[Cite as Dayton v. Ahmad,

.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

CITY OF DAYTON :

Plaintiff-Appellee : C.A. CASE NO. 24165

v. : T.C. NO. 04TRD8431

MUHAMMAD AHMAD : (Criminal appeal from Municipal Court) Defendant-Appellant :

:

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OPINION

Rendered on the 13th day of May , 2011.

..........

EDWARD C. UTACHT II, Atty. Reg. No. 0022225, Dayton City Prosecutor’s Office, 335 W. Third Street, Room 372, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee

ANDREA G. OSTROWSKI, Atty. Reg. No. 0075318, 25 E. Central Avenue, Suite 4, Springboro, Ohio 45066 Attorney for Defendant-Appellant

..........

DONOVAN, J.

{¶ 1} This matter is before the Court on the Notice of Appeal of Muhammad Ahmad,

filed July 20, 2010. On May 31, 2004, Ahmad was cited by City of Dayton Police Officer

Michael Wolpert for multiple traffic violations, namely three violations of R.C. 4510.16, 2

driving under financial responsibility law suspension, misdemeanors of the first degree; six

violations of R.C. 4510.11, driving under suspension, misdemeanors of the first degree;

operating a motor vehicle while not wearing a seatbelt, in violation of R.C. 4513.263(B)(1),

a minor misdemeanor; operating a motor vehicle bearing an invalid license plate, in

violation of R.C. 4549.08, a misdemeanor of the fourth degree; and operating a motor

vehicle without a valid license, in violation of R.C. 4510.12, a misdemeanor of the first

degree.

{¶ 2} On April 27, 2010, Ahmad filed a Motion to Dismiss on speedy trial grounds,

which the municipal court denied after a hearing. Following a bench trial to an acting

judge, at which Officer Wolpert and Ahmad testified, the municipal court found Ahmad not

guilty of operating a motor vehicle without a valid license and the seatbelt violation, and

guilty of three violations of R.C. 4510.16 and guilty of six violations of R.C. 4510.11. The

municipal court sentenced Ahmad to 30 days for operating a motor vehicle bearing an

invalid license plate, with 30 days suspended. The court merged the suspension offenses,

and the sentencing entry provides that Ahmad received 180 days in jail, with 170 days

suspended, for two counts of driving under suspension. The sentences were ordered to be

served concurrently.

{¶ 3} At trial, Wolpert testified that he and his partner, while on patrol in the area of

Salem Avenue, performed a “random plate check on a vehicle; the plate came back to an

eighty-eight Buick; the plates were on a Cadillac.” Wolpert then initiated a traffic stop by

turning on his overhead lights. Ahmad was the sole occupant of the vehicle. When Ahmad

did not produce identification, Wolpert obtained his social security number. After 3

performing a computer check, Wolpert learned that Ahmad did not have a valid license.

{¶ 4} On cross-examination, the following exchange occurred:

{¶ 5} “Q. * * * With regard to the license plate, it was eleven o’clock at night that

you ran the plate check?

{¶ 6} “A. Yes.

{¶ 7} “Q. * * * How were you able to see the license plate?

{¶ 8} “A. We were behind him.

{¶ 9} “Q. And when you looked at the license plate, was there any notification on

the plate itself that said it didn’t belong on the car that it was currently attached to?

{¶ 10} “* * *

{¶ 11} “Q. Was there any notice to anybody else that when they walked up to the

car that that license plate didn’t belong to that vehicle?

{¶ 12} “A. You mean the average person that doesn’t have a LEADS system?

{¶ 13} “Q. Correct.

{¶ 14} “A. I wouldn’t think so, no.

{¶ 15} “Q. And so you only found out that that plate belonged to a Cadillac by

using that computer system, correct?

{¶ 16} “A. Correct.

{¶ 17} “Q. And who was the registered owner of the eighty-eight Buick that Mr.

Ahmad was driving?

{¶ 18} “A. I couldn’t tell you.

{¶ 19} “* * * 4

{¶ 20} “Q. With regard to the safety belt violation when you walked up to the car

window did Mr. Ahmad have a safety belt on?

{¶ 21} “A. Must not have otherwise I wouldn’t have issued him a citation for it.

{¶ 22} “* * *

{¶ 23} “Q. So the answer to my question whether you specifically recall [Ahmad]

wearing a safety belt your answer is you don’t know.

{¶ 24} “A. No my answer is if he didn’t have it on then he didn’t have it on.

{¶ 25} “Q. I’m going to ask you a yes or no question sir, do you specifically

remember Mr. Ahmad wearing a safety belt that night?

{¶ 26} “A. No.

{¶ 27} “* * *

{¶ 28} “Q. And how far down the road did you follow the car before Mr. Ahmad

was able to pull over successfully?

{¶ 29} “A. About three blocks.

{¶ 30} “Q. Do you know * * * where on Salem Mr. Ahmad pulled over?

{¶ 31} “A. Malvern.”

{¶ 32} “ * * *

{¶ 33} “Q. With regard to since two thousand and four how many traffic citations

have you issued?

{¶ 34} “A. Thousands.

{¶ 35} “Q. And you’re certain that Mr. Ahmad was driving the vehicle, correct?

{¶ 36} “A. Picked him out last time we were here. 5

{¶ 37} “* * *

{¶ 38} “Q. So your whole citation is based upon the LEADS screen that you saw

that night on May thirty-first two thousand four, correct?

{¶ 39} “A. If you want to say the stop where it said plates to another, or came back

to a Buick then yes it was a random plate check; plates came back to another vehicle, made a

stop.”

{¶ 40} Ahmad testified as follows: “For one I never had a Cadillac; it’s not my car.

I’ve not owned a Cadillac, I’ve never registered a Cadillac. I was at my business on

Malvern when the officer pulled behind me. There was somebody with me; the car was

shut off; the doors were open. * * * * He never drove up behind me with lights blaring. He

was at my business. That’s where the stop happened, parked.” Ahmad testified that he

“worked at a detail shop,” and that the Cadillac belonged to a customer of his. The

Cadillac’s owner “wanted me to fix something in his radio so as far as the owner I have no

information about him except his name.” According to Ahmand, he never drove the

Cadillac. Ahmad stated that he was in the driver’s seat when Wolpert approached, and that

his nephew was present with him. On cross-examination, Ahmad testified that he “was

on my property with the key in the ignition,” and he admitted that he did not have a valid

driver’s license.

{¶ 41} A certified copy of Ahmad’s Ohio Bureau of Motor Vehicles record was

admitted into evidence, and it reveals that his driver’s license was subject to multiple

suspensions.

{¶ 42} Ahmad asserts two assignments of error. His first assigned error is as 6

follows:

{¶ 43} “”DEFENDANT-APPELLANT’S CONVICTION FOR FICTITIOUS

LICENSE PLATES IS AGAINST THE SUFFICIENCY OF THE EVIDENCE.”

{¶ 44} Ahmad asserts that the State did not “prove all the elements of this offense,”

in that R.C. 4549.08 is not a strict liability offense, and the State was accordingly required to

prove that Ahmad was reckless to establish a violation of R.C. 4549.08. The State agrees

“that the requisite mens rea for this offense is recklessness,” and that at trial, the “State

offered no evidence of the Appellant’s mental state.”

{¶ 45} “In reviewing a claim of insufficient evidence, ‘[t]he relevant inquiry is

whether, after reviewing 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),

,

, paragraph

two of the syllabus, following Jackson v. Virginia (1979),

,

,

; see, also, State v. Thompkins (1997),

, * * * .” State v.

McKnight,

,

, ¶ 70.

{¶ 46} R.C. 4549.08 provides, “(A) No person shall operate or drive a motor vehicle

upon the public roads and highways in this state if it displays a license plate or a distinctive

number or identification mark that meets any of the following criteria:

{¶ 47} * * “(3) Belongs to another vehicle, * * * .”

{¶ 48} R.C. 2901.21(B) provides, “When the section defining an offense does not

specify any degree of culpability, and plainly indicates a purpose to impose strict liability for

the conduct described in the section, then culpability is not required for a person to be guilty 7

of the offense. When the section neither specifies culpability nor plainly indicates a

purpose to impose strict liability, recklessness is sufficient culpability to commit the

offense.” We have previously determined that a violation of R.C. 4549.08 is not a strict

liability offense. State v. Howard, Montgomery App. No. 21899,

, ¶ 19.

{¶ 49} Officer Wolpert testified that he cited Ahmad for the violation at issue after

he learned, from a random LEADS search, that the license plate on the car Ahmad was

operating belonged to another vehicle. There was no evidence presented regarding

Ahmad’s mens rea, since the State concedes error. Ahmad’s conviction for violating R.C.

4549.08 is against the sufficiency of the evidence. Ahmad’s first assigned error is

sustained.

{¶ 50} Ahmad’s second assigned error is as follows:

{¶ 51} “”MR. AHMAD’S CONVICTIONS FOR DRIVING UNDER FINANCIAL

RESPONSIBILITY LAW SUSPENSION AND DRIVING UNDER SUSPENSION ARE

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

{¶ 52} According to Ahmad, since he was not operating the vehicle when he was

approached by Wolpert, his convictions for driving under the multiple suspensions are

against the manifest weight of the evidence. Ahmad further asserts that Wolpert’s testimony

contained inconsistencies and was not credible. For example, Ahmad asserts that Wolpert

testified on direct that the plates belonged to a Buick but were on a Cadillac, and then stated

on cross-examination that the plates belonged to a Cadillac and that Ahmad was in a Buick.

{¶ 53} “When an appellate court analyzes a conviction under the manifest weight of

the evidence standard it must review the entire record, weigh all of the evidence and all the 8

reasonable inferences, consider the credibility of the witnesses and determine whether in

resolving conflicts in the evidence, the fact finder clearly lost its way and created such a

manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.

(Internal citations omitted). Only in exceptional cases, where the evidence ‘weighs heavily

against the conviction,’ should an appellate court overturn the trial court’s judgment.” State

v. Dossett, Montgomery App. No. 20997,

.

{¶ 54} The credibility of the witnesses and the weight to be given to their testimony

are matters for the trier of facts to resolve. State v. DeHass (1997),

,

* * * . “Because the factfinder * * * has the opportunity to see and hear the witnesses, the

cautious exercise of the discretionary power of a court of appeals to find that a judgment is

against the manifest weight of the evidence requires that substantial deference be extended

to the factfinder’s determinations of credibility. The decision whether, and to what extent,

to credit the testimony of particular witnesses is within the peculiar competence of the

factfinder, who has seen and heard the witness.” State v. Lawson (Aug. 22, 1997),

Montgomery App. No. 16288.

{¶ 55} This court will not substitute its judgment for that of the trier of facts on the

issue of witness credibility unless it is patently apparent that the trier of fact lost its way in

arriving at its verdict. State v. Bradley (Oct. 24, 1997), Champaign App. No. 97-CA-03.

{¶ 56} R.C. 4510.16(A) and R.C. 4510.11 provide that “no person * * * shall

operate” a motor vehicle in violation of a financial responsibility law suspension or while

under suspension. Ahmad directs our attention to R.C. 4511.01(HHH), which provides,

“‘Operate’ means to cause or have caused movement of a vehicle, street car or trackless 9

trolley.”

{¶ 57} In State v. Cochran, Montgomery App. No. 22240,

, we

noted, “In a long line of cases involving OMVI violations, the courts have held that the term

‘operate’ is broader than merely driving or causing movement of a motor vehicle, and is

satisfied by evidence that an accused was found in the driver’s seat of a motor vehicle, with

the ignition key in the ignition, whether or not the engine of the vehicle was running. State

v. Gill,

, * * *

; State v. Cleary (1986),

,

* * * ; State v. McGlone (1991),

, * * * .”

{¶ 58} R.C. 4511.01(HHH) became effective on January 1, 2004. In Cochran, we

determined that while “R.C. 4501.01(HHH) supersedes the prior judicial definition of

‘operate’ in State v. Gill and cases that have relied on its holding,” a “different quantum of

proof” is not required where “the accused is found in the driver’s seat of a vehicle with the

key in the ignition. Those facts are circumstantial evidence that the accused operated the

vehicle to bring it to the place where it was found, and circumstantial and direct evidence

inherently possess the same probative value.” Cocran, ¶ 25.

{¶ 59} We further noted that the “definition of ‘operate’ in R.C. 4511.01(HHH) is

part of an extensive definitional section, R.C. 4511.01, which contains the following

preamble: ‘As used in this chapter and in Chapter 4513 of the Revised Code.’ By those

terms, the definition of ‘operate’ in R.C. 4511.01(HHH) does not apply to or limit the

violation of R.C. 4510.16(A)” or R.C. 4510.11. Cochran, ¶ 26.

{¶ 60} Regarding Ahmad’s assertions about Wolpert’s credibility, we defer to the

trial court’s credibility assessment. Wolpert stopped Ahmad in May of 2004, six years 10

before trial, and we cannot conclude that his failure to remember specific details regarding

the stop after the passage of so much time impugns his credibility. We note that the

municipal court found Ahmad not guilty of the seatbelt violation after Wolpert stated he

could not specifically remember if Ahmad was properly restrained. While Ahmad asserts

that Wolpert’s testimony was inconsistent regarding the vehicle to which the plates

belonged, we note that Wolpert stated on direct that the plates were on the Cadillac but

“came back” to the Buick. On cross-examination, defense counsel confused the vehicles,

asking first, “And so you only found out that that plate belonged to a Cadillac by using that

computer system,” and then, “ ”And who is the registered owner of the eighty-eight Buick

that Mr. Ahmad was driving?” Near the close of cross-examination, Wolpert again stated

that he stopped the vehicle after the plates “came back to a Buick.”

{¶ 61} Having reviewed the entire record, weighed all the evidence and all

reasonable inferences, we cannot conclude that Ahmad’s convictions for two counts of

driving under suspension are against the manifest weight of the evidence. It is undisputed

that Ahmad’s license was under numerous suspensions, and Ahmad testified that he was in

the driver’s seat of the Cadillac, with the key in the ignition, when approached by Wolpert

regarding the improper license plate. Accordingly, Ahmad’s second assigned error is

overruled, and his convictions for driving under suspension are affirmed.

{¶ 62} The first assignment of error having been sustained, Ahmad’s conviction for

operating a motor vehicle bearing an invalid plate is reversed and vacated. In all other

respects, the judgment of the municipal court is affirmed.

.......... 11

HALL, J., concurs.

GRADY, P.J., concurring:

{¶ 63} In State v. Cochran, Montgomery App. No. 22240,

, we held

that the definition of "operate" in R.C. 4511.01(HHH) may be satisfied by "circumstantial

evidence that the accused operated the vehicle to bring it to the place where it was found."

Id., ¶25. In Cochran, there was no evidence that the defendant had been seen moving the

vehicle concerned, a van. ¶11. However, there was evidence that the defendant was found

seated in the driver’s seat of a van that was parked along a roadway, "with the van running

and the keys in the ignition." ¶7. We reasoned that such circumstantial evidence was

sufficient to overcome the lack of any direct evidence that the defendant was seen moving

the vehicle, a matter on which the defendant relied to challenge the manifest weight of the

evidence supporting his conviction. We cited the holding in State v. Jenks (1991),

, that circumstantial evidence and direct evidence inherently possess the same

probative value and therefore should be subject to the same standard of proof." Paragraph

one of the Syllabus by the Court.

{¶ 64} Jenks overruled State v. Kulig (1974),

, which had held that

"[c]ircumstantial evidence relied upon to prove an essential element of a crime must be

irreconcilable with any reasonable theory of an accused’ s innocence in order to support a

finding of guilty." Syllabus by the Court. Kulig viewed circumstantial evidence as having

a lesser probative value than direct evidence in relation to the burden imposed by reasonable

doubt standard. Jenks instead held that "proof of guilt may be made by circumstantial

evidence as well as by real and direct or testimonial evidence, or any combination of these 12

three classes of evidence. All three classes have equal probative value, and circumstantial

evidence has no less value that the others. Circumstantial evidence is not less probative

than direct evidence, and, in some instances, is even more reliable . . ." (Internal citations

omitted.)

{¶ 65} "Probative" is an adjectival form of the word probate, which derives from the

Latin term probatum, meaning "something proved." Probative evidence is evidence that

tends to prove or disprove a point in issue. Black’s Law Dictionary, Seventh Ed. Jenks

held that circumstantial evidence is not inherently less probative than direct evidence, and

therefore the two forms have the same capacity to prove or disprove a point in issue.

However, that does not mean that any two articles of evidence have the same probative

force, that is, the same weight. That is a qualitative factor determined by the credibility of

its source and the logical character of its substance.

{¶ 66} In Cochran, the fact that the defendant was found in the driver’s seat of a

vehicle parked along a road with its motor running, logically supported a conclusion that the

defendant had operated the vehicle for purposes of R.C. 4511.01 (HHH). Perhaps the

evidence in the present case about the way in which Defendant was found has somewhat less

of a logical connection with that conclusion. However, unlike Cochran, in the present case

there was testimony by a officer that he saw Defendant driving the vehicle and that he

followed the vehicle before stopping it. That is direct evidence that Defendant operated the

vehicle in which he was found, and if believed it renders beside the point any issue

concerning the way in which Defendant was found when his vehicle was stopped.

{¶ 67} Defendant attacks the credibility of the officer, but the alleged inconsistencies 13

in his testimony have no material bearing on the officer’s statement that he saw Defendant

operate the vehicle. The credibility of witnesses is a matter primarily for the trial court to

decide. State v. DeHass (1967), 10 Oho St.2d 230. The trial court apparently believed the

officer. I find no abuse of discretion in that respect, or in the court’s finding of guilty.

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Copies mailed to:

Edward C. Utacht II Andrea G. Ostrowski Hon. Deirdre E. Logan