State v. Marion R. Baxla, Ii
| Decision Date | 13 June 1988 |
| Docket Number | 656,88-LW-2148 |
| Parties | STATE of Ohio, Plaintiff-Appellee, v. Marion R. BAXLA, II, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Eugene D. Smith, Cincinnati, for appellant.
Randall J. Smith, City Law Director, Greenfield, for appellee.
DECISION AND JUDGMENT ENTRY
This is an appeal from a judgment of conviction and sentence entered upon a jury verdict by the Highland County Court finding Marion R. Baxla, II,®1¯ defendant below and appellant herein, guilty of driving while under suspension in violation of R.C. 4507.38(A), a misdemeanor of the first degree.®2¯
Appellant assigns the following errors:
I."THE COURT ERRED IN OVERRULING DEFENDANT'S RULE 29 MOTION FOR DISMISSAL AT THE END OF THE STATE'S CASE AND AT THE END OF ALL THE EVIDENCE."
II."THE COURT ERRED IN ADMITTING INTO EVIDENCE EXHIBIT NO. 1, AN ENTRY OF CONVICTION OF A MARION R. BAXLA IN A PRIOR CASE, IN ANOTHER COURT WITHOUT PROPER AUTHENTICATION AND IDENTIFICATION OF THE PERSON NAMED IN THE ENTRY."
III."THE VERDICT IS NOT SUSTAINED BY SUFFICIENT EVIDENCE."
On August 22, 1986, a complaint was filed which averred that on that date, at 2:36 A.M., appellant operated a 1986 black two door Ford automobile on the alley of the 200 block of Jefferson Street in the City of Greenfield, Highland County, Ohio, while his operator's license was under suspension, in violation of R.C. 4507.38. Appellant was further charged with driving while intoxicated, in violation of R.C. 4511.19(A)(1), and squealing tires. On August 29, 1986, appellant was arraigned upon the aforesaid charges and entered pleas of not guilty.
On January 14, 1986, a jury trial was held at which the following pertinent evidence was adduced. Patrolman Timothy Fryer of the Greenfield Police Department testified that on August 22, 1986 at approximately 2:30 A.M. he and City of Greenfied Patrolmen Lyle Delph and James Calhoun were sitting in a marked police car near Jefferson Street, that they saw a black Mustang automobile accelerate rapidly causing a large cloud of smoke and squealing tires, and that the car came to a screeching stop in back of a truck. Patrolman Fryer further testified that appellant and another man then exited the car and came towards the police cruiser, that appellant had been operating the car, that appellant was given a field sobriety test whereupon he was placed under arrest, and that after the patrolman ran a computer check on appellant's driver's license, he charged appellant with driving without an operator's license. According to Patrolman Fryer's testimony, these events all occurred within the City of Greenfield and he knew appellant, knew appellant's name, and knew who appellant was when he walked back towards the police car.
The testimony of Patrolmen James Calhoun and Lyle Delph was in general accordance with Patrolman Fryer's testimony. Patrolman Calhoun further testified that he knew appellant. At the conclusion of the state's testimony, appellee requested the introduction into evidence of a certified copy of a June 27, 1986 Chillicothe Municipal Court entry in State v. Marion R. Baxla, II, Case No. 85 TRC 11742, wherein appellant's operator's license was suspended for 180 days, with the license suspension deferred until July 29, 1986.
Appellant objected to the introduction of such copy into evidence on the basis that the entry's reference to appellant's conviction for driving while intoxicated would not properly be before the jury, the copy was scratched on and marked up and hence was unacceptable as a certified copy, and that the best evidence of license suspension would be a record of the Bureau of Motor Vehicles denoting appellant's suspension. The trial court, pursuant to one of appellant's objections, placed tape over that portion of the Chillicothe Municipal Court judgment entry that did not refer to the license suspension, and thereafter overruled appellant's other objections and introduced the entry into evidence.
After the introduction of the certified copy of the judgment entry, appellee rested and appellant moved for a judgment of acquittal pursuant to Crim.R. 29(A) on the grounds that there was no in-court identification of appellant as the man sitting in the chair next to him, that there was insufficient evidence that appellant was driving while intoxicated, and that there was no testimony the man in the Chillicothe Municipal Court entry was the same as appellant. The trial court overruled appellant's Crim.R. 29(A) motion whereupon appellant rested and renewed his Crim.R. 29(A) motion, which the trial court again overruled. The jury subsequently returned verdicts finding appellant guilty of driving while under suspension, guilty of squealing tires, and not guilty of driving while intoxicated. On January 14, 1987, the trial court entered a judgment reflecting the earlier jury verdict. On January 21, 1987, the trial court entered a judgment sentencing appellant to pay a fine of $1,000 and a jail term of six months, ninety days of which would be suspended upon compliance with certain conditions.
Appellant's first assignment of error asserts that the trial court erred in overruling appellant's Crim.R. 29(A) motions for judgment of acquittal at the conclusion of appellee's case and at the close of all the evidence. Appellant argues that appellee failed to prove venue and further failed to prove the identity of appellant by an incourt identification.
Crim.R. 29(A) provides in pertinent part as follows:
"The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses "
Pursuant to Crim.R. 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. State v. Bridgeman (1978), 55 Ohio St.2d 261; State v. Morales (1987), 32 Ohio St.3d 252, 256; State v. Apanovitch (1987), 33 Ohio St.3d 19, 23. A trial court shall not overrule a motion for acquittal made pursuant to Crim.R. 29(A) when, viewing the evidence in a light most favorable to the government, a reasonable mind could not fairly find each element of the offense charged beyond a reasonable doubt. Cincinnati v. Robben (1982), 8 Ohio App.3d 203. Appellant initially asserts that appellee failed to prove that the venue of the charged offenses was in the City of Greenfield in Highland County, Ohio.
The venue of a criminal case shall be as provided by law. Crim.R. 18(A). R.C. 2901.12 provides in pertinent part:
"(A) The trial of a criminal case in this state shall be held in a court having jurisdiction of the subject matter, and in the territory of which the offense or any element thereof was committed."
It has been held that express evidence to establish venue is not necessary if, from all the facts and circumstances in the case, it is established beyond a reasonable doubt, that the crime was committed in the county and state in the indictment. State v. Khong (1985), 29 Ohio App.3d 19, 30; State v. Dickerson (1907), 77 Ohio St. 34; State v. Collins (1977), 60 Ohio App.2d 116; State v. Neff (1957), 104 Ohio App. 289; 1 Wharton's Criminal Evidence (14th Ed.1985), Sec. 16.
In the case at bar, the trial court would be permitted to take judicial notice that the streets and buildings near the scene of the charged offenses are in the City of Greenfield, that Greenfield is located in Highland County, and, finally, that Highland County is in the State of Ohio. See, e.g. Collins, supra at p. 125; Neff, supra at p. 291. Moreover, Patrolman Fryer testified that the offenses occurred in the City of Greenfield and that he lived "here in Greenfield", inferring that the Greenfield he referred to in his testimony was in Highland County, Ohio. Therefore, there was sufficient evidence of venue such that reasonable minds could have reached different conclusions as to whether it had been proved beyond a reasonable doubt, and the trial court properly overruled appellant's motion for judgment of acquittal.
Furthermore, the general rule is that an appellate court will not consider any error which counsel for a party complaining of the trial court's judgment could have called but did not call to the trial court's attention at a time when such error could have been avoided or corrected by the trial court. State v. Awan (1986), 22 Ohio St.3d 120, 122; State v. Childs (1968), 14 Ohio St.2d 56, paragraph three of the syllabus; State v. Williams (1977), 51 Ohio St.2d 112, 117. Herein, in that appellant did not assert below insufficiency of proof of venue as one of the grounds for his Crim.R. 29(A) motion for judgment of acquittal, he arguably waived the raising of such error on appeal.
Appellant next argues that the trial court erred in overruling appellant's Crim.R. 29(A) motions for judgment of acquittal where there was no in-court identification. The general rule is that to warrant conviction the evidence must establish beyond a reasonable doubt the identity of the accused as the person who committed the crime. 1 Wharton's Criminal Evidence (14th Ed.1985), Sec. 15.
An identification witness need not positively identify the defendant where there is other circumstantial evidence supporting the witness' identification of the accused. State v. Kilgore (1982), Athens Co.App. No. 1108 unreported. Identity may be established by direct evidence, but direct evidence of identification is not required and circumstantial evidence may be sufficient to establish...
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