[Cite as State v. Wenzel , 2020-Ohio-1215.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO Plaintiff-Appellee

-vsDONALD G. WENZEL, JR. Defendant-Appellant JUDGES: Hon. John W. Wise, P. J. Hon. Patricia A. Delaney, J. Hon. Earle E. Wise, Jr., J.

Case No. 2019 CA 00077 O P I N I O N

CHARACTER OF PROCEEDING: Criminal Appeal from the Municipal Cou rt, Case No. 2019 TRC 03224

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: March 27, 2020

APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant CAROLINE J. CLIPPINGER JAMES R. COOPER ASSISTANT LAW DIRECTOR MORROW, GORDON & BYRD, LTD. 40 West Main Street 33 West Main Street 4 th Floor P.O. Box 4190 Newark, Ohio 43055 Newark, Ohio 43058-4190Licking County, Case No. 2019 CA 00077 2
Wise, John, P. J. {¶1} Defendant-Appellant Donald George Wenzel, Jr. appeals his OVI c onviction in the Municipal Court, Licking County. Plaintiff-Appellee is t he State of Ohio. The relevant facts leading to this appeal are as follows. {¶2} On March 31, 2019, shortly before 3:00 AM, Officer Matthew Newl un of the Granville (Village) Police Department was dispatched on a “mutu al aid” call to a location on Welsh Hills Road in Granville Township, about a mile outside of the village limits. The officer thereupon observed a male, later identified as appellan t, standing outside of his Mercedes-Benz automobile that had become stuck in a ditch. {¶3} Officer Newlun thereupon made contact with appellant, who indic ated that he had been trying to back up into a residential driveway but h ad “missed.” Tr. at 28. Officer Newlun testified that Welsh Hills Road is a public road way, and that in order to reach the ditch, appellant would have had to travel on the publ ic thoroughfare. Tr. at 25. Appellant disclosed to the officer that he was coming from an a lumni “reunion event.” Tr. at 33. The officer noticed that appellant had an odor of alcoho lic beverage coming from his person, and that he was displaying impaired speech and bala nce issues. Tr. at 28- 29. {¶4} Officer Newlun then asked appellant to perform field sobriety t ests. Appellant was repeatedly uncooperative and/or unable to follow directions during the testing, and the officer detected numerous additional clues indicative of impairment. Tr. at 45-63. {¶5} Appellant was thereupon arrested and charged with operating a v ehicle while under the influence of alcohol (R.C. 4511.19(A)(1)(a)). H e declined to take aLicking County, Case No. 2019 CA 00077 3
chemical test upon Officer Newlun's request, and he refused to sign the BMV-2255 form. Tr. at 60-68. {¶6} Appellant thereafter pled not guilty in the Licking County Muni cipal Court. He additionally filed a motion to dismiss and a motion to suppr ess the evidence pertaining to the field sobriety testing. Appellant also filed challenges to his administrative license suspension. The matter proceeded to a combined hearing and bench trial on July 16, 2019. The trial court found appellant guilty as charged and sentenced him inter alia to 30 days in jail, with 27 days suspended, and a license suspe nsion for one year. {¶7} Appellant filed a notice of appeal on August 13, 2019. He herei n raises the following two Assignments of Error: {¶8} “I. THE TRIAL COURT COMMITTED ERROR BY FINDING DEFENDANTAPPELLANT GUILTY BEYOND A REASONABLE DOUBT WHEN THE STOP AND ARREST OF DEFENDANT-APPELLANT WAS MADE BY POLICE OFFICERS OUTSIDE THEIR JURISIDICTION [SIC] AND STATUTORY AUTHORITY AND T HERE WAS NO EVIDENCE OF A CONTRACT FOR MUTUAL AID AUTHORIZED BY LEGISLATIVE AUTHORITY. {¶9} “II. THE TRIAL COURT ERRED BY CONVICTING DEFENDANTAPPELLANT WHEN THERE WAS A REASONABLE DOUBT THAT DEFENDANTAPPELLANT OPERATED THE MOTOR VEHICLE ON A PUBLIC HIGHWAY AS ALLEGED.”Licking County, Case No. 2019 CA 00077 4

I. {¶10} In his First Assignment of Error, appellant in essence contends the trial court erred in finding him guilty of OVI based upon the State’s alleg ed failure to prove the existence of an authorized mutual law enforcement aid agreement . We disagree. {¶11} We interpret appellant’s present assigned error as a challenge to the sufficiency of the evidence leading to his conviction. In revie wing a claim of insufficient evidence, “[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus. It is well-established that the State bears the burden of establishing each and every eleme nt of a charged crime and must do so with proof beyond a reasonable doubt. See In re L.R. , 8th Dist. Cuyahoga No. 93356, 2010–Ohio–15, 2010 WL 27862, ¶ 11. {¶12} However, we do not accept the implicit proposition in appellant ’s sufficiency claim that the existence of an agreement for mutual aid is an “ essential element” of the offense of OVI in the present context under Ohio law. Moreover, appellant urges inter alia that Officer Newlun made an unlawful arrest, as he allegedly “ was without authority to write the ticket on behalf of the Village of Granville.” App ellant’s Brief at 7. But an illegal arrest, without more, is not viewed as a defense to a v alid conviction. State v. Blackshear , 2nd Dist. Montgomery No. 24302, 2011-Ohio-2059, ¶ 20, citing United States v. Crews (1980), 445 U.S. 463, 474, 100 S.Ct. 1244, 63 L.Ed.2d 537. Acc ordingly, the general remedy for unlawful arrest is suppression of the ev idence, not dismissal ofLicking County, Case No. 2019 CA 00077 5
the charges. Blackshear , citing State v. Maddox , 8th Dist. Cuyahoga Nos. 44600 and 44608, 1982 WL 2521. {¶13} In the case sub judice , appellant filed inter alia a pretrial motion to dismiss, challenging the statutory authority of officers of the Granvill e Village Police to arrest him, as well as a “motion to suppress evidence of his refusal to sub mit to testing.” Both motions were filed on the same day (April 8, 2019) and heard at the same time as part of the July 16, 2019 bench trial. Under such circumstances, and in the interest of justice, we will treat the two motions as effectively merged and thus co nsider appellant to have filed for the suppression of his arrest on the a mutual aid agr eement issue as well. {¶14} Pursuant to R.C. 737.04, political subdivisions may enter into agreements whereby police officers from one jurisdiction may enter into an other jurisdiction to provide police services. Perry v. City of E. Cleveland , 11th Dist. Lake No. 95-L-111, 1996 WL 200558. Thus, for example, a municipal police officer who is a member of a police task force that, by the terms of a contract under R.C

. 737.04, includes several municipalities and provides for general police services , has the same authority to make warrantless arrests of misdemeanor offenders within the territory of the co ntracting municipalities that he has within the municipality that appointed him. See 1986 Ohio Attorney Gen. Op. No. 065. {¶15} In the case sub judice , a copy of the Licking County Mutual Aid Agreement, with signatures of representatives of various law enforcement a gencies, was admitted into evidence at the combined hearing conducted by the trial co urt on July 16, 2019. Specifically, Officer Newlun testified that he had seen and was aware of said agreement, and he identified the document during his time on the stand. See Tr. at 26, 27, 92, 93.Licking County, Case No. 2019 CA 00077 6
However, appellant presently posits that no additional evidence of the corresponding “legislative authority” of the pertinent municipal corporations or political subdivisions was entered into evidence. {¶16} The Ohio Rules of Evidence give a trial judge broad discretion concerning the admissibility of evidence pres ented at a suppression hearin g. State v. Olmstead , 5th Dist. Ashland No. 17 COA 024, 2018-Ohio-971, ¶ 21, citing State v. Diaz , 5th Dist. No. 2016 CA 00113, 2017–Ohio–262, 81 N.E.3d 866, ¶ 27. This Court, in S tate v. Royster , 5th Dist. Stark No. 1997CA00372, 1998 WL 351413, addressed a fa ctual situation in which Portage County law enforcement officers had assisted an i nvestigation in the City of Alliance, in Stark County, under R.C. 509.06. We concluded i n pertinent part: “[Portage County] Deputy Sloan's testimony that she was helping the Allia nce Police Department pursuant to the authority of the mutual-aid agreement, executed between the two police departments, was sufficient to withstand appellant's supplement to his Motion to Suppress.” Id. {¶17} In a similar fashion, upon review, we find Officer Newlun’s law ful authority to arrest appellant was properly documented via the testimony a nd evidence presented showing the existence of a mutual aid agreement between the Gra nville Village Police Department and the Licking County Sheriff’s Department. {¶18} Appellant’s First Assignment of Error is therefore overruled. II. {¶19} In his Second Assignment of Error, appellant contends the State failed to prove its case against him for OVI. We disagree.Licking County, Case No. 2019 CA 00077 7 {¶20} As set forth above, in appellate review of a claim of insuffici ent evidence, “[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found th e essential elements of the crime proven beyond a reasonable doubt.” State v. Jenks , supra

. {¶21} Appellant herein was convicted under R.C. 4511.19(A)(1)(a), whi ch states: “No person shall operate any vehicle, streetcar, or trackless t rolley within this state, if, at the time of the operation, *** [t]he person is under the influe nce of alcohol, a drug of abuse, or a combination of them.” {¶22} Appellant, questioning whether the State proved his “operation” of a motor vehicle, largely focuses on the fact that after Officer Newlun arrived on the scene, appellant was already outside of the car in question. But appel lant does not dispute that a witness, Joseph L., watching from inside his residence near t he scene, had seen the Mercedes being driven up and down Welsh Hills Road, the car bei ng backed into a ditch, and then a male driver exiting, although Joseph could not posit ively identify who was driving the car during those observations. See Tr. at 18-19. Joseph specifically noted that he saw no one else in the vehicle or in the area prior to calling 911. Tr. at 9. Also, a defendant’s admission to driving (as occurred here on the das hcam video - see Tr. at 32-33) even through the responding officer does not observe the actual operation of the vehicle, can be used as evidence of probable cause. State v. Egbert , 12th Dist. Butler No. CA2004-12-304, 2006-Ohio-744, ¶ 11, citing City of Oregon v. Szakovits (1972), 32 Ohio St.2d 271, 273-274. Finally, we have long emphasized that circumstantial and direct evidence possess the same probative value. State v. Fields , 5th Dist. Stark No. 2018 CALicking County, Case No. 2019 CA 00077 8 00002, 2018-Ohio-4394, ¶ 49, citing State v. Turner , 5th Dist. Stark No. 1998CA00018, 1998 WL 818769. {¶23} Accordingly, upon review, we find appellant’s conviction for OV I was supported by sufficient evidence. {¶24} Appellant’s Second Assignment of Error is therefore overruled. {¶25} For the foregoing reasons, the judgment of the Municipal Court of Licking County, Ohio, is hereby affirmed.

By: Wise, John, P. J. Delaney, J., and Wise, Earle, J., concur.

JWW/d 0228