State v. Sinclair
| Decision Date | 08 October 2020 |
| Docket Number | Case No. 2019CA00180 |
| Parties | STATE OF OHIO Plaintiff-Appellee v. THOMAS A. SINCLAIR, II. Defendant-Appellant |
| Court | Ohio Court of Appeals |
OPINION
For Plaintiff-Appellee
KRISTEN BATES AYLWARD
CANTON LAW DIRECTOR
JASON P. REESE
CANTON CITY PROSECUTOR
KATIE ERCHICK GILBERT
Deputy Chief Counsel
218 Cleveland Avenue S.W.
Box 24218
Canton, OH 44701-4218
For Defendant-Appellant
THOMAS A. SINCLAIR, II.
2440 Glenmont Road N.W.
Canton, OH 44708
{¶1} Defendant-appellant Thomas A. Sinclair, II ["Sinclair"] appeals his conviction and sentence after a jury trial in the Canton Municipal Court, Stark County, Ohio.
{¶2} Sergeant Shane Cline and Deputy Christian Paris of the Stark County Sheriff's Office were conducting a Violent Interdiction Patrol ["VIP"] on June 29, 2019. At approximately 1:00 a.m. the pair was traveling northbound on Whipple Avenue. The roadway was under construction at that time with manholes protruding from the roadway every 30 yards where the road surface had been removed. Sergeant Cline observed a car driving all the way over so that the manholes were on the right side of the car's passenger side tires. The car made a left turn onto Thirteenth Street, Northwest. Sergeant Cline and Deputy Paris continued north on Whipple and turned left onto Fourteenth Street. The pair cut through an alley, tuned left onto Thirteenth Street, and waited at the intersection for the car to come past. As the pair saw the car traveling west on Thirteenth Street, they noticed that the car's headlights were not turned on.
{¶3} The in-cruiser video camera was full. However, the interaction was recorded on Deputy Paris's body camera. Sergeant Cline is seen speaking to the driver of the car who was identified as Sinclair. Sergeant Cline asked Sinclair if he lived in the area. Sinclair responded no, he had pulled over to make a phone call. Sinclair told the deputy that he had turned his headlights off while he was in the process of pulling off the roadway to park the car. Sergeant Cline testified that he could smell the odor of alcohol coming from the car. He further testified that Sinclair's eyes were bloodshot and really watery. Sinclair told Sergeant Cline that he had come from a nearby restaurant where he had two beers. Sergeant Cline asked Sinclair to step out of the car. He continued to smell alcohol and also believed that he could smell marijuana. Sinclair told the deputies that he did not smoke marijuana and did not have any on his person or in his car. The deputies did not find any marijuana. Sergeant Cline testified that as he continued to speak to Sinclair, he could notice slurred speech and a slight swaying. When asked by Sergeant Sinclair to perform the Standardized Field Sobriety Tests ["SFST"] Sinclair said that he was not comfortable with that, preferring instead to do a "professional" breath test. Sinclair was placed under arrest and transported to the Stark County Jail for testing on the Breathalyzer 8000. The test revealed Sinclair had a Blood Alcohol Content ["BAC"] of 0.112.
{¶4} Sinclair was originally tried on the charge of Operating a Motor Vehicle While Under the Influence of Alcohol ["Under the Influence"] in violation of R.C. 4511.19(A)(1)(a). The jury in that trial was unable to reach a verdict. By Judgment Entry filed August 23, 2019 the trial court declared a mistrial. [Docket Entry No. 14].
{¶5} On September 20, 2019, the state moved to amend the charge to a "prohibited level" violation pursuant to R.C. 4511.19(A)(1)(d). [Docket Entry No. 17]. Sinclair filed a combined objection to the motion to amend and a motion to suppress on October 9, 2019. [Docket Entry No. 18]. By Judgment Entry filed October 10, 2019, the trial court granted the state's motion to amend. However, the entry amended the charge to "Ohio Revised Code.19(A)(1)(j)(viii)(II)." [Docket Entry No. 19]. The court scheduled an evidentiary hearing on Sinclair's motion to suppress for October 15, 20191. [Docket Entry No. 21].
{¶6} On October 17, 2019, the state filed a motion to modify the trial court's October 10, 2019 Judgment Entry to correct the Ohio Revised Code Section to 4511.19(A)(1)(d). [Docket Entry No. 23].
{¶7} By Judgment Entry filed October 17, 2019, the trial court ruled that Sinclair's motion to suppress did not state with particularity the issues regarding the Intoxilyzer 8000 and did not put the state on notice of the issues Sinclair intended to raise about the Intoxilyzer 8000. [Docket Entry No. 24]2. The trial court permitted the suppression hearing to go forward on the issue of probable cause for the traffic stop. After hearing the testimony from Sergeant Cline and Sinclair, the trial court ruled that there was reasonable suspicion for the stop of Sinclair.
{¶8} The case proceeded to a jury trial. The jury found Sinclair guilty of OVI, in violation of R.C. 4511.19 (A)(1)(d), ["Prohibited Level"]. The jury found Sinclair not guilty of OVI, in violation of R.C. 4511.19 (A) (1) (a) ["Under the Influence"]. The trial court found Sinclair not guilty of the marked lanes violation.
{¶9} Sinclair, pro se, raises four Assignments of Error,
{¶10} "I. THE VERDICT RECEIVED FROM TRIAL CASE 2019TRC04296 ON DEFENDANT THOMAS A. SINCLAIR II WAS AGAINST THE SUFFICIENCY OF THE EVIDENCE.
{¶11} "II. THE TRIAL COURT DISPLAYED CIVIL CONTEMPT OF ITS OWN RULE WHEN THE PLAINTIFF OBJECTED TO A FILED SUPPLEMENTAL DISCOVERY ON OCTOBER 18, 2019, IN COMPLIANCE WITH CRIMINAL RULE 16(I) OF THE OHIO RULES OF CRIMINAL PROCEDURE. THE OHIO HEALTH DEPARTMENT DID NOT APPEAR AFTER BEING SUBPOENA, OR WRITE A STATEMENT OF THEIR TESTIMONY CONDITIONAL ON CRIMINAL RULE 16(K). DEFENDANT, APPELLANT, THOMAS A. SINCLAIR II WAS NOT PERMITTED TO DISCUSS THE ABSENCE OF EXPERT WITNESS CRAIG YANNI ON OCTOBER 18, 2019 LEADING TO ABUSE OF DISCRETION UNDER OHIO CRIMINAL RULE 33(1); THE TRIAL COURT DID PROFFER THIS ERROR IN REFERENCE TO EVIDENCE RULE 103.
{¶12} "III. THE PLAINTIFF'S MOTION TO AMEND COMPLAINT FILED ON OCTOBER 17, 2019, DURING THE OPENING OF TRIAL. THIS DOES NOT COMPLY WITH OHIO CRIM. R. 7(D).
{¶13}
Pro se Litigants
{¶14} We understand that Sinclair has filed this appeal pro se. Nevertheless, "like members of the bar, pro se litigants are required to comply with rules of practice and procedure." Hardy v. Belmont Correctional Inst., 10th Dist. Franklin No. 06AP-116, 2006-Ohio-3316, ¶ 9. See, also, State v. Hall, 11th Dist. Trumbull No. 2007-T-0022, 2008- Ohio-2128, ¶11. We also understand that "an appellate court will ordinarily indulge a pro se litigant where there is some semblance of compliance with the appellate rules." State v. Richard, 8th Dist. Cuyahoga No. 86154, 2005-Ohio-6494, ¶4 (internal quotation omitted).
{¶15} In State v. Hooks, 92 Ohio St.3d 83, 2001-Ohio-150, 748 N.E.2d 528(2001), the Supreme Court noted, It is also a longstanding rule "that the record cannot be enlarged by factual assertions in the brief." Dissolution of Doty v. Doty, 4th Dist. Pickaway No. 411, 1980 WL 350992 (Feb. 28, 1980), citing Scioto Bank v. Columbus Union Stock Yards, 120 Ohio App. 55, 59, 201 N.E.2d 227( 10th Dist. 1963). New material and factual assertions contained in any brief in this court may not be considered. See, North v. Beightler, 112 Ohio St.3d 122, 2006-Ohio-6515, 858 N.E.2d 386, ¶7, quoting Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843 N.E.2d 1202, ¶16. Therefore, we have disregarded facts and documents in the parties' briefs that are outside of the record.
{¶16} In the interests of justice, we shall attempt to consider Sinclair's assignments of error.
{¶17} After reviewing Sinclair's brief including his contentions, we have interpreted his First Assignment of Error in the following manner: Sinclair's conviction is not supported by sufficient evidence.
1.1. Standard of Appellate Review- Sufficiency of the Evidence.
{¶18} The Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury...." This right, in conjunction with the Due Process Clause, requires that each of the material elements of a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 2156, 186 L.Ed.2d 314 (2013); Hurst v. Florida, ___U.S.___, 136 S.Ct. 616, 621, 193 L.Ed.2d 504 (2016). The test for the sufficiency of the evidence involves a question of law for resolution by the appellate court. State v. Walker, 150 Ohio St.3d 409, 2016-Ohio-8295, 82 N.E.3d 1124, ¶30. "This naturally entails a review of the elements of the charged offense and a review of the state's evidence." State v. Richardson, 150 Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶13.
{¶19} When reviewing the sufficiency of the evidence, an appellate court does not ask whether the evidence should be believed. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, superseded by State constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4, 684 N.E.2d 668 (1997); Walker, ¶30. "The relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven...
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