[Cite as State v. Brooks, 2017-Ohio-5518.]



                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




STATE OF OHIO,                               :    APPEAL NO. C-160743
                                                  TRIAL NO. 16TRD-32914A
     Plaintiff-Appellee,                     :

  vs.                                        :       O P I N I O N.

EUGENE BROOKS,                               :

     Defendant-Appellant.                    :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Reversed and Appellant Discharged

Date of Judgment Entry on Appeal: June 28, 2017



Paula Boggs Muething, City Solicitor, Natalia Harris, City Prosecutor, and
Christopher Liu, Appellate Director, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Demetra Stamatakos,
Assistant Public Defender, for Defendant-Appellant.
                   OHIO FIRST DISTRICT COURT OF APPEALS



MYERS, Judge.

       {¶1}   Defendant-appellant Eugene Brooks appeals his conviction for driving

under a 12-point license suspension, in violation of R.C. 4510.037(J).         The state

concedes that the conviction must be reversed.

       {¶2}   At trial, the state presented the testimony of a police officer who stopped

Brooks on July 28, 2016, and cited him for driving under a 12-point suspension. The

state’s evidence included a copy of Brooks’s driving record from the Ohio Bureau of

Motor Vehicles (“BMV”). The driving record reflected a 12-point suspension for the

period of May 3, 2016 to October 30, 2016, but did not reflect that Brooks had been

notified of the suspension.

       {¶3}   In his first assignment of error, Brooks challenges the sufficiency of the

evidence supporting his conviction. He asserts that the state failed to prove that he had

been notified of his 12-point license suspension, which he argues is a predicate to a

lawful suspension under R.C. 4510.037(J).

       {¶4}      In a challenge to the sufficiency of the evidence, the question is

whether, after viewing the evidence in the light most favorable to the state, any

rational trier of fact could have found all the essential elements of the crime proved

beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492

(1991), paragraph two of the syllabus.

       {¶5}   R.C. 4510.037(J) prohibits a person from operating a motor vehicle if his

driver’s license has been suspended as a repeat traffic offender under the section:

       Any person whose driver’s * * * license * * * [is] suspended as a repeat

       traffic offender under this section and who, during the suspension,

       operates any motor vehicle upon any public roads and highways is guilty

       of driving under a twelve-point suspension, a misdemeanor of the first

       degree.



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                  OHIO FIRST DISTRICT COURT OF APPEALS



       {¶6}    The term “repeat traffic offender” is not separately defined in R.C.

Chapter 4510. However, under R.C. 4510.037(E), if a person’s driving record indicates

that 12 or more points have been charged against him within a two-year period, “it is

prima-facie evidence that the person is a repeat traffic offender,” and the registrar shall

suspend the person’s driver’s license pursuant to R.C. 4510.037(B).

       {¶7}    R.C. 4510.037(B) requires the registrar of motor vehicles to “send a

written notice” to any person who has 12 or more points charged against him within a

two-year period, and to impose a class D suspension of the person’s license:

       When the registrar determines that the total points charged against

       any person under section 4510.036 of the Revised Code within any

       two-year period beginning on the date of the first conviction within the

       two-year period is equal to twelve or more, the registrar shall send a

       written notice to the person at the person's last known address by

       regular mail. The notice shall list the reported violations that are the

       basis of the points charged, list the number of points charged for each

       violation, and state that, because the total number of points charged

       against the person within the applicable two-year period is equal to

       twelve or more, the registrar is imposing a class D suspension of the

       person's driver's or commercial driver's license or permit or

       nonresident operating privileges for the period of time specified

       in division (B)(4) of section 4510.02 of the Revised Code. The notice

       also shall state that the suspension is effective on the twentieth day

       after the mailing of the notice, unless the person files a petition

       appealing the determination and suspension in the municipal court[.]

       {¶8}    To summarize, R.C. 4510.037(B) requires written notice to the offender.

And that written notice must include: (1) a list of the reported violations that are the

basis of the points charged; (2) a list of the number of points charged for each violation;


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                  OHIO FIRST DISTRICT COURT OF APPEALS



(3) a statement that because the total number of points charged against the person

within the applicable two-year period is equal to 12 or more, the registrar is imposing a

class D suspension of the person’s license for the period of time specified in R.C.

4510.02; and (4) a statement that the suspension is effective on the twentieth day after

the mailing of the notice, unless the person appeals the determination and suspension.

       {¶9}    A 12-point suspension under R.C. 4510.037(B) requires notice be mailed

to the offender. See Townsend v. Dollison, 66 Ohio St.2d 225, 228, 421 N.E.2d 146

(1981) (interpreting analogous former R.C. 4507.40(K)). To prove a violation of R.C.

4510.037(J), the state must prove that the registrar complied with the notice provisions

of R.C. 4510.037(B). See State v. Roberts, 1st Dist. Hamilton No. C-800135, 1981 WL

9650 (Feb. 25, 1981) (notice of a 12-point license suspension is required to prove a

lawful suspension and is necessary to support a conviction under former R.C. 4507.40).

       {¶10} The state concedes that it failed to prove that the registrar complied with
the notice provisions of R.C. 4510.037(B). Therefore, we hold that Brooks’s conviction

under R.C. 4510.037(J) was based upon insufficient evidence.

       {¶11} We sustain the first assignment of error. We reverse the judgment of the
trial court and discharge Brooks from further prosecution. Our disposition of the first

assignment of error renders the second assignment of error challenging the weight of

the evidence moot.

                                          Judgment reversed and appellant discharged.


MOCK, P.J., and MILLER, J., concur.


Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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