: OPINION
- vs - 12/8/2014
:
RALPH W. POTTORF, JR., :
Defendant-Appellant. :
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
Case No. 14 CR 29742
David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 500 Justice Drive,
Lebanon, Ohio 45036, for plaintiff-appellee
William F. Oswall, Jr., 810 Sycamore Street, Fifth Floor, Cincinnati, Ohio 45202, for
defendant-appellant
RINGLAND, P.J.
{¶ 1} Defendant-appellant, Ralph Pottorf, Jr., appeals his conviction in the Warren
County Court of Common Pleas for operating a vehicle while under the influence of alcohol
and the accompanying specification that within 20 years of committing the offense, he
previously had been convicted of, or pleaded guilty to, five or more equivalent offenses. For
the reasons that follow, we affirm the judgment of the trial court.
Warren CA2014-03-046
{¶ 2} On December 21, 2013, Fred Vonderhaar was in his farm workshop on SR 42
in Warren County when he heard a crash. Upon checking, Vonderhaar observed a light tan
Honda stuck in his security fence and rocking back and forth in an unsuccessful effort to get
out. Vonderhaar saw the Honda hit his truck, which was parked alongside the fence, several
times. Vonderhaar called 911 and read the Honda's license plate number to the operator.
Vonderhaar continuously monitored the situation until a deputy arrived. Vonderhaar saw
appellant exit the vehicle and walk south on SR 42. Vonderhaar saw appellant walk down
the middle of the lane "with no idea of what was going on behind him, whether a car was
approaching him, whether there was any traffic behind him or anything."
{¶ 3} Deputy Steven Ritchie responded to the scene and saw appellant, unsteady on
his feet, walking along SR 42. Deputy Ritchie made contact with appellant and observed that
he had bloodshot, glassy eyes and had an odor of an alcoholic beverage on or about his
person. When Deputy Ritchie asked appellant what he was doing, appellant said he was just
out for a walk. When Deputy Ritchie asked appellant if he was walking away from the vehicle
that was stuck in Vonderhaar's fence, appellant denied that he was. Appellant also denied
driving the vehicle. Deputy Ritchie patted down appellant to check for weapons and placed
him in his cruiser. Deputy Ritchie noticed a set of keys hanging from appellant's side that
included a large silver ignition key. Deputy Ritchie ran the Honda's license plate number and
discovered that the vehicle was registered to appellant. When Deputy Ritchie confronted him
with this information, appellant still denied that he had driven the vehicle. When Deputy
Ritchie asked appellant if the vehicle was his son's car, appellant replied, "yeah, that kind of
looks like it." After discovering that appellant’s license was suspended, Deputy Ritchie
arrested appellant, placed handcuffs on him and waited for the tow truck. Deputy Ritchie
obtained keys from appellant and noticed that the ignition key was missing. Deputy Ritchie
did not perform any field sobriety tests on appellant out of concern that appellant might
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become violent since appellant had been drinking alcohol and the deputy had determined
that appellant's license was suspended. After the wrecked Honda was towed, Deputy Richie
transported appellant to the jail.
{¶ 4} At the jail, Deputy Ritchie read appellant the BMV 2255 form, informing him of
the consequences of refusing to take a breathalyzer test. When Deputy Ritchie asked
appellant to submit to a breathalyzer test, he refused. Appellant also refused to sign the
2255 form and the citation issued by Deputy Ritchie. Deputy Scott Stavermann was also
present at appellant's booking. Deputy Stavermann, like Deputy Ritchie, noticed there was a
strong odor of alcoholic beverage on appellant's breath. Deputy Stavermann also noticed
that appellant's speech was slurred. When Deputy Stavermann asked appellant where he
lived, appellant answered, "you decide where I live." During appellant's booking, Deputy
Ritchie heard a metallic clang when appellant removed his shoes, and Deputy Ritchie then
saw the ignition key on the floor. Deputy Ritchie later used the key to unlock and start the
wrecked Honda.
{¶ 5} Appellant was indicted for operating a vehicle while under the influence of
alcohol or drugs, a third-degree felony, in violation of R.C. 4511.19(A)(1)(a) (Count I) and for
operating a vehicle while under the influence of alcohol or drugs, a third-degree felony, in
violation of R.C. 4511.19(A)(2)(a)-(b) (Count II). Both counts were accompanied by a
specification charging appellant with having committed five or more equivalent offenses
within the last 20 years in violation of R.C. 2941.1413(A).
{¶ 6} A jury trial was conducted. The state called Vonderhaar and Deputies Ritchie
and Stavermann, who testified to the facts related above. Appellant presented the testimony
of his girlfriend, Violet McElroy, who stated that she came to the scene of the accident as she
was being driven home by her boss. McElroy recognized appellant's car and then appellant.
McElroy testified that appellant did not have slurred speech, bloodshot eyes or an odor of
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alcoholic beverage on or about him. Appellant, testifying on his own behalf, stated that the
accident occurred when he hit a puddle of water that caused him to cross lanes and slide into
a fence. Appellant admitted he had been involved in the accident and that he had lied to
Deputy Ritchie, but appellant denied drinking. Appellant also testified that he had not had
any alcohol since May 2011.
{¶ 7} During its cross-examination of appellant, the state showed appellant one of his
credit card receipts that showed appellant's credit card had been used on December 8, 2013
to purchase a beer. Appellant explained that his credit card "could have been used by [his]
son." The state called Deputy Ritchie as a rebuttal witness. Deputy Ritchie testified that
McElroy came to the accident scene and confronted appellant and asked him why he had
been drinking but appellant did not respond. Deputy Ritchie testified that when he asked
McElroy how she realized appellant had been drinking, McElroy told the deputy that she
could smell the odor of alcoholic beverage on appellant.
{¶ 8} The jury found appellant guilty on both counts. The trial court sentenced
appellant to 36 months for his conviction on the OVI charge in Count II and ordered him to
serve this sentence consecutively to the five-year prison term that the trial court sentenced
appellant to serve for his conviction on the specification that accompanied Count II. Count
One was merged for sentencing purposes.
{¶ 9} Assignment of Error No. 1:
{¶ 10} THE TRIAL COURT ERRED IN ENTERING A FINDING OF GUILTY ON THE
JURY VERDICT BECAUSE SUCH VERDICT WAS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.
{¶ 11} Assignment of Error No. 2:
{¶ 12} THE EVIDENCE ADDUCED AT TRIAL IS INSUFFICIENT TO UPHOLD A
CONVICTION THEREBY DENYING THE APPELLANT HIS RIGHT TO DUE PROCESS AS
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GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE U.S. CONSTITUTION AND
ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.
{¶ 13} Assignment of Error No. 3:
{¶ 14} THE TRIAL COURT ERRED BY IMPOSING A SENTENCE THAT IS NOT
SUPPORTED BY THE FINDINGS IN THE RECORD.
{¶ 15} In his first assignment of error, appellant argues the jury's verdict finding him
guilty of two counts of operating a vehicle under the influence of alcohol and the
accompanying specifications to those counts was against the manifest weight of the
evidence. However, a review of the evidence makes it clear that the jury's decision to convict
appellant on both counts and the accompanying specifications was supported by
overwhelming evidence.
{¶ 16} The evidence shows that appellant lost control of his car and wrecked it and
that the vehicle became stuck under a fence. When appellant tried to free his vehicle by
rocking it back and forth, he hit Vonderhaar's truck several times in the process. Vonderhaar
testified that appellant got out of the vehicle and walked down the middle of the lane "with no
idea of what was going on behind him, whether a car was approaching him, whether there
was any traffic behind him or anything." Deputy Ritchie stopped appellant and observed that
he was unsteady on his feet. Appellant displayed physical signs of having been drinking and
being impaired. He had bloodshot and glassy eyes and the odor of alcohol about his person.
Appellant denied being the Honda's driver, but the vehicle was registered in his name and he
had the keys to the vehicle.
{¶ 17} Additionally, when appellant was arrested, he refused to take the breathalyzer
test and also refused to sign the 2255 form and citation. When appellant was booked,
Deputy Stavermann, like Deputy Ritchie, noticed there was a strong odor of alcoholic
beverage on appellant's breath. Deputy Stavermann testified that appellant was
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uncooperative. For example, when Deputy Stavermann asked appellant where he lived,
appellant told the deputy to decide where he lived. When appellant was removing his shoes
during his booking, the ignition key to the wrecked Honda fell out of his boot. Appellant
displayed a subjective belief of guilt by attempting to leave the scene, lying about what
happened, and refusing a breath test. The state's evidence of appellant's guilt on both
counts of OVI and the accompanying specifications was overwhelming.
{¶ 18} Therefore, appellant's first assignment of error is overruled.
{¶ 19} In his second assignment of error, appellant argues the trial court erred by
permitting the state to introduce the receipt showing that a beer had been purchased with his
credit card on December 8, 2013 to rebut his testimony that he had not drank any alcohol
since May 2011. Appellant argues the state was obligated under Crim.R. 16(B)(3) to provide
him with a copy of the receipt, and since the state failed to do so, the trial court should have
excluded the receipt as evidence at his trial. Appellant asserts that if he had known that the
state possessed this evidence, he would have called his son to testify to corroborate his
testimony that his son, not him, used the credit card to buy beer. He asserts that the state's
failure to disclose the receipt "was material so as to deny [him] due process" and that "[t]he
non-disclosure [of the receipt] undermined the reliability of the outcome of the proceedings."
We find these arguments unpersuasive.
{¶ 20} "A finding of harmless error is appropriate where there is 'overwhelming
evidence of guilt' or 'some other indicia that the error did not contribute to the conviction.'"
State v. Morgan, 12th Dist. Butler Nos. CA2013-08-146, CA2013-08-147, 2014-Ohio-2472, ¶
46, quoting State v. Sims, 12th Dist. Butler No. CA2007-11-300, 2009-Ohio-550, ¶ 34,
quoting State v. Ferguson, 5 Ohio St. 3d 160, 166 (1983), fn. 5.
{¶ 21} Here, there was overwhelming evidence that appellant was guilty of both counts
of OVI and the accompanying specifications, and the error alleged by appellant did not
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contribute to his conviction. Appellant admitted during his testimony that he lied to Deputy
Ritchie numerous times, that he hid the ignition key, that he fled the scene of the crime, that
he drove while his license was suspended and that he falsely told the police that his son had
been driving the Honda at the time of the accident. Vonderhaar testified that appellant
appeared unsure of his footing when he walked away from the accident scene and that
appellant walked down the middle of the lane "with no idea of what was going on behind him,
whether a car was approaching him, whether there was any traffic behind him or anything."
Deputies Ritchie and Stavermann observed that appellant displayed signs of intoxication and
impairment at the time of the accident, including glassy, bloodshot eyes and an inability to
walk steadily. Deputy Stavermann also noted that appellant's speech was slurred. The
evidence of appellant's guilt on the OVI charges was overwhelming, and there is no
reasonable possibility that the error contributed to the conviction. Further, the testimony that
appellant’s son purportedly would have given had appellant been given notice that the state
had the December 8, 2013 receipt in its possession, i.e., that he, not appellant had bought
beer on that date, would have been merely cumulative to appellant's testimony and subject to
impeachment as the testimony of an immediate family member.1
{¶ 22} In light of the foregoing, appellant's second assignment of error is overruled.
{¶ 23} In his third assignment of error, appellant argues the trial court "clearly abused
its discretion and undermined the purpose of the felony sentencing guidelines" by not
ordering a presentence investigation and by not considering all the mitigating factors set forth
in R.C. 2929.12(C)(4). Appellant contends that if the trial court had known more about his
health issues, which include leukemia, heart disease and diabetes, it would have given him a
1. We also reject appellant's claim that the state "knowingly" failed to disclose the receipt to him during
discovery. As the trial court noted, the state did not know that appellant would testify that he had not had any
alcohol since May 2011; it was only when appellant did so testify that the state presented the receipt to rebut
appellant's testimony.
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lesser prison sentence.
{¶ 24} Crim.R. 32.2 states that "[i]n felony cases the court shall, and in misdemeanor
cases the court may, order a presentence investigation and report before imposing
community control sanctions or granting probation." Crim.R. 32.2 does not mandate a
presentence investigation and report except in a felony case in which an offender is
sentenced to community control sanctions. In all other cases, the decision whether or not to
order a presentence investigation and report is left to the trial court's sound discretion. State
v. Adams, 37 Ohio St. 3d 295, 297 (1988).
{¶ 25} Here, the trial court did not abuse its discretion by not ordering a presentence
investigation and report on appellant. The trial court already had sentenced appellant twice
before, and therefore was familiar with his history. We also disagree with appellant's claim
that the trial court "clearly abused its discretion" by not considering the mitigating factors in
R.C. 2929.12(C)(4).
{¶ 26} An appellate court reviews a felony sentence under the standard of review set
forth in R.C. 2953.08(G)(2) to determine whether the sentence is "clearly and convincingly
contrary to law." State v. Hensley, 12th Dist. Warren No. CA2014-01-011, 2014-Ohio-5012,
¶ 28. "A sentence is not clearly and convincingly contrary to law where the record supports
the trial court's findings under R.C. 2929.14(C)(4) and where the trial court considers the
purposes and principles of R.C. 2929.11, as well as the factors listed in R.C. 2929.12,
properly applies postrelease control, and sentences appellant within the permissible statutory
range." Id.
{¶ 27} R.C. 2929.12(C)(4) states:
(C) The sentencing court shall consider all of the following that
apply regarding the offender, the offense, or the victim, and any
other relevant factors, as indicating that the offender's conduct is
less serious than conduct normally constituting the offense:
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***
(4) There are substantial grounds to mitigate the offender's
conduct, although the grounds are not enough to constitute a
defense.
{¶ 28} Here, the trial court considered the statutory factors and sentenced appellant
within the permissible range. The trial court was informed of appellant's health problems
both during the trial and at the time of sentencing, as well as the fact that appellant had made
arrangements to provide support for his two minor children even during his incarceration.
However, as the trial court expressly noted, appellant "continues to drink and drive," and on
this occasion, he drove a vehicle even though his license was under suspension. The record
shows that appellant has committed at least five previous OVI offenses within the last 20
years of his current offenses. Given these circumstances, appellant's sentence is not clearly
and convincingly contrary to law under R.C. 2953.08(G)(2).
{¶ 29} Accordingly, appellant's third assignment of error is overruled.
{¶ 30} Judgment affirmed.
S. POWELL and M. POWELL, JJ., concur.
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