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City of Cleveland v. Gibson12/6/2001
JUDGMENT: Affirmed in part and Vacated.
In this accelerated appeal, Aaron Gibson appeals the judgment of the Cleveland Municipal Court finding him guilty of operating a motor vehicle under the influence of alcohol in violation of Cleveland Codified Ordinance (C.C.O.) 433.01(a)(1), reckless operation, in violation of C.C.O. 433.02, and no driver's licence, in violation of C.C.O. 435.01(a). On appeal, he assigns the following as errors for our review:
I. THE VERDICTS OF THE TRIAL COURT ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.
II. THE TRIAL COURT ERRED IN CONVICTION (SIC) APPELLANT OF DRIVER'S LICENSE REQUIRED, PURSUANT TO CLEVELAND MC 435.01, DEEMING SAID CHARGE TO BE A LESSER INCLUDED OFFENSE OF DRIVING UNDER SUSPENSION.
Having reviewed the arguments of the parties and the pertinent law, we affirm in part and vacate in part the judgment of the trial court.
On September 30, 2000, Cleveland Police Sergeant Sharon Lorenc observed Gibson operate his 1987 Chevrolet automobile through a red light at West 3rd and Superior Avenue in Cleveland. As Lorenc followed Gibson, she observed him proceed through two red lights at Public Square, one at East 4th and Euclid Avenue and one at East 9th and Euclid Avenue. Lorenc testified Gibson wove through traffic at a high rate of speed without using signals. Lorenc activated her overhead lights and initiated a traffic stop of Gibson's vehicle. She ordered him to shut the motor off and throw his keys out the window. According to Lorenc's testimony, it took several attempts for Gibson to follow her directions. Upon approaching the vehicle, Lorenc testified there was a strong odor of alcohol, Gibson's pupils were dilated, his gait was staggered, his speech was slurred, and he could not follow easy directions. She further testified Davis told her he had drunk a 40-ounce bottle of beer and had been smoking marijuana earlier that evening; however, the trial court refused to consider these admissions because the statements were not documented by a police report. Davis also refused to submit to a breathalyzer at the scene.
Lorenc further testified Gibson provided her with a driver's license that did not belong to him. Additional investigation revealed Gibson's license was under suspension.
Officer Robert Nagy also testified that Gibson was uncooperative, and that he observed Gibson's bloodshot eyes, slurred speech, odor of alcohol, and staggering gait.
Upon the close of the state's case, Gibson moved for a judgment of acquittal pursuant to Crim.R. 29, which the court denied; he then rested his case.
In his first assignment of error, Gibson alleges his convictions were against the manifest weight of the evidence.
In State v. Martin, the court stated:
The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.
Additionally, the court in State v. Thompkins, stated:
Weight of the evidence concerns the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicated clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater
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