COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68025 CITY OF CLEVELAND : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION ROBERT ANDERSON : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION JULY 13, 1995 CHARACTER OF PROCEEDING Criminal appeal from Cleveland Municipal Court Case No. 94-TRC-61296 BCF JUDGMENT Reversed and vacated; defendant discharged. DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: CAROLYN WATTS-ALLEN ARTHUR LAMBROS, ESQ. Cleveland City Prosecutor 5709 Smith Road CORNELL P. CARTER, Assistant Brook Park, Ohio 44142 Prosecuting Attorney 1200 Ontario Street Cleveland, Ohio 44113 - 2 - JAMES M. PORTER, J., Defendant-appellant Robert Anderson appeals from his convictions following a bench trial in the Cleveland Municipal Court for driving with the prohibited concentration of alcohol in his urine, driving without a license and having an open container in a motor vehicle in violation of the Codified Ordinances of the City of Cleveland (Secs. 433.01(A)(4) and 435.07); and R.C. 4301.62(B)(4). Defendant contends that his convictions were not supported by sufficient evidence. We find merit to the appeal, reverse and vacate the convictions below. The events leading to the charges occurred in the early morning hours of August 28, 1994, when two Cleveland police officers were flagged down by a citizen and told that a traffic accident had occurred at W. 25th Street and Clark Avenue and one of the parties involved may have been shot. When the officers arrived at the intersection of West 25th and Tower Court they found a white Buick Skylark with two females in the front seat of a car and the defendant in the rear seat. The officers discovered that the female in the front passenger seat was intoxicated and passed out, but not wounded as previously reported. The officers detected the strong smell of alcohol on defendant's breath. They ran a computerized LEAD'S program on defendant's driver's license and learned it had been suspended for six months, but the suspension expired on June 8, 1993. - 3 - The defendant's vehicle was located by police at West 25th and Clark Avenue, "two or three blocks" from the location of the white Buick Skylark. It was not disclosed at trial how the police discovered the defendant's vehicle. The vehicle was empty when found by police. One of the officers examined the defendant's car, inventoried the contents and found an open container of beer (Busch Lite). The defendant was cited by the officers with following too closely behind another vehicle and striking it, operating a motor vehicle with the prohibited concentration of alcohol, DUI, driving while under suspension, not wearing a seat belt and having an open container. At the conclusion of the City's case through the testimony of the two policemen, the defense moved for a dismissal based on the City's failure to present any evidence that defendant was operating his vehicle. The court dismissed the charges for following too closely and driving without a seat belt for lack of evidence. The defendant gave testimony in his own behalf and stated on direct examination: that he was in the back seat of the female's Skylark when the officers came on the scene; that he was not under suspension on August 28, 1993; that he had a driver's license; that he was in the Army from 1993 through April 19, 1994; and that he took a urine test at a hospital the day of the arrest because he had an injury to his head sustained in a fight that evening in the "flats." - 4 - On cross-examination, defendant admitted he was driving a vehicle on August 28, but that he was not involved in a collision at West 25th and Clark Avenue. On redirect, he claimed he had parked his car under a bridge in the Flats and, after five hours, went off with the two females in their car. On examination by the court, defendant maintained he was in the back seat when the female's car was in an accident; denied there was an open beer can in his car; that he had been in the Flats for 5-6 hours before he went off with the females; the front end of his car was smashed in, but he denied it had anything to do with an accident involving the two females in their car. At the conclusion of all the evidence, the court found defendant guilty of driving with the prohibited concentration of alcohol, driving without a license and of an open container violation. The DUI charge was nolled. Execution of defendant's sentence was stayed pending this appeal, which was timely pursued. The City-appellee has not filed a brief herein. We will address defendant's assignments of error together since they all go to the sufficiency of the evidence to sustain the charges. - 5 - I. THE TRIAL COURT ERRED IN FINDING THE APPELLANT GUILTY OF DRIVING UNDER THE INFLUENCE OR DRIVING UNDER SUSPENSION WHERE THE POLICE OFFICERS DID NOT HAVE PROBABLE CAUSE TO ARREST THE APPELLANT. II. THE TRIAL COURT ERRED IN OVERTURNING APPELLANT'S MOTION FOR ACQUITTAL WHERE THE DEFENSE CONCLUSIVELY DEMONSTRATED THAT THE STATE'S EVIDENCE DID NOT CONFORM TO THE REQUIREMENTS OF CLEVELAND CODIFIED ORDINANCES SECTION 433.01 A(4) (WHICH IS SIMILAR TO REVISED CODE 4511.19 A(4) AND SECTION 433.01 A(1) (SIMILAR TO REVISED CODE 4511.19 A(1) WHICH REQUIRES THAT NO PERSON SHALL OPERATE A MOTOR VEHICLE UNDER THE INFLUENCE OF ALCOHOL OR DRUGS AND CASE LAW WHICH REQUIRES THAT THE ARRESTING OFFICER SEE THE DEFENDANT BEHIND THE WHEEL OF A MOTOR VEHICLE. III. THE TRIAL COURT ERRED IN FINDING APPELLANT GUILTY OF THE CHARGE NO DRIVER'S LICENSE WHEN THERE WAS NO EVIDENCE TO ESTABLISH THAT APPELLANT WAS OPERATING A MOTOR VEHICLE WITHOUT A VALID DRIVER'S LICENSE. IV. THE TRIAL COURT ERRED WHEN AFTER IT GRANTED APPELLANT'S MOTION FOR DISMISSAL OF THE DRIVING UNDER SUSPENSION CHARGE IT FOUND HIM GUILTY OF THE CHARGE OF NO DRIVER'S LICENSE AND THEN PROCEEDED TO SENTENCE APPELLANT FOR DRIVING UNDER SUSPENSION. Defendant contends that the trial court should have granted his Crim. R. 29(A) motion for acquittal due to insufficiency of the City's evidence. In State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus, the Ohio Supreme Court set forth the test to be applied by the trial court in such circumstances: 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 - 6 - material element of a crime has been proved beyond a reasonable doubt. The essence of this test prevails to the present day. The Supreme Court of Ohio recently described the appellate court's role when reviewing the sufficiency of the evidence in State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of syllabus: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosection, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. (Jackson v. Virginia [1979] 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed.) Moreover, the weight to be given the evidence and the credibility of witnesses are primarily for the trier of facts. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of syllabus. This appeal turns on whether there was any credible evidence to establish beyond a reasonable doubt the essential elements of the crimes with which defendant was charged. We agree with defendant that the evidence was insufficient to establish that defendant was guilty of operating a motor vehicle with the prohibited concentration in his urine, driving without a driver's license, or in violation of the open container law. - 7 - Defendant was convicted of driving with the prohibited concentration of alcohol under the following ordinances: Section 433.01 (a) (1): (a) Operation. No person shall operate any vehicle within the City, if any of the following apply: * * * Section 433.01 (a)(4): The person has a concentration of fourteen- hundredths (0.14) of one gram or more by weight of alcohol per 100 milliliters of his urine. (R.C. 4511.19) The two necessary requirements for conviction require the defendant be in the course of operating a motor vehicle at the time his urine contained the prohibited concentration. State v. Boyd (1985), 18 Ohio St.3d 30, syllabus: In order to sustain a conviction under R.C. 4511.19(A)(3), there must be proof beyond a reasonable doubt that the defendant was operating a motor vehicle within this State and that at the time he had a concentration of ten- hundredths of one gram or more by weight of alcohol per two hundred ten liters of his breath. *** The trial court nolled the offense based on 433.01(A)(1), driving under the influence, and convicted defendant under 433.01(A)(4). Cleveland Ordinance 433.01(A)(4) is patterned after R.C. 4511.19(A)(4). R.C. 4511.19(A)(2), (3) and (4) provide per se prohibitions against driving with a proscribed level of alcohol concentration in one's blood, breath or urine. City Ordinance 433.01(A)(4) is therefore a per se offense and as such the City was - 8 - required to present evidence of the results of the urine test in order to sustain a conviction. Newark v. Lucas (1988), 40 Ohio St.3d 100, 103; State v. Witten (1990), 67 Ohio App.3d 135, 137. A prosecution under 433.01(A)(4) is insufficient without an admissible test result. While it is not strictly necessary that an officer physically witness the operation of a motor vehicle by the person charged with driving under the influence or with the prohibited concentration, there must be competent and credible evidence to sustain the fact of operation. We are guided by the discussion which appears in State v. Finch (1985), 24 Ohio App.3d 38, 40: The court below placed great weight upon the fact that [officer] Jones did not actually witness any erratic driving by appellee prior to making the arrest. It is, of course, the general rule in Ohio that a misdemeanor must be committed in the presence of a law enforcement officer before the officer may make a warrantless arrest based on the misdemeanor. See State v. Allen (1981), 2 Ohio App.3d 441; R.C. 2935.03. However, in Oregon v. Szakovits (1972), 32 Ohio St.2d 271 [61 O.O.2d 496], the Ohio Supreme Court held that it was not necessary for an arresting officer to actually witness "bad driving" in order to effect an arrest for driving under the influence of alcohol, which is a first degree misdemeanor per R.C. 4511.99(A), when the officer arrived shortly after an automobile accident, and the defendant appeared intoxicated and admitted operating the vehicle. Subsequent cases have in effect adopted an "all facts and circumstances" approach to drunken driving arrests. See Allen, supra, State v. Ferguson (App. 1977), 5 O.O.3d 416; Atwell v. State (1973), 35 Ohio App.2d 221 [64 O.O.2d 342]. Thus, it is possible to have a valid arrest for driving under the influence of alcohol even though the arresting officer has not actually - 9 - observed the arrestee operating a vehicle in an erratic or unsafe manner. However, in all of the cases cited in the preceding paragraph, the facts which support the arrest for driving under the influence are much more convincing than the facts of the case now before us. In each of the above cases, the drinking driver either caused an accident or was involved in one. In all but one of these cases, the arresting officers stated that they observed stumbling or difficulty in walking on the part of the arrestee, or that the arrestee failed field sobriety tests. (In Oregon, supra, which is the single case cited above in which this did not occur, the defendant was found seated behind the wheel of his damaged vehicle.) In the instant case, there is no testimony by the officers or by anyone that defendant was operating his motor vehicle while under the influence of alcohol or with the prohibited concentration. The officers found defendant in the back seat of the car driven by a female and her passed-out companion. There was no testimony as to how an accident occurred, if there was one; whether there was any damage to the females' car; and what role defendant played, if any, in such an event. Although, over objection, the officer testified to an illegal concentration from a urine analysis, the test was not produced, the testimony was hearsay and inadmissible. The testimony of a police officer regarding the results of a scientific test he or she had not personally performed is hearsay and not admissible under Evid. R. 802. State v. Heinish (1990), 50 Ohio St.3d 231, 236; State v. Robles (1989), 65 Ohio App.3d 104, 107; State v. Rogers (June 6, 1991), Cuyahoga App. No. 58557, - 10 - unreported. We accordingly hold that the City failed to establish all the essential elements of the offense of operating a motor vehicle with a prohibited concentration of alcohol in his system. The same may as well be said for the driving without a license and the open container violation. Although there is some confusion in the record, the officers and defendant testified that defendant's six month license suspension expired on June 8, 1993, some 14 months before the date of the alleged offense. The defendant's suspension therefore terminated by operation of laws upon expiration of the six month period. State v. Roberts (1980), 62 Ohio St.2d 94; State v. Gasser (1985), 29 Ohio App.3d 115, 116. The trial court seemed to recognize this, but nevertheless held that defendant was guilty of driving without a license. This was erroneous. The trial court based her verdict for driving without a valid license on the Ohio Bureau of Motor Vehicles document that defendant attempted to introduce into evidence. The trial court held that the document did not reveal that defendant 1 had his license reinstated. The trial court, however, refused to allow the document into evidence due to defendant's failure to offer it in a timely manner. The court cannot base a conviction on 1 R.C. 4507.022 provides that the person whose license is suspended is not eligible to retain his license or to have his license returned until he: (1) successfully completes a remedial driving instruction course; (2) takes a driver's examination; and (3) gives and maintains proof of financial responsibility in accordance with R.C. 4509.45. - 11 - evidence that it ruled inadmissible. The only evidence submitted at trial was the testimony of the two police officers involved in the arrest and the citations they issued. Even if we assume that the document from the Bureau of Motor Vehicles was properly admitted into evidence, the document itself is insufficient to support a conviction. The document is not dated, therefore it cannot be used to determine defendant's licensed status at a particular date. An undated computer printout from the Bureau of Motor Vehicles cannot alone support a conviction for driving without a license. Columbus v. Curtis (1987), Ohio App.3d 22, 24; See, also, State v. Cook (1991), 73 Ohio App.3d 80, 89; State v. Sims (1983), 10 Ohio App.3d 56, 58. Further, defendant was charged with driving under suspension not driving without a license. The trial court sentenced defendant with driving under suspension. Consequently, defendant was convicted of an offense with which he was not charged and which was not a lesser included offense. "The elements of the offense of driving without a valid driver's license are different from driving under suspension." State v. Gilbo (1994), 96 Ohio App.3d 332, 337. This Court has held that a traffic ticket which correctly describes the offense but incorrectly cites the ordinance section is subject to dismissal. North Olmsted v. Greiner (1983), 9 Ohio App.3d 158; Cleveland Heights v. Perryman (1983), 8 Ohio App.3d 443. - 12 - In the case below, the trial court, without amending the citation, found defendant guilty of the separate offense of driving without a license. The trial court's alteration of the charges against defendant at the close of evidence was prejudicial in that the identity of the offense was changed. Crim. R. 7(D) does not allow for unconsented amendments to traffic tickets that change the name or identity of the offense charged. State v. Jackson (1992), 78 Ohio App.3d 479, 483. Although the officer testified he found an open beer can in defendant's car, the contraband was not produced in court nor was any testimony given that the liquid in the can was, in fact, beer. Defendant denied there was any such container. Further, the officer did not testify where in the vehicle the open container was discovered. Defendant was not in or near the vehicle when the can was discovered but was several blocks away in another vehicle. Defendant was cited for possessing an open container in a motor vehicle pursuant to R.C. 4301.62. R.C. 4301.62 prohibits the possession of open containers to all occupants of motor vehicles whether moving or parked. Inherent in the statute is the element of possession. R.C. 4301.62(B) provides: "[N]o person shall have in his possession an opened container of beer or intoxicating liquor ***." Recent decisions have applied the definition of possession as it is defined in R.C. 2925.01(L) which applies to drug offenses. - 13 - See Logan v. Cox (1993), 89 Ohio App.3d 349, 353; State v. Laukert (1989), 63 Ohio App.3d 64, 67. R.C. 2925.01(L) provides: "Possess" or "possession" means having control over a thing or substance but may not be inferred solely from mere access to the thing or substance through ownership or occupation of the premises upon which the thing or substance is found. In the case below, the City failed to present sufficient evidence that defendant possessed the open container while in or on his vehicle. A criminal offense cannot be sustained on such inadequate evidence. We find defendant's appeal well-taken, sustain the four assignments of error, reverse the judgment of conviction and discharge the defendant. - 14 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee his costs herein taxed. It is ordered that a special mandate be sent to the Cleveland Municipal Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. SPELLACY, P.J., and DYKE, J., CONCUR. JAMES M. PORTER 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 .