[Cite as Cleveland v. Dumas, 2013-Ohio-4600.]


                Court of Appeals of Ohio
                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA


                             JOURNAL ENTRY AND OPINION
                                      No. 99558




                               CITY OF CLEVELAND
                                                PLAINTIFF-APPELLEE

                                                 vs.


                                 ROCKWELL DUMAS
                                                DEFENDANT-APPELLANT




                                  JUDGMENT:
                            REVERSED AND REMANDED


                                     Criminal Appeal from the
                                    Cleveland Municipal Court
                                    Case No. 2012 TRC 033938

        BEFORE: Kilbane, J., Rocco, P.J., and McCormack, J.

        RELEASED AND JOURNALIZED:                      October 17, 2013
ATTORNEY FOR APPELLANT

Paul Mancino, Jr.
75 Public Square
Suite 1016
Cleveland, Ohio 44113-2098

ATTORNEYS FOR APPELLEE

Victor R. Perez
Chief City Prosecutor
Ashley Garrett
Assistant City Prosecutor
Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

        {¶1} Defendant-appellant, Rockwell Dumas, appeals from his convictions for

driving under the influence and operating a vehicle under suspension, in violation of the

Cleveland Codified Ordinances. Defendant-appellant argues that there is insufficient

evidence to support the convictions, and that he was denied due process of law when the

court    overruled   his   motion   for   judgment    of   acquittal   on     the   charges.

Defendant-appellant’s motion for acquittal was meritorious, so we reverse the trial court’s

judgment and remand the case for the trial court to vacate the convictions.

        {¶2} On May 18, 2012, defendant was charged with driving under the influence

of alcohol or drugs, in violation of Cleveland Codified Ordinances 433.01; driving under

suspension, in violation of Cleveland Codified Ordinances 435.07; failure to comply, in

violation of Cleveland Codified Ordinances 403.02; and failure to wear a seat belt, in

violation of Cleveland Codified Ordinances 437.27. Defendant pled not guilty.

        {¶3} On September 28, 2012, defendant filed a motion to suppress asserting that

he was purportedly stopped for a violation for failure to comply with a lawful order, and

“a private person has no authority to arrest for a misdemeanor offense.”

        {¶4} On January 9, 2013, the trial court denied the motion to suppress, and the

matter was heard to the bench on January 18, 2013.

        {¶5} Cleveland police officer Jose Torres (“Officer Torres”) testified that at

approximately 2:30 p.m., on June 6, 2012, he responded to a call to assist an off-duty
uniformed officer who was directing traffic at a construction site at East 105th Street and

Yale Avenue. As Officer Torres arrived, he observed that off-duty officer Samuel Ortiz

(“Officer Ortiz”) had stopped defendant’s vehicle and was assisting the defendant to

stand up.    Officer Torres helped defendant walk to the zone car, obtained identification

from him, and conducted a LEADS check. Upon receiving the LEADS report, Officer

Torres, who is not LEADS certified, determined that the defendant’s driver’s license had

been suspended from March 18, 2005 to March 18, 2007, for failure to obtain insurance,

and that his license had never been reinstated. The defendant refused the officer’s

request that he take a breathalyzer test.

       {¶6} The court found the defendant guilty of the charges of driving while under

the influence of alcohol and driving under suspension, but acquitted him of the remaining

charges.    On the charge of driving while under the influence of alcohol, the court

sentenced the defendant to 180 days in jail with 177 days suspended, and fined the

defendant $1,000 with $625 suspended. The court also placed the defendant on one year

of active probation and suspended his driver’s license for six months. On the charge of

driving under suspension, the trial court sentenced the defendant to 180 days in jail,

suspended, and fined the defendant $1,000 with $850 suspended.

       {¶7} The defendant now appeals and assigns five errors for our review.

                                  Assignment of Error One

       Defendant was denied due process of law when the court overruled his
       motion for judgment of acquittal.
       {¶8} Pursuant to Crim.R. 29(A), a court shall not order an entry of judgment of

acquittal if the evidence is such that reasonable minds can reach different conclusions as

to whether each material element of a crime has been proven beyond a reasonable doubt.

State v. Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184 (1978), syllabus. An issue will

be presented to the jury if the evidence, viewed in the light most favorable to the

government, is such that a reasonable mind might fairly find guilt beyond a reasonable

doubt. Id. at 263; see also State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541

(1997).

       {¶9} The elements of driving while under the influence are set forth in Cleveland

Codified Ordinances Section 433.01 as follows:

       No person shall operate any vehicle within the city, if any of the following
       apply:

       (1) The person is under the influence of alcohol, a drug of abuse, or alcohol

       and a drug of abuse.

       {¶10} Pursuant to Cleveland Codified Ordinances Section 401.15, driver or

operator is defined as “every person who drives or is in actual physical control of a

vehicle * * *.” R.C. 4511.194(A)(2) defines “physical control” as “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.”

       {¶11} In State v. Cleary, 22 Ohio St.3d 198, 199, 490 N.E.2d 574 (1986), the Ohio

Supreme Court held that the
      operation of a motor vehicle within the contemplation of R.C. 4511.19(A) is
      a broader term than driving, and a person in the driver’s position in the front
      seat of the vehicle with the key in the ignition while under the influence of
      alcohol or any drug of abuse can be found in violation of the statute.

See also State v. Gill, 70 Ohio St.3d 150, 152, 1994-Ohio-403, 637 N.E.2d 897.

      {¶12} Therefore, when the car has been parked, “operation” of the vehicle is found

within the meaning of R.C. 4511.19 where the key is found in the ignition and the

offender is in the driver’s seat. See, e.g., State v. Wright, 137 Ohio App.3d 88, 91, 738

N.E.2d 61 (11th Dist.2000).

      {¶13} 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).

Thus, movement must be found by the finder of fact. State v. Ware, 8th Dist. Cuyahoga

No. 96327, 2011-Ohio-5665; State v. Schultz, 8th Dist. Cuyahoga No. 90412,

2008-Ohio-4448.

      {¶14} In this matter, the city did not present testimony from Ortiz, the off-duty

officer. The city maintained that Ortiz observed the defendant driving and stopped his

vehicle. Officer Torres, the only witness for the city, stated that when he arrived the

defendant was standing outside the vehicle, in a parking lot near the construction site.

Officer Torres testified that he never saw the defendant inside the car at any time. On

this record, there was no evidence that the engine was running and no evidence that the

key was in the ignition; therefore, there was no evidence that the defendant operated the

vehicle. The requisite elements were not established, and the conviction for operating a
motor vehicle while under the influence of alcohol in violation of Cleveland Codified

Ordinances 433.01 were not established.

      {¶15} The elements of driving under suspension are set forth in Cleveland

Codified Ordinances Section 435.07, which provides:

      No person, whose operator’s right or permit to operate a motor vehicle, * *

      * has been suspended or revoked under the provisions of Ohio R.C. Chapter

      4507 (Driver’s License law), or under the provisions of Ohio R.C. 4509

      (Financial Responsibility law), * * * shall, during the effective dates of such

      suspension or revocation, * * * drive any motor vehicle upon the streets or

      highways in the City.

      {¶16} In this matter, the LEADS check established that the defendant’s driver’s

license had been suspended from March 18, 2005, to March 18, 2007, for failure to obtain

insurance, and the license was never reinstated. Upon Officer Torres’s arrival, just a few

moments later, the off-duty officer had the vehicle stopped and the defendant outside of

the vehicle, in a parking lot near the construction site. Again, Officer Torres testified

that he never saw the defendant inside the car. The city did not present testimony from

Ortiz, who the city maintained observed the defendant driving and stopped his vehicle.

On this record, there was no evidence that the engine was running, no evidence that the

key was in the ignition, and no evidence that the defendant had driven the vehicle.

Therefore, there is insufficient evidence to support the conviction for driving while under

a license suspension in violation of Cleveland Codified Ordinances 435.07.
       {¶17} In accordance with the foregoing, this court is compelled to reverse both the

conviction for driving under the influence and driving while under a license suspension.

We recognize the seriousness of the charges at issue, but because of the lack of evidence

that defendant actually operated a vehicle, under the broadest definition of that term, there

is insufficient evidence to support the convictions. The city’s witness failed to establish

that the defendant had driven the vehicle. He could only establish that defendant was

standing outside of the vehicle, and there was no evidence that the engine was running or

that the key was in the ignition. As a matter of law, the convictions for driving under the

influence and driving while under a license suspension are lacking essential elements to

support the convictions. This assignment of error is well taken.

       {¶18} Defendant’s second, third, fourth and fifth assignments of error state:


                                 Assignment of Error Two

       Defendant was denied due process of law when the court overruled

       defendant’s motion to suppress without the submission of evidence by the

       City of Cleveland.

                                Assignment of Error Three

       Defendant was denied his constitutional rights of confrontation and
       cross-examination when the court permitted hearsay and allowed testimony
       from unauthenticated documents.

                                 Assignment of Error Four

       Defendant was denied due process of law when costs were assessed when
       nothing was said concerning costs at sentencing.
                                Assignment of Error Five

      Defendant was denied due process of law when the court imposed sentence

      without allowing defendant his right of allocution.

      {¶19} In light of our disposition of the first assignment of error, we overrule the

remaining assignments of error as moot. See App.R. 12(A)(1)(c).

      {¶20} The judgment is reversed and remanded to the trial court to vacate the

defendant’s convictions.

      It is ordered that appellant recover from appellee costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the Cleveland

Municipal Court to carry this judgment into execution.




      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY EILEEN KILBANE, JUDGE

KENNETH A. ROCCO, P.J., and
TIM McCORMACK, J., CONCUR
