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State v. Cook4/12/1991
Per Curiam.
This is an appeal from a December 12, 1989 judgment entry of the Bowling Green Municipal Court in which appellant, John T. Cook, was found guilty of the charge of driving under suspension and guilty of the charge of failing to drive within marked lanes but not guilty of the charge of driving under the influence , resulting in appellant receiving a sentence of probation for three years, fines totaling $350, and court costs. Two of the three counts, driving under the influence and driving under suspension, were tried to a jury. The remaining charge, failure to drive within marked lanes, was tried to the court. Appellant presents two assignments of error to support his contention that his conviction for driving under suspension must be overturned. The two assignments of error state:
"First Assignment of Error
"The lower court erred by convicting defendant-appellant of driving under an FRA suspension in violation of Ohio Revised Cede Section 4507.02(B).
"A. The conviction of the defendant-appellant was against the manifest weight of the evidence inasmuch as the state failed to prove notice to the defendant of the suspension.
"B. The jury instruction on the notice requirement was erroneous and substantially prejudiced the defendant in his ability to present his defense.
"Second Assignment of Error
"The lower court erred in admitting state's Exhibit 1, Bureau of Motor Vehicles packet which was not properly authenticated, contained hearsay evidence, irrelevant evidence and prejudicial evidence thereby prejudicing defendant's right to a fair trial."
A brief review of the events which led to appellant being charged with the three counts previously stated is necessary to understand the contentions presented by appellant. Appellant testified at trial that on November 6, 1988, he was involved in an accident while driving his employer's car. Police officers were called to the scene and a report was made, but no citations were issued. Appellant testified that he was not aware of the requirement established by R.C. 4509.06 to file an accident report with the Bureau of Motor Vehicles ("BMV"). Consequently, appellant did not file a separate report with the BMV. A letter was sent by the BMV to appellant to inform him that if he failed to file a report and proof of financial responsibility, he would face a license suspension pursuant to R.C. 4509.09. The letter, dated March 29, 1989, was sent by certified mail. Appellant testified at trial, however, that he never received the certified letter nor did he receive any notice that there was a certified letter to be claimed. Appellant testified that the letter wasproperly addressed to his current place of residence, but that he had been absent from that place of residence from February 17, 1989 to June 23, 1989 to receive military training. The record reflects that the certified letter was returned to the BMV. The record contains a document entitled "BUREAU OF MOTOR VEHICLES SAFETY RESPONSIBILITY DIVISION REQUEST FOR FIELD SERVICE" which indicates that notice was returned to the BMV marked "unknown." A copy of the envelope from the certified letter is included in the record but is not legible regarding the reason marked for the return of the letter. Because appellant failed to file the required report and proof of financial responsibility, appellant's driver's license was suspended effective April 28, 1989. Nearly five months later, on September 25, 1989, appellant was stopped for failing to drive within marked lines. The officer who conducted the stop noticed that appellant's eyes were bloodshot and glassy, that appellant's face was slightly flu
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