[Cite as State v. Owens, 2019-Ohio-440.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 1-18-48

        v.

WILLIE J. OWENS,                                          OPINION

        DEFENDANT-APPELLANT.


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 1-18-49

        v.

WILLIE J. OWENS,                                          OPINION

        DEFENDANT-APPELLANT.


                         Appeals from Lima Municipal Court
                   Trial Court Nos. 18TRD01769 and 18TRD01812

                                     Judgments Affirmed

                          Date of Decision:   February 11, 2019



APPEARANCES:

        Michael J. Short for Appellant

        Anthony M. DiPietro for Appellee
Case No. 1-18-48, 1-18-49


PRESTON, J.

      {¶1} Defendant-appellant, Willie J. Owens (“Owens”), appeals the August

21, 2018 judgments of sentence of the Lima Municipal Court. For the reasons that

follow, we affirm.

      {¶2} On October 10, 2016, Owens was placed under an administrative

license suspension, which was to last until October 10, 2018. (State’s Ex. A).

      {¶3} On February 23, 2018, Owens was issued a citation for driving under

OVI suspension in violation of R.C. 4510.14(A). (Case No. 18TRD01769, Doc.

No. 1). On February 26, 2018, Owens was issued a second citation for driving under

OVI suspension in violation of R.C. 4510.14(A). (Case No. 18TRD01812, Doc.

No. 1). On February 28, 2018, Owens appeared for arraignment and pleaded not

guilty to both charges.     (Case No. 18TRD01769, Doc. No. 4); (Case No.

18TRD01812, Doc. No. 4).

      {¶4} Following a bench trial on July 24, 2018, the trial court found Owens

guilty of both charges. (See Case No. 18TRD01769, Doc. Nos. 8, 9); (See Case No.

18TRD01812, Doc. Nos. 8, 9).        The trial court filed its judgment entries of

conviction on August 3, 2018. (Case No. 18TRD01769, Doc. No. 9); (Case No.

18TRD01812, Doc. No. 9).

      {¶5} On August 21, 2018, the trial court sentenced Owens to 90 days in jail

in case number 18TRD01769, suspending all but 3 of those days on condition that


                                        -2-
Case No. 1-18-48, 1-18-49


Owens commit no further violations of R.C. 4510.14 for two years. (Case No.

18TRD01769, Doc. No. 17).         In addition, the trial court fined Owens $250,

impounded his motor vehicle and license plates for 30 days, suspended his license

for 10 days, and assessed six points against his license. (Id.). That same day, in

case number 18TRD01812, the trial court sentenced Owens to 120 days in jail,

suspending all but 7 of those days on condition that Owens commit no further

violations of R.C. 4510.14 for two years. (Case No. 18TRD01812, Doc. No. 17).

In addition, the trial court fined Owens $400, impounded his motor vehicle and

license plates for 30 days, suspended his license for 10 days, and assessed six points

against his license. (Id.). The trial court ordered that the jail terms in case numbers

18TRD01769 and 18TRD01812 be served consecutively for a total of 10 days in

jail. (Id.). Finally, the trial court ordered that the periods of vehicle and license

plates impoundment and license suspension in case numbers 18TRD01769 and

18TRD01812 be served consecutively to one another. (Id.).

       {¶6} On August 21, 2018, Owens filed notices of appeal.             (Case No.

18TRD01769, Doc. No. 15); (Case No. 18TRD01812, Doc. No. 14). Owens’s

appeals were subsequently consolidated for purposes of briefing and argument. He

raises two assignments of error, which we address together.

                            Assignment of Error No. I

       The convictions were against the manifest weight of the evidence.


                                         -3-
Case No. 1-18-48, 1-18-49


                              Assignment of Error No. II

       The convictions were based on insufficient evidence.

       {¶7} In his first and second assignments of error, Owens argues that his

driving-under-OVI-suspension convictions are against the manifest weight of the

evidence and unsupported by sufficient evidence. Specifically, Owens argues that

his convictions are against the manifest weight of the evidence because “[t]he State

failed to prove beyond a reasonable doubt that [he] was operating his vehicle outside

of the scope of his driving privileges.” (Appellant’s Brief at 7). Furthermore,

Owens argues that because he was operating his motor vehicle within the scope of

his driving privileges, his convictions are not supported by sufficient evidence as

“[n]o reasonable fact finder could have found each element of the offense proven

beyond a reasonable doubt.” (Id. at 8).

       {¶8} Before addressing the merits of Owens’s assignments of error, we must

first determine the proper scope of our review. Owens was convicted of two counts

of driving under OVI suspension in violation of R.C. 4510.14(A). R.C. 4510.14(A)

provides, in relevant part:

       No person whose driver’s * * * license or permit * * * has been

       suspended under section 4511.19, 4511.191, or 4511.196 of the

       Revised Code or under section 4510.07 of the Revised Code for a

       conviction of a violation of a municipal OVI ordinance shall operate


                                          -4-
Case No. 1-18-48, 1-18-49


       any motor vehicle upon the public roads or highways within this state

       during the period of the suspension.

Thus, to sustain a conviction for driving under OVI suspension, the State must prove

beyond a reasonable doubt that a defendant (1) operated (2) any motor vehicle (3)

on a public road or highway (4) during the period of a license suspension rendered

under R.C. 4511.19, 4511.191, 4511.196, or 4510.07. See R.C. 4510.14(A).

       {¶9} On appeal, Owens does not dispute that he was operating a motor

vehicle on public roads or that his license was suspended under any of R.C. 4511.19,

4511.191, 4511.196, or 4510.07. Instead, Owens argues that the trial court erred by

finding him guilty of driving under OVI suspension because he had driving

privileges to drive to and from work and he was driving within the scope of his

occupational driving privileges when he received the two citations. In so arguing,

Owens contends that the State bore the burden of proving beyond a reasonable doubt

that he was operating his motor vehicle outside of the scope of his driving privileges.

       {¶10} However, contrary to Owens’s assertion, R.C. 4510.14(A) does not

require the State to prove beyond a reasonable doubt that a defendant was driving

outside of the scope of his or her driving privileges in order to sustain a conviction

for driving under OVI suspension.          “‘[T]he assertion that an accused had

occupational driving privileges is an affirmative defense, and the burden is on the

accused to demonstrate [by a preponderance of the evidence] that he


                                         -5-
Case No. 1-18-48, 1-18-49


was driving within the scope of those privileges at the time of the stop.’” State v.

Reese, 6th Dist. Lucas No. L-17-1184, 2018-Ohio-1654, ¶ 17, quoting State v.

Mitchell, 6th Dist. Lucas No. L-10-1047, 2010-Ohio-4708, ¶ 15, citing State v.

Bonn, 101 Ohio App.3d 69, 72 (9th Dist.1995). See State v. Lauch, 122 Ohio

App.3d 522, 525 (1st Dist.1997); State v. Pappas, 11th Dist. Lake No. 94-L-183,

1995 WL 803617, *5-6 (Dec. 1, 1995); Chagrin Falls v. Somers, 8th Dist. Cuyahoga

No. 62481, 1993 WL 146528, *2 (May 6, 1993); Marysville v. Graves, 3d Dist.

Union No. 14-86-16, 1988 WL 40442, *2 (Apr. 28, 1988).               See also R.C.

2901.05(A) (“The burden of going forward with the evidence of an affirmative

defense, and the burden of proof, by a preponderance of the evidence, for an

affirmative defense, is upon the accused.”). Therefore, instead of arguing that the

evidence fails to establish one of the substantive elements of the offense of driving

under OVI suspension, Owens is actually arguing that the trial court erred by

rejecting his driving-privileges affirmative defense.

       {¶11} While Owens asks this court to consider the trial court’s purported

error under both sufficiency-of-the-evidence and manifest-weight-of-the-evidence

review, the error alleged by Owens is not subject to sufficiency-of-the-evidence

review. Sufficiency-of-the-evidence review concerns “the sufficiency of the state’s

evidence, not the strength of defense evidence” and is accordingly “‘applied with

explicit reference to the substantive elements of the criminal offense as defined by


                                         -6-
Case No. 1-18-48, 1-18-49


state law.’” (Emphasis sic.) State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160,

¶ 38, quoting Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781 (1979), fn. 16.

“‘[T]he due process “sufficient evidence” guarantee does not implicate affirmative

defenses, because proof supportive of an affirmative defense cannot detract from

proof beyond a reasonable doubt that the accused had committed the requisite

elements of the crime.’” Id. at ¶ 37, quoting Caldwell v. Russell, 181 F.3d 731, 740

(6th Cir.1999), abrogated on other grounds by the Antiterrorism and Effective Death

Penalty Act, Section 2261 et seq., Title 28, U.S. Code. As a result, Owens’s

challenge to the sufficiency of the evidence as it pertains to his driving-privileges

affirmative defense is inappropriate. See State v. Wagner, 3d Dist. Seneca No. 13-

15-18, 2015-Ohio-5183, ¶ 7, citing State v. Vasquez, 10th Dist. Franklin No. 13AP-

366, 2014-Ohio-224, ¶ 52; State v. Bagley, 3d Dist. Allen No. 1-13-31, 2014-Ohio-

1787, ¶ 10-11, citing Vasquez at ¶ 52. Furthermore, because Owens does not

challenge the sufficiency of the State’s evidence supporting any of the substantive

elements of the offense of driving under OVI suspension, we decline to conduct

sufficiency-of-the-evidence review at all.

       {¶12} Nevertheless, the error alleged by Owens does not escape our review

entirely. “When reviewing a claim by a defendant that evidence supports an

affirmative defense, the manifest weight standard is the proper standard of

review.” State v. Johns, 3d Dist. Seneca Nos. 13-04-23, 13-04-24 and 13-04-25,


                                         -7-
Case No. 1-18-48, 1-18-49


2005-Ohio-1694, ¶ 19; State v. Coleman, 8th Dist. Cuyahoga No. 80595, 2002-

Ohio-4421, ¶ 30. See Hancock at ¶ 39-42; Wagner at ¶ 7. In determining whether

a conviction is against the manifest weight of the evidence, a reviewing court must

examine 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 [trier of fact] 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), quoting State v.

Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).          A reviewing court must,

however, allow the trier of fact appropriate discretion on matters relating to the

weight of the evidence and the credibility of the witnesses. State v. DeHass, 10

Ohio St.2d 230, 231 (1967). When applying the manifest-weight standard, “[o]nly

in exceptional cases, where the evidence ‘weighs heavily against the conviction,’

should an appellate court overturn the trial court’s judgment.” State v. Haller, 3d

Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v. Hunter, 131 Ohio

St.3d 67, 2011-Ohio-6524, ¶ 119.

       {¶13} Here, Owens does not dispute that the State proved the substantive

elements of the offense of driving under OVI suspension. Therefore, we limit our

analysis to determining whether the trial court’s rejection of Owens’s driving-




                                         -8-
Case No. 1-18-48, 1-18-49


privileges affirmative defense is against the manifest weight of the evidence. See

Wagner at ¶ 9; Bagley at ¶ 14.

       {¶14} At the July 24, 2018 trial, the State first offered the testimony of

Sergeant Nicholas Hart (“Sergeant Hart”) of the City of Lima Police Department.

(July 24, 2018 Tr. at 11). Sergeant Hart testified that at approximately 10:30 on the

morning of February 26, 2018, he was on motor patrol when he observed a gray

Ford Taurus turn northbound from Vine Street onto a dead-end street. (Id.). He

testified that he observed the vehicle stop and that he watched as a woman “believed

to possibly be a local street walker or a prostitute” approached the vehicle. (Id. at

12). Soon thereafter, Sergeant Hart watched as the vehicle pulled away from the

female, at which point he “got behind the vehicle and followed it.” (Id.). After

observing the driver of the vehicle commit a marked lane violation, Sergeant Hart

executed a traffic stop. (Id.).

       {¶15} Sergeant Hart identified Owens as the driver of the gray Ford Taurus.

(Id.). Sergeant Hart testified that, after making contact with Owens, he conducted

a routine check of Owens’s driving status that revealed that Owens’s driver’s license

was suspended. (Id. at 13). He stated that although Owens advised him that he had

driving privileges, he could not recall whether Owens produced his driving

privileges card during the stop. (Id.). Sergeant Hart testified that Owens “said he

had privileges to drive to and from work and for doctor’s appointments.” (Id.).


                                         -9-
Case No. 1-18-48, 1-18-49


Sergeant Hart testified that when he asked Owens to explain why he was driving his

vehicle that morning, Owens first indicated that he “had just left court * * * from

Main Street” but that he later “changed his statement to court on Market Street.”

(Id.). However, Sergeant Hart stated that he was familiar with the area where Owens

resides and that the area of Lima in which he encountered Owens was not consistent

with him returning home from either courthouse. (Id.). He remarked that Owens

went “entirely outside of the way and then completely around the block” and that

“[i]t was not the most direct route” home for him. (Id. at 14).

       {¶16} Sergeant Hart then identified State’s Exhibit C as Owens’s

“administrative license suspension limited driving privileges permit card.” (Id.).

(See State’s Ex. C). Owens’s driving privileges permit card provides that Owens’s

driver’s license had been “suspended except for the privileges to drive to, from and

for work purposes in a non-commercial vehicle and as noted below.” (State’s Ex.

C). However, the spaces on the privileges card reserved for identification of

Owens’s place of employment, days of employment, and hours of employment are

blank. (Id.). In addition, the card provides that he could drive “to/from any and all

regularly scheduled medical and dental appointments for himself” and that he must

carry the privileges card with him at all times. (Id.).

       {¶17} Sergeant Hart testified that based on his experience with other drivers

with limited driving privileges, driving privileges cards typically specify the driver’s


                                         -10-
Case No. 1-18-48, 1-18-49


place of employment. (July 24, 2018 Tr. at 14-15). He observed that Owens’s

driving privileges card did not grant him privileges to drive to or from any

courthouse and that it expressly authorized driving only for “regularly scheduled

medical and dental appointments for himself.” (Id. at 15-16). Finally, Sergeant

Hart opined that even if Owens were actually driving home from one of Lima’s

courthouses, he would still be in violation of his driving privileges because Owens

was not granted privileges to drive to or from court. (Id. at 16).

       {¶18} On cross-examination, Sergeant Hart testified that while he could not

remember whether Owens produced his driving privileges card during the traffic

stop, he also could not “recall that [Owens] did not show it.” (Id. at 17-18). In

addition, Sergeant Hart testified that he was familiar with “a body shop on 214 South

Central [Avenue],” Owens’s place of employment, but that “several blocks,” “a

dead end,” and “an open field” separated the body shop from the location where he

first observed Owens. (Id. at 18). Finally, he testified that he remembered that there

was a fire at “Howard’s E-Z Check” but that he could not recall exactly when the

fire occurred or whether it occurred at or near the time he executed the stop of

Owens’s vehicle. (Id.).

       {¶19} On redirect-examination, Sergeant Hart testified that Owens’s course

of travel was not consistent with him returning home from P1 Automotive, the body

shop on 214 South Central Avenue. (Id. at 18-19). Sergeant Hart opined that “[i]f


                                        -11-
Case No. 1-18-48, 1-18-49


[Owens] would have traveled from * * * P1 Automotive down Central, he would

have just continued rather than making a turn onto Vine Street at all. It would have

just been a straight shot down to * * * 4th Street and then a right hand turn.” (Id. at

19).

       {¶20} Next, Deputy Jared Gesler (“Deputy Gesler”) of the Allen County

Sheriff’s Office testified that on February 23, 2018, he executed a traffic stop of

Owens’s vehicle near the intersection of “St. John[s] [Avenue] and 4th Street” after

Owens “failed to utilize his turn signal.” (Id. at 20-22). Deputy Gesler identified

Owens as the driver of the vehicle he pulled over. (Id. at 22). He testified that when

he asked Owens for his driver’s license, Owens told him that he “had driving

privileges but he didn’t have them with him.” (Id. at 22-23). Deputy Gesler stated

that he was able to determine that Owens’s driver’s license was suspended. (Id. at

23).

       {¶21} Deputy Gesler testified that when he asked Owens why he was driving

that day, Owens “told [him] he was just driving around.” (Id.). Deputy Gesler then

examined State’s Exhibit C and testified that it was consistent with driving

privileges cards he had encountered in the past. (Id. at 23-24). He testified that the

driving privileges card did not indicate that Owens had driving privileges for work

or that he had driving privileges “to just drive around.” (Id. at 24). He also stated

that the driving privileges card indicated that Owens was required to carry the card


                                         -12-
Case No. 1-18-48, 1-18-49


with him at all times. (Id.). Deputy Gesler testified that in light of Owens’s stated

reasons for driving on February 23, 2018 and the scope of his driving privileges,

Owens was in violation of his driving privileges at the time of the stop. (Id. at 24-

25).

         {¶22} Thereafter, the State moved to admit its exhibits and rested. (Id. at

26). Owens and the State stipulated to the admission of State’s Exhibits A, B, and

C, and the same were admitted without objection.1 (Id. at 27). (See State’s Exs. A,

B, C).

         {¶23} Owens then testified in his own defense. He testified that on February

26, 2018, he was “headed home” from work at P1 Automotive when he was pulled

over by Sergeant Hart. (July 24, 2018 Tr. at 29, 31-32). He testified that he entered

the dead-end street where Sergeant Hart first observed him because he believed that

it would “lead back to Center Street” and that he turned around once he realized it

was a dead-end. (Id. at 29). Owens mentioned seeing “a lady walking across the

field” at the end of the dead-end street but he did not state that she approached his

car or that he spoke with her. (Id. at 30). Owens then described the route he

allegedly took home from work that morning, insisting that he was forced to take a


1
  State’s Exhibits A and B were not identified or reviewed by Sergeant Hart or Deputy Gesler. State’s Exhibit
A is a certified copy of Owens’s driving record showing that he was subject to an administrative license
suspension from October 10, 2016 until October 10, 2018. (State’s Ex. A). State’s Exhibit B is a November
14, 2016 judgment entry of conviction and sentence of the Lima Municipal Court. (State’s Ex. B). State’s
Exhibit B reflects that Owens pleaded guilty to having physical control of a vehicle while under the influence
in violation of R.C. 4511.194 and that, as a result, his administrative license suspension was continued with
a grant of limited driving privileges. (Id.).

                                                    -13-
Case No. 1-18-48, 1-18-49


detour because St. Johns Avenue was completely blocked by firetrucks responding

to a fire at the “E-Z Check.” (Id. at 30-31). Owens further testified that he showed

Sergeant Hart his driving privileges card during the traffic stop. (Id. at 31-32).

       {¶24} Owens then testified regarding the traffic stop initiated by Deputy

Gesler on February 23, 2018. Owens testified that he was headed home from work

when Deputy Gesler pulled him over. (Id. at 33). He testified that he told Deputy

Gesler that he “just had got off of work” and denied telling Deputy Gesler that he

was “just riding around.” (Id.).

       {¶25} Owens reiterated that he was working for the body shop on both

February 23 and 26, 2018.          (Id.).   To support his claim, Owens introduced

Defendant’s Exhibit 1, a letter from his employer at P1 Automotive. (Id. at 34).

(See Defendant’s Ex. 1). Defendant’s Exhibit 1 states: “Willie James Owens is an

employee at P-I Automotive. He works six days a week (Monday thru Saturday)

from 9:00 a.m. to 8:00 p.m. On the dates in question, February 23 and 26, 2018,

Mr. Owens was in route to work.” (Defendant’s Ex. 1).

       {¶26} Owens then examined State’s Exhibit C. He testified that although his

driving privileges card did not specify his employer, days of employment, or hours

of employment, he understood the driving privileges card as granting him “driving

privilege to drive to and from work at all times * * * just during the work hours and

nothing else.” (July 24, 2018 Tr. at 35). In addition, he testified that he understood


                                            -14-
Case No. 1-18-48, 1-18-49


the driving privileges card as granting him privileges to drive to and from scheduled

medical and dental appointments. (Id. at 35-36).

       {¶27} On cross-examination, Owens reviewed State’s Exhibit B, a copy of

the November 14, 2016 judgment entry of conviction and sentence of the Lima

Municipal Court that sets forth his driving privileges. Owens admitted that the

judgment entry does not contain language granting him privileges to drive to and

from work, privileges for “joyriding,” or privileges to drive to and from court. (Id.

at 38-39). (See State’s Ex. B).

       {¶28} Thereafter, Owens moved to admit his exhibit and rested. (July 24,

2018 Tr. at 43). Defendant’s Exhibit 1 was admitted without objection. (Id.). The

State did not present any evidence on rebuttal. (Id. at 44).

       {¶29} We      conclude     that   Owens’s      driving-under-OVI-suspension

convictions are not against the manifest weight of the evidence because the trial

court did not clearly lose its way by rejecting Owens’s driving-privileges affirmative

defense. We note that Owens and the State dispute the scope of Owens’s driving

privileges. According to Owens, at the time he received the citations, he had

privileges to drive to and from work, and he was en route home from work when he

was cited. In contrast, the State argues that Owens’s driving privileges at the time

he received the citations were strictly limited to driving to and from any regularly

scheduled medical or dental appointments. The trial court agreed with the State’s


                                         -15-
Case No. 1-18-48, 1-18-49


position and found that the only driving privileges granted to Owens were for

regularly scheduled medical and dental appointments. (Case No. 18TRD01769,

Doc. Nos. 8, 9); (Case No. 18TRD01812, Doc. Nos. 8, 9). However, we need not

and do not determine whether the trial court correctly construed the scope of

Owens’s driving privileges. Even assuming that Owens had occupational driving

privileges, Owens bore the burden of proving by a preponderance of the evidence

that he was in fact driving to or from work, and for the reasons stated below, the

trial court’s conclusion that he failed to carry that burden is not against the weight

of the evidence.

       {¶30} First, Owens’s claim that he was returning home from work when he

received each of the citations did not go unchallenged by the State. Sergeant Hart

testified that Owens told him that he was returning home from one of the

courthouses in Lima; Deputy Gesler testified that Owens remarked that he was “just

driving around.” (July 24, 2018 Tr. at 13, 23). If believed by the trial court,

Sergeant Hart’s and Deputy Gesler’s testimony weighs against Owens’s claim that

he was driving within the scope of his occupational driving privileges because

driving to and from court and “just driving around” would be clearly outside of the

scope of those limited privileges. Ultimately, the trial court elected to believe

Sergeant Hart’s and Deputy Gesler’s testimony, explicitly finding that each of them

was a credible witness. (See Case No. 18TRD01769, Doc. No. 9); (See Case No.


                                        -16-
Case No. 1-18-48, 1-18-49


18TRD01812, Doc. No. 9). Although Owens insisted repeatedly that he was

returning home from work when he was issued the citations, the trial court expressly

determined that Owens’s testimony was not credible. (Id.); (Id.). The trial court

was in the best position to evaluate Sergeant Hart’s, Deputy Gesler’s, and Owens’s

credibility, and this court may not substitute its judgment for that of the trial court.

See State v. White, 3d Dist. Seneca No. 13-16-21, 2017-Ohio-1488, ¶ 50. The fact

that the trial court believed the State’s witnesses’ versions of events instead of

Owens’s does not render Owens’s convictions against the manifest weight of the

evidence. See State v. Bates, 12th Dist. Butler No. CA2009-06-174, 2010-Ohio-

1723, ¶ 11 (“[I]t is well-established that ‘[w]hen conflicting evidence is presented

at trial, a conviction is not against the manifest weight of the evidence simply

because the [trier of fact] believed the prosecution testimony.’”), quoting State v.

Bromagen, 12th Dist. Clermont No. CA2005-09-087, 2006-Ohio-4429, ¶ 38.

       {¶31} In addition, the hours at which Owens was issued the citations weigh

against a finding that he was driving within the scope of any occupational driving

privileges. Owens was cited at approximately 6:10 p.m. on February 23, 2018 and

at approximately 10:35 a.m. on February 26, 2018. (Case No. 18TRD01769, Doc.

No. 1); (Case No. 18TRD01812, Doc. No. 1). Given that the letter from Owens’s

employer states that his work hours were “from 9:00 a.m. to 8:00 p.m.,” it is unlikely

that Owens would be expected to be returning home from work at 10:35 a.m. or


                                         -17-
Case No. 1-18-48, 1-18-49


6:10 p.m.    (See Defendant’s Ex. 1).      Nevertheless, Owens argues that these

inconsistencies are irrelevant because “people can be let off work early or be told to

come in later than normal, or * * * someone could simply be late for work.”

(Appellant’s Brief at 6). Yet, Owens did not present any evidence to the trial court

suggesting that he was sent home early from work or that he was running late to

work on either February 23 or 26, 2018. Owens simply did not explain why he was

on the road during what he claims were his regular hours of employment. Without

evidence explaining this irregularity, the times at which Owens received the

citations are relevant facts weighing against a finding that Owens was operating his

vehicle within the scope of any occupational driving privileges.

       {¶32} Moreover, the letter from Owens’s employer does not weigh strongly

in favor of Owens’s affirmative defense. The letter from Owens’s employer states

that Owens “was in route to work” when he received the citations. (Emphasis

added.) (Defendant’s Ex. 1). Conversely, Owens testified that he was returning

home from work on both occasions. (July 24, 2018 Tr. at 29-33). Owens did not

explain this contradiction. Thus, the letter’s value to Owens’s affirmative defense

is questionable.

       {¶33} Finally, at least with respect to the February 26, 2018 citation issued

by Sergeant Hart, Sergeant Hart also testified that Owens’s course of travel was

inconsistent with him returning home from work. (Id. at 18-19). Owens argues that


                                        -18-
Case No. 1-18-48, 1-18-49


“nothing in the statute or the driving privileges document requires * * * or even

references” a requirement that Owens take the most direct route home from work.

(Appellant’s Brief at 6). However, even if Owens is correct that he was not required

to take the most direct route home, Owens’s physical location at the time he was

issued the citation is still relevant to determining whether Owens was operating his

motor vehicle within the scope of any occupational driving privileges he may have

had. Therefore, Sergeant Hart’s testimony that Owens’s location was not consistent

with him returning home from work weighs against Owens’s claim that he was

driving home from work when he received the February 26, 2018 citation.

       {¶34} Altogether, we cannot conclude that the trial court, by rejecting

Owens’s driving-privileges affirmative defense, clearly lost its way and created such

a manifest miscarriage of justice that Owens’s driving-under-OVI-suspension

convictions must be reversed and new trials ordered.

       {¶35} Owens’s assignments of error are overruled.

       {¶36} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgments of the trial court.

                                                               Judgments Affirmed

SHAW and WILLAMOWSKI, J.J., concur.

/jlr




                                        -19-
