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State v. LePard12/8/1989
GLASSER, J.
This matter is before the court on appeal from a judgment of the Port Clinton Municipal Court.
Defendant-appellant, Daniel D. LePard, was arrested at 11:45 p.m. on July 2, 1988. At the time of his arrest, appellant was aboard his boat, a twenty-three-foot Imperial, on Lake Erie in Ottawa County, Ohio. Appellant was charged with a violation of R.C. 1547.11, operating a watercraft while under the influence of alcohol or drugs of abuse.
Appellant entered a plea of not guilty and the matter proceeded to trial. In a jury verdict rendered February 21, 1989, appellant was found guilty. By judgment entry dated February 22, 1989, appellant was sentenced according to law. It is from this judgment that appellant has appealed setting forth two assignments of error:
"1. The Trial Court erred to the prejudice of the Defendant-Appellant in charging the jury regarding `physical control' and `operation.'
"2. The jury's verdict was against the manifest weight of the evidence and the laws of Ohio."
In his first assignment of error, appellant asserts that the trial court's jury instructions regarding the elements of "operation" and "physical control" were incorrect and, therefore, prejudicial.
In its instructions to the jury, the trial court stated, in relevant part:
"Now the term operate, as we use it in our definition, is broader than thsmere act of driving. Operating includes not only a person being in control of a watercraft while the watercraft is in motion, but also a person, whether conscious or unconscious, in the driver's location, in the front seat of the stationary watercraft, so as to be able or capable of doing any act or succession of acts which could cause or contribute to the watercraft being put in motion.
"It is not necessary to prove the person in the driver's location of a stationary watercraft intended to set the watercraft in motion. When there is no evidence of direct observation of driving, you may consider any evidence offered of an admission by the Defendant that he was driving the watercraft or evidence of a circumstantial nature that the Defendant was driving the watercraft.
"Now this element of the offense is also satisfied if the State proves beyond a reasonable doubt whether or not the person was operating the watercraft. If the State proved beyond a reasonable doubt that the Defendant was in actual physical control of the watercraft, and a person is in actual physical control of a watercraft or a vehicle, for that matter, if the person is in the driver's seat of the watercraft, behind the steering wheel, in possession of the ignition key, and in such condition that he is physically capable of starting the engine and causing the vehicle or watercraft to move.
"Further, you are instructed that if you find beyond a reasonable doubt that the watercraft in question was under way on the open waters, was neither at anchor nor moored or tied to a wharf or dock and was not a derelict or abandoned vessel, a presumption of law arises that some person aboard the watercraft must have been in actual physical control of that watercraft.
"Now this presumption is in the nature of evidence and is such proof of actual physical control of the watercraft by someone unless it is balanced or rebutted by evidence of equal or greater weight. The existence of the presumption does not relieve the State of the duty of establishing that the Defendant, Mr. LePard, was either operating or in actual physical control of the watercraft beyond a reasonable doubt."
Focusing particularly on the issues of "operation" and "p
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