[Cite as State v. Riley, 2013-Ohio-3353.]


                                         COURT OF APPEALS
                                     DELAWARE COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT

STATE OF OHIO                                       JUDGES:
                                                    Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                          Hon. Patricia A. Delaney, J.
                                                    Hon. Craig R. Baldwin, J.
-vs-
                                                    Case No. 12 CAC 11 0085
CLINTON RILEY

        Defendant-Appellant                         OPINION




CHARACTER OF PROCEEDING:                        Appeal from the Delaware Municipal Court,
                                                Case No. 12-TRC-05996


JUDGMENT:                                       Affirmed


DATE OF JUDGMENT ENTRY:                          July 30, 2013


APPEARANCES:


For Plaintiff-Appellee                          For Defendant-Appellant


ELIZABETH A. MATUNE                             WILLIAM T. CRAMER
Assistant Prosecuting Attorney                  470 Olde Worthington Road, Suite 200
Delaware City Prosecutor                        Westerville, Ohio 43082
70 North Union Street
Delaware, Ohio 43015
Delaware County, Case No. 12 CAC 11 0085                                              2

Hoffman, P.J.


       {¶1}   Defendant-appellant Clinton L. Riley appeals his convictions entered by

the Delaware Municipal Court. Plaintiff-appellee is the state of Ohio.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   On May 28, 2012, around 10:00 p.m., the Ohio State Highway Patrol

dispatcher received a telephone call of a one vehicle crash on Interstate 71 in Delaware

County. Ohio State Highway Patrol Troopers Nick Shaw and Rob Curry responded to

the scene. Trooper Curry observed an overturned truck in the median and tire markings

across the highway.     It appeared the truck was travelling northbound, lost control,

crossed the northbound lane of travel and turned over in the median. There was no

indication of the vehicle braking.

       {¶3}   Upon approach by law enforcement, Appellant appeared evasive,

indicating he had contacted his attorney and would not be providing a statement.

       {¶4}   Trooper Curry learned Appellant had a prosthetic leg, after observing him

walk with an abnormal gait. In addition, Trooper Curry noticed a distinct, moderate odor

of alcohol on Appellant, as well as, glassy and bloodshot eyes. Appellant's pupils were

dilated, and he slurred his speech.

       {¶5}   Appellant refused to provide a urine sample upon Trooper Curry's request,

and refused to perform any field sobriety tests.

       {¶6}   Appellant was subsequently charged with operating a vehicle under the

influence of alcohol, in violation of R.C. 4511.19(A)(1)(a), and failure to control, in

violation of R.C. 4511.202.
Delaware County, Case No. 12 CAC 11 0085                                                 3


      {¶7}   Following a jury trial, Appellant was convicted of operating a vehicle under

the influence of alcohol, in violation of R.C. 4511.19(A)(1)(a). The trial court then found

Appellant guilty of failure to control, in violation of R.C. 4511.202. The court sentenced

Appellant to thirty days in jail, with 27 suspended, two years of community control, a one

year driver's license suspension, and a fine of $400 plus court costs.

      {¶8}   Appellant now appeals, assigning as error:

      {¶9}   “I. APPELLANT WAS DEPRIVED OF HIS RIGHTS TO DUE PROCESS

AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION AND THE OHIO CONSTITUTION, ARTICLE I,

SECTION 16, WHEN THE TRIAL COURT APPOINTED A PRACTICING ATTORNEY

TO SIT AS AN ACTING JUDGE IN VIOLATION OF R.C. 1901.10.

      {¶10} “II. APPELLANT WAS DEPRIVED OF HIS RIGHTS TO DUE PROCESS

AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION AND THE OHIO CONSTITUTION, ARTICLE I,

SECTION 16, WHEN THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING A

CONTINUANCE THAT WAS NECESSARY TO PERMIT AN ELECTED JUDGE TO

PRESIDE OVER TRIAL.

      {¶11} “III. APPELLANT WAS DEPRIVED OF HIS RIGHTS TO DUE PROCESS

AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION AND THE OHIO CONSTITUTION, ARTICLE I,

SECTION 16, WHEN THE TRIAL COURT REFUSED TO GRANT A MISTRIAL AFTER

THE JURY RETURNED A GUILTY VERDICT ON AN ERRONEOUS VERDICT FORM.
Delaware County, Case No. 12 CAC 11 0085                                              4


       {¶12} “IV. APPELLANT WAS DEPRIVED OF HIS RIGHTS TO DUE PROCESS

AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION AND THE OHIO CONSTITUTION, ARTICLE, I,

SECTION 16, BECAUSE THERE WAS INSUFFICIENT EVIDENCE THAT APPELLANT

WAS OPERATING THE TRUCK WHILE UNDER THE INFLUENCE OF ALCOHOL.

       {¶13} “V. THE JURY’S FINDING THAT APPELLANT OPERATED A VEHICLE

WHILE UNDER THE INFLUENCE OF ALCOHOL IN VIOLATION OF R.C. 4511.19

WAS NOT SUPPORTED BY THE WEIGHT OF EVIDENCE.”

                                             I. & II.

       {¶14} In the first and second assignments of error, Appellant maintains the trial

court erred in denying his request for a continuance, and in appointing a practicing

attorney as acting judge in this matter.

       {¶15} On the day before trial, Appellant decided not to accept the State's plea

offer, and duly elected Judge David Sunderman announced he would not be available

to preside over the scheduled trial due to an emergency. Judge Sunderman indicated

former Delaware Municipal Court Judge and local attorney Jeffrey Burkham would be

appointed to serve as visiting judge for trial. Appellant made a general objection to

having the trial heard by anyone other than Judge Sunderman, indicating a preference

for Judge Sunderman to hear the matter. As a result, Appellant moved the trial court for

a continuance. The trial court denied the motion for a continuance, and appointed

Attorney Burkham as visiting judge.

       {¶16} Appellant now argues the trial court lacked authority to appoint anyone as

acting judge pursuant to R.C. 1901.10. The statute reads, in pertinent part:
Delaware County, Case No. 12 CAC 11 0085                                                  5


        {¶17} "(A)(2) If a judge of a municipal court that has only one judge is

temporarily absent, incapacitated, or otherwise unavailable, the judge may appoint a

substitute who has the qualifications required by section 1901.06 of the Revised Code

or a retired judge of a court of record who is a qualified elector and a resident of the

territory of the court. If the judge is unable to make the appointment, the chief justice of

the supreme court shall appoint a substitute. The appointee shall serve during the

absence, incapacity, or unavailability of the incumbent, shall have the jurisdiction and

powers conferred upon the judge of the municipal court, and shall be styled 'acting

judge.'"

        {¶18} Appellant maintains the statute did not give Judge Sunderman the

authority to appoint Attorney Burkham because it refers to a court with only one judge,

whereas the Delaware Municipal Court has two judges.            R.C. 1901.12 allows the

presiding judge of a two judge court to appoint an acting judge when the second judge

is unavailable for a scheduled trial. We do not find it necessary to develop our analysis

further because we find Appellant waived this argument by not specifically identifying it

as the basis of his objection.

        {¶19} Appellant moved the trial court for a continuance and objected to the

appointment of Attorney Burkham as the acting judge on the day prior to trial. However,

the objection is not contained in the record. On August 6, 2012, via Journal Entry, the

trial court appointed Jeffrey A. Burkam as "Acting Judge." The record does not contain

an objection to the appointment filed by Appellant following the appointment. Further,

the following occurred on the record prior to the commencement of trial on August 7,

2012:
Delaware County, Case No. 12 CAC 11 0085                                                   6


         {¶20} “The Court: Okay. Very good. Well, obviously I would indicate to both of

you, although I served as Judge here a long time ago, it has been awhile since I have

done one of these. Obviously if you have an objection, if you wish to approach the

bench and make that outside the hearing of the jury, that’s fine.

         {¶21} “If you feel I’m doing something that in any way prejudices either the State

or the defense, please let me know and we can discuss that here at the bench and

move from there. I don’t want to do anything that would prejudice either of you by my

lack of having done this for 16 years or so. Okay. Do either of you have any questions

for me?

         {¶22} “Ms. Slowey: No, your Honor.

         {¶23} “The Court: Okay. We then bring them in Mr. Borchers. Thank you, sir.”

         {¶24} Tr. at p.8

         {¶25} Upon review of the record, we find Appellant did not properly preserve or

renew the objection to the trial court's appointment of the acting judge herein.

Therefore, Appellant has waived all but plain error. We do not find plain error occurred;

therefore, the first and second assignments of error are overruled.

                                                 III.

         {¶26} In the third assignment of error, Appellant maintains the trial court erred in

refusing to grant a mistrial after the jury returned a guilty verdict on an erroneous verdict

form.

         {¶27} Appellant was charged with violation of R.C. 4511.19(A)(1)(a), which

reads,
Delaware County, Case No. 12 CAC 11 0085                                                7


       {¶28} "(A)(1) No person shall operate any vehicle, streetcar, or trackless trolley

within this state, if, at the time of the operation, any of the following apply:

       {¶29} "(a) The person is under the influence of alcohol, a drug of abuse, or a

combination of them."

       {¶30} The State did not argue any theory other than impairment by alcohol in

closing arguments. The entirety of the jury instructions focused on whether Appellant

was under the influence of alcohol. The jury returned a verdict of guilty to the charge,

but the verdict form contained the initial charge Appellant was under the influence of

alcohol or drugs of abuse.        The trial court proposed sending the jury back into

deliberations with a corrected verdict form, but Appellant moved the trial court for a

mistrial asserting prejudice.

       {¶31} The trial court stated on the record:

       {¶32} “The Court: Okay. I’m going to overrule your motion for mistrial. I’m going

to pull the jury back in. I’m going to explain that there was a clerical error and that we

are going to give them a new jury verdict form, which will delete the language or drug of

abuse and that their deliberations should continue and that the issue before them is

whether or not the State proved that Mr. Riley was under the influence of alcohol period.

I think that’s what I’m going to do. So we’ll just have to change the form.

       {¶33} “* * *

       {¶34} “The Court: Thank you. Ladies and gentlemen of the jury, I must sincerely

apologize to you. The Court has made an error. It is the Court’s error. It is not

counsel’s error. It is the Court’s error.
Delaware County, Case No. 12 CAC 11 0085                                                  8


       {¶35} “The jury verdict form you received was incorrect. The jury verdict form

indicated that you were to find whether or not Mr. Riley was guilty or not guilty of

operating a motor vehicle under the influence of alcohol or drug of abuse. The words or

drug of abuse should not have appeared there.

       {¶36} “Throughout my instructions, those instructions related to a finding relative

to whether or not Mr. Riley was operating a vehicle under the influence of alcohol.

Period.

       {¶37} “Obviously none of us have been privy to your discussions nor should we

be. At this point, however, if you wish to re-read the instructions that I gave you they

are available and they are in writing and you are certainly welcome to look at them

again. But what we will be doing is giving you a new set of jury verdict forms. You may

continue your deliberations for however long a period is necessary.

       {¶38} “If you have questions, as I outlined to you during the instructions, reduce

those to writing and I will try and answer them, but this was a mistake on the Court’s

behalf. It is not anyone else’s mistake and what I want to do is instruct you, again, that

the issue before you is whether or not Clinton L. Riley is guilty of operating a motor

vehicle under the influence of alcohol. Period. That is the question before you.

       {¶39} “It is unusual, but we have an unusual circumstance here. If you have

questions, okay, I do not think it is appropriate for you to ask them here now individually.

But you certainly have that opportunity. If there is any questions you have about the

situation right now, I will try and answer them better than I have, but it is our mistake.

You got a form that had language that should not have been there. The new form will

have it deleted and we will have it to you momentarily. If you have further questions,
Delaware County, Case No. 12 CAC 11 0085                                                    9


the proper way is through the written and illuminating the yellow light and if there are

further questions I will try and answer them for you. Can counsel approach the bench,

please.”

       {¶40} Tr. at 228-229.

       {¶41} The jury returned to deliberations, and returned with a verdict form finding

Appellant guilty of operating a vehicle while under the influence of alcohol. Upon review

of the foregoing, we find the trial court did not abuse its discretion in failing to declare a

mistrial, and we find Appellant has not demonstrated prejudice or that the outcome of

the trial would have been otherwise but for the alleged error.

       {¶42} The third assignment of error is overruled.

                                              IV. & V.

       {¶43} Appellant's fourth and fifth assignments of error raise common and

interrelated issues; therefore, we will address the arguments together.

       {¶44} Appellant maintains his conviction for OVI is against the manifest weight

and sufficiency of the evidence.

       {¶45} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire

record, weighs the evidence and all reasonable inferences, considers the credibility of

witnesses, and determines whether in resolving conflicts in evidence the jury ‘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, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1st Dist.1983).
Delaware County, Case No. 12 CAC 11 0085                                               10


       {¶46} An appellate court's function when reviewing the sufficiency of the

evidence is to determine 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, 574

N.E.2d 492, paragraph two of the syllabus (1991).

       {¶47} As set forth above, Appellant was charged with violation of R.C.

4511.19(A)(1)(a), which reads,

       {¶48} "(A)(1) No person shall operate any vehicle, streetcar, or trackless trolley

within this state, if, at the time of the operation, any of the following apply:

       {¶49} "(a) The person is under the influence of alcohol, a drug of abuse, or a

combination of them."

       {¶50} As set forth in the statement of the facts and case, supra, Trooper Curry

testified upon responding to the scene he observed an overturned truck in the median

which appeared to have been travelling northbound and to have lost control, crossing

the northbound lane of travel and subsequently overturning. The truck appeared to not

have attempted to brake.

       {¶51} Trooper Curry further testified Appellant appeared evasive and refused to

make a statement, to perform field sobriety tests or to give a urine sample. He had a

distinct, moderate odor of alcohol, bloodshot, glassy eyes, and slurred speech.

       {¶52} Based upon the testimony presented at trial, we find Appellant's conviction

for OVI is not against the manifest weight of the evidence nor based on insufficient

evidence.

       {¶53} The fourth and fifth assignments of error are overruled.
Delaware County, Case No. 12 CAC 11 0085                                          11


      {¶54} Appellant's conviction in the Delaware Municipal Court is affirmed.

By: Hoffman, P.J.

Delaney, J. and

Baldwin, J. concur

                                           ___________________________________
                                           HON. WILLIAM B. HOFFMAN


                                           ___________________________________
                                           HON. PATRICIA A. DELANEY


                                           ___________________________________
                                           HON. CRAIG R. BALDWIN
Delaware County, Case No. 12 CAC 11 0085                                               12


           IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


STATE OF OHIO                              :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
CLINTON RILEY                              :
                                           :
       Defendant-Appellant                 :         Case No. 12 CAC 11 0085


       For the reasons stated in our accompanying Opinion, Appellant's conviction in

the Delaware Municipal Court is affirmed. Costs to Appellant.




                                           ___________________________________
                                           HON. WILLIAM B. HOFFMAN


                                           ___________________________________
                                           HON. PATRICIA A. DELANEY


                                           ___________________________________
                                           HON. CRAIG R. BALDWIN
