[Cite as State v. Neal, 2023-Ohio-584.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-220195
TRIAL NOS. 21-TRC-25673-A
Plaintiff-Appellee, : 21-TRC-25673-B
21-TRC-25673-C
: 21-TRC-25673-D
VS.
:
O P I N I O N.
RODNEY NEAL, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgments Appealed From Are: Affirmed In Part; Appeal Dismissed in Part
Date of Judgment Entry on Appeal: March 1, 2023
Andrew W. Garth, City Solicitor, William T. Horsley, Chief Prosecuting Attorney,
Connor Wood, Appellate Director, Rebecca Barnett, Appellate Director, and Victoria
L. Lowry, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
The Green Law Firm, LPA and F. Harrison Green, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} As Sheila Allen visited her friend Joseph Stiffend on a fall evening in
2021, the two were startled by a loud crash outside. After rushing outside to try to
ascertain the cause of the commotion, the pair noticed Ms. Allen’s parked vehicle
wrecked from behind and largely totaled. Just up the road, planted in a neighbor’s
yard, defendant-appellant Rodney Neal was sitting in the driver’s seat of the vehicle
that had apparently struck her car. It turns out that he was also intoxicated, which
ultimately prompted Mr. Neal being charged with one count of operating a vehicle
while intoxicated, one count of refusing to submit to a chemical test, and one count of
operating a vehicle without reasonable control. After the trial court convicted him of
all three charges, Mr. Neal appealed, insisting that the state failed to present sufficient
circumstantial evidence to sustain his conviction and that his conviction runs counter
to the manifest weight of the evidence. After reviewing the evidence and record before
the trial court, however, we disagree with Mr. Neal’s arguments, overrule his
assignments of error, and affirm the trial court’s judgments.
I.
{¶2} On the day of the accident, Mr. Neal visited two bars with his friends
Demarcus Blye Jr. and Trenton Grant to celebrate the former’s birthday. Driving in
Mr. Blye’s Mazda, the three men were on their way back to his apartment when the
accident occurred. After the Mazda collided with Ms. Allen’s car, it caromed off to the
right before stopping in a front yard roughly 100 yards down the road.
{¶3} Ms. Allen and Mr. Stiffend both testified that, approximately three to
four minutes after hearing the crash, the two ventured out to investigate, only to find
Ms. Allen’s car totaled, and Mr. Neal’s car nearby, with smoke billowing from the hood.
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OHIO FIRST DISTRICT COURT OF APPEALS
While Ms. Allen called 911, Mr. Stiffend witnessed one occupant of the vehicle run
from the rear driver’s side of the car, and another person dash away from the
passenger’s side of the car. He also observed Mr. Neal yelling in pain while sitting in
the driver’s seat of the vehicle. Ms. Allen took some pictures of the scene that the state
submitted into evidence at trial.
{¶4} After the fire department reported to the scene and spoke with Mr. Neal,
Officers Adaryll Birch, Kevin Byrne, and Thomas Stanton arrived. Mr. Neal was
situated in the driver’s seat with his feet outside the car (and obviously injured) when
he spoke to the fire department and Officer Birch. Officer Birch testified that he never
saw Mr. Neal operating the car in any fashion but said that Mr. Neal had control over
the vehicle because he was “behind the [wheel of] the vehicle, able to access the keys
and the steering wheel.” The officers observed Mr. Neal slurring his speech at the
crash site with bloodshot eyes, and they noticed a heavy odor of alcohol. However, no
officer found a set of keys at the scene, and the car, although damaged, was not running
at the time.
{¶5} After initially running away, Mr. Grant ultimately returned to the scene.
When the police arrived, Mr. Grant spoke to Officer Byrne and admitted that he had
been a passenger in the car when it crashed. The officer did not ask him who was
driving nor did he volunteer that information—and the officers never asked Mr. Neal
that question either.
{¶6} At the scene, Mr. Neal resisted both the fire department’s medical
providers and Officer Birch’s efforts to obtain personal information from him.
Although he refused medical treatment, Officer Birch overrode his decision, citing
concern for Mr. Neal’s well-being given that he could not even stand under his own
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OHIO FIRST DISTRICT COURT OF APPEALS
power, and he was dispatched to a local hospital. Officer Stanton met with Mr. Neal
at the hospital and requested a blood-alcohol test, which Mr. Neal refused. According
to Officer Stanton, Mr. Neal was combative in the hospital and uncooperative towards
hospital staff.
{¶7} The state ultimately charged Mr. Neal with operating a motor vehicle
under the influence of alcohol or drugs under R.C. 4511.19(A)(1)(a), an OVI-refusal,
under R.C. 4511.19(A)(2), and operating a vehicle without being in reasonable control
of the vehicle under R.C. 4511.202. At trial, a dispute arose as to whether Mr. Neal
actually drove the vehicle at the time of the accident. Mr. Blye and Mr. Grant both
testified that Mr. Blye was driving that night (rather than Mr. Neal). Mr. Grant further
explained they had all been drinking that night, and that Mr. Neal (for unknown
reasons) moved to the driver’s seat from the passenger seat after the crash as Mr. Grant
exited the vehicle.
{¶8} Although he confirmed aspects of Mr. Grant’s testimony, Mr. Blye
insisted that he had not consumed any alcohol that evening because he was the
designated driver. After the crash, Mr. Blye—who was on probation for an OVI and
who did not have a driver’s license at the time—told the two other occupants he had to
leave before quickly fleeing the scene on his own. Both Mr. Grant’s and Mr. Blye’s
accounts conflicted with Mr. Stiffend’s testimony, who saw two occupants leave the
vehicle at the same time, neither of whom departed from the driver’s seat of the car.
In closing arguments, the state stressed the seriousness of Mr. Neal’s injuries
combined with the existence of a center console between the driver’s and passenger’s
seat, which rendered it nearly impossible for him to have moved from the passenger’s
seat to the driver’s seat after the crash.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶9} Ultimately, the trial court found Mr. Neal guilty on all three counts.
Notwithstanding Mr. Grant’s and Mr. Blye’s testimony, the court found that the two
were either “intoxicated or acted in a way that indicates their untrustworthiness.” On
the other hand, the court did find Mr. Stiffend to be a credible witness. Mr. Neal was
sentenced to 180 days confinement with 150 days suspended and 30 days to be served
in the Community Alternative Sentencing Center program. Mr. Neal then timely filed
this appeal.
{¶10} Although Mr. Neal filed an appeal for four charges, cases 21-TRC-
25673-A-D, based on a review of the record, he was only charged with the three
aforementioned charges. To the extent Mr. Neal pursues an appeal to a fourth charge,
we dismiss that appeal for lack of any conviction.
II.
{¶11} Because Mr. Neal’s first and second assignments of error intertwine, we
consider them together for ease of analysis. Mr. Neal maintains that none of the state’s
evidence at trial sufficiently demonstrated that he “operated” the vehicle as required
for an OVI offense under R.C. 4511.191(A)(1)(a). In a related vein, he posits that the
state failed to present sufficient circumstantial evidence that he caused or had caused
the movement of a vehicle to sustain his conviction.
{¶12} “To determine whether a conviction is supported by sufficient evidence,
‘[t]he 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. Walker, 150 Ohio St.3d 409,
2016-Ohio-8295, 82 N.E.3d 1124, ¶ 12, quoting State v. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492 (1991), paragraph two of the syllabus.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶13} And “ ‘[w]here reasonable minds can reach different conclusions upon
conflicting evidence, determination as to what occurred is a question for the trier of
fact. It is not the function of an appellate court to substitute its judgment for that of
the factfinder.’ ” State v. Shabazz, 146 Ohio St.3d 404, 2016-Ohio-1055, 57 N.E.3d
1119, ¶ 20, quoting Jenks at 279. Finally, whether the evidence sufficed to support the
conviction presents a legal question that we review de novo. State v. Ellison, 178 Ohio
App.3d 734, 2008-Ohio-5282, 900 N.E.2d 228, ¶ 9 (1st Dist.).
{¶14} The statute at issue reads in part: “[n]o person shall operate any vehicle
* * * if, at the time of the operation * * * [t]he person is under the influence of alcohol,
a drug of abuse, or a combination of them.” R.C. 4511.191(A)(1)(a). And the term
“operate” under the Revised Code is defined as “to cause or have caused movement of
a vehicle * * * .” R.C. 4511.01(HHH); see State v. Wilson, Ohio Slip Opinion No. 2022-
Ohio-3202, ¶ 10 (“Thus, today, the definition of ‘operate’ in R.C. 4511.01(HHH) applies
by its own terms to * * * R.C. Chapters 4511 and 4513.”). And “[f]or purposes of R.C.
4511.19, to ‘have caused’ movement of a vehicle is a fact that may be proved by
circumstantial evidence, which inherently possesses the same probative value as direct
evidence.” State v. Anthony, 2016-Ohio-2905, 64 N.E.3d 591, ¶ 21 (5th Dist.), citing
Jenks.
{¶15} Circumstantial evidence is “ ‘proof of facts or circumstances by direct
evidence from which [the factfinder] may reasonably infer other related or connected
facts that naturally flow according to the common experience of people.’ ” State v.
Armstead, 1st Dist. Hamilton No. C-200417, 2021-Ohio-4000, ¶ 13, quoting Shabazz
at ¶ 18. In this case, the trial court in large part focused on Mr. Stiffend’s testimony—
he saw two individuals fleeing from Mr. Neal’s car, from each side of the car, and then
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OHIO FIRST DISTRICT COURT OF APPEALS
found Mr. Neal situated in the driver’s seat of the car. Further bolstering this
conclusion, testimony indicated that Mr. Neal could not move from the driver’s seat of
the car on his own due to his injuries and that the center console made it highly
improbable that he could have moved from the passenger’s seat to the driver’s seat in
the aftermath of the accident as the defense claimed. Moreover, all three officers
testified to Mr. Neal being inebriated in some fashion.
{¶16} Mr. Neal, in his defense, emphasizes the following: his legs were outside
of the vehicle while he sat in the driver’s seat, no key was in the ignition at the time,
the vehicle was stationary, and no testimony or evidence shows that he drove the
vehicle during the incident. According to Mr. Neal, the happenstance of his sitting,
post-accident, in the driver’s seat fails to establish that he actually piloted the car.
{¶17} As he surveys the relevant caselaw, Mr. Neal endeavors to distinguish
cases where courts have found sufficient circumstantial evidence to convict defendants
of an OVI offense. See State v. Jamison, 9th Dist. Summit No. 27664, 2016-Ohio-
5122, ¶ 34 (finding sufficient circumstantial evidence where a witness saw only the
defendant in the vehicle, sleeping in the driver’s seat, but the turn signal was activated,
the vehicle was in gear, and the key was in the ignition with the car running); State v.
Barnard, 5th Dist. Stark No. 2010-CA-00082, 2010-Ohio-5345, ¶ 30-32 (finding
sufficient evidence where the defendant was alone, strapped in the driver’s seat, and
defendant did not deny driving); City of Cleveland v. Crawford, 8th Dist. Cuyahoga
No. 102110, 2015-Ohio-2402, ¶ 19 (finding sufficient evidence where a vehicle
sideswiped another vehicle, and police officers saw defendant stepping out of the
vehicle with keys in his hands and visibly inebriated). He also highlights a case where
this court found insufficient evidence to sustain an OVI conviction. State v. Anderson,
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OHIO FIRST DISTRICT COURT OF APPEALS
1st Dist. Hamilton No. C-160920, 2017-Ohio-8641, ¶ 35 (finding insufficient evidence
where defendant was unconscious in the driver’s seat of a vehicle, the car was turned
off, and parked in a parking lot, the driver’s side door was open, but keys were in the
ignition).1
{¶18} Although, to be sure, no witness testified to observing Mr. Neal driving
the vehicle, abundant circumstantial evidence supports that conclusion, a point
reinforced by Anderson. Unlike in Anderson, Mr. Neal’s car was not parked in a
parking lot—his car was “wrecked * * * in the street.” Id. at ¶ 31. The fact that it was
wrecked, coupled with the condition of Ms. Allen’s car, presents compelling evidence
that the vehicle had recently been “operated,” even if the keys vanished. See Barnard
at ¶ 28, 30 (“We agree with the appellant that the evidence did not demonstrate that
the vehicle was running or that the appellant had the keys to the vehicle. However, we
find under the facts of this case the evidence was sufficient to infer that appellant had
operated the vehicle. * * * [T]he officers came upon appellant’s vehicle, stranded on a
medium island after having run over a number of orange traffic cones.”). Mr.
Stiffend’s testimony about the loud noise, seeing the aftermath of the crash, and
observing individuals leap out of the car certainly supports a conclusion that Mr. Neal
was the driver. And, of course, officers found Mr. Neal sitting in the driver’s seat at
the scene, and they noted the difficulty (in his condition) of surmounting the center
console in the car to move from the passenger seat to the driver’s.
1Mr. Neal also cites to older OVI Ohio cases that analyze the meaning of the word “operate,” but
R.C. 4511.01(HHH) was added by the Ohio Legislature on August 2, 2002, and because cases before
this date do not analyze R.C. 4511.01(HHH), they are largely irrelevant. See 2001 Ohio SB 123.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶19} All of this circumstantial evidence, construed in the state’s favor,
certainly supports Mr. Neal’s conviction. Therefore, we overrule his first and second
assignments of error.
III.
{¶20} Finally, Mr. Neal argues that the trial court erred in convicting him
against the manifest weight of the evidence, focusing predominantly on the trial court
discrediting the testimony of Mr. Blye and Mr. Grant.
{¶21} In reviewing whether the conviction runs counter to the manifest weight
of the evidence, we sit as a “thirteenth juror.” State v. Thompkins, 78 Ohio St.3d 380,
387, 678 N.E.2d 541 (1997). In other words, we review the evidence, the credibility of
witnesses, the entire record. Id. But we will only reverse if the trial court “ ‘clearly lost
its way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.’ ” Id., quoting State v. Martin, 20 Ohio App.3d 172,
175, 485 N.E.2d 717 (1st Dist.1983).
{¶22} And “it is well settled law that matters as to the credibility of witnesses
are for the trier of fact to resolve.” State v. Ham, 1st Dist. Hamilton No. C-170043,
2017-Ohio-9189, ¶ 21. “ ‘When conflicting evidence is presented at trial, a conviction
is not against the manifest weight of the evidence simply because the trier of fact
believed the prosecution testimony.’ ” State v. Robinson, 12th Dist. Butler No.
CA2018-08-163, 2019-Ohio-3144, ¶ 29, quoting State v. Lunsford, 12th Dist. Brown
No. CA2010-10-021, 2011-Ohio-6529, ¶ 17.
{¶23} To be sure, the testimony of Mr. Grant and Mr. Blye provided
countervailing evidence that the trial court could have believed. But we see nothing
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OHIO FIRST DISTRICT COURT OF APPEALS
amiss in its refusal to credit their accounts, particularly when considered against the
array of evidence we have highlighted above: “the trier of fact is in a better position to
observe the witnesses’ demeanor and to weigh their credibility, [so] the weight of the
evidence and the credibility of the witnesses are primarily for the trier of fact.” State
v. Blount, 1st Dist. Hamilton No. C-180296, 2019-Ohio-3498, ¶ 9, citing State v.
DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus.
{¶24} Similar to this case, in Blount, this court concluded that the defendant
was the one operating the vehicle while under an OVI suspension, despite two defense
witnesses testifying that someone other than defendant drove the car. Id. There, the
trial court concluded that the witnesses lacked credibility because of the discrepancies
in their accounts of the events, and this court deferred to the trial court. Id. at ¶ 9. The
trial court found that both Mr. Blye and Mr. Grant were untrustworthy based on their
actions and their inebriated states—and, as the factfinder, it sat in the best position to
make that determination. And simply because the trial court relied on the state’s
theory and Mr. Stiffend’s testimony does not make Mr. Neal’s conviction against the
manifest weight of the evidence. See Robinson, 12th Dist. Butler No. CA2018-08-163,
2019-Ohio-3144, at ¶ 29, quoting Lunsford, 12th Dist. Brown No. CA2010-10-021,
2011-Ohio-6529, at ¶ 17. Therefore, we overrule Mr. Neal’s third assignment of error.
* * *
{¶25} In light of the foregoing analysis, we overrule Mr. Neal’s assignments of
error and affirm the judgments of the trial court. And to the extent that Mr. Neal
appeals the “D” case, we dismiss that appeal for lack of a conviction.
Judgments affirmed in part and appeal dismissed in part.
ZAYAS, P.J., and BOCK, J., concur.
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OHIO FIRST DISTRICT COURT OF APPEALS
Please note:
The court has recorded its entry on the date of the release of this opinion.
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