State v. Lewis

[Cite as State v. Lewis, 2020-Ohio-4633.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

ASHTABULA COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, :
CASE NO. 2019-A-0077
- vs - :

ORLANDO L. LEWIS, :

Defendant-Appellant. :

Criminal Appeal from the Ashtabula Municipal Court Case No. 2018 TRD 01255.

Judgment: Affirmed.

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

Eric D. Hall, P.O. Box 232, Medina, Ohio 44258 (For Defendant-Appellant).

MARY JANE TRAPP, J.

{¶1} Appellant, Orlando L. Lewis aka Orlando Lamar Lewis Bradley (“Mr.

Lewis”), brings this appeal after a jury found him guilty of driving under suspension under

R.C. 4510.11, and the trial court found him guilty of violations of the city’s “display of

lighted lights” and “speed” ordinances.

{¶2} Mr. Lewis raises two assignments of error, arguing that (1) the “evidence

was insufficient to support the jury’s verdict as to speed, lights required, and driving under

suspension”; and (2) his conviction is against the manifest weight of the evidence
“because the jury substituted opinion and speculation for factual evidence in finding him

guilty.” Most notably, he argues that because he has never had a driver’s license, he

could not be convicted of the charge of driving under a driver’s license suspension.

{¶3} Mr. Lewis’s assignments of error are without merit. The state introduced

the uncontradicted testimony of the officer who observed the violations and conducted

the investigation as to Mr. Lewis’s driving record of a 12-point suspension and nine other

open suspensions, which was more than sufficient evidence to support the jury’s verdict

on the only issue submitted for jury determination – the driving under suspension charge.

{¶4} Mr. Lewis’ reasoning, while creative, ignores the plain language of the

applicable statutory law. For purposes of a driving under suspension charge, the

definition of “suspend” and “suspension” found in R.C. 4510.01(H) includes the

“permanent or temporary withdrawal of the privilege to obtain a license, permit, or

privilege * * * for the period of the suspension.” (Emphasis added.)

{¶5} The officer’s testimony was also sufficient to support the trial court’s finding

on the display of lighted lights and speeding charges. Further, the manifest weight of the

evidence supports his conviction. The judgment of the Ashtabula Municipal Court is

affirmed.

Substantive and Procedural History

{¶6} In April of 2018, Mr. Lewis was charged with speed in violation of Ashtabula

Codified Ordinance 333.02(d)(2), display of lighted lights in violation of Ashtabula Codified

Ordinance 337.13, both minor misdemeanors, and driving under suspension in violation

of R.C. 4510.11(A), a first-degree misdemeanor.

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 {¶7} Mr. Lewis pleaded not guilty to the charges. The case proceeded to trial,

with a jury determining the charge of driving under suspension and the trial court

determining the minor misdemeanor charges of speed and display of lighted lights.

{¶8} The state presented the testimony of Lieutenant Rodney Blaney (“Lt.

Blaney”) and introduced Mr. Lewis’s LEADS (“Law Enforcement Automated Data

System”) report as evidence. The defense introduced the traffic citation from the incident

as evidence.

{¶9} Lt. Blaney testified that while on patrol on the night of the incident, at

approximately 1:30 am, his attention was drawn to a gray Nissan Rogue, which was

traveling at a high speed on Lake Avenue at the intersection of West 9th Street, headed

northbound in the city of Ashtabula. He visually estimated the vehicle to be traveling “at

least twice the speed” or approximately 50 miles per hour (“mph”) in a posted 25-mph

zone.

{¶10} At that point, Lt. Blaney, who was parked, pulled out in pursuit in an attempt

to pace the vehicle and initiate a traffic stop. He was unable to pace the vehicle. He

explained to the jury that pacing means “[s]imply getting behind the car with my patrol

car. And I look at the speed that I’m traveling and see what speed I’m at, and I look at

the vehicle that’s in front of me and I take in consideration the gap between us. If that

vehicle is, if the gap between us is getting smaller then that means that I’m traveling at a

faster speed than the vehicle in front of me. If the gap is opening up then the vehicle is

driving at a faster speed than I am. And if the gap remains the same then we’re at the

same speed.”

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 {¶11} By the time Lt. Blaney pulled out, the vehicle was already a few blocks north,

at the intersection of West 6th Street, westbound towards Ohio Avenue. He observed the

vehicle make a “hard” left turn onto West 6th. By the time he reached that intersection,

the vehicle was already on Ohio Avenue, with its brake lights on as it slowed down for a

stop sign. Based upon his training and experience, he opined the vehicle was traveling

at a higher rate than the posted speed limit.

{¶12} Rather than pursuing the vehicle, Lt. Blaney drove to the next street, West

5th Street. As he headed westbound on West 5th Street, the vehicle was approaching

him eastbound. Lt. Blaney was unable to identify the driver, but he did get a look at the

license plate, which he ran through his car computer system. The registered owner was

Kayla Potter, an individual with whom he was familiar. He saw the vehicle in his rearview

mirror pull over near Jiggy’s Bar and turn off its headlights. Lt. Blaney testified that at that

time, he suspected the driver was another individual with whom he was also familiar, Mr.

Lewis.

{¶13} Instead of approaching the vehicle, Lt. Blaney decided to park and monitor

the intersection. After a few minutes, he saw the Nissan Rogue pull back out onto Lake

Avenue with its headlights off. It sped up quickly and made a hard right turn into the

parking lot of Squire’s Donut Shop. The vehicle hit a ramp and pulled behind a brick office

building that is just south of Squire’s Donut Shop. Within moments, the vehicle appeared

on the other side of the brick office building. It still had its headlights off as it sped away

southbound on Lake Avenue.

{¶14} Lt. Blaney testified that he pulled out immediately from West 6th Street onto

Lake Avenue and began pacing the vehicle from behind “as quickly as he could.”

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 {¶15} Lt. Blaney observed that he was traveling at 45 mph and that the gap

between his vehicle and that being pursued was staying the same. The vehicle’s

headlights were still off. At that point, Lt. Blaney activated his overhead emergency lights

to initiate a traffic stop just as the vehicles were going through the intersection of Lake

Avenue and West 9th Street. The Nissan Rogue turned on its headlights and made a

“hard” turn onto West 10th Street.

{¶16} Lt. Blaney called out the traffic stop and asked for additional police officers

to respond to the scene. He approached the driver, who had pulled to the side of the

road, and Lt. Blaney identified the driver as Mr. Lewis. He asked Mr. Lewis to provide his

driver’s license, identification, and insurance, and explained the reasons for the stop.

{¶17} Lt. Blaney testified that Mr. Lewis, who was alone in the vehicle, provided

him with an Ohio Department of Corrections identification card, which contained his

name. Lt. Blaney “explained to him that his driving status was under suspension and also

what the speed violation and the lighted lights required violations.” Lt. Blaney testified

that he had spoken several times with the vehicle’s owner and warned her that Mr. Lewis

“was not permitted to drive any of her vehicles because his driving status is suspended.”

He confirmed the suspension through his car computer after his initial contact with Mr.

Lewis.

{¶18} Mr. Lewis’s LEADS report was then entered into evidence. Lt. Blaney

generally explained a LEADS report. He then noted Mr. Lewis’s most current suspension

is a 12-point suspension and observed that “aside from that he has a total of nine open

driving suspensions that do not permit him to obtain a valid driver’s license. It does not

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permit him to drive a motor vehicle in the state of Ohio on a public road, highway, or

private property.”

{¶19} The LEADS report reflected that Mr. Lewis never had a valid license and

only had a temporary identification card that was issued on October 31, 2000 and expired

on January 11, 2003.

{¶20} Lt. Blaney testified that he issued Mr. Lewis a citation and released him from

the scene. The vehicle was towed because of Mr. Lewis’s suspended status.

{¶21} Upon cross-examination, Lt. Blaney testified that he knew Mr. Lewis has

never had a driver’s license and that he wrote on the citation “Orlando L. Lewis.” He

explained that Orlando L. Lewis is the name that appears on the law enforcement

database and agreed that he identified Mr. Lewis as “Orlando Lamar Lewis Bradley” in

his report. He explained that it is protocol for completion of a traffic citation that the officer

uses the name and spelling of the name that “coincides with the social security number

and date of birth and the specific identifiers” that appear on the computer record.

{¶22} After the witnesses were presented, the defense made a Crim.R. 29

sufficiency of the evidence motion on two grounds, arguing that the citation listed Mr.

Lewis’ name wrong, and because Mr. Lewis has never had an operator’s license, he

cannot be convicted of driving under suspension. The court overruled the motion.

{¶23} The jury found Mr. Lewis guilty of driving under suspension, and the trial

court found Mr. Lewis guilty of display of lighted lights and speed. The court imposed a

$100 fine for the speed charge and a “$0.00” fine for the lights required charge. As for

driving under suspension, the court imposed a $500 fine and court costs, as well as 30

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days in jail with five days for time served. Subsequently, the court stayed Mr. Lewis’s

sentence pending this appeal.

{¶24} We sua sponte remanded the case because there was no final appealable

order. The judgment entry of conviction and sentence made no guilty finding for driving

under suspension. Thus, we remanded for the trial court to clarify Mr. Lewis’s conviction

and sentence and to issue a new judgment entry, if appropriate. The trial court did so,

correcting the conviction and sentencing judgment entry to reflect a conviction on the

driving under suspension charge.

{¶25} Mr. Lewis now raises two assignments of error for our review:

{¶26} “[1.] The evidence was insufficient to support the jury’s verdict of guilty as

to speed, lights required and driving under suspension.

{¶27} “[2.] Appellant’s convictions as to speed, lights required and driving under

suspension were against the manifest weight of the evidence.”

Sufficiency of the Evidence

{¶28} In his first assignment of the error, Mr. Lewis submits that the evidence was

insufficient to support the jury’s guilty verdict as to driving under suspension and,

presumably, the trial court’s guilty verdict as to lights required and speeding charges.

{¶29} “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.” State v. Jenks, 61 Ohio St.3d 259 (1991),

paragraph two of the syllabus. “The relevant inquiry is whether, after viewing the evidence

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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.” Id.

{¶30} A sufficiency challenge requires this court to review the record to determine

whether the state presented evidence on each of the elements of the offense. State v.

Muncy, 11th Dist. Ashtabula No. 2011-A-0066, 2012-Ohio-2830, ¶13. This test involves

a question of law and does not permit us to weigh the evidence. Id., citing State v. Martin,

20 Ohio App.3d 172, 175 (1st Dist.1983).

Display of Lighted Lights Charge

{¶31} Pursuant to Ashtabula Codified Ordinance 337.13(a), “display of lighted

lights,” “at least two State approved lighted lights shall be displayed conforming to State

regulations, one near each side of the front of every motor vehicle, except when such

vehicle is parked subject to the regulations governing lights on parked vehicles.”

{¶32} Ashtabula Codified Ordinance 337.02(a)(1), “lighted lights; measurement of

distances and heights,” further provides that “[e]very vehicle, other than a motorized

bicycle, operated upon a street or highway shall display lighted lights and illuminating

devices as required by this chapter during * * * [t]he time from sunset to sunrise[.]”

{¶33} A review of the evidence and testimony at trial reveals that Lt. Blaney

observed Mr. Lewis speeding without headlights on until Lt. Blaney initiated the traffic

stop, which occurred at approximately 1:30 am. His testimony, which was uncontroverted

and uncontested, is more than sufficient evidence upon which the court could find Mr.

Lewis had been driving without his headlights.

Speeding Charge

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 {¶34} Mr. Lewis next contends that the state failed to introduce sufficient evidence

that he was speeding because Lt. Blaney never established the speed at which he was

driving, and further, that Lt. Blaney testified that he only made a visual estimation of his

speed.

{¶35} A review of Lt. Blaney’s testimony reveals that when he first observed Mr.

Lewis speeding, he was only able to obtain a visual estimate. This is one of the reasons

he decided not to initiate a traffic stop at that time and instead chose to pursue the vehicle.

Lt. Blaney explained the “pacing” technique to the jury. He further testified that he

continued his observations of the vehicle until he was able to pursue and pace the vehicle

at an equal distance with his speedometer at 45 mph while both he and Mr. Lewis were

driving in a 25 mph zone.

{¶36} “Pacing” has been determined to be an acceptable manner for determining

a vehicle’s speed. See, e.g., State v. Ratliffe, 12th Dist. Butler No. CA2019-09-163, 2020-

Ohio-3315, ¶22, citing State v. Vang, 12th Dist. Madison No. CA2018-06-017, 2019-Ohio-

195, ¶11 (traffic stop was valid where a sergeant “was able to determine [appellant’s]

speed by pacing [appellant’s] car with his own patrol car”); State v. Pullin, 5th Dist. Stark

No. 2019CA00105, 2020-Ohio-787, ¶17 (estimation of appellant’s speed was aided by a

mechanical device, i.e., a speedometer).

{¶37} The state introduced sufficient evidence that Mr. Lewis was speeding by Lt.

Blaney’s uncontroverted and uncontested testimony that he paced Mr. Lewis at a

traveling speed of 45 mph in a 25 mph zone.

Driving Under Suspension Charge

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 {¶38} Lastly, Mr. Lewis contends that the state failed to introduce sufficient

evidence that he was driving with a suspended license because he has no license to

suspend; thus, he argues that his conviction is a “legal fiction.” He further argues he

could have been charged with driving without an operator’s license, but since he was not,

there was insufficient evidence for the jury to convict him of driving under suspension of

a license he never had.

{¶39} Mr. Lewis was convicted of “driving under suspension or in violation of

license restriction” in violation of R.C. 4510.11(A), which states, in relevant part that “no

person whose driver’s or commercial driver’s license or permit or nonresident operating

privilege has been suspended under any provision of the Revised Code, other than

Chapter 4509. of the Revised Code, or under any applicable law in any other jurisdiction

in which the person's license or permit was issued, shall operate any motor vehicle upon

the public roads and highways or upon any public or private property used by the public

for purposes of vehicular travel or parking within this state during the period of suspension

unless the person is granted limited driving privileges and is operating the vehicle in

accordance with the terms of the limited driving privileges.”

{¶40} “Suspend” or “suspension” means “the permanent or temporary withdrawal,

by action of a court or the bureau of motor vehicles, of a driver's license, commercial

driver's license, temporary instruction permit, probationary license, or nonresident

operating privilege for the period of the suspension or the permanent or temporary

withdrawal of the privilege to obtain a license, permit, or privilege of that type for the period

of the suspension.” (Emphasis added.) R.C. 4510.01(H).

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 {¶41} Pursuant to R.C. Chapter 4509, which governs financial responsibility for

motor vehicles, “‘[l]icense’ includes any license, permit, or privilege to operate a motor

vehicle issued under the laws of this state including * * * [t]he privilege of any person to

drive a motor vehicle whether or not such person holds a valid license.” (Emphasis

added.) R.C. 4509.01(C)(2).

{¶42} Mr. Lewis’s LEADS report was introduced into evidence at trial, which

revealed his “privilege to obtain a license” was suspended by a 12-point suspension and

nine other open suspensions. At trial, Mr. Lewis never contested his suspensions; rather,

he argued that he could not be charged with driving under suspension because he does

not have a license. Mr. Lewis, however, can still be convicted for driving under

suspension because his privilege to obtain a license has been suspended instead of a

suspension of an issued driver’s license.

{¶43} As the Ninth District explained in State v. Haughawout, 81 Ohio App.3d 7

(9th Dist.1991), “the General Assembly, at least as part of the financial responsibility law,

prohibited the operation of a motor vehicle while a person’s privilege to drive is suspended

as well as his physical license. While the suspension of a license that has already expired

[or never issued] would appear to be a vain act, such a suspension would prevent a

license from being renewed until adequate security is provided and as such serves a

purpose even when the license has otherwise expired [or never issued].” Id. at 8, citing

State v. Green, 8th Dist. Cuyahoga Nos. 52629 and 52630, 1987 WL 18483 (Oct. 15,

1987); see State v. Fitzmaurice, 11th Dist. Lake No. 98-L-99, 1999 WL 1313736, *2 (Dec.

3, 1999) (a person’s only way to regain driving privileges is to apply for a new license at

a later time).

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 {¶44} Rather than being a “legal fiction,” a privilege to obtain a license can be

suspended, and there was uncontroverted evidence by way of the LEADS report and Lt.

Blaney’s testimony that Mr. Lewis’s privilege to obtain a license was, in fact, suspended.

That is more than sufficient evidence from which a jury could find Mr. Lewis guilty of

driving under suspension.

{¶45} Mr. Lewis’s first assignment of error is without merit.

Manifest Weight of the Evidence

{¶46} In his second assignment of error, Mr. Lewis submits that his conviction is

against the manifest weight of the evidence because the jury “substituted opinion and

speculation for factual evidence” in finding him guilty. He contends that Lt. Blaney never

established the speed he was driving, that Lt. Blaney simply made a visual estimation of

his excessive speed, and that his conviction for driving under suspension is a “legal

fiction” because he has never possessed a valid operator’s license.

{¶47} The Supreme Court of Ohio explained the criminal manifest-weight-of-the-

evidence standard in State v. Thompkins, 78 Ohio St.3d 380 (1997). See State v. Wilson,

113 Ohio St.3d 382, 2007-Ohio-2202, ¶25. In Thompkins, the court distinguished

between sufficiency of the evidence and manifest weight of the evidence, finding that

these concepts differ both qualitatively and quantitatively. Id. at ¶25, citing Thompkins at

386. Sufficiency of the evidence is a test of adequacy as to whether the evidence is

legally sufficient to support a verdict as a matter of law, but weight of the evidence

addresses the evidence’s effect of inducing belief. Id., citing Thompkins at 386-87. In

other words, a reviewing court asks whose evidence is more persuasive—the state's or

the defendant's? Id. Although there may be sufficient evidence to support a judgment, it

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could nevertheless be against the manifest weight of the evidence. Id., citing Thompkins

at 387. When a court of appeals reverses a judgment of a trial court on the basis that the

verdict is against the weight of the evidence, the appellate court sits as a “thirteenth juror”

and disagrees with the factfinder's resolution of the conflicting testimony. Id.

{¶48} A manifest weight challenge questions whether the state has met its burden

of persuasion. Thompkins at 390 (Cook, J., concurring). The weight to be given the

evidence and the credibility of the witnesses are primarily for the trier of the facts. State

v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. A jury is free to

believe all, some, or none of the testimony of each witness appearing before it. State v.

Fetty, 11th Dist. Portage No. 2011-P-0091, 2012-Ohio-6127, ¶58. The discretionary

power to grant a new trial should be exercised only in the exceptional case in which the

evidence weighs heavily against the conviction. State v. Fritts, 11th Dist. Lake No. 2003-

L-026, 2004-Ohio-3690, ¶23, citing Martin, supra, at 175.

{¶49} Based upon testimony and evidence at trial, we cannot conclude the jury so

lost its way or created a manifest miscarriage of justice. The state carried its burden of

production as to the sufficiency of the evidence by way of Lt. Blaney’s testimony and Mr.

Lewis’s LEADS report, and the manifest weight of the evidence supports Mr. Lewis’s

conviction.

{¶50} “It is well-settled that when assessing the credibility of witnesses, ‘[t]he

choice between the credibility of witnesses and their conflicting testimony rests solely with

the finder of fact and an appellate court may not substitute its own judgment for that of

the finder of fact.’ * * * Furthermore, if the evidence is susceptible to more than one

interpretation, a reviewing court must interpret it in a manner consistent with the verdict.”

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(Citations omitted.) State v. Rice, 11th Dist. Lake Nos. 2018-L-065 & 2018-L-066, 2019-

Ohio-1415, ¶84.

{¶51} Mr. Lewis’s second assignment of error is without merit.

{¶52} The judgment of the Ashtabula Municipal Court is affirmed.

THOMAS R. WRIGHT, J.,

MATT LYNCH, J.,

concur.

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