[Cite as State v. Elliott, 2012-Ohio-771.]

COURT OF APPEALS 

LICKING COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsJ. MARK ELLIOTT 

 Defendant-Appellant 

JUDGES: 

: Hon. Patricia A. Delaney, P.J. 

: Hon. W. Scott Gwin, J. 

: Hon. Julie A. Edwards, J. 

: 

: 

: Case No. 2011-CA-00064 

: 

: 

: O P I N I O N

CHARACTER OF PROCEEDING: Criminal appeal from the Licking County 

Municipal Court, Case No.11TRD3253 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: February 24, 2012 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

WILLIAM PAUL BRINGMAN AMY S. WEEKS 

13 East College Street 40 West Main Street, 4th Floor 

Fredericktown, OH 43019-1192 Newark, OH 43055 

 
[Cite as State v. Elliott, 2012-Ohio-771.]

Gwin, J. 

{¶ 1} In the case sub judice, the record transmitted on appeal does not contain a 

complete transcript of either the change of plea hearing or the sentencing hearing. App. 

R. 9 in effect at the time appellant filed his notice of appeal in this case provided for the 

record on appeal, and stated in pertinent part1: 

{¶ 2} “(A) Composition of the record on appeal. The original papers and exhibits 

thereto filed in the trial court, the transcript of proceedings, if any, including exhibits, and 

a certified copy of the docket and journal entries prepared by the clerk of the trial court 

shall constitute the record on appeal in all cases. A videotape recording of the 

proceedings constitutes the transcript of proceedings other than hereinafter provided, 

and, for purposes of filing, need not be transcribed into written form. Proceedings 

recorded by means other than videotape must be transcribed into written form. When 

the written form is certified by the reporter in accordance with App. R. 9(B), such written 

form shall then constitute the transcript of proceedings. When the transcript of 

proceedings is in the videotape medium, counsel shall type or print those portions of 

such transcript necessary for the court to determine the questions presented, certify 

their accuracy, and append such copy of the portions of the transcripts to their briefs.” 

{¶ 3} Accordingly, if the transcript of proceedings is in the videotape medium, the 

appellant must type or print those portions of the transcript necessary for the appellate 

court to determine the questions presented, certify their accuracy, and append such 

copy of the portions of the transcript to his or her brief. 

 1

 App. R. 9 was amended July 2011 to provide that a transcript is required for the record on 

appeal; a videotaped recording of the trial court proceedings is no longer adequate. 
Licking County, Case No. 2011-CA-00064 3 

{¶ 4} Accordingly, absent a complete transcript we are unable to review the facts 

underlying the amendment of the charge and appellant’s plea to the amended charge. 

Factual assertions appearing in a party's brief, but not in any papers submitted for 

consideration to the trial court below, do not constitute part of the official record on 

appeal, and an appellate court may not consider these assertions when deciding the 

merits of the case. Akro-Plastics v. Drake Industries (1996), 115 Ohio App.3d 221, 226, 

685 N.E.2d 246, 249. The record transmitted to this court establishes the following 

facts. 

{¶ 5} On March 30, 2011, appellant J. Mark Elliott was driving his vehicle 

eastbound on Interstate 70 in Licking County. A Sheriff's deputy noticed Appellant's 

vehicle had what the trooper believed to be excessive tinting of its driver's side window. 

The deputy initiated a traffic stop of Appellant's vehicle. Upon investigation, the trooper 

discovered Appellant was driving under suspension. 

{¶ 6} As a result, Appellant was cited for violations of R.C.4510.16 (Driving under 

an FRA Suspension) and R.C. 4510.14 (Driving Under an OVI Suspension). 

{¶ 7} On May 10, 2011, the State of Ohio filed a motion to amend the Driving 

under an OVI Suspension, a violation of R.C. 4510.14 to a charge of Driving under 

suspension or in violation of license restriction, a violation R.C. 4510.11. 

{¶ 8} The trial court granted said motion to amend and Appellant changed his 

plea and entered a plea of guilty to Driving under FRA Suspension, in violation of R.C. 

4510.16 and Driving under suspension or in violation of license restriction, in violation of 

R.C. 4510.11. 
Licking County, Case No. 2011-CA-00064 4 

{¶ 9} On May 10, 2011, upon conviction of R.C. 4510.11, the trial court ordered 

forfeiture of Appellant's vehicle. 

{¶ 10} On June 1, 2010, appellant filed his Notice of Appeal from the trial court’s 

May 10, 2011 ruling. Appellant raised as his sole assignment of error, 

{¶ 11} “THE TRIAL COURT ERRED IN APPLYING THE CRIMINAL 

FORFEITURE STATUTE TO APPELLANT'S CONVICTION OF HABITUAL 

OFFENDER.” 

{¶ 12} On December 23, 2011, we affirmed the trial court’s decision. See, State 

v. Elliott, Fifth District No. 11-60, 2011-Ohio-6723, 2001 WL 6888841. [Hereinafter 

“Elliott I”.] 

{¶ 13} On June 13, 2011, Appellant filed a second Notice of Appeal in Case No. 

11-64. On July 1, 2011, we dismissed appellant’s notice of appeal as untimely. On July 

11, 2011, Appellant filed a Motion to Reconsider, together with the affidavit of counsel 

and the clerk of courts. Based upon the affidavit of the clerk, this Court found the Notice 

of Appeal was timely filed. Accordingly, by Judgment Entry filed July 21, 2011 this Court 

granted Appellant’s motion to reconsider. 

{¶ 14} It is from the trial court’s May 10, 2011 order that Appellant now appeals, 

assigning the following sole error for review: 

{¶ 15} “I. THE TRIAL COURT ERRED IN CONVICTING THE APPELLANT OF 

BEING A HABITUAL ALCOHOLIC UNDER THE STATUTE DESIGNATED AS OHIO 

REVISED CODE SECTION 4510.11? [Sic.]” 
Licking County, Case No. 2011-CA-00064 5 

{¶ 16} Appellant argues that the trial court abused its discretion by permitting the 

State to amend the traffic citation to reflect the proper numerical designation for a 

habitual alcoholic driver's license suspension. 

{¶ 17} R.C. 4507.08 provides in pertinent part: 

{¶ 18} “No temporary instruction permit or driver's license shall be issued to, or 

retained by: 

{¶ 19} “(A) Any person who is an alcoholic, or is addicted to the use of controlled 

substances to the extent that the use constitutes an impairment to the person's ability to 

operate a motor vehicle with the required degree of safety [.]” 

{¶ 20} On March 30, 2011 appellant was issued a traffic citation for noncompliance and habitual alcoholic driver's license suspensions. The initial charge on the 

citation for a "habitual alcoholic" driver's license suspension was cited as R.C. 4510.14, 

which states, in relevant part. 

{¶ 21} “4510.14 Driving under OVI suspension 

{¶ 22} “(A) No person whose driver's or commercial driver's license or permit or 

nonresident operating privilege has been suspended under section 4511.19, 4511.191, 

or 4511.196 of the Revised Code or under section 4510.07 of the Revised Code for a 

conviction of a violation of a municipal OVI ordinance shall operate any motor vehicle 

upon the public roads or highways within this state during the period of the suspension.” 

{¶ 23} On May 10, 2011, the state filed a motion to amend the Driving under an 

OVI Suspension, a violation of R.C. 4510.14 to a charge of Driving under suspension or 

in violation of license restriction, a violation R.C. 4510.11. The trial court granted said 

motion to amend. 
Licking County, Case No. 2011-CA-00064 6 

{¶ 24} R.C. 4510.11 Driving under suspension or in violation of license 

restriction, states, in part, 

{¶ 25} “(A) No person whose driver's or commercial driver's license or permit or 

nonresident operating privilege has been suspended under any provision of the Revised 

Code, other than Chapter 4509. of the Revised Code, or under any applicable law in 

any other jurisdiction in which the person's license or permit was issued shall operate 

any motor vehicle upon the public roads and highways or upon any public or private 

property used by the public for purposes of vehicular travel or parking within this state 

during the period of suspension unless the person is granted limited driving privileges 

and is operating the vehicle in accordance with the terms of the limited driving 

privileges. 

{¶ 26} “(B) No person shall operate any motor vehicle upon a highway or any 

public or private property used by the public for purposes of vehicular travel or parking 

in this state in violation of any restriction of the person's driver's or commercial driver's 

license or permit imposed under division (D) of section 4506.10 or under section 

4507.14 of the Revised Code. 

{¶ 27} “(C)(1)(a) Except as provided in division (C)(1)(b) of this section, whoever 

violates division (A) of this section is guilty of driving under suspension, a misdemeanor 

of the first degree. The court shall impose upon the offender a class seven suspension 

of the offender's driver's license, commercial driver's license, temporary instruction 

permit, probationary license, or nonresident operating privilege from the range specified 

in division (A)(7) of section 4510.02 of the Revised Code. 

{¶ 28} “ * * * 
Licking County, Case No. 2011-CA-00064 7 

{¶ 29} “(5) If the offender previously has been convicted of or pleaded guilty to 

two or more violations of this section or of a substantially similar municipal ordinance, 

the court, in addition to any other sentence that it imposes on the offender and if the 

vehicle is registered in the offender's name, shall order the criminal forfeiture of the 

vehicle involved in the offense to the state.” 

{¶ 30} Crim.R. 7( D) provides in part: “[t]he court may at any time before, during, 

or after a trial amend the indictment, information, complaint, or bill of particulars, in 

respect to any defect, imperfection, or omission in form or substance, or of any variance 

with the evidence, provided no change is made in the name or identity of the crime 

charged. * * *” 

{¶ 31} “Courts should allow liberal amendment of traffic tickets, in particular, 

because they are typically prepared by law enforcement officers who lack formal legal 

training and because they are intended to provide a less formal means for the efficient 

disposal of traffic offenses. Traffic tickets are legally sufficient if they describe the nature 

of the offense and refer to the statute or ordinance allegedly violated even though the 

description fails to allege all of the essential elements of the offense charged.” (Citations 

omitted.) State v. Campbell, 150 Ohio App.3d 90, 779 N.E.2d 811, 2002-Ohio-6064, ¶ 

7, affirmed State v. Campbell, 100 Ohio St.3d 361, 800 N.E.2d 356, 2003-Ohio-6804. 

{¶ 32} The Supreme Court of Ohio has held that an amendment of an indictment 

changing the count to a different subparagraph of the same statute does not change the 

name or identity of the crime charged. 

{¶ 33} The citation in appellant’s case referred to R.C. 4510.14. It is readily 

apparent that R.C. 4510.14 and R.C. 4511.19 both prohibit driving while the individual’s 
Licking County, Case No. 2011-CA-00064 8 

operator license is under suspension. Appellant was never charged with a violation of 

R.C. 4507.08. The officer’s handwritten reference to “Habitual alcoholic” is not 

controlling. Despite the officer's erroneous reference the substantive information 

provided on the citation provided ample warning to appellant that he was charged with 

driving while under suspension. 

{¶ 34} As we noted in Elliott I, “A review of Appellant's driving record reflects that 

Appellant has two previous convictions of R.C. § 4510.11. Based on these prior 

convictions, forfeiture was mandatory pursuant to R.C. 4510.11(C)(5) as set forth 

above.” Id. at ¶ 19. 

{¶ 35} There was no prejudice to the appellant and no surprise, undue or 

otherwise. 

{¶ 36} Appellant’s sole assignment of error is denied. 

{¶ 37} The judgment of the Municipal Court of Licking County, Ohio, is affirmed. 

By Gwin, J., 

Delaney, P.J., and 

Edwards, J., concur 

 _________________________________ 

 HON. W. SCOTT GWIN 

 

 _________________________________ 

 HON. PATRICIA A. DELANEY 

 _________________________________ 

 HON. JULIE A. EDWARDS 

WSG:clw 0125 
[Cite as State v. Elliott, 2012-Ohio-771.]

IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : 

 : 

 Plaintiff-Appellee : 

 : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

J. MARK ELLIOTT : 

 : 

 : 

 Defendant-Appellant : CASE NO. 2011-CA-00064 

 For the reasons stated in our accompanying Memorandum-Opinion, the judgment 

of the Municipal Court of Licking County, Ohio, is affirmed. Costs to appellant. 

 _________________________________ 

 HON. W. SCOTT GWIN 

 _________________________________ 

 HON. PATRICIA A. DELANEY 

 _________________________________ 

 HON. JULIE A. EDWARDS