State v. McCraw

[Cite as State v. McCraw, 

.]


STATE OF OHIO                    )                   IN THE COURT OF APPEALS
                                 )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                 )

STATE OF OHIO                                        C.A. No.       14CA0009-M

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
MARK MCCRAW                                          COURT OF COMMON PLEAS
                                                     COUNTY OF MEDINA, OHIO
        Appellant                                    CASE No.   13CR0209

                                DECISION AND JOURNAL ENTRY

Dated: September 21, 2015



CARR, Judge.

        {¶1}    Appellant Mark McCraw appeals his conviction in the Medina County Court of

Common Pleas. This Court affirms.

                                                I.

        {¶2}    McCraw was indicted on two counts of driving under the influence of drugs or

alcohol (“OVI”), having previously been convicted of or pleaded guilty to five or more such

violations within twenty years. Both offenses constituted felonies of the fourth degree.   The

matter proceeded to trial before the jury who found McCraw guilty of both counts. In addition,

the jury made a special finding as to each count that McCraw had five or more OVI convictions

in the past twenty years. At sentencing, the trial court found the two counts to be allied offenses

of similar import. The State elected sentencing on the second count, and the trial court sentenced

McCraw accordingly. McCraw appealed and raises one assignment of error for review.
                                                  2


                                                  II.

                                   ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED IN [THAT] THE CONFRONTATION CLAUSE
       OF THE SIXTH AMENDMENT AND/OR THE DUE PROCESS CLAUSE OF
       THE FOURTEENTH AMENDMENT REQUIRES PROOF OF PRIOR
       CONVICTIONS TO BE MADE THROUGH THE TESTIMONY OF A
       WITNESS, WHO IS THE KEEPER OF THOSE RECORDS, WHEN SUCH
       PROOF OF THESE RECORDS IS SUCH THAT IT WOULD SERVE AS
       PROOF OF AN ELEMENT OF THE OFFENSE OF [R.C.] 4511.19, WITHOUT
       SUCH     TESTIMONY,    [R.C.]   2945.75(B)   BECOMES       AN
       UNCONSTITUTIONAL APPLICATION FOR PROVING A PRIOR
       CONVICTION.

       {¶3}    McCraw argues that admission of certified records from the Ohio Registrar of

Motor Vehicles, evidencing his multiple prior OVI convictions, violated the Confrontation

Clause, requiring reversal of his conviction. In addition, he argues that application of R.C.

2945.75(B)(2), which permits proof of a prior conviction via certified copy of the registrar’s

record, is unconstitutional. Because McCraw forfeited these alleged errors by failing to properly

raise them in the trial court, this Court declines to address them.

       {¶4}    Immediately prior to trial, McCraw made an oral motion to dismiss the first count

in the indictment because the bill of particulars referred to a nonexistent code section. While

discussing this motion, there was a passing reference to constitutional issues, but McCraw did

not develop them. McCraw did not raise any constitutional challenges in his motion to dismiss.

       {¶5}    The failure to raise a constitutional issue at the trial level forfeits the right to make

a constitutional argument on appeal. State v. Awan, 

 (1986), syllabus. While a

defendant who forfeits such an argument still may argue plain error on appeal, this court will not

sua sponte undertake a plain-error analysis if a defendant fails to do so. See State v. Hairston,

9th Dist. Lorain No. 05CA008768, 

. Because McCraw has not argued
                                                 3


plain error on appeal, this Court will not create such an argument on his behalf. See 

McCraw’s assignment of error is overruled.

                                                III.

       {¶6}    McCraw’s assignment of error is overruled. The judgment of the Medina County

Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       DONNA J. CARR
                                                       FOR THE COURT
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HENSAL, P. J.
SCHAFER, J.
CONCUR.


APPEARANCES:

R. PAUL CUSHION, Attorney at Law, for Appellant.

DEAN HOLMAN, Prosecuting Attorney, and MATTHEW A. KERN, Assistant Prosecuting
Attorney, for Appellee.