COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 75491 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-appellee : : AND vs. : : OPINION HOMER HORVATH : : Defendant-appellant : : : DATE OF ANNOUNCEMENT : DECEMBER 16, 1999 OF DECISION : : CHARACTER OF PROCEEDINGS : Criminal appeal from : Court of Common Pleas : Case No. CR-366072 : JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: ILLIAM D. MASON uyahoga County Prosecutor ATRICK J. LAVELLE ssistant County Prosecutor he Justice Center, 8th Floor 200 Ontario Street leveland, OH 44113 ILLIAM L. BLAKE, ESQ. 40 Rockefeller Building 14 Superior Avenue, N.W. leveland, OH 44113-1306 -2- OHN T. PATTON, J.: A jury found defendant Homer Horvath guilty of driving while ntoxicated, a violation of R.C. 4511.19. The complaining witness testified that he had been attending n outdoor party at his brother's house. The brother lived next oor to an apartment building where defendant lived. During the ourse of the party, the complaining witness saw defendant and a riend talking loudly and slurring their words. They walked to ront of a van parked very near to where the complaining witness arked his car and relieved themselves, much to the surprise of the artygoers. Defendant and his companion entered the van. The two pent three minutes trying to start the van. When they finally did tart the van, they began to back down the driveway. It became lear to the complaining witness that defendant was going to strike is car. The complaining witness and other partygoers began yelling or defendant to stop. Defendant did not listen, even though the indows of the van were open. Defendant struck the complaining itness' car and locked bumpers. The complaining witness instructed his mother to call the olice. It turns out the complaining witness' brother was a police fficer. The brother identified himself as an officer and, as efendant tried to rock the van free from the car, told defendant o stop. When defendant failed to comply, the brother reached into he van, shifted the van into park and turned off the ignition. efendant and his friend stumbled out of the van and the partygoers eld them while waiting for the police to arrive. -3- The officer who responded to the scene testified that defendant nd his friend were obviously intoxicated. They smelled of alcohol, ad trouble walking and were slurring their words. Defendant failed wo sobriety tests and eventually refused to do any more. The fficer arrested defendant for driving while intoxicated. Defendant efused to take a breath test. I The first assignment of error complains the court abused its iscretion by interrupting defense counsel's closing argument by elling the jury that a person could be guilty of driving while ntoxicated even if that person was involved in an accident that was ntirely the other driver's fault. Although admitting he struck the omplaining witness' bumper, defendant tried to argue that the short istance he drove before striking the car made in unlikely that lcohol contributed to his driving and that he struck the car, pparently, out of negligence, not intoxication. Defendant's argument under this assignment of error demon- trates a misunderstanding of the nature of a driving while under he influence charge. R.C. 4511.19(A)(1) states that no person halloperate any vehicle while that person is under the influence f alcohol. It is not a violation of the law to drink and drive t is only a violation of the law to drive while under the influence f alcohol. The words `under the influence of intoxicating liquor' ave been interpreted to mean that the accused must have consumed ome intoxicating beverage in such quantity that it affected his ctions, reactions, conduct, movements, or mental processes in such -4- manner as to deprive the accused of that clearness of intellect nd control of himself which he otherwise would have possessed under he circumstances then existing. State v. Moine (1991), 72 Ohio pp.3d 584, 586, quoting State v. Titak (1955), 75 Ohio Law Abs. 30. During closing argument, defense counsel admitted defendant rank beer on the day of the offense, but argued the following to he jury: But when you get right down on top of it, the basic question that the prosecution has to prove to you is, that if he had not had those beers to drink, Homer, unquestionably, beyond a reasonable doubt, would not have backed up, hit that other car's bumper and locked bumpers. If there's a reasonable doubt as to whether Homer * * * could have been that negligent of a driver, but without having any beer or alco- hol in his system at all, he still could have locked bumpers. He still could have had this minor accident, if you even can call it an accident, then you must find him not guilty, because the prosecution has to prove beyond a reasonable doubt that it is the alcohol which caused the condition. The court then interjected, saying, the State does not have he burden of proof that the accident was caused by intoxication. he charge which the Court will give to the jury relates to driving nder the influence. * * * The accident is not an element of the ffense. Defense counsel continued: The only improper driving alleged by Homer Horvath is in backing up hitting the car behind him and locking bumpers. This is the only improper driving. -5- There is no claim that we have had down the street that he ran a stop sign, that he ran a stoplight, that he did anything improper relative to driving. He was in the car, possi- bly seconds at the most. The other car is right behind the car sticking into the driveway. He backs up and hits the bumper of the car behind. Unfortu- nately, they're apparently not of the same height and the bumpers lock. This is his improper driving, what causes his improper driving. If his improper driving was caused by the fact that he had those beers, if he would- n't have done this if he wouldn't have had the beers The court again interrupted defense counsel and told the jury: * * * I have to stop you and just be patient for a minute. The defendant is charged with driving under the influence. That is to say, that in June of 1998, he's charged, according to the indictment, with unlawfully operating a motor vehicle within a State of Ohio while under the influence of alcohol, a drug of abuse or alco- hol and a drug of abuse. Now, this is a charge of consequence. That is to say, under the influence of alcohol or a drug of abuse or alcohol and a drug of abuse. Now the sole question is alcohol. So the question for you to decide, and I'll give you the full charge on this, is whether he operated a vehicle within the State of Ohio while under the influence of alcohol. All right. Now the jury will consider all the sur- rounding facts and circumstances, and, of course the jury is entitled to consider the incident that took place, the collision, and the jury is also entitled to take into account what the cause of that collision might have been. But keep in mind that the elements of the offense do not relate to an automobile accident per se, which is another way of saying that a person could be driving under the influ- ence, could be involved in an accident which would not be his or her fault. A person could be driving down through an intersection. Someone else could break a red lightand cause an accident. The question you will be called upon to decide is not the cause -6- of the accident, but the issue of driving under the influence. Although trial counsel is generally accorded considerable atitude in closing arguments, that latitude is tempered by the ourt's discretionary control over arguments that might mislead the ury. See Kubiszak v. Rini's Supermarket (1991), 77 Ohio App.3d 79, 688. Defendant had the right to argue under the facts of the ase that his consumption of beer was so insignificant that it did ot impair his ability to operate a motor vehicle. In line with hat argument, he could make the claim (however unique) that he ould have struck the car even if he were sober. But defendant ould not argue that the state bore the burden of showing that if efendant had not had anything to drink that he would not have hit he car's bumper. The law requires the state to show that a driver's ability to rive is impaired not that actual driving is impaired. See State . Rohr (Dec. 30, 1998), Wayne App. No. 18908, unreported. The ourt's interjections properly clarified that point. The first ssignment of error is overruled. II The second assignment of error complains the court erred by aving the jury decide the issue of whether defendant had prior DUI onvict ions. He claims the prior convictions merely served to nhance the penalty for the charged DUI offense so they should not ave been submitted. In State v. Allen (1987), 29 Ohio St.3d 53, 54-55, the supreme ourt held that if the fact of a prior conviction transforms a crime -7- tself by increasing its degree, rather than simply enhancing its enalty, the prior conviction is an essential element of the crime nd must be proved by state. Although a violation of R.C. 511.19 (A) is generally a misdemeanor offense, if a person has reviously been convicted of three or more violations of the drunk riving law within six years, the currently charged drunk driving ffense is a fourth degree felony. See R.C. 4511.99(A)(4). Because he prior convictions elevate the degree of the offense, they form n essential element of the charge and must be proved beyond a easonable doubt.. See State v. Payne (Mar. 31, 1999), Lake App. o. 97-L-284, unreported. The court did not err by submitting the rior offenses to the jury. The second assignment of error is verruled. III The third assignment of error complains the court erred by xcusin g a juror in midst of deliberations and substituting an lterna te juror with instructions that the jury must begin its eliberations anew. Crim.R. 24(F) states, an alternate juror who does not replace regular juror shall be discharged after the jury retires to onsider its verdict. In State v. Girts (1997), 121 Ohio App.3d 39, 556, we noted that while it is a general rule that alternates ay not replace regular jurors after the jury retires to deliberate, he general rule is not absolute Ohio courts have recognized that, lthough expressed in mandatory terms, Crim.R.24(F) does not state per se cause for reversal. A defendant may knowingly waive the -8- rocedur e set forth in Crim.R. 24(F). Girts, 121 Ohio App.3d at 57-558. The court did not excuse the alternate jurors, instead telling hem they would be kept segregated and brought back into the ourtroom . At the close of the first day of deliberations, the ourt learned that deliberations would need to continue the ollowing day, but that one of the jurors had a spouse whose husband ould be undergoing surgery the following day. The court told ounsel, I will have to excuse her and I'll put one of the lternate s in her place and instruct the jury that they have to egin all over again with their deliberations. When asked if he bjected to that procedure, defense counsel stated, Doesn't matter. guess that's the law. The court pressed defense counsel to make n affirmative statement of objection. Counsel took a short recess nd conferred with defendant. When he next spoke with the court, ounsel asked the court if could certify that there is authority or the alternate to take the place of one of the regular jurors fterthey have started? The court stated its belief that it was a custom and practice throughout the United States that this takes lace, you tell the jury they have to begin again all over because ou don't want the one juror not being included into all the iscussions. The court told counsel it could order the juror to ome back after her spouse's medical procedure, but defense counsel eplied, No. No. When it became clear that a delay might last hreeor more days, defense counsel stated, Well, if the Court is ure there's law to the affect [sic] that you can do this, we'll -9- gree. The court reminded counsel it was his duty to research the aw. Counsel replied, I have never researched the question. The ourt offered to have the matter decided by eleven jurors, but efense counsel said, I guess stick in the alternative. The court tated, You authorize me to go in with the reporter and tell them hey can go home for the evening and bring in the alternate? efense counsel replied, Yes. With this background in mind, we find defendant knowingly aived any objection to the court substituting the alternate juror. he circumstances were such that at the time the court informed ounsel that one of the jurors might need to be excused, four ptions existed: (1) the court could have declared a mistrial; (2) t could have ordered the case submitted to eleven jurors; (3) it ould have delayed deliberations until the juror was able return to ervice; or (4) it could have substituted an alternate. Ordinarily, he fourth option would be unavailable because alternate jurors must e dismissed once deliberations begin. Dismissal of alternates once ury deliberations begin is the rule, and nothing contained in this pinion should be taken as suggesting otherwise. However, the ircumstances were such that defense counsel could make the informed ecision to have the court replace the juror with an alternate and estart deliberations. The record shows defense counsel considered he other three options and rejected them. Because counsel agreed o permit the court to replace the juror with an alternate, we find o error. The third assignment of error is overruled. IV -10- The fourth assignment of error complains the court erred by ermitting evidence relating to the intoxicated condition of efendant's friend at the time of the arrest. The evidence showed efendant's friend became unruly after defendant struck the omplaining witness' car, and the police eventually arrested the riend for disorderly conduct. Defendant argues this evidence only ended to show his guilt by association with the friend. Evidence is relevant if it tends to make the existence of any act that is of consequence to the determination of the action more robable or less probable than it would be without the evidence. vid.R. 401. Although evidence may be relevant, the court may xclude it if its probative value is substantially outweighed by he danger of unfair prejudice, of confusion of issues, or of isleading the jury. Evid.R. 403; State v. Morales (1987), 32 Ohio t.3d 252, 258. Rulings on the admissibility of evidence are ubject to an abuse of discretion review. State v. Allen (1995), 3 Ohio St.3d 626, 632-633. When the state elicited testimony about the friend, the court wicecautioned the jury that the testimony relating to the friend as not to be taken as evidence that defendant committed the crime. he first time, the court told the jury: Ladies and gentlemen, this testimony is admit- ted to give you background and the totality of the circumstances. The evidence regarding that person's conduct does not apply to the defen- dant. Do you understand? It's just to give you some background information as to the surrounding circumstances. It's for you to decide whether or not the defendant has committed the crime alleged, the -11- DUI crime which has been alleged in the indict- ment. The testimony regarding what someone else did, unless it directly involves the defendant, would not be attributable to the defendant, but admitted for that limited pur- pose, and to the extent that it would assist you in judging the surrounding circumstances in the context of the specific allegations. All understand that? At the next point at which the friend's conduct arose during rial, the court again interrupted the witness and told the jury: Let me just make this observation legally, that testimony is only offered for background infor- mation regarding the surrounding circumstances and the sobriety of that individual.. It is not the issue in this case. You understand that? During the course of the trial, the court may give cautionary nstructions relating to the law and the duty of the jury. Crim.R. 0(B). Actions by the trial court pursuant to Crim.R. 30(B) are a iscretionary matter and will not be disturbed upon review unless he court abuses its discretion. State v. Frost (1984), 14 Ohio pp.3d 320. The court carefully instructed the jury to consider the vidence about the friend's condition only as background informa- ion.It made clear that this background information could not be sed as evidence of defendant's guilt. We presume the jury followed he court's instructions. State v. Goff (1998), 82 Ohio St.3d 123, 35. The fourth assignment of error is overruled Judgment affirmed. -12- It is ordered that appellee recover from appellant its costs erein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court irecting the Common Pleas Court to carry this judgment into xecution. The defendant's conviction having been affirmed, any ail pending appeal is terminated. Case remanded to the trial court or execution of sentence. A certified copy of this entry shall constitute the mandate ursuant to Rule 27 of the Rules of Appellate Procedure. ERRENCE O'DONNELL, P.J. ICHAEL J. CORRIGAN, J., CONCUR. JOHN T. PATTON JUDGE -13- .B. This entry is an announcement of the court's decision. See pp.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will be ournalized and will become the judgment and order of the court ursuant to App.R. 22(E) unless a motion for reconsideration with upporting brief, per App.R. 26(A), is filed within ten (10) days f the announcement of the court's decision. The time period for eview by the Supreme Court of Ohio shall begin to run upon the .