City of Hillsboro v. Winston D. Cox

• Decision Date: 19 August 1987
• Docket Number: 87-LW-2784,620
• Parties: CITY OF HILLSBORO, Plaintiff-Appellee, v. Winston D. COX, Defendant-Appellant.
• Court: Ohio Court of Appeals

CITY OF HILLSBORO, Plaintiff-Appellee, v. Winston D. COX, Defendant-Appellant.

No. 620.

87-LW-2784 (4th)

Court of Appeals of Ohio, Fourth District Highland

August 19, 1987

Conrad A. Curren and James B. Grandy, Greenfield, for appellant.

Fred J Beery, Hillsboro City Solicitor, Hillsboro, for appellee.

DECISION AND JUDGMENT ENTRY

STEPHENSON Judge.

This is an appeal from judgments and sentence entered by the Hillsboro Municipal Court (1) upon a jury verdict finding Winston D. Cox, appellant herein, guilty of the offense of being in physical control of a motor vehicle while under the influence of alcohol in violation of Chapter 73, Sec. 73.02 of the Ordinances of the City of Hillsboro, Ohio, and (2) a finding by the court that appellant failed to control a vehicle in violation of Ordinance No. 73.13, followed by imposition of a fine.®1¯ The following errors are assigned.

"1.The Court erred in not granting Appellant's Criminal Rule 29 A Motion for acquital at the end of the State's Case and at the conclusion of all the evidence when the City of Hillsboro failed to present a prima facie case.

2.The Court erred in its charge to the jury relating to the offence (sic) of "physical control.'

3.The Court erred in submitting verdict forms to the Jury in that they gave an unfavorable inference against the Defendant.

4.The Court erred in admitting hearsay testimony over the objection of the Appellant.

5.The findings of guilty are against the manifest weight of the evidence."

Complaints were filed in the court below charging appellant with the offense of operating a motor vehicle with an alcohol breath concentration by weight in excess of one gram or more per 210 liters, which is proscribed by Hillsboro Ord. No. 73.01(3). He was also charged with a failure to control his vehicle in violation of Hillsboro Ord. No. 73.13.®2¯

The charge of operating a motor vehicle with an excess of a specified alcohol limit in the breath was tried to a jury.

The record reflects the following evidence was presented by the prosecution. On October 14, 1985 at around 12:30 P.M. a 1973 Pontiac automobile, owned by appellant, was involved in a one car accident on North West Street in the City of Hillsboro, Ohio. A Mr. Michael B. Delong, who lived nearby, heard the crash. He went to the scene of the accident and observed a telephone pole had been struck causing extensive damage to the vehicle. He observed one man, described as short, exiting the vehicle on the passenger side. He observed a second man coming down from a nearby hill. The witness could not make identification of either of the two men at trial.

Hillsboro police officer Robert J. Cumberland was called as a witness and testified, in substance, that he received a call to investigate the accident. Upon arrival, he observed appellant in the area of the vehicle. Over objection, the officer testified that Mr. Delong told him that appellant was the person coming from the woods and was possibly driving the vehicle.

The officer testified appellant had the odor of alcohol about him and had blood on his fingers. He subsequently claimed the blood was from a cut incurred earlier while repairing a vehicle. When asked if he had been driving the vehicle, appellant stated it had been stolen and that he had just been dropped off from a pickup truck in which he had been riding. The officer then arrested appellant and transported him to the police station. Appellant was given an intoxilizer breath test with a test result reflecting a concentration greater than ten-hundredths of one gram or more by weight of alcohol per 210 liters of his breath.®3¯

At the conclusion of the prosecution's evidence appellant moved for acquittal pursuant to Crim.R. 29(A), which motion was overruled. Appellant then presented the following evidence. Appellant testified, in substance, that he and one Marion Denner were at Denner's house. They left in appellant's automobile with Denner driving. Appellant's explanation for his not driving was that he believed he was under a driver's suspension by the State of Ohio.

He further testified that after they drank alcohol at a bar, they left taking some beer with them in an ice chest. According to appellant, Denner was driving and lost control of the car causing the accident. After the accident, he removed the ice chest and secreted it in nearby woods. He also removed the keys from the ignition. He admitted to falsely telling the officer that the car had been stolen. Mr. Denner testified and his testimony corroborated appellant's testimony that he, not appellant, was driving the vehicle at the time of the accident.

At the conclusion of the evidence, the appellant renewed his motion for acquittal and it was overruled. The court, in its jury instructions, submitted not only the "drunk driving" violation to the jury, but also what the court described as a lesser and included offense of physical control. The jury presumedly found appellant not guilty of the drunk driving offense, but guilty of a physical control violation.

City of Hillsboro ordinances, in the part pertinent to this appeal, are the following in Chapter 73 entitled "Hillsboro-Motor Vehicle Crimes".

"] 73.01DRIVING WHILE INTOXICATED OR DRUGGED.

(A) No person shall operate any vehicle within this city if any of the following apply:

(1) The person is under the influence of alcohol or any drug of abuse, or the combined influence of alcohol and any drug of abuse.

(2) The person has a concentration of ten-hundredths of one percent or more by weight of alcohol in his blood.

(3) The person has a concentration of ten-hundredths of one gram or more by weight of alcohol per 210 liters of his breath.

(4) The person has a concentration of fourteen-hundredths of one gram or more by weight of alcohol per 100 milliliters of his urine.

(B) In any criminal prosecution for a violation of this section or of any ordinance of this city relating to operating a motor vehicle while under the influence of alcohol, the court may admit evidence on the concentration of alcohol in the defendant's blood, breath, or urine at the time of the alleged violation as shown by chemical analysis of the defendant's blood, urine, or other bodily substance withdrawn within two hours of the time of the alleged violation.

] 73.02PHYSICAL CONTROL OF MOTOR VEHICLE WHILE UNDER THE INFLUENCE OF ALCOHOL OR DRUGS OF ABUSE.

(A) No person shall have physical control of a motor vehicle while under the influence of alcohol or drugs of abuse. This violation shall be a lesser included offense of ] 73.01."

Under the second assignment of error it is asserted that the court erred in submitting the physical control offense as a lesser and included offense. We agree for the following reasons.

It is axiomatic that an accused has a constitutional due process right to be informed of the crime with which he is charged so that he may adequately prepare a defense. When an offense charged contains therein lesser and included offenses, this provides sufficient notice that he may be convicted of such lesser offenses. Included offenses need not be set forth in the charge. White v. Maxwell (1963), 174 Ohio St. 186.

"An offense is a lesser included offense, where all the elements of such offense are present with others in the offense charged in the indictment." State v. Hreno (1954), 162 Ohio St. 193 (2d para. of syllabus). Accord State v. Danials (1969), 169 Ohio St. 87.

The elements of an Ord. No. 73.01(A)(3) offense are the following:

(1) Operation of a motor vehicle in the City of Hillsboro.

(2) The person has a concentration of ten-hundredths of one gram or more by weight of alcohol per 210 liters of breath.

The elements of an Ord. No. 73.02 violation are the following:

(1) be in physical control of a vehicle

(2) in the City of Hillsboro

(3) while under the influence of alcohol or drugs.

With respect to the amendment of R.C. 4511.19 to its present form, identical with Ord. No. 73.01, this court stated the following in State v. Puckett, Scioto Co. No. 1516 (Unreported):

"The manifest purpose of the amendment was to give to the prosecution additional methods of prosecution in combating the evils arising from the ingestion of alcohol and/or drugs of abuse and the operation of vehicles. Since the elements required to be proved under each sub-section are not dependent upon proof of elements in other sub-sections, we agree with appellee that the General Assembly intended to create separate offenses under each sub-section. A similar New York statute has been similarly construed to charge separate and distinct offenses. New York v. Fiedler (1973), 75 Misc.2d 446, 384 N.Y.S.2d 72; New York v. McDonough (1972), 39 A.D.2d 188, 333 N.Y.S.2d 128; New York v. Farmer (1975), 36 N.Y.2d 386, 369 N.Y.S.3d 44. Arguably, however, while an accused can be convicted for violation under more than one sub-section, he may be sentenced for only one offense by reason of R.C. 2941.25. This issue is not now before us."

It follows from the above that the requirement under the physical control proscription of being under the influence of alcohol is not an element of proof under Ord. No. 73.01(A)(3). While some argument might be made that a physical control offense is a lesser offense under Ord. No. 73.01(A)(1), manifestly, the elements of a physical control violation are not present in the "per se" offense for which appellant was charged.

The declaration by the city council in Ord. No. 73.02 that such offense shall be an included offense under Ord. No. 73.01 does not make it such where it is not such under the law and contravenes the constitutional right of notice of offenses charged.

The third assignment of error is overruled.

The fifth assignment of...