[Cite as State v. Sanders, 2020-Ohio-3214.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio/City of Toledo                      Court of Appeals No. L-19-1192

        Appellee                                  Trial Court No. TRC-19-00742

v.

Samuel David Sanders, Jr.                         DECISION AND JUDGMENT

        Appellant                                 Decided: June 5, 2020

                                              *****

        David Toska, Chief Prosecutor, and Jimmie Jones, Assistant
        Prosecutor, for appellee.

        Laurel A. Kendall, for appellant.

                                              *****

        SINGER, J.

        {¶ 1} Appellant, Samuel Sanders, appeals the September 9, 2019 judgment of the

Toledo Municipal Court after he was convicted of operating a motor vehicle under the

influence (“OVI”). For the reasons that follow, we affirm the judgment.
          {¶ 2} Appellant sets forth two assignments of error:

                I. Appellant’s conviction for OVI was based on insufficient

          evidence.

                II. Appellant’s conviction for driving under the influence of alcohol

          was against the manifest weight of the evidence.

                                         Background

          {¶ 3} Early in the morning of November 18, 2018, an Ohio State Highway Patrol

trooper encountered a pick-up truck, partially off of the road, on the Miami Street exit

ramp from Interstate 75 in Toledo, Ohio. The truck’s engine was running, a female was

in the driver’s seat, and a man was outside of the truck. There was also a vehicle parked

a short distance away from the truck, in the middle of the road, with flashers on.

          {¶ 4} As the trooper exited his patrol car and approached the truck, the female

starting walking towards the vehicle with its flashers on. The trooper questioned her and

she said she was trying to help appellant get the truck unstuck; she was allowed to leave.

          {¶ 5} The trooper then made contact with the man, appellant, and ultimately

arrested him. Appellant was charged with OVI in violation of R.C. 4511.19(A)(1)(a),

and rules for driving in marked lanes in violation of R.C. 4511.33. Appellant pled not

guilty.

          {¶ 6} On August 13, 2019, a bench trial was held, and appellant was found not

guilty of driving in marked lanes, but guilty of the OVI charge. The court sentenced

appellant to 180 days of incarceration, with 177 days suspended, three days in the Driver




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Intervention Program and six months of probation. The court suspended appellant’s

license for one year, but granted him occupational driving privileges. In addition, the

court ordered appellant to pay court costs and fines. Appellant timely appealed.

                                 First Assignment of Error

         {¶ 7} Appellant argues the trial court erred in finding him guilty of OVI as the

evidence was insufficient to support the verdict. He contends the facts support a finding

that a sober female was operating the truck, within the meaning of Ohio law. Appellant

asserts the court should find there was no OVI, because the driver of the truck was sober,

and there was conflicting evidence as to whether appellant was ever in control of the

truck.

                                             Law

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

within this state, if, at the time of the operation * * * [t]he person is under the influence

of alcohol * * *.” And, “‘[o]perate’ means to cause or have caused movement of a

vehicle * * *.” R.C. 4511.01(HHH).

         {¶ 9} “A sufficiency of the evidence argument challenges whether the State has

presented adequate evidence on each element of the offense to allow the case to go to the

jury or to sustain the verdict as a matter of law.” State v. Shaw, 2d Dist. Montgomery

No. 21880, 2008-Ohio-1317, ¶ 28, citing State v. Thompkins, 78 Ohio St.3d 380, 387,

678 N.E.2d 541 (1997). During a sufficiency of the evidence review, an appellate court’s

function is to “examine the evidence admitted at trial to determine whether such




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evidence, if believed, would convince the average mind of the defendant’s guilt beyond a

reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph

two of the syllabus. “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.” Id.

                                       Trial Transcript

         {¶ 10} At the bench trial, the state called one witness, the trooper, and appellant

testified in his own defense. The testimony relevant to appellant’s appeal is summarized

below.

         {¶ 11} The trooper testified that on November 18, 2018, at 3:37 a.m., he was

working traffic enforcement, when he came upon a truck which had slid off of the road of

the exit ramp, in the vicinity of the casino. The trooper stopped his patrol car to assess

the situation, and observed the truck’s engine was running, a female was in the driver’s

seat and a man, appellant, was outside of the truck, attempting to push the truck out of the

ditch. There was also a vehicle parked a short distance up the road, in the middle of the

road, with its four-way flashers on.

         {¶ 12} The trooper exited his patrol car and approached the truck, at which time

the female starting walking away, towards the vehicle with the flashers on. He asked her

to stop and he questioned her. The female said appellant got his truck stuck in the mud,

and she was trying to help appellant get the truck unstuck. The trooper did a “quick little

test, on her, to make sure she was good to go.” After the female said appellant was




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driving and it was determined she “was good to go,” she was cleared to leave. The

female got into the vehicle that had its flashers on and drove away.

       {¶ 13} The trooper then made contact with appellant, who offered two different

stories about how the truck slid off of the road. One version was a car ran the truck off of

the road, when the car “crossed off Miami Street onto the exit ramp.” This confused the

trooper because that car would have been disabled from the big curb it would have hit.

The trooper kind of challenged appellant’s version, so his story changed, and he said he

had to slow down and swerve to avoid another car. At no point did appellant say he was

not driving or that he was a passenger.

       {¶ 14} The trooper did “a quick test, on his eyes, just to see how his eyes would

react to my finger just going back and forth,” and appellant’s eyes did not roll smoothly,

they jumped a little. This warranted further evaluation, so the trooper brought appellant

to the patrol car, and detected the odor of alcohol on appellant’s person. The trooper

performed field sobriety tests on appellant, including the HGN (horizontal gaze

nystagmus) test, where there were “four clues out of six” and the walk and turn test,

where appellant started prior to being told, he did not touch heel-to-toe and he had a

slight stumble. Appellant failed these tests. Appellant was also given the one-leg stand

test, which he passed. The trooper arrested appellant. Although appellant was offered a

portable breath test and a breathalyzer test at the jail, he refused both.

       {¶ 15} The trooper recalled appellant was not the owner of the truck. When asked

whose vehicle was towed that day, the trooper testified “[i]n my statement, I indicate that




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he [appellant] tells me it’s the child’s -- it’s the mother of his child’s vehicle. And he

mentioned his tools were inside the vehicle.”

       {¶ 16} Appellant testified to the following. He was with a group of seven people,

in two cars, on the day in question. His “cousin was driving the car in front.” Appellant

was not driving the truck as he “never drove at all.” He said “we were getting off going

to Hollywood Casino. And my cousin she ended up driving -- driving too fast, and kind

of swerved off, and was going in a circle. And the car in front of us was my cousin. And

they told her they was so scared. We didn’t know what was going on.” Appellant said

“[t]he car in front of us was my cousin and them.” After the truck spun out, it was in a

ditch. “She got caught in a ditch, and I tried to push her out of there. And then when she

was getting pushed out, I seen the highway patrol coming up. Which I was trying to push

it out and he came up. And the door -- the one door -- the driver door was broke. So she

ended up -- we -- we had to get her out of there or whatever. He gave her like a little eye

test or whatever, and he sent her on her way.”

       {¶ 17} Appellant testified “I kind of told him [the trooper], in the beginning, I

wasn’t even driving. And then I told him the story. * * * * And I specifically told him I

never drove, and I never -- I never drove. I didn’t drive at all.” Appellant said the truck

was “her cousin -- her people’s. Rica. (ph)”

       {¶ 18} On cross-examination, appellant said his group was going to the casino at

3:30 in the morning but he was not coming from a party. He said he “was at home, and

then it was my cousin -- it was my cousin [sic] birthday. And she said * * * I owe her




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some money or whatever. Can I take her to the casino or whatever. So we were going to

the casino, yes.” As to the vehicles, appellant testified he was pushing his cousin’s

friend’s car and he did not know who owned the other vehicle. He said Moo-Moo was

driving the car and “I never even touched the car. When she spunned out, I walked

around. And we seen the state trooper coming up. I didn’t even attempt to try and push

it.” Appellant again reiterated “I never touched nothing. Not the key. Never drove

nothing. I didn’t drive.”

                                          Analysis

       {¶ 19} A review of the record and the relevant law shows there was substantial

evidence offered to establish that appellant had operated the truck in the early morning

hours of November 18, 2018, while under the influence. The trooper testified both the

female and appellant implied that appellant was driving the truck when it went into the

ditch, and appellant never said he was not driving the truck. After viewing this evidence

in a light most favorable to the state, we find that any rational trier of fact could have

found the essential elements of OVI were proven beyond a reasonable doubt. Therefore,

we find there was sufficient evidence to support appellant’s OVI conviction.

Accordingly, appellant’s first assignment of error is not well-taken.

                               Second Assignment of Error

       {¶ 20} Appellant asserts his OVI conviction was against the manifest weight of the

evidence. He maintains the burden is on the state to prove the elements of OVI, and there

was no OVI as the facts are that “an unnamed sober female was observed to be driving




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the vehicle which the trooper observed to be stuck in the ditch. The vehicle was running,

the key was in the ignition, and she was in the driver’s seat.” Appellant contends the

officer turned his attention to appellant, who was outside of the vehicle, denied driving

and “gave an explanation for the circumstance of the vehicle which was consistent with

the second vehicle of the party being stopped in the middle of the road with its flashers

on.” Appellant argues, “there was no inquiry into the role of the second vehicle in the

first ending up in the ditch.”

                                            Law

       {¶ 21} The standard of review for manifest weight is the same in a criminal case

as in a civil case, and an appellate court’s function is to determine whether the greater

amount of credible evidence supports the verdict. Eastley v. Volkman, 132 Ohio St.3d

328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 12; Thompkins at 387. “A manifest weight of

the evidence challenge contests the believability of the evidence presented.” (Citation

omitted.) State v. Wynder, 11th Dist. Ashtabula No. 2001-A-0063, 2003-Ohio-5978,

¶ 23. In deciding whether a conviction is against the manifest weight, the appellate court

must review the record, weigh the evidence and all reasonable inferences, consider the

witnesses’ credibility and decide, in resolving any conflicts in the evidence, whether 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. Prescott, 190 Ohio

App.3d 702, 2010-Ohio-6048, 943 N.E.2d 1092, ¶ 48 (6th Dist.), citing Thompkins at

387.




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                                          Analysis

       {¶ 22} After reviewing the record, weighing inferences, and examining the

credibility of the trooper and appellant, we find the greater amount of credible evidence

supports the verdict. In resolving the conflicts in the evidence, as to whether appellant

had operated the truck while under the influence, we find the trier of fact did not lose its

way, nor did the trier of fact create a manifest miscarriage of justice. Thus, we find

appellant’s OVI conviction was not against the manifest weight of the evidence.

Accordingly, appellant’s second assignment of error is not well-taken.

                                        Conclusion

       {¶ 23} On consideration whereof, the judgment of the Toledo Municipal Court is

affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.

                                                                         Judgment affirmed.

       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.


Arlene Singer, J.                               _______________________________
                                                            JUDGE
Christine E. Mayle, J.
                                                _______________________________
Gene A. Zmuda, P.J.                                         JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE

           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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