[Cite as State v. Martin, 2016-Ohio-453.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            BUTLER COUNTY




STATE OF OHIO,                                    :

        Plaintiff-Appellee,                       :     CASE NO. CA2015-05-085

                                                  :            OPINION
    - vs -                                                      2/8/2016
                                                  :

CARL M. MARTIN,                                   :

        Defendant-Appellant.                      :



       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2014-12-1947



Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

Christopher Frederick, 304 North Second Street, Hamilton, Ohio 45011, for defendant-
appellant



        HENDRICKSON, J.

        {¶ 1} Defendant-appellant, Carl M. Martin, appeals his conviction in the Butler County

Court of Common Pleas for driving under a specified lifetime suspension. For the reasons

discussed below, we affirm the decision of the trial court.

        {¶ 2} In 1996, Martin was convicted of aggravated vehicular assault in violation of

R.C. 2903.08, and Martin's license was permanently revoked. In 2014, at a routine traffic
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stop on State Route 4, a Hamilton police officer pulled Martin over for expired tags. At the

stop, Martin admitted to the officer that his driving privileges were under a lifetime

suspension. Thereafter, on January 21, 2015, a Butler County Grand Jury indicted Martin for

failure to display tags and for driving under a specified lifetime suspension in violation of R.C.

4510.18.

       {¶ 3} After a bench trial, Martin was convicted of both offenses and sentenced to five

years of community control and ordered to pay a $25 fine. The trial court noted on the record

that the statutory scheme regarding license suspensions had changed since Martin had his

license permanently revoked in 1996. The statutory scheme now reflects classifications of

suspensions where a "class one suspension" constitutes a suspension for the life of the

person and the phrase "permanently revoked" is not used. Despite this change, after

denying Martin's motion for acquittal pursuant to Crim.R. 29, the trial court found Martin guilty

of driving under a lifetime suspension.

       {¶ 4} Martin now appeals and asserts a single assignment of error for review.

       {¶ 5} Assignment of Error:

       {¶ 6} THE TRIAL COURT IMPROPERLY DENIED MR. MARTIN'S MOTION FOR

JUDGMENT OF ACQUITTAL UNDER CRIMINAL RULE 29.

       {¶ 7} Martin argues that the state failed to present proof beyond a reasonable doubt

that he was driving while under a class one suspension. Specifically, Martin asserts that

when his driver's license was permanently revoked under former R.C. 4507.16, the trial court

did not impose a class one suspension. Martin contends because the classification system

did not exist at the time he committed aggravated vehicular assault, convicting him of driving

under a lifetime suspension was impossible.

       {¶ 8} "A Crim.R. 29 motion is asserted to test the sufficiency of the evidence." State

v. McMurray, 12th Dist. Preble No. CA2014-08-008, 2015-Ohio-2827, ¶ 37. Specifically,
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Crim.R. 29(A) provides, in pertinent part, that a trial court "on motion of a defendant or on its

own motion, after the evidence on either side is closed, shall order the entry of a judgment of

acquittal on one or more offenses charged in the indictment, * * * if the evidence is

insufficient to sustain a conviction of such offense or offenses." Therefore, the standard of

review for a denial of a Crim.R. 29 motion is the same as the standard of review for a

sufficiency of the evidence claim. State v. Carter, 72 Ohio St.3d 545, 553 (1995).

       {¶ 9} Whether the evidence presented at trial is legally sufficient to sustain a verdict

is a question of law. State v. Hoskins, 12th Dist. Warren No. CA2013-02-013, 2013-Ohio-

3580, ¶ 16, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). When reviewing the

sufficiency of the evidence underlying a criminal conviction, an appellate court examines the

evidence in order to determine whether such evidence, if believed, would convince the

average mind of the defendant's guilt beyond a reasonable doubt. State v. Kinsworthy, 12th

Dist. Warren No. CA2013-06-053, 2014-Ohio-1584, ¶ 52. The relevant inquiry 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. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. In other

words, "the test for sufficiency requires a determination as to whether the state has met its

burden of production at trial." State v. Boles, 12th Dist. Brown No. CA2012-06-012, 2013-

Ohio-5202, ¶ 34. When evaluating the sufficiency of the evidence, this court defers to the

trier of fact regarding questions of credibility. State v. Kirkland, 140 Ohio St.3d 73, 2014-

Ohio-1966, ¶ 132.

       {¶ 10} In 1996, Martin was convicted of aggravated vehicular assault in violation of

R.C. 2903.08 and had his license "permanently revoked." In 2015, Martin was convicted of

driving under a specified lifetime suspension pursuant to R.C. 4510.18, which provides:

              (A) No person whose driver's * * * license or permit * * * has
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              been suspended for life under a class one suspension imposed
              under * * * section 2903.08 of the Revised Code shall operate
              any motor vehicle upon the public roads or highways within this
              state during the remaining life of the person.

R.C. 4510.18(B) continues, "Whoever violates this section is guilty of driving under specified

lifetime suspension, a felony of the third degree." A class one suspension is defined in R.C.

4510.02(A)(1), which states:

              When a court elects or is required to suspend the driver's license
              * * * the court shall impose a definite period of suspension from
              the range specified for the suspension class: (1) For a class one
              suspension, a definite period for the life of the person subject to
              the suspension[.]

       {¶ 11} Whether Martin's conviction for driving under a lifetime suspension is supported

by sufficient evidence depends on whether "permanent revocation" is encompassed within

the definition of a class one suspension. Statutory interpretation is a matter of law subject to

de novo review. State v. Pariag, 137 Ohio St.3d 81, 2013-Ohio-4010, ¶ 9. If a term is not

defined in the Revised Code, then the common, everyday meaning of the term governs.

State v. White, 29 Ohio St.3d 39, 40 (1987). In 1987, the Ohio Supreme Court noted

distinctions between the terms "suspend" and "revoke." Id. In employing their everyday,

common meanings, the Court found "'suspend' ordinarily contemplates the temporary taking

away of something." Id. In contrast, the Court defined "revocation" as "a permanent taking

without the expectation of reinstatement." Id. When the Court discussed this distinction in

1987, however, neither "revocation" nor "suspend" were defined in the Revised Code. Id.

       {¶ 12} With the advent of the classification system, "suspension" is now defined in the

Revised Code, with the definition dependent upon the classification of the suspension. In

particular, a "class one suspension" is a suspension for "a definite period for the life of the

person subject to the suspension[.]" R.C. 4510.02(A)(1). The definition contained in the

Revised Code of a "class one suspension" is unlike the ordinary definition of "suspend"


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defined in White as a temporary taking. Rather, the definition contained in the Revised Code

of a suspension for the definite period of the life of a person is a permanent taking with no

expectation of reinstatement. As such, a "class one suspension" as defined in the Revised

Code is synonymous with the ordinary definition of "revocation."            Consequently, the

permanent revocation of Martin's license under the former statute is a class one suspension

under the current statutory scheme.

       {¶ 13} This conclusion is further supported by R.C. 4510.02(D), which states:

              When a court or the bureau suspends the driver's license * * *
              any offender or person pursuant to any provision of law that does
              not provide for the suspension to be from a class set forth in
              division (A) or (B) of this section, except as otherwise provided in
              the provision that authorizes or requires the suspension, the
              suspension shall be subject to and governed by this chapter.

In other words, when a court does not provide for a specific class, the suspension is still

governed by the classification system. As such, while the trial court did not apply a specific

class to the revocation of Martin's license in his 1996 case, the revocation falls under a class

one suspension as they both are permanent takings.

       {¶ 14} Additionally, while Martin raised concerns that applying the classification

modified his sentence and that the statute was being applied retroactively, these concerns

are not valid. Ohio Courts do not possess the inherent authority to modify a criminal statute

unless given specific statutory authority to do so. State v. Rowe, 118 Ohio App.3d 121, 123

(9th Dist.1997). In Redman, we specifically held that former R.C. 4507.16 provides no

authority to suspend, cancel, or modify a defendant's sentence. State v. Redman, 163 Ohio

App.3d 686, 2005-Ohio-5474, ¶ 24 (12th Dist.). In this instance, however, we are not

modifying Martin's sentence. Rather we are applying the former statutory language to the

current statutory scheme, which allows for a permanent revocation of a license to fall under a

class one suspension. By concluding Martin's license was a class one suspension does not


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modify his criminal sentence. Additionally, we are not applying any statute retroactively.

Martin was convicted of violating R.C. 4510.18, which became effective in 2007, and Martin's

conviction did not occur until well after its enactment.

       {¶ 15} In sum, we find there was sufficient evidence to support Martin's conviction for

driving under a lifetime suspension because both revocation and a class one suspension

constitute permanent takings. Martin's single assignment of error is overruled.

       {¶ 16} Judgment affirmed.


       S. POWELL, P.J., and RINGLAND, J., concur.




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