COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69041 CITY OF CLEVELAND : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION KIMBERLY MELL : : Defendant-appellant : : DATE OF ANNOUNCEMENT : FEBRUARY 15, 1996 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Cleveland Municipal Court : Case No. 94-TRD-082703 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: CAROLYN WATTS-ALLEN, ESQ. BRADLEY L. GREENE, ESQ. Cleveland City Prosecutor Cleveland Legal Aid Society 8th Floor, Justice Center 1223 West Sixth Street 1200 Ontario Street Cleveland, OH 44113 Cleveland, OH 44113 - 2 - PATTON, J. Defendant-appellant, Kimberly Mell appeals her conviction for failing to stop after an accident in violation of Cleveland Codified Ordinance 435.15, a first degree misdemeanor. The following facts were adduced at Mell's bench trial. Barbara DiRenzo testified that on December 7, 1994, at approximately 4:00 p.m. she was travelling southbound on West 130th Street in the city of Cleveland, Ohio when her van was hit by an automobile that did not stop at the scene of the accident. DiRenzo stated that her two grandchildren, Steven and Donald Arrowood were in the van with her. DiRenzo testified that while she was in the left lane on W. 130th Street she noticed a car stopped at Liberty Avenue waiting to turn right onto W. 130th Street into the right lane. Initially, DiRenzo stated she did not notice the color of this car nor did she notice the driver of this car. After DiRenzo passed the intersection of Liberty Avenue and W. 130th Street her van was struck from behind, damaging her back panel. DiRenzo did not see which car struck her van. DiRenzo stated that she stopped her van in the same spot where it was hit, the left lane, and went into the Allstar Discount Muffler shop and asked to use the phone to call the police. When asked on direct examination, DiRenzo stated that she thought a dark skinned man with short hair hit her car. Then DiRenzo testified that she saw Mell's face and identified her as - 3 - the person driving the car that was attempting to make a right hand turn from Liberty Avenue onto W. 130th Street. DiRenzo stated that a stranger came up to her and gave her a piece of paper with a license number of the car that hit her. DiRenzo also stated that she saw a dark car drive past her at a high rate of speed immediately after the accident. Ten year old Stephen Arrowood testified that he was in his grandmother's van during the accident. Arrowood recalled a car pulling out of Liberty Avenue and onto W. 130th Street and thought this was the car that hit his grandmother's van. Arrowood did not see the face of the driver of this car. Arrowood then stated that after the accident his grandmother left the car in the street and went into the muffler shop. James Conlon testified that he works at Allstar Discount Muffler located on W. 130th street. Conlon stated that he did not see, but heard the accident. Conlon walked over to the scene of the accident and picked up a bumper that was lying in the street near DiRenzo's van. Conlon noticed that the front plate read "U.S. Army." Cleveland Police Officer Edward Futchko testified that he was sent to investigate a hit and run accident that occurred on December 7, 1994 on W. 130th Street and Liberty Avenue. Officer Futchko was given the license number of the car that allegedly hit the van. Officer Futchko ran the license number through the LEADS computer and a received a listing for the Mell's household. - 4 - Upon arrival at Mell's house, Officer Futchko noticed that the car in the driveway was missing the front bumper and there were streaks of white paint on the automobile. Officer Futchko then questioned Mell and had her sign a short statement concerning the accident on December 7, 1994. The statement read: "I was coming from the hairdressers, getting ready to pull out into the street W. 130th and a car was coming forward and I guess while I was turning the car kept going and hit the bumper and pulled the bumper off." Officer Futchko also stated that when he asked Mell why she left the accident she said because she panicked. Mell's mother testified that she let her daughter borrow her car on December 7, 1994. When Mell returned home with the car, her mother noticed that the front bumper was missing. The mother asked Mell if she was in an accident and Mell responded that she was not in an accident. The mother then thought that the bumper had been stolen since she lives in a high crime area. After the police questioned Mell, her mother conducted her own investigation of the accident. She knocked on doors in the neighborhood of the accident looking for a witness. Eventually, the mother spoke with Michelle Tharps who claimed she witnessed the accident. Michelle Tharps testified that on December 7, 1994, she walked out of a Chinese restaurant on W. 130th Street and Liberty Avenue and stopped on the corner for a traffic light. Tharps then saw an older model dark brown car with at least three black males in the - 5 - car hit a van and almost hit her. The car then sped off. Tharps looked at photographs of Mell's mother's car and stated that it was not the car that she saw sideswipe the van. Tharps also stated that she observed the van pull into a parking lot after it had been hit. Kimberly Mell testified that on December 7, 1994, she was honorably discharged from the army because she was seventeen years old and not quite mature enough for the army. Mell stated that same day she went to the beauty shop to get her hair done and parked the car in the parking lot behind the shop. At approximately 4:30 p.m. Mell left the beauty shop and noticed a white van parked next to her car. Mell then pulled out of the parking lot and made a right hand turn from Liberty Avenue onto W. 130th Street. Mell denied being involved in any accident. Mell testified that she gave the short statement to the police because she was afraid that they were going to tow her mother's car. Mell stated that she told the police that since she was the one driving the car on December 7, 1994, she must have been the one involved in the accident but she does not have any recollection of the accident. First, we will address Mell's third assignment of error which claims that her appeal is not rendered moot because she has served her term of incarceration and paid her fine. On April 7, 1995, immediately following the trial Mell was sentenced to 180 days incarceration of which 177 days were suspended; $500 fine of which - 6 - $250 was suspended; 100 hours of community service; 2 years probation and her driver's license was suspended from April 7, 1995 to April 7, 2000, for noncompliance with the financial responsibility law. Mell was taken straight from the court house to the place where she was incarcerated for 3 days. In order to be released from incarceration Mell had to pay her fine of $250. On the same day Mell was sentenced she filed a motion to suspend execution of sentence and set appeal bond. However, the motion was not heard until April 11, 1995, one day after she had completed her 3 day sentence and had paid her fine. The trial court granted Mell's motion to suspend execution of sentence. Ohio law is clear that when a person convicted of a misdemeanor has voluntarily completed her sentence and/or paid her fine for that offense, and thereafter appeals, her appeal is moot when no evidence is offered from which an inference can be drawn that he defendant will suffer some collateral disability or loss of civil right from such judgment or conviction. State v. Berndt (1987), 29 Ohio St.3d 3, 4; State v. Golston (1994), 71 Ohio St.3d 224. However, we find the facts in this case distinguishable from the case law cited above. In the present case, Mell filed a motion to stay her sentence on the day she was sentenced. The trial court did not hear this motion until four days after it was filed. By this time Mell had no choice but to serve her 3 day sentence and pay her fine. We find that Mell did not serve her sentence - 7 - voluntarily and we will not find her appeal moot because the trial court took four days to hear her motion to stay. Mell's first and second assignment of error will be considered together. They state respectively: I. THE TRIAL COURT ERRED, AS A MATTER OF LAW, BY FINDING APPELLANT GUILTY OF LEAVING THE SCENE OF AN ACCIDENT WHERE THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT SUCH A FINDING. II. THE TRIAL COURT'S VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Mell claims that the trial court erred as a matter of law by finding her guilty of leaving the scene of an accident where there was insufficient evidence to support such a finding and the verdict is against the manifest weight of the evidence. Specifically, Mell asserts that there was insufficient evidence to convict her of leaving the scene of an accident. In State v. Martin (1983), 20 Ohio App.3d 172, the court set forth the test to be utilized when addressing the issue of manifest weight of the evidence. The Martin court stated as follows: The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. *** See, Tibbs v. Florida (1982), 457 U.S. 31, 38, 42. Martin, supra at 175. The weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, paragraph one of the - 8 - syllabus. This court will not reverse a verdict where there is substantial evidence upon which a trier of fact could reasonably conclude that all the elements of the offense have been proven beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St. 2d 169. The trier of fact is entitled to believe or not to believe the testimony of the state's witnesses and/or the defense witnesses. State v. Antill (1964), 176 Ohio St. 61. The trier of fact should consider the demeanor of the witness and the manner in which he testifies, his connection or relationship with the parties, and his interest, if any, in the outcome. Id. at 67. In the present case, Mell was convicted of violating Cleveland Codified Ordinance 435.15, which states in relevant part: "In case of accident to or collision with persons or property upon any of the public streets or highways, due to the driving or operation thereon of any motor vehicle, the person so driving or operating such motor vehicle, having knowledge of such accident or collision, shall immediately stop his motor vehicle at the scene of the accident or collision and shall remain at the scene of such accident or collision until he has given his name and address * * *" The evidence adduced at trial showed that an unidentified witness gave DiRenzo the license number of the automobile that hit her van. This license number was assigned to the automobile of Mell's mother. Furthermore, testimony showed that a bumper with a "U.S. Army" sticker on the plate was found in the middle of W. 130th street at the scene of the accident. Mell's mother stated - 9 - that her bumper was missing after Mell had the car and that it had a "U.S. Army" sticker on the plate. Mell admitted to driving the car and being in the near vicinity of the accident, although Mell denied hitting the van with her mother's car. Moreover, testimony showed that the automobile that Mell was driving had white streaks of paint on it and the van that was hit was white. Upon a careful review of the record, we are unable to conclude that the trial court lost its way and created such a manifest miscarriage of justice that appellant's conviction must be reversed. Furthermore, we find that there was sufficient evidence to show that Mell failed to stop after an accident. The evidence adduced at trial showed that the bumper in the street belonged to the car of Mell's mother and Mell was driving the car at the time of the accident. Additionally, the license number of the car that hit the van matched that of the car that Mell was driving. In light of the surrounding facts and circumstances, the trial court could reasonably conclude that Mell was guilty of failing to stop after an accident in violation of Cleveland Codified Ordinance 435.15. Mell's fourth assignment of error states: IV. THE TRIAL COURT ERRED, AS A MATTER OF LAW, IN SUSPENDING APPELLANT'S DRIVING PRIVILEGES FOR FIVE (5) YEARS FOR NONCOMPLIANCE WITH THE STATES [SIC] FINANCIAL RESPONSIBILITY LAW. Mell claims that the trial court erred when it suspended her driving privileges for five years for noncompliance with the state of Ohio's financial responsibility law. Specifically, Mell asserts - 10 - that it was not the intention of the state legislature to allow judicial suspension of an individual's driver's license for so lengthy a time. Mell's license was suspended because she violated R.C. 4509.101 which requires proof of financial responsibility. At the time of the trial, Mell could not prove if she had insurance. R.C. 4509.101 governs the financial responsibility law and states in pertinent part: (A)(1) No person shall operate, or permit the operation of, a motor vehicle in this state, unless proof of financial responsibility is maintained with respect to that vehicle, or, in the case of a driver who is not the owner, with respect to the operation of that vehicle. (2) Whoever violates division (A)(1) of this section shall be subject to the following civil penalties: (a) Suspension of the person's operating privileges and impoundment of the persons' license until the person complies with division (A)(5) of this section, which suspension shall be for a period of not less than ninety days and shall not be subject to revocation, suspension, or occupational or other limited operating privileges; * * * (5) The registrar shall not restore any operating privileges * * * unless the person, * * * complies with all of the following: (a) Pays a financial responsibility reinstatement fee * * * (b) * ** pays a financial responsibility nonvoluntary compliance fee [if applicable] * * * - 11 - (c) Files and maintains proof of financial responsibility under sections 4509.44 to 4509.65 of the Revised Code. Pursuant to R.C. 4509.101 (A)(5)(a)-(c), Mell can have her license reinstated as long she pays the appropriate fees and maintains proof of insurance. We do not find requiring Mell to demonstrate proof of insurance for a five year period to be in conflict with R.C. 4509.101. Accordingly, Mell's fourth 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. *HARPER, P.J., CONCURS TIMOTHY E. McMONAGLE, J., CONCURS *See Concurring Opinion, Harper, P.J., attached. JUDGE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment 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. COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69041 CITY OF CLEVELAND : : : CONCURRING Plaintiff-appellee : : OPINION : -vs- : : KIMBERLY MELL : : : Defendant-appellant : DATE: FEBRUARY 15, 1996 SARA J. HARPER, P.J., CONCURRING: I concur with the majority's affirmance of Mell's conviction for failing to stop after an accident in violation of Section 435.15 of the Codified Ordinances of the city of Cleveland. However, I write separately to address Mell's fourth assignment of error. R.C. 4509.101(A)(2)(a) sets forth a minimum amount of time for the suspension of a driver's license for failure to comply with the state's financial responsibility law. There is, however, no maximum length of suspension contained in the section. Appellant requests in her fourth assignment that this court identify a maximum length of suspension, and consequently find that the five - 2 - year suspension ordered by the trial court is punitive in nature and against the General Assembly's intent in enacting R.C. 4509.101. A reading of the statute reveals that operating privileges are to be suspended until the operator complies with section (A)(5) which deals with fees and the maintenance of proof of financial responsbility. The period of suspension is not to be less than ninety days under section (A)(2)(a). If the operator complies with the requirements adopted in section (A)(5) on the ninety-first day, the statute presumably permits the operator to regain his or her driving privileges. The majority recognizes that Mell can have her license reinstated as long as she complies with the requirements in section (A)(5). The majority, however, fails to clarify the trial court's authority in this regard. R.C. 4509.101 does not authorize the trial court to order a five-year suspension of Mell's driver's license. The majority then finds that Mell's responsibility to demonstrate proof of insurance for a five-year period is not in conflict with R.C. 4509.101. The trial court's docket entry provides: "The defendant's driving license is hereby suspended from 04/07/1995 until 04/07/2000." The entry does not require Mell to maintain proof of insurance for five years; the entry orders a five year "suspension" of the driver's license. I find no other entry that requires Mell to provide proof of insurance for five years. - 3 - Assuming arguendo there was such an entry, R.C. 4509.101 requires that Mell comply with the state's financial responsilibity law regardless of any order by the trial court. In other words, if Mell was not in compliance with R.C. 4509.101 within that five- year period or even after, assuming the continued existence of the financial responsibility law, she would be subject to the penalties thereunder without an order by the trial court. An order that .