[Cite as Wilson, 2014-Ohio-3182.]


STATE OF OHIO                       )                  IN THE COURT OF APPEALS
                                    )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                    )

STATE OF OHIO                                          C.A. No.    12CA010263

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
CHARLOTTE A. WILSON                                    COURT OF COMMON PLEAS
                                                       COUNTY OF LORAIN, OHIO
        Appellant                                      CASE No.   11CR082625

                                DECISION AND JOURNAL ENTRY

Dated: July 21, 2014



        CARR, Judge.

        {¶1}    Defendant-Appellant, Charlotte Wilson, appeals from her convictions in the

Lorain County Court of Common Pleas. This Court affirms in part, reverses in part, and

remands.

                                                  I.

        {¶2}    Shortly after 8:00 p.m. on March 26, 2011, Officer Wayne Ramsey stopped

Wilson’s car because he ran her license plate number and discovered that she had a suspended

driver’s license. Wilson, who was driving her car at the time, opened her driver’s door as Officer

Ramsey approached. Officer Ramsey noticed a strong smell of alcohol as he spoke with Wilson.

He also observed that Wilson had bloodshot eyes. After Officer Ramsey conducted several field

sobriety tests on Wilson, he arrested her. He then inventoried her car and found an open beer

container in a bag on the front passenger’s seat. Although Officer Ramsey asked Wilson to

submit to a chemical test, Wilson never did so.
                                               2


       {¶3}   A grand jury indicted Wilson on each of the following counts: (1) operating a

vehicle while under the influence of alcohol or drugs (“OVI”), in violation of R.C.

4511.19(A)(1)(a); (2) OVI, in violation of R.C. 4511.19(A)(2); and (3) driving under suspension,

in violation of R.C. 4510.11(A). Both OVI offenses were charged as fourth-degree felonies, as

Wilson’s indictment indicated that she had received three prior OVI convictions within the last

twenty years. See R.C. 4511.19(G)(1)(d). Following a jury trial, the jury found Wilson guilty on

all counts. The court sentenced Wilson to a total of 60 days in jail, five years of community

control, and numerous other sanctions.

       {¶4}   Wilson now appeals and raises three assignments of error for our review.

                                              II.

                                ASSIGNMENT OF ERROR I

       THE GUILTY VERDICTS ARE AGAINST THE SUFFICIENCY OF THE
       EVIDENCE IN VIOLATION OF MS. WILSON’S RIGHTS UNDER THE
       FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED
       STATES CONSTITUTION, AND ARTICLE I, SECTION 10 OF THE OHIO
       STATE CONSTITUTION.

       {¶5}   In her first assignment of error, Wilson argues that her OVI convictions are based

on insufficient evidence. We disagree.

       {¶6}   “Raising the question of whether the evidence is legally sufficient to support the

jury verdict as a matter of law invokes a due process concern.” State v. Diar, 120 Ohio St.3d

460, 2008-Ohio-6266, ¶ 113, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).

       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.
                                                3


State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. “The test for sufficiency

requires a determination of whether the State has met its burden of production at trial.” State v.

Edwards, 9th Dist. Summit No. 25679, 2012-Ohio-901, ¶ 7.

       {¶7}    Initially, we note that Wilson has not challenged the sufficiency of her conviction

for driving under suspension. Because Wilson has only presented this Court with an argument

that her OVI convictions are based on insufficient evidence, we limit our review accordingly.

       {¶8}    R.C. 4511.19(A)(1)(a) provides that “[n]o person shall operate any vehicle, * * *

if, at the time of the operation, * * * [t]he person is under the influence of alcohol.” R.C.

4511.19(A)(2) provides that

       no person who, within twenty years of the conduct described in division (A)(2)(a)
       of this section, previously has been convicted of or pleaded guilty to a violation of
       this division, a violation of division (A)(1) or (B) of this section, or any other
       equivalent offense shall do both of the following:

       (a) Operate any vehicle * * * within this state while under the influence of alcohol
       * * *;

       (b) Subsequent to being arrested for operating the vehicle, * * * as described in
       division (A)(2)(a) of this section, being asked by a law enforcement officer to
       submit to a chemical test or tests under section 4511.191 of the Revised Code, and
       being advised by the officer in accordance with section 4511.192 of the Revised
       Code of the consequences of the person’s refusal or submission to the test or tests,
       refuse to submit to the test or tests.

A person who commits either offense is guilty of OVI. R.C. 4511.19(G)(1).

       {¶9}    Officer Wayne Ramsey testified that he was stationed near an intersection in

LaGrange when he observed a car pull up to a stop sign. When the car turned the corner, Officer

Ramsey saw its license plate number and ran the number through his mobile data terminal. The

information returned on the car indicated that its owner had a suspended driver’s license. Officer

Ramsey remained stationed, however, as he observed the car pull into a gas station

approximately 40 to 50 yards away. He watched as the driver put gas in the car, entered the
                                                   4


station, and finally returned to the car. When the car pulled back out onto the road, Officer

Ramsey initiated a stop.

       {¶10} Officer Ramsey testified that the driver of the car, who he later identified as

Wilson, opened the driver’s door as he approached. Officer Ramsey noted a strong odor of

alcohol at that point and asked Wilson for her license and proof of insurance. Wilson did not

have either one, but gave Officer Ramsey several court papers, which she claimed gave her

driving privileges. Officer Ramsey returned to his cruiser and investigated the matter. After he

discovered that Wilson had several open license suspensions, he walked back to her car and

asked her whether she had been drinking. Wilson denied that she had consumed any alcohol.

Officer Ramsey then asked her to exit the car so that he could perform field sobriety testing.

       {¶11} Officer Ramsey testified that he continued to smell alcohol after Wilson exited the

car, meaning that the smell was coming from her and not from her car. He further testified that

Wilson had bloodshot eyes, that she failed to adhere to the instructions he gave her when

performing the field sobriety tests, and that he observed “some swaying” when Wilson tried to

perform the tests. Officer Ramsey testified that he had conducted hundreds of OVI stops during

his eight years with the police department. He opined that, given all of his observations on the

night in question, he believed Wilson was under the influence of alcohol.

       {¶12} Officer Ramsey testified that he arrested Wilson after he completed field sobriety

testing and placed her in his cruiser. He then made a call to secure a tow of her car and quickly

inventoried the car before the tow truck arrived. Officer Ramsey testified that he found an open

beer container inside a bag on the front passenger’s seat of the car when he inventoried it. He

further testified that the beer was cold to the touch.
                                                 5


        {¶13} When Officer Ramsey returned to his cruiser, he asked Wilson to submit to a

chemical test to determine her blood alcohol. He testified that he read Wilson the BMV 2255

form, which advises an arrestee of the consequences for refusing to submit to a chemical test.

Officer Ramsey testified that Wilson refused to take the test, so he never administered it.

        {¶14} With regard to Wilson’s OVI charge under R.C. 4511.19(A)(1)(a), the trial court

instructed the jury that

        “[u]nder the influence of alcohol” means that the defendant consumed some
        alcohol, whether mild or potent, in such a quantity, whether great or small, that it
        adversely affected and noticeably impaired defendant’s actions, reaction or mental
        processes under the circumstances then existing, and deprived the defendant of
        that clearness of intellect and control of herself which * * * she would otherwise
        have possessed.

Wilson argues that her conviction under R.C. 4511.19(A)(1)(a) is based on insufficient evidence

because there was no evidence that her “actual driving was impaired in any way.” (Emphasis

sic.) She notes that Officer Ramsey initiated a traffic stop strictly because of her suspended

driver’s license, not because he ever saw her commit any traffic violations or drive erratically.

Further, she argues that the results of the field sobriety tests Officer Ramsey performed are not

indicative of her impaired driving ability because (1) he admitted that he did not strictly comply

with the NHTSA manual when performing the tests, and (2) a person’s actual driving is a better

indicator of their ability to drive.

        {¶15} “[I]n drunk driving prosecution, the state does not have to prove actual impaired

driving; rather, it need only show an impaired driving ability.” State v. Zentner, 9th Dist. Wayne

No. 02CA0040, 2003-Ohio-2352, ¶ 19. “To prove impaired driving ability, the state can rely on

physiological factors (e.g., odor of alcohol, glossy or bloodshot eyes, slurred speech, confused

appearance) to demonstrate that a person’s physical and mental ability to drive was impaired.”

State v. Peters, 9th Dist. Wayne No. 08CA0009, 2008-Ohio-6940, ¶ 5, quoting State v. Holland,
                                                  6


11th Dist. Portage No. 98-0066, 1999 WL 1313665, *5 (Dec. 17, 1999). Accord State v.

Kurjian, 9th Dist. Medina No. 06CA0010-M, 2006-Ohio-6669, ¶ 17 (“[T]here is no prerequisite

that an officer observe erratic driving in order to effectuate an arrest for driving under the

influence.”).

       {¶16} Although Officer Ramsey did not witness Wilson commit any traffic violations or

drive erratically, he testified that she smelled strongly of alcohol, had bloodshot eyes, failed to

adhere to the instructions he gave her, and swayed to some degree. He also testified that Wilson

had an open container on the front passenger’s seat of her car and that she refused to submit to

chemical testing. The State could rely on all of the foregoing to prove Wilson’s OVI offense,

apart from any erratic driving. See Zentner at ¶ 19; Peters at ¶ 5. Moreover, it could do so apart

from the results of any of the field sobriety tests that Officer Ramsey performed. See State v.

Schmitt, 101 Ohio St.3d 79, 2004-Ohio-37, ¶ 12-15; State v. Gordon, 9th Dist. Summit No.

25531, 2011-Ohio-3938, ¶ 18-20. Viewing all of the evidence in a light most favorable to the

State, a rational trier of fact could have found that the State proved that Wilson was under the

influence of alcohol when she operated her car.         See State v. Hess, 9th Dist. Wayne No.

12CA0064, 2013-Ohio-4268, ¶ 15; State v. Crutchfield, 9th Dist. Lorain Nos. 10CA009931,

10CA009932 & 10CA009933, 2011-Ohio-6681, ¶ 10-12. We reject Wilson’s argument that her

conviction under R.C. 4511.19(A)(1)(a) is based on insufficient evidence.

       {¶17} Wilson also argues that her conviction under R.C. 4511.19(A)(2) is based on

insufficient evidence because there was no evidence that she actually refused to submit to a

chemical test. She argues that she told Officer Ramsey she would like to consult with an

attorney before she decided to submit to a test, so she never refused outright to submit to the test.
                                                  7


        {¶18} The quality of the audio on the recording of the stop Officer Ramsey conducted is

poor, but one can discern from listening to the recording that Wilson said something about an

attorney to Officer Ramsey after he asked her to submit to a chemical test. Officer Ramsey then

told Wilson that she had no right to consult with an attorney before she took the test and that he

needed an answer as to whether or not she would take the test. Officer Ramsey specifically

testified that Wilson refused to take the test.

        {¶19} The Ohio Supreme Court has recognized that “the right to counsel associated with

the protection against self-incrimination contained in the Fifth Amendment to the United States

Constitution, or as guaranteed by the Sixth Amendment, does not apply to the stage at which [an]

officer request[s] the chemical test for alcohol content.”     Dobbins v. Ohio Bur. of Motor

Vehicles, 75 Ohio St.3d 533, 537 (1996). As such, when an arrestee “refus[es] to submit to the

test contingent on receiving the advice of counsel, the arrestee has, for the purposes of the

implied consent statute, R.C. 4511.191, ‘refused’ to take the chemical alcohol test.” Id. at 540.

See also R.C. 4511.19(A)(2)(b) (prohibiting qualifying OVI arrestees from refusing to submit to

chemical tests under R.C. 4511.191). Officer Ramsey specifically testified that Wilson refused

to take a chemical test. Additionally, even if Wilson conditioned her submitting to the test upon

her first consulting with an attorney, Wilson’s response still would have constituted a refusal to

take the test as a matter of law. Dobbins at 540. Wilson’s argument that her conviction under

R.C. 4511.19(A)(2) is based on insufficient evidence lacks merit. Her first assignment of error is

overruled.

                                  ASSIGNMENT OF ERROR II

        THE VERDICTS ARE AGAINST THE MANIFEST WEIGHT OF THE
        EVIDENCE IN VIOLATION OF MS. WILSONS’S (sic) RIGHTS UNDER THE
        FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED
                                                 8


       STATES CONSTITUTION, AND ARTICLE I, SECTION 10 OF THE OHIO
       STATE CONSTITUTION.

       {¶20} In her second assignment of error, Wilson argues that her OVI convictions are

against the manifest weight of the evidence. We disagree.

       {¶21} A conviction that is supported by sufficient evidence may still be found to be

against the manifest weight of the evidence. Thompkins, 78 Ohio St.3d at 387.

       In determining whether a criminal conviction is against the manifest weight of the
       evidence, an appellate court must review the entire record, weigh the evidence
       and all reasonable inferences, consider the credibility of witnesses and determine
       whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way
       and created such a manifest miscarriage of justice that the conviction must be
       reversed and a new trial ordered.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). “When a court of appeals reverses a

judgment of a trial court on the basis that the verdict is against the weight of the evidence, the

appellate court sits as a ‘thirteenth juror’ and disagrees with the fact[-]finder’s resolution of the

conflicting testimony.” Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982).

This discretionary power should be exercised only in exceptional cases where the evidence

presented weighs heavily in favor of the defendant and against conviction. Thompkins, 78 Ohio

St.3d at 387. Accord Otten at 340.

       {¶22} As we did in Wilson’s first assignment of error, we initially pause to note that

Wilson has only challenged her OVI convictions in this assignment of error. Consequently, in

analyzing whether her convictions are against the manifest weight of the evidence, we do not

discuss her conviction for driving under suspension.          We limit our review to her OVI

convictions.

       {¶23} In arguing that her OVI convictions are against the manifest weight of the

evidence, Wilson does not challenge the credibility of any particular witness. She merely argues
                                                 9


that the jury lost its way in convicting her because “[f]or the jury to find her guilty, it must have

mistakenly believed that her performance on the field sobriety tests was more probative of her

ability to operate her car than her actual driving.” Wilson once again argues that, for purposes of

concluding whether or not she was impaired, the evidence of her actual driving was more reliable

than the evidence the State offered.

       {¶24} As noted above, Officer Ramsey testified that he believed Wilson was under the

influence of alcohol when he stopped her. He noted that she smelled strongly of alcohol, had

bloodshot eyes, and failed to follow his instructions. There also was evidence that Wilson had an

open container in her car and refused to submit to chemical testing. Wilson has not shown that

the jury lost its way by believing Officer Ramsey’s testimony and by concluding that she

operated her car while under the influence of alcohol. See State v. Martinez, 9th Dist. Wayne

No. 12CA0054, 2013-Ohio-3189, ¶ 16 (“A verdict is not against the manifest weight of the

evidence because the finder of fact chose to believe the State’s witnesses rather than the

defendant’s version of the events.”). Having reviewed the record, we cannot say that this is the

exceptional case where the jury clearly lost its way. See Thompkins at 387; Otten at 340.

Wilson’s argument that her OVI convictions are against the manifest weight of the evidence

lacks merit. Her second assignment of error is overruled.

                                ASSIGNMENT OF ERROR III

       MS. WILSON’S CONVICTIONS FOR DRIVING UNDER THE INFLUENCE
       OF ALCOHOL, BOTH FELONIES OF THE FOURTH DEGREE, VIOLATED
       R.C. 2945.75(A)(2) BECAUSE THE JURY VERDICTS DID NOT INCLUDE
       THE DEGREE OF THE OFFENSE, NOR ANY AGGRAVATING ELEMENTS.

       {¶25} In her third assignment of error, Wilson argues that the offense level of her OVI

convictions must be reduced due to an error with the verdict forms. The State concedes the error
                                                10


and concludes that Wilson’s OVI convictions must be reduced to first-degree misdemeanors.

We agree.

       {¶26} R.C. 2945.75 provides, in relevant part, that

       (A) When the presence of one or more additional elements makes an offense one
       of more serious degree:

       ***

       (2) A guilty verdict shall state either the degree of the offense of which the
       offender is found guilty, or that such additional element or elements are present.
       Otherwise, a guilty verdict constitutes a finding of guilty of the least degree of the
       offense charged.

“[I]n cases involving offenses for which the addition of an element or elements can elevate the

offense to a more serious degree, the verdict form itself is the only relevant thing to consider in

determining whether the dictates of R.C. 2945.75 have been followed.” State v. McDonald, 137

Ohio St.3d 517, 2013-Ohio-5042, ¶ 17. But see State v. Eafford, 132 Ohio St.3d 159, 2012-

Ohio-2224.

       “The express requirement of the statute cannot be fulfilled by demonstrating
       additional circumstances, such as that the verdict incorporates the language of the
       indictment, or by presenting evidence to show the presence of the aggravated
       element at trial or the incorporation of the indictment into the verdict form, or by
       showing that the defendant failed to raise the issue of the inadequacy of the
       verdict form.”

McDonald at ¶ 17, quoting State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, ¶ 14. The

signed verdict form “must include either the degree of the offense of which the defendant is

convicted or a statement that an aggravating element has been found to justify convicting a

defendant of a greater degree of a criminal offense.” McDonald at ¶ 17, quoting Pelfrey at ¶ 14.

       {¶27} An offender who violates either R.C. 4511.19(A)(1)(a) or (A)(2) is guilty of OVI.

R.C. 4511.19(G)(1). Generally, a violation of either of the foregoing OVI subsections is a first-

degree misdemeanor. R.C. 4511.19(G)(1)(a). Prior OVI convictions, however, can elevate the
                                                 11


degree of one’s current OVI offense(s). Relevant to this appeal, the OVI statute provides that

“an offender who, within six years of the offense, previously has been convicted of * * * three or

four violations of division (A) or (B) of this section or other equivalent offenses * * * is guilty of

a felony of the fourth degree.” R.C. 4511.19(G)(1)(d).

         {¶28} With regard to her charge under R.C. 4511.19(A)(1)(a), Wilson’s verdict form

reads as follows:

         We, the Jury, being duly impaneled and sworn or affirmed, find the defendant,
         Charlotte A. Wilson, is guilty of Driving While Under the Influence, as charged in
         Count One.

Likewise, Wilson’s second verdict form, pertaining to her charge under R.C. 4511.19(A)(2),

reads:

         We, the Jury, being duly impaneled and sworn or affirmed, find the defendant,
         Charlotte A. Wilson, is guilty of Driving While Under the Influence, as charged in
         Count Two.

Neither verdict form includes a finding that Wilson had three prior OVI convictions within six

years of her current offenses. See R.C. 4511.19(G)(1)(d). Further, neither verdict form includes

the degree of Wilson’s offenses.

         {¶29} Because Wilson’s OVI verdict forms do not include either the degree of her OVI

offenses or the additional element that she had received three prior OVI convictions within the

last six years, Wilson only should have been convicted of two first-degree misdemeanors with

regard to her OVI offenses. See McDonald, 137 Ohio St.3d 517, 2013-Ohio-5042, at ¶ 17.

Wilson’s fourth-degree felony OVI convictions must be vacated. See, e.g., State v. Ross, 9th

Dist. Lorain No. 09CA009742, 2012-Ohio-536, ¶ 66. Upon remand, Wilson only may be

convicted of two first-degree misdemeanors with regard to her two OVI offenses. Wilson’s third

assignment of error is sustained.
                                                12


                                                III.

       {¶30} Wilson’s first and second assignments of error are overruled.                Her third

assignment of error is sustained, and her fourth-degree felony OVI convictions are vacated

pursuant to that determination. The judgment of the Lorain County Court of Common Pleas is

affirmed in part, reversed in part, and the cause is remanded for further proceedings consistent

with the foregoing opinion.

                                                                          Judgment affirmed in part,
                                                                                   reversed in part,
                                                                               and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                       DONNA J. CARR
                                                       FOR THE COURT
                                               13


WHITMORE, J.
CONCURS


BELFANCE, P.J.
CONCURS IN JUDGMENT ONLY, SAYING:


       {¶31} I concur in the judgment. Officer Ramsey testified that Ms. Wilson refused to

submit to the chemical test. When viewed in the light most favorable to the State, that testimony

is sufficient to establish the refusal element of R.C. 4511.19(A)(2).        Thus, Ms. Wilson’s

arguments that she did not refuse to take the test but, instead, conditioned taking the test on

speaking to an attorney are not relevant to her stated assignment of error. See State ex rel.

Louthan v. Akron, 9th Dist. Summit No. 23351, 2007-Ohio-241, ¶ 8 (“This court is loath to issue

advisory opinions which do not serve to materially advance correct disposition of the matter on

appeal. We will not issue a decision which does not affect the case before us.”) (Internal

quotations and citations omitted.). Accordingly, I concur in the judgment.




APPEARANCES:

PAUL A. GRIFFIN, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting
Attorney, for Appellee.
