[Cite as State v. Wayman, 2019-Ohio-1194.]




                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                         CLERMONT COUNTY




 STATE OF OHIO,                                 :

        Appellee,                               :     CASE NOS. CA2018-06-045
                                                                CA2018-06-046
                                                :
     - vs -                                                   OPINION
                                                :              4/1/2019

 BRIAN KENT WAYMAN,                             :

        Appellant.                              :




    CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                Case Nos. 2017 CR 000394 and 2017 CR 000719


D. Vincent Faris, Clermont County Prosecutor, Nick Horton, 76 South Riverside Drive, 2nd
Floor, Batavia, Ohio 45103 for appellee

W. Stephen Haynes, Clermont County Public Defender, Robert F. Benintendi, 302 East
Main Street, Batavia, Ohio 45103 for appellant



        S. POWELL, J.

        {¶ 1} Appellant, Brian Kent Wayman, appeals from his conviction in the Clermont

County Court of Common Pleas for operating a vehicle while under the influence of alcohol

or drugs. For the reasons outlined below, we affirm Wayman's conviction.
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                                    Facts and Procedural History

        {¶ 2} On June 27, 2017, the Clermont County Grand Jury returned an indictment

charging Wayman with operating a vehicle while under the influence of alcohol or drugs in

violation of R.C. 4511.19(A)(1)(a).1 Pursuant to that statute, and as relevant here, no

person shall "operate" any vehicle, if, at the time of the operation, the person is under the

influence of alcohol, a drug of abuse, or a combination of them.

        {¶ 3} According to the bill of particulars, the charge arose after Wayman was

discovered by Officer Jeffrey Wolf with the Goshen Police Department "passed out" in his

vehicle with an open 16 ounce can of beer in the center console cupholder. The vehicle

was still running and in gear facing against traffic "stopped halfway on pavement and

halfway on grass with its brake lights illuminated." Upon being discovered by Officer Wolf,

the record indicates Wayman exhibited a moderate odor of an alcoholic beverage on his

person, bloodshot and glassy eyes, and slurred speech. The record also indicates Wayman

admitted to consuming three beers "earlier but not recently."

        {¶ 4} After being removed from the vehicle, Wayman agreed to submit to

standardized field sobriety tests: the horizontal gaze nystagmus test, the walk-and-turn test,

and the one-leg-stand test. Wayman exhibited multiple clues on each of the three tests.

Two additional tests, the modified Romberg balance test and the lack-of-convergence test,

were also performed. These two additional tests also indicated Wayman was impaired.

Wayman thereafter admitted to Officer Wolf that, if tested, he would test positive for

marijuana.


1. As part of this indictment, Wayman was also charged with operating a vehicle while under the influence of
alcohol or drugs in violation of R.C. 4511.19(A)(2)(a). A subsequent indictment was thereafter returned
charging Wayman with possession of heroin and aggravated possession of drugs. Due to the arguments
raised herein, and for purposes of this appeal, this court will limit its analysis to the single count charging
Wayman with operating a vehicle while under the influence of alcohol or drugs in violation of R.C.
4511.19(A)(1)(a).
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       {¶ 5} Wayman consented to the search of his vehicle. During the search, officers

discovered "five plastic snorting straws, 3 clear cellophane wrappers containing white

powder residue, and a small piece of paper containing an off-white substance." The record

indicates the white powder residue and off-white substance located in the vehicle tested

positive for both heroin and fentanyl. The record also indicates Wayman had previously

been convicted of ten prior offenses for operating a vehicle while under the influence of

alcohol or drugs.

       {¶ 6} A one-day bench trial was held on January 30, 2018. During trial, Wayman

argued the evidence was insufficient to prove beyond a reasonable doubt that he had

"operated" the vehicle while under the influence of alcohol or drugs. In support, although

acknowledging he was impaired as a result of snorting heroin/fentanyl prior to when Officer

Wolf discovered him "passed out" in the vehicle's driver's seat, Wayman argued the

evidence proved only that he became impaired sometime after he pulled the vehicle over

to the side of the road and parked. Therefore, according to Wayman, the state failed to

prove he had "operated" the vehicle while under the influence of alcohol or drugs as that

term is defined by R.C. 4511.01(HHH).

       {¶ 7} On April 25, 2018, the trial court issued a detailed 19-page decision finding

Wayman guilty of operating a vehicle while under the influence of alcohol or drugs. In so

holding, the trial court soundly rejected Wayman's claim that he became impaired only after

he pulled the vehicle over to the side of the road and parked. The trial court instead was

"convinced that the defendant used the heroin before he drove his vehicle [to where he was

discovered by Officer Wolf], where he stopped and fell asleep or became unconscious."

The trial court based its decision on four findings.

       {¶ 8} Initially, the trial court rejected Wayman's claim and found Wayman guilty


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upon finding:

                First, [the witnesses who first noticed the vehicle] was so
                alarmed in observing the defendant's driving and idling on the
                road that he believed the defendant to be impaired and in need
                of emergency assistance. [The witness] believed this even
                while the defendant was still sitting upright in his car. His
                description of the defendant's driving and parking seems
                consistent with the description of someone who has already
                used drugs. The defendant idled in his car in the middle of the
                road in front of [the witness'] home, and then "ran up" the other
                side of the road and stopped in the opposite direction of traffic.
                The defendant chose to rest his car in an area where parking
                was prohibited and with the car still halfway on the road.

(Emphasis sic.)

        {¶ 9} The trial court also rejected Wayman's claim upon finding:

                Second, given the time constraints the court does not believe
                that the defendant had time to use the drugs during the 30
                seconds or less that [the witness] was gone to get his cell phone
                in his home. The defendant testified that he used cellophane to
                crush the heroin/fentanyl and then snorted it.2 Because he was
                found with the cellophane in his pocket and the remaining
                heroin/fentanyl in his console inside of a prescription pill bottle,
                he must have also needed time, after crushing and snorting the
                drugs, to put these items away before [the witness] returned and
                found him lying across the front seat. The court does not believe
                that the defendant could have started and concluded this
                process all in 30 seconds or less.

        {¶ 10} The trial court next rejected Wayman's claim upon finding:

                Third, the place the defendant chose to stop would have been
                an unlikely and poor spot to stop to use drugs. The defendant
                had been idling in front of [the witness], who was standing in his
                driveway, and [Wayman] even drove within 10 feet of [the
                witness] at one point. The defendant then chose to stop his car,
                and, according to the defendant's version of events, used the
                heroin/fentanyl in a spot and at a time when there was another
                person actively about in his car's vicinity. Given the fact that the
                defendant idled in the road 10 feet away from [the witness] for a
                period of time, it is likely he was aware that [the witness] was in


2. This court was confused as to how Wayman could have used "cellophane" to crush the heroin/fentanyl
before snorting it. Our confusion, however, is alleviated by Wayman's testimony indicating that he "crush[ed]
'em up in the cellophane, and snort[ed] 'em."
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              and around his driveway. The defendant being less than
              discrete about his presence. Stated differently, the court does
              not believe that the defendant chose a conspicuous spot to use
              illegal drugs that was directly in front of a third party witness.

       {¶ 11} Finally, the trial court rejected Wayman's claim and found Wayman guilty upon

finding:

              Moreover, the court does not believe the defendant's testimony
              that he placed his car in park and turned it off before using the
              heroin. Instead, the court believes [the witness'] testimony that
              the car was left running and Officer Wolf's testimony that the car
              was in gear. The court finds it doubtful that the defendant would
              have gone through the process of using drugs without at least
              placing his car in park first. In sum, the court believes that the
              defendant used the heroin/fentanyl, drove his car on [the street
              where it later came to a stop], realized he was having a medical
              issue due to the unknown fentanyl, and just barely pulled over
              to the side of the road in time to lose consciousness or fall
              asleep.

       {¶ 12} On June 12, 2018, the trial court held a sentencing hearing. After hearing

mitigation and allocution from Wayman and his trial counsel, the trial court sentenced

Wayman to serve a total of 36 months in prison. The trial court also ordered Wayman to

pay a fine of $1,350, notified Wayman that he would be subject to an optional postrelease

control term of up to three years, and advised Wayman that his driver's license would be

suspended for a period of 15 years.

                                           Appeal

       {¶ 13} Wayman now appeals from his conviction, raising two assignments of error

for review. In support of his two assignments of error, Wayman initially argues his conviction

was not supported by sufficient evidence since the evidence did not prove beyond a

reasonable doubt that he was "operating" a vehicle while under the influence of alcohol or

drugs. Wayman also argues the trial court's decision finding he was "operating" a vehicle

while under the influence was against the manifest weight of the evidence. We disagree.


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                                    Standard of Review

       {¶ 14} When reviewing the sufficiency of the evidence underlying a criminal

conviction, an appellate court examines the evidence in order to determine whether such

evidence, if believed, would convince the average mind of the defendant's guilt beyond a

reasonable doubt. State v. Intihar, 12th Dist. Warren No. CA2015-05-046, 2015-Ohio-5507,

¶ 9. The relevant inquiry is "whether, after viewing the evidence in a light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of the

crime proven beyond a reasonable doubt." State v. Jenks, 61 Ohio St.3d 259 (1991),

paragraph two of the syllabus. The test for sufficiency therefore "requires a determination

as to whether the state has met its burden of production at trial." State v. Boles, 12th Dist.

Brown No. CA2012-06-012, 2013-Ohio-5202, ¶ 34, citing State v. Wilson, 12th Dist. Warren

No. CA2006-01-007, 2007-Ohio-2298, ¶ 33.            When evaluating the sufficiency of the

evidence, this court must "defer to the trier of fact on questions of credibility and the weight

assigned to the evidence." State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, ¶ 132.

       {¶ 15} On the other hand, a manifest weight of the evidence challenge examines the

"inclination of the greater amount of credible evidence, offered at a trial, to support one side

of the issue rather than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177,

2012-Ohio-2372, ¶ 14. To determine whether a conviction is against the manifest weight

of the evidence, this court must look at the entire record, weigh the evidence and all

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

resolving the 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. Morgan, 12th Dist. Butler Nos. CA2013-08-146 and CA2013-08-147,

2014-Ohio- 2472, ¶ 34. This court will overturn a conviction due to the manifest weight of


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the evidence only in extraordinary circumstances when the evidence presented at trial

weighs heavily in favor of acquittal. State v. Blair, 12th Dist. Butler No. CA2014-01-023,

2015-Ohio- 818, ¶ 43.

       {¶ 16} "'The legal concepts of sufficiency of the evidence and weight of the evidence

are both quantitatively and qualitatively different.'" State v. Couch, 12th Dist. Butler No.

CA2016-03-062, 2016-Ohio-8452, ¶ 9, quoting State v. Thompkins, 78 Ohio St.3d 380, 386

(1997). However, although the two concepts are different, a finding that a conviction is

supported by the manifest weight of the evidence is also dispositive of the issue of

sufficiency. State v. Jones, 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, ¶ 19.

Therefore, "[b]ecause sufficiency is required to take a case to the jury, a finding that a

conviction is supported by the weight of the evidence must necessarily include a finding of

sufficiency." State v. Hart, 12th Dist. Brown No. CA2011-03-008, 2012-Ohio-1896, ¶ 43.

                        R.C. 4511.19(A)(1)(a): Operating a Vehicle

       {¶ 17} As noted above, Wayman was convicted of operating a vehicle while under

the influence of alcohol or drugs in violation of R.C. 4511.19(A)(1)(a). This statute provides

that no person shall "operate" any vehicle, if, at the time of the operation, the person is

under the influence of alcohol, a drug of abuse, or a combination of them. Therefore, based

on the plain language of R.C. 4511.19(A)(1)(a), to prove the offense "the state must show

the confluence of the ingestion of [alcohol or] drugs and the operation of the vehicle." State

v. Anderson, 1st Dist. Hamilton No. C-160920, 2017-Ohio-8641, ¶ 33.

                        R.C. 4511.01(HHH): Definition of "Operate"

       {¶ 18} The only issue in dispute is whether the trial court erred by finding Wayman

was "operating" or had "operated" a vehicle while under the influence of alcohol or drugs.

Pursuant to R.C. 4511.01(HHH), the term "operate" means "to cause or have caused


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movement of a vehicle, streetcar, or trackless trolley." The statute "employs both the

present tense ('to cause') and the past tense (to 'have caused') in relation to the movement

of a vehicle. The past tense indicates an action already completed." State v. Anderson,

1st Dist. Hamilton No. C-160920, 2017-Ohio-8641, ¶ 16. "[T]o 'have caused' movement of

a vehicle is a fact that may be proved by circumstantial evidence, which inherently

possesses the same probative value as direct evidence." State v. Halpin, 2d Dist. Clark

No. 07CA78, 2008-Ohio-4136, ¶ 24, citing State v. Jenks, 61 Ohio St.3d 259 (1991).

       {¶ 19} The definition of "operate" under R.C. 4511.01(HHH) requires "actual

movement" of a vehicle and not merely "potential movement." State v. Burnett, 2d Dist.

Clark No. 2017-CA-44, 2018-Ohio-109, ¶ 16.           The statute therefore eliminates from

consideration "drunk radio listeners, or people who use their cars as a four-wheeled, heated

hotel room" from being convicted of operating a vehicle while under the influence of alcohol

or drugs. State v. Schultz, 8th Dist. Cuyahoga No. 90412, 2008-Ohio-4448, ¶ 19. "[A]

person who is found passed out in his vehicle on the side of the highway" may be convicted

of operating a vehicle while under the influence of alcohol or drugs "because the jury could

infer that the vehicle was moved to that location." Id. at ¶ 25.

       {¶ 20} There can be no question that Wayman operated the vehicle prior to when he

was found by Officer Wolf "passed out" in the vehicle's driver's seat. Wayman admitted as

much in his testimony before the trial court. But, was there sufficient evidence to prove

beyond a reasonable doubt that Wayman had "operated" the vehicle while under the

influence of alcohol or drugs before Officer Wolf's arrival? Based on a full and thorough

review of the record, we find that there was ample evidence, both direct and circumstantial,

to support the trial court's decision.

       {¶ 21} The record is clear, and Wayman does not dispute, that Officer Wolf found


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him impaired and under the influence of heroin/fentanyl "passed out" in the vehicle's driver's

seat with an open 16 ounce can of beer in the center console cupholder. The record is also

clear that when Officer Wolf found Wayman "passed out" that the vehicle was still running

and in gear parked facing against traffic stopped halfway on the pavement and halfway on

the grass with its brake lights illuminated. Similar facts have been found sufficient for the

trier of fact to conclude beyond a reasonable doubt that an impaired offender had "operated"

a vehicle while under the influence of alcohol or drugs. These cases include, but are not

limited to, the following.

               1. State v. Anthony, 5th Dist. Stark No. 2015CA00226, 2016-
               Ohio-2905, ¶ 23-25 (impaired offender had "operated" a vehicle
               that was found disabled on a public street where a witness had
               observed the offender in the driver's seat on two separate
               occasions ten minutes apart and where no one else at the scene
               claimed to have driven the vehicle to the location where the
               vehicle had broken down);

               2. State v. Jamison, 9th Dist. Summit No. 27664, 2016-Ohio-
               5122, ¶ 34 (impaired offender had "operated" a vehicle that was
               still running and in gear where the offender was found "slumped
               over and sleeping" in the driver's seat with the left turn signal
               activated);

               3. City of Cleveland v. Sheppard, 8th Dist. 103166, 2016-Ohio-
               7393, ¶ 22-24 (impaired offender had "operated" a vehicle that
               was still running with the key in the ignition that was improperly
               parked halfway on the street where the offender was found
               asleep in the driver's seat);

               4. City of Cleveland v. Turner, 8th Dist. Cuyahoga No. 99183,
               2013-Ohio-3145, ¶ 14-15 (impaired offender had "operated" a
               vehicle that was found stopped in the middle of the road
               blocking two lanes of traffic where the offender was "sitting in
               the driver's seat with the keys in the ignition, making noises and
               pretending to drive the car");

               5. State v. Barnard, 5th Dist. Stark No. 2010-CA-00082, 2010-
               Ohio-5345, ¶ 30-32 (impaired offender had "operated" a vehicle
               that was found stranded on a median after having run over a
               number of orange traffic cones where the offender was "alone
               and strapped into the driver's seat");

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              6. State v. Varholic, 8th Dist. Cuyahoga No. 89627, 2008-Ohio-
              962, ¶ 34-35 (impaired offender had "operated" a vehicle
              observed by a witness driving erratically prior to the responding
              officer finding the vehicle parked on the wrong side of the street
              with the vehicle still running where the offender was "slumped
              behind the wheel" with his eyes closed and emanating a
              moderate odor of an alcoholic beverage on his person);

              7. State v. Adams, 3d Dist. Crawford No. 3-06-24, 2007-Ohio-
              4932, ¶ 19-22 (impaired offender had "operated" a vehicle found
              stopped at a stop sign in the middle of the street blocking traffic
              with the vehicle still running where the offender was "slooped"
              over the steering wheel and emanating a strong odor of an
              alcoholic beverage on his person).

       {¶ 22} Despite analogous caselaw directly contradicting Wayman's claims, Wayman

nevertheless argues his conviction must be reversed since his testimony was the only

evidence presented at trial that placed a specific time on when he snorted the

heroin/fentanyl. This may very well be true. But the trial court is not required to accept

Wayman's testimony that he snorted the heroin/fentanyl only after he pulled the vehicle off

to the side of the road and parked. The trial court, as the trier of fact, was free to believe

all, part, or none of Wayman's testimony. State v. Davis, 12th Dist. Butler No. CA2017-04-

049, 2017-Ohio-8535, ¶ 20. This includes Wayman's testimony as to when he claims he

snorted the heroin/fentanyl.

       {¶ 23} The trial court found Wayman's testimony that he snorted the heroin/fentanyl

only after he pulled the vehicle off to the side of the road and parked was not credible.

Again, as the trial court found:

              [T]he court does not believe the defendant's testimony that he
              placed his car in park and turned it off before using the heroin.
              Instead, the court believes [the witness'] testimony that the car
              was left running and Officer Wolf's testimony that the car was in
              gear. The court finds it doubtful that the defendant would have
              gone through the process of using drugs without at least placing
              his car in park first. In sum, the court believes that the defendant
              used the heroin/fentanyl, drove his car on [the street where the

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              vehicle ultimately came to a stop], realized he was having a
              medical issue due to the unknown fentanyl, and just barely
              pulled over to the side of the road in time to lose consciousness
              or fall asleep.

The record fully supports the trial court's findings.

       {¶ 24} Wayman also argues his conviction must be reversed since the trial court

made an incorrect factual finding. Specifically, Wayman argues the trial court erred by

finding the witness who first noticed his vehicle "was so alarmed in observing the

defendant's driving and idling on the road that he believed the defendant to be impaired and

in need of emergency assistance." Wayman supports this argument based on the following

exchange:

              Q: Okay. You said you saw Mr. Wayman stopped in the middle
              of the roadway, and he was stopped in the middle of the
              roadway for a minute or two, correct?

              A: Yes.

              Q: Okay. Could you see what he was doing at that time?

              A: No. He was just sit – sitting in the car?

              Q: Okay. And he's still sitting up at this time?

              A: Yes.

              Q: Okay. And so you didn't see him do anything, you just saw
              him sitting in the car for a minute or two?

              A: Yes.

              Q: And that caused you concern, correct?

              A: I didn't [be]come concerned until he rolled past me and pulled
              up and kind of veered off into that vacant lot.

(Emphasis added.)

       {¶ 25} Because his conviction is dependent upon when he snorted the

heroin/fentanyl, Wayman places great significance on this witness' testimony that he was

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not concerned by Wayman merely idling in the street. According to Wayman, this testimony,

when taken in conjunction with his own testimony that he did not snort the heroin/fentanyl

until after he pulled the vehicle to the side of the road and parked, indicates he was not

impaired when he was observed "operating" the vehicle.

         {¶ 26} But, even when accepting Wayman's argument as true, the fact remains that

the trial court found this witness was also "alarmed" by Wayman's driving. Again, as this

witness testified, "I didn't [be]come concerned until he rolled past me and pulled up and kind

of veered off into that vacant lot." This makes sense when considering the witness had yet

to observe anything of significance that would cause him to believe Wayman was impaired

until after he "rolled past," "pulled up," and "kind of veered off into that vacant lot" ultimately

coming to a stop facing against traffic parked halfway on the street and halfway on the

grass.

         {¶ 27} Wayman believes this single incorrect factual finding requires his conviction

be reversed. However, by focusing on this singular irregularity, Wayman is ignoring all of

the other evidence presented at trial to support the trial court's guilt finding. Even when

ignoring the fact that Wayman exhibited multiple clues indicating he was impaired, there is

no dispute that Officer Wolf found Wayman "passed out" in his vehicle with an open 16

ounce can of beer in the center console cupholder. The vehicle was still running and in

gear facing against traffic stopped halfway on the street and halfway on grass with its brake

lights still illuminated. Wayman also exhibited a moderate odor of an alcoholic beverage

on his person, bloodshot and glassy eyes, and slurred speech. Wayman further admitted

to consuming three beers earlier in the day and to snorting heroin/fentanyl at some point

after getting into the vehicle.    The overwhelming evidence supporting Wayman's guilt

indicates this minor misstep in the trial court's factual findings had little to no impact on the


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trial court's decision. Wayman's claim otherwise lacks merit.

       {¶ 28} Wayman next argues his conviction must be reversed since this same witness

never testified that he believed Wayman was impaired when Wayman drove past him. We

agree that this witness never explicitly testified that he believed Wayman was impaired.

This witness, however, still found it necessary to call 9-1-1 to report the suspicious activity

that he had just observed directly in front of his house; specifically, that he had just

witnessed a vehicle that had been idling in the street for several minutes drive past him and

come to a stop facing against traffic parked halfway on the street and halfway on the grass.

These observations, taken in context with what Officer Wolf found once he arrived at the

scene, supports the trial court's decision finding Wayman guilty of "operating" a vehicle

while under the influence of alcohol or drugs. Wayman's claim otherwise again lacks merit.

                                         Conclusion

       {¶ 29} Wayman's conviction for operating a vehicle while under the influence of

alcohol or drugs was supported by sufficient evidence and was not against the manifest

weight of the evidence. The overwhelming evidence presented at trial, both direct and

circumstantial, fully supports the trial court's finding of guilt. Therefore, finding no merit to

any of the arguments raised herein, Wayman's two assignments of error lack merit and are

overruled.

       {¶ 30} Judgment affirmed.


       HENDRICKSON, P.J., and PIPER, J., concur.




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