[Cite as State v. Rodich, 2014-Ohio-4399.]




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


State of Ohio                                    Court of Appeals No. S-13-043

        Appellee                                 Trial Court No. TRC 1304116

v.

Michael G. Rodich                                DECISION AND JUDGMENT

        Appellant                                Decided: October 3, 2014

                                             *****

        Thomas L. Stierwalt, Sandusky County Prosecuting Attorney, and
        Norman P. Solze, Assistant Prosecuting Attorney, for appellee.

        Tim A. Dugan, for appellant.

                                             *****

        PIETRYKOWSKI, J.

        {¶ 1} Defendant-appellant, Michael G. Rodich, appeals the November 20, 2013

judgment of the Sandusky County Court which, following a trial to the court and

conviction for having physical control of a vehicle while under the influence, sentenced

appellant to 30 days in jail, with 20 days suspended, a $1,000 fine, with $750 suspended,
a six-month license suspension, and active probation for 12 months. Because we find

that the conviction was supported by sufficient evidence and was not against the weight

of the evidence, we affirm.

       {¶ 2} On September 6, 2013, appellant was charged with having physical control

of a motor vehicle while under the influence. He entered a not guilty plea. The case

proceeded to a bench trial on November 20, 2013. The facts surrounding the charge were

developed at trial and are as follows. Ohio State Highway Patrol Trooper Matt Foster

testified that on September 5, 2013, at approximately 11:50 p.m. he received a call that a

vehicle was pulled over on the Ohio Turnpike, eastbound around the 64 to 65 mile post,

with a female walking away from it.

       {¶ 3} Trooper Foster arrived on the scene but did not locate the vehicle. At

approximately 12:15 a.m., Foster did locate and made contact with the female who was

walking on the side of the road. According to Foster, the female spoke with someone

while she was in the patrol vehicle. The two then proceeded to the turnpike plaza in

Sandusky County, Ohio, about 13 miles further east, where the female identified the

vehicle she had been in. Trooper Foster testified that at 12:40 a.m. he encountered

appellant, sitting in the passenger seat of the vehicle with the ignition key under his thigh.

Foster stated that he noticed a strong smell of alcohol on appellant’s breath and that he

had red and glassy eyes. According to Trooper Foster, appellant refused to answer any of

his questions and refused to submit to sobriety testing. Foster stated that based on his

experience and training, appellant was under the influence of alcohol.




2.
       {¶ 4} Trooper Foster testified that he secured the vehicle which belonged to the

female who was also intoxicated, and then placed appellant under arrest. Foster stated

that he placed appellant in the back of the patrol car and had appellant’s cellular phone

with him in the front seat. Trooper Foster testified that the phone was running a police

radio scanner application and he could hear his police radio being repeated on the phone.

       {¶ 5} Following the state’s presentation of evidence, appellant made a Crim.R. 29

motion for acquittal arguing that the state failed to prove that appellant had physical

control of the vehicle because he was not found in the driver’s seat as required by statute.

The state indicated that sufficient circumstantial evidence had been presented to show

that appellant had been in physical control. The vehicle was found 13 miles from the

original location and appellant was in possession of the ignition key. Further, appellant

had been listening to police radio and was able to move to the passenger seat before

Trooper Foster arrived. The court agreed with the state and denied the motion.

Appellant presented no evidence and renewed his motion for acquittal which was again

denied.

       {¶ 6} The court then found that because the female and the vehicle were found 13

miles apart and there was no other explanation of how the vehicle arrived at the turnpike

plaza, appellant operated the vehicle and was in physical control of the vehicle. The

court then sentenced appellant and this appeal followed.




3.
       {¶ 7} Appellant raises two assignments of error for our review:

              1. Appellee failed to provide legally sufficient evidence at trial to

       sustain a conviction for physical control.

              2. Appellant’s conviction fell against the manifest weight of the

       evidence.

       {¶ 8} Appellant’s assignments of error argue that his conviction for physical

control was not supported by legally sufficient evidence and was against the weight of the

evidence. Sufficiency of the evidence and manifest weight of the evidence are

quantitatively and qualitatively different legal concepts. State v. Thompkins, 78 Ohio

St.3d 380, 386, 678 N.E.2d 541 (1997). Sufficiency of the evidence is purely a question

of law. Id. At its core, sufficiency of the evidence is a determination of adequacy and a

court must consider whether the evidence was sufficient to support the conviction as a

matter of law. Id. The proper analysis 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. Williams, 74 Ohio

St.3d 569, 576, 660 N.E.2d 724 (1996), quoting State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991), paragraph two of the syllabus.

       {¶ 9} In contrast, a manifest weight challenge questions whether the state has met

its burden of persuasion. Thompkins at 387. In making this determination, the court of

appeals sits as a “thirteenth juror” and, after:




4.
                “reviewing the entire record, weighs the evidence and all reasonable

       inferences, considers the credibility of witnesses and determines 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. The discretionary power to grant a new trial should

       be exercised only in the exceptional case in which the evidence weighs

       heavily against the conviction.” Id., quoting State v. Martin, 20 Ohio

       App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

       {¶ 10} Appellant was convicted of R.C. 4511.194 which provides, in part:

                (B) No person shall be in physical control of a vehicle, streetcar, or

       trackless trolley if, at the time of the physical control, any of the following

       apply:

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

       a combination of them.

                (2) The person’s whole blood, blood serum or plasma, breath, or

       urine contains at least the concentration of alcohol specified in division

       (A)(1)(b), (c), (d), or (e) of section 4511.19 of the Revised Code.

       {¶ 11} The statute 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.” R.C. 4511.194(A)(2).




5.
       {¶ 12} This court has reviewed the use of circumstantial evidence to prove that a

defendant was in physical control of a vehicle while under the influence of alcohol. In

Village of Waterville v. Lombardo, 6th Dist. Lucas No. L-02-1160, 2004-Ohio-475, the

defendant’s car broke down and, after unsuccessful attempts to start it, he went inside an

adjacent bar and consumed several beers. Id. at ¶ 3. The defendant then telephoned his

girlfriend to aid him in starting the car. The vehicle jumped the curb and then rolled back

into a parked vehicle. Id. Ultimately, the police charged him with physical control of a

motor vehicle while under the influence of alcohol. Id. at ¶ 2.

       {¶ 13} Finding that the conviction was supported by sufficient evidence and not

against the weight of the evidence, this court noted:

              When circumstantial evidence shows that the appellant is the only

       person near the vehicle, even though not inside it, one may properly

       conclude that the person had been in actual physical control * * *. With the

       immediate arrival of the officers and [appellant’s] nearness to the car, there

       was ample evidence, even without his immediate admissions, that he had

       been in actual physical control. (Citations omitted.) Id. at ¶ 17.

       {¶ 14} We noted that “[c]ircumstantial evidence, furthermore, permits legitimate

inferences. If a car was where it was and was performing as it was because of the

defendant’s choice, the defendant was in actual physical control.” Id. at ¶ 18.

       {¶ 15} In the present case, Trooper Foster received a call that a vehicle was parked

on the turnpike with a female walking away from it. He arrived at the location within




6.
15-20 minutes and was unable to locate the vehicle; he did locate and pick up the female.

The two proceeded 13 miles east to the turnpike plaza where, at approximately 50

minutes from the initial call, they spotted the female’s vehicle with appellant inside and

in possession of the keys. There was no one else spotted near the vehicle. We find that

the court reasonably inferred that appellant, in moving the vehicle from mile post 64 or

65 to the turnpike plaza, was in physical control of the vehicle.

       {¶ 16} Based on the foregoing, we conclude that appellant’s conviction for having

physical control of a vehicle while under the influence of alcohol was supported by

sufficient evidence and was not against the weight of the evidence. Appellant’s first and

second assignments of error are not well-taken.

       {¶ 17} On consideration whereof, we find that appellant was not prejudiced or

prevented from having a fair trial and the judgment of the Sandusky County Court is

affirmed. Pursuant to App.R. 24, appellant is ordered to pay the costs of this appeal.


                                                                        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.




7.
                                                                     State v. Rodich
                                                                     C.A. No. S-13-043




Mark L. Pietrykowski, J.                      _______________________________
                                                          JUDGE
Thomas J. Osowik, J.
                                              _______________________________
James D. Jensen, 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.sconet.state.oh.us/rod/newpdf/?source=6.




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