COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60160 CITY OF CLEVELAND : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION JEFFREY PAPOTNIK : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JULY 2, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Cleveland Municipal Court, Case No. 90TRC3802(A). JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Bryan Fritz Assistant City Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Ramie Reisman Resnick Legal Aid Society 1223 West 6th Street Cleveland, Ohio 44113 - 2 - SWEENEY, JAMES D., J.: Defendant-appellant Jeffrey Papotnik was convicted of driving while under the influence of alcohol, a violation of Cleveland Codified Ordinance Section 433.01(a)(1). Appellant was sentenced to one hundred eighty days incarceration and given a one thousand dollar fine. The judge suspended one hundred seventy of the days and seven hundred fifty dollars of the fine. Appellant was also placed on probation for one year. The execution of sentence was stayed pending appeal. Prior to the commencement of trial on June 13, 1990, appellant's counsel requested a continuance. The passenger in appellant's vehicle at the time of the accident was subpoenaed, but was not present for trial. The judge stated: "I'm going to deny it. This case has been going on since February, 1990." (T. 3.) At trial, the City first presented the testimony of Shawn Morgan. Mr. Morgan testified that on February 1, 1990, at approximately 8:00 p.m. he was returning from Meridia Euclid Hospital after visiting his grandfather. He was travelling westbound on Lake Shore Drive and was proceeding through a green light when his car was struck from the right rear. He testified that the impact was so forceful that he had to fight to keep control of the vehicle. The appellant is the driver of the vehicle that struck Morgan's car. Mr. Morgan testified that appellant used racial slurs, cursed, used all kinds of profanity and was very defensive. He - 3 - also noted that appellant's speech was slurred and that appellant was staggering. The next witness was Cleveland Police Officer Cheryle McDuffie. Officer McDuffie testified that upon arriving at the scene, appellant was already in the rear seat of her supervisor's car, but was then transferred to her vehicle. She testified that she smelled a strong odor of alcohol or beer on appellant, and that appellant told her he had "had a couple of beers." (T. 18.) The officer testified that she could tell appellant had been drinking. After the prosecution indicated there were no further questions for the officer, the court asked the witness the following question: THE COURT: I think the question he wanted to ask you was, in the line of your experience in arresting persons while under the influence of intoxicating liquor, did you have an opinion as to whether or not this man was intoxicated at the time? MS. RESNICK: We'll still object. THE COURT: Of course you will. THE WITNESS: Yeah. THE COURT: What was that opinion? THE WITNESS: That he was intoxicated. (T. 20-2l.) Upon cross-examination, the officer testified that although she did not specifically inquire, appellant made no indication that he was injured. Appellant's counsel also inquired: Q. Other than the smell of the odor of alcohol, what else, if anything, about - 4 - Mr. Potatnik's (sic) condition caused you to determine that he was not only just drinking, but in fact intoxicated? THE COURT: You mean under the influence? MS. RESNICK: She said intoxicated. I was just going to use her words. A. It was the smell, his reaction. I requested him -- he was yelling and screaming in the back seat of the car. It was just, you know, it was just his reactions, the way he was acting. He smelled of alcohol. And then, you know, I'm asking him different questions, he's just yelling. Not obscenities, just yelling, talking loud. I'm telling him, "Calm down. You are in the police car. We're not going to do anything to you." (T. 24-25.) Subsequent to the completion of the officer's testimony, appellant's counsel requested a dismissal under Cr. R. 29. The motion was overruled, and the appellant took the stand in his own behalf. Appellant testified that he had been at a friend's house and "had a couple of beers with him." (T. 30.) He then stopped in a park to use the restroom, and then proceeded back to Lake Shore Boulevard. He stated that Mr. Morgan was under the light when it changed, and he proceeded through on the green light. (T. 31.) He also testified that he received an injury to his head, and that he was in shock. He did agree to, and underwent, a urine test. However, the test was never received at the lab, and no results were available. Appellant testified that he was not intoxicated. Appellant's first assignment of error. - 5 - I THE TRIAL COURT ERRED IN REFUSING TO GRANT THE DEFENDANT'S MOTION FOR A CONTINUANCE OF THE TRIAL DATE. Appellant contends the trial judge abused his discretion in denying appellant's motion for continuance of trial. It is well settled that the granting or denial of a motion for a continuance is within the sound discretion of the trial court. State v. Ungar (1981), 67 Ohio St. 2d 65; State v. Sowders (1983), 4 Ohio St. 3d 143. In Ungar, supra, the court set forth the following factors in considering a motion for continuance: In evaluating a motion for a continuance, a court should note, inter alia: the length of the delay requested; whether other continuances have been requested and received; the inconvenience to litigants, witnesses, opposing counsel and the court; whether the requested delay is for legitimate reasons or [68] whether it is dilatory, purposeful, or contrived; whether the defendant contributed to the circumstance which gives rise to the request for a continuance; and other relevant factors, depending on the unique facts of each case. (Citations omitted.) The basis for appellant's request for a continuance was the unavailability of a witness. The record reveals that the first trial was set for April 13, 1990, at which time the appellant was granted a continuance until May 7, 1990. On May 7, 1990, the trial judge continued the case until May 23, 1990. On that date both appellant and prosecution requested a continuance as neither party had been able to secure the attendance of witnesses. The trial was rescheduled for June 13, 1990. - 6 - The record reflects that the continuance granted on May 7, 1990, was due in part to the appellant's inability to present the same witness who was not in attendance at the June 13, 1990 trial. (T. 2, 44, 45.) It should also be noted that appellant was arrested and charged on February 1, 1990; appeared in court on February 2, 1990; and entered a plea of not guilty on February 23, 1990. Appellant was given ample opportunity to locate the witness, and secure his presence for trial. The judge even inquired of appellant as to the testimony the witness would present. (T. 44- 45.) Under the facts presented here, we find no abuse of discretion in the denial of appellant's request for a continuance. See also, State v. Swanson (November 9, 1989), Cuyahoga App. No. 56111 and State v. Bourn (October 10, 1991), Cuyahoga App. No. 59135. Appellant's first assignment of error is overruled. Appellant's second assignment of error. II THE TRIAL COURT ERRED WHEN, AFTER THE PROSECUTION DID NOT MAKE A PRIMA FACIE CASE FOR DEFENDANT-APPELLANT'S GUILT, THE TRIAL JUDGE ASKED THE QUESTION THAT SUPPLIED THE OMISSION IN THE CITY'S CASE AND DENIED DEFENSE COUNSEL'S MOTION FOR ACQUITTAL. Appellant argues that the trial court erred in denying the motion for acquittal as the prosecution had not met its burden of proving appellant was driving under the influence of alcohol. Appellant contends that even though the motion for acquittal was - 7 - not renewed at the close of all of the evidence, plain error resulted when the trial court denied the original motion. Appellant argues the prosecution had not met its burden when it rested, and it was improper for the trial court to assume the role of the prosecutor by eliciting testimony from the police officer as to her opinion of appellant's state of sobriety. Although the appellant did not renew the motion for acquittal, he has not waived any error committed on the ruling of the motion. When a defendant pleads not guilty in a trial to the bench, the plea serves as a motion for judgment of acquittal, and obviates the necessity of renewing a Cr. R. 29 motion at the close of all of the evidence. Dayton v. Rogers (1979), 60 Ohio St. 2d 162. We find, however, that the trial court did not err in denying appellant's motion for acquittal. The test for determining when a motion for acquittal should be granted was set forth in the syllabus of State v. Bridgeman (1978), 55 Ohio St. 2d 261. 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. The crime charged in the case sub judice is driving under the influence of alcohol, under Cleveland Codified Ordinance Section 433.01(a)(1). - 8 - Section 433.01 Driving or Physical Control While Under the Influence; Evidence. (a) Operation. No person shall operate any vehicle within the 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; Appellant argues, and not the prosecutor, it was the court who elicited the response from the witness that the defendant was "intoxicated" and therefore, the City failed to meet its burden of proof. This argument is specious. A judge may question a witness, as prescribed in Evid. R. 614(B): (B) Interrogation by court. The court may interrogate witnesses, in an impartial manner, whether called by itself or by a party. This issue was discussed in Sandusky v. DeGidio (1988), 51 Ohio App. 3d 202, at syllabus 2, where the court held: 2. A trial judge in a criminal jury trial has the right to interrogate a witness, including a defendant who takes the witness stand, as long as the questions are relevant and do not suggest bias for one side over another. And in State v. Kay (1967), 12 Ohio App. 2d 38, this court stated: We do recognize the right of a trial judge to interrogate a witness as long as he confines his questions to matters that are relevant and does not by his inquiries or his comments show or even suggest that he holds views favorable to one side or the other, - 9 - or that he mistrusts a witness, so that the jury's conclusions as to the credibility of witnesses and the evidence, and not the judge's views or his attitude in asking questions, are the only basis for the jury's verdict. The court, of course, has the [49] obligation to control proceedings, to clarify ambiguities, and to take steps to insure substantial justice. However, the degree of participation of the judge in the questioning may vary with the nature of the case. In criminal trials before juries, the court's participation must be scrupulously limited lest it consciously or unconsciously indicate an opinion on the evidence or on the credibility of a witness to the jury. In the case sub judice, the court did not err in questioning Officer McDuffie. First, it is important to note that this was a trial to the bench. Secondly, the specific question by the judge was also factual in nature, and did not indicate any bias toward one side or the other. See also, State v. Husam'Adeen (March 30, 1989), Cuyahoga App. No. 55198, unreported. Consequently, the trial judge did not err in denying appellant's Cr. R. 29 motion for acquittal. Appellant's second assignment of error is overruled. Appellant's third assignment of error. III THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. - 10 - As recently stated by this court in State v. Clark (November 14, 1991), Cuyahoga App. No. 59427, unreported, the test for determining manifest weight was set forth in State v. Thompson and Malone (July 18, 1991), Cuyahoga App. Nos. 58803 and 58834, unreported. The Thompson and Malone decision held: The scope of review to be used where a party alleges the judgment of the trial court is against the manifest weight of the evidence was recently stated by this court in State v. Scott (Mar. 23, 1989), Cuyahoga App. No. 55114, unreported, at p. 7-8. The primary task of weighing evidence and judging the credibility of witnesses is left to the trier of fact, in this case the jury. State v. DeHass (1967), 10 Ohio St. 2d 230, at syllabus number 1. Therefore, a reversal of a judgment based on manifest weight of the evidence will only be done in exceptional cases. State v. Woods (1985), 25 Ohio App. 3d 35. A reviewing court will not reverse where there is substantial, competent and credible evidence supporting the criminal conviction. State v. Eley (1978), 56 Ohio St. 2d 169, syllabus. In the case before us, the judge heard testimony from Mr. Morgan that after the accident appellant began cursing and using racial slurs (T. 6); that he was staggering and his speech was slurred (T. 8); and that others at the scene referred to appellant as "a drunk bastard" (T. 12). Officer McDuffie testified that appellant stated he had a couple of beers, and that she smelled a strong odor of alcohol or beer (T. 18); that she could tell he had been drinking (T. 19); and that he was intoxicated (T. 21). - 11 - The judge heard substantial, competent and credible evidence upon which to base a conviction. Appellant's third assignment of error is overruled. Judgment affirmed. - 12 - It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Cleveland Municipal Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ANN DYKE, P.J., and FRANCIS E. SWEENEY, J., CONCUR. JAMES D. SWEENEY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .