Opinion
2023 CA 00003
07-18-2023
STATE OF OHIO Plaintiff-Appellant v. NATASHA ONEY Defendant-Appellee
For Plaintiff-Appellant: JAMES E. YOUNG CITY OF LANCASTER ASSISTANT LAW DIRECTOR For Defendant-Appellee: SCOTT P. WOOD CONRAD/WOOD
Appeal from the Fairfield County Municipal Court, Case No. 22 TRC 03697
For Plaintiff-Appellant:
JAMES E. YOUNG
CITY OF LANCASTER
ASSISTANT LAW DIRECTOR
For Defendant-Appellee:
SCOTT P. WOOD
CONRAD/WOOD
Judges: Hon. William B. Hoffman, P.J. Hon. John W. Wise, J. Hon. W. Scott Gwin, J.
OPINION
Delaney, J.
{¶1} Plaintiff-Appellant State of Ohio appeals the January 3, 2023 judgment entry of the Fairfield County Municipal Court. Defendant-Appellee is Natasha Oney.
FACTS AND PROCEDURAL HISTORY
Alleged OVI
{¶2} On May 13, 2022, Officer Chaib and Officer Thomas of the Reynoldsburg Police Department were dispatched to a location in the City of Reynoldsburg, Ohio, based on a report of a man and woman screaming at each other. Upon arriving at the location, the officers observed a man and woman sitting on the ground of a parking lot near an AT&T business. The man was hugging the visibly upset woman.
{¶3} The officers spoke with the man and woman. The woman was identified as Defendant-Appellee Natasha Oney. Oney told the officers she was emotional because she had recently lost a baby. The officers asked to speak to the man individually. When the man spoke with the officers, they noticed a strong odor of alcohol coming from the man and that his eyes were bloodshot and glassy. The man admitted to the officers that he had consumed alcohol that night.
{¶4} Officer Chaib went over to Oney, who was standing by her car. Officer Chaib asked Oney if she had been drinking that night and she stated that she had one drink earlier that day. He asked if she was driving. Oney responded that she was driving and stopped in the AT&T parking lot about ten minutes prior to the officers' arrival. She said she pulled over because she was getting emotional. While Officer Chaib spoke with Oney, he detected the odor of alcohol coming from her, she had bloodshot and glassy eyes, and her speech was slurred. Based on his observations, Officer Chaib asked Oney if she would be willing to perform field sobriety tests. Oney agreed to the tests.
{¶5} On the HGN test, Officer Chaib observed six out of six clues. On the walk and turn test, Officer Chaib observed six out of eight clues. On the one leg stand test, Officer Chaib observed three out of four clues. Based on his observations of the indica of impairment, Oney's admission that she had been driving, and no evidence that Oney consumed any alcohol in the parking lot in the ten minutes prior to law enforcement arriving, Officer Chaib placed Oney under arrest.
Charges
{¶6} Oney was arrested for OVI under R.C. 4511.19(A)(1)(a). Based on her previous conviction for OVI in 2010 and Oney's refusal to submit to a chemical test, Oney was also charged with a violation of R.C. 4511.19(A)(2).
Bench Trial
{¶7} On January 3, 2023, the matter came on for a bench trial before the Fairfield County Municipal Court.
{¶8} After its presentation of the evidence, the State rested and moved to have its exhibits admitted into evidence. (T. 71). Oney moved for acquittal under Crim.R. 29(A), arguing the State failed to meet its burden of proof as to operation in the testimony heard at trial. (T. 72). The State argued in opposition that the officer's body cam video showed Oney stating she operated the vehicle ten minutes prior to the officers' arrival at the scene. (T. 73). The officers observed an indica of impairment and had an admission of alcohol consumption. (T. 73). Oney indicated to the officers that she stopped driving due to her emotional state, but it could have been her emotional state exacerbated by alcohol consumption. (T. 73). The State argued there was circumstantial evidence of operation, that Oney did not feel safe to operate, and she was impaired at that time. (T. 73).
{¶9} The trial court found there was insufficient evidence to show that Oney was driving while impaired and granted Oney's Crim.R. 29(A) motion. (T. 74). She was 25 to 35 yards from the car when the officers arrived. The car was turned off and locked. There was no accident. She told the officers she pulled over due to her mental health. (T. 74). The State asked the trial court to clarify its ruling and the court stated it found there was no indication there was impaired driving, supported by one of the officers who testified he could not say Oney was impaired when she was driving. (T. 75).
{¶10} The trial court journalized its judgment granting the Crim.R. 29(A) acquittal on January 3, 2023.
State's Appeal
{¶11} On January 12, 2023, the State filed a Notice of Appeal of the January 3, 2023 judgment entry.
{¶12} A review of the appellate docket shows the State did not file a motion for leave to appeal pursuant to App.R. 5(C).
ASSIGNMENT OF ERROR
{¶13} The State raises one Assignment of Error:
I. WHETHER THE TRIAL COURT ERRED IN GRANTING DEFENSE COUNSEL'S MOTION FOR A CRIM.R. 29 ACQUITTAL.
ANALYSIS
{¶14} The State contends in its sole Assignment of Error that the trial court erred when it granted Oney's Crim.R. 29(A) motion for acquittal at the close of the State's case. Crim.R. 29(A) states, "[t]he 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. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state's case."
{¶15} In her appellate brief, Oney contends the State failed to properly invoke this Court's appellate jurisdiction. It is well-established that the State may appeal in a criminal case only when a statute gives it express authority to do so. See State v. Hensley, 2nd Dist. Montgomery No. 18886, 2002-Ohio-1887, citing Ohio Constitution, Article IV, Section 3(B)(2); State ex rel. Leis v. Kraft, 10 Ohio St.3d 34, 460 N.E.2d 1372 (1984); State v. Rogers, 110 Ohio App.3d 106, 673 N.E.2d 666 (4th Dist.1996). R.C. 2945.67 places independent limits on the State's ability to pursue an appeal. State v. Ramirez, 159 Ohio St.3d 426, 2020-Ohio-602, 151 N.E.3d 598, ¶ 17.
{¶16} The general authority for the State to appeal is outlined as follows in R.C. 2945.67(A):
A prosecuting attorney, village solicitor, city director of law, or the attorney general may appeal as a matter of right any decision of a trial court in a criminal case, or any decision of a juvenile court in a delinquency case, which decision grants a motion to dismiss all or any part of an indictment, complaint, or information, a motion to suppress evidence, or a motion for the return of seized property or grants post conviction relief pursuant to sections 2953.21 to 2953.24 of the Revised Code, and may appeal by leave of the court to which the appeal is taken any other decision, except the final
verdict, of the trial court in a criminal case or of the juvenile court in a delinquency case. In addition to any other right to appeal under this section or any other provision of law, a prosecuting attorney, city director of law, village solicitor, or similar chief legal officer of a municipal corporation, or the attorney general may appeal, in accordance with section 2953.08 of the Revised Code, a sentence imposed upon a person who is convicted of or pleads guilty to a felony.
{¶17} The statute provides the State with an appeal as of right under four specific circumstances. In this case, the trial court granted Oney's Crim.R. 29(A) motion for acquittal. In State v. Keeton, 18 Ohio St.3d 379, 381, 481 N.E.2d 629 (1985), the Ohio Supreme Court held that a Crim.R. 29(A) judgment of acquittal entered after the close of evidence before the submission of the matter to a jury is a final verdict within the meaning of R.C. 2945.67(A) and as such, the State may not appeal the judgment. Ramirez, 2020-Ohio-602, ¶ 18.
{¶18} Pursuant to R.C. 2945.67(A), the State is not foreclosed from appealing if the matter is not an appeal as of right. R.C. 2945.67(A) provides the court of appeals the jurisdiction to consider "any other decision" and the discretion to grant the State leave to appeal from a decision of the trial court on evidentiary issues or "substantive law rulings made in a criminal case which result in a judgment of acquittal so long as the judgment itself is not appealed." Dayton v. Stewart, 2nd Dist. Montgomery No. 29056, 2021-Ohio-3518, 2021 WL 4495866, ¶ 12; State v. Bistricky, 51 Ohio St.3d 157, 555 N.E.2d 644 (1990), syllabus; State v. Arnett, 22 Ohio St.3d 186, 188, 489 N.E.2d 284 (1986). In State v. Bistricky, the Ohio Supreme Court clarified that "even in a case resulting in a judgment of acquittal, the prosecution may appeal from evidentiary rulings, such as admissibility of evidence, as such rulings fall within the language of 'any other decision, except the final verdict * * *' in R.C. 2945.67(A)." 51 Ohio St.3d 157, 159, 666 N.E.2d 644 (1990) citing Keeton, 18 Ohio St.3d 379; State v. Arnett, 22 Ohio St.3d 186, 489 N.E.2d 284 (1986). The State can appeal a discrete legal issue when the question is capable of repetition yet evading review (by virtue of the acquittal). State ex rel. Ramirez-Ortiz v. Twelfth Dist. Court of Appeals, 151 Ohio St.3d 46, 2017-Ohio-7816, 85 N.E.3d 725, ¶ 11 citing State v. Ross 128 Ohio St.3d 283, 2010-Ohio-6282, 943 N.E.2d 992, ¶ 33.
{¶19} In this case, there is no dispute that the State could not appeal as of right. Under R.C. 2945.67(A), the State was required to seek leave of court to file its appeal.
{¶20} As it pertains to discretionary appeals by the State, "a prosecuting attorney must satisfy the procedural requirements" set forth in App.R. 5(C). Dayton v. Stewart, 2nd Dist. Montgomery No. 29056, 2021-Ohio-3518, ¶ 14 quoting State v. Gillispie, 2nd Dist. Montgomery No. 28766, 2020-Ohio-7032, 2020 WL 8092289, ¶ 4, citing State v. Jones, 2017-Ohio-5758, 94 N.E.3d 971, ¶ 5 (2nd Dist.). App.R. 5(C) states, in pertinent part:
When leave is sought by the prosecution from the court of appeals to appeal an order of the trial court, a motion for leave to appeal shall be filed with the court of appeals within thirty days from the entry of the order sought to be appealed (or, if that order is not a final order, within thirty days of the final order into which it merges) and shall set forth the errors that the movant claims occurred in the proceedings of the trial court. The motion shall be accompanied by affidavits, or by the parts of the record upon which the movant relies, to show the probability that the errors claimed did in fact
occur, and by a brief or memorandum of law in support of the movant's claims. Concurrently with the filing of the motion, the movant shall file with the clerk of the trial court a notice of appeal in the form prescribed by App. R. 3 and file a copy of the notice of appeal in the court of appeals. The movant also shall furnish a copy of the motion and a copy of the notice of appeal to the clerk of the court of appeals who shall serve the notice of appeal and a copy of the motion for leave to appeal upon the attorney for the defendant who, within thirty days from the filing of the motion, may file affidavits, parts of the record, and brief or memorandum of law to refute the claims of the movant.
{¶21} The Ohio Supreme Court has held that the State is strictly held to the requirements of App.R. 5 when appealing by leave of court. State ex rel. T.L.M. v. Judges of First Dist. Court of Appeals, 147 Ohio St.3d 25, 2016-Ohio-1601, 59 N.E.3d 1260, 2016 WL 1593160, ¶ 12 citing State ex rel. Steffen v. First Dist. Court of Appeals, 126 Ohio St.3d 405, 2010-Ohio-2430, 934 N.E.2d 906, ¶ 27 (state was "required to timely seek leave to appeal"). See also State v. Wallace, 43 Ohio St.2d 1, 330 N.E.2d 697 (1975), syllabus ("A motion for leave to appeal by the state in a criminal case shall be governed by the procedural requirements of App.R. 5 and the time requirements [formerly set forth in] App.R. 4(B)").
{¶22} The State filed its notice of appeal on January 12, 2023. The State has not filed a motion for leave to appeal pursuant to App.R. 5(C). Therefore, because this is not an appeal as a matter of right by the State under R.C. 2945.67(A) and because the State has not in the alternative sought leave to appeal in this case pursuant to R.C. 2945.67(A) and App.R. 5(C), we are without jurisdiction to address the merits of the State's sole Assignment of Error.
CONCLUSION
{¶23} The State's appeal of the January 3, 2023 judgment of the Fairfield County Municipal Court is dismissed.
Delaney, J., Hoffman, P.J. and Wise, J., concur.