[Cite as State v. Cassidy, 2017-Ohio-5677.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio/City of Toledo                      Court of Appeals No. L-15-1291

        Appellee                                  Trial Court No. TRC-15-18127

v.

Michael Cassidy                                   DECISION AND JUDGMENT

        Appellant                                 Decided: June 30, 2017

                                              *****

        David Toska, City of Toledo Chief Prosecutor, and
        Henry Schaefer, Assistant Prosecutor, for appellee.

        Andrew R. Bucher, for appellant.

                                              *****

        OSOWIK, J.

        {¶ 1} This is an appeal from a judgment of the Toledo Municipal Court that

found appellant Michael Cassidy guilty of driving under the influence of alcohol in

violation of Toledo Municipal Code 333.03(A)(1)(a). For the following reasons, the

judgment of the trial court is affirmed.
       {¶ 2} The record reflects that on June 9, 2015, appellant was cited for driving

while under the influence of alcohol. Appellant pled not guilty and the matter proceeded

to a bench trial. Appellant was found guilty and sentenced to 180 days incarceration with

170 days suspended, fine and costs, and a one-year license suspension. Incarceration was

stayed pending appeal.

       {¶ 3} Appellant sets forth the following assignments of error:

              I. The trial court’s denial of the appellant’s Criminal Rule 29 motion

       and subsequent finding of guilt was not supported by sufficient evidence as

       “impaired operation” was not proven by the state.

              II. The trial court’s denial of the appellant’s Criminal Rule 29

       motion and subsequent finding of guilt was against the manifest weight of

       the evidence as “impaired operation” was not proven by the state.

       {¶ 4} Officer Jessica Neal testified at trial that she came into contact with

appellant at approximately 4:56 a.m. June 9, 2015, after receiving a call regarding a

suspicious person sitting in a vehicle on Nebraska Avenue in Toledo, Ohio. Officer Neal

and her partner approached the vehicle as a traffic stop and observed appellant in the

driver’s seat with the engine running. The car was in park and appellant was alone. Neal

testified that appellant appeared to have “passed out.” The officers knocked on the

window to get appellant’s attention but he did not respond immediately. Approximately

two minutes later, upon the officers’ instruction, he stepped on the accelerator and then




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turned off the ignition. Appellant opened the car door and, when the officers asked him

why he was parked there, he said he did not know where he was. Appellant told the

officers he had been at the Déjà Vu club and admitted drinking there. Appellant stated

that his companion decided to leave and took a cab but he decided to drive himself.

Appellant smelled “overwhelmingly” of intoxicants, his eyes were bloodshot and his

speech was slurred. When he stepped out of the car, he staggered and used the door to

hold himself up. Appellant stated he was in Toledo for business but did not know where

he was when he was stopped or where he was staying for the night. After appellant

refused to submit to field sobriety tests he was placed under arrest. He also refused a

breathalyzer test.

       {¶ 5} In support of both assignments of error, appellant essentially asserts that the

state failed to prove that he was under the influence of alcohol at the time he drove his car

to the location of his arrest.

       {¶ 6} Crim.R. 29 mandates that a trial court issue a judgment of acquittal where

the prosecution’s evidence is insufficient to sustain a conviction for the offense. On

review, a sufficiency of the evidence analysis is applied. 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. See State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of




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the syllabus. A manifest weight challenge questions whether the state has met its burden

of persuasion. See State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997).

       {¶ 7} Toledo Municipal Code 333.01 provides in relevant part that “no person

shall operate any vehicle within the Municipality if any of the following apply: (1) the

person is under the influence of alcohol * * *.”

       {¶ 8} In S.B. 123, effective January 1, 2004, the General Assembly specifically

defined “operate” to mean “to cause or have caused movement of a vehicle.” Ohio courts

have found that the prosecuting attorney may prove movement through the use of

circumstantial evidence. See, e.g., Cleveland v. Crawford, 8th Dist. Cuyahoga No.

102110, 2015-Ohio-2402.

       {¶ 9} Appellant insists that to affirm his conviction would amount to penalizing

him for deciding to stop his car to “sleep it off” rather than leave the bar and drive under

the influence. However, to accept that argument would be tantamount to believing that

appellant and his car somehow (unexplained by appellant) were safely transported from

the bar where he consumed alcohol to the location where he was discovered, asleep and

highly intoxicated, without actually driving the car in which he sat alone with the motor

running. Ohio courts have noted a distinction between an individual moving his or her

car while intoxicated and staying put at the location where the person drank:

              A person who is found passed out in his vehicle on the side of the

       highway may be convicted of an OVI because a jury could infer that the




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         vehicle was moved to that location. However, if a person decides to ‘sleep

         it off’ in the parking lot of the bar where the person drank, the person could

         be convicted only of a physical control violation, unless there is evidence of

         movement. City of Cleveland v. Sheppard, 8th Dist. Cuyahoga No.

         103166, 2016-Ohio-7393, ¶ 21, citing State v. Schultz, 8th Dist. Cuyahoga

         No. 90412, 2008-Ohio-4448, ¶ 25.

         {¶ 10} In the case before us, the city’s evidence demonstrated that the officers

discovered appellant in his car with the engine running. After they woke appellant, the

officers observed that his eyes were bloodshot, his speech was slurred and he smelled

heavily of intoxicants. Further, Officer Neal testified that appellant admitted that he

drove away from the bar after drinking. Appellant was alone in the car.

         {¶ 11} Based on the foregoing, we find there was sufficient evidence from which

the trial court could rationally conclude that appellant caused movement of the car while

intoxicated. The trial court did not err in denying appellant’s motion for acquittal.

Further, the conviction was not against the manifest weight of the evidence.

         {¶ 12} Accordingly, appellant’s first and second assignments of error are not well-

taken.

         {¶ 13} On consideration whereof, the judgment of the Toledo Municipal Court is

affirmed. Costs of this appeal are assessed to appellant pursuant to App.R. 24.

                                                                          Judgment affirmed.




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                                                                            State v. Cassidy
                                                                                  L-15-1291




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                         ____________________________
                                                         JUDGE
Arlene Singer, J.
                                                 ____________________________
Thomas J. Osowik, J.                                     JUDGE
CONCUR.
                                                 ____________________________
                                                         JUDGE




          This decision is subject to further editing by the Supreme Court of
     Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
          version are advised to visit the Ohio Supreme Court’s web site at:
                   http://www.supremecourt.ohio.gov/ROD/docs/.




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