COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69797 CITY OF EUCLID : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION REGINALD R. WITHROW : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 15, 1996 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE EUCLID MUNICIPAL COURT CASE NO. 95-TRC-5671 ABC JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: DEBORAH A. LEBARRON Director of Law NEIL MYERS (#0007892) Assistant Director of Law Euclid Law Department 585 East 222nd Street Euclid, Ohio 44123 For Defendant-Appellant: MIKE WOLPERT, ESQ. (#0034402) Jerome Silver & Associates 3421 Prospect Avenue Cleveland, OH 44115 REGINALD WITHROW (#00009301) 10910 Superior Avenue Cleveland, OH 44106 - 3 - LEO M. SPELLACY, C.J.: Defendant-appellant Reginald Withrow ("appellant") appeals his conviction for driving while under the influence in violation of R.C. 4511.19; driving under suspension in violation of Euclid City Ordinance 335.07; and failure to control motor vehicle in violation of Euclid City Ordinance 333.025. Appellant assigns the following errors for our review: I. THE TRIAL COURT ERRED IN OVERRULING DIRECTED VERDICT MOTIONS WHEN NO QUANTUM OF EVIDENCE SUGGESTED THE DEFENDANT WAS DRIVING. II. THE TRIAL COURT ERRED IN ADMITTING A VIDEOTAPE INTERVIEW NOT DISCLOSED IN DISCOVERY AND NOT PASSING RULE 403 STRICTURES. III. THE TRIAL COURT ERRED IN ADMITTING OTHER CRIMES EVIDENCE WITHOUT A CAUTIONARY JURY INSTRUCTION. IV. THE TRIAL COURT ERRED IN OVERRULING DEFENDANT'S MOTION FOR A NEW TRIAL. V. THE TRIAL COURT COMMITTED CLEAR ERROR IN ALLOWING AN ALL NONMINORITY JURY TO BE IMPANELLED WITH A MINORITY DEFENDANT. Finding appellant's appeal lacks merit, the judgment of the trial court is affirmed. A complete review of the record reveals the following. On July 25, 1995, appellant was arrested for driving while under the influence in violation of R.C. 4511.19 (A)(1); operating a motor vehicle while under suspension in violation of Euclid City Ordinance 335.07; and failing to maintain control of motor vehicle - 4 - in violation of Euclid City Ordinance 333.025. A jury trial was held on September 25, 1995, and appellant was convicted on all three counts. The trial court subsequently fined appellant one thousand one hundred and fifty ($1,150.00) dollars, sentenced appellant to three hundred sixty-five (365) days in jail, with eleven days credit, and suspended appellant's drivers license for ten years. Subsequently appellant filed with the trial court a proposed stipulated statement of evidence, and appellee filed its objections. The trial court, after discovering errors in the appellant's statement of evidence, set forth its own statement of the evidence. On July 25, 1995, appellant was observed by two police officers sitting behind the wheel of a motor vehicle which was stopped 247 feet off the road and up a grade. At trial, the two police officers testified that appellant was acting in an erratic manner, smelled of alcoholic beverage, refused to answer the officers' questions, and took a swing at one of the officers. (Trial Court Statement of Evidence, p.2). Although the officers observed appellant behind the wheel of the motor vehicle, they did not actually observe appellant drive the vehicle. Appellant testified at trial that he was neither drinking nor driving on the date in question. Appellant further testified that he did not decline to take a breathalyzer test. However, on rebuttal, the prosecution presented a video tape showing that - 5 - appellant, in fact, did decline to take a blood alcohol test. Furthermore, appellant called witnesses to testify that appellant was not driving and did not drive as a matter of habit. In particular, appellant called his probation officer David Spice as a witness who testified that other persons were known to drive appellant to his probation meetings. Mr. Spice further stated that appellant was on probation for his fourth D.U.I. conviction. I. In his first assignment of error, appellant contends that the trial court erred in overruling his Crim.R. 29 motion for directed verdict of acquittal. In particular, appellant asserts that there was insufficient evidence presented at trial to prove the defendant had been operating the motor vehicle. Crim.R. 29(A) provides that the court should, upon proper motion, enter a judgment of acquittal if the evidence is insufficient to sustain a conviction of the offense charged. The test for determining whether to submit the case to the jury is whether "reasonable minds can reach different conclusions as to whether each material element of a crime has been proven beyond a reasonable doubt." State v. Bridgeman (1978), 55 Ohio St.2d 261, at the syllabus, and State v. Evans (1992), 63 Ohio St.3d 231, 248. After a conviction, the test for determining whether there was substantial evidence to sustain the conviction is similar: "whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt." State v. - 6 - Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus. The same test is used whether the evidence is direct or circumstantial. Id. at paragraph one of the syllabus. The central issue with regard to both inquiries is "whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt." Id. at 273. Under both inquiries, the evidence must be construed in a light most favorable to the prosecution. Id. And, it is not the function of this court when considering these issues to weigh the evidence or determine the credibility of the witnesses. Id. at 263; State v. Clay (1973), 34 Ohio St.2d 250; and State v. DeHass (1967), 10 Ohio St.2d 230. R.C. 4511.19 states that "[n]o person shall operate any vehicle * * * if any of the following apply: (1) [t]he person is under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse * * *." In the case sub judice, appellant contends that there was no direct evidence linking him to the operation of the motor vehicle while being under the influence of alcohol. Evidence presented to a jury may be either direct or circumstantial. In the case before us, there was ample circumstantial evidence to prove that appellant had been operating the motor vehicle while under the influence of alcohol. In particular, two Euclid Police Officers testified that appellant was sitting behind the wheel of the motor vehicle which was stopped off the road and up a grade. Further testimony revealed that appellant was acting in an erratic manner, smelled of - 7 - alcohol, refused to answer questions, and took a swing at one of the officers. We find that this evidence, if believed, would be sufficient to convince a reasonable trier of fact beyond a reasonable doubt that appellant had been driving the motor vehicle while under the influence of alcohol. Accordingly, appellant's first assignment of error is overruled. II. In his second assignment of error, appellant contends that the trial court erred in admitting a videotape interview into evidence which had not been disclosed during discovery. Appellant utilized the procedures set forth under App.R. 9(C) in filing his appeal. The trial court, however, after discovering errors in the statement of evidence as presented by appellant, filed its own statement of evidence pursuant to App.R. 9(E). In the case before us, a review of the trial court's statement of evidence fails to reveal whether appellant objected to the admission of the videotape interview. It is well settled that appellant bears the responsibility to exemplify error in the record. City of Bay Village v. Daley (October 27, 1994), Cuyahoga App. No. 66249, unreported citing State v. Howard (1992), 79 Ohio App.3d 705; Bates & Springer, Inc. v. Stallworth (1978), 56 Ohio App.2d 223, 229. Absent such record, this court has nothing to pass upon and must presume regularity of the proceedings below. Id. citing Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197. - 8 - Accordingly, appellant's second assignment of error is overruled. III. In his third assignment of error, appellant contends that the trial court erred in admitting evidence of appellant's other crimes without a cautionary jury instruction. A review of the trial court's statement of evidence in the present case reveals that appellant called his probation officer, David Spice, as a witness. Upon direct examination of Mr. Spice, testimony was elicited that appellant was on probation for his fourth D.U.I. conviction. Following the testimony of Mr. Spice, appellant testified and was questioned by appellee regarding his prior D.U.I. convictions. Appellant objected to appellee's questioning, and subsequently requested that the trial court give the jury a cautionary instruction regarding past crimes evidence. The trial court, however, overruled appellant's objection, as well as apellant's requested cautionary jury instruction. Although the statement of evidence reveals that the trial court denied appellant's requested jury instruction, the record does not reveal the precise instruction given to the jury by the court. Therefore, this court is unable to ascertain from the record whether the court's instruction was proper. As stated supra, appellant has the responsibility to exemplify error in the record. Where this court has nothing to pass upon, it must presume regularity in the court below. See Daley, supra. - 9 - Accordingly, appellant's third assignment of error is without merit. IV. In his fourth assignment of error, appellant contends that the trial court erred in overruling his motion for a new trial. In particular, appellant states that the trial court erred by allowing into evidence repeated references regarding prior similar offenses. Therefore, appellant asserts, that he was unfairly prejudiced. Crim.R. 33 provides in pertinent part: A new trial may be granted on motion of the defendant for any of the following causes affecting materially his substantial rights: (1) Irregularity in the proceedings, or in any order or ruling of the court, or abuse of discretion by the court, because of which the defendant was prevented from having a fair trial. The granting of a motion for a new trial rests within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. State v. Schiebel (1990), 55 Ohio St.3d 71. An abuse of discretion implies that the court's attitude was unreasonable, arbitrary or unconscionable. Andras v. Andras (April 4, 1996), Cuyahoga App. No. 69339, unreported; Blakemore v. Blakemore (1983), 5 Ohio St.3d 217. This discretion is not unlimited, but must always be rooted in the facts of the case. Andras, supra; Beekman v. Beekman (1994), 96 Ohio App.3d 783, 787. However, when applying an abuse of discretion standard, a reviewing court may not substitute its judgment for that of the - 10 - trial court but must be guided by a presumption that the findings of the trial court are correct. Id. A complete review of the statement of evidence as set forth by the trial court does not reveal that the trial court abused its discretion in denying appellant's Crim.R. 33 motion for a new trial. Furthermore, the statement of evidence reveals that sufficient evidence was presented by appellee, separate and apart from evidence of appellant's prior convictions, to allow a reasonable jury to find appellant guilty beyond a reasonable doubt of the offenses charged Accordingly, appellant's fourth assignment of error lacks merit. V. In his fifth assignment of error, appellant contends that the trial court committed clear error in allowing an all non-minority jury to be impanelled with a minority defendant. The record discloses that appellant failed to exhaust all of his peremptory challenges at the time the jury was empaneled. Furthermore, the record reveals that appellant, without objection, advised the court that he was satisfied with the jury which did not contain anyone who claimed to be African-American. Thus, appellant acquiesced to the jury that was finally selected, and is precluded from raising that issue at this time. State v. Carter (1970), 21 Ohio St.2d 212, 214; State v. Eaton (1969), 19 Ohio St.2d 145. Accordingly, appellant's fifth assignment of error is overruled. - 11 - 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. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution. It is ordered that a special mandate issue out of this court directing the Euclid 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. ANN DYKE, J. and DIANE KARPINSKI, J. CONCUR. LEO M. SPELLACY CHIEF JUSTICE 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 .