[Cite as State v. Gray, 2010-Ohio-2530.]




                            STATE OF OHIO, MAHONING COUNTY

                                   IN THE COURT OF APPEALS

                                           SEVENTH DISTRICT


STATE OF OHIO,                                   )
                                                 )     CASE NO.     09 MA 33
        PLAINTIFF-APPELLEE,                      )
                                                 )
        - VS -                                   )     OPINION
                                                 )
RICHARD GRAY,                                    )
                                                 )
        DEFENDANT-APPELLANT.                     )


CHARACTER OF PROCEEDINGS:                        Criminal Appeal from Youngstown Municipal
                                                 Court, Case No. 08TRD3156.


JUDGMENT:                                       Affirmed.


APPEARANCES:
For Plaintiff-Appellee:                          Attorney Joseph Macejko
                                                 Prosecuting Attorney
                                                 Attorney Bret Hartup
                                                 Senior Assistant Law Director
                                                 26 South Phelps Street
                                                 Youngstown, Ohio 44503

For Defendant-Appellant:                         Attorney Douglas King
                                                 91 West Taggart Street,
                                                 P.O. Box 85
                                                 East Palestine, Ohio 44413


JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Mary DeGenaro
                                         Dated: June 4, 2010

VUKOVICH, P.J.


       ¶{1}   Defendant-appellant Richard      Gray appeals      the decision of     the
Youngstown Municipal Court finding him guilty of driving under suspension, a violation
of R.C. 4510.11(A) and, Obedience to Traffic Control Device, a violation of
Youngstown Ordinance 313.01. Two issues are raised in this appeal. The first is
whether the state produced sufficient evidence to prove that Gray was the individual
who committed the offenses. The second issue is whether the conviction is against
the manifest weight of the evidence. For the reasons expressed below, the judgment
of the trial court is hereby affirmed.
                       STATEMENT OF THE FACTS AND CASE
       ¶{2}   On July 9, 2008, Youngstown State University Police Sergeant Brian
Remias observed a 1991 gray Buick Century fail to stop at Champion and East Rayen,
run over the curb while turning onto East Rayen and almost hit his patrol car. (Tr. 7,
8). Sergeant Remias activated his lights and sirens. (Tr. 7). The 1991 gray Buick
Century eventually stopped on East Wood Street in front of the Gutknecht Towers
apartment building. (Tr. 10). Sergeant Remias approached the car, observed that
there was only the driver in the car and asked the driver for his license and
registration. Since the driver did not have identification on him, he gave the sergeant a
social security number and a date of birth. Sergeant Remias ran that information
through Law Enforcement Automated Data System (LEADS). LEADS indicated that
the social security number and date of birth belonged to Richard Gray and provided a
physical description of Gray. From the LEADS description and an identification made
by a person in the parking lot of Gutknecht Towers, the sergeant was satisfied that the
driver was Richard Gray and issued him a citation. He was cited for failing to stop at a
stop sign and also since LEADS indicated that Gray’s license was suspended, he was
cited for driving under suspension.
       ¶{3}   The case went to trial on January 26, 2009. At trial, Gray asserted that
he was not the individual driving the car; he claimed that the driver had given the
sergeant his social security number and date of birth. After hearing the evidence, the
trial court found Gray guilty of both offenses. For driving under suspension he was
fined $150 plus court costs. For failing to obey a stop sign he was fined $50 plus court
costs. He was additionally placed on probation for a year and ordered to perform 200
hours of community service within 45 days. 01/26/09 J.E. This timely appeal follows.
                          FIRST ASSIGNMENT OF ERROR
      ¶{4}   “THE    STATE     OF   OHIO    FAILED     TO   PRODUCE       SUFFICIENT
EVIDENCE AS TO THE IDENTITY OF THE DEFENDANT/APPELLANT.”
      ¶{5}   Sufficiency of the evidence is a question of law that deals with adequacy
rather than the more discretionary concept of weight of the evidence.          State v.
Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52. In viewing a sufficiency of the
evidence argument, a conviction will not be reversed unless the reviewing court
determines that no rational fact-finder could have found that the elements of the
offense were proven beyond a reasonable doubt. State v. Goff, 82 Ohio St.3d 123,
138, 1998-Ohio-369. In conducting this review, we evaluate the evidence in the light
most favorable to the prosecution. Id.
      ¶{6}   In arguing that the state failed to produce sufficient evidence, Gray does
not focus his argument on the statutory elements of driving under suspension or the
ordinance elements for failing to obey a stop sign. Instead, his argument concentrates
on the state’s alleged failure to identify him as the driver of the 1991 gray Buick
Century.
      ¶{7}   It is an axiom in Ohio that in addition to proof of each element of an
offense, the state must also demonstrate the identity of the defendant as the
perpetrator of the crime beyond a reasonable doubt. State v. Marcum, 7th Dist. No.
03CO36, 2004-Ohio-3036, ¶22, citing State v. Cook (1992), 65 Ohio St.3d 516, 526.
See, also, State v. Scott (1965), 3 Ohio App.2d 239, 244. Merely establishing that the
defendant’s name is the same as that of the alleged offender is insufficient to prove
identity. Marcum, 7th Dist. No. 03CO36, 2004-Ohio-3036, at ¶23. There needs to be
more than mere identity of names, such as an in court identification of the defendant
as the person who committed the crime. However, it is not necessary that the witness
be one hundred percent certain of his or her in court identification of the defendant as
the perpetrator of the crime. Scott, 3 Ohio App.2d at 244. “The degree of a witness’s
certainty goes to weight to be given to his testimony, which is a matter for the trier of
fact to determine, and not to its sufficiency as a matter of law in establishing the
prosecution’s prima facie case.” State v. Capanna (Sept. 20, 1989), 9th Dist. No.
14104. See, also, Scott, 3 Ohio App.2d at 244-245.
       ¶{8}   After reviewing the evidence in the light most favorable to the state, we
find that the state met its burden of production for identification. Here, the state did not
merely offer evidence that the citation was issued to Richard Gray and that the
defendant’s name was Richard Gray. Rather, Sergeant Remias positively identified
the defendant as Gray and avowed that Gray was more likely than not the person that
he stopped. (Tr. 7, 24). Admittedly, Sergeant Remias did testify that it was possible
that Gray was not the man he stopped. (Tr. 18-19). However, as explained above,
the certainty of his identification does not render the evidence of identification
insufficient, but rather his possible uncertainty is a fact that can be used to argue that
the verdict was against the weight of the evidence. Consequently, this assignment of
error lacks merit.
                         SECOND ASSIGNMENT OF ERROR
       ¶{9}   “DEFENDANT/APPELLANT’S             CONVICTION        IS    AGAINST       THE
MANIFEST WEIGHT OF THE EVIDENCE.”
       ¶{10} Weight of the evidence deals with the inclination of the greater amount of
credible evidence to support one side of the issue over the other. Thompkins, 78 Ohio
St.3d at 387. In reviewing a manifest weight of the evidence argument, the reviewing
court examines 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 trial court clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered. Id.
That said, determinations of witness credibility, conflicting testimony, and evidence
weight are primarily for the trier of the facts. State v. DeHass (1967), 10 Ohio St.2d
230, paragraph one of the syllabus.
       ¶{11} A reversal on weight of the evidence is ordered only in exceptional
circumstances. Thompkins, 78 Ohio St.3d at 387.
       ¶{12} Gray’s argument regarding weight is similar to the argument that he
made under the first assignment of error. He contends that the evidence produced at
trial weighs heavily against the finding that he was the driver of the 1991 gray Buick
Century that was stopped by Sergeant Remias.
       ¶{13} At trial, three witnesses testified: Sergeant Remias, Fredrick Saunders
and Gray. Starting with Sergeant Remias’ testimony, at trial he testified that the stop
occurred around 8:30 p.m. in front of Gutknecht Towers, an apartment building. (Tr. 3,
10). The driver of the Buick did not have identification and instead gave him a social
security number and date of birth. (Tr. 10-11). When that information was run through
LEADS, it indicated that the social security number and date of birth belonged to Gray.
(Tr. 10-11). LEADS also provided an address and physical description of Gray. (Tr.
10, 19). Gray’s address was 110 East Wood Street, which is Gutknecht Towers. (Tr.
11). For the physical description, it stated an actual age, height, weight, hair color and
eye color. (Tr. 23). While Sergeant Remias did not testify as to what the actual
description given by LEADS was, he did avow that physical description for Richard
Gray matched the driver. (Tr. 19). Furthermore, Officer Remias asked an individual
standing in front of Gutknecht Towers if he knew the driver and the individual identified
the driver as Gray. (Tr. 12).
       ¶{14} Despite the above, Officer Remias admitted during cross-examination
that it is possible that he does not accurately remember Gray and that he could be
mistaken as to Gray’s identity as the driver. (Tr. 18-19). However, on redirect he
explained that statement:
       ¶{15} “Q.      Now, when you said it is possible that it couldn’t be him when
Counsel asked that question, is that because this happened in July?”
       ¶{16} “A. Yes, with the time.
       ¶{17} “* * *
       ¶{18} “Q.      So you are not going to stand here and say with 100 percent
certainty that’s the man that you stopped, is that correct?
       ¶{19} “A. Correct.
       ¶{20} “Q. And the reason for you not saying that is what?
       ¶{21} “A. Because of the time from July until now [January] and I wouldn’t
want to see the wrong person get convicted of this.
       ¶{22} “Q. Fair enough. All the information that you had in July that you were
able to testify to as to assuring yourself that was Mr. Gray at the time of the stop was
sufficient enough in your mind that you had, in fact, arrested Mr. Gray for that citation”
       ¶{23} “A. That’s correct.” (Tr. 24-25).
       ¶{24} Fredrick Saunders, owner of the 1991 gray Buick Century and part
owner of, Chariot Auto, testified next. (Tr. 27). He testified that on July 9, 2008, John
Nelson, one of his employees, used the car and that as far as he knew Nelson was the
only one that had the vehicle. (Tr. 29). He testified that at 5:30 p.m. or 6:00 p.m.,
Nelson returned to Chariot Auto and explained that the car had been towed to Ludt’s
Towing. (Tr. 30). The only physical description Saunders provided of Nelson was that
he was between the ages of 55 to 64. (Tr. 31). He indicated that Nelson was a drifter,
he is no longer his employee and that he does not know where Nelson is now. (Tr. 31-
32).
       ¶{25} Lastly, Gray testified. (Tr. 32-38). He avowed that he has never seen
the 1991 gray Buick Century, let alone operate it. (Tr. 36). He indicated that he did
not know of the ticket until he got a summons from the clerk of courts. (Tr. 34). His
defense seemed to be that someone, specifically John Nelson, drove the car and used
his social security number and date of birth when stopped by Sergeant Remias.
       ¶{26} Considering all the evidence, it does not appear that the trier of fact,
which in this instance was the court, clearly lost its way when it found Gray was the
driver of the 1991 gray Buick Century, and thus guilty of the offense. Admittedly,
Sergeant Remias was not a hundred percent certain of his identification of Gray, but
he did indicate that Gray was more likely than not the driver of the car. When the
information given by the driver was entered into LEADS it provided a physical
description of Gray that matched the driver. Furthermore, in addition to the physical
description, the sergeant also asked a bystander if he knew the driver and the
bystander identified the driver as Gray. Given this information, the trial court could
have believed beyond a reasonable doubt that Gray was the driver.
       ¶{27} It is also noted that Gray’s reliance on Saunders’ testimony to show that
Nelson was driving the car does not help.             Saunders’ testimony, if believed,
established that Nelson took the car and returned it at the latest at 6:00 p.m. on the
day in question.     Sergeant Remias testified and the ticket confirms that the stop
occurred around 8:30 p.m. Consequently, Saunders’ testimony does not correspond
with the ticket or Sergeant Remias’ testimony and, as such, renders his testimony
partially suspect.    Furthermore, Saunders’ testimony did not provide a physical
description of Nelson, all Saunders indicated was that Nelson was between 55 and 64
years old. The evidence in the record indicates that Gray was born September 3,
1948, and as such at the time of the offense in July 2008 he was 59 years old. While
their ages may correspond, without a further description of Nelson and when
considering Sergeant Remias’ testimony, it is difficult to conclude the trial court lost its
way and created a manifest miscarriage of justice when it found Gray guilty. This
assignment of error lacks merit.
       ¶{28} Neither assignment of error has merit.         The state met its burden of
production and the verdict was not against the manifest weight of the evidence.
                                     CONCLUSION
       ¶{29} For the foregoing reasons, the judgment of the trial court is hereby
affirmed.

Donofrio, J., concurs.
DeGenaro, J., concurs.
