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Date: 05-04-2020
Case Style:
STATE OF OHIO vs. CATHERINE WILSON
Case Number: C-190281
Judge: Pierre H Bergeron
Court: IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
Plaintiff's Attorney: Paula Boggs Muething, City Solicitor, William T. Horsley, Interim City Prosecutor, and Jon Vogt, Appellate Director
Defendant's Attorney:
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On a brisk February morning, Officer Charles Hains responded to a call
placed at 5:30 a.m. by a concerned neighbor who spotted a vehicle crowded with young
people parked on a residential street. Arriving three hours later, at roughly 8:30, Officer
Hains identified the reported vehicle and approached, finding four individuals fast asleep
inside the running car, with Ms. Wilson at the helm of the driver’s seat. Promptly waking
everyone up, Officer Hains soon uncovered the reason for their sleeping in the car. One of
the individuals lived in the house right across the street and, upon the parent tossing the
group out, the foursome sought refuge in the car to sleep (sleep it off, really). Continuing
OHIO FIRST DISTRICT COURT OF APPEALS
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his investigation, Officer Hains also discovered Ms. Wilson was currently under a driving
suspension, and thus he cited her for driving under an OVI suspension.
{¶3} At trial, neither the state nor Ms. Wilson disputed the events of that February
morning. Instead, the trial hinged on the meaning of the term “operate” for purposes of
R.C. 4510.14(A), driving under an OVI suspension. The state championed the judicial
interpretation of “operate,” requiring evidence of either actual or potential movement of the
vehicle. To satisfy this judicial definition, the state offered testimony from Officer Hains,
who recounted the events above, emphasizing that Ms. Wilson was sleeping in the driver’s
seat, the key in the ignition, and the engine running. On the other hand, Ms. Wilson
requested the court adopt the statutory definition set forth in R.C. 4511.01, necessitating
evidence that she cause or had caused movement of the vehicle. Moving for a Crim.R. 29
acquittal, Ms. Wilson asserted that, because the state offered no evidence that the car
actually moved (a point the state eventually concedes), it failed to establish that she
operated the vehicle, a necessary element under R.C. 4510.14(A).
{¶4} Ultimately, the court sided with the state, maintaining that “as the Supreme
Court has indicated, operation is more than actually driving,” it is “having the ability to
move the vehicle,” and accordingly denied her Crim.R. 29 motion and convicted her of
driving under an OVI suspension.1 Ms. Wilson now appeals, challenging in her sole
assignment of error the sufficiency of the evidence supporting her conviction.
1 We note that the court’s entry below mistakenly stated that Ms. Wilson was guilty of violating R.C.
4510.16. However, as is clear from the record, the court granted the state’s request under Crim.R. 7 to
amend the ticket to reflect only the violation of R.C. 4510.14 and the bench trial proceeded on the R.C.
4510.14 violation alone. See State v. Lattimore, 1st Dist. Hamilton No. C-010488, 2002 WL 252451, *2
(Feb. 22, 2002) (“The trial court’s citation to the incorrect Revised Code section was a clerical mistake * *
* Crim.R. 36 allows for the correction at any time of clerical mistakes and errors due to oversight or
omission by the court.”). In this case, we need not remand for the trial court to correct this clerical
mistake since we ultimately reverse the court’s judgment and discharge the appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
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II.
A.
{¶5} Generally, when reviewing the sufficiency of the evidence, we inquire
whether, after viewing the evidence in the light most favorable to the prosecution, a rational
trier of fact could have found all the necessary elements of the crime beyond a reasonable
doubt. See State v. Anderson, 1st Dist. Hamilton No. C-160920, 2017-Ohio-8641, ¶ 10,
citing State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the
syllabus. But in this case, since neither side disputes the facts, we confront a pure issue of
statutory interpretation, warranting de novo review. See State v. Pountney, 152 Ohio St.3d
474, 2018-Ohio-22, 97 N.E.3d 478, ¶ 20 (“Interpretation of a statute is a question of law
that we review de novo.”).
{¶6} Pursuant to R.C. 4510.14(A), “[n]o person whose driver’s * * * license * * * has
been suspended under section 4511.19 * * * shall operate any motor vehicle upon the public
roads or highways within this state during the period of the suspension.” The outcome of
this case turns on what the term “operate” means as used in R.C. 4510.14(A), given that no
statutory definition appears in the operative section.
{¶7} The parties essentially frame the debate as a choice between a statutory
definition of “operate” from another section of the Revised Code—R.C. 4511.01(HHH)—or a
prior judicial interpretation of the term from our Supreme Court. Ultimately, we view the
judicial interpretation as superseded by subsequent legislative action and, regardless, not
directed at the statute that we must interpret in this case. But to give context to these
dueling positions, we must step back and set the stage a bit.
OHIO FIRST DISTRICT COURT OF APPEALS
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{¶8} Prior to the enactment of Am.Sub.S.B. No. 123, 149 Ohio Laws, Part II, 2467,
2951, R.C. 4511.19(A)(1)(a)—operating a motor vehicle while under the influence—required
the defendant operate the vehicle, but, similar to R.C. 4510.14, it failed to define “operate.”
See State v. Schultz, 8th Dist. Cuyahoga No. 90412, 2008-Ohio-4448, ¶ 18 (“Before the
General Assembly enacted S.B. 123, effective January 1, 2004, there was no statutory
definition of ‘operate.’ ”). In absence of a statutory definition, the Ohio Supreme Court, in
State v. Cleary, 22 Ohio St.3d 198, 490 N.E.2d 574 (1986), established that “[o]peration of a
motor vehicle within the contemplation of the statute is a broader term than mere driving,”
and in fact “a person in the driver’s position in the front seat with the ignition key in his
possession indicating either his actual or potential movement of the vehicle while under the
influence” sufficed for purposes of R.C. 4511.19(A)(1). Id. at 199.
{¶9} A few years later, in State v. Gill, 70 Ohio St.3d 150, 637 N.E.2d 897 (1994),
the Ohio Supreme Court built upon its holding in Cleary. Distinguishing themselves from
Cleary, the defendants in Gill emphasized that, while positioned in the driver’s seat with the
key in the ignition, the engine was not running, and thus this critical difference prohibited
the court from finding a R.C. 4511.19 violation. Id. at 153-154. Yet the court refused to bite
at this distinction, clarifying that Cleary was “intended to establish that if a person is found
intoxicated in the driver’s seat of a parked vehicle with the ignition key in the ignition” the
person operates a vehicle for purposes of R.C. 4511.19, “whether or not the engine of the
vehicle is running.” Id. at 154. In rejecting the defendants’ proposal, the court maintained
that the purpose of R.C. 4511.19 is “to discourage persons from putting themselves in the
position in which they can potentially cause the movement of a motor vehicle while
intoxicated or under the influence[.]” Id. In other words, R.C. 4511.19 also carries a
OHIO FIRST DISTRICT COURT OF APPEALS
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prospective purpose in eliminating the “potentially harmful conduct” that could result when
a person sits in the driver’s seat with even the ability to control the vehicle in an intoxicated
state. Id.; see State v. Wright, 137 Ohio App.3d 88, 91, 738 N.E.2d 61 (11th Dist.2000)
(“Implicit in the court’s reasoning is an acknowledgment that a person who is intoxicated
and seated in the driver’s seat with the key in the ignition need do little more than turn the
key in order to set the vehicle in motion.”). Justice Pfeifer dissented, criticizing this
expansive construction of “operate”: “The legislature’s intent was to deter and to punish
drunk drivers, not to punish drunk radio listeners, or people who use their cars as a fourwheeled, heated hotel room.” Gill at 157-158 (Pfeifer, J., dissenting).
{¶10} Taking a cue from Justice Pfeifer, the General Assembly had misgivings about
the breadth of the judicial definition of operate, and thus it interceded. Effective January 1,
2004, it defined the term “operate” as used in R.C. Chapter 4511, as “to cause or have caused
movement of a vehicle[.]” R.C. 4511.01(HHH). Ohio courts agree that the legislative
purpose at hand was to overrule the judicial definition espoused by Gill and Cleary, and to
narrow the definition of “operate.” See State v. Anthony, 2016-Ohio-2905, 64 N.E.3d 591, ¶
20 (5th Dist.), quoting State v. Barnard, 5th Dist. Stark No. 2010-CA-00082, 2010-Ohio5345, ¶ 25 (“ ‘This modification narrows the definition of “operate[.]” ’ ”); State v. Wallace,
166 Ohio App.3d 845, 2006-Ohio-2477, 853 N.E.2d 704, ¶ 11 (1st Dist.) (“But in Sub.S.B.
No. 123, the General Assembly modified the definition in Gill and its predecessors by
specifically defining ‘operate,’ as well as by adding the words ‘at the time of the operation’ to
R.C. 4511.19(A)(1).”). Indeed, the Second District in State v. Cochran, 2d Dist. Montgomery
No. 22240, 2008-Ohio-3612—a case the state urges us to follow—recognized that R.C.
4511.01(HHH) “supersedes the prior judicial definition of ‘operate’ in State v. Gill[.]” Id. at
OHIO FIRST DISTRICT COURT OF APPEALS
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¶ 25. At the same time, the General Assembly created a new offense (seeming to encompass
Justice Pfeifer’s scenarios), “having physical control of a vehicle while under the influence”
under R.C. 4511.194(B); defining “physical control” as “being in the driver’s position of the
front seat of a vehicle * * * and having possession of the vehicle’s * * * ignition key or other
ignition device.” R.C. 4511.194(A)(2).
{¶11} The state says that this history is all well and good, but largely beside the
point because the statutory definition in R.C. 4511.01(HHH) does not apply to driving under
OVI suspension cases, but instead is limited by its preamble to only R.C. Chapters 4511 and
4513. See R.C. 4511.01 (“As used in this chapter and in Chapter 4513. of the Revised
Code[.]”). The state is correct on this score, but its position backs into another problem—
Gill and Cleary were also not interpreting the driving under OVI suspension statutory
provisions. Nor has our court ever extended the interpretation in that pair of cases to R.C.
4510.14(A), the section at hand in this case. To be sure, in State v. Blount, 1st Dist.
Hamilton No. C-180296, 2019-Ohio-3498, this court noted that the judicial definition of
“operate” may apply to driving under suspended license cases, but we did not answer the
question because the facts in that case showed that the individual had actually driven the
car. Id. at ¶ 8 (“[T]here is also a judicial definition of operate that may apply to drivingunder-suspended-license cases.”). Now, however, we must provide an answer given the
undisputed facts in this case. Id. (“Nevertheless, for the purposes of [the defendant’s] case,
we do not need to resolve which definition of operate applies, because under either
definition the state presented circumstantial evidence that [the defendant] had operated the
vehicle on the public roads or highways before arriving in the private driveway.”).
OHIO FIRST DISTRICT COURT OF APPEALS
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{¶12} As always, the goal of statutory construction is to ascertain and effectuate the
intent of the General Assembly. See State v. Hairston, 101 Ohio St.3d 308, 2004-Ohio-969,
804 N.E.2d 471, ¶ 11. Generally, we need not look to the canons of statutory construction
unless the statutory language is ambiguous. See Hulsmeyer v. Hospice of Southwest Ohio,
Inc., 142 Ohio St.3d 236, 2014-Ohio-5511, 29 N.E.3d 903, ¶ 22 (“When statutory language is
ambiguous, the rules of statutory interpretation must be applied to determine the intent of
the legislature.”); Jacobson v. Kaforey, 149 Ohio St.3d 398, 2016-Ohio-8434, 75 N.E.3d
203, ¶ 18, quoting Risner v. Ohio Dept. of Natural Resources, Ohio Div. of Wildlife, 144
Ohio St.3d 278, 2015-Ohio-3731, 42 N.E.3d 718, ¶ 12 (“ ‘[I]f the words [are] free from
ambiguity and doubt, and express plainly, clearly, and distinctly the sense of the lawmaking
body, there is no occasion to resort to other means of interpretation.’ ”). Ambiguity exists
“ ‘if a reasonable person can find different meanings in the [statute] and if good arguments
can be made for either of two contrary positions.’ ” (Emphasis sic.) Turner v. Hooks, 152
Ohio St.3d 559, 2018-Ohio-556, 99 N.E.3d 354, ¶ 12, quoting Sunset Estate Properties,
L.L.C. v. Village of Lodi, 9th Dist. Medina No. 12CA0023-M, 2013-Ohio-4973, ¶ 20; see
Rockies Express Pipeline, L.L.C. v. McClain, Slip Opinion No. 2020-Ohio-410, ¶ 15 (“A
statute is ambiguous only if its language is susceptible of more than one reasonable
interpretation.”). Such ambiguity exists here, with both parties providing different, but
reasonable, interpretations of the undefined term “operate.” Lang v. Dir., Ohio Dept. of Job
& Family Servs., 134 Ohio St.3d 296, 2012-Ohio-5366, 982 N.E.2d 636, ¶ 14 (“To see the
statutory ambiguity, one need look no further than the fact that both [parties] offer
reasonable and conflicting interpretations of the statute.”). On the one hand, it is
reasonable to read, as Ms. Wilson does, “operate” to necessitate movement of the vehicle,
OHIO FIRST DISTRICT COURT OF APPEALS
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especially when this interpretation coincides with a statutory definition just a chapter away
in R.C. Chapter 4511. Yet, the state’s interpretation of “operate” (echoed by the dissent) is
also reasonable in light of prior Ohio Supreme Court authority (applying to R.C. 4511.19).
And thus, in order to resolve this ambiguity, we rely on three basic principles: (1) the
structure and accompanying language within R.C. 4510.14, (2) the doctrine of in pari
materia, and (3) the purposes animating Gill and Cleary.
B.
{¶13} We first consider how the General Assembly employed “operate” in R.C.
4510.14. Importantly, in doing so, we should not review the General Assembly’s use of
“operate” within R.C. 4510.14 in a vacuum, but instead direct our attention “ ‘beyond single
phrases,’ ” considering “ ‘in proper context, all words used by the General Assembly in
drafting [R.C. 4510.14][.]’ ” State v. Gonzales, 150 Ohio St.3d 276, 2017-Ohio-777, 81
N.E.3d 419, ¶ 5, quoting D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health, 95 Ohio St.3d
250, 2002-Ohio-4172, 773 N.E.2d 536, ¶ 19. Accordingly, all words or phrases within R.C.
4510.14 impact our analysis, prohibiting us from “pick[ing] out one sentence and
disassociat[ing] it from the context” and instead demanding we “look to the four corners of
the enactment to determine the intent of the enacting body.” Electronic Classroom of
Tomorrow v. Ohio Dept. of Ed., 154 Ohio St.3d 584, 2018-Ohio-3126, 118 N.E.3d 907, ¶ 11;
see D.A.B.E., Inc. at ¶ 19 (“We must presume that in enacting a statute, the General
Assembly intended for the entire statute to be effective. * * * Thus, all words should have
effect and no part should be disregarded.”).
{¶14} Turning to R.C. 4510.14, the statute first delineates the elements of the
offense, forbidding an individual from operating a motor vehicle if his or her license has
OHIO FIRST DISTRICT COURT OF APPEALS
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been suspended under certain sections of the code. See R.C. 4510.14(A). Immediately
following, the General Assembly labels this violation: “[w]hoever violates this section is
guilty of driving under OVI suspension.” (Emphasis added.) R.C. 4510.14(B). Based on this
language, the words utilized in the next sentence after “operate” allow for a reasonable
inference that, to be found guilty, the offense necessitates driving of some sort. See State v.
Lamke, 2013-Ohio-925, 988 N.E.2d 913, ¶ 23-24 (1st Dist.), quoting D.A.B.E., Inc. at ¶ 19
(reasoning that because the court must presume “ ‘the General Assembly intended for the
entire statute to be effective,’ ” it must read R.C. 4511.195 divisions (D) and (F) together,
instead of division (F) alone as the parties suggested, to conclude that R.C. 4511.195
provides the court with discretion in the event of an acquittal to charge expenses and fees to
either the arrested person or specified governmental party). Indeed, it would be strange for
someone to be found guilty of driving under an OVI suspension when they didn’t drive at all.
See Coleman v. Progressive Preferred Ins. Co., 1st Dist. Hamilton No. C-070779, 2008-
Ohio-3568, ¶ 15 (“[W]e should interpret statutes to prevent an absurd result.”); State ex rel.
Haines v. Rhodes, 168 Ohio St. 165, 151 N.E.2d 716 (1958), paragraph two of the syllabus
(“The General Assembly is presumed not to intend any ridiculous or absurd results from the
operation of a statute which it enacts, and, if reasonably possible to do so, statutes must be
construed so as to prevent such results.”).
{¶15} Wandering further down the page of R.C. 4510.14 shows that the General
Assembly invoked “driving” and “operate” synonymously. After R.C. 4510.14(B), the statute
employs the phrase “driving under OVI suspension” three more times in R.C. 4510.14(B)(1)-
(3). Similarly, the statute reiterates the term “operate,” noting for sentencing purposes that
“[if] the vehicle the offender was operating at the time of the offense is registered in the
OHIO FIRST DISTRICT COURT OF APPEALS
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offender’s name,” certain repercussions follow. See R.C. 4510.14(B)(1)(d), (2)(d), (3)(d).
This carries significance, as the legislature had the option to distinguish between “driving”
and “operate,” and yet it chose not to, instead seemingly employing them interchangeably
throughout R.C. 4510.14. See Ohio River Pipe Line LLC v. Henley, 144 Ohio App.3d 703,
708, 761 N.E.2d 640 (5th Dist.2001) (reasoning that because the legislature failed to
distinguish between the terms “oils” and “petroleum,” instead using them “interchangeably”
throughout R.C. Chapter 1723, “petroleum” for purposes of R.C. 1723.02 included both
naturally occurring substances and petroleum by-products). Accordingly, both the basic
structure of R.C. 4510.14 and its interchangeable use of “driving” and “operate” suggest that
driving under an OVI suspension necessitates the offender actually drive the vehicle at some
point.
C.
{¶16} Another statutory construction canon (in pari materia) reinforces this
interpretation of the term “operate.” In re Application of Duke Energy Ohio, Inc., 150 Ohio
St.3d 437, 2017-Ohio-5536, 82 N.E.3d 1148, ¶ 27 (“The in pari materia rule may be used to
interpret a statute but only when some doubt or ambiguity exists.”). Under this rule,
“ ‘statutes relating to the same matter or subject, although passed at different times and
making no reference to each other, are in pari materia and should be read together to
ascertain and effectuate if possible the legislative intent,’ ” based on the assumption “that
the General Assembly, in enacting a statute, is assumed to have been aware of other
statutory provisions concerning the subject matter of the enactment even if they are found
in separate sections of the Code.” Meeks v. Papadopulos, 62 Ohio St.2d 187, 191-192, 404
N.E.2d 159 (1980), quoting State ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 466, 132
OHIO FIRST DISTRICT COURT OF APPEALS
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N.E.2d 191 (1956). Accordingly, while not controlling, we may consider R.C.
4511.01(HHH)’s definition of “operate” to lend guidance.
{¶17} And, we pause to note, we are not the first to do so. The Ohio Supreme Court
itself turned to R.C. 4511.01(HHH) in Doe v. Marlington Local School Dist. Bd. of Edn., 122
Ohio St.3d 12, 2009-Ohio-1360, 907 N.E.2d 706, to shed light on the meaning of the
undefined term “operation” in R.C. 2744.02(B)(1), an exception to immunity for negligent
operation of a motor vehicle. After noting the purposes supporting the broad interpretation
established in Cleary did not apply to R.C. 2744.02, the court turned to R.C.
4511.01(HHH)’s definition of “operate,” citing Meeks in support. Id. at ¶ 22, 24 (“The
definition of ‘operate’ in R.C. 4511.01 is also useful in gleaning the meaning of ‘operation’ in
R.C. 2744.02(B)(1).”). From the court’s perspective, this was a logical step since R.C.
2744.01(E) (R.C. Chapter 2744’s section for definitions) already explicitly pointed to R.C.
4511.01 for the definition of “motor vehicle” in R.C. Chapter 2744. Id. at ¶ 24. Ultimately,
the court interpreted “operation” consistent with R.C. 4511.01(HHH)’s definition,
concluding that “the exception to immunity in R.C. 2744.02(B)(1) for the negligent
operation of a motor vehicle pertains only to negligence in driving or otherwise causing the
vehicle to be moved.” Id. at ¶ 26.
{¶18} Similarly, the Eleventh District in State v. Miranda, 11th Dist. Lake No. 2014-
L-020, 2014-Ohio-5312, considered R.C. 4511.01(HHH) when interpreting the undefined
phrase “while operating” for purposes of aggravated vehicular assault under R.C.
2903.08(A)(1)(a). Id. at ¶ 22. Invoking in pari materia to do so, the Eleventh District noted
R.C. 4511.01 was particularly relevant in its inquiry as “one of the elements of Aggravated
Vehicular Assault is that the serious physical harm must be proximately caused by a
OHIO FIRST DISTRICT COURT OF APPEALS
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violation of R.C. 4511.19(A) [OVI], to which R.C. 4511.01(HHH) is applicable.” Id. The
Eleventh District ultimately found sufficient evidence existed for the defendant’s aggravated
vehicular assault since he was the proximate cause of “serious physical injury to another,
i.e., he caused the harm while ‘hav[ing] caused’ the vehicle to move.” Id. at ¶ 26.
{¶19} Likewise, it makes sense to read R.C. 4511.01(HHH) together with R.C.
4510.14 to divine the meaning of “operate” here. Both R.C. 4511.19, to which R.C.
4511.01(HHH) applies, and R.C. 4510.14 relate to operating a vehicle while under certain
circumstances (i.e., under the influence of drugs or alcohol, on the one hand, or under an
OVI suspension, on the other). See Sheet Metal Workers’ Internatl. Assn., Local Union No.
33 v. Gene’s Refrigeration, Heating & Air Conditioning, Inc., 122 Ohio St.3d 248, 2009-
Ohio-2747, 910 N.E.2d 444, ¶ 38 (“Statutes and regulations that relate to the same general
subject matter may be read in pari materia in order to discover and carry out legislative
intent.”); Meeks, 62 Ohio St.2d at 192, 404 N.E.2d 159, quoting Weygandt, 164 Ohio St. at
466, 132 N.E.2d 191 (“ ‘[S]tatutes relating to the same matter or subject * * * are in pari
materia and should be read together[.]’ ”). Further, comparable to Doe and Miranda, R.C.
4510.14 expressly references R.C. Chapter 4511. Doe at ¶ 24 (R.C. 2744. 01(E) explicitly
pointing to R.C. 4511.01 for the definition of “motor vehicle” in R.C. Chapter 2744);
Miranda at ¶ 22 (R.C. 2903.08 designating the serious physical harm be proximately caused
by a R.C. 4511.19 violation). Specifically, R.C. 4510.14(A) names R.C. 4511.19 as an element
of driving under an OVI suspension, prohibiting the operation of a vehicle by a person
whose driver’s license “has been suspended under section 4511.19” (or another of the listed
code sections).
OHIO FIRST DISTRICT COURT OF APPEALS
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{¶20} Additionally, R.C. 4511.01(HHH)’s definition—“to cause or have caused
movement”—better comports with the natural understanding of “operate” than the prior
judicial interpretation. See State v. Odd, 5th Dist. Stark No. 2006-CA-00336, 2007-Ohio5813, ¶ 33 (“Since the meaning of ‘operate a motor vehicle’ to the average ordinary person is
consistent with the definition found in R.C. 4511.01(HHH), we believe that definition is
applicable to a violation of R.C. 2921.331 [failure to comply with order or signal of a police
officer].”). And the legislative intent behind the 2004 modifications bolsters such a notion
that “operate” no longer equates to simple physical control of the vehicle (fully consistent
with the equating of “driving” and “operating” in R.C. 4510.14). As noted above, not only
did the General Assembly define “operate,” but it created a new offense, physical control
under R.C. 4511.194. Essentially, these statutory modifications “eliminated ‘drunk radio
listeners, or people who use their cars as a four-wheeled, heated hotel room’ from being
convicted of OVI.” Anderson, 1st Dist. Hamilton No. C-160920, 2017-Ohio-8641, at ¶ 15,
quoting Gill, 70 Ohio St.3d at 157-158, 637 N.E.2d 897 (Pfeifer, J., dissenting). And thus, if
officers found an individual sleeping in his or her vehicle on the side of the highway, he or
she might be convicted of OVI because the trier of fact could infer that the vehicle
necessarily moved to that location. But if the person decided to sleep in the parking lot of a
bar or similar establishment, then a physical control violation is the only option, unless
circumstantial evidence of movement exists. See Schultz, 8th Dist. Cuyahoga No. 90412,
2008-Ohio-4448, at ¶ 25 (“[A] person who is found passed out in his vehicle on the side of
the highway may be convicted of an OVI because a jury could infer that the vehicle was
moved to that location. However, if a person decides to ‘sleep it off’ in the parking lot of the
OHIO FIRST DISTRICT COURT OF APPEALS
15
bar where the person drank, the person could be convicted only of a physical control
violation, unless there is evidence of movement.”).
{¶21} Stated differently, this new physical control offense essentially codified
portions of Gill’s judicial definition of “operate,” defining “physical control” as “ ‘being in the
driver’s position of the front seat of a vehicle and having possession of the vehicle’s ignition
key or other ignition device.’ ” Barnard, 5th Dist. Stark No. 2010-CA-00082, 2010-Ohio5345, at ¶ 27, quoting Schultz at ¶ 21; see R.C. 4511.194(A)(2); Miranda, 11th Dist. Lake No.
2014-L-020, 2014-Ohio-5312, at ¶ 25 (“For situations where a person had control but did
not cause movement, the crime of Having Physical Control of a Vehicle While Under the
Influence of Alcohol was created.”). As a result, “operate” under R.C. 4511.01(HHH)
encompasses only conduct that actually causes a vehicle to move. See Miranda at ¶ 25
(“R.C. 4511.01(HHH) was enacted to limit the sort of conduct circumscribed by operation of
a motor vehicle to that conduct which actually causes a vehicle to move.”); Anderson at ¶
24-34 (detailing analysis of “operate” under R.C. 4511.01(HHH)).
D.
{¶22} Beyond the historical and context-based reasons, Gill and Cleary do not
control for another reason—they premised their results on a purpose-driven analysis of R.C.
4511.19 that sheds no light on R.C. 4510.14 (the dissent references a “judicially-created
definition of ‘operate’ found in R.C. 4510.14(A),” but of course the Supreme Court in this
pair of cases did not interpret that statutory provision). Those cases lent a broad
perspective to “operate” for purposes of OVI situations in an acknowledgment of the
obvious dangers of an intoxicated person behind the wheel who could set the car in motion
(perhaps even inadvertently). See Cleary, 22 Ohio St.3d at 201, 490 N.E.2d 574 (“A person
OHIO FIRST DISTRICT COURT OF APPEALS
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under the influence of alcohol or any drug of abuse behind the wheel of a motor vehicle is
the obvious hazard at which the statute is directed whether the vehicle is stationary or in
motion.”). The simple act of putting a key in the ignition and running the engine directly
related to the physical functioning of the car, carrying the potential for causing movement.
Accordingly, the Ohio Supreme Court found a broad interpretation of operate encompassing
these acts necessary to implement the statute’s intended purpose, combatting the dangers of
driving under the influence.
{¶23} But the same close relationship does not exist between driving a motor vehicle
under the influence and driving under an OVI suspension, and the Supreme Court advised
us to be mindful of this consideration in Doe. See Doe, 122 Ohio St.3d 12, 2009-Ohio-1360,
907 N.E.2d 706, at ¶ 22 (declining to extend Cleary’s interpretation of “operate” to R.C.
2744.02(B)(1)’s exception to immunity for the negligent operation of a motor vehicle since
the “same close relationship does not exist between driving a motor vehicle and supervising
the conduct of the passengers in the motor vehicle.”). R.C. 4510.14 does not attempt to
combat the hazard of an intoxicated person behind the wheel. In fact, intoxication is not
even an element of a driving under an OVI suspension offense, but instead R.C. 4510.14(A)
necessitates a suspended license. See State v. Owens, 3d Dist. Allen Nos. 1-18-48 and 1-18-
49, 2019-Ohio-440, ¶ 8 (“[T]he State must prove beyond a reasonable doubt that a
defendant (1) operated (2) any motor vehicle (3) on a public road or highway (4) during the
period of a license suspension[.]”). Consequently, the danger of a person driving under an
OVI suspension (i.e., a person driving with a suspended license) does not occur until the
vehicle is actually in motion (which comports with our context-driven discussion above).
Moreover, since intoxication is not an element of the offense, no reason exists to presume
OHIO FIRST DISTRICT COURT OF APPEALS
17
that the driver is impaired. Accordingly, the very hazard Gill and Cleary intended to
prevent—i.e., an intoxicated person even potentially moving the vehicle—through a broad
interpretation does not exist for purposes of R.C. 4510.14. Therefore, the policy-based
assessment provided by the Supreme Court in Doe further militates against reliance on
those decisions in this context.
{¶24} The state, however, urges us to follow the Second District’s decision in
Cochran, which seemingly reached a contrary result by indicating that “the definition of
‘operate’ in R.C. 4511.01(HHH) does not apply to or limit the violation of R.C. 4510.16(A) of
which Defendant was convicted.” See Cochran, 2d Dist. Montgomery No. 22240, 2008-
Ohio-3612, at ¶ 26. However, the court’s reliance on Gill seems at odds with its earlier
recognition that R.C. 4511.01(HHH) superseded Gill, and in any event, the court’s
conclusion appears to be dicta. See Dayton v. Ahmad, 2d Dist. Montgomery No. 24165,
2011-Ohio-2302, ¶ 66 (Grady, P.J., concurring) (noting that the facts in Cochran “logically
supported a conclusion that the defendant had operated the vehicle for purposes of R.C.
4511.01(HHH).”). We decline to follow the Second District’s conclusion in light of those
points and the facts that: (1) the court considered a different statutory section, R.C.
4510.16(A), and thus it had no occasion to analyze R.C. 4510.14(A); (2) the court did not
consider the implications of in pari materia; and (3) the court did not analyze the purposes
behind Gill and Cleary as compared to R.C. 4510.14(A). We also see no case, nor has the
dissent presented one, clinging to the “judicial definition” of Gill and Cleary to hold
someone criminally liable for “operating” a vehicle without actually setting it in motion
since the General Assembly promulgated R.C. 4511.01(HHH).
OHIO FIRST DISTRICT COURT OF APPEALS
18
{¶25} Accordingly, in interpreting R.C. 4510.14(A) in light of our discussion above,
we hold that “operate” for purposes of driving under an OVI suspension necessitates
evidence that the defendant cause or had caused movement of the vehicle. See Anderson,
1st Dist. Hamilton No. C-160920, 2017-Ohio-8641, at ¶ 16 (“In defining ‘operate,’ R.C.
4511.01(HHH) employs both the present tense (‘to cause’) and the past tense (to ‘have
caused’) in relation to the movement of a vehicle. The past tense indicates an action already
completed.”). As always, this element may be proved by circumstantial or direct evidence.
Id.
E.
{¶26} With this backdrop in mind, we turn to the case at hand, evaluating whether
the state provided sufficient evidence to prove Ms. Wilson caused or had caused movement
of the vehicle. On appeal, the state itself does not contend the vehicle moved, an
appropriate concession in light of the lack of evidence on this point.
{¶27} At trial, Officer Hains recalled the events of that day, discovering Ms. Wilson
sleeping in the parked vehicle with three others, positioned in the driver’s seat, with the key
in the ignition, and the engine running. However, absent from his testimony, were any
“additional facts” illustrating an “inference of movement.” See Anderson at ¶ 24. In fact,
Officer Hains testified he did not recall any statements from Ms. Wilson concerning her
moving the vehicle, nor did any other neighbor or witness testify to observing as much. See
Anderson at ¶ 31 (“None of the firefighters and paramedics testified * * * that they had
observed [the defendant] driving the vehicle.”); Cleveland v. Dumas, 8th Dist. Cuyahoga
No. 99558, 2013-Ohio-4600, ¶ 16 (“On this record, there was * * * no evidence that the
defendant had driven the vehicle.”). Further, the state offered no evidence that Ms. Wilson,
OHIO FIRST DISTRICT COURT OF APPEALS
19
rather than one of the other three passengers, drove the vehicle to the residential home in
the first place. Therefore, on the record before us, we cannot hold the state provided
sufficient evidence Ms. Wilson operated the vehicle here.
Outcome: Absent direct or circumstantial evidence that Ms. Wilson operated the vehicle,
an essential element of a driving under an OVI suspension offense under R.C. 4510.14(A),no rational trier of fact could have found the state proved each element of the offensebeyond a reasonable doubt. Accordingly, we sustain Ms. Wilson’s sole assignment of error.
We reverse the trial court’s judgment and discharge Ms. Wilson from further prosecution.
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