COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70825 THE CITY OF CLEVELAND : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION CAM LARGE : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 13, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Cleveland Municipal Court Case No. 96 CRB 8189 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: CAROLYN W. ALLEN, ESQ. JOHN W. HICKEY, ESQ. Chief Prosecuting Attorney THERESA A. HICKEY, ESQ. REUBEN J. SHEPERD, ESQ. 3792 Pearl Rd. Assistant City Prosecutor Cleveland, Ohio 44109 1200 Ontario St. - 8th Floor Cleveland, Ohio 44113 - 2 - DYKE, J.: Appellant was cited on March 24, 1996 for violating Ohio Administrative Code Regulation 1501:41.03-22, possessing, displaying and consuming an alcoholic beverage in a State Park. He pleaded not guilty to the offense and went to trial before the Cleveland Municipal Court bench on May 29, 1996. The trial court heard testimony from Officer Mawcomb, the citing officer. He was on bike patrol at Edgewater Park on the day in question and noticed appellant seated in his car drinking beer from a Busch beer can. As Officer Mawcomb approached he noticed several other unopened cans next to appellant on the seat of the car. He told appellant that he was in violation of park regulations. Officer Mawcomb then took the beer and poured its contents out on to the ground. Appellant moved for dismissal of the charges based on the lack of scientific evidence to prove that the contents of the can were in fact alcoholic. The trial court overruled his motion to dismiss, stating: The Court having heard testimony that the defendant was observed drinking a Busch beer, that being a common beer and common brand, the Court finds that the State has made a prima facie case here. * * * The Court believes, based on the officer's testimony, that he observed the defendant drinking a Busch beer in a State Park, that the City has met its burden, and proved beyond a reasonable doubt, and there's a finding of guilty. (TR. 8-9). - 3 - The court then proceeded to fine appellant $50.00 plus court costs. Appellant appeals from his conviction and sentence, asserting one assignment of error. I WHETHER THE TRIAL COURT ERRED IN FINDING THE DEFENDANT/APPELLANT GUILTY OF VIOLATING GENERAL PROVISION SECTION 1501:41-3-22 OF THE OHIO ADMINISTRATIVE CODE, DIVISION OF PARKS AND RECREATION RULES INVOLVING "CONSUMING OR DISPLAY ANY BEER OR INTOXICATING LIQUOR IN THE PARK", WHERE SUCH A FINDING IS NOT SUPPORTED BY THE EVIDENCE. Appellant argues that the State failed to meet its burden to prove that appellant was in fact consuming an alcoholic beverage when the State did not submit the contents of the can for scientific testing. Appellant's argument is not well taken. This Court applies the following standard when reviewing the sufficiency of evidence presented to support an element of a criminal offense: 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. State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus. - 4 - We find that any rational trier of fact could find that the contents of the Busch beer can were alcoholic based upon Officer Mawcomb's testimony that he noticed unopened cans next to appellant on the seat and poured the contents of the can out on to the ground, giving him an opportunity to observe the contents of the can. After viewing the evidence in a light most favorable to the prosecution, we find that the trier of fact could have found all elements of the offense proven beyond a reasonable doubt. Appellant's assignment of error is overruled. The municipal court's conviction and sentencing of appellant are both affirmed. - 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. DAVID T. MATIA, P.J., AND O'DONNELL, J., CONCUR. ANN DYKE JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .