COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69111 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION LAVELLE D. PROCTOR : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION MARCH 14, 1996 CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. CR-316435 JUDGMENT Affirmed; remanded for resentencing. DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES JAMES A. DRAPER Cuyahoga County Prosecutor Cuyahoga County Public Defender MICHAEL A. BEDNAR, Asst. ARTHUR A. ELKINS, Asst. Prosecuting Attorney Public Defender 1200 Ontario Street 100 Lakeside Place Cleveland, Ohio 4413 1200 West Third Street Cleveland, Ohio 44113-1569 - 2 - JAMES M. PORTER, J., Defendant-appellant Lavelle D. Proctor appeals from his conviction following a jury trial for aggravated vehicular assault (R.C. 2903.08) with violence and suspension specifications. Defendant contends that his conviction was against the manifest weight of the evidence and the court's suspension of his driver's license for ten years was excessive and contrary to law. We find his conviction was fully supported by the evidence, but the suspension of his driver's license for a ten year period was in error. The charges arose out of three automobile collisions which occurred on September 17, 1994 around the noon hour in the vicinity of Martin Luther King Boulevard on Cleveland's East Side. On that date, Fannie Dugger was stopped at a traffic light in the area of Martin Luther King Boulevard when she was rear-ended by a blue Mercury Cougar. After striking Ms. Dugger's car, the Mercury Cougar continued on and hit a Dodge Caravan driven by David Van Waggoner. At this time, the driver of the Cougar, a young black male, backed up and went over the curb onto the grass around the Caravan and took off real fast northbound on Martin Luther King Boulevard. Duane Wilner was driving south on Martin Luther King Boulevard when the blue Cougar came left of center at a high rate of speed and smashed head-on into Wilner's 1989 Nissan, totalling Wilner's car. Wilner had to be cut out of his vehicle by the paramedics, - 3 - and sustained multiple facial fractures, a broken arm, a punctured lung, broken ribs and other serious injuries. Dale Solly and James Patton were both driving along Martin Luther King Boulevard on this particular day and saw the head-on collision involving Wilner. They identified the driver of the Mercury Cougar as a young black male with facial hair, who was seen leaving his car and fleeing the area after this accident. Solly described the offender as "African American male 5' 10", medium build, dark complex [sic]. And my recollection, there were [sic] some facial hair." Patton's description affirmed the profile given by Solly. Fifth District police officer Charles Teel received a report of an automobile accident at 11:45 a.m. in the area, investigated the scene and found no one there. Upon returning to the station, he began talking with Ms. Dugger about her accident. A second hit- skip report was coincidentally being made involving the same blue Mercury Cougar. While the officers were comparing notes, a third accident call came to the station. Officer Teel went to the scene and found a 1979 blue Mercury Cougar in a wrecked condition on Martin Luther King Boulevard. The Cougar displayed temporary Ohio tags listed to the defendant. The driver of the Cougar had fled the scene, while Mr. Wilner was transported to the hospital. Alex Holmes, a friend of defendant's, was at home at 11:50 a.m., having slept in that morning. Elizabeth Holmes, Alex's mother, called her son at this time, which was close in time to the - 4 - report of the first accident involving Fannie Dugger. After talking to her, Alex and some friends went to a body shop on East 152nd and Waterloo. Alex Holmes returned home at about 1:30 p.m. when defendant came and asked to use his phone. Defendant called police from Alex's cellular phone to report his car stolen. He then confided to Holmes that he had run into several cars with his Mercury Cougar. Alex noted at the time that defendant had suffered a split lip, which caused him to keep his bottom lip in his mouth. Officer Teel received defendant's stolen car report at approximately 2:30 p.m. Officer Teel went to the Holmes' address of 8404 Medina and detained Alex because he was dressed similarly to the descriptions given of the Mercury Cougar driver. Defendant later came up to the police, identified himself and said he wanted to report his car stolen, because he heard from a friend that the car had been involved in an accident. Defendant, who had put on different clothing, added that Holmes "didn't do it." Due to these developments, the officer grew suspicious and held defendant for follow-up by the detectives. It was later learned that defendant's driving privileges were suspended on January 18, 1994, until September 17, 1996, and indefinitely afterward. On April 24, 1995, prior to trial, defendant stipulated to the suspension specification. He also stipulated to the violence specification if found guilty as charged. At trial, at the close of the State's case, defendant moved for a Crim. R. 29 dismissal, - 5 - which was denied. Defendant did not present a defense and rested his case. The jury found defendant guilty as charged. On April 27, 1995, the trial court sentenced defendant to prison for a term of three to five years and ordered his driver's license suspended until April 27, 2005. This timely appeal ensued. We will address defendant's two assignments of error in the order asserted. I. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT ILLEGALLY SUSPENDED APPELLANT'S DRIVERS LICENSE FOR TEN YEARS. R.C. 2903.08 provides in pertinent part as follows: (A) No person, while operating or participating in the operation of a motor vehicle, motorcycle, snowmobile, locomotive, watercraft, or aircraft, shall recklessly cause serious physical harm to another person. (B) Whoever violates this section is guilty of aggravated vehicular assault, a felony of the fourth degree. Further, R.C. 4507.16 mandates: Suspension or revocation of license by trial judge or mayor; ignition interlock order. (A) The trial judge of any court of record, in addition to or independent of all other penalties provided by law or by ordinance, shall suspend for not less than thirty days nor more than three years or revoke the driver's or commercial driver's license or permit or nonresident operating privilege of any person who is convicted of or pleads guilty to any of the following: * * * (7) A violation of section 2903.06, 2903.07, or 2903.08 of the Revised Code or a municipal ordinance substantially similar to section - 6 - 2903.07 of the Revised Code, unless the jury or judge as trier of fact in the case finds that the offender was under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse at the time of the commission of the offense. In the instant case, defendant was not found to be under the influence of alcohol or a drug of abuse at the time of the commission of the offense. Thus, the trial court was limited to suspending defendant's driver's license for not less than thirty days nor more than three years. See State v. White (1987), 29 Ohio St.3d 39; Roy v. Ohio State Med. Bd. (1995), 101 Ohio App.3d 352, 354; City of Euclid v. McGraw (Aug. 17, 1995), Cuyahoga App. No. 68591, unreported. The trial court's imposition of a ten year driver's license suspension exceeded its sentencing authority and constituted plain error. The State concedes that the suspension of defendant's driving privileges for ten years is in error and beyond the scope of R.C. 4507.16. (Aplee's Brf. at 3). However, as the State points out, the suspension term may be in addition to or independent of all other penalties provided by law and may become effective later than the date of release from incarceration. State v. Mahoney (1986), 34 Ohio App.3d 114. Accordingly, we remand this matter to the trial court for resentencing on the issue of license suspension consistent with this opinion. Defendant's Assignment of Error I is sustained. - 7 - II. THE TRIAL COURT ERRED WHEN IT ENTERED JUDGMENT AGAINST APPELLANT WHEN THE CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. When the argument is made that the conviction was against the manifest weight of the evidence, the appellate court is obliged to consider the weight of the evidence not its mere legal sufficiency. The defendant has a heavy burden in overcoming the fact finder's verdict. As this Court has stated: The weight to be given evidence and the credibility of witnesses are determinations to be made by the triers of fact. State v. Thomas (1982), 70 Ohio St.2d 79, 24 O.O.3d 150, 434 N.E.2d 1356. If there was sufficient evidence for the triers of fact to find a defendant guilty beyond a reasonable doubt this court will not reverse a guilty verdict based on manifest weight of the evidence. State v. Brown (1988), 38 Ohio St.3d 305, 528 N.E.2d 523, paragraph four of the syllabus, certiorari denied (1989), 489 U.S. 1040, 109 S.Ct. 1177, 103 L.Ed.2d 239. State v. Rios (1991), 75 Ohio App.3d 288, 291. Also, see, State v. Jenks (1991), 61 Ohio St.3d 259, 273. The jury in this case determined that the State's witnesses were credible and did not believe the defendant's theory that Alex Holmes was the perpetrator of this crime. As noted in State v. Jenks (1991), 61 Ohio St.3d 259, the prosecution is under no duty to rule out every hypothesis except that of guilt beyond a reasonable doubt. The State's evidence described the driver of the Cougar as a young black male with facial hair, much of this description coming - 8 - from the disinterested witnesses (Solly and Patton) who saw defendant get out of the Mercury Cougar and leave the scene. The description fit defendant, save for the blue shirt description. However, since defendant had changed clothes prior to the arrival of the police, the blue shirt description at the scene of the third collision is not dispositive. Other evidence implicated the defendant: defendant owned the Mercury Cougar; defendant was driving while his license was under suspension; defendant called to report his car stolen, not from his house just down the street, but from the home of Alex Holmes; defendant admitted to Holmes that he had been involved in the accidents; defendant had a fresh injury, a split lower lip; defendant claims he heard his car had been involved in an accident before he met the police; and defendant stated to police that Holmes was not the person involved in the accident. Defendant's theory at trial that Holmes was the driver of the Cougar was contradicted by the testimony that Holmes was at home and asleep until awakened by his mother approximately five minutes after the call came in for the first accident. Viewing this evidence as a whole, the trier of fact was well within its prerogatives to find in favor of the State's evidence. State v. DeHass (1967), 10 Ohio St.2d 230. Assignment of Error II is overruled. Defendant's conviction for aggravated vehicular assault is affirmed; the case is remanded to the trial court for resentencing on the license suspension consistent with this opinion. - 9 - 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 Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed in part, 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. BLACKMON, P.J., and O'DONNELL, 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 .