[Cite as State v. Knowlton,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY

State of Ohio, : : Plaintiff-Appellee, : Case No: 10CA31 : v. : : DECISION AND Jerran K. Knowlton, : JUDGMENT ENTRY : Defendant-Appellant. : Filed: May 21, 2012

APPEARANCES:

Dennis L. Sipe, BUELL & SIPE CO., L.P.A., Marietta, Ohio, for Appellant.

Paul G. Bertram, III, Marietta City Law Director, and Amy Brown Thompson, Marietta City Assistant Law Director, Marietta, Ohio, for Appellee.

Kline, J.:

{¶1} Jerran K. Knowlton (hereinafter “Knowlton”) appeals the judgment of the

Marietta Municipal Court. After a jury trial, Knowlton was convicted of (1) operating a

motor vehicle while impaired, (2) failure to control, and (3) failure to stop after an

accident involving the property of others. On appeal, Knowlton initially contends that

insufficient evidence supports his failure-to-stop conviction. We disagree. After viewing

the evidence in a light most favorable to the state, we find that any rational trier of fact

could have found the essential elements of failure to stop proven beyond a reasonable

doubt. Next, Knowlton contends that the trial court erred when it imposed a driver’s

license suspension as part of his sentence for failure to stop. Because the trial court

was not authorized to impose a driver’s license suspension under R.C. 4549.03, we Washington App. No. 10CA31 2

agree. As a result, we vacate the driver’s license suspension that was imposed as part

of Knowlton’s failure-to-stop sentence. Finally, Knowlton contends that he received

ineffective assistance of counsel. We disagree, in part, and find this argument moot, in

part. First, because sufficient evidence supports Knowlton’s failure-to-stop conviction,

raising additional motion-for-acquittal arguments at the trial court level would have been

futile. Therefore, as it relates to his sufficiency-of-the-evidence argument, Knowlton did

not receive ineffective assistance of counsel. Second, because we vacate the driver’s

license suspension that was imposed as part of Knowlton’s failure-to-stop sentence, the

ineffective-assistance-of-counsel argument related to his driver’s license suspension is

moot. Accordingly, we affirm, in part, and reverse, in part, the judgment of the trial

court.

I.

{¶2} On May 2, 2010, at approximately 4:45 p.m., Knowlton drove his car into a

telephone pole. Immediately thereafter, Knowlton drove his car several hundred feet

down the road and parked on a side street. Knowlton said that he left the accident

scene and drove down the road for safety purposes and to avoid “people

rubbernecking[.]” Supplemental Transcript at 29. After parking on the side street,

Knowlton remained with his car until Trooper Eric Knowlton (hereinafter “Trooper Eric”)

arrived on the scene.

{¶3} Trooper Eric was dispatched to the accident scene after somebody called in

a one-vehicle crash. Initially, Trooper Eric saw the damaged telephone pole. A short

time later, he found Knowlton parked on the side street. Trooper Eric approached him Washington App. No. 10CA31 3

and noticed the smell of alcohol on Knowlton’s breath. Then, after administering

several field sobriety tests, Trooper Eric placed Knowlton under arrest.

{¶4} Knowlton was eventually charged with (1) operating a motor vehicle while

impaired (“OVI”), (2) failure to control, and (3) failure to stop after an accident involving

the property of others, a violation of R.C. 4549.03(A).

{¶5} The trial court held a jury trial on the OVI and failure-to-stop charges.

Knowlton moved for acquittals on both of these charges at the close of the state’s

evidence. The trial court, however, found sufficient evidence to proceed. Later,

Knowlton renewed his Crim.R. 29 motions for acquittal, but the trial court again found

sufficient evidence to present the charges to the jury.

{¶6} Eventually, Knowlton was convicted of all three charges and sentenced

accordingly. For purposes of this appeal, it is relevant that the trial court imposed an

eighteen-month driver’s license suspension as part of Knowlton’s sentence for failure to

stop. (The trial court also imposed a two-year driver’s license suspension as part of

Knowlton’s OVI sentence.)

{¶7} Knowlton appealed, and Knowlton’s original appellate counsel filed a brief

under Anders v. California (1967),

. Because we found an issue of

arguable merit, we (1) allowed Knowlton’s original appellate counsel to withdraw and (2)

appointed new appellant counsel for Knowlton.

{¶8} With his new appellate counsel, Knowlton now asserts the following three

assignments of error: I. “THE TRIAL COURT ERRED WHEN IT DENIED

APPELLANT’S MOTION[] FOR ACQUITTAL AS TO THE OFFENSE OF FAILING TO

STOP.” II. “THE TRIAL COURT ERRED WHEN IT IMPOSED A LICENSE Washington App. No. 10CA31 4

SUSPENSION AS TO THE OFFENSE OF FAILING TO STOP.” And, III. “THE ACTS

AND OMISSIONS OF TRIAL COUNSEL DEPRIVED APPELLANT OF HIS RIGHT TO

EFFECTIVE ASSISTANCE OF COUNSEL.”

II.

{¶9} In his first assignment of error, Knowlton contends that insufficient evidence

supports his failure-to-stop conviction. And for that reason, Knowlton argues that the

trial court should have granted his Crim.R. 29 motion on the failure-to-stop charge. We

disagree and find that sufficient evidence supports Knowlton’s failure-to-stop conviction.

{¶10} We review the trial court’s denial of a Crim.R. 29 motion for acquittal under

a sufficiency-of-the-evidence standard. State v. Turner, Scioto App. No. 08CA3234,

, at ¶17, citing State v. Bridgeman (1978),

. When

reviewing a case to determine if the record contains sufficient evidence to support a

criminal conviction, we must “‘examine the evidence admitted at trial to determine

whether such evidence, if believed, would convince the average mind of the defendant’s

guilt beyond a reasonable doubt. The 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.

Smith, Pickaway App. No. 06CA7,

, quoting State v. Jenks

(1991),

, at paragraph two of the syllabus. See, also, Jackson v.

Virginia (1979),

.

{¶11} The sufficiency-of-the-evidence test “raises a question of law and does not

allow us to weigh the evidence.” Smith,

, citing State v. Martin

(1983),

. Instead, the sufficiency-of-the-evidence test “‘gives Washington App. No. 10CA31 5

full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony,

to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate

facts.’” Smith,

, quoting Jackson at 319. This court will “reserve

the issues of the weight given to the evidence and the credibility of witnesses for the

trier of fact.” Smith,

, citing State v. Thomas (1982),

; State v. DeHass (1967),

, at paragraph one of the

syllabus.

{¶12} Knowlton’s first assignment of error pertains only to his failure-to-stop

conviction. The relevant statute, R.C. 4549.03(A), provides the following: “The driver of

any vehicle involved in an accident resulting in damage to real property, or personal

property attached to real property, legally upon or adjacent to a public road or highway

immediately shall stop and take reasonable steps to locate and notify the owner or

person in charge of the property of that fact, of the driver’s name and address, and of

the registration number of the vehicle the driver is driving and, upon request and if

available, shall exhibit the driver’s or commercial driver’s license.

{¶13} “If the owner or person in charge of the property cannot be located after

reasonable search, the driver of the vehicle involved in the accident resulting in damage

to the property, within twenty-four hours after the accident, shall forward to the police

department of the city or village in which the accident or collision occurred, or if it

occurred outside the corporate limits of a city or village to the sheriff of the county in

which the accident or collision occurred, the same information required to be given to

the owner or person in control of the property and give the location of the accident and a

description of the damage insofar as it is known.” Washington App. No. 10CA31 6

i.

{¶14} Knowlton initially advances an argument based on R.C. 4549.03(A)’s

twenty-four-hour-notification requirement. According to Knowlton, the state “did not call

either a member of the Washington County Sherriff’s Department or the Marietta Police

Department to establish that [Knowlton] did not contact one of the departments within

the twenty-four [hour] time period.” Brief of Appellant at 7. Thus, according to

Knowlton, “the state did not prove all of the essential elements of the offense.”

{¶15} Because Knowlton did not undertake a reasonable search, the state was

not required to prove that he failed to contact the proper authorities within twenty-four

hours. R.C. 4549.03(A) “clearly and unequivocally requires the driver of a vehicle

involved in an accident resulting in damage to property to immediately stop and take

reasonable steps to locate and notify the owner of the damaged property. Thus, in

order to convict appellant of violating R.C. 4549.03, the state had to show that appellant

did not stop and take those reasonable steps.” State v. Cecil (Jan. 31, 2000), Brown

App. No. CA99-06-020 (emphasis sic). And here, the evidence demonstrates that

Knowlton made no effort to immediately locate the owner of the damaged property.

Knowlton’s own testimony supports this conclusion.

{¶16} “Q. So the question is, you did not immediately stop and take steps to find

the owner of any property that was damaged, you --

{¶17} “A. Yeah, I immediately stopped. I just ran into a telephone pole.

{¶18} “Q. -- I mean, you didn’t get out and look for any property owners or

anything else that was damaged, you just got back in the car and drove off? Washington App. No. 10CA31 7

{¶19} “A. I got back in the car and yeah, I drove to where I needed to be.”

Supplemental Transcript at 50.

{¶20} Based on this testimony, any rational trier of fact could have inferred that

Knowlton did not undertake the reasonable search required by R.C. 4549.03(A). And

because Knowlton failed to undertake the necessary search, the twenty-four-hour-

notification period is irrelevant. “[I]t is our duty to give meaning and effect to the plain

language of the statute as set forth by the General Assembly.” In re A.B.,

,

, at ¶33, citing R.C. 1.42. And here, R.C. 4549.03(A) clearly

states that the twenty-four-hour-notification period applies only “[i]f the owner or person

in charge of the property cannot be located after reasonable search[.]” R.C. 4549.03(A)

(emphasis added). Because he did not undertake the necessary search, Knowlton did

not trigger the twenty-four-hour-notification period. And as a result, the state was not

required to prove that Knowlton failed to notify the proper authorities within twenty-four

hours.

ii.

{¶21} In his second sufficiency-of-the-evidence argument, Knowlton contends

that he had neither the time nor the opportunity to locate the owner of the damaged

property. Knowlton’s argument, however, fails under the plain language of R.C.

4549.03(A). (Knowlton claims that “[t]he only damage that was caused by [his] vehicle

was to a telephone pole.” Brief of Appellant at 7. However, Trooper Eric testified that,

while at the accident scene, he saw “damage to * * * personal property.” Transcript at

101.) Washington App. No. 10CA31 8

{¶22} To demonstrate that he had neither the time nor the opportunity to locate

the owner of the damaged property, Knowlton relies on State v. Spence, Clermont App.

No. CA2002-02-012,

. In Spence, the defendant pled no contest to

failure to stop under R.C. 4549.02. The court explained that the defendant “was driving

a friend’s vehicle when he lost control during inclement weather and struck a utility pole

at approximately 2:00 a.m. on December 12, 2001. [The Defendant] and the others left

the vehicle at the scene and walked to the nearby house of the owner of the vehicle.

Within the hour, [the defendant] was arrested by a police officer who responded to the

scene of the accident and eventually came to the residence after tracing the address of

the owner of the vehicle.” Id. at ¶3.

{¶23} On appeal, the Twelfth Appellate District found that “the explanation of

circumstances [was] insufficient to warrant a guilty finding under R.C. 4549.02.” Spence

at ¶12. Instead, the court noted that “[t]he facts of [Spence] are more compatible with

R.C. 4549.03 as they involve a collision with property located adjacent to a highway.

Given that R.C. 4549.03 applies, it is highly unlikely that [the defendant] could have

readily determined the owner of the utility pole at 2:00 a.m., or that he had an adequate

opportunity to identify the owner of the utility pole before being arrested. Furthermore,

[the defendant] was still well within the 24-hour period for reporting such an accident

when he was arrested.” Spence at ¶13.

{¶24} Knowlton asks us to follow Spence and find that he had neither the time

nor the opportunity to locate the owner of the damaged property. For several reasons,

however, we choose not to rely on Spence. Significantly, Spence involved a conviction

under R.C. 4549.02, not R.C. 4549.03. And because the Spence court held that the Washington App. No. 10CA31 9

explanation of circumstances was insufficient to support a conviction under R.C.

4549.02, the opinion’s discussion of R.C. 4549.03 is mere dicta. As we recently noted,

dicta “is ‘[a] judicial comment made while delivering a judicial opinion, but one that is

unnecessary to the decision in the case and therefore not precedential.’” Dunn v.

Ransom, Pike App. No. 10CA806,

, quoting Black’s Law

Dictionary (9th Ed. 2009) (alteration sic). “‘The problem with dicta, and a good reason

that it should not have the force of precedent for later cases, is that when a holding is

unnecessary to the outcome of a case, it may be made with less care and thoroughness

than if it were crucial to the outcome.’”

, quoting State v. Bodyke,

,

(O’Donnell, J., concurring and dissenting in part)

(other internal quotation omitted). Accordingly, we choose not to rely on the dicta in

Spence.

{¶25} Furthermore, even if we found Spence’s discussion of R.C. 4549.03 to be

something other than dicta, we would still find that Spence misapplies the statute.

Under the plain language of R.C. 4549.03, an individual must immediately stop and take

reasonable steps to locate and notify the owner of the damaged property. See,

generally, State v. Smith, Stark App. No. 2010-CA-00335,

(“The word ‘shall’ is usually interpreted to make the provision in which it is contained

mandatory.”), citing Dorrian v. Scioto Conservancy Dist. (1971),

.

In Spence, however, the court disregarded the reasonable-search requirement and

found that it was highly unlikely that the defendant could have readily determined the

owner of the utility pole. This finding, in effect, reads the reasonable-search

requirement out of R.C. 4549.03 in certain circumstances. But nothing in the plain Washington App. No. 10CA31 10

language of R.C. 4549.03 supports Spence’s application of the reasonable-search

requirement. Instead, R.C. 4549.03 clearly indicates that a reasonable search is

mandatory to avoid criminal liability for failure to stop. Therefore, we disagree with the

dicta in Spence.

iii.

{¶26} Thus, after viewing the evidence in a light most favorable to the state, we

find that any rational trier of fact could have found all the essential elements of failure to

stop proven beyond a reasonable doubt. As a result, we overrule Knowlton’s first

assignment of error.

III.

{¶27} In his second assignment of error, Knowlton contends that the trial court

erred when it imposed a driver’s license suspension as part of his sentence for failure to

stop. Knowlton argues that R.C. 4549.03 does not authorize a driver’s license

suspension. The state concedes this assignment of error, and we agree that the trial

court erred.

{¶28} “[W]e review a misdemeanor sentence for an abuse of discretion.” State v.

Leeth, Pike App. No. 05CA745,

, citing R.C. 2929.22(A). See,

also, State v. Hughley, Cuyahoga App. Nos. 92588 & 93070,

, at ¶7.

“An abuse of discretion implies that a court’s ruling is unreasonable, arbitrary, or

unconscionable; it is more than an error in judgment.” Leeth at ¶6, citing State ex rel.

Richard v. Seidner (1996),

.

{¶29} The present case, however, requires us to interpret and apply various

sections of the Ohio Revised Code. To the extent that we must interpret and apply Washington App. No. 10CA31 11

these statutes, our review is de novo. See Roberts v. Bolin, Athens App. No. 09CA44,

, at ¶20, quoting State v. Sufronko (1995),

(“‘When interpreting statutes and their application, an appellate court conducts a de

novo review, without deference to the trial court’s determination.’”).

{¶30} Based on our interpretations of R.C. 2929.27(A)(13) and R.C. 4549.03, we

find that the trial court was not authorized to suspend Knowlton’s driver’s license as part

of his failure-to-stop conviction. R.C. 2929.27(A)(13) provides the following: “Except

when a mandatory jail term is required by law, the court imposing a sentence for a

misdemeanor, other than a minor misdemeanor, may impose upon the offender any

nonresidential sanction or combination of nonresidential sanctions authorized under this

division. Nonresidential sanctions include, but are not limited to, the following: * * * If

authorized by law, suspension of the offender’s privilege to operate a motor vehicle,

immobilization or forfeiture of the offender’s motor vehicle, a requirement that the

offender obtain a valid motor vehicle operator’s license, or any other related sanction[.]”

(Emphasis sic.)

{¶31} In interpreting R.C. 2929.27(A)(13) and R.C. 4549.03, we agree with the

Third Appellate District’s reasoning in State v. Ledley, Union App. No. 14-09-39, 2010-

Ohio-1260. In Ledley, the court held that “[n]othing in R.C. 4549.03 authorizes a court

to suspend the driver’s license of a person who violates this section unlike various other

offenses contained in Title 45 regarding violations of the law involving motor vehicles.

For instance, R.C. 4549.02, entitled Stopping after accident; exchange of identity and

vehicle registration, and R.C. 4549.021, entitled Stopping after accident involving injury

to persons or property, specifically mandate that a trial court impose a class five Washington App. No. 10CA31 12

suspension of the offender’s driver’s license under certain circumstances. However,

another example, R.C. 4511.75, entitled Stopping for school bus; signals, provides that

a court may impose a class seven driver’s license suspension on an offender. R.C.

4511.75(F)(2). Yet, R.C. 4549.03 contains no similar provision.

{¶32} “Given the General Assembly’s decision to designate which offenses it

renders worthy of a license suspension and its specific language in R.C. 2929.27(A)(13)

that a license suspension for misdemeanors is allowed if authorized by law, we find that

a license suspension for a violation of R.C. 4549.03(A) is not authorized. Therefore, the

trial court did not have authority to suspend Ledley’s license in the case sub judice.”

Ledley at ¶10-11 (emphasis sic).

{¶33} We agree with Ledley and apply its reasoning to the present case.

Accordingly, the trial court did not have the authority to suspend Knowlton’s driver’s

license as part of his failure-to-stop conviction, and we sustain Knowlton’s second

assignment of error. Therefore, we choose to modify Knowlton’s judgment entry by

vacating only the driver’s license suspension that was imposed as part of his sentence

for failure to stop. App.R. 12(A)(1)(a) & (B). Under our decision, the rest of Knowlton’s

sentence -- including the license suspension for OVI -- remains intact.

IV.

{¶34} In his third assignment of error, Knowlton contends that he received

ineffective assistance of counsel for two different reasons. First, Knowlton contends

that, on the failure-to-stop charge, his trial counsel should have made additional

arguments in support of the Crim.R. 29 motion for acquittal. Essentially, Knowlton

argues that his trial counsel should have raised the failure-to-stop arguments that we Washington App. No. 10CA31 13

rejected in Knowlton’s first assignment of error. Second, Knowlton contends that his

trial counsel should have objected to the driver’s license suspension that was imposed

as part of Knowlton’s failure-to-stop conviction. In other words, Knowlton argues that

his trial counsel should have raised the meritorious arguments contained in Knowlton’s

second assignment of error.

{¶35} “In Ohio, a properly licensed attorney is presumed competent and the

appellant bears the burden to establish counsel’s ineffectiveness.” State v. Norman,

Ross App. Nos. 08CA3059 & 08CA3066,

, at ¶65 (internal quotations

omitted); see, also, State v. Wright, Washington App. No. 00CA39,

;

State v. Hamblin (1988),

, cert. den. Hamblin v. Ohio (1988)

. To secure reversal for the ineffective assistance of counsel, one must

show two things: (1) “that counsel’s performance was deficient * * *[,]” which “requires

showing that counsel made errors so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment[;]” and (2) “that the

deficient performance prejudiced the defense * * *[,]” which “requires showing that

counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose

result is reliable.” Strickland v. Washington (1984),

. See, also,

Norman at ¶65. “Failure to satisfy either prong is fatal as the accused’s burden requires

proof of both elements.” State v. Hall, Adams App. No. 07CA837,

, citing State v. Drummond,

,

, at ¶205.

{¶36} In overruling Knowlton’s first assignment of error, we found that sufficient

evidence supports his failure-to-stop conviction. Therefore, we find that it would have

been futile to raise additional failure-to-stop arguments at the trial court level. “[T]he Washington App. No. 10CA31 14

failure to do a futile act cannot be the basis for claims of ineffective assistance of

counsel and is not prejudicial.” State v. Witherspoon, Cuyahoga App. No. 94475, 2011-

Ohio-704, at ¶33, citing State v. Henderson, Cuyahoga App. No. 88185, 2007-Ohio-

2372; Defiance v. Cannon (1990),

. Accordingly, as it

relates to the motion for acquittal, we reject Knowlton’s ineffective-assistance-of-counsel

argument.

{¶37} In sustaining Knowlton’s second assignment of error, we found that the trial

court should not have imposed a driver’s license suspension as part of Knowlton’s

sentence for failure to stop. As a result, we vacated that portion of Knowlton’s

sentence. Therefore, as it relates to the driver’s license suspension, we find that

Knowlton’s ineffective-assistance-of-counsel argument is moot. See App.R. 12(A)(1)(c).

{¶38} Accordingly, we overrule, in part, and find moot, in part, Knowlton’s third

assignment of error.

V.

{¶39} In conclusion, we overrule Knowlton’s first assignment of error and sustain

his second assignment of error. As a result, we vacate only the driver’s license

suspension that was imposed as part of Knowlton’s sentence for failure to stop. The

rest of his total combined sentence for OVI, failure to stop, and failure to control remains

fully intact. Finally, we overrule, in part, and find moot, in part, Knowlton’s third

assignment of error. Accordingly, we affirm, in part, and reverse, in part, the trial court’s

judgment and remand this cause to the trial court for further proceedings consistent with

this opinion. Washington App. No. 10CA31 15

JUDGMENT AFFIRMED, IN PART, REVERSED, IN PART, AND CAUSE REMANDED. Washington App. No. 10CA31 16

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED, IN PART, REVERSED, IN PART, and this CAUSE BE REMANDED to the trial court for further proceedings consistent with this opinion. Appellant and Appellee shall pay equally the costs herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Marietta Municipal Court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

Abele, P.J. and McFarland, J.: Concur in Judgment and Opinion.

For the Court

BY:_____________________________ Roger L. Kline, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.