COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68092 CITY OF CLEVELAND : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION JOSEPH GALLO : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 7, 1995 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE CLEVELAND MUNICIPAL COURT CASE NO. 94-TRC-57762 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: CAROLYN W. ALLEN Chief Prosecuting Attorney City of Cleveland ANN M. FEIGHAN (#0058609) Assistant City Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: STEPHEN McGOWAN (#0021560) 55 Public Square - Suite 2200 Cleveland, Ohio 44113 - 2 - 2 SPELLACY, J.: Defendant-appellant Joseph Gallo appeals from his conviction for driving under the influence, in violation of Cleveland Codified Ordinances Section 433.01(A)(1) and raises two assignments of error: I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING THE DEFENDANT'S MOTION FOR ACQUITTAL PURSUANT TO CRIMINAL RULE 29A WHEN AT THE CLOSE OF THE STATE'S EVIDENCE, THE STATE HAD FAILED TO PROVE THROUGH SUFFICIENT EVIDENCE BEYOND A REASONABLE DOUBT THE ESSENTIAL ELEMENTS OF DRIVING UNDER THE INFLUENCE. II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND VIOLATED THE APPELLANT'S SIXTH AND FOURTEENTH AMENDMENT RIGHTS TO A FAIR TRIAL WHEN ACTING AS A TRIER OF FACT FOUND THE DEFENDANT GUILTY WHEN THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW TO PERMIT A CONVICTION. I. The following evidence was adduced at Gallo's bench trial: After observing Gallo drive through a red traffic light, Police Officer Stanley Murrey activated his overhead lights and followed him for two to three blocks before Gallo, apparently unaware of Officer Murrey, parked next to a bar. As Officer Murrey approached Gallo's car, Gallo staggered out and almost knocked him over. Officer Murrey testified that Gallo's eyes were dialated, his breath smelled of alcohol, and he appeared oblivious to his surroundings. At the police station, Gallo was unable to recite the alphabet, touch his nose with either index finger, or stand on one leg without swaying and raising his arms. Police Officer Carlos - 3 - 3 Robles, who administered the sobriety tests, testified that Gallo's eyes were red, his breath smelled of alcohol, and he appeared confused. Gallo refused to take a chemical test. II. We address Gallo's assignments of error together. "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, syllabus. In State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus, the court held that: 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 prosecution, 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.) Cleveland Codified Ordinances Section 433.01(A)(1) provides: 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, a drug of abuse, or alcohol and a drug of abuse. - 4 - 4 Gallo argues the state failed to demonstrate he was under the influence of alcohol. We disagree. We find that, viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have found Gallo operated his car while under the influence of alcohol. Accordingly, Gallo's assignments of error are not well taken. Judgment affirmed. - 5 - 5 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. JOHN T. PATTON, C.J. and TERRENCE O'DONNELL, J., CONCUR. LEO M. SPELLACY 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 .