[Cite as State v. Thompson, 2011-Ohio-1739.]




                          IN THE COURT OF APPEALS OF OHIO
                             SECOND APPELLATE DISTRICT
                                MONTGOMERY COUNTY

STATE OF OHIO                                     :
                                                  :      Appellate Case No. 23935
        Plaintiff-Appellee                        :
                                                  :      Trial Court Case No. 2010-TRD-385
v.                                                :
                                                  :
ELISE THOMPSON                           :        (Criminal Appeal from Dayton
                                                  :      (Municipal Court)
        Defendant-Appellant              :
                                                  :

                                               ...........

                                               OPINION

                              Rendered on the 8th day of April, 2011.

                                               ...........

JOHN DANISH, Atty. Reg. #0046639, and STEPHANIE COOK, Atty. Reg. #0067101, by
SHAUNA HILL, Atty. Reg. #0074569, City of Dayton Prosecutor’s Office, 335 West Third
Street, Room 372, Dayton, Ohio 45402
        Attorney for Plaintiff-Appellee

WILMER J. DECHANT, JR., Atty. Reg. #0085084, 257 Regency Ridge Drive, Centerville,
Ohio 45459
       Attorney for Defendant-Appellant

                                                       .............

HALL, J.

        {¶ 1} Elise Thompson appeals from her conviction and sentence following a bench

trial on one count of wrongful entrustment, a first-degree misdemeanor.
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       {¶ 2} In two related assignments of error, Thompson challenges the legal sufficiency

and manifest weight of the evidence to support her conviction.

       {¶ 3} The State’s sole witness at trial was Dayton police officer Ashley Bozarth. She

testified that she was sitting in a marked police car in a gas station parking lot when a van

pulled in and stopped at a gas pump. According to Bozarth, she saw a male, later identified as

Antwon Blevins, drive the van up to the gas pump. After the van stopped, Bozarth saw

Thompson, a passenger in the van, switch places with Blevins and occupy the driver’s seat. A

third person exited the van and went into the gas station. After that person returned to the van,

Bozarth watched Thompson pull out of the parking lot and fail to stop at a crosswalk.

       {¶ 4} Before initiating contact with the van’s occupants, Bozarth ran a computer

search of its license plate and discovered that it was registered to Thompson. The search also

revealed that police previously had warned Thompson for allowing a person named Andre

Faircloth to drive her van while under a license suspension. Based on the physical description

of Faircloth that she received, Bozarth suspected that he was the male who had driven the van

into the parking lot.

       {¶ 5} Bozarth then pulled the van over to cite Thompson for failing to stop at the

crosswalk. After approaching the van, she discovered that the male who had driven into the

parking lot actually was Antwon Blevins, who also had a suspended driver’s license. As a

result, Bozarth cited Thompson for wrongful entrustment but did not issue a citation for the

crosswalk violation.

       {¶ 6} On direct examination, the following exchange occurred between the

prosecutor and Bozarth:
                                                                                                                                    3


         {¶ 7} Q: “OK. Do you know if – or did you speak with the owner of the vehicle,

which is the defendant, regarding the driver that you initially observed?”

         {¶ 8} A: “Correct. When I issued her the citation for wrongful entrustment I told her

that she’s been told that before not to allow Mr. Faircloth or unlicensed drivers to drive her

vehicle. If she knew he [Blevins] didn’t have a license why would she let him and she advised

me that her bell palsy was hurting her and that’s why she had him drive.”

         {¶ 9} Q: “And did she – did you learn from the defendant what her relationship was

with Mr. Blevins?”

         {¶ 10} A: “Yeah she said it was her brother I believe.”

         {¶ 11} Q: “And at any point did she indicate that she was aware that Mr. Blevins did

not have a valid driver’s license?”

         {¶ 12} A: “I told her you know he doesn’t have a license. Why are you letting him

drive? She said because my bell palsy was hurting.” (Trial transcript at 11).

         {¶ 13} After the State rested, Blevins and Thompson testified as defense witnesses.

They both denied that Blevins had driven the van into the gas station parking lot. They insisted

that Bozarth was mistaken and that Thompson had been the only driver. The trial court

concluded otherwise and found Thompson guilty. It imposed a suspended thirty-day jail

sentence and one year of unsupervised probation. It also suspended Thompson’s driver’s

license for six months, ordered her van to be impounded for thirty days, and ordered her to pay

a $50 fine plus court costs. This appeal followed.1


           1
              By their own terms, the probationary period, the driver’s license suspension, and the impoundment have expired. A review of the
 trial court’s docket reveals, however, that Thompson has not yet paid her fine or court costs. Therefore, her appeal is not moot. Cf. State v.
 Golston, 71 Ohio St.3d 224, 226, 1994-Ohio-109, citing State v. Wilson (1975), 41 Ohio St.2d 236, and State v. Berndt (1987), 29 Ohio St.3d 3
                                                                                                                                  4


         {¶ 14} As set forth above, Thompson contends her conviction is based on legally

insufficient evidence and is against the weight of the evidence. Although she raises those

issues separately, her argument under both assignments of error is the same: she claims the

State failed to prove that she knew Blevins lacked the legal ability to drive or that she was

reckless in that regard.

         {¶ 15} When a defendant challenges the sufficiency of the evidence, he or she is

arguing that the State presented inadequate evidence on each element of the offense to sustain

the verdict as a matter of law. State v. Hawn (2000), 138 Ohio App.3d 449, 471. “An appellate

court's function when reviewing the sufficiency of the evidence to support a criminal

conviction is to examine the evidence admitted at trial to determine whether such evidence, if

believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt.

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. Jenks (1991), 61 Ohio St.3d 259, paragraph two

of the syllabus.

         {¶ 16} Our analysis is somewhat different when reviewing a manifest-weight

argument. When a conviction is challenged on appeal as being against the weight of the

evidence, an appellate court must review the entire record, weigh the evidence and all

reasonable inferences, consider witness credibility, and determine whether, in resolving

conflicts in the evidence, the trier of fact “‘clearly lost its way and created such a manifest


 (“[W]here a criminal defendant, convicted of a misdemeanor, voluntarily satisfies the judgment imposed upon him or her for that offense, an
 appeal from the conviction is moot unless the defendant has offered evidence from which an inference can be drawn that he or she will suffer
 some collateral legal disability or loss of civil rights stemming from that conviction.”).
                                                                                           5


miscarriage of justice that the conviction must be reversed and a new trial ordered.’” State v.

Thompkins (1997), 78 Ohio St.3d 380, 387 (citations omitted). A judgment should be reversed

as being against the manifest weight of the evidence “only in the exceptional case in which the

evidence weighs heavily against the conviction.” State v. Martin (1983), 20 Ohio App.3d 172,

175.

         {¶ 17} Having reviewed the record, we conclude that Thompson’s conviction is based

on legally sufficient evidence and is not against the weight of the evidence. Thompson was

cited for violating R.C. 4511.203, which provides in part:

         {¶ 18} “(A) No person shall permit a motor vehicle owned by the person or under the

person’s control to be driven by another if any of the following apply:

         {¶ 19} “(1) The offender knows or has reasonable cause to believe that the other

person does not have a valid driver’s or commercial driver’s license or permit or valid

nonresident driving privileges.

         {¶ 20} “(2) The offender knows or has reasonable cause to believe that the other

person's driver's or commercial driver's license or permit or nonresident operating privileges

have been suspended or canceled under Chapter 4510. or any other provision of the Revised

Code.”

         {¶ 21} The citation Thompson received did not specify which subsection of R.C.

4511.203 she was accused of violating. Exhibits introduced at trial, however, show that

Blevins’ license initially had been suspended and then expired after he failed to reinstate it.

For present purposes, this distinction is academic. Thompson raises no argument regarding

whether Blevins’ license was suspended or expired at the time in question. On appeal, she
                                                                                             6


concedes that he was not authorized to drive. As set forth above, she argues only that the State

failed to prove the requisite mental state, namely that she “knew or had reasonable cause to

believe” he lacked driving privileges.

       {¶ 22} Thompson contends the only evidence regarding her awareness of Blevins’

driving status is the testimony of officer Bozarth quoted above. Bozarth’s testimony reveals

that police previously had warned Thompson not to allow a person named Andre Faircloth to

drive her vehicle because he was unlicensed. The fact that Thompson knew Faircloth was

unlicensed plainly does nothing to establish her knowledge that Blevins, the driver in this case,

was unlicensed. But Bozarth’s testimony did not stop there.

       {¶ 23} When asked whether she had spoken to Thompson about allowing Blevins to

drive her van, Bozarth responded affirmatively and explained: “When I issued her the citation

for wrongful entrustment I told her that she’s been told that before not to allow Mr. Faircloth

or unlicensed drivers to drive her vehicle. If she knew he [Blevins] didn’t have a license why

would she let him and she advised me that her bell palsy was hurting her and that’s why she

had him drive.” Bozarth then added: “I told her you know he doesn’t have a license. Why are

you letting him drive? She said because my bell palsy was hurting.” (Emphasis added).

       {¶ 24} The crux of Thompson’s appeal concerns whether the trial court reasonably

could have inferred from the foregoing testimony that Thompson knew Blevins was

unlicensed. Thompson insists that such an inference is not reasonable. According to

Thompson, her response about bell palsy explained why she had allowed Blevins to drive but

did not constitute an admission that she knew he was unlicensed.

       {¶ 25} Upon review, we find Thompson’s argument to be unpersuasive. The trial court
                                                                                             7


reasonably could have inferred from Bozarth’s testimony that Thompson implicitly had

admitted knowing Blevins’ license status. When Bozarth first asked Thompson why she had

let Blevins drive if she knew he lacked a license, Thompson did not deny having such

knowledge. She responded only that she had allowed him to drive because her bell palsy was

hurting.

       {¶ 26} It is well settled that “[a]n accused person may incriminate himself, not only by

his direct statements but also by declarations or conduct by which he impliedly admits the

truth of charges made against him. Thus, silence in the face of an accusation of crime may

constitute conduct or circumstances from which his admission of guilt may be inferred. When

a statement tending to involve one in the commission of a crime is made in his presence and

hearing and such statement is not denied, contradicted or objected to by him, both the

statement and the fact of his failure to deny it are admissible against him as evidence of his

acquiescence in its truth. His conduct constitutes what is known as a tacit or silent or adoptive

admission.” State v. Brown (June 9, 1987), Columbiana App. No. 85-C-42; see, also, State v.

Gibson, Greene App. No. 09-CA-05, 2010-Ohio-1121, ¶15-16.

       {¶ 27} As set forth above, Bozarth asked Thompson why she had allowed Blevins to

drive if she knew he lacked a license. This suggestion that Thompson knew Blevins was

unlicensed tended to implicate her in the commission of a crime. Because she heard the

statement, Thompson reasonably could have been expected to deny it if it were untrue. She did

not. Instead, she acquiesced in the truth of the assertion that she knew Blevins was unlicensed

and proceeded to explain why she had allowed him to drive. Under these circumstances, the

trial court was entitled to infer that Thompson implicitly had admitted knowing Blevins was

unlicensed. We note, too, that the trial court reasonably could have inferred a consciousness of
                                                                                            8


guilt from the fact that Thompson quickly replaced Blevins as the driver after the van pulled

into the parking lot near the police car.

        {¶ 28} In reaching the foregoing conclusion, we recognize that a defendant’s

post-arrest silence in the face of incriminating accusations cannot be used to establish an

adoptive admission. “[P]ost-arrest silence is not a reliable indication of an adoptive admission

because an arrestee may simply be exercising the right to remain silent after being given

Miranda warnings.” State v. Comstock (Aug. 29, 1997), Ashtabula App. No. 96-A-0058,

citing Doyle v. Ohio (1976), 426 U.S. 610. The present case, however, does not involve an

issue of post-arrest silence following Miranda warnings. There were no Miranda warnings,

and there was no arrest. After her discussion with Thompson, officer Bozarth merely issued a

traffic citation.

        {¶ 29} Having reviewed the record, we believe a rational trier of fact could have found

Thompson guilty of wrongful entrustment, and the evidence does not weigh heavily against

her conviction. Accordingly, we overrule the two assignments of error and affirm the

judgment of the Dayton Municipal Court.

                                                  .............

GRADY, P.J., and DONOVAN, J., concur.




Copies mailed to:

John Danish
Stephanie Cook
Shauna Hill
Wilmer J. Dechant, Jr.
Hon. Christopher D. Roberts
