State v. Harris

92 N.E.3d 1283

2017 Ohio 5594

STATE of Ohio, Plaintiff–Appellee,

v.Mason Angilo HARRIS, Jr., Defendant–Appellant.

NOS. C–160279

C–160280

C–160281

Court of Appeals of Ohio, First District, Hamilton County.

Date of Judgment Entry on Appeal: June 30, 2017

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan, Assistant Prosecuting Attorney, for Plaintiff–Appellee.

Raymond T. Faller, Hamilton County Public Defender, and Carrie Wood, Assistant Public Defender, for Defendant–Appellant.

OPINION .

Cunningham, Presiding Judge.

{¶ 1} Defendant-appellant Mason Angilo Harris, Jr., appeals from the trial court's denial of his post-verdict motion for judgment of acquittal. In these consolidated appeals, he claims that following a jury trial, the jury returned inconsistent verdicts on two offenses of operating a vehicle under the influence of alcohol ("OVI") pursuant to R.C. 4511.19(A), and that the state failed to present evidence to establish that Harris had had a prior OVI conviction within 20 years—an element of one of the two OVI offenses. Because the two OVI charges were decided independently and separately, and one conviction was not dependent upon a finding of guilt on the other charge, and because Harris had entered into a stipulation as to his prior OVI conviction, we affirm the trial court's judgment in the appeal numbered C–160279. Because Harris abandoned his two other appeals, we dismiss them.

I. The Traffic Stop and Jury Trial

{¶ 2} Officer Thomas Shreve, a Montgomery, Ohio police officer, observed a motor vehicle operated by Harris in the left-turn-only lane at the interchange of Ronald Reagan Highway and Interstate 71 northbound. Instead of turning left, however, Harris' vehicle proceeded straight through the interchange and turned onto the southbound Interstate 71 ramp. Officer Shreve stopped the vehicle.

{¶ 3} Officer Shreve approached the vehicle and detected the odor of alcohol coming from inside the vehicle. Harris told the officer that his driver's license was suspended and that he and his passenger had just left a local tavern where Harris had consumed two beers. Officer Shreve had Harris step from the vehicle. He smelled alcohol on Harris' person and observed that his eyes were bloodshot. When the officer asked Harris to submit to a field sobriety test, Harris declined. Harris explained, "I've been there before. You can see it on my jacket that I've been there on the DUI's [sic] and all that. I understand how it goes." Officer Shreve then placed Harris under arrest for operating his vehicle under the influence of alcohol. At the police station, Harris also refused to submit to a breathalyzer test of his blood alcohol level.

{¶ 4} Officer Shreve issued a uniform traffic ticket charging Harris with four offenses: driving under a suspended license, disobeying a traffic control device, and two OVI charges. Because Harris had operated a motor vehicle under the influence of alcohol, had had a prior OVI conviction in 2015, and had refused to submit to a chemical test of his blood alcohol level, he was charged, in the case numbered C–15TRC–31149A, with operating a motor vehicle under the influence of alcohol, in violation of R.C. 4511.19(A)(2). In the case numbered C–15TRC–31149B, Harris was charged with operating a motor vehicle under the influence of alcohol in violation of R.C. 4511.19(A)(1)(a).

{¶ 5} Harris entered pleas of not guilty to the two OVI offenses and the cases proceeded to a jury trial in Hamilton County Municipal Court. At the beginning of the trial, the state offered a certified copy of Harris' prior OVI conviction and Harris did not contest its use. Officer Shreve testified about the traffic stop and Harris' refusal to submit to the breathalyzer test. Without objection, the trial court instructed the jury that:

The defendant is charged with two separate and distinct offenses. You must consider each offense and the evidence applicable to each offense separately and you must state your verdict as to each * * * offense uninfluenced by your verdict as to each of the other offenses. The defendant may be found guilty or not guilty of any one or all two of the offenses charged.

{¶ 6} When the jury retired to consider its verdicts it was given the certified copy of Harris' prior OVI conviction.

{¶ 7} During its deliberations, the jury panel informed the court that they were unsure if they were required to consider one of the charges only if they had first found Harris guilty of the other charge. The trial court told the jury, "Well, there are two separate offenses, and I would just tell you to look at the jury instructions and it's—consider the offenses separately."

{¶ 8} The jury continued its deliberations and found Harris not guilty of R.C. 4511.19(A)(1)(a), and guilty of R.C. 4511.19(A)(2). The trial court thanked the jurors for their service and excused them.

{¶ 9} Harris immediately made an oral Crim.R. 29(C) motion for a judgment of acquittal on grounds that the verdicts were inconsistent. He maintained that if the jury had acquitted him of operating a vehicle under the influence of alcohol under R.C. 4511.19(A)(1)(a), "it was not possible that he could [commit the] operate a vehicle under the influence and refuse [offense]" as the jury had found. He concluded that, "Operating a motor vehicle under the influence is a part of the other charge, judge." The trial court denied the oral motion on the grounds that, as it had instructed the jury, the charges were separate and independent offenses.

{¶ 10} Within the 14–day time period provided, Harris filed a motion for a new trial pursuant to Crim.R. 33(A)(4) and renewed his motion for judgment of acquittal pursuant to Crim.R. 29(C). Each motion raised only the single issue of the sufficiency of the evidence to support the inconsistent verdicts. These motions were denied and Harris brought these appeals.¹

II. Inconsistent Verdicts

{¶ 11} In his first assignment of error, Harris contends that the trial court erred in denying his Crim.R. 29(C) post-verdict motion for judgment of acquittal on the grounds that the jury's verdicts were inconsistent. The gravamen of Harris' argument is that the jury's verdict acquitting him of driving under the influence under R.C 4511.19(A)(1)(a) negated an essential element of R.C. 4511.19(A)(2) and necessitated an acquittal on that charge as well.

a. Crim.R. 29(C) motion

{¶ 12} A Crim.R. 29 motion challenges whether the state has presented evidence upon which a jury could have found the defendant guilty. See Dayton v. Rogers , 60 Ohio St.2d 162, 163, 398 N.E.2d 781 (1979), overruled on other grounds , State v. Lazzaro , 76 Ohio St.3d 261, 667 N.E.2d 384 (1996).

{¶ 13} Crim.R. 29(C) provides, in pertinent part, that:

If a jury returns a verdict of guilty or is discharged without having returned a verdict, a motion for judgment of acquittal may be made or renewed within fourteen days after the jury is discharged or within such further time as the court may fix during the fourteen day period. If a verdict of guilty is returned, the court may on such motion set aside the verdict and enter judgment of acquittal. * * * It shall not be a prerequisite to the making of such motion that a similar motion has been made prior to the submission of the case to the jury.

{¶ 14} Thus a Crim.R. 29(C) motion is not merely a delayed motion for judgment of acquittal. It can be used, as here, to challenge defects in the sufficiency of the evidence that only become apparent after the jury returns its verdicts. E.g., State v. Glenn , 1st Dist. Hamilton No. C-090205, 2011-Ohio-829, 2011 WL 686202, ¶ 68.

{¶ 15} We note as an initial matter that Harris urges this court to review this assignment of error under a plain-error standard as if he had forfeited his challenge to the inconsistent verdicts. See State v. Rogers , 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 21. But Harris has preserved the inconsistent-verdicts issue for review. A defendant does not forfeit issues that he has raised with specificity in a timely Crim.R. 29(C) motion. Here, Harris raised the inconsistent-verdicts issue, and only that issue, in both his oral and his written post-verdict motions for judgment of acquittal. His oral and written motions drew the trial court's attention to the alleged error at a time when the error could have been corrected or avoided. And he has assigned the denial of his post-verdict motion as error on appeal. Thus Harris has preserved the inconsistent-verdicts issue for appellate review. See State v. Morgan , 181 Ohio App.3d 747, 2009-Ohio-1370, 910 N.E.2d 1075, ¶ 14 (1st Dist.) ; see also State v. Quarterman , 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15.

{¶ 16} The standard for reviewing a post-verdict motion for judgment of acquittal made pursuant to Crim.R. 29(C) is identical to the standard for reviewing a motion for an acquittal made during a trial pursuant to Crim.R. 29(A). See State v. Metcalf , 1st Dist. Hamilton No. C–950190, 1996 WL 411620, *1 (July 24, 1996) ; see also State v. Misch , 101 Ohio App.3d 640, 650, 656 N.E.2d 381 (6th Dist. 1995). On review of a Crim.R. 29(C) post-verdict motion for judgment of acquittal, a court must view the evidence in a light most favorable to the state to determine if reasonable minds could differ as to whether each material element of the crime has been proven beyond a reasonable doubt. See State v. Callins , 1st Dist. Hamilton No. C–930428, 1994 WL 376752, *1 (July 20, 1994), citing State v. Bridgeman , 55 Ohio St.2d 261, 381 N.E.2d 184 (1978), syllabus; but see State v. Wright, 1st Dist. Hamilton. No. C-080437, 2009-Ohio-5474, 2009 WL 3323337, ¶ 26 (applying the standard used to review a sufficiency-of-the-evidence claim).

b. Inconsistent responses to different counts

{¶ 17} Harris maintains that because the jury acquitted him of driving under the influence of alcohol under the R.C. 4511.19(A)(1)(a) charge, there was insufficient evidence to convict him of R.C. 4511.19(A)(2...