[Cite as Hargrave v. Ohio Bur. of Motor Vehicles, 2018-Ohio-513.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 JOCELYN D. HARGRAVE SITTA-                           :
 BOMBERI                                              :
                                                      :    Appellate Case No. 27667
         Plaintiff-Appellant                          :
                                                      :    Trial Court Case No. 2016-CV-6072
 v.                                                   :
                                                      :    (Civil Appeal from
 OHIO BUREAU OF MOTOR                                 :    Common Pleas Court)
 VEHICLES                                             :
                                                      :
         Defendant-Appellee


                                              ...........

                                              OPINION

                           Rendered on the 9th day of February, 2018.

                                              ...........

CHERYL R. WASHINGTON, Atty. Reg. No. 0038012, 10 West Second Street, Suite
2225, Dayton, Ohio 45402
      Attorney for Plaintiff-Appellant

TRISTA M. TURLEY, Atty. Reg. No. 0093939, Assistant Attorney General, 30 East Broad
Street, 26th Floor, Columbus, Ohio 43215
       Attorney for Defendant-Appellee

                                            .............



WELBAUM, P.J.
                                                                                        -2-




       {¶ 1} Plaintiff-Appellant, Jocelyn Hargrave Sitta-Bomberi (“Hargrave”) appeals

from a judgment affirming an amended final adjudication order of Defendant-Appellee,

Ohio Department of Public Safety, Bureau of Motor Vehicles (“BMV”), which imposed

security and non-compliance suspensions of Hargrave’s driver’s license.          Hargrave

contends that the trial court abused its discretion in affirming the amended final

adjudication order, because the order was not supported by reliable, probative, and

substantial evidence.

       {¶ 2} We conclude that the trial court did not abuse its discretion in affirming the

BMV’s adjudication order, as the court’s decision was supported by sound reasoning and

was neither arbitrary nor unconscionable. Accordingly, the judgment of the trial court will

be affirmed.



                             I. Facts and Course of Proceedings

       {¶ 3} On July 20, 2016, the BMV sent Hargrave notices of noncompliance and

security suspensions of her driving privileges that would be effective August 19, 2016.

The suspensions were based on the fact that Hargrave’s 1999 Dodge Durango had been

involved in an automobile accident on March 20, 2016. The BMV asked Hargrave to

provide proof that the vehicle was insured at the time of the accident and to provide an

$11,803.29 security deposit. Hargrave requested a hearing, which was held before a

Hearing Examiner for the Ohio Department of Public Safety on September 28, 2016. At

the hearing, the BMV presented evidence from Nicole Kelly and Nicholas Brown, who

occupied the other car involved in the accident. The BMV also presented testimony from
                                                                                           -3-


a BMV employee, who identified and discussed BMV records pertaining to the case.

      {¶ 4} At the hearing, the parties stipulated to the authenticity of State’s Ex. A, which

consisted of 41 pages of BMV records, including Hargrave’s BMV record of violations and

suspensions. In addition, Hargrave testified on her own behalf.

      {¶ 5} The evidence at the hearing disclosed the following facts. At around 12:30

or 1:00 a.m. on March 20, 2016, Nicole Kelly was driving a 2007 Chevy Malibu south on

Smithville Avenue in Dayton, Ohio. Kelly and a friend, Nicholas Brown, were returning

from a movie and were headed to Brown’s house so she could drop him off. As they

proceeded through a green light, their car was t-boned by a Dodge Durango. Kelly could

not recall anything after seeing the Durango’s lights. The next thing Kelly recalled was

waking up in the hospital. She was hospitalized for four days as a result of the accident.

      {¶ 6} Brown also indicated that as their car went through a green light, it was t-

boned by a Dodge Durango, which was going over 45 miles per hour. The Durango hit

the Malibu in the driver’s side. After the Malibu was hit, it spun and flipped, and ended

up on the opposite side of the intersection. The Durango ended up a bit past Kelly’s car

and was backed up to a small section of woods. Brown did not see who was in the

Durango, but a witness stated that he saw two women running from the Durango.

      {¶ 7} Hargrave admitted that she owned the Durango involved in the accident, and

that the vehicle was not insured on March 20, 2016. According to Hargrave, Nationwide

had insured the vehicle, but cancelled the policy on February 19, 2016, because her

husband had refused to sign a document stating that he did not drive the car and was not

living in her home. At the time, Hargrave and her husband were in the process of getting

a divorce.
                                                                                       -4-


      {¶ 8} Hargrave testified that she did not drive her vehicle after the insurance was

cancelled. Instead, she relied on her brother and sister for transportation. Hargrave

further stated that an acquaintance, Tonya Pope, had stayed overnight at her house on

March 19, 2016. Hargrave had known Pope for a few years, and Pope occasionally

came to her house. That night, Pope had asked Hargrave for permission to drive her

car. However, Hargrave refused, and told Pope that her brother would take Pope to the

store in the morning.

      {¶ 9} Hargrave went to bed, and got up at around 4:00 or 5:00 a.m. to use the

restroom. At that point, she noticed that her car keys were missing from the table where

she normally kept the keys. When Hargrave realized the car had been stolen, she called

the police and reported the theft. She testified that she was not aware at the time that

her car had been involved in an accident.

      {¶ 10} Between 6:00 and 8:00 a.m. on March 20, 2016, two policemen came to

Hargrave’s house, and she learned that the Durango had been involved in an accident.

Hargrave gave the police information about the theft, but the police refused to give her a

report; instead, she was told that she had to meet with a detective. The next day (March

21, 2016), Hargrave met with Detective Brown of the Dayton Police Department and gave

him a written statement. The police told her that no police report (presumably regarding

the theft) had been made, because the car had been involved in an accident.

      {¶ 11} Hargrave did not present any evidence at the hearing to substantiate her

account. She did not submit a copy of the written statement she allegedly gave to the

detective, and did not call any witnesses. On October 28, 2016, the Hearing Examiner

issued a report concluding that Hargrave had failed to show evidence of financial
                                                                                            -5-


responsibility and had also failed to submit evidence to substantiate that a termination of

the noncompliance suspension was justified under R.C. 4509.101(L)(1). In addition, the

Hearing Examiner found that Hargrave failed to establish any exceptions to the

requirement of providing security sufficient to satisfy a judgment under R.C. 4509.12.

Accordingly, the Hearing Examiner recommended that noncompliance and security

suspensions be put in place.

        {¶ 12} Because Hargrave failed to file timely objections, the BMV Registrar issued

a final adjudication order on November 16, 2016, adopting the Hearing Examiner’s report

and recommendations.       However, since Hargrave filed objections on November 14,

2016, the Registrar elected to consider the objections, even though they were untimely.

The registrar then filed an amended final adjudication order on November 16, 2016,

rejecting Hargrave’s objections and adopting the Hearing Examiner’s recommendations.

        {¶ 13} Hargrave appealed from the BMV order on November 30, 2016, and

obtained a stay of the suspensions pending appeal. After briefs and the administrative

record were filed, the trial court filed a decision on June 26, 2107, affirming the Registrar’s

amended final adjudication order. Hargrave timely appealed from the judgment of the

trial court.



                                  II. Alleged Abuse of Discretion

        {¶ 14} Hargrave’s sole assignment of error states that:

               The Common Pleas Court Abused Its Discretion in Affirming the

        Amended Adjudication Order, as It Was Not Supported by Reliable,

        Probative, and Substantial Evidence.
                                                                                        -6-


      {¶ 15} Under this assignment of error, Hargrave contends that the trial court

abused its discretion by affirming the BMV’s adjudication order. Hargrave’s first point is

that the security suspension was improper because she did not give permission for use

of her car, and she, therefore, fit within a suspension exception found in R.C.

4509.19(A)(3). The trial court rejected this argument, noting that the Hearing Examiner

did not find Hargrave credible. According to Hargrave, this finding was an abuse of

discretion, because no evidence was presented to challenge her testimony.

      {¶ 16} “Where the Registrar of Motor Vehicles determines, as to a motor vehicle

operated by anyone other than the owner but with his permission, express or implied, and

involved in an accident causing injury or damage to the person or property of anyone

other than the owner or driver, that the owner has no form of insurance or bond covering

any liability of his for such damage, the registrar is authorized by Section 4509.12,

Revised Code, to determine the amount of security sufficient to satisfy any judgment for

damages as may be recovered against the owner, provided that the owner is not

otherwise specifically excepted from the security requirement by Section 4509.19,

Revised Code.” City of Toledo v. Bernoir, 18 Ohio St.2d 94, 95, 247 N.E.2d 740 (1969),

paragraph one of the syllabus.

      {¶ 17} In the case before us, the alleged exception to the security requirement is

contained in R.C. 4509.19(A)(3), which states that:

             (A) The requirements as to security and suspension in sections

      4509.12 and 4509.17 of the Revised Code do not apply:

             ***

             (3) To the owner of a motor vehicle if at the time of the accident the
                                                                                        -7-


       motor vehicle was operated without his permission, express or implied, or

       was parked by a person who had been operating such motor vehicle without

       such permission * * *.

       {¶ 18} As was noted, the trial court rejected Hargrave’s claim that her vehicle was

operated without her permission. The standard of review for agency decisions is found

in R.C. 119.12, which “requires a reviewing common pleas court to conduct two inquiries:

a hybrid factual/legal inquiry and a purely legal inquiry.    As to the first inquiry, ‘the

common pleas court must give deference to the agency's resolution of evidentiary

conflicts, but “the findings of the agency are by no means conclusive.” * * * “Where the

court, in its appraisal of the evidence, determines that there exist legally significant

reasons for discrediting certain evidence relied upon by the administrative body, and

necessary to its determination, the court may reverse, vacate, or modify the administrative

order.” ’ ” Bartchy v. State Bd. of Edn., 120 Ohio St.3d 205, 2008-Ohio-4826, 897 N.E.2d

1096, ¶ 37, quoting Ohio Historical Soc. v. State Emp. Relations Bd., 66 Ohio St.3d 466,

470-471, 613 N.E.2d 591 (1993). (Other citation omitted.)

       {¶ 19} Appellate courts have a more limited power of review. While trial courts

examine the evidence, the only decision for appellate courts is whether the trial court

abused its discretion. (Citation omitted.) Lorain City School Dist. Bd. of Educ. v. State

Emp. Relations Bd., 40 Ohio St.3d 257, 260-61, 533 N.E.2d 264 (1988). Accord Bartchy

at ¶ 41.

       {¶ 20} “ ‘Abuse of discretion’ has been defined as an attitude that is unreasonable,

arbitrary or unconscionable.” (Citation omitted.) AAAA Enterprises, Inc. v. River Place

Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597
                                                                                        -8-


(1990). “[M]ost instances of abuse of discretion will result in decisions that are simply

unreasonable, rather than decisions that are unconscionable or arbitrary.” Id.

      {¶ 21} In the case before us, the trial court reviewed the evidence, but deferred to

the credibility determination of the Hearing Examiner, who “had to weigh that evidence

[the testimony] based on the first-hand questioning of the witnesses.”          Doc. #18,

Decision, Order and Entry Affirming the Registrar’s Amended Final Adjudication Order,

p. 6. The trial court commented that it was removed from the first-hand questioning of

witnesses and could not second-guess the Hearing Examiner’s judgment of credibility.

The court, thus, found substantial, reliable, and probative evidence in the record to

support the BMV’s decision.

      {¶ 22} After considering the entire record, we find no abuse of discretion. The trial

court’s decision was supported by sound reasoning and was neither arbitrary nor

unconscionable. Notably, a fact-finder was not required to find Hargrave credible, simply

because Hargrave claimed that she did not give Pope permission to use her car. A fact-

finder “ ‘may believe or disbelieve any witness or accept part of what a witness says and

reject the rest.’ ” McKay Mach. Co. v. Rodman, 11 Ohio St. 2d 77, 82, 228 N.E.2d 304

(1967), quoting State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964). Accord State

v. Clark, 2d Dist. Montgomery No. 27365, 2017-Ohio-7633, ¶ 19.

      {¶ 23} Furthermore, absent evidence to the contrary, the BMV is allowed to

“reasonably presume that the driver of a motor vehicle is driving it with the owner's

permission.”   Bernoir, 18 Ohio St.2d at 95, 247 N.E.2d 740, paragraph two of the

syllabus. In the case before us, Hargrave did present her own unsupported contrary

testimony, but the fact-finder did not believe her. As a result, the hearing examiner was
                                                                                        -9-


entitled to reasonably presume that the car was being driven with Hargrave’s permission.

      {¶ 24} Hargrave contends that no evidence was available other than her own

testimony, because the individual who allegedly took the car (Pope) had a motive not to

provide testimony. However, the record indicates that Hargrave made no attempt to

subpoena Pope to testify.

      {¶ 25} R.C. 119.09 states that an agency conducting an adjudication hearing “may,

and upon the request of any party receiving notice of the hearing * * * shall issue a

subpoena for any witness or a subpoena duces tecum to compel the production of any

books, records, or papers, directed to the sheriff of the county where such witness resides

or is found, which shall be served and returned in the same manner as a subpoena in a

criminal case is served and returned.” (Emphasis added.) Consequently, Hargrave

was entitled to ask the BMV to subpoena witnesses or documents that she needed for

her defense.

      {¶ 26} At the hearing, Hargrave stated that she had been unable to verify Pope’s

presence at the YMCA, where Pope allegedly lived, because the YMCA refused to

provide information about its residents. However, according to Pope, the YMCA also

told her that she could send paperwork to the YMCA and if Pope were there, she would

get it. Doc. #11, Tab 9, BMV Hearing Transcript, p. 40. As a result, nothing prevented

Hargrave from attempting to subpoena Pope at the YMCA address. She failed, however,

to ask the BMV to do so.

      {¶ 27} In addition, Hargrave could have asked the agency to subpoena the police

officers to whom she spoke about the alleged theft of her car. Hargrave also could have

asked the agency to subpoena a copy of the written statement she allegedly gave to the
                                                                                         -10-


police. Again, she failed to do so. Hargrave, therefore, failed to establish that she was

exempt from providing a security deposit under R.C. 4509.19(A)(3) because her vehicle

had been used without her permission. The trial court, therefore, did not abuse its

discretion by upholding the security suspension of Hargrave’s driver’s license.

       {¶ 28} Hargrave’s second argument relates to the noncompliance suspension that

was imposed pursuant to R.C. 4509.101(A). According to Hargrave, this suspension

should have been terminated under R.C. 4509.101(L)(1)(b)(iii), because a person other

than Hargrave was responsible for the lapse of proof of financial responsibility. Hargrave

also relies on R.C. 4509.101(L)(1)(b)(iv), which allows noncompliance suspensions to be

terminated based on excusable neglect.

       {¶ 29} R.C. 4509.101(A)(1) provides that “[n]o person shall operate, or permit the

operation of, a motor vehicle in this state, unless proof of financial responsibility is

maintained continuously throughout the registration period with respect to that vehicle,

or, in the case of a driver who is not the owner, with respect to that driver's operation of

that vehicle.” If a vehicle is involved in an accident that requires the filing of a police

report, the owner of the vehicle must show proof of financial responsibility.           R.C.

4509.101(A)(3)(a).    Failure to maintain proof of financial responsibility results in a

mandatory license suspension under R.C. 4509.101(A)(2).

       {¶ 30} R.C. 4509.101(L) contains exceptions to the suspension required by R.C.

4509.101(A). R.C. 4509.101(L) states, in pertinent part, as follows:

              (1) The registrar may terminate any suspension imposed under this

       section and not require the owner to comply with divisions (A)(5)(a), (b), and

       (c) of this section if the registrar with or without a hearing determines that
                                                                                             -11-


      the owner of the vehicle has established by clear and convincing evidence

      that all of the following apply:

                (a) The owner customarily maintains proof of financial responsibility.

                (b) Proof of financial responsibility was not in effect for the vehicle on

      the date in question for one of the following reasons:

                ***

                (iii) A person other than the vehicle owner or driver was at fault for

      the lapse of proof of financial responsibility through no fault of the owner or

      driver.

                (iv) The lapse of proof of financial responsibility was caused by

      excusable neglect under circumstances that are not likely to recur and do

      not suggest a purpose to evade the requirements of this chapter.

(Emphasis added.)

      {¶ 31} The Hearing Examiner concluded that, other than submitting the

cancellation notice, Hargrave failed to provide evidence that termination of the

noncompliance suspension was warranted by any exceptions in R.C. 4509.101(L)(1).

Doc. #11, Tab 8, October 28, 2016 Report and Recommendation, p. 2. The trial court

agreed, noting that Hargrave failed to provide any evidence besides her own self-serving

testimony to show that she consistently maintained financial responsibility for the

Durango.

      {¶ 32} Hargrave contends that the trial court abused its discretion because she

offered proof that she had insurance at the time of the administrative hearing. She also

stresses that she attempted to obtain insurance while her divorce was pending, but was
                                                                                            -12-


thwarted by her husband’s refusal to sign paperwork. In addition, Hargrove argues that

the lapse was excusable because it occurred under circumstances that were not likely to

reoccur.

       {¶ 33} After considering the record, we conclude that the trial court’s decision was

supported by sound reasoning and was neither arbitrary nor unconscionable. Notably,

in addition to establishing that one of the excuses listed in R.C. 4509.101(L)(1)(b)(i)-(iv)

applies, an owner must also prove, by clear and convincing evidence, that she

customarily maintained proof of financial responsibility. “Clear and convincing evidence

is that measure or degree of proof which is more than a mere ‘preponderance of the

evidence,’ but not to the extent of such certainty as is required ‘beyond a reasonable

doubt’ in criminal cases, and which will produce in the mind of the trier of facts a firm belief

or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St.

469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.

       {¶ 34} Hargrave submitted no evidence at the hearing, other than the cancellation

notice for her Nationwide policy, to establish that she customarily maintained proof of

financial responsibility. However, the cancellation notice was sent within the first 90 days

of the policy, meaning that the policy had only been in effect for a short time. See Doc.

#11, Tab 9, Hargrave Ex. 1.

       {¶ 35} Hargrave did not provide the BMV with any evidence that she customarily

maintained proof of financial responsibility for her vehicle. She could have attempted to

satisfy this burden by submitting proof of insurance that was in effect prior to the beginning

date of the Nationwide policy. However, she failed to do so. If such evidence existed,

it would have been available to Hargrave, either from her own records or by subpoenaing
                                                                                       -13-


records of her insurer. Moreover, at the administrative hearing, the BMV presented

evidence of several prior noncompliance suspensions that had been imposed on

Hargrave’s driving privileges.     See Doc. #11, Tab 9, State’s Ex. A., pp. 35-41.      A

reasonable inference from the evidence is that Hargrove failed to customarily maintain

proof of financial responsibility for her vehicle.

       {¶ 36} Accordingly, the trial court did not abuse its discretion by concluding that

Hargrave failed to establish an exception to the suspension requirement in R.C.

4509.101(A).

       {¶ 37} Based on the preceding discussion, Hargrave’s sole assignment of error is

overruled.



                                           III. Conclusion

       {¶ 38} Hargrave’s sole assignment of error having been overruled, the judgment

of the trial court is affirmed.




                                       .............



DONOVAN, J. and FROELICH, J., concur.



Copies mailed to:

Cheryl R. Washington
Trista M. Turley
                            -14-


Hon. Timothy N. O’Connell
