[Cite as State v. Pottorf, 2014-Ohio-5399.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                              WARREN COUNTY




STATE OF OHIO,                                      :

        Plaintiff-Appellee,                         :     CASE NO. CA2014-03-046

                                                    :           OPINION
    - vs -                                                       12/8/2014
                                                    :

RALPH W. POTTORF, JR.,                              :

        Defendant-Appellant.                        :



      CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                           Case No. 14 CR 29742



David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 500 Justice Drive,
Lebanon, Ohio 45036, for plaintiff-appellee

William F. Oswall, Jr., 810 Sycamore Street, Fifth Floor, Cincinnati, Ohio 45202, for
defendant-appellant



        RINGLAND, P.J.

        {¶ 1} Defendant-appellant, Ralph Pottorf, Jr., appeals his conviction in the Warren

County Court of Common Pleas for operating a vehicle while under the influence of alcohol

and the accompanying specification that within 20 years of committing the offense, he

previously had been convicted of, or pleaded guilty to, five or more equivalent offenses. For

the reasons that follow, we affirm the judgment of the trial court.
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       {¶ 2} On December 21, 2013, Fred Vonderhaar was in his farm workshop on SR 42

in Warren County when he heard a crash. Upon checking, Vonderhaar observed a light tan

Honda stuck in his security fence and rocking back and forth in an unsuccessful effort to get

out. Vonderhaar saw the Honda hit his truck, which was parked alongside the fence, several

times. Vonderhaar called 911 and read the Honda's license plate number to the operator.

Vonderhaar continuously monitored the situation until a deputy arrived. Vonderhaar saw

appellant exit the vehicle and walk south on SR 42. Vonderhaar saw appellant walk down

the middle of the lane "with no idea of what was going on behind him, whether a car was

approaching him, whether there was any traffic behind him or anything."

       {¶ 3} Deputy Steven Ritchie responded to the scene and saw appellant, unsteady on

his feet, walking along SR 42. Deputy Ritchie made contact with appellant and observed that

he had bloodshot, glassy eyes and had an odor of an alcoholic beverage on or about his

person. When Deputy Ritchie asked appellant what he was doing, appellant said he was just

out for a walk. When Deputy Ritchie asked appellant if he was walking away from the vehicle

that was stuck in Vonderhaar's fence, appellant denied that he was. Appellant also denied

driving the vehicle. Deputy Ritchie patted down appellant to check for weapons and placed

him in his cruiser. Deputy Ritchie noticed a set of keys hanging from appellant's side that

included a large silver ignition key. Deputy Ritchie ran the Honda's license plate number and

discovered that the vehicle was registered to appellant. When Deputy Ritchie confronted him

with this information, appellant still denied that he had driven the vehicle. When Deputy

Ritchie asked appellant if the vehicle was his son's car, appellant replied, "yeah, that kind of

looks like it." After discovering that appellant’s license was suspended, Deputy Ritchie

arrested appellant, placed handcuffs on him and waited for the tow truck. Deputy Ritchie

obtained keys from appellant and noticed that the ignition key was missing. Deputy Ritchie

did not perform any field sobriety tests on appellant out of concern that appellant might

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become violent since appellant had been drinking alcohol and the deputy had determined

that appellant's license was suspended. After the wrecked Honda was towed, Deputy Richie

transported appellant to the jail.

       {¶ 4} At the jail, Deputy Ritchie read appellant the BMV 2255 form, informing him of

the consequences of refusing to take a breathalyzer test. When Deputy Ritchie asked

appellant to submit to a breathalyzer test, he refused. Appellant also refused to sign the

2255 form and the citation issued by Deputy Ritchie. Deputy Scott Stavermann was also

present at appellant's booking. Deputy Stavermann, like Deputy Ritchie, noticed there was a

strong odor of alcoholic beverage on appellant's breath. Deputy Stavermann also noticed

that appellant's speech was slurred. When Deputy Stavermann asked appellant where he

lived, appellant answered, "you decide where I live." During appellant's booking, Deputy

Ritchie heard a metallic clang when appellant removed his shoes, and Deputy Ritchie then

saw the ignition key on the floor. Deputy Ritchie later used the key to unlock and start the

wrecked Honda.

       {¶ 5} Appellant was indicted for operating a vehicle while under the influence of

alcohol or drugs, a third-degree felony, in violation of R.C. 4511.19(A)(1)(a) (Count I) and for

operating a vehicle while under the influence of alcohol or drugs, a third-degree felony, in

violation of R.C. 4511.19(A)(2)(a)-(b) (Count II). Both counts were accompanied by a

specification charging appellant with having committed five or more equivalent offenses

within the last 20 years in violation of R.C. 2941.1413(A).

       {¶ 6} A jury trial was conducted. The state called Vonderhaar and Deputies Ritchie

and Stavermann, who testified to the facts related above. Appellant presented the testimony

of his girlfriend, Violet McElroy, who stated that she came to the scene of the accident as she

was being driven home by her boss. McElroy recognized appellant's car and then appellant.

McElroy testified that appellant did not have slurred speech, bloodshot eyes or an odor of
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alcoholic beverage on or about him. Appellant, testifying on his own behalf, stated that the

accident occurred when he hit a puddle of water that caused him to cross lanes and slide into

a fence. Appellant admitted he had been involved in the accident and that he had lied to

Deputy Ritchie, but appellant denied drinking. Appellant also testified that he had not had

any alcohol since May 2011.

      {¶ 7} During its cross-examination of appellant, the state showed appellant one of his

credit card receipts that showed appellant's credit card had been used on December 8, 2013

to purchase a beer. Appellant explained that his credit card "could have been used by [his]

son." The state called Deputy Ritchie as a rebuttal witness. Deputy Ritchie testified that

McElroy came to the accident scene and confronted appellant and asked him why he had

been drinking but appellant did not respond. Deputy Ritchie testified that when he asked

McElroy how she realized appellant had been drinking, McElroy told the deputy that she

could smell the odor of alcoholic beverage on appellant.

      {¶ 8} The jury found appellant guilty on both counts. The trial court sentenced

appellant to 36 months for his conviction on the OVI charge in Count II and ordered him to

serve this sentence consecutively to the five-year prison term that the trial court sentenced

appellant to serve for his conviction on the specification that accompanied Count II. Count

One was merged for sentencing purposes.

      {¶ 9} Assignment of Error No. 1:

      {¶ 10} THE TRIAL COURT ERRED IN ENTERING A FINDING OF GUILTY ON THE

JURY VERDICT BECAUSE SUCH VERDICT WAS AGAINST THE MANIFEST WEIGHT OF

THE EVIDENCE.

      {¶ 11} Assignment of Error No. 2:

      {¶ 12} THE EVIDENCE ADDUCED AT TRIAL IS INSUFFICIENT TO UPHOLD A

CONVICTION THEREBY DENYING THE APPELLANT HIS RIGHT TO DUE PROCESS AS
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GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE U.S. CONSTITUTION AND

ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.

       {¶ 13} Assignment of Error No. 3:

       {¶ 14} THE TRIAL COURT ERRED BY IMPOSING A SENTENCE THAT IS NOT

SUPPORTED BY THE FINDINGS IN THE RECORD.

       {¶ 15} In his first assignment of error, appellant argues the jury's verdict finding him

guilty of two counts of operating a vehicle under the influence of alcohol and the

accompanying specifications to those counts was against the manifest weight of the

evidence. However, a review of the evidence makes it clear that the jury's decision to convict

appellant on both counts and the accompanying specifications was supported by

overwhelming evidence.

       {¶ 16} The evidence shows that appellant lost control of his car and wrecked it and

that the vehicle became stuck under a fence. When appellant tried to free his vehicle by

rocking it back and forth, he hit Vonderhaar's truck several times in the process. Vonderhaar

testified that appellant got out of the vehicle and walked down the middle of the lane "with no

idea of what was going on behind him, whether a car was approaching him, whether there

was any traffic behind him or anything." Deputy Ritchie stopped appellant and observed that

he was unsteady on his feet. Appellant displayed physical signs of having been drinking and

being impaired. He had bloodshot and glassy eyes and the odor of alcohol about his person.

Appellant denied being the Honda's driver, but the vehicle was registered in his name and he

had the keys to the vehicle.

       {¶ 17} Additionally, when appellant was arrested, he refused to take the breathalyzer

test and also refused to sign the 2255 form and citation. When appellant was booked,

Deputy Stavermann, like Deputy Ritchie, noticed there was a strong odor of alcoholic

beverage on appellant's breath.        Deputy Stavermann testified that appellant was
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uncooperative. For example, when Deputy Stavermann asked appellant where he lived,

appellant told the deputy to decide where he lived. When appellant was removing his shoes

during his booking, the ignition key to the wrecked Honda fell out of his boot. Appellant

displayed a subjective belief of guilt by attempting to leave the scene, lying about what

happened, and refusing a breath test. The state's evidence of appellant's guilt on both

counts of OVI and the accompanying specifications was overwhelming.

       {¶ 18} Therefore, appellant's first assignment of error is overruled.

       {¶ 19} In his second assignment of error, appellant argues the trial court erred by

permitting the state to introduce the receipt showing that a beer had been purchased with his

credit card on December 8, 2013 to rebut his testimony that he had not drank any alcohol

since May 2011. Appellant argues the state was obligated under Crim.R. 16(B)(3) to provide

him with a copy of the receipt, and since the state failed to do so, the trial court should have

excluded the receipt as evidence at his trial. Appellant asserts that if he had known that the

state possessed this evidence, he would have called his son to testify to corroborate his

testimony that his son, not him, used the credit card to buy beer. He asserts that the state's

failure to disclose the receipt "was material so as to deny [him] due process" and that "[t]he

non-disclosure [of the receipt] undermined the reliability of the outcome of the proceedings."

We find these arguments unpersuasive.

       {¶ 20} "A finding of harmless error is appropriate where there is 'overwhelming

evidence of guilt' or 'some other indicia that the error did not contribute to the conviction.'"

State v. Morgan, 12th Dist. Butler Nos. CA2013-08-146, CA2013-08-147, 2014-Ohio-2472, ¶

46, quoting State v. Sims, 12th Dist. Butler No. CA2007-11-300, 2009-Ohio-550, ¶ 34,

quoting State v. Ferguson, 5 Ohio St.3d 160, 166 (1983), fn. 5.

       {¶ 21} Here, there was overwhelming evidence that appellant was guilty of both counts

of OVI and the accompanying specifications, and the error alleged by appellant did not
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contribute to his conviction. Appellant admitted during his testimony that he lied to Deputy

Ritchie numerous times, that he hid the ignition key, that he fled the scene of the crime, that

he drove while his license was suspended and that he falsely told the police that his son had

been driving the Honda at the time of the accident. Vonderhaar testified that appellant

appeared unsure of his footing when he walked away from the accident scene and that

appellant walked down the middle of the lane "with no idea of what was going on behind him,

whether a car was approaching him, whether there was any traffic behind him or anything."

Deputies Ritchie and Stavermann observed that appellant displayed signs of intoxication and

impairment at the time of the accident, including glassy, bloodshot eyes and an inability to

walk steadily. Deputy Stavermann also noted that appellant's speech was slurred. The

evidence of appellant's guilt on the OVI charges was overwhelming, and there is no

reasonable possibility that the error contributed to the conviction. Further, the testimony that

appellant’s son purportedly would have given had appellant been given notice that the state

had the December 8, 2013 receipt in its possession, i.e., that he, not appellant had bought

beer on that date, would have been merely cumulative to appellant's testimony and subject to

impeachment as the testimony of an immediate family member.1

        {¶ 22} In light of the foregoing, appellant's second assignment of error is overruled.

        {¶ 23} In his third assignment of error, appellant argues the trial court "clearly abused

its discretion and undermined the purpose of the felony sentencing guidelines" by not

ordering a presentence investigation and by not considering all the mitigating factors set forth

in R.C. 2929.12(C)(4). Appellant contends that if the trial court had known more about his

health issues, which include leukemia, heart disease and diabetes, it would have given him a


1. We also reject appellant's claim that the state "knowingly" failed to disclose the receipt to him during
discovery. As the trial court noted, the state did not know that appellant would testify that he had not had any
alcohol since May 2011; it was only when appellant did so testify that the state presented the receipt to rebut
appellant's testimony.

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lesser prison sentence.

       {¶ 24} Crim.R. 32.2 states that "[i]n felony cases the court shall, and in misdemeanor

cases the court may, order a presentence investigation and report before imposing

community control sanctions or granting probation." Crim.R. 32.2 does not mandate a

presentence investigation and report except in a felony case in which an offender is

sentenced to community control sanctions. In all other cases, the decision whether or not to

order a presentence investigation and report is left to the trial court's sound discretion. State

v. Adams, 37 Ohio St. 3d 295, 297 (1988).

       {¶ 25} Here, the trial court did not abuse its discretion by not ordering a presentence

investigation and report on appellant. The trial court already had sentenced appellant twice

before, and therefore was familiar with his history. We also disagree with appellant's claim

that the trial court "clearly abused its discretion" by not considering the mitigating factors in

R.C. 2929.12(C)(4).

       {¶ 26} An appellate court reviews a felony sentence under the standard of review set

forth in R.C. 2953.08(G)(2) to determine whether the sentence is "clearly and convincingly

contrary to law." State v. Hensley, 12th Dist. Warren No. CA2014-01-011, 2014-Ohio-5012,

¶ 28. "A sentence is not clearly and convincingly contrary to law where the record supports

the trial court's findings under R.C. 2929.14(C)(4) and where the trial court considers the

purposes and principles of R.C. 2929.11, as well as the factors listed in R.C. 2929.12,

properly applies postrelease control, and sentences appellant within the permissible statutory

range." Id.

       {¶ 27} R.C. 2929.12(C)(4) states:

              (C) The sentencing court shall consider all of the following that
              apply regarding the offender, the offense, or the victim, and any
              other relevant factors, as indicating that the offender's conduct is
              less serious than conduct normally constituting the offense:


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              ***

              (4) There are substantial grounds to mitigate the offender's
              conduct, although the grounds are not enough to constitute a
              defense.

       {¶ 28} Here, the trial court considered the statutory factors and sentenced appellant

within the permissible range. The trial court was informed of appellant's health problems

both during the trial and at the time of sentencing, as well as the fact that appellant had made

arrangements to provide support for his two minor children even during his incarceration.

However, as the trial court expressly noted, appellant "continues to drink and drive," and on

this occasion, he drove a vehicle even though his license was under suspension. The record

shows that appellant has committed at least five previous OVI offenses within the last 20

years of his current offenses. Given these circumstances, appellant's sentence is not clearly

and convincingly contrary to law under R.C. 2953.08(G)(2).

       {¶ 29} Accordingly, appellant's third assignment of error is overruled.

       {¶ 30} Judgment affirmed.


       S. POWELL and M. POWELL, JJ., concur.




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