State v. Bradley-Lewis

[Cite as State v. Bradley-Lewis, 2020-Ohio-3563.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

ASHTABULA COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, :
CASE NOS. 2019-A-0086
- vs - : 2019-A-0087
2019-A-0088
ORLANDO LAMAAR BRADLEY-LEWIS, :

Defendant-Appellant. :

Criminal Appeals from the Ashtabula Municipal Court, Case Nos. 2014 CRB 00006,
2014 TRD 00004 and 2014 TRC 00031.

Judgment: Affirmed in part and modified and affirmed as modified in part.

Michael Franklin, Ashtabula City Solicitor, and Lori B. Lamer, Assistant Ashtabula City
Solicitor, 110 West 44th Street, Ashtabula, OH 44004 (For Plaintiff-Appellee).

Michael A. Hiener, P.O. Box 1, Jefferson, OH 44047 (For Defendant-Appellant).

MATT LYNCH, J.

{¶1} Defendant-appellant, Orlando Lamaar Bradley-Lewis, appeals his

convictions for Obstructing Official Business, Resisting Arrest, Failure to Reinstate a

Driver’s License, and Reckless Operation in the Ashtabula Municipal Court. For the

following reasons, the judgment of the trial court is affirmed in part and modified and

affirmed as modified in part.

{¶2} On January 1, 2014, in Ashtabula Municipal Court Case No. 14TRD00004,

Bradley was issued a ticket charging him with Failure to Reinstate, an unclassified
misdemeanor, in violation of R.C. 4510.21(A), and Reckless Operation, a minor

misdemeanor, in violation of R.C. 4511.20. On the same date, he was issued a ticket for

Operating a Vehicle Under the Influence, a misdemeanor of the first degree, in violation

of R.C 4511.19, in Case No. 14TRC00031. On January 2, 2014, in Case No.

14CRB00006, Complaints were filed charging Bradley with the following: two counts of

Assault, misdemeanors of the first degree, in violation of R.C. 2903.13(A); Aggravated

Menacing, a misdemeanor of the first degree, in violation of R.C. 2903.21(A); Obstructing

Official Business, a misdemeanor of the second degree, in violation of R.C. 2921.31(A);

and Resisting Arrest, a misdemeanor of the second degree, in violation of R.C.

2921.33(A). All offenses arose from an incident occurring on January 1, 2014, and the

matters were handled in a consolidated fashion in the trial court.

{¶3} On January 29, 2014, counsel for Bradley, Sam Thomas, filed a notice of

appearance. On February 25, 2014, counsel failed to appear at a pretrial and Bradley

expressed a desire to obtain different counsel. On May 21, 2014, Thomas filed a motion

to withdraw, asserting that Bradley had failed to make payments and stay in contact.

{¶4} On November 21, 2014, the court issued a Judgment Entry putting out a

warrant for Bradley’s arrest for failure to appear at a pretrial. Bradley was arrested in July

2016.

{¶5} According to the court’s docket, on July 21, 2016, attorney Thomas Brown

filed a notice of appearance. He withdrew on July 29 and on December 22, 2016, Bradley

appeared with attorney Kevin Cafferkey at pretrial hearings.

{¶6} On March 27, 2017, attorney Leo Talikka entered an appearance in all three

cases and proceeded to request discovery and file additional motions and continuances.

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For reasons not present in the record, attorney Talikka moved to withdraw as counsel in

November 2017. At a November 3, 2017 pretrial hearing, the court informed Bradley that

the motion to withdraw had been granted. The court inquired whether he would be hiring

counsel, to which Bradley responded affirmatively and indicated he should obtain counsel

“next week.” The court informed Bradley he “need[ed] to be ready to proceed and go

forward when [the next hearing] is set.” Bradley stated that he could not “control his

attorney dropping out of a case that I already paid him for.” The court responded, “we

can’t control how you threatened your attorney as well,” which allegation Bradley denied.

Bradley appeared at a November 29, 2017 pretrial hearing and the court’s entry indicated

the matter was set for trial and Bradley was “to have new atty. by then.”

{¶7} On December 13, 2017, Bradley filed a pro se motion for recusal, to dismiss

the complaint, and a demand for discovery. On the same date, the court issued a

Judgment Entry, resetting the matter for a jury trial and informing Bradley that he “has the

right to represent himself or hire another attorney to represent him in these cases.” The

entry informed him that he could apply for appointed counsel if he could not afford counsel

and stated that no further continuances would be granted if he was unable to obtain

counsel or lacked diligence in securing an attorney. It denied the motion to recuse.

{¶8} Bradley filed a pro se notice of appeal and proceedings were stayed

pending appeal. His appeal was dismissed due to the lack of a final appealable order.

State v. Bradley-Lewis, 11th Dist. Ashtabula No. 2018-A-0006, et al., 2018-Ohio-1445.

{¶9} Bradley subsequently filed various motions pro se, including motions to

dismiss and for joinder, and a request for discovery.

{¶10} A pretrial hearing was held on September 4, 2018, with the court finding

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that “offers were made and defendant will consider after consulting with his attorney.”

The court’s judgment noted that trial would go forward on September 28, regardless of

his representation status.

{¶11} Attorney David Per Due filed a notice of appearance on September 20,

2018, requested discovery and a bill of particulars, and the matter was continued several

times.

{¶12} On September 10, 2019, the State moved to dismiss the Assault and

Aggravated Menacing charges, which motion was granted.

{¶13} On November 18, 2019, Per Due filed a Motion to Withdraw as Counsel on

the grounds that, when discussing a plea offer with Bradley, he “became belligerent” and

fired him. A pretrial hearing was held on November 21, 2019. Bradley stated that he

wanted to fire his attorney because he had not talked to him since the last time he was in

court, knew “nothing about the case” and did not build a defense. The court stated that it

was “sure [attorney Per Due] knows enough about this case to proceed to jury trial

tomorrow. So here’s your choices. You’re going to proceed pro se with the jury trial

tomorrow. Is that what you’re going to do?” Bradley responded, “Yeah. It’s the same

result regardless. You’re going to do what you want to do anyway. I objected to

everything that you’ve done.” The court inquired if Per Due was asking to withdraw and

he responded affirmatively, indicating there was a disagreement between himself and

Bradley and he believed he must withdraw. The court granted his request. The following

exchange then occurred:

The court: Mr. Bradley, you intend to proceed on your own pro se tomorrow
--

Bradley: Yeah.

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 The court: -- and represent yourself

Bradley: I’m just going to show up.

{¶14} After the State explained its final plea offer, Bradley discussed the merits of

his case and stated: “This is the defense I’m trying to put together with my attorney that I

can’t get ahold of or talk to. When I ask him questions about the case, he just yells at

me. So I’d rather just go and hear it and let you railroad me by myself.” Following the

pretrial, the court issued a judgment entry stating that the motion to withdraw was granted

and Bradley “is proceeding pro se.”

{¶15} A jury trial was held on November 22, 2019, at which the following pertinent

testimony was presented:

{¶16} James Hildebrand, an Ashtabula Police Department patrolman, testified

that on January 1, 2014, at around 1:30 a.m., he was dispatched to a reported fight. He

was subsequently informed that one of the participants in the fight had left the scene and

followed tire tracks in the snow near the area to which he had been dispatched, eastbound

on West 40th Street in Ashtabula. He noted the tire tracks were back and forth on the

road, indicating swerving. Upon following these tracks, he encountered a truck meeting

the dispatch description parked beside a vacant home. He approached the truck and

spoke with three females inside, and one indicated Bradley had been the driver. He

observed footprints in the snow leading away from the driver’s door.

{¶17} Lieutenant Rodney Blaney of the Ashtabula Police Department responded

to the scene where Hildebrand had discovered the suspect’s truck. He followed footprints

in the snow leading from the open driver’s door of the truck and discovered a boot which

was later found to be a match to a boot Bradley was wearing when arrested. Blaney

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followed the tracks until he saw Bradley standing in the road. Bradley ran from Blaney

and tried to enter a residence (later determined to be the home of Bradley’s grandmother)

by forcing the back door open. Bradley failed to comply with orders to get on the ground

and a taser was used. He was secured and taken into custody.

{¶18} Lieutenant Daniel Gillespie of the Ashtabula Police Department testified that

after he arrived at the house to assist Blaney, Bradley failed to comply with commands

and he used his taser and placed Bradley under arrest. Due to the smell of alcohol on

his breath, Gillespie conducted sobriety tests and determined Bradley was impaired, but

no breath test was given.

{¶19} During the trial, Bradley did not conduct cross-examination or present

witnesses. He asserted that he could not perform cross-examination since he was not

an attorney and objected several times to the trial being held due to his lack of counsel.

{¶20} The jury found Bradley guilty of Obstructing Official Business and Resisting

Arrest and not guilty of OVI. The court sentenced Bradley to serve terms of 90 days in

jail, with 45 days suspended, for each offense, to run consecutively, and fines of $150.

The 45-day sentences were suspended on the condition that Bradley commit no similar

offenses within two years. The court found Bradley guilty of Failure to Reinstate and

Reckless Operation and he was fined $250 and $40, respectively, and ordered to pay

costs.

{¶21} Bradley timely appeals and raises the following assignments of error:

{¶22} “[1.] The trial court erred when it conducted a jury trial without securing a

waiver of counsel from appellant.

{¶23} “[2.] The trial court erred when it admitted a non-certified copy of appellant’s

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LEADS into evidence as proof he was driving under suspension.

{¶24} “[3.] The verdict of guilty of reckless operation is against the sufficient and

manifest weight of the evidence.”

{¶25} In his first assignment of error, Bradley argues that the court erred by

ordering the trial to go forward when he was unrepresented by counsel and had not

waived his right to counsel.

{¶26} “Pursuant to the Sixth and Fourteenth Amendments to the United States

Constitution and Section 10, Article 1 of the Ohio Constitution, a criminal defendant has

the right to assistance of counsel for his defense.” (Citation omitted.) State v. Moore,

11th Dist. Trumbull No. 2015-T-0072, 2017-Ohio-7024, ¶ 15. “Absent a knowing and

intelligent waiver, no person may be imprisoned for any offense, whether classified as

petty, misdemeanor, or felony, unless he was represented by counsel at his trial.” State

v. Wellman, 37 Ohio St.2d 162, 309 N.E.2d 915 (1974), paragraph one of the syllabus.

“[C]ourts must ‘indulge in every reasonable presumption against waiver’ of the right to

counsel.” State v. Obermiller, 147 Ohio St.3d 175, 2016-Ohio-1594, 63 N.E.3d 93, ¶

29, citing Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977).

“[T]he state bears the burden of overcoming the presumption against a valid waiver.”

State v. Karnofel, 11th Dist. Trumbull No. 2015-T-0070, 2017-Ohio-428, ¶ 11.

{¶27} “In order to establish an effective waiver of right to counsel, the trial court

must make sufficient inquiry to determine whether [the] defendant fully understands and

intelligently relinquishes that right.” State v. Ross, 2017-Ohio-709, 86 N.E.3d 44, ¶ 21

(11th Dist.), citing State v. Gibson, 45 Ohio St.2d 366, 345 N.E.2d 399 (1976), paragraph

two of the syllabus. A waiver cannot be presumed from a silent record; “[t]he record must

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show, or there must be an allegation and evidence which shows, that an accused was

offered counsel but intelligently and understandingly rejected the offer.” (Citation

omitted.) Wellman at paragraph two of the syllabus.

{¶28} Here, Bradley raises legitimate concerns about the manner in which he

“waived” his right to counsel. The court did not explicitly ask Bradley if he was waiving

his right or discuss the impact of waiving such right. It informed him prior to the final

pretrial that failure to secure counsel could result in him being required to proceed without

counsel and, at the final pretrial hearing the day before trial, stated he had “two options”

but then asked only if he was going to proceed pro se, to which he responded: “Yeah. It’s

the same result regardless. You’re going to do what you want to do anyway. I objected

to everything that you’ve done.” He further stated that he would rather go to trial by

himself and be “railroaded” than maintain current counsel. Throughout the course of the

trial he objected to being required to represent himself. From his interactions with the

court, this was not a scenario where he requested to proceed pro se but one where he

appeared to accept that this was the only choice available. Even if his acquiescence to

the court’s requirement that he proceed pro se constituted waiver, such waiver cannot be

found to have been intelligently given.

{¶29} As to advisements made to Bradley regarding his right to counsel, we do

not find that references to this right were sufficient to constitute a “meaningful dialogue as

to the inherent risks of proceeding pro se.” The transcripts of two pretrial hearings in

which discussions were had with Bradley did not advise of the charges, penalties, or

consequences of proceeding pro se but only communicated to Bradley that the court

would not continue to delay proceedings and that he needed to obtain counsel. The

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December 13, 2017 judgment entry ruling on various motions and informing Bradley that

his failure to obtain counsel may result in further continuances being denied does state

Bradley has the right to counsel but this entry does not constitute a dialogue nor does it

go beyond a general statement that Bradley had the right to counsel. It is necessary that

a defendant be advised of, in addition to the offenses, punishments, and defenses, the

inherent dangers in proceeding pro se. Karnofel, 2017-Ohio-428, at ¶ 19 (“[t]here was no

inquiry directed to Karnofel to ascertain if she understood the seriousness of the trial and

the potential consequences to her liberty”); State v. McCrory, 11th Dist. Portage No. 2006-

P-0017, 2006-Ohio-6348, ¶ 25 (a meaningful dialogue must include discussion of the

offenses, possible punishments, defenses, and “any other facts which are essential for a

total understanding of the situation”) (citation omitted). The record does not demonstrate

a full or meaningful dialogue or explanation of potential outcomes or defenses or the

inherent dangers in proceeding pro se.

{¶30} While no transcript of an arraignment is in the record, we note that the

record contains several preprinted judgment entries used to make notations on

arraignment, counsel, bond, plea, decision, and sentence, which have a checkmark next

to “Arraignment” and the following preprinted statement: “Acknowledged receipt of a copy

of the complaint, has been informed of the nature of the charge and the maximum penalty,

the right to counsel, the right to a continuance and the other rights under Criminal Rule

5.” This court has held that “waiver of counsel at an arraignment is effective for that

proceeding only; before proceeding with a trial, the trial court must independently

determine whether the defendant desires to waive counsel and whether, at that time, he

has made a knowing, intelligent, and voluntary waiver.” (Citation omitted.) State v. Victor,

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11th Dist. Geauga Nos. 2014-G-3220 and 2014-G-3241, 2015-Ohio-5520, ¶ 33. “The

inquiry necessary to establish a constitutionally valid waiver for trial is, by its nature, more

suited to the trial court, and not the arraignment proceeding” since the “nature of

arraignment proceedings does not lend itself to the judge or magistrate conducting an

inquiry sufficient to pass constitutional muster.” (Citation omitted.) Id. at ¶ 34. Thus,

these are insufficient to demonstrate proper waiver as well.

{¶31} The State argues that waiver is demonstrated by the fact that Bradley

appeared at a status hearing pro se, made pro se filings, and had knowledge of the legal

system, emphasizing that he caused delays through firing counsel on several occasions.

It has been held that “in certain situations, the court may be permitted to infer a waiver of

the right to counsel after considering the ‘total circumstances of the individual case

including the background, experience, and conduct of the accused person.’” State v.

Herron, 11th Dist. Lake Nos. 2009-L-119, et al., 2010-Ohio-2050, ¶ 20, citing State v.

Gabel, 11th Dist. Ashtabula No. 2008-A-0076, 2009-Ohio-3792, ¶ 42.

{¶32} It is accurate that Bradley has experience with the court system, has

represented himself in other actions, and filed some pleadings pro se in this matter. It

does appear that he contributed to the delay in this case by hiring and firing or failing to

communicate with several attorneys. However, even presuming his actions should be

construed as implied waiver, this court has found that a valid waiver “cannot be inferred”

when the court has not “engaged in any meaningful dialogue as to the inherent risks of

proceeding pro se.” Gabel at ¶ 41. This court further explained that while “a few cases

have acknowledged that a defendant can impliedly waive the right to counsel” by their

actions in certain instances, “a defendant’s conduct can never constitute waiver in the

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absence of the trial court fully advising on the record of that right.” Karnofel, 2017-Ohio-

428, at ¶ 14-15 (“[I]n order to find an implied waiver of the right to counsel, a court must

examine not only the defendant’s actions, but also whether the trial court fully advised the

defendant ‘on the record of the inherent dangers in proceeding pro se’ * * *. * * * [W]hen

a trial court fails in these respects, waiver cannot be inferred.’”); State v. Koons, 7th Dist.

Columbiana No. 06-CO-67, 2007-Ohio-4985, ¶ 46.

{¶33} For the foregoing reasons, we find there was not proper waiver of Bradley’s

right to counsel. The proper remedy “[w]here a defendant has been convicted of a petty

offense without the benefit of counsel and without executing a valid waiver of counsel” is

that “any sentence of confinement must be vacated although the conviction itself is

affirmed.” Gabel at ¶ 43, citing McCrory, 2006-Ohio-6348, at ¶ 29. Thus, Bradley’s 45-

day suspended sentences for Resisting Arrest and Obstructing Official Business are

vacated.

{¶34} Bradley argues that his convictions should be vacated and the matter

remanded for a new trial rather than vacating his sentence because he has already served

his jail term and the foregoing only applies where a defendant has not actually been

imprisoned. He cites no authority for the proposition that it is proper to have a retrial in

these circumstances.

{¶35} We note that in discussing the correct remedy for denial of the right to

counsel in this situation, it has been held that “the right to appointed counsel under the

Sixth and Fourteenth Amendments in state criminal proceedings is limited to cases that

lead to actual imprisonment.” State v. Boughner, 11th Dist. Geauga No. 98-G-2161, 1999

WL 1297606, *10 (Dec. 17, 1999). However, we do not find that this means a defendant

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who has been sentenced to a term of incarceration for a misdemeanor and serves said

term is entitled to a new trial. This principle has been applied in cases where a term of

incarceration was actually imposed, in contrast to those where incarceration was a

potential punishment but was not imposed by the court.

{¶36} Courts have emphasized that the failure to obtain waiver of counsel in a

petty offense “prevents the trial court from imposing a sentence on the defendant” but

“does not vacate the entire conviction” and that the conviction and fine must be

affirmed. Lyndhurst v. Lasker-Hall, 8th Dist. Cuyahoga No. 102806, 2016-Ohio-108, ¶

14; Boughner at *10; State v. Delong, 2d Dist. Greene No. 2000 CA 102, 2001 WL

470054, *5 (May 4, 2001) (where a defendant was found guilty of a petty offense without

valid waiver of counsel “there is nothing fatally defective with the judgment in general, but

only with the sentence of confinement component of that judgment”). Further, although

there is limited precedent on the precise issue raised here, in a case that led to “actual

imprisonment,” the appellate court still vacated only the sentence although the defendant

had already served a portion of his incarceration prior to the grant of a stay. State v.

Donahoe, 2d Dist. Greene No. 90 CA 55, 1991 WL 38899, *1-2 (Mar. 21, 1991).

{¶37} Moreover, Bradley served his 45-day jail terms as his stay was denied in

the trial court and he did not seek a stay in this court. In many instances, where a

defendant serves his jail time in a misdemeanor, the matter is rendered moot, which

means that even if there was an error, no remedy would be available. See State v. Troyer,

11th Dist. Trumbull No. 2019-T-0036, 2019-Ohio-4929, ¶ 25 (where defendant “fully

served the jail sentence imposed,” the court noted that “even if we found [defendant's]

assignment of error to have merit, there is no ongoing or future penalty from which this

12
court can grant relief”). We note that in the present matter, the appeal is not moot since

Bradley has two 45-day suspended sentences for which he could still be incarcerated.

State v. Singleton, 11th Dist. Portage No. 2019-P-0013, 2019-Ohio-4518, ¶ 7. The fact

that Bradley has served the ordered jail term does not warrant reversing his conviction,

which would be contrary to the authority discussed above.

{¶38} The first assignment of error is with merit.

{¶39} In his second assignment of error, Bradley argues that the trial court erred

when it allowed a non-certified Law Enforcement Automated Data System (LEADS) report

to be admitted since the statute allowing admission conflicts with Ohio Evid.R. 803 and

902 and is unconstitutional.

{¶40} As an initial matter, both the State in the trial court when requesting

admission and Bradley here discuss the admission of LEADS records pursuant to R.C.

4510.11, the statute dealing with the offense of Driving Under Suspension. The offense

for which Bradley was charged and convicted was a violation of R.C. 4510.21, Failure to

Reinstate a License. Nonetheless, both offenses contain a substantially similar provision

regarding the admission of the LEADS report. Pursuant to R.C. 4510.21(B):

Upon the request or motion of the prosecuting authority, a noncertified copy
of the law enforcement automated data system report or a noncertified copy
of a record of the registrar of motor vehicles that shows the name, date of
birth, and social security number of a person charged with a violation of
division (A) of this section may be admitted into evidence as prima-facie
evidence that the license of the person had not been reinstated by the
person at the time of the alleged violation of division (A) of this section. The
person charged with a violation of division (A) of this section may offer
evidence to rebut this prima-facie evidence.

{¶41} The State initially argues that this issue was waived since it was not raised

below. “Failure to raise at the trial court level the issue of the constitutionality of a statute

13
or its application, which issue is apparent at the time of trial, constitutes a waiver of such

issue and a deviation from this state’s orderly procedure, and therefore need not be heard

for the first time on appeal.” State v. Awan, 22 Ohio St.3d 120, 489 N.E.2d 277 (1986),

syllabus. However, such doctrine is discretionary and a court may address the merits of

the argument in cases of “plain error or where the rights and interests involved may

warrant it.” In re M.D., 38 Ohio St.3d 149, 527 N.E.2d 286 (1988), syllabus; State v.

Boczar, 11th Dist. Ashtabula No. 2004-A-0063, 2005-Ohio-6910, ¶ 30. Given the

circumstances in the present matter outlined above, we will address the merits of this

assignment of error.

{¶42} While the State contends that the legislature resolved the issue of

admissibility of noncertified LEADS reports when it amended the law to include the

foregoing provision, this does not address the issue raised by Bradley: whether such a

statute is unconstitutional as in conflict with the Ohio Rules of Evidence.

{¶43} Pursuant to Article IV, Section 5(B) of the Ohio Constitution, “[t]he supreme

court shall prescribe rules governing practice and procedure in all courts of the state * *

*. All laws in conflict with such rules shall be of no further force or effect after such rules

have taken effect.” Thus, the Ohio Rules of Evidence “control over subsequently enacted

inconsistent statutes purporting to govern evidentiary matters.” State v. O’Neill, 11th Dist.

Portage No. 2012-P-0116, 2013-Ohio-2619, ¶ 16, citing State ex rel. Ohio Academy of

Trial Lawyers v. Sheward, 86 Ohio St.3d 451, 491, 715 N.E.2d 1062 (1999). “In order to

demonstrate the legislature infringed upon the judiciary’s power to enact evidentiary rules

appellant must demonstrate the legislation contradicts or is an attempt to supersede an

existing evidentiary rule.” Boczar at ¶ 38.

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 {¶44} Bradley argues there is a conflict between the statutory language outlined

above and Ohio Evid.R. 803 and 902. Evid.R. 803 provides exceptions to the rule against

hearsay, including public records and reports, i.e., “[r]ecords, reports, statements, or data

compilations, in any form, of public offices or agencies, setting forth (a) the activities of

the office or agency, or (b) matters observed pursuant to duty imposed by law as to which

matters there was a duty to report.” Evid.R. 803(8). It does not speak to whether such

records must be certified. There is no conflict as to Evid.R. 803 specifically because it

allows the admission of a LEADS report as a public record. See Cleveland v. Craig, 8th

Dist. Cuyahoga No. 99619, 2013-Ohio-5742, ¶ 37 (“a LEADS printout is admissible as a

public record under Evid.R. 803(8)(a)”).

{¶45} Evid.R. 902 lists and describes documents which can be admitted without

“extrinsic evidence of authenticity,” including certified copies of public records. Since R.C.

4510.21 provides for admission of noncertified public records, Bradley argues this statute

conflicts with Evid.R. 902. However, Evid.R. 902(10) specifically provides that extrinsic

evidence as a condition precedent to authenticity is not required with respect to “[a]ny

signature, document, or other matter declared by any law of a jurisdiction, state or federal,

to be presumptively or prima facie genuine or authentic.” The Staff Notes state that “Rule

902(10) is a catch-all reminder that the examples of self-authentication set forth in Rule

902 are not the only examples of self-authentication” and note that other examples of self-

authentication could be found in the Revised Code. The legislature’s creation of a statute

that allows for admission of a non-certified LEADS report as prima facie evidence of

failure to reinstate a license is not contradictory to Evid.R. 902 or an attempt to modify the

rule but, instead, is permissible under its language. Since we do not find that the statute

15
conflicts with the Rules of Evidence, the statute is not unconstitutional and admission of

the evidence was proper.

{¶46} The second assignment of error is without merit.

{¶47} In his third assignment of error, Bradley argues that the conviction for

Reckless Operation was against the weight and sufficiency of the evidence since the

State failed to prove that he was operating a motor vehicle in “willful or wanton disregard

for the safety of persons or property.”

{¶48} Sufficiency is a test of the adequacy of the evidence to determine “whether

the evidence is legally sufficient to support the * * * verdict as a matter of law.” (Citation

omitted.) State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). “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,” i.e., “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, 61 Ohio St.3d 259, 574 N.E.2d

492 (1991), paragraph two of the syllabus.

{¶49} In contrast, “weight of the evidence addresses the evidence’s effect of

inducing belief” and warrants consideration of “whose evidence is more persuasive - - the

state’s or the defendant’s?” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865

N.E.2d 1264, ¶ 25. An appellate court considering whether a verdict is against

the manifest weight of the evidence must consider all the evidence in the record, the

reasonable inferences, the credibility of the witnesses, and whether, “in resolving conflicts

16
in the evidence, the jury clearly lost its way and created such a manifest miscarriage of

justice that the conviction must be reversed and a new trial ordered.” Thompkins at 387,

quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

{¶50} Pursuant to R.C. 4511.20(A), to convict Bradley of Reckless Operation, the

State was required to prove beyond a reasonable doubt that he did “operate a vehicle * *

* on any street or highway in willful or wanton disregard of the safety of persons or

property.” “[W]hen the operator of a vehicle, with full knowledge of the surrounding

circumstances, recklessly and inexcusably disregards the rights of other motorists, his

conduct may be characterized as wanton.” State v. Earlenbaugh, 18 Ohio St.3d 19, 22,

479 N.E.2d 846 (1985).

{¶51} Here, the testimony of the officers demonstrated that Bradley had operated

the vehicle in question, which matched the description of the one leaving the scene of the

reported assault. When the vehicle was located, the driver’s door was open, footprints

were present in the snow leading away from the driver’s door, and the boot located in the

footprints matched the one boot worn by Bradley when he was arrested. Bradley does

not specifically dispute that he had driven the truck, but, rather, argues there was no

evidence he had driven recklessly.

{¶52} Hildebrand testified that he had pursued the truck from the scene of the

assault and ultimately followed tire tracks in the snow to the location of that truck, the one

driven by Bradley. Although he did not observe Bradley’s driving, he saw that the tracks

went back and forth from the north and south side of the road “swerving down the

roadway” and that this pattern of moving from one side of the road to another continued

down the road. Testimony also indicated that Bradley showed signs of impairment due

17
to alcohol following his arrest, admitted to drinking, and smelled of alcohol.

{¶53} Considering these circumstances, we find the weight and sufficiency of the

evidence support a conviction for Reckless Operation. In determining whether a

conviction for Reckless Operation is supported by the evidence, courts have considered

a variety of circumstances, including whether the defendant has driven between traffic

lines, traveled in a manner unsafe for the current road conditions, and or was under the

influence of alcohol. Cleveland v. Davis, 8th Dist. Cuyahoga No. 107138, 2019-Ohio-

543, ¶ 21 (“driving between traffic lanes * * * could constitute a willful or

wanton disregard for the safety of persons”); State v. Vanoss, 11th Dist. Trumbull No.

2009-T-0047, 2010-Ohio-1453, ¶ 13 (traveling at the posted speed limit can be reckless

operation when it is unsafe given the road conditions, including dark, slippery, ice and

snow covered roads); State v. Tamburin, 145 Ohio App.3d 774, 780-781, 764 N.E.2d 503

(9th Dist.2001) (the court can consider a defendant’s intoxication in conjunction with other

factors, such as failure to stay in marked lanes when determining recklessness). Given

that the facts demonstrate Bradley was driving in snowy conditions back and forth across

both sides of the road while impaired by alcohol, we find the evidence supports a

conviction for Reckless Operation.

{¶54} The third assignment of error is without merit.

{¶55} For the foregoing reasons, Bradley’s convictions in the Ashtabula Municipal

Court are affirmed in part and modified and affirmed as modified in part. Costs to be

taxed against the parties equally.

TIMOTHY P. CANNON, P.J.,
MARY JANE TRAPP, J.,
concur.

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