COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72144 CITY OF CLEVELAND ) JOURNAL ENTRY ) Plaintiff-Appellee ) AND ) -vs- ) OPINION ) VINCENT MERCURIO ) ) Defendant-Appellant ) Date of Announcement of Decision Character of Proceeding Criminal appeal from Cleveland Municipal Court Case No. 96-TRC-67431 Judgment Reversed; defendant discharged. Date of Journalization Apppearances: For Plaintiff-Appellee For Defendant-Appellant CAROLYN W. ALLEN JOHN JEWITT, ESQ Chief City Prosecutor 3300 Terminal Tower PINKEY S. CARR, Asst. Cleveland, Ohio 44113 City Prosecutor 1200 Ontario Street Cleveland, Ohio 44113 2 PER CURIAM: This appeal is before the Court on the accelerated docket pursuant to App.R. 11.1 and Loc. App.R. 25. Defendant-appellant Vincent Mercurio appeals from his conviction following a bench trial in the Cleveland Municipal Court for operating a motor vehicle under the influence of alcohol and related offenses arising from the episode leading to his DUI conviction. Defendant contends his convictions were against the manifest weight of the evidence and he was entitled to a new trial. We find merit to the appeal, vacate the convictions and discharge the defendant. Defendant was arrested on October 20, 1996, around 2:00 a.m., by a Cleveland police officer who testified that he found defendant drunk in the back seat of his car which had been involved in a th collision at W. 117 and Berea Road in Cleveland. The arresting officer testified that upon arriving at the th scene, he found a Plymouth van southbound on West 117 Street which had lost control and gone onto private property after striking a stop sign and two parked vehicles. The officer found defendant alone sitting in the back seat of the van. The sliding passenger door was locked and the front door on the driver s side would not open. The motor was not running and the keys were not in the ignition. The officer found the keys under the seat where defendant was sitting. He detected a strong odor of alcohol about defendant. Defendant unlocked the sliding door and identified himself whereupon he was arrested. The officer related that 3 defendant insisted that someone else whom he had hired to drive him home was actually operating the car and had left the scene after an argument. The State also offered testimony of a lab technician at Lakewood Hospital who testified to .19% or .5% over the legal limit. Defendant testified on his own behalf that on the evening of October 20, at approximately 8:30 p.m., he was at MJ s Tavern with other persons celebrating a birthday. He met a friend who operates Rocky s Bar on Detroit Avenue and was told to stop by later to pick up $100 which Rocky owed him. He drove his Plymouth van to the bar th at W. 80 and Detroit where defendant consumed additional drinks and became apprehensive that he ought not to drive home because he was under a modified three month Administrative License Suspension since September 1996. Defendant stated that at Rocky s Bar he ran into an individual whom he recognized, whose first name he thought was Carmen. He gave him $20 to drive him to his apartment in Rocky River. Defendant climbed in the back seat with his acquaintance driving. They stopped and bought hamburgers whereupon defendant returned to the back seat and fell asleep. I woke up and the engine was racing. I was yelling to him to shut it off. He threw the keys at me and took off. Defendant stated that he got out of the vehicle, surveyed the damage, got back in the vehicle and was sleeping in the back seat when the police arrived. On cross-examination, defendant admitted he was unable to find Carmen. 4 The trial court found the defendant guilty of driving with a prohibited concentration of alcohol in his urine, driving with expired plates and driving under suspension and failure to control. Due to overlapping charges, the court dismissed the DUI charge. Less than one month after trial, defendant located the person whom he claimed was driving his vehicle and determined his name to be Stanton Scoggs who resided in Canton, Ohio. Defendant submitted an affidavit of Scoggs in support of a motion for new trial on the basis of newly discovered evidence filed by the defendant on January 2, 1997. Scoggs affidavit admitted that defendant gave him $20 to drive him home and that Scoggs was operating the vehicle th to the scene at West 117 Street and Berea Road. The motion for new trial was overruled and defendant was sentenced. This timely appeal ensued. 5 I. APPELLANT S CONVICTION IS 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. Section 435.01(A) of the Traffic Ordinances of the City of Cleveland, under which defendant was convicted, states in pertinent part: No person shall operate any vehicle within the city if any of the following apply: * * * (4) the person has a concentration of fourteen- hundredths (0.14%) of one gram or more by weight of alcohol over one hundred (100) milliliters of his urine. [R.C. 4511.19(A)] The City Ordinance and R.C. 4511.19(A) are identical. Section (b) of the Ordinance contains a similar provision stating that *** 6 no person shall be in actual physical control of any vehicle within the City if any of the following apply: A number of prohibitions are listed which are identical to those described in 4511.19(A)1-4. The statute does not embrace the subject of physical control of a vehicle but only operation. Defendant was charged with operation as opposed to physical control. [RELEVANCE] There are three Supreme Court cases which address definition of operation in similar circumstances. State v. Cleary (1986), 22 Ohio St.3d 198 acknowledges that operation within the meaning of R.C. 4511.19 is broader than driving. The other cases are Cincinnati v. Kelly (1976), 47 Ohio St.2d 94 and State v. McGlone (1991), 15 Ohio St.3d 122. In all three cases, convictions were affirmed because the defendant was found sleeping or passed out behind the wheel with the key in the ignition and in the Cleary and McGlone cases with the motor running. We find the instant appeal is governed by our decision in City of Bedford Heights v. Michael S. Smullen (June 9, 1994), Cuyahoga App. No. 66460, unreported, which analyzed the Supreme Court cases as well as relevant appellate decisions and held that defendant was not operating a vehicle while under the influence where found drunk and asleep in the vehicle which was legally parked, but with no key in the ignition and no evidence of any other vehicular movement or operator type conduct. This Court stated as follows at 3: In the present case, even if this court were to accept the Jenkins expansion of the definition of operating to include those situations where a driver is found in 7 possession of keys which are not in the ignition, we would not apply the expansion to the facts before us. The parties agreed statement of evidence does not include any evidence that either Officer Suraci or appellant s sister observed appellant at any time with the vehicle in motion, or even that he looked as if he were going to insert the key into the ignition, a distinguishing factor from Jenkins. Moreover, appellant s vehicle was parked by his house and there is no evidence that appellant drove it there while under the influence. In other words, there is no evidence that appellant was drinking before his initial arrival at the house, and therefore no circumstantial evidence that he drove there while under the influence. In other words, there is no evidence that appellant was drinking before his initial arrival at the house, and therefore no circumstantial evidence that he drove there while under the influence, a second distinguishing factor from Jenkins. While we agree that a bright-line definition of operating does not exist, and that the danger to the public is just as great where a driver under the influence has the key in the ignition, or the keys in his or her possession, or the keys close at hand, we fail to find sufficient evidence in this case to support appellant s conviction under R.C. 4511.19(A). See, State v. Warner (Sept. 10, 1992), Portage App. No. 92-P-0009, unreported (both cases holding McGlone not applicable to facts when keys not found in ignition); see, also, State v. Kincaid (1992), 83 Ohio App.3d 341,614 N.E.2d 1112 (defendant not operating vehicle while under influence where found drunk and asleep in vehicle which was legally parked, but with no key in ignition and no evidence of any other vehicular movement or operator-type conduct). [VERY RECENT SUPREME COURT CASE RE: SAME] In the instant case, the City failed to offer any evidence that defendant was under the influence of alcohol while driving to th West 117 Street and Berea Road where the police found the vehicle. The evidence established that he was asleep in the back 8 seat of his van and the key was not in the ignition, but under the seat upon which he was sitting; the sliding door and the front door were locked; and defendant had apparently secured himself with the vehicle so as to sleep it off. Defendant concededly had too many drinks. Although there was no one at the scene who admitted driving, the defendant maintained that he had hired an individual and given him $20 to drive him home; that the person whose last name he did not know left the scene following an argument concerning his racing the motor to get out of the mud. After viewing this evidence in the light most favorable to the prosecution, we nevertheless find that the trier of fact could not have found the required element of operation of the vehicle by defendant proven beyond a reasonable doubt. Assignment of Error I is sustained; conviction on the urinalysis is reversed and vacated. Consideration of Assignment of Error II is moot. App.R. 12(A)(1)(c). [WHAT ABOUT DUS?] 9 It is ordered that appellant recover of appellee 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 Cleveland 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. JAMES D. SWEENEY, CHIEF JUSTICE JAMES M. PORTER, JUDGE 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 .