[Cite as State v. Capps, 2018-Ohio-1132.]


                                       COURT OF APPEALS
                                   COSHOCTON COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                               :       JUDGES:
                                            :       Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                  :       Hon. William B. Hoffman, J.
                                            :       Hon. Earle E. Wise, Jr., J.
-vs-                                        :
                                            :
CODY D. CAPPS                               :       Case No. 2017CA0010
                                            :
        Defendant-Appellant                 :       OPINION



CHARACTER OF PROCEEDING:                            Appeal from Coshocton County
                                                    Municipal Court,
                                                    Case No. TRC 1700462 A & B




JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   March 26, 2018




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

RICHARD J. SKELTON                                  ROBERT E. WEIR
Assistant Law Director                              239 N. 4th Street
760 Chestnut Street                                 Coshocton, OH 43812
Coshocton, OH 43812
Coshocton County, Case No. 2017CA0010                                                         2

Wise, Earle, J.

       {¶ 1} Defendant-Appellant Cody D. Capps appeals the judgement of conviction

entered by the Coshocton Municipal Court, Coshocton County Ohio, finding appellant

guilty of operating a vehicle under the influence and a violation of lanes of travel. Plaintiff-

Appellee is the State of Ohio.

                              FACTS AND PROCEDURAL HISTORY

       {¶ 2} On February 23, 2017, at approximately 2:00 a.m., the Coshocton County

Sherriff's Department received a report of a reckless driver in a blue Honda on Route 16.

Deputy Brandon Elson was dispatched to the area and located the vehicle. He followed

the driver for two miles and observed several lane violations. The last observed violation

involved both passenger side tires crossing completely over the fog line. Elson thus

initiated a traffic stop.

       {¶ 3} Upon approaching the vehicle, Elson made contact with appellant and

noticed he was fidgety, nervous and confused. Elson further noted appellant was trying

to hide something in the center console. Appellant stated he was going home from work

and had not been drinking.

       {¶ 4} Based on these observations Elson administered field sobriety tests. On the

horizontal gaze nystagmus, appellant exhibited six of six clues. On the vertical nystagmus

appellant exhibited no clues. Elson also had appellant preform a one-legged stand and

walk and turn. Appellant exhibited three or four clues on the former and five for the latter.

Elson placed appellant under arrest for driving under the influence of alcohol or drugs in

violation of R.C. 4511.19(A)(1)(a). Appellant was further cited for failure to drive in marked

lanes in violation of R.C. 4511.33(A)(1).
Coshocton County, Case No. 2017CA0010                                                        3


       {¶ 5} Elson obtained appellant's permission to search the car. He found a rolled

up dollar bill with white powder on it, a prescription bottle containing a few tablets of

Suboxone, which is a brand name for Buprenorphine, an opioid medication. Two half

tablets of Suboxone were found on the floorboard along with numerous empty blister

packs of Coricidin, an over-the-counter cold remedy.

       {¶ 6} Appellant told Elson he was prescribed Suboxone for opioid addiction and

was to take one and a half pills daily. Appellant's prescription for 45 tablets had been filled

the week before, yet he only had two tablets remaining. Appellant further told Elson he

would crush the tablets and put them under his tongue or snort them.

       {¶ 7} Appellant later submitted to a urine screen which was positive for

Buprenorphine.

       {¶ 8} On June 28, 2017, appellant elected to proceed to a trial to the court. After

hearing the evidence, the trial court found appellant guilty of OVI and failure to travel in

marked lanes. Appellant’s sentence included a period of probation, a fine and a one year

operator’s license suspension. His sentence was stayed pending this appeal.

       {¶ 9} The matter is now before this court for consideration. Appellant raises three

assignments of error:

                                                  I

       {¶ 10} "THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S CRIM. R.

29 MOTION FOR JUDGMENT OF ACQUITTAL FOLLOWING APPELLEE'S CASE-IN-

CHIEF."
Coshocton County, Case No. 2017CA0010                                                     4


                                                 II

       {¶ 11} "THE DECISION OF THE TRIAL COURT, FINDING APPELLANT GUILTY,

WAS AGAINST THE SUFFICIENCY OF THE EVIDENCE."



                                                 III

       {¶ 12} "THE DECISION OF THE TRIAL COURT, FINDING APPELLANT GUILTY,

WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."

                                              I, II, III

       {¶ 13} We address appellant's assignments of error together.

       {¶ 14} Appellant argues the trial court erred when it denied his Crim.R. 29 motion

for acquittal at the close of the state's evidence. He further argues his conviction for OVI

is against the manifest weight and sufficiency of the evidence. We disagree.

       {¶ 15} Crim.R. 29 governs motion for acquittal.         Subsection (A) states the

following:



              The court on motion of a defendant or on its own motion, after the

              evidence on either side is closed, shall order the entry of a judgment

              of acquittal of one or more offenses charged in the indictment,

              information, or complaint, if the evidence is insufficient to sustain a

              conviction of such offense or offenses. The court may not reserve

              ruling on a motion for judgment of acquittal made at the close of the

              state's case.
Coshocton County, Case No. 2017CA0010                                                    5


       {¶ 16} The standard to be employed by a trial court in determining a Crim.R. 29

motion is set out in State v. Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184 (1978),

syllabus: "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 proved beyond a reasonable

doubt."

       {¶ 17} On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State

v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). "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." Jenks at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S.

307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). On review for manifest weight, a reviewing

court is to examine 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 jury 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. Martin, 20 Ohio

App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). See also, State v. Thompkins, 78 Ohio

St.3d 380, 678 N.E.2d 541 (1997). The granting of a new trial "should be exercised only

in the exceptional case in which the evidence weighs heavily against the conviction."

Martin at 175.

       {¶ 18} Appellant was charged with a violation of R.C. 4511.19(A)(1)(a) which

provides no one shall operate a vehicle under the influence of alcohol, a drug of abuse or
Coshocton County, Case No. 2017CA0010                                                      6


a combination of the two. He was further charged with a violation of R.C. 4511.33(A)(1)

which provides when a roadway has been divided into two or more marked lanes for

traffic, a vehicle shall be driven entirely within a single lane and shall not be moved from

such lane until the drive has determined movement can be made safely.

       {¶ 19} Appellant makes two conclusory statements that his convictions were

against the manifest weight and sufficiency of the evidence. These statements are not

followed by any argument, nor any authority or citations to the record supporting the

argument.

       {¶ 20}   App.R. 16(A)(7) requires “[a]n argument containing the contentions of the

appellant with respect to each assignment of error presented for review and the reasons

in support of the contentions, with citations to the authorities, statutes, and parts of the

record on which appellant relies. “It is the duty of the appellant, not this court, to

demonstrate [ ] assigned error through an argument that is supported by citations to legal

authority and facts in the record.” State v. Wholley, 5th Dist. Ashland App. No. 16-COA-

003, 2017-Ohio-576 ¶ 20 citing State v. Harrington, 5th Dist. Licking App. No. 15-CA-10,

2015-Ohio-4440. “It is not the function of this court to construct a foundation for [an

appellant's] claims; failure to comply with the rules governing practice in the appellate

courts is a tactic which is ordinarily fatal.” Id., citing Kremer v. Cox, 114 Ohio App.3d 41,

60, 682 N.E.2d 1006 (9th Dist.1996).
Coshocton County, Case No. 2017CA0010                                               7


      {¶ 21} Appellant's arguments do not cite to the record and does not describe why

his convictions are against the manifest weight and sufficiency of the evidence. We

therefore overrule the three assignments of error.



By Wise, Earle, J.

Gwin, P.J. and

Hoffman, J. concur.


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