COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72065 CITY OF ROCKY RIVER : : PLAINTIFF-APPELLEE : : JOURNAL ENTRY vs. : AND : OPINION CHARLES J. OAKLEY : : DEFENDANT-APPELLANT : : : DATE OF ANNOUNCEMENT OF DECISION : JANUARY 22, 1998 CHARACTER OF PROCEEDING : Criminal appeal from : Rocky River Municipal Court : Case No. 96-TRC-6702. JUDGMENT : REVERSED AND REMANDED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: GARY A. HOTZ Attorney at Law 24650 Center Ridge Road, #210 Westlake, Ohio 44145 For defendant-appellant: JOHN A. GASIOR Attorney at Law Stringer, Stringer & Gasior 36400 Center Ridge Road North Ridgeville, Ohio 44039 TIMOTHY E. McMONAGLE, J.: Defendant-appellant Charles J. Oakley appeals his convictions for violations of Sections 333.01(A)(1) and 333.01(A)(3) of the -2- Codified Ordinances of the City of Rocky River following a jury trial in the Rocky River Municipal Court. Appellant contends that the prosecution failed to prove that he operated a motor vehicle while under the influence of alcohol, an essential element of each violation. We find the appeal well taken and reverse. The facts pertinent to the issues on appeal are as follows. On the evening of July 14, 1996, appellant Charles Oakley and his friend were at BW3 restaurant in Rocky River, Ohio, where they ran a tab for some beer. About 9:00 p.m., when they attempted to pay the bill with a credit card, they were unable to do so due to a malfunction of the restaurant's credit card machine and were required to use cash. Because of this, a disagreement between appellant and the cashier ensued, during which the police were called. Before the police arrived, appellant and his friend went outside to the parking lot, followed by the restaurant manager. In the parking lot, appellant got into a Jeep while his friend urinated on the building. In response to the call, the police arrived. The police placed appellant's friend into a police cruiser and, after conducting field sobriety tests and a horizontal gaze nystagmus test, arrested appellant. Appellant was transported to the Rocky River Police Station, where a breathalyzer test was administered with appellant's results registering .188. Appellant was then charged with violations of Rocky River Municipal Ordinances 333.01(A)(1) and 333.01(A)(3). Appellant filed a motion to suppress the evidence against him, which was heard and denied by -3- the court on September 16, 1996. The matter proceeded to trial by jury on February 5, 1997. At trial, the city presented the testimony of the bartender, Brian Mooney, the manager of BW3, Michael Schaeffer, and Rocky River Police Officers Michael Kennedy and Ronald Flowers. The restaurant manager and bartender essentially testified as to the altercation surrounding the payment of the bill and the resulting call to the police. In addition, Schaeffer testified on cross- examination that he followed appellant and his friend out of the building and saw the friend urinate at the corner of the office door of the building while appellant got into a Jeep. He stated that the police arrived only forty-five seconds to one minute later. Officer Kennedy, who was the first officer on the scene, testified that initially he dealt with appellant's friend and placed him into the patrol car, then he assisted Officer Dufala in appellant's field sobriety testing. Officer Kennedy testified that Officer Dufala then arrested appellant. Officer Kennedy saw that the lights of the Jeep were on, but he did not know if the engine was running. He never saw the Jeep move. Officer Flowers testified that he holds a valid certificate and administered the BAC Data Master test to appellant at the police station. He stated that appellant's test result indicated that appellant had .188 grams of alcohol per 210 liters of breath, which is above the legal limit of .10. The city rested its case, and counsel for the appellant moved for acquittal pursuant to Crim.R. 29, which was denied by the court. The defense rested, and the matter was -4- submitted to the jury. Counsel for appellant then moved for mistrial based upon comment by the prosecutor during closing argument; the motion was denied by the court. By written questions during deliberations, the jury requested the court to define operation, clarify the BAC charge, clarify the definition of driving, and explain the DUI charge and the BAC charge. The court, in response, reread the instruction giving the definition of operation, the instruction on BAC, and the explanation that DUI designates driving under the influence of alcohol, stating that, in this particular case, it would be more appropriately designated as OUI, operating under the influence of alcohol. Subsequently, the jury returned verdicts of guilty on each charge. On February 7, 1997, appellant was sentenced to a term of incarceration of thirty days, which was suspended subject to one year inactive probation, a license suspension for six months with work-driving privileges, attendance at a think-about-it lecture series, a two hundred fifty dollar fine and court costs. Appellant's motion to stay execution of sentence was granted pending the perfection of this appeal. In his appeal, appellant advances three assignments of error for our review. ASSIGNMENT OF ERROR NO. I THE JURY'S VERDICTS OF GUILTY TO VIOLATIONS OF 333.01(A)(1) AND 333.01(A)(3) OF THE CODIFIED ORDINANCES OF ROCKY RIVER ARE BASED UPON INSUFFICIENT EVIDENCE AND THEREFORE DENIED THE DEFENDANT-APPELLANT DUE PROCESS OF LAW GUARANTEED UNDER THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND SECTION SIXTEEN, ARTICLE ONE OF THE OHIO CONSTITUTION. -5- ASSIGNMENT OF ERROR NO. II THE TRIAL COURT ERRED IN OVERRULING DEFENDANT- APPELLANT'S MOTION FOR JUDGMENT OF ACQUITTAL PURSUANT TO RULE 29 OF THE OHIO RULES OF CRIMINAL PROCEDURE AT THE CONCLUSION OF THE STATE'S CASE IN CHIEF. ASSIGNMENT OF ERROR NO. III THE TRIAL COURT ERRED IN INSTRUCTING THE JURY ON THE DEFINITION OF OPERATION. We address appellant's first and second assigned errors together as they each challenge the sufficiency of the evidence and are dispositive of the matter before us. In his first assigned error, appellant contends that the evidence adduced at trial was insufficient as a matter of law to convict him. In his second assigned error, appellant contends that the trial court erred when it denied his motion for acquittal made at the close of the city's case. Appellant argues that the city failed to present sufficient evidence on an essential element of each of the charges against him: That he was operating a motor vehicle. We agree. A motion for acquittal is governed by Crim.R. 29(A), which states in pertinent part: The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state's case. Pursuant to Crim.R. 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds -6- 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, syllabus. It is well established that an appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence submitted 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. Consequently, a motion for acquittal will be sustained if the evidence presented is insufficient as a matter of law to permit a conviction. State v. Lebron (1994), 97 Ohio App.3d 155, 158. Rocky River Codified Ordinances 333.01(A)(1) and (A)(3) provide as follows: (A) No person shall operate any vehicle within the City of Rocky River if any of the following apply: (1) The person is under the influence of alcohol or any drug of abuse, or combined influence of alcohol and any drug of abuse; * * * (3) The person has a concentration of ten-hundredths of one gram or more by -7- weight of alcohol per two hundred ten liters of his breath; ***1 In reliance on State v. Gill (1994), 70 Ohio St.3d 150, appellant contends that the city failed to prove the essential element of operation. On the other hand, the city, in reliance on State v. McCaig (1988), 51 Ohio App.3d 94, states that there were reasonable grounds to believe that appellant had been operating a motor vehicle under the influence of alcohol when the totality of the circumstances are considered. Specifically, then, we are asked to determine whether a person is in violation of the DUI and BAC ordinances where he is found awake, intoxicated and in the driver's seat of a parked vehicle but where there is no evidence presented that the vehicle is running or that the key is in the ignition. Generally, each `drunken driving' case is to be decided on its own particular and peculiar facts. Mentor v. Giordano (1967), 9 Ohio St.2d 140, 146. In 1976, our supreme court in Cincinnati v. Kelley (1976), 47 Ohio St.2d 94, found that the term actual physical control (as required by the Cincinnati ordinance at issue) was satisfied where the defendant was awake and sitting in the driver's seat, in possession of the ignition key, and was physically capable of starting the engine and causing the vehicle to move. Later, in State v. Cleary (1986), 22 Ohio St.3d 198, the supreme court upheld defendant Cleary's conviction for DUI where he was found intoxicated but asleep in his car with the motor running, 1The Rocky River Ordinances are substantially similar in wording to R.C. 4511.19(A)(1) and (A)(3). -8- stating that [o]peration of a motor vehicle within the contemplation of the statute is a broader term than driving and a person in the driver's position in the front seat with the ignition key in his possession indicating either his actual or potential movement of the vehicle while under the influence of alcohol or any drug of abuse can be found in violation of R.C. 4511.19(A)(1). Similarly, in State v. McGlone (1991), 59 Ohio St.3d 122, the supreme court found that an intoxicated person, even if asleep in the driver's seat with the key in the ignition and the motor running, is operating the vehicle even if he is on private property. Id. at the syllabus. Then, in State v. Gill (1994), 70 Ohio St.3d 150, our supreme court further extended the meaning of operation by holding that a person who is in the driver's seat of a motor vehicle with the ignition key in the ignition and who, in his or her body has a prohibited concentration of alcohol, is `operating' the vehicle within the meaning of R.C. 4511.19 whether or not the engine of the vehicle is running. (Emphasis added.) Id. at 154. The courts must give criminal statutes their intended meaning and the Ohio Supreme Court has held that the legislature intended the word operating to have broad meaning. *** Thus, to give the statute its legislative intent, a court must not only decide what is operating, it is just as important to decide what is not operating. (Emphasis in original.) State v. Kincaid (1992), 83 Ohio App.3d 341, 346. Here, the evidence presented at trial by the city demonstrated only that appellant was intoxicated and had just positioned himself -9- in the driver's seat of a Jeep in the parking lot of the restaurant. The headlights of the vehicle were on. No evidence was presented to show that the engine was running, that the keys were in the ignition, or that appellant had the keys in his hand or in his control. Although the supreme court has expanded the definition of operation, it still requires some indicia of the intoxicated individual's capability of doing some act which could cause or contribute to the vehicle being put into motion. Here, we find no such evidence existed either directly or circumstantially. Consequently, we find that the appellant's conduct does not fall within the standard established by the Ohio Supreme Court in its definition of operate. Therefore, the evidence submitted, even when construed in a light most favorable to the prosecution, was insufficient to permit any reasonable mind to conclude the essential element of the violation, operation of a motor vehicle by appellant, was proven beyond a reasonable doubt. Accordingly, we find appellant's first and second assignments of error well taken. Given the disposition of Assignments of Error Nos. I and II, it is unnecessary for us to review the remaining assignment of error, which is moot. App.R. 12(A)(1)(c). Judgment reversed. -10- This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said 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 M. PORTER, P.J. and KENNETH A. ROCCO, J. CONCUR JUDGE TIMOTHY E. McMONAGLE 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 .