COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68735 CITY OF GARFIELD HEIGHTS : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION NATHAN R. ALLISON, JR. : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 22, 1995 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE GARFIELD HEIGHTS MUNICIPAL COURT CASE NO. 94-TRC-5862-A-D JUDGMENT: AFFIRMED IN PART; REVERSED IN PART; AND PARTIAL JUDGMENT ENTERED FOR APPELLANT. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: JAMES J. McGRATH IV (#0043762) Garfield Heights Prosecutor 5407 Turney Road Garfield Heights, Ohio 44125 For Defendant-Appellant: CHRISTOPHER J. MALLIN (#0020153) P.O. Box 46565 Bedford, Ohio 44146 - 2 - 2 SPELLACY, P.J.: Defendant-appellant Nathan Allison appeals from convictions for driving while under the influence of alcohol, in violation of R.C. 4511.19, failing to display license plates, in violation of R.C. 4503.21, and using unauthorized license plates, in violation of R.C. 4549.08. Allison raises six assignments of error: 1. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE, ENTERED DECEMBER 15, 1994, A COPY OF WHICH IS ATTACHED AS APPENDIX "A". 2. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS FOR DEFECTS IN THE CITA- TIONS, PRIOR TO COMMENCEMENT OF TRIAL ON FEBRUARY 27, 1995. 3. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS THE CHARGE OF VIOLATING ORC 4511.19(A)(1) PURSUANT TO CRIMINAL RULE 29, MADE AT THE CLOSE OF THE PLAINTIFF'S EVIDENCE. 4. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS THE CHARGES OF VIOLATING ORC 4511.19(A)(2) "OMVI", 4503.21 "EXPIRED PLATES", AND 4549.08 "FICTITIOUS PLATES", PURSUANT TO CRIMINAL RULE 29, MADE AT THE CLOSE OF THE DEFENDANT'S EVIDENCE. 5. THE TRIAL COURT ERRED IN DECLINING TO USE THE DEFENDANT'S "PROPOSED JURY INSTRUCTION NO. 1", A COPY OF WHICH IS ATTACHED TO THE STATEMENT OF PROCEEDINGS AS EXHIBIT "A". 6. THE TRIAL COURT ERRED IN USING THE JURY INSTRUCTION, OJI 545.25(2) A COPY OF WHICH IS ATTACHED TO THE STATEMENT OF PROCEEDINGS AS EXHIBIT "B", TO INSTRUCT THE JURY AS TO THE DEFINITION OF "OPERATE". - 3 - 3 I. A. Before trial, Allison moved to suppress evidence on the ground that the traffic tickets were insufficient. The three traffic tickets contain descriptions of the offenses and citations to the appropriate revised code sections. "Parked," however, is circled where the traffic tickets give the options "parked," "operated," and "walked." The trial court amended the traffic tickets to indicate "operated" and denied the motion to suppress evidence. Allison then moved to dismiss on the same ground. The trial court denied this motion as well. B. Evidence adduced at trial reveals the following: On September 6, 1994, at approximately 11:48 p.m., Garfield Heights Police Office Douglas Dillon found Allison sleeping in the driver's seat of a car parked near a bar with the key in the ignition. The "license tags" on the car were registered to another vehicle. Officer Dillon smelled alcohol when Allison opened the car door and Allison was unable to stand without assistance when he got out of the car. Garfield Heights Police Officer Joseph Czyzyk testified that Allison acted like someone who had just woken up. Allison refused to take either a breath test or a blood test. Candy Elias testified for Allison. Elias testified that she lives with Allison and that the car belongs to her. Elias further testified that Allison had been drunk and she had told him to wait - 4 - 4 in the car while she went into the bar. She further testified that Allison never drives. II. We address Allison's first and second assignments of error together. In these assignments of error, Allison contends the trial court erred when it denied his motions to suppress evidence and to dismiss. Allison argues that the trial court improperly amended the traffic tickets from "parked" to "operated." A traffic ticket may be amended under Crim.R. 7(D). Akron v. Jaramillo (1994), 97 Ohio App.3d 51, 53; State v. Jackson (1992), 78 Ohio App.3d 479, 481-482; Cleveland Heights v. Perryman (1983), 8 Ohio App.3d 443, 445. Crim. R. 7(D) provides: The court may at any time before, during, or after a trial amend the indictment, informa- tion, complaint, or bill of particulars, in respect to any defect imperfection, or omis- sion in form or substance, or of any variance with the evidence, provided no change is made in the name or identity of the crime charged. Traffic tickets, therefore, may be amended as long as the name or identity of the charge remains unchanged. Perryman, 8 Ohio App.3d at 445-446; see, also, Jackson, 78 Ohio App.3d at 482 (Designation of violated statute or ordinance may be amended). We find the trial court properly amended the traffic tickets. The traffic tickets contain descriptions of the offenses and citations to the appropriate revised code sections; the amendment - 5 - 5 merely changes the designation of the car's status from "parked" to "operated." Accordingly, Allison's first and second assignments of error are not well taken. III. In his third assignment of error, Allison contends the trial court erred when it denied his motion for acquittal, under Crim.R. 29, made after the close of Garfield Heights's case, on the charge of driving while under the influence. "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 Ohio Supreme 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.) R.C. 4511.19(A)(1) provides: - 6 - 6 (A) No person shall operate any vehicle, streetcar or trackless trolley within this state, 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; ***. Allison argues that Garfield Heights failed to demonstrate that he was operating the car. We find, however, that a rational trier of fact, viewing the evidence in a light most favorable to Garfield Heights, could find that Allison operated the car for purposes of R.C. 4511.19(A)(1). In State v. Gill (1994), 70 Ohio St.3d 150, syllabus, the Ohio Supreme Court held that: A person who is in the driver's seat of a motor vehicle with the ignition key in the ignition and who, in his or her body has a prohibited concentration of alcohol, is "operating" the vehicle within the meaning of R.C. 4511.19 whether or not the engine of the vehicle is running. (State v. Cleary [1986], 22 Ohio St.2d 198, 22 OBR 351, 490 N.E.2d 574; State v. McGlone [1991], 59 Ohio St.3d 122, 570 N.E.2d 1115, applied and followed.) In Gill, the defendant failed a breath test after he was found sleeping in his car with the key in the ignition. Id. at 151. Allison maintains Gill is distinguishable because no blood or breath tests were administered to him and he did not own the car. These distinctions are immaterial. Allison also argues that Garfield Heights failed to demonstrate that he was intoxicated. We find, however, that a rational trier of fact, construing the evidence most strongly for Garfield Heights, could find that Allison was intoxicated. Officer - 7 - 7 Dillon smelled alcohol when Allison opened the car door, Allison was unable to stand without assistance, and Allison refused to take any sobriety tests. Accordingly, Allison's third assignment of error is not well taken. V. In his fourth assignment of error, Allison contends the trial court erred when it denied his motion for acquittal, under Crim.R. 29, made at the close of his case, on the charges of failing to display license plates and using unauthorized license plates. R.C. 4503.21 provides: No person who is the owner or operator of a motor vehicle shall fail to display in plain view on the front and rear of such motor vehi- cle the distinctive number and registration mark *** furnished by the director of public safety. R.C. 4549.08 provides: No person shall operate or drive a motor vehicle upon the highways of this state if it displays a distinctive number or identification mark which: (A) Is fictitious; ***. Allison argues that the definition for operating found in Gill should be confined to R.C. 4511.19. We agree and find the definition of "operating" narrower for Chapters 4503 and 4549 than for Chapter 4511. Gill based its holding on policy considerations peculiar to driving while under the influence. Gill referred to drunk driving and noted that "[a] clear purpose of R.C. 4511.19 is - 8 - 8 to discourage persons from putting themselves in the position in which they can potentially cause the movement of a motor vehicle while intoxicated or under the influence of any drug of abuse." Gill, 70 Ohio St.3d at 154. In addition, the statutory definitions differ. R.C. 4511.01(Y), covering Chapter 4511 and Chapter 4513, which concerns motor vehicle equipment and loads, defines "driver or operator" as "every person who drives or is in actual physical control of a vehicle, trackless trolley, or streetcar." R.C. 4501.01(X), covering Chapter 4503, among other chapters, and penal laws, unless they indicate otherwise, defines "operator" to include "any person who drives or operates a motor vehicle upon the public highways." Even reviewing the evidence most strongly for Garfield Heights, we find that a reasonable trier of facts could not have concluded that Allison operated the car for purposes of R.C. 4503.21 and R.C. 4549.08. We find, therefore, that the trial court erred when it denied Allison's motion for acquittal on these charges. Allison also reargues arguments he made under his third assignment of error. We have already addressed these arguments. Accordingly, Allison's fourth assignment of error is well taken to the extent that the trial court erred when it denied Allison's motion for acquittal on the charges of failing to display license plates and using unauthorized license plates. - 9 - 9 VI. We address Allison's fifth and sixth assignments of error together. In these assignments of error, Allison contends the trial court erred when it instructed the jury on the definition of "operating." Our conclusion that the trial court erred when it denied Allison's motion for acquittal on the charges of failing to display license plates and using unauthorized license plates renders it unnecessary for us to address the jury instruction concerning those two offenses. Allison proposed the following jury instruction: If you find that the State has proven, beyond a reasonable doubt, each of the elements of the definition of "operating" announced by the Ohio Supreme Court, you must make a finding that the defendant was "operating" the vehicle in which he was found. If, however, you find that the State has failed to prove, beyond a reasonable doubt, any one or more of those elements, then you may not use that definition to determine whether or not this defendant was "operating" that vehicle and you must make a determination based upon your own understanding of the English language, and your own common sense and experience, of whether this defendant was "operating" the vehicle in which he was found. The trial court, following the Ohio Jury Instructions for a violation of R.C. 4511.19(A), instructed the jury that: The term "operate" is a broader term than driving. It includes not only a person being in control of a vehicle while it is in motion but also a person, whether conscious or uncon- scious, in the driver's location in the front seat of a stationary vehicle so as to be capable of doing any act or series of acts - 10 - which could cause or contribute to the vehicle being put in motion. It is not necessary to prove that the person in the driver's location of a stationary vehicle ever had the vehicle in motion or intended to put the vehicle in motion. Proposed jury instructions should be given where they are correct statements of the law. Murphy v. Carrollton Mfg. Co. (1991), 61 Ohio St.3d 585, 591. The trial court, however, need not use the precise language of the proposed instruction. Youssef v. Parr, Inc. (1990), 69 Ohio App.3d 679, 690. In addition, the trial court has the discretion to refuse to give instructions that are either redundant or immaterial. Bostic v. Connor (1988), 37 Ohio St.3d 144, paragraph two of the syllabus. We find the trial court provided the jury with the correct definition of "operating" for R.C. 4511.19. We further find that the trial court properly refused to give Allison's proposed jury instruction; the proposed jury instruction adds nothing to the jury instruction the trial court gave. Accordingly, Allison's fifth and sixth assignments of error are not well taken. Judgment affirmed in part; judgment reversed in part; and judgment entered for Allison on the charges of failing to display license plates and using unauthorized license plates. - 11 - It is ordered that appellee recover of appellant one-half its costs herein taxed. It is ordered that appellant recover of appellee one-half of his 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 Garfield Heights 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. SARA J. HARPER, J. and ANN DYKE, J., CONCUR. LEO M. SPELLACY PRESIDING 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 .