[Cite as Cleveland v. Perez, 2011-Ohio-3466.]




          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA



                            JOURNAL ENTRY AND OPINION
                                     No. 95641



                              CITY OF CLEVELAND
                                                PLAINTIFF-APPELLEE

                                                 vs.

                                      PEDRO PEREZ
                                                DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            REVERSED


                                     Criminal Appeal from the
                                    Cleveland Municipal Court
                                    Case No. 2010 TRD 015568

               BEFORE:             Blackmon, J., Kilbane, A.J., and Cooney, J.
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          RELEASED AND JOURNALIZED:              July 14, 2011
                                       -i-

ATTORNEYS FOR APPELLANT

Robert L. Tobik
Public Defender
Cuyahoga County

John T. Martin
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Robert L. Triozzi
Law Director

Victor Perez
Prosecutor, City of Cleveland
Karrie D. Howard
Assistant City Prosecutor
1200 Ontario Street, 8th Floor
Cleveland, Ohio 44113




PATRICIA ANN BLACKMON, .J.:

      {¶ 1} Appellant Pedro Perez appeals his conviction for driving under

suspension following a bench trial in the Cleveland Municipal Court. Perez

assigns the following errors for our review:

      “I. The evidence is insufficient to sustain the conviction.”
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      “II. Assuming, arguendo, that it was offered for its truth,
      the trial court improperly admitted hearsay evidence
      regarding the existence of a license suspension.”

      “III. The conviction is contrary to the manifest weight of
      the evidence.”

      {¶ 2} Having reviewed the record and pertinent law, we reverse Perez’s

conviction. The apposite facts follow.

      {¶ 3} On March 11, 2010, Officer Mathias Varga of the Cleveland Police

Department issued a citation to Perez for driving under suspension (“DUS”).

On March 15, 2010, Perez pleaded not guilty at his arraignment.         Perez

subse-quently requested a bench trial, which was conducted on May 26, 2010.

      {¶ 4} At the trial, Officer Varga testified that on March 11, 2010, at

approximately 9:20 p.m., he and his partner were refueling their patrol car at

a service station on Pearl and Forestdale Roads, when they heard the voices

of screaming women.     Upon investigating, one of the women told Officer

Varga that a Hispanic male pointed a gun at her and wanted to fight. The

second woman told the officers that the male was in a vehicle described as a

white Toyota.

      {¶ 5} The officers drove around the corner to West 22nd Street, where

they saw a vehicle matching the description.    Officer Varga observed Perez

enter the driver’s side of the vehicle, but immediately exited when he saw the

patrol car. Officer Varga and his partner exited the patrol car with their
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service revolvers drawn and approached the white Toyota.                 Perez

immediately raised his hands and declared to the officers that the gun was in

the trunk of the car.

      {¶ 6} Officer Varga further stated that the engine of the white Toyota

was running when Perez entered and exited the vehicle.         Finally, Officer

Varga learned from witnesses that a second Hispanic male, listed in his police

report as “arrested male #2,” was the one driving the car during the initial

confrontation with the women.

      {¶ 7} At the close of the City’s case, Perez asked the court for judgment

of acquittal.   The trial court denied the motion, found him guilty, and

continued the matter for sentencing.       On July 19, 2010, the trial court

sentenced Perez to 180 days in jail, gave him credit for 121 days, and

suspended the remaining 59 days. The trial court also fined Perez $1,000, but

suspended it along with the court costs, and placed him on one year of

inactive probation. Perez now appeals.



                          Sufficiency of Evidence

      {¶ 8} We will address the first and second assigned errors together

because they both involve the sufficiency of the evidence. Perez argues there

was insufficient evidence to support his conviction, specifically that there
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was no evidence to prove that he “operated” a motor vehicle, nor any

substantive evidence that his license was suspended. We agree.

       {¶ 9} Crim.R. 29 mandates that the trial court issue a judgment of

acquittal where the state’s evidence is insufficient to sustain a conviction for

the offense. Crim.R. 29(A) and sufficiency of evidence review require the same

analysis. State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d

386.

       {¶ 10} In analyzing the sufficiency issue, the reviewing court must view

the evidence “in the light most favorable to the prosecution” and ask whether

“any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” State v. Mitchell, Cuyahoga App. No. 95095,

2011-Ohio-1241, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 99

S.Ct. 2781, 61 L.Ed.2d 560. See, also, State v. Jenks (1991), 61 Ohio St.3d

259, 574 N.E.2d 492, paragraph two of the syllabus; State v. Carter (1995), 72

Ohio St.3d 545, 651 N.E.2d 965.

       {¶ 11} Perez directs our attention to R.C. 4511.01(HHH), which

provides: “‘Operate’ means to cause or have caused movement of a vehicle,

street car or trackless trolley.”

       {¶ 12} Initially, we note a long line of cases involving OMVI or DUS

violations have held that the term “operate” is broader than merely driving or
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causing movement of a motor vehicle, and is satisfied by evidence that an

accused was found in the driver’s seat of a motor vehicle, with the key in the

ignition, whether or not the engine of the vehicle was running.          State v.

Cochran, 2d Dist. No. 22240, 2008-Ohio-3612, quoting State v. Cleary (1986),

22 Ohio St.3d 198, 199, 490 N.E.2d 574. See, also, State v. McGlone (1991),

59 Ohio St.3d 122, 570 N.E.2d 1115.

      {¶ 13} In State v. Gill, 70 Ohio St.3d 150,1994-Ohio-403, 637 N.E.2d

897, the Ohio Supreme Court expanded the definition of “operate” to include

situations where the keys are in the ignition but the engine is not running.

      {¶ 14} But in S.B.123, the General Assembly modified the definition in

Gill and its predecessors by specifically defining “operate” in R.C.

4511.01(HHH), as well as by adding the words “at the time of the operation”

to R.C. 4511.19(A)(1).      State v. Schultz, Cuyahoga App. No. 90412,

2008-Ohio-4448;   State   v.   Wallace,     166   Ohio   App.3d   845,   848-849,

2006-Ohio-2477, 853 N.E.2d 704.

      {¶ 15} Effective January 1, 2004, the term “operate,” as used in R.C.

Chapter 4511, “means to cause or have caused movement of a vehicle * * *.”

R.C. 4511.01(HHH).     “Where the words of a statute are free of ambiguity

and express plainly and distinctly the sense of the lawmaking body, the

courts should look no further in their efforts to interpret the intent of the
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General     Assembly.”   Columbus   v.   Freeman,   181   Ohio   App.3d   320,

2009-Ohio-1046, 908 N.E.2d 1026, quoting State v. Smorgala (1990), 50 Ohio

St.3d 222, 223, 553 N.E.2d 672.

      {¶ 16} In the instant case, despite the running engine, there was no

evidence presented that Perez caused movement of the vehicle.          Officer

Varga testified that he observed Perez enter the driver’s seat of the vehicle,

but Perez immediately exited upon seeing the activated sirens of the patrol

car. Officer Varga’s testimony established that Perez caused no movement of

the vehicle.

      {¶ 17} Further, at trial, Officer Varga testified in pertinent part as

follows:

      “Q.      In your report, the third paragraph, which I’ve made a
               mark by, you write that you interviewed some witnesses,
               correct?

      A.       Uh-huh.

      Q.       That those witnesses told you that Male Number 2 was the
               driver of the vehicle, correct?

      A.       During the incident Male Number 2 was the one driving it
               around. Male Number 2 was driving it around while he
               [Perez] was terrorizing the people.

      Q.       No witnesses told you that arrested Male Number 1, Mr.
               Perez, was driving, correct?
      A.       No.

      Q.       No one you interviewed said he was the driver.
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      A.     The only person who saw him in the car, in the driver seat,
             was my partner and I.” Tr. 13-14.

      {¶ 18} Here, the witnesses specifically indicated that “arrested male # 2”

drove the vehicle during the incident.         The incident happened within

moments of the officers’ response and discovery of the vehicle around the

corner from the gas station. It was within this one minute time frame that

the officers observed Perez make a split-second appearance into the driver’s

side of the vehicle.

      {¶ 19} Applying the definition of “operate” as it has now evolved, to the

specific facts of the instant case, we conclude that Perez was not operating

the vehicle as that term is defined by law.

      {¶ 20} We also conclude that there was no substantive evidence

presented that Perez’s license was actually suspended at the time he was

observed entering and then immediately exiting the white Toyota. At trial,

the following exchange took place:

      “Q.    Officer, how were you informed that the defendant’s
             license was suspended?

      A.     We would have either ran them on M.D.T. —

      Ms. Scott:       Objection.   Hearsay.

      The Court: Overruled.
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      A.    — or, we would have radio run them, and his vehicle was
            towed, so it would be on the report how I got the
            information. It would — it would have to go on the radio.
            To tow a car, I’ve got to get dispatcher to sign off on, you
            know, whatever vehicle Number was ran by dispatcher
            Smith on terminal blah, blah, blah, so I can’t recall at this
            point if I ran it on the terminal on the car, or if the
            dispatcher told me via the radio.” Tr. 15.

      {¶ 21} At trial, the City prosecutor indicated that the above testimony

explained why Officer Varga cited Perez for DUS.      However, the trial court

indicated that the officer relied on this testimony to determine Perez’s guilt.

Tr. 23. As such, this evidence is inadmissible.

      {¶ 22} Evid.R. 801(C) defines “hearsay” as “a statement, other than one

made by the declarant while testifying at trial or hearing, offered in evidence

to prove the truth of the matter asserted.” State v. Durham, Cuyahoga App.

No. 94747, 2011-Ohio-2256.     However, Evid.R. 803(8) allows admission of

the following as exceptions to the hearsay rule: “Records, reports, statements,

or data compilations, in any form, of public offices or agencies, setting forth

(a) the activities of the office or agency, or (b) matters observed pursuant to

duty imposed by law as to which matters there was a duty to report,

excluding, however, in criminal cases matters observed by police officers and

other law enforcement personnel * * *.” State v. Jaime, Cuyahoga App. No.

94401, 2010-Ohio-5783.
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      {¶ 23} Here, the information that Officer Varga testified that he

obtained from radio dispatch regarding the status of Perez’s driver’s license is

inadmissible hearsay.      State v. Twomey (Dec. 23, 1983), 1st       Dist. Nos.

C-830123 and C-830124.       As such, that information should not have been

relied on as substantial evidence of Perez’s guilt.

      {¶ 24} Thus, the City failed to present sufficient evidence to sustain

Perez’s conviction for DUS.       Consequently, the trial court should have

granted Perez’s motion for acquittal. Accordingly, we sustain the first and

second assigned errors.

      {¶ 25} Having sustained Perez’s first and second assigned errors, the

remaining assigned error is moot. See App.R. 12(A)(1)(c).

      Judgment reversed.

      It is ordered that appellant recover of appellee his costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate be sent to said court to carry this

judgment into execution.
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     A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



PATRICIA ANN BLACKMON, JUDGE

MARY EILEEN KILBANE, A.J., and
COLLEEN CONWAY COONEY, J., CONCUR
