[Cite as State v. Dumas, 2020-Ohio-4554.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 

 Plaintiff-Appellee, : 

 No. 19AP-526 

v. : (C.P.C. No. 18CR-220)

Neshon C. Dumas, : (REGULAR CALENDAR) 

 Defendant-Appellant. : 

 

D E C I S I O N 

Rendered on September 22, 2020 

 

On brief: Ron O'Brien, Prosecuting Attorney, and Michael P. 

Walton, for appellee. Argued: Michael P. Walton. 

On brief: Yeura R. Venters, Public Defender, and Ian J. 

Jones, for appellant. Argued: Ian J. Jones. 

 

APPEAL from the Franklin County Court of Common Pleas 

DORRIAN, J. 

{¶ 1} Defendant-appellant, Neshon C. Dumas, appeals from a judgment of 

conviction and sentence entered by the Franklin County Court of Common Pleas pursuant 

to no contest pleas entered by Dumas on charges of vehicular homicide and failure to stop 

after an accident. For the following reasons, we affirm in part and reverse in part. 

I. Facts and Procedural History 

{¶ 2} The conviction at issue in this appeal arises from a traffic collision that 

occurred on October 7, 2017 near the intersection of Lockbourne Road and Watkins Road, 

in Franklin County, Ohio. Dumas was driving a car southbound on Lockbourne Road and 

initiated a left turn onto Watkins Road. At the same time, Soungoutoumba Macalou was 

driving a motorcycle northbound on Lockbourne Road. As Dumas turned toward Watkins 

Road, she traversed the northbound lane of Lockbourne Road, crossing the path of 
No. 19AP-526 2 

Macalou. Macalou's motorcycle struck the front passenger side of Dumas's car, ejecting 

him from the motorcycle. Dumas continued onto Watkins Road and fled the scene. 

Macalou died as a result of the injuries he suffered in the collision. Based on statements 

made by a witness at the scene of the collision and an anonymous tip called into police, 

Dumas was identified as the driver of the car involved in the collision. At the time of the 

collision, Dumas was driving under the authority of a temporary instruction permit, issued 

under R.C. 4507.05. 

{¶ 3} Dumas was indicted on one count of vehicular homicide, a fourth-degree 

felony in violation of R.C. 2903.06, and one count of failure to stop after an accident, a 

third-degree felony in violation of R.C. 4549.02. On September 20, 2018, Dumas moved to 

amend the indictment to modify the vehicular homicide charge from a fourth-degree felony 

to a first-degree misdemeanor. Dumas argued her temporary instruction permit was valid 

at the time of the collision, negating the element that elevated the vehicular homicide 

charge from a first-degree misdemeanor to a fourth-degree felony. Plaintiff-appellee, State 

of Ohio, filed a memorandum in opposition arguing Dumas was operating her vehicle in 

violation of the restrictions imposed on her temporary instruction permit at the time of the 

collision, thereby invalidating the permit. The state argued that because Dumas's 

temporary instruction permit was invalid at the time of the collision, she was properly 

charged with vehicular homicide as a fourth-degree felony offense. The trial court 

conducted a hearing on the motion to amend the indictment on March 13, 2019. The state 

presented testimony from an Ohio Bureau of Motor Vehicles ("BMV") investigator 

regarding the history of Dumas's temporary instruction permit. At the close of the hearing, 

the trial court verbally denied Dumas's motion to amend the indictment. The trial court 

did not issue a written ruling on the motion to amend the indictment. 

{¶ 4} Dumas subsequently entered a no contest plea to the charges as set forth in 

the indictment. The trial court conducted a sentencing hearing and imposed a sentence of 

18 months imprisonment on the vehicular homicide conviction, to be served concurrently 

with 3 years imprisonment on the failure to stop after an accident conviction. 

II. Assignments of Error 

{¶ 5} Dumas appeals and assigns the following four assignments of error for our 

review: 
No. 19AP-526 3 

[I.] The trial court erred by finding Ms. Dumas guilty of 

Vehicular Homicide as a fourth degree felony, as the State 

presented a statement of facts at the no contest plea hearing 

which positively contradicted the felony charged in the 

indictment by negating an element essential to the 

enhancement of Vehicular Homicide from a first degree 

misdemeanor to a fourth degree felony carrying mandatory 

prison time. 

[II.] The evidence was legally insufficient to support the 

convictions for Vehicular Homicide as a fourth degree felony 

and to support the imposition of mandatory prison time, as 

the State presented a statement of facts at the no contest plea 

hearing which positively contradicted the felony charged in 

the indictment by negating an element essential to the 

enhancement of Vehicular Homicide from a first degree 

misdemeanor to a fourth degree felony carrying mandatory 

prison time. 

[III.] The trial court erred by overruling Appellant's motion to 

amend the indictment. 

[IV.] The trial court erred by imposing a mandatory prison 

term for Vehicular Homicide as a felony of the fourth degree, 

as the State acknowledged Appellant had a temporary 

instruction permit, thus negating the element under R.C. 

2903.06(E)(2)(b) required to make the prison term 

mandatory. 

The same legal issue forms the basis for each of Dumas's four assignments of error, 

therefore we will address them together. 

III. Analysis 

{¶ 6} Dumas was charged in the first count of the indictment with vehicular 

homicide, a fourth-degree felony offense in violation of R.C. 2903.06. The indictment 

alleged Dumas negligently caused Macalou's death while operating a motor vehicle without 

a valid driver's license, commercial driver's license, temporary instruction permit, 

probationary license, or non-resident operating privilege. She ultimately pled no contest 

to and was convicted of vehicular homicide as set forth in the first count of the indictment. 

{¶ 7} The statute defining vehicular homicide provides that negligently causing the 

death of a person while operating a motor vehicle is a first-degree misdemeanor unless one 

of several specified conditions is met, including when "at the time of the offense, the 
No. 19AP-526 4 

offender * * * did not have a valid driver's license, commercial driver's license, temporary 

instruction permit, probationary license, or nonresident operating privilege." R.C. 

2903.06(C). Under those circumstances, vehicular homicide is a fourth-degree felony. R.C. 

2903.06(C). 

{¶ 8} At the time of the collision, Dumas was driving under the authority of a 

temporary instruction permit issued pursuant to R.C. 4507.05(A)(2). That law provides 

the BMV may issue a temporary instruction permit and temporary instruction permit 

identification card to a person who is at least 16 years old1 entitling the person to drive a 

motor vehicle under the following conditions: 

(a) The permit and identification card are in the holder's 

immediate possession; 

(b) The holder is accompanied by a licensed operator who is at 

least twenty-one years of age, is actually occupying a seat beside 

the driver, and does not have a prohibited concentration of 

alcohol in the whole blood, blood serum or plasma, breath, or 

urine as provided in division (A) of section 4511.19 of the 

Revised Code; 

(c) The total number of occupants of the vehicle does not exceed 

the total number of occupant restraining devices originally 

installed in the motor vehicle by its manufacturer, and each 

occupant of the vehicle is wearing all of the available elements 

of a properly adjusted occupant restraining device. 

R.C. 4507.05(A)(2). 

{¶ 9} There was not a licensed driver in the passenger seat beside Dumas while she 

was driving on October 7, 2017 as required under R.C. 4507.05(A)(2)(b). Thus, the 

question we must resolve is whether Dumas's failure to comply with the requirement of 

having a licensed driver in the passenger seat while she was driving invalidated her 

temporary instruction permit. If Dumas's temporary instruction permit was invalid at the 

time of the collision with Macalou, she could be charged with and convicted of vehicular 

homicide as a fourth-degree felony; however, if her temporary instruction permit was valid 

 

1 It appears Dumas was more than 16 years old at the time her temporary instruction permit was issued. 

Therefore, her permit was governed by the restrictions set forth in subsection (A)(2) of R.C. 4507.05, rather 

than the restrictions set forth in subsection (A)(1) of the statute.
No. 19AP-526 5 

at the time of the collision, the offense should have been classified as a first-degree 

misdemeanor. 

{¶ 10} Resolving the question before us requires determining the meaning of the 

term "valid" under R.C. 2903.06(C), which is not defined in the statute, and whether failure 

to comply with the conditions set forth in R.C. 4507.05(A) renders a temporary instruction 

permit invalid.2 By denying Dumas's motion to amend the first count of the indictment, 

the trial court effectively found that Dumas's failure to comply with the condition under 

R.C. 4507.05(A)(2)(b), requiring her to have a licensed driver of appropriate age in the 

passenger seat, rendered her temporary instruction permit invalid. Interpretation of a 

statute is a matter of law which we review de novo. DHSC, LLC v. Ohio Dept. of Job & 

Family Servs., 10th Dist. No. 11AP-424, 2012-Ohio-1014, ¶ 13. 

{¶ 11} When construing the language of a statute, a court must "ascertain and give 

effect to the intention of the General Assembly." Dodd v. Croskey, 143 Ohio St.3d 293, 

2015-Ohio-2362, ¶ 24, citing Henry v. Cent. Natl. Bank, 16 Ohio St.2d 16 (1968), paragraph 

two of the syllabus. We look to the language of the statute to determine legislative intent. 

Id., citing Boley v. Goodyear Tire & Rubber Co., 125 Ohio St.3d 510, 2010-Ohio-2550, ¶ 20. 

When a statute is clear and unambiguous, it may not be enlarged, narrowed, or abridged 

through statutory construction. Taber v. Ohio Dept. of Human Servs., 125 Ohio App.3d 

742, 747 (10th Dist.1998). 

{¶ 12} We are unaware of any appellate court decision in Ohio that has addressed 

the validity of a temporary instruction permit when the driver fails to comply with the 

conditions of that permit in the context of enhancing the level of a criminal offense, as is 

presented in this appeal. However, two decisions from other appellate courts have touched 

on whether a temporary instruction permit is rendered invalid due to failure to comply with 

the applicable restrictions. 

{¶ 13} The Eleventh District Court of Appeals concluded in a 1988 decision that 

operating a motorcycle in violation of the restrictions on a temporary permit did not 

 

2 The state cited State v. Williams, 4th Dist. No. 17CA8, 2017-Ohio-4455, in its notice of supplemental 

authority. The Williams decision involved determination of whether a highway patrol officer had a valid 

permit to administer a blood-alcohol test. Although the court in Williams referred to definitions of "valid" 

from Black's Law Dictionary and a Supreme Court of Ohio decision quoting Webster's New World Dictionary, 

we do not find it otherwise illuminating.
No. 19AP-526 6 

invalidate the temporary permit. State v. Neuvirth, 53 Ohio App.3d 27 (11th Dist.1988). 

The defendant in Neuvirth had a temporary permit, issued under R.C. 4507.05, to operate 

a motorcycle with the following restrictions: "(1) daylight hours only, (2) no riders, (3) not 

valid on congested roads and interstate highways, and (4) must wear approved protective 

helmet and use eye protection." Neuvirth at 28. The defendant was cited for operating his 

motorcycle on a highway at night with a passenger. He was charged with violating a statute 

that prohibited operating a motorcycle without a valid license. After the trial court denied 

his motion to dismiss, the defendant pled no contest to the charge. Id. On appeal, the 

defendant argued the trial court erred by finding that violating a restriction on his 

temporary permit was equivalent to operating a motorcycle without a license. The Eleventh 

District Court of Appeals reversed, noting there was no language in the traffic code 

prohibiting driving in violation of restrictions imposed on a class of operators and no 

criminal statute providing that violating the restrictions on a permit resulted in invalidation 

of the permit. Id. at 30. The court reasoned "[i]t does not follow that one may be found 

guilty of driving without a permit simply because one has violated restrictions imposed on 

that permit." (Emphasis sic.) Id. 

{¶ 14} The state argues Neuvirth should not be considered persuasive authority on 

this court because the law was amended in 1997 to impose a prohibition on operating a 

motor vehicle in violation of the conditions imposed on a permit. The state is correct that 

R.C. 4507.05(F)(1) now provides that "[n]o holder of a permit issued under [R.C. 

4507.05(A)] shall operate a motor vehicle upon a highway or any public or private property 

used by the public for purposes of vehicular travel or parking in violation of the conditions 

established under [R.C. 4507.05(A)]." However, while that statutory amendment 

supersedes the Neuvirth court's observation that no language in the traffic code prohibited 

driving in violation of the restrictions on a temporary license, it does not modify the further 

conclusion in Neuvirth that "there is no Ohio criminal statute which provides that violation 

of restrictions on a permit results in an invalidation of the permit." Neuvirth at 30. Thus, 

we can consider Neuvirth as persuasive authority in this appeal. 

{¶ 15} In contrast to Neuvirth, dicta from a 1994 decision by the Ninth District Court 

of Appeals might be construed to implicitly suggest that violating the conditions imposed 

on a temporary instruction permit invalidated the permit. State v. Rooker, 93 Ohio App.3d 
No. 19AP-526 7 

154 (9th Dist.1994). The defendant in Rooker was convicted of violating a statute 

prohibiting permitting the operation of a motor vehicle "knowing the operator does not 

have a valid driver's license." Id. at 155. When stopped by police, the defendant, whose 

driver's license had been suspended, was in the passenger seat of a car driven by her son, 

who had a temporary instruction permit. On appeal, the court determined that because the 

defendant's driver's license had been suspended, she did not qualify as a "licensed operator" 

for purposes of compliance with the restrictions on her son's temporary instruction permit, 

which required that a licensed operator actually occupy the seat beside him while driving. 

Id. at 156. Based on this reasoning, the Ninth District Court of Appeals affirmed the 

conviction. The court did not squarely address the question of whether driving without a 

licensed driver in the passenger seat invalidated the temporary instruction permit held by 

the defendant's son, but it implicitly suggests this conclusion by holding that the defendant 

could be convicted for allowing the operation of a motor vehicle knowing the operator did 

not have a valid driver's license. 

{¶ 16} Notwithstanding the Ninth District's implicit suggestion in Rooker, based on 

our review of the relevant statutes, we conclude that operating a motor vehicle in violation 

of the restrictions imposed on a temporary instruction permit does not render the 

temporary instruction permit invalid. R.C. 4507.05(A) authorizes the registrar of motor 

vehicles to issue a temporary instruction permit to an applicant, and that temporary 

instruction permit entitles the applicant to operate a motor vehicle under specific 

conditions, as set forth in subsection (A)(1) or (2) of the statute, depending on the 

applicant's age. The statute provides that "[a] temporary instruction permit to drive a 

motor vehicle other than a commercial motor vehicle shall be valid for a period of one year." 

R.C. 4507.05(C). The statute expressly prohibits operating a vehicle in violation of the 

conditions imposed under subsection (A) of the statute and specifies that doing so 

constitutes a minor misdemeanor offense. R.C. 4507.05(F)(1) and (I). Thus, within R.C. 

4507.05 there is an express condition invalidating a temporary instruction permit—i.e., the 

passage of more than 12 months from the date of issuance. If the General Assembly wished 

to establish that violating the restrictions on a temporary instruction permit also 

invalidated the permit, it could have clearly done so. Instead, it provided a punishment for 

violating those restrictions. 
No. 19AP-526 8 

{¶ 17} We find our construction of the statute to be more consistent with the general 

statutory scheme governing driver's licenses, which recognizes the offense of driving 

without a valid license separately from the offense of driving in violation of restrictions 

imposed on a driver's license. See R.C. 4510.11(B) (prohibiting operation of a motor vehicle 

"in violation of any restriction of the person's driver's or commercial driver's license or 

permit"); R.C. 4510.12(A)(1) (prohibiting operation of a motor vehicle "unless the person 

has a valid driver's license issued under Chapter 4507. of the Revised Code or a commercial 

driver's license issued under Chapter 4506. of the Revised Code"). 

{¶ 18} Having concluded that failure to comply with the restrictions imposed on a 

temporary instruction permit under R.C. 4507.05(A) does not invalidate the permit, we 

further conclude that driving in violation of those restrictions does not constitute failure to 

have a valid temporary instruction permit for purposes of the offense enhancements under 

R.C. 2903.06. 

{¶ 19} Dumas argues in her third assignment of error that the trial court erred by 

denying her motion to amend the indictment. Generally, we review a trial court's decision 

regarding amendment of an indictment for abuse of discretion. See State v. Abdullah, 10th 

Dist. No. 07AP-427, 2007-Ohio-7010, ¶ 9 (holding that if an amendment to an indictment 

does not change the name or identity of the offense charged, the decision to allow the 

amendment is reviewed for abuse of discretion); State v. Williams, 53 Ohio App.3d 1, 5 

(10th Dist.1988) ("A trial court's authority to allow an amendment is discretionary. 

However, the trial court can abuse its discretion by refusing to amend an indictment."). As 

explained above, we conclude that driving in violation of the restrictions on her temporary 

instruction permit did not render Dumas's permit invalid; therefore, the trial court abused 

its discretion by denying her motion to amend the first count of the indictment to change 

the offense to a first-degree misdemeanor. 

{¶ 20} Dumas argues in her first assignment of error that the trial court erred by 

finding her guilty of fourth-degree felony vehicular homicide because the prosecutor's 

statement of facts negated an element essential to the enhancement of the offense. 

Generally, when an indictment contains sufficient allegations to state a felony offense and 

the defendant pleads no contest, the trial court must find the defendant guilty. State v. 

Geiger, 10th Dist. No. 15AP-1120, 2016-Ohio-7571, ¶ 17, citing State v. Bird, 81 Ohio St.3d 
No. 19AP-526 9 

582, 584 (1998). However, when a prosecutor presents a statement of facts that positively 

contradict the felony charged in the indictment by negating an essential element to the 

commission of the offense, the court may not find the defendant guilty based on the charges 

alleged in the indictment. Id. at ¶ 18. At the plea hearing, the prosecutor made the following 

statement regarding the validity of Dumas's temporary instruction permit at the time of the 

collision: 

Ms. Dumas did not have a valid operator's license at the time. 

She did have a temporary instructor's [sic] permit and she did 

not have anyone else in the car with her at the time. 

(May 16, 2019 Tr. at 8.) As explained above, we conclude Dumas's failure to comply with 

the requirement under R.C. 4507.05(A)(2)(b) of having a licensed driver in the seat beside 

her did not invalidate her temporary instruction permit. Therefore, the trial court erred by 

finding Dumas guilty of vehicular homicide as a fourth-degree felony offense. 

{¶ 21} Accordingly, we sustain Dumas's first and third assignments of error. Our 

disposition of these assignments of error renders moot her second and fourth assignments 

of error. 

IV. Conclusion 

{¶ 22} For the foregoing reasons, Dumas's first and third assignments of error are 

sustained, and her second and fourth assignments of error are rendered moot. We reverse 

the portion of the judgment of the Franklin County Court of Common Pleas finding Dumas 

guilty of Count 1 of the indictment and imposing sentence on that conviction; we affirm the 

portion of the judgment finding Dumas guilty of Count 2 of the indictment pursuant to her 

no contest plea and imposing sentence on that conviction. We remand this matter to that 

court to vacate the portion of its judgment convicting Dumas on Count 1 of the indictment 

and imposing sentence on that conviction, and for further proceedings in accordance with 

law and this decision. 

Judgment affirmed in part and reversed in part; 

cause remanded with instructions. 

BROWN & KLATT, JJ., concur.