[Cite as Cleveland v. Sheppard, 2016-Ohio-7393.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 103166



                                CITY OF CLEVELAND
                                                         PLAINTIFF-APPELLEE

                                                   vs.


                             GREGORY S. SHEPPARD
                                                         DEFENDANT-APPELLANT




                                   JUDGMENT:
                             AFFIRMED AND REMANDED


                                     Criminal Appeal from the
                                    Cleveland Municipal Court
                                    Case No. 2015-TRC-022265

        BEFORE: Kilbane, J., Jones, A.J., and Stewart, J.

        RELEASED AND JOURNALIZED:                        October 20, 2016
ATTORNEYS FOR APPELLANT

Christopher R. Lenahan
Christopher R. Lenahan Inc. Co.
2035 Crocker Road
Suite 104
Westlake, Ohio 44145

R. Brian Moriarty
55 Public Square, 21st Floor
Cleveland, Ohio 44113



ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
Jonathan L. Cudnik
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

      {¶1} Defendant-appellant, Gregory S. Sheppard (“Sheppard”), appeals a

judgment from the Cleveland Municipal Court finding him guilty of operating a vehicle

while under the influence (“OVI”) and failure to control.       For the reasons set forth

below, we affirm the trial court’s judgment and remand for execution of sentence.

      {¶2} Sheppard was cited for OVI, in violation of Cleveland Codified Ordinances

433.01(a)(1) and 431.34(a).   He pled not guilty and the matter proceeded to a bench trial

on May 13, 2015.

      {¶3} The city’s evidence demonstrated that while on routine patrol in the

Tremont area on January 19, 2015, at approximately 2:30 a.m., Cleveland Police Officer

Thomas McNamara (“Officer McNamara”) and his field training officer, Timothy

Maffo-Judd (“Officer Maffo-Judd”), observed a man slumped behind the steering wheel

of a vehicle.   According to these witnesses, the vehicle was parked awkwardly at the

intersection of Professor Street and College Avenue. Half of the vehicle was in the

street and the other half was up on the tree lawn near some bushes.       The key was in the

ignition, the engine was running, and the vehicle’s headlights were on.

      {¶4}      Officer Maffo-Judd shined his flashlight in the driver’s window and

knocked on the driver’s door to wake the driver up.       When the driver, identified as

Sheppard, opened the door, the officers observed that his eyes were red and glassy.     The

officers also smelled a strong odor of alcohol. When the officers questioned Sheppard,

they observed that his speech was slurred and his answers were confusing.
       {¶5} The officers asked Sheppard to turn off the ignition and exit the vehicle.

Sheppard complied but had difficulty standing. As Sheppard exited the vehicle, he told

the officers that his girlfriend worked at the Treehouse, a tavern located across the street

from where the car was stopped.         Officer Maffo-Judd went to the Treehouse and

observed that it was locked up, and there were chains across the door.   No lights were on

inside the tavern, and it appeared that no one was inside.

       {¶6} Officer Maffo-Judd testified that, based upon his observations of

Sheppard’s appearance and conduct, he was concerned that Sheppard was under the

influence of alcohol.    He asked Sheppard to complete field sobriety tests.        Officer

Maffo-Judd administered the Horizontal Gaze Nystagmus Test at a distance of

approximately 12 to 14 inches. According to the officer, Sheppard displayed “lack of

smooth pursuit” and a distinct and sustained nystagmus appeared in both eyes prior to 45

degrees, an indication that he was over the legal limit of alcohol.

       {¶7} Officer Maffo-Judd next administered the walk-and-turn test, where

Sheppard was required to take nine steps, heel-to-toe, along a straight line, then turn on

one foot and return in the same manner in the opposite direction. Subjects are to

perform this test with hands at their side and while counting aloud. According to the

officer, Sheppard could barely stand on his own. He was shaking, staggering, and lifting

his arms. He also swayed, stepped off the line, did not count aloud, and his return steps

were inaccurate.
        {¶8} Officer Maffo-Judd next administered the one-leg-stand test where

Sheppard was asked to stand with his heels together, arms down to his side, and then lift

his leg six inches off of the ground and count aloud until the officer tells him to stop.

During this test, Sheppard did not count aloud, staggered, and stepped on the ground,

before finally saying “f*** it.”

        {¶9} The officers determined that Sheppard did not pass the field sobriety tests.

He then became combative, with his mood altering from crying to insulting to using

profanity. His vehicle was towed, and the key went with the vehicle to the impound lot.

 Cleveland Police Officer Thomas McNamara (“Officer McNamara”) testified that after

Sheppard was transported to the police station, he was offered an opportunity to take a

breathalyzer test, but he was “so erratic that he refused” and the officers then placed him

in a jail cell.

        {¶10} On cross-examination, Officer Maffo-Judd acknowledged that there are

parking areas in some sections that are “indented” out of the tree lawn, but Officer

Maffo-Judd insisted that Sheppard was not parked within such an area.

        {¶11} At the close of the city’s case, the defense moved for acquittal, arguing that

there was insufficient evidence to establish that Sheppard operated the vehicle.   The trial

court denied the motion and Sheppard then testified on his own behalf.

        {¶12} Sheppard testified that he had been drinking, and that he and his girlfriend

had been at a private party in the upstairs of the Treehouse.      Towards the end of the

party, he returned to the car, which was a car that his girlfriend had rented.     Sheppard
testified that it was cold outside, so he started the car. Refuting the testimony of Officer

Maffo-Judd that the key was in the ignition at the time of the stop, Sheppard testified that

he did not place the key in the ignition, but instead used an auto-start function on his key

fob and then placed the key in his coat pocket where it remained until after he was

released from jail. Sheppard further testified that at the time of the stop, he was trying to

text his girlfriend who was still at the party. He denied that he had been driving, and he

further denied that his vehicle was partially on the tree lawn near bushes.       Rather, he

stated, the vehicle was in a parking spot that was just beyond the tree lawn area identified

by the police in the city’s case-in-chief.

       {¶13} On cross-examination, he stated that he and his girlfriend did not actually

plan to drive the rental car home because they had both been drinking.

       {¶14} The trial court denied a renewed motion for acquittal and subsequently

convicted Sheppard of both OVI and failure to control.         On June 10, 2015, the trial

court sentenced Sheppard to 180 days in jail with 150 days suspended, a two-year license

suspension, a $1,625 fine with $625 suspended, and three years of active probation for

OVI.    The trial court sentenced him to pay a $100 fine on the failure to control

conviction.   The trial court stayed Sheppard’s sentence pending this appeal.

       {¶15} Sheppard appeals and assigns two errors for our review:

                                  Assignment of Error One

       The verdicts of the trial court are based on insufficient evidence beyond a

       reasonable doubt for driving under the influence and failure to control.
                                Assignment of Error Two

       The verdicts on both charges are contrary to the manifest weight of the

       evidence.

                               Sufficiency of the Evidence

       {¶16} In his first assignment of error, Sheppard argues that the trial court erred by

denying his Crim.R. 29(A) motion for judgment of acquittal of both charges because there

was insufficient evidence to prove that he “operated” the vehicle.   At most, he claims, he

committed the offense of having physical control of a vehicle while under the influence

of alcohol.

       {¶17} Crim.R. 29 mandates that the trial court issue a judgment of acquittal where

the prosecution’s evidence is insufficient to sustain a conviction for the offense.

Cleveland v. Pate, 8th Dist. Cuyahoga No. 99321, 2013-Ohio-5571, ¶ 12. On review, a

sufficiency of evidence analysis is applied. State v. Mitchell, 8th Dist. Cuyahoga No.

95095, 2011-Ohio-1241, ¶ 18, citing State v. Tenace, 109 Ohio St.3d 255,

2006-Ohio-2417, 847 N.E.2d 386. 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.

Vickers, 8th Dist. Cuyahoga No. 97365, 2013-Ohio-1337, ¶ 17, citing State v. Jenks, 61

Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

                                           OVI

       {¶18} Cleveland Codified Ordinances 433.01(a) states:
       No person shall operate any vehicle, streetcar, or trackless trolley within
       this City, if, at the time of the operation, any of the following apply:

       (1) The person is under the influence of alcohol.

       {¶19} A violation of Cleveland Codified Ordinance 433.01(a)(1) constitutes a

violation of R.C. 4511.19(A)(1), which has identical language.     State v. Zima, 102 Ohio

St.3d 61, 2004-Ohio-1807, 806 N.E.2d 542. Prior to January 1, 2004 and the enactment

of S.B. 123, there was no statutory definition of “operate,” and the meaning of this term

as used in R.C. 4511.19(A) was exclusively a matter of judicial interpretation.

Columbus v. Freeman, 181 Ohio App.3d 320, 2009-Ohio-1046, 908 N.E.2d 1026, ¶

11-12 (10th Dist.), citing State v. Wallace, 166 Ohio App.3d 845, 2006-Ohio-2477, 853

N.E.2d 704 (1st Dist.); State v. Schultz, 8th Dist. Cuyahoga No. 90412, 2008-Ohio-4448.

In State v. Gill, 70 Ohio St.3d 150, 1994-Ohio-403, 637 N.E.2d 897, the Supreme Court

of Ohio interpreted “operate” more broadly than “driving” and held that “[a] person who

is in the driver’s seat of a motor vehicle with the ignition key in the ignition and who has

a prohibited concentration of alcohol is ‘operating’ the vehicle within the meaning of

R.C. 4511.19 whether or not the engine of the vehicle is running.”    Id. at syllabus.

       {¶20} In S.B. 123, effective January 1, 2004, the General Assembly specifically

defined “operate” as used in R.C. Chapter 4511 to mean “to cause or have caused

movement of a vehicle.” R.C. 4511.01(HHH). Movement must be found by the finder

of fact.   Accord Cleveland v. Dumas, 8th Dist. Cuyahoga No. 99558, 2013-Ohio-4600, ¶

13; State v. Ware, 8th Dist. Cuyahoga No. 96327, 2011-Ohio-5665; State v. Schultz, 8th

Dist. Cuyahoga No. 90412, 2008-Ohio-4448. However, the definition employs both the
present tense, to cause movement, and, alternatively, the past tense, to have caused

movement, an action already completed. Cleveland v. Crawford, 8th Dist. Cuyahoga

No. 102110, 2015-Ohio-2402, ¶ 18, applying Schultz and State v. Barnard, 5th Dist. Stark

No. 2010-CA-00082, 2010-Ohio-5345, ¶ 29.          Further, the prosecuting attorney may

prove movement through the use of circumstantial evidence. Crawford at ¶ 18.

       {¶21} S.B. 123 also sets forth the statutory offense of “having physical control of a

vehicle while under the influence of alcohol.”        Schultz at ¶ 20; R.C. 4511.194(B).

Cleveland, as well as other municipalities, already prohibited being in physical control of

a vehicle while under the influence of alcohol. Id.    The Schultz court explained:

       Today, the difference between an OVI and a physical control violation,
       besides the penalties, is that an OVI requires actual movement of the
       vehicle, whereas a physical control violation does not. After January 1,
       2004, if there is no evidence that the person moved or caused the vehicle to
       move, that person cannot be convicted of OVI, but may be convicted of
       being in physical control of a vehicle while under the influence. Still, a
       person who is found passed out in his vehicle on the side of the highway
       may be convicted of an OVI because a jury could infer that the vehicle was
       moved to that location. However, if a person decides to “sleep it off” in
       the parking lot of the bar where the person drank, the person could be
       convicted only of a physical control violation, unless there is evidence of
       movement.

Id. at ¶ 25.

       {¶22} In this matter, the city’s evidence demonstrated that the patrolling officers

observed Sheppard’s vehicle improperly parked with two tires on the street and two near

some bushes in the “setback.”    Sheppard was asleep in the driver’s seat of the car.   The

engine was running, and according to Officer Maffo-Judd, the key was in the ignition.

After the officers woke Sheppard, the officers observed that his eyes were red and glassy,
and he smelled of alcohol. Sheppard told the officers at the scene that he was simply

waiting in the car for his girlfriend who was nearby at the Treehouse.         However, the

officers determined that the tavern was closed and locked up.      The lights were off and no

one was inside.    No one else was in the area, and no one else arrived while Sheppard

was performing the field sobriety tests, all of which he failed.

       {¶23} The trial court then found:

       [T]he officers testified when they arrived on the scene, that the defendant’s
       vehicle was actually parked on the grass, where there’s a bush, not a setback
       which would indicate the sidewalk.

       One could only infer that, that vehicle got there some way. And as it

       relates to who was in the vehicle, when they arrived on the scene, it was

       their testimony that it was the defendant. He was in the vehicle.      He was

       not alert. His phone was in his hand, but they had to knock on his window

       in order to get his attention.   The defendant indicated to them that he was

       there at an establishment.   He was waiting for his girlfriend.    The officers

       testified that when they knocked on the door to this establishment that,

       being a bar, that the doors were locked.   That place had been secured.

       {¶24} From all of the foregoing, there was sufficient evidence from which the trial

court could rationally conclude that Sheppard caused movement of the vehicle while

intoxicated.   The vehicle was improperly parked in a manner that attracted the attention

of the officers, with the engine running, and there was evidence that the key was in the

ignition.   No one else was around, there was no one at the Treehouse as Sheppard had
claimed, and no one else arrived during the duration of Sheppard’s encounter with the

officers. From the evidence, the court could infer that Sheppard did not simply have

control of the vehicle while waiting for someone, but instead moved the vehicle to that

location, parking it partially on the street and partially in the treelawn.   The trial court

did not err in denying the motion for acquittal of this charge.

                                     Failure to Control

       {¶25} Cleveland Codified Ordinances 431.34(a) provides:

       No person shall operate a motor vehicle or motorcycle upon any street or

       highway without exercising reasonable and ordinary control over such

       vehicle.

       {¶26} The offense of failure to control does not require, as an element of the

offense, that the offender actually be involved in an accident that damages the vehicle.

State v. Roberson, 5th Dist. Stark No. 1996CA00001, 1996 Ohio App. LEXIS 6080 (Oct.

28, 1996).   Rather, it is the reckless manner in which the driver operates his vehicle that

establishes a violation of this offense. Id.   In other words, the offense incorporates the

ordinary standard of negligence as the requisite proof of culpability. State v. Lett, 5th

Dist. Ashland No. 02COA049, 2003-Ohio-3366, ¶ 12. The offense may be established

by direct or circumstantial evidence.           Pate, 8th Dist. Cuyahoga No. 99321,

2013-Ohio-5571, at ¶ 21.

       {¶27} In this matter, the city’s evidence established that the vehicle was half on the

road and half on the tree lawn near bushes.       The officers specifically denied that the
vehicle was parked in a nearby area where the tree lawn was “indented” to allow parking.

 From the evidence presented by the city, including the manner in which the vehicle was

parked, the late hour, and Sheppard’s presence in the car, there was sufficient evidence

from which the trial court could rationally conclude that Sheppard failed to use

reasonable and ordinary operational control of his vehicle.

       {¶28} From all of the foregoing, the trial court did not err in denying the motion

for acquittal of OVI and failure to control.   The first assignment of error is overruled.

                                      Manifest Weight

       {¶29} In his second assignment of error, Sheppard argues his convictions are

against the manifest weight of the evidence because there was no testimony that he

operated the vehicle while under the influence of alcohol, or that he operated it without

exercising ordinary control.

       {¶30} A manifest weight challenge questions whether the prosecution met its

burden of persuasion at trial.   State v. Thomas, 70 Ohio St.2d 79, 80, 434 N.E.2d 1356

(1982). When a defendant asserts that a conviction is against the manifest weight of the

evidence, an appellate court must review the entire record, weigh the evidence and all

reasonable inferences, consider the credibility of witnesses, and determine whether, in

resolving conflicts in the evidence, the factfinder clearly lost its way and created such a

manifest miscarriage of justice that the conviction must be reversed and a new trial

ordered. State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541.
       {¶31} In this matter, the city’s evidence demonstrated that Sheppard, who was

intoxicated, was parked partially on the tree lawn and partially on the street, with the

engine running and the key in the ignition, and that no one was inside the Treehouse

tavern. Although Sheppard refuted this testimony and testified that the vehicle was in a

parking space and not partially on a tree lawn, and that he was simply waiting for his

girlfriend, with the key in his pocket, we cannot conclude that the trial court lost its way

in convicting Sheppard of OVI and failure to control. The testimony of the officers

clearly and compellingly established the location of the vehicle, near bushes and partially

on a tree lawn.    Officer Maffo-Judd also emphatically stated that the key was in the

ignition, and that it was ultimately conveyed with the car after the car was towed, and did

not remain in Sheppard’s pocket throughout the duration of the evening.              Officer

Maffo-Judd also emphatically established that the tavern was closed, the door was

chained shut, and no one was inside, contrary to Sheppard’s claims. Accordingly, we

conclude that the convictions are not against the manifest weight of the evidence.

       {¶32} The second assignment of error is overruled.

       {¶33} Judgment is affirmed and this matter is remanded to the trial court for

execution of sentence.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the municipal

court to carry this judgment into execution.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY EILEEN KILBANE, JUDGE

LARRY A. JONES, SR., A.J., and
MELODY J. STEWART, J., CONCUR
