author: TUCKER, J.

text:
    STATE of Ohio, Plaintiff-Appellee/Cross-Appellant v. Jean Paul MPANURWA, Defendant-Appellant/Cross-Appellee
    No. 27357
    Court of Appeals of Ohio, Second District, Montgomery County.
    Rendered on December 8, 2017
    MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee/Cross-Appellant
    DANIEL F. GETTY, Atty. Reg. No. 0074341, 46 East Franklin Street, Centerville, Ohio 45459 Attorney for Defendant-Appellant/Cross-Appellee
   TUCKER, J.

{¶ 1} Defendant-appellant Jean Paul Mpanurwa appeals from his conviction and sentence for rape, kidnapping and felonious assault. He contends that the conviction for felonious assault must be reversed as the State did not present sufficient evidence to support the conviction. He further contends that the trial court erred by failing to merge the convictions for rape and felonious assault. The State cross-appeals contending that the trial court erred by merging the kidnapping and rape convictions.

{¶ 2} We conclude that the record demonstrates evidence sufficient to sustain the conviction for felonious assault. We further conclude that the trial court did not err in sentencing. Accordingly, the judgment of the trial court is affirmed.

I. Facts and Procedural History

{¶ 3} On July 14, 2013 the victim, "B", was walking near her home as part of her daily routine. She walked along the Creekside Trail bicycle path and crossed over to Radio Road when Mpanurwa approached. Mpanurwa grabbed B by the left forearm and forced her off the road into a grassy area. B attempted to resist and yelled loudly, but Mpanurwa pushed her down to the ground. He then dragged her, by her legs, toward an area with high grass. Mpanurwa removed B's pants and underwear and then engaged in intercourse. After he ejaculated, he got up, pulled up his pants, ran away toward Smithville Road. B was able to return to her home where she telephoned her son for help.

{¶ 4} B was ultimately transported to the hospital for treatment. A rape kit examination was performed during which the nurse took a swab from B's vagina for DNA analysis. The DNA sample was sent to the Miami Valley Regional Crime Laboratory. The nurse observed bruising, tearing, lacerations and abrasions of the vaginal area, as well as bruising along B's thigh. B reported pain in her left wrist. Bruising was observed on the forearm where Mpanurwa had grabbed her. Ten days later, B went to her family doctor because the wrist pain had not subsided. She was sent for x-rays which revealed a fracture of the distal radius in the wrist area.

{¶ 5} Following an investigation, Mpanurwa was identified as a suspect, and police obtained a DNA sample from him. Mpanurwa's DNA standard was found to be a match to the DNA obtained during the rape examination. Mpanurwa was indicted on one count of rape in violation of R.C. 2907.02(A)(2), one count of felonious assault in violation of R.C. 2903.11(A)(1) and one count of kidnapping in violation of R.C. 2905.01(A)(2). Following a bench trial, he was convicted of all three charges. The trial court, over objection by the State, merged the rape and kidnapping convictions. The State elected to proceed on the rape conviction and the trial court sentenced Mpanurwa to a prison term of 11 years on that offense. The trial court denied Mpanurwa's request to merge the rape and felonious assault convictions. The court then sentenced Mpanurwa to a prison term of two years for felonious assault and ordered the sentences to run consecutively for an aggregate term of 13 years. Mpanurwa was designated a Tier III sex offender.

{¶ 6} Mpanurwa filed a timely appeal, and the State filed a cross-appeal.

II. Sufficiency of the Evidence

{¶ 7} Mpanurwa's second assignment of error states as follows:

THE TRIAL COURT ERRED BY CONVICTING DEFENDANT FOR FELONIOUS ASSAULT.

{¶ 8} Mpanurwa contends that the conviction for felonious assault must be reversed as the State failed to present evidence sufficient to prove that he acted knowingly when he caused physical harm to B.

{¶ 9} "A sufficiency-of-the-evidence argument challenges whether the state has presented adequate evidence on each element of the offense to allow the case to go to the jury or to sustain the verdict as a matter of law." State v. Cherry , 171 Ohio App.3d 375, 2007-Ohio-2133, 870 N.E.2d 808, ¶ 9 (2d Dist.), citing State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). "The proper test to apply to the inquiry is the one set forth in paragraph two of the syllabus of State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) : '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. The 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.' " Cherry at ¶ 9.

{¶ 10} Mpanurwa was convicted of felonious assault in violation of R.C. 2903.11(A)(1) which provides that "[n]o person shall knowingly * * * cause serious physical harm to another * * *." The Revised Code defines serious physical harm as "[a]ny physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary, substantial incapacity[, a]ny physical harm that involves some permanent disfigurement or that involves some temporary, serious disfigurement[, or a]ny physical harm that involves acute pain of such duration as to result in substantial suffering or that involves any degree of prolonged or intractable pain." R.C. 2901.01(A)(5)(c)-(e).

{¶ 11} "A person acts knowingly, regardless of purpose, when the person is aware that the person's conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when the person is aware that such circumstances probably exist." R.C. 2901.22(B). "Additionally, a defendant acts knowingly, when, although not intending the result, he or she is nevertheless aware that the result will probably occur." State v. Anderson , 10th Dist. Franklin No. 10AP-302, 2010-Ohio-5561, 2010 WL 4632554, ¶ 13, citing State v. Edwards , 83 Ohio App.3d 357, 361, 614 N.E.2d 1123 (10th Dist. 1992). Thus, "felonious assault under R.C. 2903.11(A), combined with the definition of 'knowingly' found in R.C. 2901.22(B), does not require that a defendant intend to cause 'serious physical harm,' but that the defendant acts with an awareness that the conduct probably will cause such harm." Id. ; State v. Gray , 2d Dist. Montgomery No. 26139, 2016-Ohio-1419, 2016 WL 1291647, ¶ 41.

{¶ 12} The record supports a finding that B is a 90 year old woman of very slight frame, she suffers from osteoporosis, and walks with the aid of a cane. The record also supports a finding that Mpanurwa grabbed B by her forearm, near the wrist, and pulled her off the roadway. There is credible evidence that, at the hospital, B complained of pain in that same area and that bruising was observed. There is also credible evidence that B continued to suffer pain in that area where a fracture was ultimately found. The record finally supports a finding that B had no bruising or pain in this area prior to the offense.

{¶ 13} While it may not have been Mpanurwa's intent to break a bone, a reasonable finder of fact could conclude from this record that he did grab an elderly woman with enough force to drag her off the roadway and to, thereby, cause serious bruising and a fracture to the bone. In our view, based upon the specific facts of this case-i.e., the disparity in the sizes of B and Mpanurwa, B's physical frailty, age and her use of a cane-an ordinary person would be aware that the act of grabbing and pulling such a person would probably result in some injury to that person. Thus we conclude that the State did present evidence sufficient to support the conviction for felonious assault.

{¶ 14} The second assignment of error is overruled.

III. Felonious Assault/Rape Merger

{¶ 15} Mpanurwa's first assignment of error states:

THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO MERGE THE FELONIOUS ASSAULT CHARGE WITH THE RAPE CHARGE.

{¶ 16} Mpanurwa contends that the conviction for felonious assault should have merged with the rape conviction for purposes of sentencing. In support, he argues that his only motivation during the encounter was rape, and that he did not intend to break B's arm. He further argues that the offenses were committed as one single, fluid act.

{¶ 17} A trial court's decision regarding merger of convictions for the purposes of sentencing are reviewed under a de novo standard. State v. Williams , 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 1. Section 10, Article I of the Ohio Constitution prohibits multiple punishments for the same offense. This prohibition is codified in R.C. 2941.25, which states:

(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.

{¶ 18} Two or more offenses may result in multiple convictions if any of the following is true: "(1) the offenses are dissimilar in import or significance-in other words, each offense caused separate, identifiable harm, (2) the offenses were committed separately, or (3) the offenses were committed with separate animus or motivation." State v. Ruff , 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 25. This analysis is dependent upon the facts of each case because R.C. 2941.25 focuses on the defendant's conduct. Id. at ¶ 26.

{¶ 19} In this case, there is evidence that Mpanurwa grabbed B by her left forearm, dragged her off the roadway, and then shoved her to the ground. At that point, the felonious assault was complete. Mpanurwa could have walked away from B and ended the contact at that point. Further, while the felonious assault was committed for the purpose of facilitating the rape, the physical injury caused by the felonious assault was separate and distinct from the harm caused by the rape. In other words, the broken arm/wrist is a separate and distinct harm from the tears, lacerations and bruising to the vaginal area caused by the act of intercourse underlying the rape offense.

{¶ 20} We conclude that the trial court did not err by denying Mpanurwa's request to merge the offenses of felonious assault and rape. The first assignment of error is overruled.

IV. Kidnapping/Rape Merger

{¶ 21} The State's sole assignment of error on cross-appeal provides:

THE TRIAL COURT ERRED BY MERGING THE CONVICTIONS FOR RAPE AND KIDNAPPING.

{¶ 22} This issue was recently addressed in State v. Asadi-Ousley , 2017-Ohio-7252, 102 N.E.3d 52 (8th Dist.), wherein the Eighth District Court of Appeals stated:

With respect to the offenses of rape and kidnapping, the Supreme Court of Ohio has acknowledged that "implicit within every forcible rape * * * is a kidnapping" because the victim's liberty is restrained during the act of forcible rape. State v. Logan , 60 Ohio St.2d 126, 130, 397 N.E.2d 1345 (1979). In Logan , the court provided the following guidelines for determining whether kidnapping and another offense are allied offenses that should merge prior to sentencing, stating:
(a) Where the restraint or movement of the victim is merely incidental to a separate underlying crime, there exists no separate animus sufficient to sustain separate convictions; however, where the restraint is prolonged, the confinement is secretive, or the movement is substantial so as to demonstrate a significance independent of the other offense, there exists a separate animus as to each offense sufficient to support separate convictions;
(b) Where the asportation or restraint of the victim subjects the victim to a substantial increase in risk of harm separate and apart from that involved in the underlying crime, there exists a separate animus as to each offense sufficient to support separate convictions. Id. at syllabus.
Applying these guidelines, the Ohio Supreme Court held in Logan , that the offender's conduct in forcing the victim into an alley before raping her at knife point was committed without a separate animus. The court found that the movement was slight, the detention brief, and the victim was released immediately after the commission of the underlying crime, compelling the court's conclusion that the kidnapping was incidental to the rape. Id. at 135 [397 N.E.2d 1345].
Although Logan predates [State v. ] Ruff [143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892 ], Ohio courts continue to apply the guidelines set forth in Logan in determining whether kidnapping and another offense were committed with a separate animus, in accordance with the third prong of the Ruff test. State v. Armengau , 10th Dist. Franklin No. 14AP-679, 2017-Ohio-4452 [2017 WL 2687434], ¶ 125, citing State v. D.E.M ., 10th Dist. Franklin No. 15AP-589, 2016-Ohio-5638 [2016 WL 4591373], ¶ 143 ; State v. Williams , 7th Dist. Mahoning No. 13 MA 125, 2015-Ohio-4100 [43 N.E.3d 797], ¶ 18 ; State v. Stinnett , 5th Dist. Fairfield No. 15-CA-24, 2016-Ohio-2711 [2016 WL 1687031], ¶ 53.

Id. at ¶ 45-47.

{¶ 23} B's testimony indicates that Mpanurwa pulled her off the road, knocked her down and dragged her a few feet. She indicated that he only moved her a few feet. He then pulled down her pants and underwear and engaged in intercourse that lasted less than a minute. He then immediately got up, pulled up his pants and ran off.

{¶ 24} This testimony supports a finding that the restraint and movement of B had no significance apart from facilitating the rape. The restraint was brief, the movement was slight, there was no secretive confinement (the area was open and observable), and B was immediately released after the commission of the rape. Thus, the trial court did not err in concluding that the rape and kidnapping counts were allied offenses of similar import, and, thus, subject to merger.

{¶ 25} The State's sole assignment of error is overruled.

V. Conclusion

{¶ 26} Both of Mpanurwa's assignments of error being overruled, and the State's assignment of error on cross-appeal being overruled, the judgment of the trial court is affirmed.

HALL, P.J. and WELBAUM, J., concur.

      B was 90 years old at the time and walked with the aid of a cane.

      A review of the record demonstrates that, at most, B was moved a total of 10 to 15 feet.

      According to the record, B suffers from osteoporosis which is a "weakness of the bones." Tr. p. 170. It is defined as "a condition that is characterized by decrease in bone mass * * * producing porosity and fragility." Webster's Ninth New Collegiate Dictionary , 835 (1988).

      A photograph of that bruising was submitted into evidence.

      The State failed to present a statement of its assignment of error as required by App.R. 16(A)(3). Therefore, we have stated an assignment of error that accords with the State's argument.

      The State, during oral argument, indicated its belief that State v. Ruff did not overrule State v. Logan.


source: Caselaw Access Project

author: SHAW, J.

license: Public Domain

text:
    Russell A. BROWN, Trustee, Plaintiff-Appellee, v. Danny L. BROWN, et al., Defendants-Appellees, and Sandra K. Hassan Farabee, et al., Defendants-Appellants.
    NO. 6-17-10
    Court of Appeals of Ohio, Third District, Hardin County.
    Date of Decision: December 11, 2017
    Howard A. Traul, II, Bellefontaine, for Appellants
    John M. Tudor, Kenton, for Appellee Russell A. Brown, Trustee and Personally
    J. Michael Hood, Ada, for Appellees, Danny L. Brown and Cathy Harris
   SHAW, J.

{¶ 1} Defendants-appellants, Sandra Farabee, Robert Lambert, and Jack Lambert ("Appellants"), appeal the April 14, 2017 judgment of the Hardin County Court of Common Pleas, Probate Division, terminating the "Brown Family Trust" and distributing the Trust assets equally to plaintiff-appellee, Russell A. Brown ("Anthony"), and his siblings, defendants-appellees, Daniel Brown and Cathy Harris (collectively referred to as "Appellees"). On appeal, Appellants challenge several of the trial court's findings supporting its conclusion to distribute the Trust assets to only the three Appellees upon termination of the Trust.

Relevant Factual Background

{¶ 2} The parties to this action are three siblings and three step-siblings. Sometime in the early 1970's Appellees' father, Russell J. Brown ("Russ, Sr."), moved in with Appellants' mother, Rose A. Brown ("Rose"). During this time, Appellants lived with Russ, Sr. and by all accounts viewed him as a father figure. Russ, Sr. and Rose eventually married in 1978, when Russ, Sr. divorced his wife after all three Appellees had "graduated."

{¶ 3} In 1985, Russ, Sr. and Rose executed reciprocal Wills leaving their probate estates to the surviving spouse and naming the six children as beneficiaries of the surviving spouse's estate in equal shares.

{¶ 4} In 2000, Rose and Russ, Sr. executed a quitclaim deed, which placed 129.54 acres of land into the "Brown Family Trust," a revocable trust. Rose died on June 14, 2013, and Russ, Sr. made his election to take under her Will. Russ, Sr. executed a new Will on September 18, 2013, wherein he included the following provision modifying the distribution of his probate estate from his prior 1985 Will:

2.02. I give, devise and bequeath all the rest, residue and remainder of my estate, real or personal, wherever situated and whenever acquired, unto my lineal descendants in equal shares, per stirpes . At the time of the making this Will, my descendants consist of Russell A. Brown, * * * Dan Brown, * * * and Cathy Harris. By such provision I intend that should any of my children predecease me, their share in equal share shall descend per stirpes to their lineal descendants, if any, and if none to be divided equally between my surviving children or their lineal descendants in equal share per stirpes . In making the provisions of this article in my Will, I am not unaware of the existence of my step children, being the children of my late wife, Rose Brown, but herewith provide only for my own children.

(Doc. No. 73).

{¶ 5} On January 10, 2014, Russ, Sr. executed an "Affidavit of Successor Trustee," stating that he and Rose were Co-Trustees of the Brown Family Trust and that after Rose's death he became the sole Successor Trustee pursuant to the Trust Agreement.

{¶ 6} Russ, Sr. died on August 26, 2014. His 2013 Will was subsequently admitted to probate and no contest was made challenging the Will. Anthony was appointed executor of Russ, Sr.'s estate. The land contained in the Brown Family Trust, and the proceeds therefrom, were not included in either Rose's or Russ, Sr.'s probate estates.

{¶ 7} On September 30, 2014, Anthony executed an "Affidavit of Successor Trustee," stating he was the "presumed Successor Trustee" of the Brown Family Trust.

Procedural History

{¶ 8} On February 16, 2016, Anthony, as Trustee, filed a complaint naming all six children of Rose and Russ, Sr., individually, as defendants and seeking a determination from the trial court regarding several aspects of the Brown Family Trust. The complaint stated that Anthony, as Russ, Sr.'s executor, was in possession of a check for proceeds from the land owned by the Brown Family Trust that needed to be deposited, but no account existed for the Trust. Anthony and his counsel were unable to find the Trust Agreement or any documents creating the Brown Family Trust. Anthony assumed possession of the Trust assets as "presumed Successor Trustee."

{¶ 9} Anthony and his counsel later discovered an "Abstract of Trust Agreement," which identified Rose and Russ, Sr. as "Co-Trustors" and "Co-Trustees" and further provided that:

3. Successor Trustees. Upon removal of both husband and wife as Co-Trustees, the joint Co-Successor Trustees are designated as RUSSELL A. BROWN [Anthony] and SANDRA K. STONE [nka Farabee]. In the event either of them should become incompetent or otherwise unable or unwilling to serve, then the other shall serve alone as Trustee hereof.

(Doc. No. 76). However, no person, other than Rose and Russ, Sr., was identified as a beneficiary in the "Abstract of Trust Agreement." Thus, there was no provision giving guidance as to how the Trust assets were to be distributed after the deaths of both Rose and Russ, Sr.

{¶ 10} Accordingly, the complaint initiating this case sought a judgment from the trial court determining the identity of the successor beneficiaries under the Trust, if the trial court determined there was a trust, and to whom the income and proceeds of the liquidation of the Trust assets should be distributed, when such distribution should be made, and when the Trust should be terminated.

{¶ 11} Appellants-i.e., Rose's children, filed a counter-claim and cross-claim asserting that they were entitled to fifty percent of the Trust assets. Appellants requested the trial court find Sandra Farabee was the Co-Trustee of the Brown Family Trust pursuant to the "Abstract of Trust Agreement;" that an accounting should be ordered; and that a judgment should be issued liquidating the Trust, distributing fifty percent to Appellants, and terminating the Trust.

{¶ 12} Appellants filed a motion for summary judgment which was overruled by the trial court and the case proceeded to a bench trial on January 23, 2017, where several witnesses testified and numerous exhibits were admitted. Based upon the evidence presented, the trial court issued Findings of Fact on February 15, 2017. Specifically, the trial court found relative to this appeal that Russ, Sr. and Rose were settlors of "Brown Family Trust," a revocable trust established on June 15, 2000, and that the "Abstract of Trust Agreement" identified two beneficiaries, Rose A. Brown and Russell J. Brown, who were also the initial Co-Trustees. (Doc. No. 80 at ¶¶ 7-8).

{¶ 13} The trial court further found that on June 15, 2000, Russ, Sr. and Rose executed a quitclaim deed for the 129.54 acres of land to the Trust granting it to themselves as Co-Trustees. The trial court found that the quitclaim deed evidenced that the property was acquired solely by Russ, Sr. with Rose having only a dower interest in the property prior to placing the land into the Trust. The trial court also found that "the act of titling the real estate to the Trust removed personal ownership from either/or both Russell J. Brown and Rose A. Brown and exhibited an intent that the property not be included as part of their estates." (Id. at ¶ 13).

{¶ 14} The trial court examined the "Abstract of Trust Agreement" and determined from that document that the Co-Trustees-i.e., Rose and Russ, Sr.-had the power to transfer the Trust assets and the survivor of the two had a right to a power of appointment exercisable by Will. However, the trial court noted that there was no evidence presented that action was taken by either Rose or Russ, Sr. consistent with these powers.

{¶ 15} At the time of trial, the 129.54 acres were still titled in the name of the Brown Family Trust and there was approximately $38,000 of proceeds from the land in a bank account established by Anthony under the name "Brown Family." Based upon the evidence before it, the trial court could not determine who the beneficiaries were intended to be after the deaths Rose and Russ, Sr. and further determined that "[b]ecause the purposes of the Trust cannot be ascertained they are impossible to achieve." (Doc. No. 80 at ¶ 40); see R.C. 5804.10(A).

{¶ 16} In a separate document, the trial court set forth its Conclusions of Law based upon these findings, after giving the parties an opportunity to file their "exceptions" to the trial court's Findings of Fact and to brief the legal issues. The trial court found that a valid revocable trust was established, and that no evidence of revocation by Rose or Russ, Sr. was presented at trial. Having found that there was no ascertainable beneficiary of the Trust after the deaths of Rose and Russ, Sr. and that the purposes of the Trust could no longer be achieved, the trial court concluded that the Trust should be terminated. Thus, the primary concern of the trial court was how to distribute and to whom to distribute the Trust assets upon the termination of the Trust in the absence of any instruction from a trust agreement.

{¶ 17} The trial court examined the relevant statutes on the issue and observed that it could "not find any statute directly on point to help resolve this conundrum." (Doc. No. 88 at 10). Nevertheless, the trial court looked to the statutory provisions for guidance and concluded the following:

By agreement of the parties and without objection, the Court took judicial notice of the entire contents of the estates of both Russell J. Brown and Rose A. Brown. Both estates were fully administered and neither is currently opened. The Court would note that Mrs. Brown, the first to die, left her entire estate to her husband, Russell J. Brown. Were she entitled to any of the assets back from the trust or were she a beneficiary getting back assets from the trust, they would pass through her estate to her husband [pursuant to her 1985 Will]. As the evidence in this case clearly established, including the Court's file for the estate of Russell J. Brown, he left his entire estate to his three children, being plaintiff and defendants Brown. In either scenario, whether the assets passed from wife to husband and then to his children or merely would have passed directly to Mr. Brown (because Mrs. Brown only had a dower interest), the outcome would be the same. Ultimately, the assets would be divided equally between the three children of Russell J. Brown [pursuant either to Russ, Sr.'s 2013 Will or under the "law of jurisdiction" as the beneficiaries or the heirs are the same].

(Doc. No. 88 at 9). The trial court further determined that there was no adequate remedy at law and exercised "its equitable powers" to provide the parties relief. (Id. at 11). The trial court ordered the Trust be terminated and the assets be distributed directly to Appellees in equal shares, without re-opening Russ, Sr.'s estate. The trial court's orders were journalized in its April 14, 2017 Judgment Entry.

{¶ 18} Appellants subsequently filed this appeal, asserting the following assignments of error.

ASSIGNMENT OF ERROR NO. 1

THE PROBATE COURT ERRED AS A MATTER OF LAW IN FINDING THAT IT HAD NO AUTHORITY TO DETERMINE THE BENEFICIARIES OF THE TRUST BECAUSE THE LAW PERMITS A TRIAL COURT TO DETERMINE THE
TERMS OF A TRUST EVEN WHEN THE TRUST DOCUMENT IS MISSING; THEREFORE, THE PROBATE COURT'S APRIL 14, 2017 ENTRY SHOULD BE REVERSED.

ASSIGNMENT OF ERROR NO. 2

THE PROBATE COURT ERRED AS A MATTER OF LAW IN FAILING TO FIND THE SETTLORS INTENDED ALL SIX CHILDREN TO BE BENEFICIARIES UNDER THE BROWN FAMILY TRUST; THEREFORE, THE PROBATE COURT'S APRIL 14, 2017 ENTRY SHOULD BE REVERSED.

ASSIGNMENT OF ERROR NO. 3

THE PROBATE COURT ERRED AS A MATTER OF LAW IN INTERPRETING OHIO REVISED CODE SECTION 5801.01(S) AND IN FINDING ROSE WAS NOT A SETTLOR OF THE BROWN FAMILY TRUST; THEREFORE, THE PROBATE COURT'S APRIL 14, 2017 ENTRY SHOULD BE REVERSED.

ASSIGNMENT OF ERROR NO. 4

THE PROBATE COURT ERRED AS A MATTER OF LAW DURING THE TRIAL ON PAGE 181 OF THE TRIAL TRANSCRIPT IN FINDING ROSE'S STATEMENTS WERE HEARSAY; THEREFORE, THE PROBATE COURT'S APRIL 14, 2017 ENTRY SHOULD BE REVERSED.

ASSIGNMENT OF ERROR NO. 5

THE PROBATE COURT ERRED AS A MATTER OF LAW IN REFUSING TO PERMIT TESTIMONY REGARDING THE REAL PROPERTY ACQUISITION WHEN THE LAMBERTS DENIED THAT RUSS, SR. OWNED THE PROPERTY IN FEE SIMPLE; THEREFORE, THE PROBATE COURT'S APRIL 14, 2017 ENTRY SHOULD BE REVERSED.

{¶ 19} For ease of discussion, we elect to address the majority of the assignments of error together.

First, Second, Third, and Fifth Assignments of Error

Standard of Review

{¶ 20} We review a trial court's determination of matters of law in a declaratory judgment action under a de novo standard of review. Arnott v. Arnott , 132 Ohio St.3d 401, 2012-Ohio-3208, 972 N.E.2d 586, ¶ 13. We further note that the trial court, as the trier of fact, had the advantage of observing witnesses at trial and assessing their credibility. Thus, we will defer to any findings relative thereto. See Delp v. Delp , 6th Dist. Lucas No. L-16-1242, 2017-Ohio-7774, 97 N.E.3d 1174, ¶ 21 (6th Cir.), citing Gorby v. Aberth , 9th Dist. Summit No. 28021, 2017-Ohio-274, 81 N.E.3d 910, ¶ 19 (9th Cir.).

Discussion

{¶ 21} In these assignments of error, Appellants challenge specific aspects of the trial court's ruling. In their first and second assignments of error, Appellants argue that the trial court erred in determining that it could not ascertain the successor beneficiaries after Rose's and Russ, Sr.'s deaths from the "Abstract of Trust Agreement" and the extrinsic evidence presented at trial. Specifically, Appellants assert the evidence supports a finding that Rose and Russ, Sr. intended for the Trust to benefit all six children after their deaths. Appellants also claim in the third and fifth assignments of error that the trial court erred in concluding that Rose's interest in the land placed in the Trust was limited to a dower interest and that she did not have the same ownership rights as Russ, Sr. being a Co-Settlor.

{¶ 22} At the outset, we note that on appeal Appellants contend that the trial court erred in failing to consider any parol evidence outside of the "Abstract of Trust Agreement" in reaching its determination that the successor beneficiaries of the Trust could not be ascertained in this case. Our review of the record simply does not support this contention. Rather, the record reflects that the trial court gave Appellants ample opportunity at trial to support their position that Rose and Russ, Sr. intended all six children to be the successor beneficiaries of the Brown Family Trust.

{¶ 23} The record indicates that the trial court considered testimony from multiple witnesses, including from Appellants Sandra Farabee and Jack Lambert, to assist the court in ascertaining the successor beneficiaries of the Trust in the absence of a Trust Agreement. However, the evidence presented at trial demonstrated that, whether by omission or design, Russ, Sr.'s and Rose's children knew little about the Brown Family Trust and the purposes of its creation, let alone the principal terms of the Trust-i.e., whether there were any intended successor beneficiaries after Rose's and Russ, Sr.'s deaths. Moreover, none of the witnesses at trial recalled ever seeing a Trust Agreement.

{¶ 24} For instance, Anthony testified that he first learned of the Trust after he began assisting, his father, Russ, Sr., with writing checks when Russ, Sr.'s Parkinson's Disease symptoms inhibited him from completing certain functions. Anthony recalled his father instructing him that "There's property tax, things in there on the counter. Get it. You need to pay it." (Tr. at 79-80). The notice identified the Brown Family Trust and when he inquired further Anthony remembered Russ Sr. replying, "Never mind that. Just pay the taxes." (Id.) Anthony explained "I didn't stick my nose into my dad's business, and that's as much explanation as I got out of him on it." (Id.) Michael Grossman, the farmer who farmed the land held in the Brown Family Trust, testified that he began farming the land in 1997 or 1998. He was not made aware that the land was held in trust until after Russ, Sr.'s death. Sandra Farabee also testified that she had never seen a Trust Agreement. Her only recollection of the Trust prior to Rose's and Russ, Sr.'s deaths, was seeing an envelope on the counter addressed to the "Brown Family Trust."

Settlors' Intent Creating the Brown Family Trust

{¶ 25} Despite the lack of parol testimony evidence regarding the creation and principle terms of the Trust, and the primary documentary evidence purporting to establish the Trust and to convey its principle terms being an unrecorded and unauthenticated "Abstract of Trust Agreement," the trial court nevertheless found that Rose and Russ, Sr. created a valid revocable trust. (See Doc. No. 80 at ¶ 34). We note that the "Abstract of Trust Agreement" specifically states that:

18. Trust Agreement to Govern. The use of this Abstract of Trust Agreement is for convenience only, and the Trust Agreement is solely controlling as to provisions and interpretations , and any conflict between this Abstract and the Trust Agreement shall be decided in favor of the Trust Agreement.

(Doc. No. 26 at 3) (emphasis added). In light of such a disclaimer, we question whether the "Abstract of Trust Agreement" could be relied upon to definitively establish the existence of a valid revocable trust. Our reservations notwithstanding, we give deference to the weight the trial court accorded this evidence in rendering its decision.

{¶ 26} The trial court found that the "Abstract of Trust Agreement" contained a provision which provided insight into the purpose of the Trust and Rose's and Russ's Sr.'s intent in creating the Brown Family Trust:

5. Division of Trust Upon Death of Co-Trustor. Upon the death of either Co-Trustor, the trust property becomes allocated into two (2) trusts, designated as the Survivor's Trust and the Bypass Trust, which at the time the Bypass Trust becomes Irrevocable. The Trustee may make distribution in the Survivor's Trust and Bypass Trust in such a manner so as to qualify for the alternate valuations date under Internal Revenue Code Section 2032.

(Doc. No. 26 at 3).

{¶ 27} The trial court ascertained that the intent of Rose and Russ, Sr. at the creation of the Trust in 2000 was "A) to avoid and/or minimize estate taxes;" and "B) to provide income to [Rose and Russ, Sr.] during their lifetimes." (Doc. No. 80 at ¶ 31). The trial court's finding in this regard is consistent with the testimony indicating that none of Rose's or Russ, Sr.'s children were explicitly made aware of the existence of the Brown Family Trust and were not told of any of the Trust's principal terms. Moreover, neither Rose's or Russ, Sr.'s Last Will and Testament expressly mentioned the Brown Family Trust. Thus, it is reasonable to conclude, as the trial court did, that Rose's and Russ, Sr.'s primary intent in creating the Brown Family Trust was to establish a vehicle to provide income for them during their lifetimes, as opposed to an estate planning tool for passing the property to next generation. Accordingly, we find that the record supports the trial court's conclusion that the Brown Family Trust was created primarily with the intent to benefit Rose and Russ, Sr. during their lifetimes.

Successor Beneficiaries

{¶ 28} The crucial matter before the trial court in this case was determining the method of distribution of the Trust assets after Rose's and Russ, Sr.'s deaths. We acknowledge that the "Abstract of Trust Agreement" contains a provision alluding to the distribution of Trust assets after both Rose's and Russ, Sr.'s deaths, which reads:

9. Distribution after Death of Both Co-Trustors. Following the death of both Co-Trustors, the trust continues or is distributed in whole or in part for the benefit of other named beneficiaries according to the terms of the trust.

(Doc. No. 26 at 3). However, without a corresponding Trust Agreement stating the names of the successor beneficiaries, this provision of the "Abstract of Trust Agreement" is of little value in resolving this matter. Thus, the trial court concluded that "the Court does not believe that it is endowed with the power to merely 'make up' provisions of the trust," and found it could not determine from the evidence who the beneficiaries of the Trust were intended to be after the deaths of Rose and Russ, Sr. (Doc. No. 84 at 4).

{¶ 29} On appeal, Appellants specifically take issue with the trial court's finding that it could not ascertain the successor beneficiaries of the Brown Family Trust from the evidence presented at trial. Appellants claim that Rose's and Russ, Sr.'s 1985 Wills, which provide for all six children equally after the death of the survivor, the inclusion of the "Co-Successor Trustee" provision in the "Abstract of Trust Agreement," which appoints both Sandra Farabee and Anthony Brown (one child from each family) to be "Co-Successor Trustees," and the testimony at trial that demonstrated the Appellants viewed Russ, Sr. as a father figure establish that the six children of Rose and Russ, Sr. were the intended successor beneficiaries under the Trust.

{¶ 30} We disagree with the Appellants that "Co-Successor Trustee" provision in the "Abstract of Trust Agreement" can be so convincingly relied upon to reach this determination, and find that the mere mention of Sandra's and Anthony's names as Co-Successor Trustees, upon the removal of both Rose and Russ, Sr., is not dispositive to the issue of how to distribute the Trust assets after the deaths of Rose and Russ, Sr. Rather, such language is consistent with the trial court's determination that the Brown Family Trust was established primarily to benefit Rose and Russ, Sr. during their lifetimes.

{¶ 31} We also do not find Appellants' argument pertaining to Rose's 1985 Will persuasive in determining how Rose and Russ, Sr. intended the Trust assets to be distributed after their deaths. Had it been Rose's specific intent, as the Appellants contend, to distribute the Trust assets to all six children, according to the "Abstract of Trust Agreement," Rose could have specifically provided for such a contingency in her Will. However, the record does not indicate such a contingent provision was made.

{¶ 32} As previously discussed, we specifically decline to accept Appellants' characterization of the record on appeal that the trial court relied solely upon the "Abstract of Trust Agreement," while refusing to consider any parol evidence, to conclude that it could not ascertain the successor beneficiaries from the evidence presented. To the contrary the trial court acknowledged:

While the Court understands its power to interpret the language of documents, the Court does not believe that authority extends to inventing or making up language from whole cloth. The Court's role is more appropriately to try to figure out what the settlor intended from the language that the settlor used rather than create language in an attempt to determine an outcome intended by the court or a litigant.
* * *
The Abstract of Trust Agreement does not contain any language for the Court to even try to construe relating to the purpose of the trust after the death of Russell J. Brown and Rose Brown or the intent of the settlors other than their initial intent * * *. The Court acknowledges that there was some extrinsic evidence proffered (though in the Court's opinion said evidence was lacking in both credibility and weight) concerning these issues. The Court does not believe it would be proper to attempt to invent an intent and purpose and then try to project them upon the settlors. There is simply no language for the Court to construe, interpret or evaluate. Likewise, with regard to these issues there is no provision to consider. The same is true as to contingent beneficiaries. The Court interprets the case law as requiring some language before the Court can use extrinsic or parole [sic] evidence to interpret the intent or purpose of a provision.

(Doc. No. 88 at 6-7).

{¶ 33} Appellants direct our attention to case law in support of their position, but a close reading of those cases reveals a key distinction. See e.g. , Arnott v. Arnott , 132 Ohio St.3d 401, 2012-Ohio-3208, 972 N.E.2d 586 ; Saunders v. Mortensen , 101 Ohio St.3d 86, 2004-Ohio-24, 801 N.E.2d 452. For example, in each of these cases the primary instrument to be construed-i.e., the trust agreement (Arnott) and the insurance contract (Saunders)-was properly introduced into the record before the trial court for its terms to be examined. Neither of these cases cited by Appellants involve the precise situation in the case at bar where the primary document, which is the keystone of the declaratory judgment determination, is missing and cannot be located.

{¶ 34} Moreover, we acknowledge Appellants' reliance on Ohio law which does not require a trust to be created by a written instrument and permits the creation of an oral trust. However, the statute governing oral trusts explicitly states that "a trust is not required to be evidenced by a trust instrument, but the creation of an oral trust and its terms may be established only by clear and convincing evidence." R.C. 5804.07. Here, notwithstanding the fact that the record contains some evidence indicating that the Trust was created by a written instrument, Appellants overlook the statutory requirement that the terms may be established only by clear and convincing evidence. In this instance, the trial court concluded that there was no evidence aside from the "Abstract of Trust Agreement" which met this standard.

{¶ 35} In sum, the record reveals that the trial court prudently examined the relevant evidence presented at trial and concluded that evidence was insufficient to determine the manner in which the Trust assets were intended to be distributed after the deaths of Rose and Russ, Sr. Based upon the evidence in the record, we find no error with the trial court's view that the extraneous pieces of parol evidence relied upon by Appellants would require it to "make up" or "invent" terms to identify the successor beneficiaries and determine the purpose of the Trust after Rose's and Russ, Sr.'s death in the absence of the Trust Agreement.

{¶ 36} For these reasons, we find no error with the trial court concluding that because the primary initial purposes of the Trust could longer be achieved and no successor beneficiaries could be ascertained, the Brown Family Trust must be terminated. See R.C. 5804.12(A), (B) (granting the trial court authority to terminate a trust because of "circumstances not anticipated by the settlor," or "if continuation of the trust on its existing terms would be impracticable"); see also R.C. 5804.10(A) (prescribing additional authority for termination when "a court determines that no purpose of the trust remains to be achieved, or a court determines that the purposes of the trust have become unlawful or impossible to achieve").

Distribution of Assets Upon the Termination of Trust

{¶ 37} Appellants do not dispute the trial court's decision to terminate the Brown Family Trust on appeal. Rather, they contend that the trial court erred when it ordered the Trust assets to be distributed only to Appellees upon the Trust's termination. Underlying their claim, in part, is the Appellants' assertion that the trial court mischaracterized Rose's ownership of the Trust assets both prior to the land being placed in trust and after the Trust was established and Rose was named a Co-Settlor. While Appellants admit that Russ, Sr. was the titled owner of the land before the creation of the Brown Family Trust, they dispute the trial court's finding that Rose's ownership of the land was limited to a dower interest.

{¶ 38} One rationale stated by the trial court in its "Conclusions of Law" was based upon its reliance on R.C. 5801.01(S) to reason that Rose only contributed her dower interest to the Trust and was a settlor only with respect to that portion of the Trust property. The trial court determined that because Rose predeceased Russ, Sr., her dower interest was eliminated and Russ, Sr. retained sole ownership of the property in the Trust after her death. Based upon this rationale, the trial court concluded that Russ's children alone were entitled to distribution of the Trust assets.

{¶ 39} However, a review of the trial court "Conclusions of Law" establishes that the trial court employed more than one rationale to support its ultimate decision to distribute the Trust assets only to Appellees. The trial court engaged in a thorough analysis of relevant statutory provisions to determine that the Trust assets should be distributed to Appellees, Russ, Sr.'s children. The trial court found direction in R.C. 5804.09, which governs noncharitable trusts without ascertainable beneficiaries.

(A) A trust may be created for a noncharitable purpose without a definite or definitely ascertainable beneficiary or for a noncharitable but otherwise valid purpose to be selected by the trustee. A trust created for a noncharitable purpose may not be enforced for more than twenty-one years.
(B) A trust authorized by this section may be enforced by a person appointed in the terms of the trust or, if no person is so appointed, by a person appointed by the court.
(C) The property of a trust authorized by this section may be applied only to its intended use, except to the extent the court determines that the value of the trust property exceeds the amount required for the intended use. Except as otherwise provided in the terms of the trust, property not required for the intended use must be distributed to the settlor if then living or to the settlor's successors in interest.

(emphasis added).

{¶ 40} The trial court also sought guidance from R.C. 5808.17(D), which further addresses distribution upon termination of a trust, and provides in pertinent part:

(D) If * * * an administration of the beneficiary's estate is not open, the trustee, without liability, may make the distribution directly to the beneficiary's heirs or devisees without requiring the opening or re-opening of estate administration proceedings if the trustee does not know of an ad verse claim to the distribution and one of the following applies:
* * *
(2) The beneficiary's estate was administered as a testate estate in the jurisdiction in which the deceased beneficiary was domiciled at death, and the trustee does both of the following:
(a) Distributes the personal property included in the distribution to the residuary devisee or devisees under the beneficiary's will, in the same manner as the personal property would have been distributed in that administration if it had been part of the beneficiary's testate estate;
(b) Distributes the real property included in the distribution to the person or persons the trustee reasonably determines would have received the real property under the law of the jurisdiction or jurisdictions in which the real property is located .

(emphasis added).

{¶ 41} While explicitly disavowing any reliance upon these statutory provisions as being "definitive," the trial court further found it necessary to exercise "its equitable powers and [looked] to said code sections for guidance" and noted the "two potential resolutions of the asset distribution problem in this case set forth above both however, end up ultimately with the same result." (Doc. No. 88 at 10). The trial court recognized the parties' need for resolution in this case without an adequate remedy at law under these specific circumstances where there is a missing trust agreement and insufficient evidence in the record to ascertain the purpose of the trust after the death of the primary beneficiaries with no successor beneficiaries specifically named. Thus, the trial court fashioned an equitable remedy using R.C. 5808.17(D) and R.C. 5804.09(C) as a framework for distributing the Trust assets after termination-both of which direct the assets to be distributed to Appellees either under Russ, Sr.'s 2013 Will or the "law of the jurisdiction."

{¶ 42} We acknowledge Appellants' position on appeal that, notwithstanding the initial marital or separate nature of the property, Rose maintained equal ownership rights to the Trust property as a Co-Settlor by powers of revocation and withdrawal which appear to be conferred her in the "Abstract of Trust Agreement," and therefore, Appellants as her successors in interest could have been entitled to a half share of the Trust assets. Nevertheless, we do not find their argument on appeal that the additional evidence they wished to present regarding the character of the real estate prior to and during the administration of the Trust while Rose was alive would be determinative in resolving the primary issue of distribution in this case based upon the following discussion and therefore find no error in the trial court excluding it.

{¶ 43} In reviewing the trial court's method of distribution of the Trust assets, we note that the quit claim deed specifically states the following in the granting clause transferring the 129.54 acres into the Trust.

RUSSELL BROWN AND ROSE A. BROWN HUSBAND AND WIFE, who acquired title as RUSSELL BROWN grants to, RUSSELL BROWN AND ROSE A. BROWN, TRUSTEES, or his successor in trust , under the Brown Family Trust, dated 6/15/00, and any amendments thereto, the following described real property located in the County of Hardin State of Ohio[.]

(Doc. No. 69) (emphasis added).

{¶ 44} This notwithstanding, we also find support in the record for the trial court's equitable decision based upon the specific facts and circumstances of this case. Even assuming arguendo that Rose, as Co-Settlor, retained equal ownership rights to the Trust assets, the fact remains unchanged that there is no Trust Agreement or any other credible evidence found by the trial court directing the distribution of the Trust property after Rose's death. It is undisputed that Rose predeceased Russ, Sr. By operation of her 1985 Will her probate estate passed to Russ, Sr. Moreover, the "Abstract of Trust Agreement," also states that Rose and Russ, Sr. "are designated as Co-Trustees, to serve until the death, resignation or incompetence of one of them, and the remaining Co-Trustee shall continue to act as the sole Trustee." (Doc. No. 76 at ¶ 2). This provision is consistent with the common thread found throughout this case that the Trust was created to provide for Rose and Russ, Sr. during their lifetimes and is also consistent with the couples' 1985 Wills, which left everything not otherwise specified to the survivor of the two, who in this instance was Russ, Sr.

{¶ 45} Accordingly, we find no error with the trial court's equitable application of R.C. 5808.17(D) and/or R.C. 5804.09(C) to the unique facts of this case. Moreover, we agree with the trial court's interpretation that either statute would direct the distribution of the Trust property to Appellees. Furthermore, Appellants have presented us no compelling alternative to find the trial court's distribution to be error. Based on the foregoing, we overrule the first, second, third, and fifth assignments of error.

Fourth Assignment of Error

{¶ 46} In their fourth assignment of error, Appellants assert that the trial court erred in excluding a statement allegedly made by Rose, prior to her death, to her son as hearsay. The decision to admit or exclude evidence rests in the trial court's sound discretion and we will not reverse its decision absent an abuse of that discretion. Wightman v. Consolidated Rail Corp. , 86 Ohio St.3d 431, 437, 715 N.E.2d 546 (1999). Abuse of discretion it implies that the court's attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 47} The statement raised in this assignment of error occurred at trial during Appellant Jack Lambert's testimony. On direct examination, Jack was asked when he first became aware of the "Brown Family Trust." Jack explained that he had a conversation with Rose, his mother, about the Trust. The trial court permitted counsel to continue to inquire about the conversation over objection from opposing counsel until Jack began to testify to what Rose had said about the distribution of the Trust. The trial court sustained opposing counsel's objection denying Jack the opportunity to answer.

{¶ 48} Appellants maintain on appeal that Jack was going to testify at trial regarding Rose's statements to him "that the Trust assets were to be distributed in accordance with the 1985 Wills." (Appt. Brief at 12). They argue that Rose's statement to Jack was admissible under exceptions to hearsay in Evid.R. 801(D)(2), Evid.R. 804(B)(5)(a), and Evid.R. 803(3). Appellants cite no authority supporting their argument that Rose's statement to Jack is admissible under Evid.R. 801(D)(2) (as a party opponent) or under Evid.R. 804(B)(5)(a) (as a Co-Trustee), and thus we do not find their positions bolstered by mere assertions as to the applicability of these hearsay exceptions to be persuasive.

{¶ 49} Moreover, even assuming arguendo that Rose's statement to Jack was admissible because it was a statement of her present state of mind and reflected her intent for the future under Evid.R 803(3), we find that the exclusion of the statement in the instant matter was harmless. Rose's purported statement to Jack that the Trust property was to be distributed in the same matter as the 1985 Wills does not shed any further insight as to how the Trust assets were intended to be distributed absent the existence of a trust agreement. Contrary to Appellants' position, it could be maintained that the trial court distributed the Trust assets in accordance with Rose's 1985 Will, which directed her probate estate to pass to Russ, Sr. in the event she predeceased him. As previously mentioned, there were no contingencies in Rose's Will with regard to her interest in the Trust property. Rather, everything passed to Russ, Sr. as the surviving spouse. In this respect, the trial court's distribution of the Trust assets is consistent with Rose's 1985 Will. Accordingly, we do not find the trial court's exclusion of the statement to be reversible error and the fourth assignment of error is overruled.

{¶ 50} For all these reasons, the assignments of error are overruled and the judgment of the trial court is affirmed.

Judgment Affirmed

WILLAMOWSKI and ZIMMERMAN, J.J., concur.

      The record indicates that the attorney who drafted the Brown Family Trust Agreement had been disbarred and is deceased. The record further indicates that Russ, Sr. had an oral sharecropping agreement with another farmer for a 50/50 split of the proceeds from the land in trust. The checks for the proceeds were issued to Russ, Sr. who was able to deposit the checks into his account without issue. However, after Russ, Sr.'s death, Anthony received a check from the sharecropping tenant and he executed an "Affidavit of Successor Trustee" declaring him the "presumed successor trustee" so that he could handle the affairs related to the Trust assets, such as accepting rent, extending the sharecropping agreement, and paying taxes.

      Anthony testified that he could not deposit the checks in the Trust's name because there was not proper documentation of the Trust's existence for the bank to establish an account. In the alternative, he created an account under the "Brown Family" to separately maintain the proceeds and manage the Trust assets until a determination by the trial court was made.

      The trial court surmised "the following intent of settlors at the time the trust was created: (1) to avoid and/or minimize estate taxes; and (2) to provide income to settlors during their lifetimes." (Doc. No. 80 at ¶ 31). Thus, the trial court found that both of these objectives were no longer achievable after deaths of Rose and Russ, Sr.

      The trial court's finding is also consistent with Anthony's testimony regarding Russ, Sr.'s reluctance to share any details regarding the Trust.

      Anthony also testified that Rose and Russ, Sr. were very concerned about being placed in a nursing home facility and wanted to remain at their residence during their old age. Anthony explained that he and his wife "kept them out of a home" by assisting Rose and Russ, Sr. with daily tasks. (Tr. at 78).

      See paragraph 12 of the "Abstract of Trust Agreement," which states:
      12. Character of All Property Unchanged Upon Transfer to Trust. All property transferred into the trust which had an original source as joint property shall remain joint property and all property which had an original source as a separate property shall remain separate property of the contributing spouse, unless other provision shall have been made therefore.
      (Doc. No. 76 at 2) (emphasis added).

      Section 5801.01(S) of the Revised Code defines a "Settlor" as "a person, including a testator, who creates, or contributes property to, a trust. If more than one person creates or contributes property to a trust, each person is a settlor of the portion of the trust property attributable to that person's contribution except to the extent another person has the power to revoke or withdraw that portion."

      Pursuant to R.C. 2101.24(C), "The probate court has plenary power at law and in equity to dispose fully of any matter that is properly before the court, unless the power is expressly otherwise limited or denied by a section of the Revised Code." Thus, where a matter is properly before the probate court, it has full power to dispose of the case (unless the power is expressly otherwise limited).

      We note that the record suggests that all but 18 of the 129.54 acres was inherited by Russ. It appears from the record that the remaining acreage was purchased during the marriage.


author: WILLAMOWSKI, J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. William E. SULLIVAN, Jr., Defendant-Appellant.
    NO. 5-17-09
    Court of Appeals of Ohio, Third District, Hancock County.
    Date of Decision: December 11, 2017
    Mark A. Davis, Toledo, for Appellant
   WILLAMOWSKI, J.

{¶ 1} Defendant-appellant William E. Sullivan, Jr. ("Sullivan") appeals the judgment of the Municipal Court of Findlay, Ohio, alleging that (1) the trial court erred in denying his motion to suppress the results of his Horizontal Gaze Nystagmus Test ("HGN Test"); (2) the trial court erred in denying his Crim.R. 29 motion for acquittal; (3) the trial court erred by overruling his objections to the admission of testimony that referenced research discussing the accuracy of the HGN Test; and (4) the jury returned a verdict that was against the manifest weight of the evidence. For the reasons set forth below, the judgment of the lower court is affirmed.

Facts and Procedural History

{¶ 2} Officer Michael Cortez ("Cortez") is a deputy sheriff at the Hancock County Sheriff's Office. Trial Tr. at 29. At 9:11 p.m. on May 20, 2016, Cortez was on patrol when he received a dispatch that reported a single vehicle, non-injury accident had occurred in his vicinity. Id. at 42-43. When he arrived at the scene of the accident, he saw Sullivan's vehicle up against a utility pole in a ditch. Id. at 43-44. The utility pole was cracked about fifteen to twenty feet above the ground. Id. Cortez determined that Sullivan-the driver of the vehicle-had driven through a stop sign, lost control of his vehicle, and hit the utility pole. Id. at 53.

{¶ 3} The fire department had already arrived at the scene of the accident, and Sullivan was standing about fifty to seventy-five feet away from his car. Id. at 44-45. Cortez approached Sullivan and began asking him some questions. Id. at 46. Cortez noticed that Sullivan was slow in responding to these questions and seemed lethargic. Id. No injuries were apparent to Cortez from Sullivan's appearance. Id. at 47-48. Cortez asked Sullivan if he needed any medical attention or if he had any injuries. Id. at 47. In response, Sullivan indicated that he was not injured. Id. Cortez and Sullivan then went into Cortez's cruiser to complete the report. Id. at 51. Cortez noticed that Sullivan took very deliberate and focused actions as he moved towards the cruiser. Id. at 51. Cortez also noticed that Sullivan, struggling to keep his balance, stumbled as he walked and stabilized himself by holding onto the cruiser. Id. at 52.

{¶ 4} When Cortez got into the cruiser with Sullivan, he smelled "a strong odor of an alcoholic beverage." Id. at 53. In the light of the cruiser, he could also see that Sullivan's eyes were bloodshot and his face was flushed. Id. Cortez then asked Sullivan questions about the route on which Sullivan was driving. Id. at 54. Sullivan responded by claiming that he was on Interstate 280 by Toledo. Id. In fact, Sullivan and Cortez were at the intersection of State Route 613 and Township Road 136, which was at least forty-five minutes away from where he believed he was on Interstate 280. Id. at 55. When asked, Sullivan denied having any alcoholic beverages that evening. Id.

{¶ 5} At this point, Cortez asked Sullivan to submit to a portable breath test. Id. at 56. Sullivan declined to take the portable breath test but subsequently agreed to submit to field sobriety tests. Id. Cortez then administered the HGN Test. Id. As Cortez administered the HGN Test, he observed six out of the six clues that are indicators of being under the influence in Sullivan's eyes. Id. at 69-70. Doc. 12. Since the weather outside was becoming inclement, Cortez decided not to proceed with further field sobriety tests. Trial Tr. 90. On the basis of the HGN Test results and his other observations, Cortez arrested Sullivan for operating a vehicle while under the influence. Doc. 1. The complaint was then filed on May 24, 2016. Doc. 1.

{¶ 6} On July 25, 2016, Sullivan filed a motion to suppress the results of the HGN Test. Doc. 8. At the suppression hearing on October 12, 2014, Cortez testified as to his observations on the night of May 20, 2016. Suppression Hearing Tr. 11. The Defense then called Dr. William R. Bauer ("Dr. Bauer") as an expert witness. Id. at 47. Dr. Bauer, a neurologist, testified that he believed that Sullivan had a traumatic brain injury as the result of the car accident. Id. at 55. He further testified that he believed the six clues that Cortez observed during the HGN Test were symptoms of Sullivan's traumatic brain injury and were not indicators of intoxication. Id. at 51-52, 55. He also believed that the flushed face, lethargic movements, slow responses to questions, and glassy eyes were the result of the traumatic brain injury caused by the accident. Id. at 56-58. Dr. Bauer's conclusions on Sullivan's conditions were based solely on a telephone conversation with Sullivan that occurred on August 14, 2016. Id. at 53. On cross examination, Dr. Bauer admitted that he had not seen Sullivan in person until the hearing, had no consultations with Sullivan prior to their conversation on August 14, 2016, and was not involved in any treatments for Sullivan's alleged traumatic brain injury. Id. at 59-60, 61-62. The Defense did not present any evidence to corroborate the opinions of its expert witness. On December 28, 2016, the trial court overruled Sullivan's motion to suppress the results of the HGN Test. Doc. 12.

{¶ 7} This case proceeded to trial on April 20, 2017. Trial Tr. 1. At trial, Cortez testified about his experience in law enforcement and his observations on the night that he cited Sullivan for operating a vehicle while under the influence. Id. at 29. He testified that he, in his twenty-three-year long career in law enforcement, had made over four hundred OVI arrests. Id. at 29, 41. He also stated that he has been an instructor who trains law enforcement officers on how to administer the HGN Test for the last fifteen years. Id. at 36. After explaining the workings of the HGN Test, he testified that he had observed six out of six clues in Sullivan's eyes. Id. at 58-65, 69. During this portion of his testimony, the following exchange took place between the prosecutor and Cortez:

[Prosecutor]: What if anything did [seeing six of six clues] mean to you?
[Cortez]: That means to me that according to the research that was conducted-
[Defense Counsel]: Objection.
The Court: Overruled.
[Cortez]: -according to the research that was conducted that is provided to us through our training that-the original research was done by the Southern California Research Institute, contracted by the National Highway Traffic Safety Administration. That began in 1975. In 1977 they did a field study only in California and again in 1977 they did another field and laboratory study and again in 1983 they did one in North Carolina, Maryland, Washington D.C., and Virginia and as a result of those particular-
[Defense Counsel]: Objection, your honor, this is hearsay testimony.
The Court: The question was what did the observations of the six clues mean to the officer.
[Cortez]: I'm just trying to explain so the jury understands.
The Court: Without getting into the several research matters that aren't before the court.
[Prosecutor]: Okay.
The Court: If you want to take him back to the basis of the training * * *.
[Prosecutor]: I'll ask a question to help get all of that aside, what do these results of Mr. Sullivan indicate to you?
[Cortez]: To simply put it, they did research and they found that when these four clues are-
[Defense Counsel]: Objection.
The Court: Sustained.
[Prosecutor]: Just if you can, Sergeant Cortez, so having observed those six clues, three in each eye what did that mean to you about Mr. Sullivan on May 20, 2016?
[Cortez]: That there was alcohol and/or drugs of abuse.
[Prosecutor]: Where?
[Cortez]: In his system.

Id. at 68-69. On appeal, Sullivan asserts that the State-through this exchange-improperly bolstered Cortez's testimony regarding the HGN Test results with inadmissible hearsay evidence. After Cortez's testimony, the State rested. Defense counsel then made a Crim.R. 29 motion, arguing that the State did not prove that Sullivan had consumed alcohol and, therefore, did not prove that Sullivan had alcohol in his system on the night of the alleged offense. Id. at 103. The trial court overruled Sullivan's Crim.R. 29 motion. Id. at 106.

{¶ 8} During the Defense's case-in-chief, Sullivan again called Dr. Bauer as an expert witness. Id. at 109. During his testimony, Dr. Bauer again stated his belief that Sullivan had suffered a traumatic brain injury ; that the indictors of intoxication observed by Cortez were actually symptoms of this injury; and that the HGN Test results were not reliable under these circumstances. Id. at 121, 123, 125-126. On cross examination, Dr. Bauer admitted that he had never performed a physical examination of Sullivan and had not viewed Sullivan's medical history records. Id. at 136. Dr. Bauer also admitted that his consultation was over the phone; that this consultation occurred three months after the accident on May 20, 2016; that he had never talked with Sullivan in person outside of the courtroom; and that he had not been involved in any treatments for this alleged traumatic brain injury. Id. at 136, 145. The jury found Sullivan guilty of violating R.C. 4511.19(A)(1)(a) on April 20, 2017. Doc. 34. Sullivan was sentenced at that time. Doc. 22-23.

{¶ 9} Sullivan filed notice of appeal on April 21, 2017. Doc. 27. On appeal, he raises four assignments of error, which read as follows:

First Assignment of Error

The trial court erred by denying the motion to suppress the HGN Test.

Second Assignment of Error

The trial court erred by denying defendant's Rule 29 motion.

Third Assignment of Error

The trial court erred in overruling objections relating to HGN research.

Fourth Assignment of Error

The guilty jury verdict was against the manifest weight of the evidence.

We will consider the first and third assignments of error before considering the second and fourth assignments of error.

First Assignment of Error

{¶ 10} In his first assignment of error, Sullivan argues that the trial court erred in denying his motion to suppress the HGN Test. In this case, Sullivan was in an accident prior to having the HGN Test administered. At the suppression hearing, his expert witness stated that Sullivan had a head injury as the result of the accident and determined that the HGN Test was not valid under these circumstances. Sullivan argues that the trial court considered the training of Cortez but failed to examine whether the physical condition of the defendant invalidated the HGN Test. On these grounds, Sullivan contends that the HGN Test should have been excluded since his physical condition made the HGN Test invalid.

Legal Standard

{¶ 11} Under appellate review, motions to suppress present "mixed questions of law and fact."

State v. Yeaples , 180 Ohio App.3d 720, 2009-Ohio-184, 907 N.E.2d 333, ¶ 20 (3d Dist.).

When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses. Consequently, an appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence. Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.

(Citations omitted.) State v. James , 2016-Ohio-7262, 71 N.E.3d 1257, ¶ 8 (3d Dist.), quoting State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.

{¶ 12} R.C. 4511.19(D)(4)(b) governs the admissibility of field sobriety tests and reads, in its relevant part, as follows:

In any criminal prosecution or juvenile court proceeding for a violation of division (A) or (B) of this section * * * if a law enforcement officer has administered a field sobriety test to the operator of the vehicle involved in the violation and if it is shown by clear and convincing evidence that the officer administered the test in substantial compliance with the testing standards for any reliable, credible, and generally accepted field sobriety tests that were in effect at the time the tests were administered, including, but not limited to, any testing standards then in effect that were set by the national highway traffic safety administration, all of the following apply:
(i) The officer may testify concerning the results of the field sobriety test so administered.
(ii) The prosecution may introduce the results of the field sobriety test so administered as evidence in any proceedings in the criminal prosecution or juvenile court proceeding.
(iii) If testimony is presented or evidence is introduced under division (D)(4)(b)(i) or (ii) of this section and if the testimony or evidence is admissible under the Rules of Evidence, the court shall admit the testimony or evidence and the trier of fact shall give it whatever weight the trier of fact considers to be appropriate.

R.C. 4511.19(D)(4)(b).

Clear and convincing evidence is that measure or degree of proof which is more than a mere 'preponderance of the evidence,' but not to the extent of such certainty as is required 'beyond a reasonable doubt' in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.

Cross v. Ledford , 161 Ohio St. 469, 120 N.E.2d 118, at paragraph three of the syllabus (1954).

{¶ 13} If a motion to suppress challenges the admission of the results of field sobriety tests in an OVI case,

the state must show the requisite level of compliance with accepted testing standards. Typically, the standards used are those from the [National Highway Traffic Safety Administration ("NHTSA") ]. Part of the state's burden 'includes demonstrating what the NHTSA requirements are, through competent testimony and/or introducing the applicable portions of the NHTSA manual.' HGN test results are admissible in Ohio without expert tes timony so long as the proper foundation has been shown both as to the administering officer's training and ability to administer the test and as to the actual technique used by the officer in administering the test.

(Citations omitted.) State v. Loveridge , 3d Dist. Marion No. 9-06-46, 2007-Ohio-4493, 2007 WL 2472238, ¶ 11.

Legal Analysis

{¶ 14} In this case, Cortez testified at the suppression hearing about the process of administering the HGN Test to Sullivan. Suppression Hearing Tr. 25-28. Cortez discussed his experience in administering the HGN Test. Id. at 29-31. He received his instruction on this field test from the Ohio Peace Officers Training Academy, which hosted a program conducted by NHTSA. Id. at 25. He also stated that he is an instructor of this technique and has trained law enforcement officers across northwest Ohio on how to administer the HGN Test properly. Id. at 25-26. He then explained the NHTSA guidelines for the HGN Test and detailed the process of administering this field sobriety test. Id. at 26-28. After discussing how the HGN Test was performed, he testified as to how he conformed to these standards as he administered this test with Sullivan. Id. at 29-31. He further discussed the observations he made while Sullivan took the HGN Test. In this process, Cortez testified that he saw six of six clues in Sullivan's eyes. Id. at 31. Thus, through Cortez's testimony, the State demonstrated the requisite level of compliance that is required for the admissibility of the HGN Test.

{¶ 15} In response, the Defense called Dr. Bauer as its witness at the suppression hearing. Id. at 47. Dr. Bauer was a neurologist who testified as an expert witness. Id. Dr. Bauer testified that he believed that the indicators of intoxication that Cortez observed during the HGN Test were actually symptoms of a traumatic brain injury. Id. at 55. The Defense argued in its motion to suppress that Cortez's testimony as to the results of the HGN Test should be suppressed because Cortez was not able to give a medical diagnosis of Sullivan's condition and could not, therefore, determine whether Sullivan was suffering from a traumatic brain injury or was exhibiting symptoms of intoxication. Doc. 8.

{¶ 16} In its ruling on the Defense's motion to suppress, the trial court found that

[Cortez] testified he was familiar with the NHTSA requirements for administering the HGN and was certified to conduct this particular test. In addition, he has trained other deputies at the sheriff's office, as well as for other law enforcement agencies, on the administration of the HGN. The sergeant explained how the test was required to be administered and how he conducted the test with the defendant.

Doc. 12. The trial court found that Dr. Bauer's testimony, on the other hand, was not persuasive. Id. Specifically, the trial court noted that Dr. Bauer had only spoken to Sullivan over the phone prior to his diagnosis; that Dr. Bauer did not review Sullivan's medical history records; that Dr. Bauer did not examine Sullivan in person; that Dr. Bauer only considered Sullivan to be a patient "theoretically"; and that Dr. Bauer did not participate in any treatment of this alleged brain trauma. Id.

{¶ 17} The record shows that the State presented some information supporting all of the requirements of R.C. 4511.19(D)(4)(b) during the suppression hearing. Further, after considering all of the information from the hearing, the trial court found Dr. Bauer's testimony not to be persuasive. Doc. 12. This determination of fact weighed in favor of the State's case. The trial court's decision to overrule Sullivan's motion to suppress was consistent with its factual determinations. Thus, the trial court did not err in overruling Sullivan's motion to suppress. For this reason, Sullivan's first assignment of error is overruled.

Third Assignment of Error

{¶ 18} In his third assignment of error, Sullivan asserts that the trial court erred by overruling his objections to the admission of testimony regarding HGN Test research. At trial, Cortez mentioned the existence of several field studies that were conducted by NHTSA on the HGN Test. Sullivan claims that the trial court allowed the conclusions of these reports to be admitted as evidence and, in so doing, allowed impermissible hearsay evidence to be introduced at trial. Sullivan argues that this hearsay evidence obscured the fact that the six clues that Cortez observed could have been indicators of multiple conditions aside from intoxication. Sullivan further argues that admission of this evidence constituted improper bolstering of Cortez's testimony.

Legal Standard

{¶ 19} Ohio Evid.R. 701 governs what a lay witness is permitted to include in their testimony and reads as follows:

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.

Evid.R. 701. Further, under the rules of evidence, "[h]earsay is generally inadmissible 'except as otherwise provided by the Constitution of the United States, by the Constitution of the State of Ohio, by statute enacted by the General Assembly not in conflict with a rule of the Supreme Court of Ohio, by these rules, or by other rules prescribed by the Supreme Court of Ohio.' " State v. Carter , 3d Dist. Seneca No. 13-17-10, 2017-Ohio-7443, 2017 WL 3867997, ¶ 8, quoting Evid.R. 802. Ohio Evid.R. 801(C) defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Evid.R. 801(C).

{¶ 20} "An appellate court's review of the admission of evidence is limited to a determination as to whether the trial court abused its discretion." State v. Little , 2016-Ohio-8398, 78 N.E.3d 323, ¶ 8 (3d Dist.), quoting Rigby v. Lake Cty. , 58 Ohio St.3d 269, 271, 569 N.E.2d 1056 (1991). "An abuse of discretion is more than an error of judgment; rather, it implies that the trial court's decision was unreasonable, arbitrary, or capricious." State v. Howton , 3d Dist. Allen No. 1-16-35, 2017-Ohio-4349, 2017 WL 2628060, ¶ 23, quoting Heilman v. Heilman , 3d Dist. Hardin No. 6-12-08, 2012-Ohio-5133, 2012 WL 5397596, ¶ 14. "When applying the abuse of discretion standard, a reviewing court is not free to merely substitute its judgment for that of the trial court." State v. Thompson , 2017-Ohio-792, 85 N.E.3d 1108 (3d Dist.), quoting In re Jane Doe 1 , 57 Ohio St.3d 135, 138, 566 N.E.2d 1181 (1991).

Legal Analysis

{¶ 21} In his brief, Sullivan reports that the trial court erred by allowing the following statement to be admitted at trial:

The original research done by the Southern California Research Institute, contracted by the National Highway Traffic Safety Administration, that began in 1975. In 1977, they did a field study only in California and again in 1977 they did another field and laboratory study and again in 1983 they did one in North Carolina, Maryland, Washington DC and Virginia, and as a result of those particular * * * [continued on p.69, line 14] they did research and they found that when these four clues are * * * that there was alcohol and or drugs of abuse...in his system.

(Brackets original). Appellant's brief, 10. The appellant claims that admission of this statement allowed the State to bolster the testimony of Cortez through impermissible hearsay evidence. The appellant further argues that the "trial court * * * erred in allowing the continuation of this testimony over the several objections of defense counsel." Appellant's brief, 12.

{¶ 22} However, the appellant quotes an edited portion of the transcript in his brief. A complete read of the transcript shows that the trial court did not allow hearsay testimony to be admitted at trial. The exchange that is relevant to this assignment of error reads as follows:

[Prosecutor]: What if anything did [seeing six of six clues] mean to you?
[Cortez]: That means to me that according to the research that was conducted-
[Defense Counsel]: Objection.
The Court: Overruled.
[Cortez]: -according to the research that was conducted that is provided to us through our training that-the original research was done by the Southern California Research Institute, contracted by the National Highway Traffic Safety Administration. That began in 1975. In 1977 they did a field study only in California and again in 1977 they did another field and laboratory study and again in 1983 they did one in North Carolina, Maryland, Washington D.C., and Virginia and as a result of those particular-
[Defense Counsel]: Objection, your honor, this is hearsay testimony.
The Court: The question was what did the observations of the six clues mean to the officer.
[Cortez]: I'm just trying to explain so the jury understands.
The Court: Without getting into the several research matters that aren't before the court.
[Prosecutor]: Okay.
The Court: If you want to take him back to the basis of the training * * *.
[Prosecutor]: I'll ask a question to help get all of that aside, what do these results of Mr. Sullivan indicate to you?
[Cortez]: To simply put it, they did research and they found that when these four clues are-
[Defense Counsel]: Objection.
The Court: Sustained.
[Prosecutor]: Just if you can, Sergeant Cortez, so having observed those six clues, three in each eye what did that mean to you about Mr. Sullivan on May 20, 2016?
[Cortez]: That there was alcohol and/or drugs of abuse.
[Prosecutor]: Where?
[Cortez]: In his system .

(Emphasis added). Trial Tr. 68-69.

{¶ 23} The trial judge did overrule the Defense's first objection to the statements about what the HGN Test results signified to Cortez. Id. at 68. From the transcript, it appears that Cortez was about to state that he based his opinions or inferences on studies that he had come across in his professional career. Id. At the time that the trial judge overruled the Defense's objection, it is not apparent from that transcript that Cortez intended to mention specific statements from these studies. Id. After the trial court overruled the Defense's first objection, Cortez made statements about several studies that have been conducted in the past. Id. at 69. Before Cortez could mention any of the statements contained within these studies, the Defense objected. In response, the trial court sustained this second objection of the Defense. Id. When Cortez again exhibited an intention to reference statements contained in the field study reports, the trial court again sustained the third objection from the Defense before Cortez could state the results of the study. Id. Due to the timely objections of Defense counsel and the rulings of the trial court, no statistics, statements, or conclusions from these studies were admitted at trial. Thus, no hearsay was admitted as the trial court sustained the Defense's objections before Cortez made impermissible statements.

{¶ 24} After the third objection, the trial court instructed Cortez not to discuss the conclusions of studies not before the court, and the prosecutor clarified the question. Id. Cortez then stated what he believed the HGN Test results signified: he testified that he believed, on the basis of the results of this field sobriety test, "[t]hat there was alcohol and/or drugs of abuse * * * in [Sullivan's] system." Id. at 68-69. The appellant presents these statements as though they were derived from the field studies that Cortez referenced when they, in fact, represented Cortez's own opinions and inferences. Thus, this testimony, being from a lay witness, was admissible as these statements were "opinions or inferences" that were "rationally based on the perception of the witness * * *." Evid.R. 701.

{¶ 25} Ultimately, the Defense's objections were sustained, and the trial court did not permit hearsay testimony to be admitted. Thus, the appellant cannot show that the State improperly bolstered its witness's testimony with hearsay evidence. Appellant also cannot demonstrate prejudice as the trial court sustained the Defense's objections and as the hearsay evidence was not admitted. For this reason, Sullivan's third assignment of error is overruled.

Second Assignment of Error

{¶ 26} In his second assignment of error, Sullivan argues that his Crim.R. 29 motion should have been granted because the State did not prove that he had alcohol in his system at the time of his car accident. In so doing, he claims that the State failed to establish an essential element of the crime with which he was charged. He argues that the State's case against him fails in the absence of proof that he consumed alcohol prior to his accident. For this reason, he argues that the trial court erred in denying his Crim.R. 29 motion for acquittal.

Legal Standard

{¶ 27} Crim.R. 29 reads, in its relevant part, as follows:

(A) Motion for Judgment of Acquittal. The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses.

Crim.R. 29(A). "An appellate court reviews a denial of a Crim.R. 29 motion for judgment of acquittal using the same standard that is used to review a sufficiency of the evidence claim. State v. Lightner , 3d Dist. Hardin No. 6-08-11, 2009-Ohio-544, 2009 WL 295407, ¶ 11, quoting State v. Carter , 72 Ohio St.3d 545, 553, 651 N.E.2d 965 (1995).

{¶ 28} "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. Pierce , 3d Dist. Seneca No. 13-16-36, 2017-Ohio-4223, 2017 WL 2537579, ¶ 6, quoting State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, superseded by state constitutional amendment on other grounds , State v. Smith , 80 Ohio St.3d 89, 684 N.E.2d 668 (1997), fn. 4. Under the sufficiency of the evidence standard, "[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. Potts , 2016-Ohio-5555, 69 N.E.3d 1227, ¶ 12 (3d Dist.), quoting Jenks at paragraph two of the syllabus.

{¶ 29} R.C. 4511.19(A)(1)(a) prohibits operating a motor vehicle under the influence of alcohol and reads as follows:

(A)(1) No person shall operate any vehicle, streetcar, or trackless trolley within this state, if, at the time of the operation, any of the following apply:
(a) The person is under the influence of alcohol, a drug of abuse, or a combination of them.

R.C. 4511.19(A)(1)(a). Thus, in order for an appellate court to make a finding that the evidence supporting a conviction for violating R.C. 4511.19(A)(1)(a) was legally sufficient, the record must show that the State presented evidence that the defendant (1) was operating a "vehicle, streetcar, or trackless trolley" (2) in the State of Ohio (3) while he or she was "under the influence of alcohol, a drug of abuse, or a combination of them." R.C. 4511.19(A)(1)(a).

{¶ 30} In establishing the third element-that the defendant was under the influence of alcohol-the State "need not establish a threshold level of alcohol concentration in the defendant's body. It must, however, prove that the defendant operated a vehicle when his faculties were appreciably impaired by the consumption of alcohol." State v. Lowman , 82 Ohio App.3d 831, 836, 613 N.E.2d 692, 695 (12th Dist.1992), citing State v. Bakst , 30 Ohio App.3d 141, 145, 506 N.E.2d 1208, 1213 (1st Dist.1986) ; State v. Spicer , 12th Dist. Preble App. No. CA90-11-022, 1991 WL 164591 (Aug. 26, 1991).

{¶ 31} "Whether there is legally sufficient evidence to sustain a verdict is a question of law." State v. Schaeffer , 2015-Ohio-3531, 41 N.E.3d 813, ¶ 14 (3d Dist.), citing State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). For this reason, "[i]n deciding if the evidence was sufficient, we neither resolve evidentiary conflicts nor assess the credibility of witnesses, as both are functions reserved for the trier of fact." Potts at ¶ 12, quoting State v. Jones , 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, 2013 WL 5864591, ¶ 33, citing State v. Williams , 197 Ohio App.3d 505, 2011-Ohio-6267, 968 N.E.2d 27, ¶ 25 (1st Dist.).

Legal Analysis

{¶ 32} In its argument, the Defense alleges that the State failed to produce evidence that establishes Sullivan was "under the influence of alcohol, a drug of abuse, or a combination of them," which is the third element of the offense with which Sullivan was charged. R.C. 4511.19(A)(1)(a). Since Sullivan has confined his argument to challenging the State's case on this element alone, our analysis will be limited to determining whether the State produced evidence establishing that Sullivan was "under the influence of alcohol or a drug of abuse."

{¶ 33} In this case, the arresting officer testified at trial that Sullivan had been in an accident where he missed a stop sign; had slow response times in answering questions; struggled to maintain his balance; held onto the cruiser to stabilize himself; made very deliberate movements; and was unaware of where he was. Id. at 53, 55. Cortez also testified that Sullivan smelled strongly of an alcoholic beverage; had a flushed face; and had blood shot glassy eyes. Id. at 53. On the basis of these observations, the officer requested that Sullivan submit to an HGN Test. Id. at 56. With Sullivan's consent, Cortez administered the HGN Test and, in this process, observed six out of the six clues in Sullivan's eyes. Id. at 56. At trial, Cortez discussed his experience, which included making 400 arrests for OVI violations over a period of twenty-three years. Id. at 23. He also testified about his familiarity with the HGN Test, discussing his certifications, experience, and status as an instructor of this technique to law enforcement trainees. Id. at 58-65.

{¶ 34} These observations combined with the HGN Test results and the strong smell of an alcoholic beverage were the evidence of the third element of this offense that the State presented. In so doing, the State used circumstantial evidence to support the third element of this offense. Circumstantial evidence can be sufficient to establish that a driver was under the influence of alcohol. See State v. Norris , 168 Ohio App.3d 572, 2006-Ohio-4325, 861 N.E.2d 148, ¶ 16 (12th Dist.) (holding that "[c]ircumstantial evidence and direct evidence have the same probative value, and in some instances, certain facts can be established only by circumstantial evidence."). The Defense points out that Sullivan did not admit that he had consumed alcohol earlier on the day of his accident. However, this fact does not mean that the trial court, in ruling on the Defense's Crim.R. 29 motion for acquittal, could not make a reasonable inference from the evidence presented at trial that Sullivan had consumed alcohol. State v. Caldwell , 10th Dist. Franklin No. 02AP-576, 2003-Ohio-271, 2003 WL 152813, ¶ 26. Compare State v. Joy , 5th Dist. Stark No. 2005-CA-00235, 2006-Ohio-1923, 2006 WL 1011384, ¶ 122.

{¶ 35} Viewing all of the evidence in the light most favorable to the State, a rational trier of fact could have reasonably found that the State established that Sullivan was under the influence of alcohol. Since the State provided evidence for each of the essential elements of this crime that, if believed, could persuade a reasonable trier of fact that Sullivan was guilty beyond a reasonable doubt, his conviction for operating a vehicle while under the influence is supported by sufficient evidence. Thus, the trial court did not err in denying Sullivan's Crim.R. 29 motion for acquittal. Accordingly, Sullivan's second assignment of error is overruled.

Fourth Assignment of Error

{¶ 36} In his fourth assignment of error, Sullivan argues that the jury returned a verdict against the manifest weight of the evidence. In particular, he alleges that the jurors disregarded a portion of the jury instructions that required them to find that the defendant had "consumed some alcohol" in order to return a guilty verdict. Sullivan asserts that the jury clearly lost its way as no evidence was presented that he had consumed alcohol. Further, he alleges that the guilty verdict demonstrates that the jurors disregarded the testimony of the Defense's expert. He concludes his argument by asserting that a guilty verdict under these circumstances was a manifest miscarriage of justice. For these reasons, he requests that this Court reverse his conviction.

Legal Standard

{¶ 37} When "deciding whether a conviction is against the manifest weight of the evidence, an appellate court determines whether the state has appropriately carried its burden of persuasion." State v. Brentlinger , 2017-Ohio-2588, 90 N.E.3d 200, ¶ 36 (3d Dist.), quoting State v. Blanton , 121 Ohio App.3d 162, 169, 699 N.E.2d 136 (3d Dist.1997). "Unlike our review of the sufficiency of the evidence, an appellate court's function when reviewing the weight of the evidence is to determine whether the greater amount of credible evidence supports the verdict." State v. Plott , 2017-Ohio-38, 80 N.E.3d 1108, ¶ 73 (3d Dist.). In the manifest weight analysis, "the appellate court sits as a 'thirteenth juror' * * *." State v. Davis , 3d Dist. Seneca No. 13-16-30, 2017-Ohio-2916, 2017 WL 2241604, ¶ 17, quoting Thompkins at 389, 678 N.E.2d 541. On appeal, courts

must review the entire record, weigh the evidence and all of the reasonable inferences, consider the credibility of witnesses, and determine whether in resolving conflicts in the evidence, the factfinder "clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered."

(Citations omitted). Plott, supra , at ¶ 73.

{¶ 38} "A reviewing court must, however, allow the trier of fact appropriate discretion on matters relating to the weight of the evidence and the credibility of the witnesses." State v. Coleman , 3d Dist. Allen No. 1-13-53, 2014-Ohio-5320, 2014 WL 6725795, ¶ 7. "Only in exceptional cases, where the evidence 'weighs heavily against the conviction,' should an appellate court overturn the trial court's judgment." State v. Haller , 2012-Ohio-5233, 982 N.E.2d 111, ¶ 9, quoting State v. Hunter , 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 119.

Legal Analysis

{¶ 39} As with his sufficiency of the evidence challenge to his conviction, Sullivan focuses his manifest weight argument on the third element of this offense, which requires a finding that the defendant was "under the influence of alcohol, a drug of abuse, or a combination of them" to be convicted under R.C. 4511.19(A)(1)(a). For this reason, our analysis will focus on whether the evidence weighs heavily against a finding that Sullivan was "under the influence of alcohol" at the time of his accident on May 20, 2016. R.C. 4511.19(A)(1)(a).

{¶ 40} In this case, the State and the Defense each called one witness. For its case-in-chief, the State called Cortez to testify as to his observations on the night of Sullivan's accident. Previously, in reviewing the record to determine whether Sullivan's conviction was supported by sufficient evidence, we found that Cortez's testimony, if believed, supplied evidence, which could reasonably be believed, for each of the elements of operating a vehicle while under the influence. Under the manifest weight analysis, we reincorporate Cortez's above testimony here regarding his observations, the results of the HGN Test, and his experience in law enforcement. We add, for this analysis, the fact that Cortez chose not to perform further field sobriety tests after he observed six out of six clues in Sullivan's eyes during the HGN Test. The reason Cortez gave for this was that the weather was becoming inclement and was not suitable, in his opinion, for further field sobriety testing.

{¶ 41} For its case-in-chief, the Defense called an expert witness, Dr. Bauer, to testify. Dr. Bauer testified that he was a neurosurgeon who was licensed to practice medicine in the United States, Ireland, and the United Kingdom. During his testimony, Dr. Bauer stated that he believed Sullivan had suffered from a traumatic brain injury as the result of the impact from the car accident. In his expert opinion, Dr. Bauer explained that he believed the indicators of intoxication that Cortez reported to the court were, in fact, symptoms of this trauma. This diagnosis was made by Dr. Bauer after he had a half an hour telephone conversation with Sullivan that occurred nearly three months after the accident. He admitted that he had not performed a physical examination of Sullivan, did not meet with Sullivan in person prior to making his diagnosis, had not reviewed Sullivan's medical history records, and had not been involved in any treatment for this alleged brain injury.

{¶ 42} After considering the evidence on the basis of its weight and credibility, we do not find that the evidence weighs manifestly against a finding of guilty. In our review of the record, we find that the jury could have reasonably found that Dr. Bauer's expert testimony was not persuasive and that Cortez's testimony was credible. A finding of guilty is not against the manifest weight of the evidence simply because an expert witness's testimony is found to be unpersuasive by a jury. State v. Waugh , 10th Dist. Franklin No. 07AP-619, 2008-Ohio-2289, 2008 WL 2025852, ¶ 92-95, quoting Croft v. State Farm Auto Ins. Co. , 3d Dist. Allen No. 1-01-72, 2002 WL 18665, *3 (January 8, 2002). Further, we do not find any indication in the record that the jury lost its way or committed a miscarriage of justice in returning a verdict of guilty in this case. For this reason, Sullivan's fourth assignment of error is overruled.

Conclusion

{¶ 43} Having found no error prejudicial to the appellant in the particulars assigned and argued, the judgment of Municipal Court of Findlay, Ohio is affirmed.

Judgment Affirmed

PRESTON, P.J. and ZIMMERMAN, J., concur.