[Cite as State v. Brooks, 2017-Ohio-5518.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-160743
TRIAL NO. 16TRD-32914A
Plaintiff-Appellee, :
vs. : O P I N I O N.
EUGENE BROOKS, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Reversed and Appellant Discharged
Date of Judgment Entry on Appeal: June 28, 2017
Paula Boggs Muething, City Solicitor, Natalia Harris, City Prosecutor, and
Christopher Liu, Appellate Director, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Demetra Stamatakos,
Assistant Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Judge.
{¶1} Defendant-appellant Eugene Brooks appeals his conviction for driving
under a 12-point license suspension, in violation of R.C. 4510.037(J). The state
concedes that the conviction must be reversed.
{¶2} At trial, the state presented the testimony of a police officer who stopped
Brooks on July 28, 2016, and cited him for driving under a 12-point suspension. The
state’s evidence included a copy of Brooks’s driving record from the Ohio Bureau of
Motor Vehicles (“BMV”). The driving record reflected a 12-point suspension for the
period of May 3, 2016 to October 30, 2016, but did not reflect that Brooks had been
notified of the suspension.
{¶3} In his first assignment of error, Brooks challenges the sufficiency of the
evidence supporting his conviction. He asserts that the state failed to prove that he had
been notified of his 12-point license suspension, which he argues is a predicate to a
lawful suspension under R.C. 4510.037(J).
{¶4} In a challenge to the sufficiency of the evidence, the question is
whether, after viewing the evidence in the light most favorable to the state, any
rational trier of fact could have found all the essential elements of the crime proved
beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492
(1991), paragraph two of the syllabus.
{¶5} R.C. 4510.037(J) prohibits a person from operating a motor vehicle if his
driver’s license has been suspended as a repeat traffic offender under the section:
Any person whose driver’s * * * license * * * [is] suspended as a repeat
traffic offender under this section and who, during the suspension,
operates any motor vehicle upon any public roads and highways is guilty
of driving under a twelve-point suspension, a misdemeanor of the first
degree.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶6} The term “repeat traffic offender” is not separately defined in R.C.
Chapter 4510. However, under R.C. 4510.037(E), if a person’s driving record indicates
that 12 or more points have been charged against him within a two-year period, “it is
prima-facie evidence that the person is a repeat traffic offender,” and the registrar shall
suspend the person’s driver’s license pursuant to R.C. 4510.037(B).
{¶7} R.C. 4510.037(B) requires the registrar of motor vehicles to “send a
written notice” to any person who has 12 or more points charged against him within a
two-year period, and to impose a class D suspension of the person’s license:
When the registrar determines that the total points charged against
any person under section 4510.036 of the Revised Code within any
two-year period beginning on the date of the first conviction within the
two-year period is equal to twelve or more, the registrar shall send a
written notice to the person at the person's last known address by
regular mail. The notice shall list the reported violations that are the
basis of the points charged, list the number of points charged for each
violation, and state that, because the total number of points charged
against the person within the applicable two-year period is equal to
twelve or more, the registrar is imposing a class D suspension of the
person's driver's or commercial driver's license or permit or
nonresident operating privileges for the period of time specified
in division (B)(4) of section 4510.02 of the Revised Code. The notice
also shall state that the suspension is effective on the twentieth day
after the mailing of the notice, unless the person files a petition
appealing the determination and suspension in the municipal court[.]
{¶8} To summarize, R.C. 4510.037(B) requires written notice to the offender.
And that written notice must include: (1) a list of the reported violations that are the
basis of the points charged; (2) a list of the number of points charged for each violation;
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OHIO FIRST DISTRICT COURT OF APPEALS
(3) a statement that because the total number of points charged against the person
within the applicable two-year period is equal to 12 or more, the registrar is imposing a
class D suspension of the person’s license for the period of time specified in R.C.
4510.02; and (4) a statement that the suspension is effective on the twentieth day after
the mailing of the notice, unless the person appeals the determination and suspension.
{¶9} A 12-point suspension under R.C. 4510.037(B) requires notice be mailed
to the offender. See Townsend v. Dollison, 66 Ohio St.2d 225, 228, 421 N.E.2d 146
(1981) (interpreting analogous former R.C. 4507.40(K)). To prove a violation of R.C.
4510.037(J), the state must prove that the registrar complied with the notice provisions
of R.C. 4510.037(B). See State v. Roberts, 1st Dist. Hamilton No. C-800135, 1981 WL
9650 (Feb. 25, 1981) (notice of a 12-point license suspension is required to prove a
lawful suspension and is necessary to support a conviction under former R.C. 4507.40).
{¶10} The state concedes that it failed to prove that the registrar complied with
the notice provisions of R.C. 4510.037(B). Therefore, we hold that Brooks’s conviction
under R.C. 4510.037(J) was based upon insufficient evidence.
{¶11} We sustain the first assignment of error. We reverse the judgment of the
trial court and discharge Brooks from further prosecution. Our disposition of the first
assignment of error renders the second assignment of error challenging the weight of
the evidence moot.
Judgment reversed and appellant discharged.
MOCK, P.J., and MILLER, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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