[Cite as State v. Carpenter, 2013-Ohio-3439.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                   :    JUDGES:
                                                :
                                                :    Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellee                    :    Hon. Patricia A. Delaney, J.
                                                :    Hon. Craig R. Baldwin, J.
                                                :
-vs-                                            :
                                                :
SEAN CARPENTER                                  :    Case No. 12 CAC 12 0087
                                                :
                                                :
        Defendant - Appellant                   :    OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Delaware Municpal
                                                     Court, Case No. 12-CRB-01985 and
                                                     12-CRB-02229



JUDGMENT:                                            Vacated and Remanded




DATE OF JUDGMENT:                                    August 6, 2013




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

DANIEL J. BREYER                                     SAMUEL H. SHAMANSKY
Senior Assistant Attorney General                    DONALD L. REGENSBURGER
1600 Carew Tower                                     COLIN E. PETERS
441 Vine Street                                      KRYSTIN N. MARTIN
Cincinnati, OH 45202                                 523 South Third Street
                                                     Columbus, OH 43215
Delaware County, Case No.12 CAC 12 0087                                                  2

Baldwin, J.

      {¶1}    Appellant Sean Carpenter appeals a judgment of the Delaware Municipal

Court convicting him of two counts of dereliction of duty in violation of R.C.

2921.44(A)(2) and fining him $500 on each count. Appellee is the State of Ohio.

                            STATEMENT OF FACTS AND CASE

      {¶2}    At approximately 9:00 p.m. on July 28, 2012, a number of travelers on

Interstate 71 in Delaware County notified local law enforcement agencies of a reckless

driver they believed to be intoxicated. The vehicle was a gray Ford F150 pickup truck.

The truck was later determined to be driven by Uriel Juarez-Popoca, but it was not

registered to Popoca.

      {¶3}    Derek Beggs, a deputy with the Delaware County Sherriff’s Department,

arrived on the scene with his coworker, Deputy Christopher Hughes.             Appellant, a

trooper with the Ohio State Highway Patrol, later arrived on the scene, after Popoca

was out of the car. The truck was lodged between the guardrail and the guardwires in

the median strip, apparently after the driver attempted a U-turn. There were multiple

license plates in the vehicle and beer cans in the passenger compartment. The keys

were in the ignition. Popoca was alone in the vehicle, and spoke little English. Beggs

commented to appellant that Popoca was so drunk that when he hit Popoca with the

light, Popoca looked at him “like, I’m so drunk, I don’t know who you are.”

      {¶4}    The officers did not identify Popoca at the scene.              The deputies

transmitted information to the dispatcher that the incident was a disabled vehicle, not a

DUI case. A translator had been dispatched from the highway patrol, but appellant

called off the translator, stating that the county deputies were handling the situation. A
Delaware County, Case No.12 CAC 12 0087                                              3


corrections officer with the Sherriff’s Department who minored in Spanish in college

spoke to Popoca by telephone. He communicated to Popoca that he needed to find a

ride because he was not allowed to drive. Popoca had a friend named Christy who he

could call for a ride. Deputy Hughes then transported Popoca to a nearby Taco Bell

restaurant to await his ride. Beggs radioed that Hughes would be transporting his “new

amigo” to Taco Bell.   Shortly after Popoca was dropped off at Taco Bell, dispatch

received a call from the manager that an intoxicated man was at the restaurant

attempting to get someone to give him a ride to his truck on Interstate 71. The manager

could smell alcohol on Popoca. Because a teenager was working the front counter, the

manager left her position on the food line and attempted to get Popoca out of the

restaurant. Although he did not disturb people in the restaurant, the manager was

concerned about his presence and locked the lobby early to keep him outside so he

would not disrupt customers.

      {¶5}    Popoca left the Taco Bell and walked across the street to a Wendy’s

restaurant.   When Deputy Hughes arrived at Taco Bell, the manager told him that

Popoca went to the Wendy’s across the street. She saw Hughes go to Wendy’s for

approximately fifteen minutes, then he left and drove in the direction of the patrol

station.

      {¶6}    Popoca was later struck and killed by a motorist on Route 36/37, after

walking a little over a mile from Wendy’s. His blood alcohol level after his death was

determined to be .23. The next day, appellant told Sgt. Marcus Pirrone that he did not

get close enough to Popoca to determine if he was drunk, and the deputies took him

and dropped him off at Taco Bell.
Delaware County, Case No.12 CAC 12 0087                                                 4


      {¶7}    Appellant was charged with two counts of dereliction of duty in violation of

R.C. 2921.44(A)(2). Deputies Hughes and Beggs were also charged with dereliction of

duty. Hughes pled guilty prior to trial. Appellant and Beggs were jointly tried before a

jury. Appellant was convicted of both counts and fined $500 on each count. He assigns

the following errors on appeal:

      {¶8}    “I.     APPELLANT WAS CONVICTED OF VIOLATING A STATUTE THAT

IS VAGUE IN BOTH ITS TERMS AND MEANING IN VIOLATION OF HIS RIGHTS AS

GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION.

      {¶9}    “II.    THE TRIAL COURT ERRED BY JOINING APPELLANT’S CASES

WITH THOSE OF HIS CO-DEFENDANT IN VIOLATION OF HIS RIGHTS AS

GUARANTEED BY THE FIFTH AND SIXTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION.

      {¶10}   “III.    THE TRIAL COURT’S FAILURE TO COMPLY WITH THE OHIO

RULES OF EVIDENCE VIOLATED APPELLANT’S RIGHT TO DUE PROCESS AS

GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION.

      {¶11}   “IV. APPELLANT WAS CONVICTED IN THE ABSENCE OF EVIDENCE

SUFFICIENT TO SUPPORT A FINDING OF GUILTY IN VIOLATION OF HIS RIGHTS

AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION.

      {¶12}   “V.     APPELLANT’S CONVICTION WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE IN VIOLATION OF HIS RIGHT TO DUE PROCESS AS
Delaware County, Case No.12 CAC 12 0087                                                    5


GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION.

      {¶13}   “VI.     THE TRIAL COURT FAILED TO PROPERLY AND COMPLETELY

INSTRUCT THE JURY AS TO THE APPLICABLE LAW IN APPELLANT’S CASE IN

VIOLATION OF HIS RIGHTS AS GUARANTEED BY THE FIFTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION.

      {¶14}   “VII.    APPELLANT WAS DEPRIVED OF A FAIR TRIAL DUE TO

PROSECUTORIAL MISCONDUCT IN VIOLATION OF HIS RIGHT TO DUE PROCESS

AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION.

      {¶15}   “VIII.    APPELLANT WAS DEPRIVED OF A FAIR TRIAL BY THE

CUMULATIVE ERRORS MADE BY THE TRIAL COURT IN VIOLATION OF HIS RIGHT

TO DUE PROCESS AS GUARANTEED BY THE FIFTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION.”

                                                I.

      {¶16}   In his first assignment of error, appellant argues that R.C. 2921.44(A)(2) is

void for vagueness. He argues that the words prevent, apprehend, offender and power

are not defined in the Ohio Revised Code. He argues that these “nebulous” words form

a statute that is impossible for a reasonably intelligent person to understand.

      {¶17}   R.C. 2921.44(A)(2) provides:

      {¶18}   “(A) No law enforcement officer shall negligently do any of the following:
Delaware County, Case No.12 CAC 12 0087                                                  6


      {¶19}   “(2) Fail to prevent or halt the commission of an offense or to apprehend

an offender, when it is in the law enforcement officer's power to do so alone or with

available assistance.”

      {¶20}   In State v. Phipp, 58 Ohio St.2d 271, 273, 389, 389 N.E.2d 1128, 1130

(1979), and State v. Young, 62 Ohio St.2d, 370, 372, 406 N.E.2d 499, 501 (1980), the

Ohio Supreme Court recognized that the legal test for determining whether a statute is

unconstitutionally vague was set forth by the United States Supreme Court in Connally

v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926), and

Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). It has

long been established that a statute, especially a criminal statute, is unconstitutional on

its face if its provisions are so vague and imprecise that persons of ordinary intelligence

must guess at its meaning and differ as to its application. Connally, 269 U.S. at 391;

Grayned, 408 U.S. at 108-09; Young, 62 Ohio St.2d at 372-73, 406 N.E.2d at 501. All

statutes designed to promote the public health, safety and welfare enjoy a strong

presumption of constitutionality.    State v. Anderson, 57 Ohio St. 3d 168, 171, 566

N.E.2d 1224 (1991). The party alleging that a statute is unconstitutionally vague must

prove that assertion beyond a reasonable doubt. Id.

      {¶21}   Appellant has not demonstrated beyond a reasonable doubt that R.C.

2921.44(A)(2) is unconstitutionally vague. We agree with the reasoning of the trial court

in finding the statute is not unconstitutionally vague:

      {¶22}   “In the statute in question, I do not find any of the terms to be

unconstitutionally vague. The term ‘law enforcement officer’ is defined in R.C.

2901.01(A)(11), and the concept of criminal negligence is likewise spelled out clearly in
Delaware County, Case No.12 CAC 12 0087                                                    7


Ohio’s standard jury instructions. And I do not find the terms ‘prevent,’ ‘halt,’

‘apprehend,’ or ‘power’ to be so rare or confusing that a person of ordinary intelligence

would be baffled by their meaning. I think a reasonable reader of the statute would

understand ‘prevent’ to mean avoid or stop; ‘halt’ to refer to causing an event in

progress to end; ‘apprehend’ to mean capture or seize; and ‘power’ to mean legal

authority and, depending on the circumstances, physical proximity. And of course the

legal authority of the highway-patrol officers is spelled out in R.C. 5503.02, while the

authority of law-enforcement officers in general is listed in R.C. 2935.03.

      {¶23}   “In my view, the defendant has not met his heavy burden of showing that

the dereliction-of-duty statute is impermissibly vague. A person of ordinary intelligence

can understand what conduct is prohibited and what is not.            The fact that some

violations of the statute may be difficult to prove does not compel a finding that the

statute itself is unconstitutionally vague.” Judgment Entry, December 7, 2012.

      {¶24}   The first assignment of error is overruled.

                                               IV.

      {¶25}   We address appellant’s fourth assignment of error next, as our resolution

of this assignment renders the remaining issues before this Court moot.

      {¶26}   Appellant argues that the evidence is insufficient to support a conviction of

two counts R.C. 2921.44(A)(2), which provides:

      {¶27}   “(A) No law enforcement officer shall negligently do any of the following:

      {¶28}   “(2) Fail to prevent or halt the commission of an offense or to apprehend

an offender, when it is in the law enforcement officer's power to do so alone or with

available assistance.”
Delaware County, Case No.12 CAC 12 0087                                                 8


      {¶29}   Criminal negligence is defined by R.C. 2901.22(D):

      {¶30}   “(D) A person acts negligently when, because of a substantial lapse from

due care, he fails to perceive or avoid a risk that his conduct may cause a certain result

or may be of a certain nature. A person is negligent with respect to circumstances

when, because of a substantial lapse from due care, he fails to perceive or avoid a risk

that such circumstances may exist.”

      {¶31}   An appellate court's function when reviewing the sufficiency of the

evidence is to determine 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. Jenks, 61 Ohio St. 3d 259, 574

N.E.2d 492, paragraph two of the syllabus (1991). Where there is insufficient evidence

to support a conviction, the remedy is reversal with instructions to discharge the

defendant; no retrial is available. State v. Freed, 10th Franklin No. 06AP-700, 2006-

Ohio-6746, ¶27.

      {¶32}   In the instant case, viewing the evidence in a light most favorable to the

prosecution, we find that no rational trier of fact could have found that appellant acted

negligently in failing to apprehend Popoca or in failing to halt the commission of

disorderly conduct by Popoca in Taco Bell. State’s Exhibit 41, the video recording from

appellant’s cruiser, establishes that appellant had been given an incorrect mile marker

by his dispatcher. By the time appellant arrived on the scene, Beggs and Hughes had

Popoca out of the vehicle and in their custody.      While the State characterizes the

decision to take Popoca to Taco Bell as a joint decision, the tape demonstrates that

appellant did not contribute to the decision-making process. Beggs and Hughes made
Delaware County, Case No.12 CAC 12 0087                                                    9


the decision to not charge Popoca with driving while intoxicated, to let him call for a ride,

and to take him to Taco Bell to await a ride before appellant arrived on the scene.

Beggs merely informed appellant as to the decisions already made by the deputies; the

scene was in the control of the deputies before appellant arrived.        Appellant did not

interact with Popoca. Appellant did not act negligently in failing to investigate a scene

and personally apprehend Popoca when he was already under the control of two

sheriff’s deputies. Appellant had no reason to believe that Popoca did not actually have

a ride and did not understand the translator. He further had no reason to believe that

Popoca was going to be left at Taco Bell by Hughes without supervision given his state

of intoxication and difficulty with the English language. Appellant did not act negligently,

based on the information he received at the traffic stop, in allowing the deputies to

maintain control of the scene.

      {¶33}   The fourth assignment of error is sustained.

      {¶34}   Appellant’s second, third, fifth, sixth, seventh and eighth assignments of

error are rendered moot by our decision in the fourth assignment of error.
Delaware County, Case No.12 CAC 12 0087                                           10


      {¶35}   The judgment of conviction and sentence of the Delaware Municipal Court

is vacated.   This cause is remanded to that court with instructions to discharge

appellant. Costs assessed to appellee.



By: Baldwin, J.

Gwin, P. J. and

Delaney, J. concur.




                                         HON. CRAIG R. BALDWIN



                                         HON. W. SCOTT GWIN



                                         HON. PATRICIA A. DELANEY




CRB/rad
[Cite as State v. Carpenter, 2013-Ohio-3439.]


                 IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                      :
                                                   :
        Plaintiff - Appellee                       :
                                                   :
-vs-                                               :       JUDGMENT ENTRY
                                                   :
SEAN CARPENTER                                     :
                                                   :
        Defendant - Appellant                      :       CASE NO. 12 CAC 12 0087


        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Delaware Municipal Court is vacated and remanded. Costs assessed to

appellee.




                                                HON. CRAIG R. BALDWIN



                                                HON. W. SCOTT GWIN



                                                HON. PATRICIA A. DELANEY
