[Cite as State v. Burnett, 2018-Ohio-109.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                       CLARK COUNTY

 STATE OF OHIO                                     :
                                                   :
          Plaintiff-Appellee                       :   Appellate Case No. 2017-CA-44
                                                   :
 v.                                                :   Trial Court Case No. 17-CR-35
                                                   :
 FATE BURNETT, II                                  :   (Criminal Appeal from
                                                   :    Common Pleas Court)
          Defendant-Appellant                      :
                                                   :

                                              ...........

                                             OPINION

                            Rendered on the 12th day of January, 2018.

                                              ...........

ANDREW PICKERING, Atty. Reg. No. 0068770, Clark County Prosecutor’s Office,
Appellate Division, 50 E. Columbia Street, 4th Floor, Springfield, Ohio 45501
      Attorney for Plaintiff-Appellee

CHRIS BECK, Atty. Reg. No. 0081844, 1370 N. Fairfield Road, Suite C, Beavercreek,
Ohio 45432
      Attorney for Defendant-Appellant

                                             .............
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HALL, J.

       {¶ 1} Fate Burnett appeals from his conviction and sentence on one count of

operating a vehicle while intoxicated (OVI), a third-degree felony, and a repeat-offender

specification.

       {¶ 2} Burnett advances three assignments of error. First, he contends the trial court

erred in not providing a requested jury instruction. Second, he alleges ineffective

assistance of trial counsel. Third, he challenges the legal sufficiency of the evidence to

convict him of OVI.

       {¶ 3} The record reflects that Burnett’s case proceeded to a jury trial on April 18,

2017. The first witness was Derek Smith, a Springfield police officer. He testified that he

responded to 223 South York Street around 1:00 a.m. on January 12, 2017 to investigate

a car crashed into the back yard of a house. Upon arriving, he saw a pick-up truck parked

in the yard. “The vehicle’s engine was revving. The rear wheels were spinning. The

vehicle was just rocking.” (Trial Tr. at 79). The spinning rear wheels were causing the rear

of the vehicle to move from “side to side” and “back and forth” in the mud. (Id. at 81, 91,

115, 118, 124). Upon closer inspection, Smith noticed that the front, passenger-side

wheel was “completely broken off.” (Id. at 80). Tire tracks and marks in the yard made it

appear to Smith as if the spinning wheels actually had caused the truck to change

direction somewhat in the yard. (Id. at 92). The only occupant of the vehicle was appellant

Burnett, who was in the driver’s seat. After being ordered out of the vehicle, an obviously

intoxicated Burnett “charged” toward Smith, who was able to restrain him with help from

another officer. (Id. at 81-83, 113). Burnett admitted to Smith that he had been drinking

at “Waldon’s bar” that night. (Id. at 84). He claimed his aunt, Brenda Burnett, who lived at
                                                                                            -3-


223 South York Street, had been drinking with him at the bar. He also claimed that she

had driven him home from the bar and that she then had asked him to remove the truck

from her yard. (Id. at 84, 106). According to Smith, Burnett denied that anyone other than

himself and his aunt had driven the truck that night. (Id. at 107). At another point, Burnett

claimed his father had driven the truck and that someone named Cody Kizer had dropped

him off. (Id. at 107, 116). After refusing a breath test and refusing to perform field-sobriety

tests, Burnett was arrested for OVI. (Id. at 88-97, 109, 111).

       {¶ 4} Sergeant James Byron testified that he arrived on the scene after Burnett’s

arrest. He observed the truck sunk in mud with “lots of tracks where the vehicle had been

slipping and sliding around.” (Id. at 133). Byron stated that “[t]here were obvious marks

where the truck had gone off the road, and then where there were multiple attempts of

trying to go back and forth to get it back on the road.” (Id. at 136). It appeared to Byron

as if the truck had moved in the yard based on “obviously multiple tire patterns where the

truck had gone back and forth and slid around.” (Id. at 138).

       {¶ 5} The next witness was police officer Justin Lowe. He stated that he was on

patrol with Smith at the time of the incident. Lowe provided testimony similar to Smith’s.

He testified that he saw Burnett in the truck, which was rocking back and forth in the yard.

He also testified that Burnett was obviously intoxicated and had admitted drinking that

night. (Id. at 147-150). In addition, Lowe confirmed that Burnett declined a breath test and

declined to perform any field-sobriety tests. (Id. at 154-155).

       {¶ 6} Appellant Burnett’s aunt, Brenda Burnett, also testified as a prosecution

witness. She stated that she heard a banging noise outside her house followed, after

about a ten-minute delay, by “an engine gunning like it was stuck, a car was stuck.” (Id.
                                                                                            -4-


at 164). Brenda Burnett explained that she had worked at Waldon’s bar earlier in the

evening, but her shift had ended at 10:00 p.m. She added that she had not seen appellant

Burnett in the small bar that evening before she left. (Id. at 165-166). In fact, she testified

that she had not seen him for two or three weeks prior to the incident in question. (Id. at

165). Brenda Burnett also stated that she had not seen Cody Kizer or appellant Burnett’s

father, Joel Luking, that evening. (Id. at 168). Brenda Burnett denied asking appellant

Burnett to move the truck and denied driving the truck that evening. (Id. at 168-170).

       {¶ 7} Brenda Burnett’s husband, Charles Porter, also testified for the State. He

explained that “commotion” outside awoke him from his sleep. (Id. at 179). He went

outside and saw the truck in the mud. He then went back into the house and told his wife,

“There’s some kid out there stuck in my lot.” (Id. at 179). Porter could not determine the

identity of the person. Nor could he tell how many occupants were in the truck. (Id. at 179-

180). It only took Porter a couple of minutes to go outside after hearing the commotion,

and he did not see anyone exit the truck, which was “[m]oving back and forth.” (Id. at

180). Porter also went back outside again before the police came, and he did not see

anyone leave or arrive at the property. (Id. at 181). Porter eventually recognized appellant

Burnett when he was removed from the truck and arrested. (Id.).

       {¶ 8} Following Porter’s testimony, the parties stipulated to Burnett’s prior OVI

convictions. After the admission of its exhibits, the State rested. The trial court denied a

Crim.R. 29 motion predicated on (1) a lack of evidence that Burnett drove the truck prior

to it being observed in the yard and (2) the truck being inoperable in the yard due to the

broken wheel. (Id. at 187-190).

       {¶ 9} Defense counsel then called two witnesses. The first was Jade Carpenter.
                                                                                           -5-

She testified that appellant Burnett was the half-brother of her fiancé, Cody Kizer. (Id. at

191-192, 201). According to Carpenter, she was home with Kizer in the early morning

hours of January 12, 2017. She stated that between approximately 12:00 a.m. and 1:00

a.m., Kizer woke her and said he had to go pick up Burnett. (Id. at 193). Kizer then left,

and Carpenter went back to sleep. (Id. at 195). After later receiving a call from Kizer,

Carpenter said she went and picked him up at Brenda Burnett’s house because the truck,

which Kizer had been driving, was broken. (Id. at 196). Carpenter testified that after

picking up Kizer, they both proceeded to “Jimmy T’s bar,” where they picked up appellant

Burnett. (Id. at 197). Carpenter explained that the trio then returned to Brenda Burnett’s

house, where she and Kizer dropped off appellant Burnett at the truck. (Id. at 198).

Carpenter claimed she and Kizer returned later in the morning to find the truck and

appellant Burnett gone. (Id. at 200, 213-214).

       {¶ 10} Cody Kizer also testified as a defense witness. He stated that an intoxicated

Burnett called him from Jimmy T’s bar and requested a ride. Kizer explained that he was

driving the truck to get Burnett when a tie rod broke as he crossed a railroad track. Kizer

happened to be going past Brenda Burnett’s house at the time, so he pulled into her yard.

(Id. at 221-222). He then called Carpenter to pick him up in her car. The two of them

proceeded to Jimmy T’s to get appellant Burnett. (Id. at 223). They then returned to the

truck and dropped Burnett off there with the intention of borrowing a trailer to retrieve the

vehicle. (Id.). He returned hours later after sunrise to look for Burnett but did not find him

there. (Id. at 224). He also discovered that the truck was gone. (Id. at 225). On cross

examination, Kizer stated that he left Burnett alone with the broken truck and the keys to

it for several hours before returning because Burnett was intoxicated and annoying. (Id.
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at 229-230).

       {¶ 11} Based on the evidence presented, a jury found Burnett guilty of OVI in

violation of R.C. 4511.19(A)(1) and (A)(2). With regard to both offenses, it also found that

he previously had been convicted of felony OVI and that he had five or more OVI

violations within the previous twenty years. (Doc. #19, 20). The trial court merged the two

counts for sentencing, and the State elected to proceed on the R.C. 4511.19(A)(1)

violation, a third-degree felony. The trial court imposed a three-year prison sentence for

the OVI offense and a consecutive four-year prison term on a repeat-offender

specification. (Doc. #21). It also suspended Burnett’s driver’s license for life, imposed a

fine, and ordered him to pay court costs.

       {¶ 12} In his first assignment of error, Burnett challenges the trial court’s denial of

his request for a special jury instruction regarding operation and operability of the truck.

       {¶ 13} The statute under which Burnett was convicted, R.C. 4511.19(A), provides

among other things that “[n]o person shall operate any vehicle * * * if, at the time of the

operation,” that person is under the influence of alcohol. Prior to trial, Burnett requested

the following instruction on the issue of “operation” and “operability”:

               Operation of a motor vehicle within the contemplation of the statute

       is a broader term than mere driving and a person in the driver’s position in

       the front seat with the ignition key in his possession indicating either his

       actual or potential movement of the vehicle while under the influence of

       alcohol or any drug of abuse can be found in violation of R.C. 4511.19(A)(1).

       However, inoperability is a defense where there is insufficient evidence to

       support the finding that at [the] time the defendant was in the driver’s
                                                                                           -7-


         position in the front seat with the ignition key in his possession that the

         vehicle was immobile, not capable of movement or potential movement then

         the defendant was not at that time in operation of the motor vehicle and you

         must find him not guilty.

(Doc. #17).

         {¶ 14} Burnett argued below that the foregoing instruction was warranted under

State v. Mackie, 128 Ohio App.3d 167, 714 N.E.2d 405 (1st Dist.1998). The trial court

disagreed. It found Mackie distinguishable. It also concluded that R.C. 4511.01(HHH),

which was enacted subsequent to Mackie, adequately defined “operate” for purposes of

the OVI statute. (Tr. at 245-246).

         {¶ 15} “Requested jury instructions should ordinarily be given if they are correct

statements of law, if they are applicable to the facts in the case, and if reasonable minds

might reach the conclusion sought by the requested instruction. * * * An appellate court

reviews a trial court’s refusal to give a requested jury instruction for abuse of discretion.”

(Citations omitted.) State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127,

¶ 240.

         {¶ 16} We see no abuse of discretion here. The first sentence of Burnett’s

requested instruction is no longer a correct statement of law. “Potential movement” of a

vehicle by an intoxicated person in the driver’s seat with an ignition key does not constitute

a violation of R.C. 4511.19(A)(1). Prior to 2004, no statutory definition of “operate” existed

for purposes of OVI, and the Ohio Supreme Court had defined the term broadly to

encompass “ ‘actual or potential movement of the vehicle’ ” by “ ‘a person in the driver’s

position in the front seat with the ignition key in his possession.’ ” State v. Anderson, 1st
                                                                                            -8-

Dist. Hamilton No. C-160920, 2017-Ohio-8641, ¶ 12, quoting State v. Cleary, 22 Ohio

St.3d 198, 199, 490 N.E.2d 574 (1986). In 2004, however, the General Assembly defined

the term “operate” as meaning “to cause or have caused movement of a vehicle[.]” R.C.

4511.01(HHH). The Mackie case cited by Burnett pre-dates the definition of “operate” in

R.C. 4511.01(HHH). Under the statutory definition, an OVI conviction requires actual

movement of a vehicle by an intoxicated person, not “potential movement.” Therefore, the

first sentence of Burnett’s requested instruction misstated existing law.

       {¶ 17} The second sentence of the requested instruction is faulty for multiple

reasons. First, it is confusing and inaccurate. It reads that “inoperability is a defense where

there is insufficient evidence to support the finding that at [the] time the defendant was in

the driver’s position * * * the vehicle was immobile, not capable of movement or potential

movement[.]” This language is incorrect insofar as it continues to discuss “potential

movement” in the context of an OVI offense. In addition, it literally states that

“inoperability” is a defense where the evidence is insufficient to support a finding that the

vehicle was immobile. But the logical result would be mobility, not immobility, if the

evidence were insufficient to support a finding that the vehicle was immobile. The second

sentence of the requested instruction also loosely resembles and relates to a new offense

created by the General Assembly in 2004, having physical control of a vehicle while under

the influence of alcohol. See R.C. 4511.194(B) (prohibiting being “in physical control of a

vehicle” while under the influence of alcohol). For purposes of that offense, “ ‘[p]hysical

control’ means being in the driver’s position of the front seat of a vehicle * * * and having

possession of the vehicle’s * * * ignition key or other ignition device.” R.C. 4511.194(A)(2).

Here Burnett was charged with operating a vehicle while intoxicated, not having “physical
                                                                                              -9-


control” of a vehicle while intoxicated. Therefore, the second sentence of the requested

instruction was neither particularly pertinent nor necessary.

       {¶ 18} With regard to operability and whether Burnett operated the truck at issue,

the trial court gave the jury the statutory definition of “operate” set forth in R.C.

4511.01(HHH). (Tr. at 273-274). Under that definition, Burnett correctly could not be

convicted unless he caused movement of the truck. Upon review, we cannot say the trial

court abused its discretion in instructing the jury as it did or in rejecting Burnett’s requested

instruction. The first assignment of error is overruled.

       {¶ 19} In his second assignment of error, Burnett alleges ineffective assistance of

trial counsel based on (1) his attorney’s failure to request an instruction on the “lesser-

included offense” of physical control under R.C. 4511.194(B) and (2) his attorney’s

“manner in * * * argu[ing] for the jury instruction on operability.”

       {¶ 20} We quickly may dispose of the second issue. Regardless of how defense

counsel might have argued for the proposed instruction discussed above, it was an

incorrect statement of law and unwarranted in the context of an OVI charge. Therefore,

the trial court did not err in refusing to give it and, instead, instructing the jury consistent

with R.C. 4511.01(HHH).

       {¶ 21} The real issue raised by Burnett’s second assignment of error concerns his

attorney’s failure to request an instruction on the offense of having physical control of a

vehicle while under the influence of alcohol in violation of R.C. 4511.194(B).

       {¶ 22} To prevail on an ineffective-assistance claim, a defendant must show

deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668,

687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show deficiency, a defendant must show
                                                                                         -10-

that trial counsel’s representation fell below an objective standard of reasonableness. Id.

Prejudice exists and a reversal is warranted only where a defendant shows a reasonable

probability that but for counsel’s deficient performance the result of the proceeding would

have been different. State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989).

       {¶ 23} We see no ineffective assistance here. As a threshold matter, at least one

Ohio appellate district has held that a violation of the physical-control statute is not a

lesser-included offense of OVI. See State v. Taylor, 9th Dist. Lorain No. 12CA010258,

2013-Ohio-2035, ¶ 7 (“[W]hile a person could operate a bicycle in violating R.C.

4511.19(A)(1)(d), a person could not be in physical control of it for the purposes of R.C.

4511.194(B)(2). Therefore, it is possible to violate R.C. 4511.19(A)(1)(d) without also

violating R.C. 4511.194(B)(2), meaning that R.C. 4511.194(B)(2) is not a lesser-included

offense of R.C. 4511.19(A)(1)(d).”). We need not resolve that issue, however, because

we find no ineffective assistance even assuming, arguendo, that a violation of the

physical-control statute is a lesser-included offense of OVI.

       {¶ 24} An instruction on the physical-control statute as a lesser-included offense

of OVI would be proper only if the jury reasonably could have found Burnett not guilty of

OVI and guilty of having physical control of a vehicle while under the influence of alcohol.

State v. Landers, 2d Dist. Greene No. 2015-CA-74, 2017-Ohio-1194, ¶ 87-89 (finding no

basis for a lesser-included offense instruction where the evidence was such that the jury

reasonably could not have acquitted the defendant on the charged offense and convicted

him on the lesser-included offense). To reach such a conclusion, the jury would have

been required to find that Burnett, who was indisputably intoxicated, did not cause

“movement” of the truck, but that he was in “physical control” of the truck because he was
                                                                                         -11-


in the driver’s seat and had possession of the vehicle’s ignition key. Even viewing the

evidence in the light most favorable to Burnett, as we must in the context of a lesser-

included-offense instruction (see Landers at ¶ 87), the record fails to support a finding

that he did not cause “movement” of the truck.

       {¶ 25} We reach the foregoing conclusion for two reasons. First, as we will explain

more fully in our analysis of the third assignment of error below, circumstantial evidence

supports an inference that Burnett actually drove the vehicle on the road before it came

to a stop in the yard. Second, even if the jury were to believe Burnett’s witnesses’

testimony, the record contains uncontroverted evidence that police saw him in the driver’s

seat “gunning” the engine and spinning the rear wheels, which caused the truck’s rear

end to slide around and to move from side to side. Photographs of multiple tire tracks in

the mud indicate that the truck’s rear end moved several feet. (Tr. at State’s Exh. 4-6). As

set forth above, the OVI statute makes it unlawful to “operate” a vehicle while under the

influence of alcohol. The legislature has defined the term “operate,” simply and

unambiguously, as meaning “to cause or have caused movement of a vehicle[.]” R.C.

4511.01(HHH). Even under Burnett’s version of events, he caused movement of the truck.

Therefore, the jury reasonably could not have acquitted him of OVI and convicted him

under the physical-control statute. That being so, there was no basis for a lesser-included

offense instruction. The second assignment of error is overruled.

       {¶ 26} In his third assignment of error, Burnett challenges the legal sufficiency of

the evidence to sustain his OVI conviction. He cites the testimony of Carpenter and Kizer

to support his claim that Kizer drove the truck to the yard where police observed it. He

also argues that the truck was inoperable in the yard when police saw him in the driver’s
                                                                                         -12-


seat revving the engine and spinning the rear wheels. Based on this claim of inoperability,

Burnett contends he cannot be convicted of OVI for his actions in the driver’s seat.

       {¶ 27} When a defendant challenges the sufficiency of the evidence, he is arguing

that the State presented inadequate evidence on an element of the offense to sustain the

verdict as a matter of law. State v. Hawn, 138 Ohio App.3d 449, 471, 741 N.E.2d 594 (2d

Dist.2000). “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.” State v.

Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

       {¶ 28} With the foregoing standards in mind, we find legally sufficient evidence to

support Burnett’s OVI conviction under either of two theories. First, circumstantial

evidence supports an inference that an intoxicated Burnett drove the truck to the yard

where police found it with a broken wheel. When questioned by police, Burnett gave

seemingly conflicting stories about who had driven. He also claimed to have been with

Brenda Burnett, but she refuted his assertion. She denied having been with him or seeing

him that evening. Charles Porter also testified that it only took him a couple of minutes to

go outside after hearing commotion. He did not see anyone exit the truck, which was

moving back and forth. He also waited outside before police came and did not see anyone

arrive or leave. The only person on the scene when police arrived was Burnett. The

foregoing evidence, if believed, supports a reasonable inference that Burnett was driving
                                                                                         -13-


the truck when it left the road and stopped in the yard. We note too that the testimony of

Carpenter and Kizer reasonably could have been rejected by the jury. Having reviewed a

transcript of their testimony, we find the credibility of these witnesses is questionable.

Among other things, the jury reasonably could have rejected Kizer’s claim that he and

Carpenter dropped Burnett off at the truck and left him there with the keys, alone at night

in January for several hours, before returning after daylight to look for him. Kizer’s

explanation for this seemingly implausible action was that Burnett was intoxicated and

annoying. Contrary to Kizer’s testimony, the jury reasonably could have concluded that

Burnett drove himself to the location in the yard where police found him in the driver’s

seat revving the engine.

       {¶ 29} Second, the jury reasonably could have found Burnett guilty based on the

police officers’ observation of him operating the truck. The OVI statute, R.C. 4511.19(A),

provides among other things that “[n]o person shall operate any vehicle * * * if, at the time

of the operation,” that person is under the influence of alcohol. As set forth above, the

term “operate” means “to cause or have caused movement of a vehicle[.]” R.C.

4511.01(HHH). The State presented uncontroverted evidence that Burnett caused the

truck to move appreciably from side to side in the mud when he revved the engine and

spun the rear wheels. Because the vehicle was able to move in the yard, it necessarily

was operable within the meaning of R.C. 4511.19(A). Thus, we find legally sufficient

evidence to support a finding that Burnett operated the vehicle in violation of the OVI

statute. The third assignment of error is overruled.

       {¶ 30} The judgment of the Clark County Common Pleas Court is affirmed.

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WELBAUM, J., concurs.

FROELICH, J., concurring:

       {¶ 31} I agree that there was sufficient circumstantial evidence that appellant

operated the vehicle on the road before it got stuck in the yard.

       {¶ 32} I would not reach the issue as to whether the action of the truck’s rear end

constituted “operation” as defined in R.C.4511.01(HHH).



Copies mailed to:

Andrew P. Pickering
Chris Beck
Hon. Douglas M. Rastatter
