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State v. Kincaid

10/28/1992

GREY, Judge.


This is an appeal from a judgment of the Municipal Court of Hocking County. Donald Kincaid appeals his conviction of violating R.C. 4511.19(A)(1), operating a vehicle while under the influence of alcohol.


In the early morning hours of August 6, 1991, Deputy Perez found Kincaid slumped over in a car parked by the side of the road. Three empty quart beer bottles littered the passenger's floor. Deputy Perez awakened Kincaid and noticed a strong smell of alcohol about his person. His speech was slurred, his eyes were bloodshot and he was unable to stand without assistance. There was evidence that he had urinated and possibly defecated in his slacks. A field sobriety test was administered, which Kincaid failed. He was taken to the station and given a breathalyzer test. The BAC Verifier test registered .210. He was charged with violating R.C. 4511.19(A)(1) and (3).


At trial, his counsel successfully asserted that the BAC Verifier calibration samples were unreliable and therefore the BAC results should be excluded from evidence. The court dismissed the violation of R.C. 4511.19(A)(3). Kincaid was found guilty of violating R.C. 4511.19(A)(1).





"The trial court erred in finding that the Defendant operated a motor vehicle when the evidence established that the vehicle engine was not running at the time of the offense and the vehicle ignition key was not in the ignition, and the state did not prove that the Defendant had, at any time, operated or moved the vehicle under its own power prior to the Defendant's arrest."


Kincaid asserts that the state failed to meet its burden of proof because it did not establish that Kincaid's car was operable. He also asserts that the courserred when it determined that the ignition key, located in the ashtray, fulfilled the "operation" requirements under the applicable statute.


Kincaid argues that the burden is on the state to prove all elements of the crime and that the state did not prove that his car was operable. The state cites State v. Allberry (Jan. 7, 1991), Hocking App. No. 90 CA 9, unreported, 1991 WL 13736, to support its contention that the burden of proving inoperability is placed upon the defendant.


In State v. Eskridge (1988), 38 Ohio St.3d 56, 526 N.E.2d 304, paragraph two of the syllabus, the court held:


"A reviewing court will not reverse a conviction where there is substantial evidence upon which the court could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt."


In State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus, the Ohio Supreme Court stated:


"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." (Citation omitted.)


Deputy Perez testified regarding the keys found in the vehicle: "* * * when I collected the keys, the keys were turned over to the wrecker operator, which the wicker operator did put, the keys in the ignition, start the vehicle, and move it up to the back of the wrecker."


The issue offered for review is whether there is sufficient evidence upon which to find the vehicle operable, not who had the burden of proo

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