[Cite as State v. Haskamp, 2020-Ohio-419.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                         CLERMONT COUNTY




STATE OF OHIO,                                 :

      Appellee,                                :       CASE NO. CA2019-04-033

                                               :               OPINION
   - vs -                                                       2/10/2020
                                               :

TAYLOR J. HASKAMP,                             :

      Appellant.                               :




            CRIMINAL APPEAL FROM CLERMONT COUNTY MUNICIPAL COURT
                             Case No. 2018 TRC 15676



D. Vincent Faris, Clermont County Prosecuting Attorney, Nick Horton, 76 South Riverside
Drive, 2nd Floor, Batavia, Ohio 45103, for appellee

W. Stephen Haynes, Clermont County Public Defender, Robert F. Benintendi, 302 East Main
Street, Batavia, Ohio 45103, for appellant



        HENDRICKSON, P.J.

        {¶ 1} Appellant, Taylor J. Haskamp, appeals from his conviction in the Clermont

County Municipal Court for operating a vehicle while under the influence of alcohol or drug of

abuse ("OVI"). For the reasons discussed below, we affirm appellant's conviction.

        {¶ 2} On October 26, 2018, following a traffic stop in Miami Township, Clermont
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County, Ohio, appellant was charged by complaint in Clermont County Municipal Court Case

No. 2018 TRC 15676 with OVI in violation of R.C. 4511.19(A)(1)(a) and OVI in violation of

R.C. 4511.19(A)(2), both as second offenses, as well as a marked lanes violation in violation

of R.C. 4511.33. That same day, appellant was also charged by a separate complaint in

Clermont County Municipal Court Case No. 2018 CRB 05229 with possession of drug

paraphernalia in violation of R.C. 2925.141 and possession of marijuana in violation of R.C.

2925.11(C)(3).

       {¶ 3} Appellant initially pled not guilty to the charges.            However, following

negotiations with the state, appellant agreed to enter a plea of no contest to OVI in violation

of R.C. 4511.19(A)(1)(a), as amended from a second offense to a first offense, a

misdemeanor of the first degree. In exchange for his no contest plea, the state agreed to

dismiss the remaining charges.

       {¶ 4} Appellant appeared before the trial court on March 15, 2019 to enter his no

contest plea to the amended OVI charge. At this time, appellant executed a Waiver of

Issuance of New Complaint, Service, and New Arraignment, which allowed the state to

amend the charge from a second-offense OVI to a first-offense OVI without filing a new

charging instrument. Appellant then entered his no contest plea and, through counsel,

stipulated that the arresting officer's written narrative would be admitted and would serve as

the basis for his no contest plea.

       {¶ 5} Miami Township Police Officer B. Mehne's written narrative provided that shortly

after midnight on October 24, 2018, the officer observed a black Chevy Malibu driven by

appellant driving east on State Route 28 near Interstate 275. As the vehicle approached

Romar Drive, it made a sudden lane change to get into a left-turn lane. The vehicle then

rolled past the "stop bar" for the red light. Once the light turned green, the vehicle made a

wide left turn, causing its right-side tires to completely cross-over the white edge line. Officer
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Mehne continued to follow the vehicle and observed two more sudden lane changes and a

wide left turn onto Cinema Drive. Officer Mehne activated his overhead lights and initiated a

traffic stop.

       {¶ 6} Upon approaching the vehicle and making contact with appellant, Officer

Mehne "detected an odor of alcohol and marihuana." Officer Mehne asked for appellant's

license and proof of insurance. Appellant handed over his license, but "fumble[d] with his

wallet, ha[d] trouble pulling cards from it and dropped it in his lap." While appellant was

attempting to get out his insurance card, Officer Mehne observed that appellant was

paraplegic and appellant's vehicle had two metal extensions for the brake and gas petals.

He further observed a Steel Reserve beer can and a marijuana blunt in the vehicle's

cupholders. When questioned about the beer can and marijuana blunt, appellant advised the

officer that the can was empty and was from a few days ago. Appellant handed the blunt to

the officer and stated he smokes marijuana for his pain.

       {¶ 7} Appellant then admitted that he had been drinking that night, stating that he had

consumed two vodka tonics. Officer Mehne administered the HGN test on appellant and

observed six of six clues of impairment. After further questioning, appellant advised Officer

Mehne that he had "one drink at Macadu's * * * [and] then * * * went to Rooster's where he

had one more drink." Appellant also admitted that he had smoked marijuana that day,

stating he had "one joint hours earlier." Officer Mehne placed appellant under arrest, read

him his Miranda rights, and advised appellant that he was being transported to the police

department to take a breath test. Appellant responded that he needed to use the restroom.

Due to medical complications stemming from appellant's paralysis, appellant was transported

to a hospital. At the hospital, appellant refused to submit to a urine test. An inventory search

of appellant's vehicle resulted in the discovery of marijuana and a digital scale.

       {¶ 8} After considering the officer's narrative statement, the trial court found appellant
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guilty of OVI in violation of R.C. 4511.19 (A)(1)(a). The court sentenced appellant to 180

days in jail, with 177 days suspended, placed him on two years of nonreporting probation,

and imposed a $375 fine and court costs.

       {¶ 9} Appellant timely appealed his conviction, raising the following as his only

assignment of error:

       {¶ 10} THE TRIAL COURT ERRED IN ENTERING A FINDING OF GUILT UPON

APPELLANT'S PLEA OF NO CONTEST.

       {¶ 11} In his sole assignment of error, appellant argues the trial court erred in

accepting his no contest plea and finding him guilty of OVI as the court failed to establish that

he explicitly waived his right to an oral explanation of circumstances. He further argues that

the explanation of circumstances provided to the trial court in Officer Mehne's written

narrative did not contain facts supporting all the elements of the OVI offense.

       {¶ 12} R.C. 2937.07 governs no contest pleas in misdemeanor cases, and it provides,

in relevant part, that "[a] plea to a misdemeanor offense of 'no contest' or words of similar

import shall constitute an admission of the truth of the facts alleged in the complaint and that

the judge or magistrate may make a finding of guilty or not guilty from the explanation of the

circumstances of the offense." The Ohio Supreme Court has determined that "R.C. 2937.07

confers a substantive right * * * [and] a no contest plea may not be the basis for a finding of

guilty without an explanation of circumstances." Cuyahoga Falls v. Bowers, 9 Ohio St.3d

148, 150 (1984). "[T]he explanation-of-circumstances requirement exists to provide an extra

layer of procedural protection to the defendant." Girard v. Giordano, 155 Ohio St.3d 470,

2018-Ohio-5024, ¶ 15. "[I]t allows a judge to find a defendant not guilty or refuse to accept

his plea when the uncontested facts do not rise to the level of a criminal violation." Id. at ¶

18.

       {¶ 13} "The explanation of circumstances does not mandate that sworn testimony be
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taken but only contemplates some explanation of the facts surrounding the offense to ensure

that the trial court does not make a finding of guilty in a perfunctory fashion." State v. Cox,

12th Dist. Madison No. CA2001-01-003, 2001 Ohio App. LEXIS 4277, *2-3 (Sept. 24, 2001),

citing Bowers at 151. The trial court may rely upon a law enforcement officer's affidavit or

notes as an explanation of circumstances. Id. at *3. However, "[t]he explanation of

circumstances requirement 'is not satisfied by a presumption that the court was aware of

facts which may be gleaned from a review of the available documentation.'" State v.

Schornak, 2d Dist. Greene No. 2014-CA-59, 2015-Ohio-3383, ¶ 10, quoting State v.

Keplinger, 2d Dist. Greene No. 98-CA-24, 1998 Ohio App. LEXIS 6129, *8 (Nov. 13, 1998).

"[T]he record must show that the court relied upon such documents when rending its

determination of guilt." Cox at *3.

       {¶ 14} As this court has previously recognized, a defendant entering a no contest plea

may waive an explanation of circumstances. State v. Erdman, 12th Dist. Butler No. CA2016-

07-126, 2017-Ohio-1092, ¶ 13.         See also Ridgeville v. Roth, 9th Dist. Lorain No.

03CA008396, 2004-Ohio-4447, ¶ 12 (recognizing that "a defendant is not precluded from

waiving the explanation of circumstances" when entering a no contest plea to a misdemeanor

offense); State v. Smyers, 5th Dist. Muskingum No. CT03-0039, 2004-Ohio-851, ¶ 12

(recognizing that the law "does not prohibit a defendant from waiving the explanation of

circumstances requirement"); State v. Korossy, 6th Dist. Ottawa No. OT-16-025, 2017-Ohio-

7275, ¶ 12 (holding that "a defendant may waive the required R.C. 2937.07 explanation of

the circumstances"). Generally, a waiver of the explanation-of-circumstances requirement

must be explicit. Id. Where a defendant waives the explanation-of-the-circumstances

requirement, the defendant is precluded from raising the issue on appeal, as the defendant

cannot raise as error a trial court's action that the defendant himself induced or invited the

court to make. Erdman at ¶ 13, citing State ex rel. Beaver v. Konteh, 83 Ohio St.3d 519, 521
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(1998).

       {¶ 15} The record in the present case demonstrates that appellant, through defense

counsel, explicitly waived having an explanation of the circumstances read aloud into the

record. Appellant agreed that rather than a reading of facts, Officer Mehne's written narrative

would be admitted into the record. The following discussion occurred at the plea hearing:

              THE COURT: Anything on the facts before I review them? I've
              got a copy of them here. Anything on them?

              [DEFENSE COUNSEL]: No, Your Honor.

              THE COURT: All right.

              [DEFENSE COUNSEL]:             We would, we agreed it could be
              stipulated.

              THE COURT: Sure.

              [DEFENSE COUNSEL]: And the narrative could be provided.

              THE COURT: All right.

              [DEFENSE COUNSEL]: And he would tender his no contest
              plea based on the narrative.

              THE COURT: Okay, very good.

              All right, the Court is satisfied. The court set out to review the
              facts. I'll find that those facts are sufficient for a finding of guilt to
              the OVI as a first under the (A)(1)(a) charge that Officer Meahne
              [sic] formed an opinion based on his observations that he was
              under the influence at that time. He – and I will found [sic] him
              guilty of the charge.

       {¶ 16} Despite conceding in his appellate brief that Officer Mehne's written narrative

served as the explanation of circumstances, appellant nonetheless argues he did not waive

his right to orally hear and consider the factual allegations contained in the narrative. He

asserts that there is nothing in the record indicating he knew the factual assertions that were

set forth in the written narrative. We find no merit to appellant's argument.

       {¶ 17} Appellant was present when his counsel stipulated to the use of the officer's
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written narrative as the explanation of circumstances. The written statement, which had

previously been provided to appellant and his counsel during discovery, was then provided to

the trial court at the plea hearing and was placed into the record on March 15, 2019.

Appellant did not object to use of the written statement nor indicate any unfamiliarity with the

document at the hearing. He further did not indicate that he wished to add any facts to the

narrative, despite being asked if there was "[a]nything on the facts" before the court reviewed

the narrative statement. Appellant cannot claim he was unaware of the content of the written

narrative when he stipulated to the use of the narrative as the explanation of circumstances.

He likewise cannot claim any error in the court's consideration of the written document as a

court is permitted to rely upon an officer's notes as an explanation of circumstances. See

Cox, 2001 Ohio App. LEXIS 4277 at *3.

       {¶ 18} Appellant nonetheless contends that the stipulated explanation of

circumstances failed to set forth facts establishing all the essential elements of the OVI

offense. Specifically, appellant contends that Officer's Mehne's written narrative did not

provide sufficient evidence that he was "under the influence" when operating his vehicle on

October 24, 2018. We disagree.

       {¶ 19} Pursuant to R.C. 4511.19(A)(1)(a), a person is guilty of OVI if that person

"operate[s] any vehicle * * * within this state, if, at the time of operation, * * * [t]he person is

under the influence of alcohol, a drug of abuse, or a combination of them." Officer Mehne's

written narrative indicates the officer observed appellant driving erratically by making multiple

sudden lane changes and wide left turns, rolling past the "stop bar" at an intersection, and

committing a marked lanes violation. Upon approaching appellant, the officer smelled

marijuana and the odor of an alcoholic beverage and saw a marijuana blunt and beer can in

the vehicle's cupholders. Appellant, who Officer Mehne described as "fumbl[ing] with his

wallet [and] having trouble pulling cards from it," admitted that he had consumed a few drinks
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and smoked marijuana earlier in the evening. Officer Mehne administered the HGN test on

appellant and observed six of six clues of impairment. After he was arrested, appellant

became verbally abusive and uncooperative and refused a urine test. These facts, which

were admitted as true by appellant's no contest plea, support all the elements of an OVI

offense and are sufficient to support the trial court's guilty finding. See, e.g., State v.

Eldridge, 12th Dist. Warren No. CA2015-02-013, 2015-Ohio-3524, ¶ 7-15 (finding sufficient

evidence for defendant's OVI conviction where evidence was presented that the defendant's

vehicle crossed over the yellow center line, an officer noticed the defendant had a strong

odor of an alcoholic beverage about his person, the defendant admitted to drinking a glass of

wine, the defendant refused to perform field-sobriety tests, and the officer observed a cup of

wine in the center console and empty wine bottles in the vehicle).

       {¶ 20} Appellant's arguments are, therefore, without merit and his sole assignment of

error is overruled.

       {¶ 21} Judgment affirmed.


       RINGLAND and PIPER, JJ., concur.




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