[Cite as State v. Cranford, 2019-Ohio-91.]


                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                              ATHENS COUNTY

STATE OF OHIO,                 :
                               :    Case No. 17CA39
     Plaintiff-Appellee,       :
                               :
     vs.                       :    DECISION AND JUDGMENT
                               :    ENTRY
EDWARD CRANFORD                :
                               :
    Defendant-Appellant.       :    Released: 01/08/19
_____________________________________________________________
                         APPEARANCES:

Timothy P. Young, Ohio State Public Defender, and Stephen P. Hardwick,
Assistant Ohio State Public Defender, Columbus, Ohio, for Appellant.

Lisa A. Eliason, Athens City Law Director, and Jessica L. Branner, Athens
City Prosecutor, Athens, Ohio, for Appellee.
_____________________________________________________________

McFarland, J.

        {¶1} Edward Cranford appeals the October 26, 2017 judgment entry

of the Athens Municipal Court. A jury found Appellant guilty of violations

of R.C. 4511.19(A)(1)(a), driving while under the influence of alcohol or

drugs, a misdemeanor of the first degree; R.C. 4511.19(A)(2), refusing to

submit to a chemical test while under arrest for a charge of operating a

vehicle while under the influence of alcohol or drugs, also a misdemeanor of

the first degree; and failure to yield, Athens City Ordinance 704.27, a minor

misdemeanor. On appeal, Appellant asserts that the evidence was
Athens App. No. 17CA39                                                           2

insufficient to convict him of refusing to submit to a chemical test because

the State did not prove that he had a prior conviction for operating a vehicle

while intoxicated. Based upon our review of the record, we find no merit to

Appellant’s sole assignment of error. Accordingly, we affirm the judgment

of the trial court.

                                    FACTS

       {¶2} On June 24, 2017, in the City of Athens, Edward Cranford,

Appellant, was involved in a motor vehicle collision with another vehicle

operated by Linda Gilden. Ms. Gilden sustained property damage and

physical injuries. Investigating officers who arrived at the scene smelled

alcohol on Appellant’s breath and requested he submit to standardized field

sobriety tests. Appellant refused all tests, including a chemical breath test.

       {¶3} Appellant was arrested and charged with driving while under the

influence, R.C. 4511.19(A)(1)(a); refusing to submit to a chemical test, R.C.

4511.19(A)(2); and failure to yield, Athens City Ordinance 704.27.

Appellant proceeded to a jury trial which occurred on October 26, 2017. At

trial, the State introduced a certified copy of a prior driving under the

influence conviction which occurred in 2009, as State’s Exhibit F. Exhibit F

was a one-page, time-stamped journal entry signed by a judge, indicating
Athens App. No. 17CA39                                                                                  3

Appellant had been found guilty of R.C. 4511.19(A)(1)(a). The journal

entry did not set forth Appellant’s sentence for the prior conviction.

        {¶4} At the trial, defense counsel made a generalized Crim.R. 29

motion for acquittal. The trial court denied the motion. Appellant was

convicted of all charges. Appellant was sentenced to a 180-day jail

sentence, a $1,625.00 fine, two years of probation, and a two-year license

suspension. Portions of Appellant’s jail sentence and fine were suspended

on the condition that he complete the court’s alcohol intervention program.1

        {¶5} This timely appeal followed. The trial court granted Appellant a

stay of execution of sentence pending the outcome of this appeal. Where

necessary, additional pertinent facts are set forth below.

                                 ASSIGNMENT OF ERROR

        I.       THE EVIDENCE WAS INSUFFICIENT TO CONIVCT
                 MR. CRANFORD OF REFUSING TO SUBMIT TO A
                 CHEMICAL TEST BECAUSE THE STATE DID NOT
                 PROVE THAT HE HAD A PRIOR CONVICTION FOR
                 OPERATING A VEHICLE WHILE INTOXICATED.

                                  STANDARD OF REVIEW

        {¶6} Whether a conviction is supported by sufficient evidence is a

question of law that we review de novo. State v Jackson, 4th Dist. Highland

No 18CA7, 2018-Ohio-4289, at ¶ 10, State v. Allah, 4th Dist. Gallia No.

1
 For purposes of sentencing, the trial court merged Appellant’s convictions for R.C. 4511.19(A)(1)(a) and
R.C. 4511.19(A)(2).
Athens App. No. 17CA39                                                                                   4

14CA12, 2015–Ohio–5060, ¶ 8. In making this determination, we must

determine whether the evidence adduced at the trial, if believed, reasonably

could support a finding of guilt beyond a reasonable doubt. State v. Davis,

4th Dist. Ross No. 12CA3336, 2013–Ohio–1504, ¶ 12. “The standard of

review is whether, after viewing the probative evidence and inferences

reasonably drawn therefrom in the light most favorable to the prosecution,

any rational trier of fact could have found all the essential elements of the

offense beyond a reasonable doubt.” Id., citing Jackson v. Virginia, 443 U.S.

307, 319, 99 S.Ct. 2781 (1979).2

                                      LEGAL ANALYSIS

        {¶7} Appellant was convicted of R.C. 4511.19(A)(1)(a), which

provides that “No person shall operate any vehicle, * * * within this state, if,

at the time of the operation, * * * [t]he person is under the influence of

alcohol, a drug of abuse, or a combination of them.” R.C. 4511.19(A)(2)

contains three elements: (1) an OVI/DUI conviction within 20 years of the

current violation, (2) operation of a vehicle while under the influence of

alcohol or drugs, and (3) a refusal to submit to a chemical test while under

arrest for the current OVI. State v. Leasure, 2015-Ohio-5327, 43 N.E. 3d
2
  A motion for acquittal is governed by the same standard as the one for determining whether a verdict is
supported by sufficient evidence. Ohio Crim.R. 29(A). See State v. Wolfe, 2017-Ohio-6876, 83 N.E.3d 956,
(4th Dist.) at ¶ 12. Appellant’s counsel made a generalized Crim.R. 29 motion for acquittal at the close of
the State’s evidence. The motion was denied. Here, Appellant does not discuss his motion or frame his
argument as a challenge to the denial of his motion. Rather, Appellant frames his argument as a
straightforward challenge to the sufficiency of the evidence.
Athens App. No. 17CA39                                                         5

477 (4th Dist.) at ¶ 19; State v. Hoover, 123 Ohio St.3d 418, 2009-Ohio-

4993, 916 N.E.2d 1056, at ¶ 13. “[T]he activity prohibited under R.C.

4511.19(A)(2) is operating a motor vehicle under the influence of drugs or

alcohol”, and a suspect's “refusal to take a chemical test is simply an

additional element that must be proven beyond a reasonable doubt along

with the person's previous * * * [OVI] conviction to distinguish the offense

from a violation of R.C. 4511.19(A)(1)(a).” Id.

      {¶8} Where the existence of a prior offense is an element of a

subsequent crime, the State must prove the prior conviction beyond a

reasonable doubt. The trier of fact must find that the previous conviction

has been established in order to find the defendant guilty of the second

offense. Leasure at ¶ 35, citing State v. Day, 99 Ohio App.3d 514, 517, 651

N.E.2d 52 (12th Dist.1994). “The state must provide sufficient proof

necessary to convince a trier of fact beyond a reasonable doubt of the

existence of every element of an offense. Id.

      {¶9} In this case, Appellant contends that because Exhibit F, the

journal entry of his prior conviction, does not contain his sentence, as

required by Crim.R. 32(C), the State did not prove that he had a prior

conviction for operating a motor vehicle while under the influence of alcohol

or drugs. Under Crim.R. 32(C), a final entry of conviction must contain (1)
Athens App. No. 17CA39                                                          6

the fact of conviction; (2) the sentence; (3) the judge's signature; and (4) the

time stamp indicating the entry upon the journal by the clerk. See also State

v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, at

paragraph one of the syllabus. As a result, Appellant argues the evidence

was insufficient to convict him for refusing to submit to a chemical test,

R.C. 4511.19(A)(2).

      {¶10} In Parma v. Benedict, 8th Dist. Cuyahoga No. 101480, 2015-

Ohio-3340, Benedict argued that the trial court erred when it admitted a

defective certified copy of the journal entry from his prior OVI conviction.

Specifically, Benedict contended that the journal entry was defective

because it was not signed by a judge in compliance with Crim.R. 32(C). The

Bendict court looked to State v. Gwen, 134 Ohio St.3d 284, 2012–Ohio–

5046, 982 N.E.2d 626, paragraph one of the syllabus, wherein the Ohio

Supreme Court held that a judgment entry of conviction under R.C.

2945.75(B)(1) is one method of establishing a prior conviction. Id. at 16. If

the state opts to provide a judgment of conviction under R.C. 2945.75(B)(1),

the entry is required to conform to Crim.R. 32(C). Id. In Appellant’s case,

the parties have conceded that the journal entry of his prior conviction is

defective in that Appellant’s sentence is not set forth in the entry, Exhibit F.
Athens App. No. 17CA39                                                         7

      {¶11} In Benedict, the appellate court found the certified copy of the

journal entry admitted into evidence at trial was clearly defective. The only

endorsement on the journal entry was by a deputy clerk of the city of Parma

Clerk of Courts, not a judge. The appellate court agreed with Benedict that

the journal entry was defective for failing to comply with the requirements

of Crim.R. 32(C), and the trial court erred by admitting the document into

evidence.

      {¶12} The Benedict court observed that the analysis did not end with

acknowledgment of the defective entry. “A judgment entry of conviction is

not the only method by which the City may establish a prior conviction. The

Supreme Court of Ohio also acknowledged that prior convictions may be

established through other means, such as by stipulation and admission.” Id.

at ¶ 18, quoting Gwen at ¶ 12, 14, 982 N.E.2d 626.

       {¶13} Benedict admitted on his booking video that he had a prior

conviction. The video was played in open court for the jury without

objection. On the video, Benedict's statements confirmed the conviction

reflected in the certified copy of the journal entry. Thus, Benedict's

admission that he had a prior conviction for driving while under the

influence of alcohol or drugs was sufficient to render the prior conviction

established.
Athens App. No. 17CA39                                                        8

      {¶14} The Benedict court held that under this circumstance, the trial

court's admission of the defective entry was harmless error. Crim.R. 52(A).

In overruling Benedict’s assignment of error, the court held:

      “Benedict's statement that he had a prior OVI conviction from
      December 2011 at the time he refused to take the breath test
      was properly admitted under Evid.R. 801(D)(2)(a) as an
      admission by a party opponent. Moreover, in light of his
      admission, Benedict cannot show that the outcome of his case
      would have been different but for the entry of the defective
      journal entry into evidence. While we agree with Benedict that
      the trial court erred in admitting the defective journal entry,
      Benedict's admission was sufficient to allow jurors to conclude
      beyond a reasonable doubt that he had a prior OVI conviction.”

      {¶15} Here, Appellant did not admit to any prior conviction at trial.

The only testimony relating to this issue was provided by Athens Police

Officer Justin Boggs, as follows:

      Q:     All right. And what were the OVI, um, sections that you
      cited him under?

      A:    Uh, it would have been the AIA section and, um, the A2
      section, I believe. Because he had a prior offense.

      Q:     Okay. And explain the A2 section to us.

      A:     Well, depending on how many, OVI is an offense that,
      depending on how many you get over a set amount of time, if
      you get, I believe it’s four within twenty, it eventually becomes
      a felony. So, when you have multiple convictions on your
      record, it keeps getting bumped up.

      Q:    Okay. Did you, were you able to determine that Mr.
      Cranford had a prior, a prior offense in the last ten years?
Athens App. No. 17CA39                                                  9

     A:    Yes.

     ***

     Q:     I’m going to hand you what’s been marked as State’s
     Exhibit F. Will you take a look at that for me and tell me what
     that is?

     A:    Uh, this was a jury find, trial finding him guilty of OVI
     and failure to control.* * *It was filed in 2009.

     Q:    All right. So how did you know that the Edward
     Cranford that you arrested that day was the same Edward
     Cranford that had a prior conviction in two thousand nine?

     A:    When we run their driver’s license, it’ll come back on the
     driving record.

     Q:    All right. So you were able to verify through, did you
     use personal identifiers? Like social security number…

     A:    Yeah.

     Q:    … or birthdate?

     A:    Yeah. Through LEADS. Which is the Law
     Enforcement, uh, Automated Database.

     Q:    Did you also check it with his picture?

     A:    yes.

     Q:    …to see if the same person whose driving record said
     there was a prior conviction was the same person that you had
     now arrested?

     A:    Yeah.
Athens App. No. 17CA39                                                         10

      {¶16} In State v. Harris, 2017-Ohio-5594, 92 N.E.3d 1283 (1st Dist.),

the defendant was convicted of R.C. 4511.19(A)(2), refusing to submit to a

chemical test while under arrest for an R.C. 4511.19(A)(1)(a) violation. On

appeal, Harris raised three assignments of error. Pertinent to this appeal,

Harris argued that the trial court erred in denying his Crim.R. 29(C) post-

verdict motion for judgment of acquittal. Harris maintained that the State

failed to present “any” evidence to establish that Harris had had a prior OVI

conviction within 20 years—an element of the offense of driving under the

influence of alcohol as charged under R.C. 4511.19(A)(2). Because Harris’s

Crim.R. 29(C) motion did not set forth the same grounds for dismissal, post-

trial, as he made on appeal, Harris’s arguments were reviewed under a “plain

error” standard.

      {¶17} Harris argued that while the State moved to admit a certified

copy of a 2015 judgment entry from Clermont County convicting Harris of

an OVI offense into evidence as an exhibit, it nonetheless failed to present

evidence sufficient to identify the person named in that entry was, in fact,

Harris—the alleged offender at trial. See R.C. 2945.75(B)(1). Harris did not

claim that the Clermont County document was not a judgment entry as

defined in Crim.R. 32(C). Rather he maintained that the State did not have
Athens App. No. 17CA39                                                         11

“any witness testify about that entry or identify [Harris] as the same Mason

Angilo Harris, Jr.” convicted in Clermont County.

      {¶18} The Harris court found this argument to be “disingenuous at

best” in light of Harris’s in-court stipulation to the prior conviction and his

other actions at trial. The Harris court pointed out that immediately before

the opening statements and outside the presence of the jury, Harris' defense

counsel, the assistant prosecuting attorney, and the trial court discussed the

admission into evidence of Harris' prior OVI conviction as reflected by the

Clermont County judgment entry.

      {¶19} During the pretrial discussion, Harris and his counsel remained

silent and did not challenge the stipulation. The jury was then brought into

the courtroom and the trial began with opening statements. Agreements,

waivers, and stipulations made by a defendant, or by his counsel in his

presence, in open court are binding and enforceable. Id. at 37. See State v.

Post, 32 Ohio St.3d 380, 393, 513 N.E.2d 754 (1987), citing State v.

Robbins, 176 Ohio St. 362, 199 N.E.2d 742 (1964).

      {¶20} The Harris court further pointed out that Harris' other actions in

the trial court confirmed that he understood that he had stipulated to the prior

OVI conviction. The State had notified the prospective jurors, at voir dire,
Athens App. No. 17CA39                                                           12

that “you will hear evidence that the defendant was convicted of an OVI on

February 13th, 2015.” Harris did not contest this statement. Id. at 38.

       {¶21} Also, in the opening statement, the State informed the jurors

that “[i]n this case you will hear evidence that the defendant * * * had a

prior OVI conviction on February 13th of 2015.” Harris did not object, seek

a curative instruction, or move for a mistrial. Then, in his closing argument,

Harris' defense counsel acknowledged to the jury that “Mr. Harris has had a

DUI in the past.” In overruling Harris’s assignment of error, the court

concluded at ¶ 40:

      “Based upon the foregoing exchanges, we hold that Harris had
      entered into a stipulation as to the authenticity and admissibility
      of the certified copy of the February 13, 2015 Clermont County
      judgment entry as proof of his prior OVI conviction. See
      Waheed, 1st Dist. Hamilton No. C-150254, 2016-Ohio-2951, at
      ¶ 10. In light of that stipulation and Harris' acknowledgement of
      the prior OVI conviction in open court, reasonable minds could
      have reached different conclusions as to whether the prior-
      conviction element of the charged crime had been proved
      beyond a reasonable doubt. See R.C. 4511.19(A)(2). Thus the
      trial court did not err, much less commit plain error, in failing
      to grant Harris' Crim.R. 29(C) motion for judgment of acquittal.
      See State v. Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184, at
      syllabus.”

      {¶22} Applying the same reasoning to Appellant’s case, we begin by

pointing out that prior to the start of trial, the court and parties discussed

defense motions in limine regarding Appellant’s prior convictions and

photographs of the accident scene. Defense counsel argued as follows:
Athens App. No. 17CA39                                                       13

      “Uh, yes, Your Honor. I would say in regards to the motions in
      limine I filed yesterday. Your Honor, the first one being in
      regards to prior convictions, Your Honor. Ms. Branner has
      only provided the defense with one, uh, copy; that would be a
      certified record or record that would be admissible
      [unintelligible] document. [Unintelligible] Ohio Rules of
      Evidence nine oh two four, Your Honor. As such, Your Honor,
      we ask that with , as with evidence, uh evidence, admitted
      would be limited to that one, uh, document provided, Your
      Honor.* * *I do understand that she does, as part of her
      evidence, does need to enter in one entire conviction for the A2
      violation, Your Honor. And she has only provided one prior
      conviction, we would ask that there be a limiting instruction
      allowing only one prior conviction to be mention.”

      {¶23} At no time during this exchange, did Appellant object to

admission of the 2009 prior conviction. The trial court granted the defense

motion. Later, the prosecutor stated in opening:

      “* * * The evidence is going to show you today that, as is
      turned out, that man’s breath smelled of alcohol. * * * As it also
      turns out, that man has a past conviction for drunk driving from
      two thousand nine. You see, this man, knows the system.* * *”

Appellant lodged no objection to this characterization of his knowledge and

prior conviction during the opening statement.

      {¶24} As set forth within, Officer Boggs testified about Appellant’s

prior conviction and State’s Exhibit F was introduced during his testimony.

Appellant did not object to this testimony or object to the proffering of

Exhibit F at that time.
Athens App. No. 17CA39                                                       14

      {¶25} Next, at the close of the State’s evidence, when the State moved

to admit the certified conviction into evidence, Appellant again did not

object. “Generally, when a party fails to renew an objection at the time

exhibits are admitted into evidence, that party waives the ability to raise the

admission as error on appeal, unless plain error is shown.” State v. Deckard,

2017-Ohio-8469, 100 N.E.3d 53 (4th Dist.) at ¶ 22, quoting In re. S.L., 56

N.E.3d 1026, 2016-Ohio-5000 (3rd Dist.), at ¶ 37, quoting Odita v. Phillips,

10th Dist. Franklin No. 09AP-1172, 2010-Ohio-4321, at ¶ 56, citing Nicula

v. Nicula, 8th Dist. Cuyahoga No. 84049, 2009-Ohio-2114.

      {¶26} Then, in the State’s close, the prosecutor argued:

      “* * * And then finally, we have to have a conviction within the
      prior twenty years. You will take back with you the certified
      conviction from the clerk’s office of Mr. Cranford’s jury trial in
      two thousand nine, when he was convicted of driving, of OVI.
      That was on January twenty—second, two thousand nine. So
      the evidence is clear. * * * And why did he say no to that test?
      When it could have cleared up all this? He knows how OVI
      investigations work.”

Appellant did not lodge an objection to the closing argument. Finally, in

closing arguments, defense counsel referenced the prior OVI in his remarks

as follows:

      “Miss Branner has you to believe that the prior conviction that
      she talks about it proof that he did everything. It’s not. Has he
      made mistakes in the past? Yes. We all have. That does not
      mean his prior mistakes are a result of any type of conduct that
      you can read into this today.”
Athens App. No. 17CA39                                                        15

       {¶27} Given Appellant’s failure to object to any mention of the prior

conviction in opening and closing arguments, during Officer Boggs’

testimony, and when the State offered the certified copy of the conviction

into evidence, we review his arguments on appeal under the plain error

standard of review. Crim.R. 52(B) affords appellate courts discretion to

correct “[p]lain errors or defects affecting substantial rights”

notwithstanding the accused's failure to meet his obligation to bring those

errors to the attention of the trial court. State v. Rogers, 143 Ohio St.3d 385,

2015-Ohio-2459, 38 N.E.3d 860, ¶ 22. However, the accused bears the

burden of proof to demonstrate plain error on the record. Id.; State v.

Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, at ¶ 16,

and must show “an error, i.e., a deviation from a legal rule” that constitutes

“an ‘obvious’ defect in the trial proceedings,” State v. Barnes, 94 Ohio St.3d

21, 27, 759 N.E.2d 1240 (2002). However, even if the error is obvious, it

must have affected substantial rights, and “[w]e have interpreted this aspect

of the rule to mean that the trial court's error must have affected the outcome

of the trial.” Id.

       {¶28} Having reviewed the record, we conclude that Appellant’s

failure to object when the certified copy of his prior conviction was offered

into evidence is tantamount to a stipulation as to the authenticity and
Athens App. No. 17CA39                                                          16

admissibility of the certified conviction. As in Harris, in light of the

stipulation and other references to the prior conviction in the record, none of

which Appellant challenged, we find that after viewing the probative

evidences and inferences reasonably drawn therefrom in the light most

favorable to the prosecution, any rational trier of fact could have found all

the essential elements of Appellant’s conviction for R.C. 4511.19(A)(2)

beyond a reasonable doubt. As such, we find no merit to Appellant’s

argument that the State failed to provide sufficient evidence of his prior

conviction. Therefore, we overrule the sole assignment of error and affirm

the judgment of the trial court.

                                                  JUDGMENT AFFIRMED.
Athens App. No. 17CA39                                                         17

                           JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE AFFIRMED and costs be
assessed to Appellant.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Athens Municipal Court to carry this judgment into execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Hoover, P.J.: Concurs in Judgment Only.
Abele, J.:    Dissents.
                              For the Court,


                          BY: __________________________________
                              Matthew W. McFarland


                          NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
