[Cite as State v. Alexander,
2016-Ohio-34.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
DARKE COUNTY
STATE OF OHIO :
: Appellate Case No. 2015-CA-6
Plaintiff-Appellee :
: Trial Court Case No. 13-TRD-001-642
v. :
: (Criminal Appeal from
DAVID H. ALEXANDER : Darke County Municipal Court)
:
Defendant-Appellant :
:
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OPINION
Rendered on the 8th day of January, 2016.
...........
JESSE J. GREEN, Atty. Reg. No. 0040265, Darke County Municipal prosecutor’s Office,
504 South Broadway Street, 3rd Floor, Greenville, Ohio 45331
Attorney for Plaintiff-Appellee
BARRY S. GALEN, Atty. Reg. No. 0045540, 111 West First Street, Suite 519, dAyton,
Ohio 45402
Attorney for Defendant-Appellant
.............
HALL, J.
{¶ 1} David Alexander appeals from the decision of the Darke County Municipal
Court denying his Civ.R. 60(B) motion to vacate his conviction for speeding. We conclude
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that the decision is against the weight of the evidence, so we reverse.
I. Background
{¶ 2} On the night of March 11, 2013, a Darke County police officer pulled over a
car for speeding. The driver told the officer that his name was David Alexander, and he
told the officer that he had no proof of insurance. The officer issued “David Alexander” a
ticket for speeding. A week-and-a-half later, on March 22, someone presented the Darke
County Municipal Court with proof of insurance. The following month, on April 18, the
ticket was paid by Alexander’s good friend Derek Jasper, or more specifically, by Jasper’s
girlfriend, Hilary Fitzgerald. The case was disposed of as a “guilty waiver.” Six months
later, Alexander was stopped for a traffic offense and was told that his license had been
suspended for the April speeding conviction and failure to show proof of insurance.
Alexander claimed surprise. Alexander had bought the car that was stopped for speeding
specifically for Jasper, and though Alexander was an owner, Alexander rarely, if ever,
drove it because he had his own vehicle.
{¶ 3} Alexander moved to get the speeding conviction vacated under Civ.R.
60(B)(1). In an accompanying affidavit, Alexander avers that he was not the driver of the
vehicle that March night and that he did not pay the fine or otherwise plead guilty to
speeding. He also avers that the Darke County Sheriff told him that the driver did not
present a driver’s license but told the officer that his name was David Alexander and that
his birth date was October 4, 1987. Alexander points out that he was actually born in
1985. Alexander claims that Jasper passed himself off as David Alexander. The trial court
summarily denied the Civ.R. 60(B) motion without a hearing. Alexander appealed, and
we, concluding that the trial court abused its discretion by not holding an evidentiary
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hearing, reversed and remanded for a hearing. State v. Alexander, 2d Dist. Darke No.
2014-CA-5, 2014-Ohio-4859.
{¶ 4} At the hearing on remand, Jasper, Fitzgerald, and Alexander testified.
Fitzgerald testified that an otherwise unidentifiable man named P.J. had used the car to
pick her up from work and that it was P.J. who was driving when the car was stopped for
speeding. She said that she later went with Jasper and paid the ticket using her debit
card. Jasper too testified that it was he and Fitzgerald who paid the ticket. He said that
he did not know this P.J. but that it was not uncommon for someone to use the car to pick
up Fitzgerald from work. Jasper said that he did not know who was driving the car that
March night, but he said that he did not believe that it was Alexander, because Alexander
had his own vehicle. Alexander testified too, not surprisingly, that he was not the one
driving that night.
{¶ 5} The trial court overruled the Civ.R. 60(B) motion. Alexander appealed.
II. Analysis
{¶ 6} Alexander’s sole assignment of error alleges that the trial court erred by
overruling his Civ.R. 60(B) motion. The state did not file a brief in opposition.
{¶ 7} A trial court’s Civ.R. 60(B) decision is reviewed for an abuse of discretion.
Griffey v. Rajan, 33 Ohio St.3d 75, 77,
514 N.E.2d 1122 (1987). “ ‘Abuse of discretion’
has been defined as an attitude that is unreasonable, arbitrary, or unconscionable.”
(Citation omitted.) AAAA Enterprises, Inc. v. River Place Community Urban
Redevelopment Corp.,
50 Ohio St.3d 157, 161,
553 N.E.2d 597 (1990). “A decision is
unreasonable if there is no sound reasoning process that would support that decision.”
Id.
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{¶ 8} “ ‘To prevail on a motion brought under Civ.R. 60(B), the movant must
demonstrate that: (1) the party has a meritorious defense or claim to present if relief is
granted; (2) the party is entitled to relief under one of the grounds stated in Civ.R. 60(B)(1)
through (5); and (3) the motion is made within a reasonable time, and, where the grounds
of relief are Civ.R. 60(B)(1), (2) or (3), not more than one year after the judgment, order
or proceeding was entered or taken.’ ” State v. Minne, 2d Dist. Montgomery No. 23390,
2010-Ohio-2269, ¶ 16, quoting GTE Automatic Elec., Inc. v. ARC Industries, Inc.,
47 Ohio
St.2d 146,
351 N.E.2d 113 (1976), paragraph two of the syllabus. In our decision
remanding the case for a hearing, we said of Alexander’s motion:
Here, Alexander’s Civ.R. 60(B) motion alleged operative facts that
could constitute mistake under Civ.R. 60(B)(1). Specifically, Alexander
claims that Jasper caused the citing officer … and the State to mistakenly
believe that Alexander was the driver of the vehicle. Alexander also claims
that Jasper caused the State and the trial court to mistakenly believe that
he paid the fine and admitted guilt. In support of his argument, Alexander
provided an affidavit averring misinformation on the citation and Jasper’s
exclusive use of the vehicle that was stopped for speeding. …
The veracity of Alexander’s allegations is uncertain from the record.
However, if it can be established that Jasper fraudulently identified himself
and acted as Alexander, Alexander would have a potentially meritorious
defense to the conviction.
Alexander, 2014-Ohio-4859, at ¶ 17-18.
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{¶ 9} Alexander contends that the trial court’s decision is against the manifest
weight of the evidence, which, he says, shows that he was not driving the car when it was
stopped for speeding. We agree. While the three witnesses disagreed on many things at
the hearing, they all agreed that Alexander was not driving the car that night. Fitzgerald
testified that she was in the vehicle when it was stopped and that a man named P.J. was
driving. Jasper testified that he doubted Alexander was driving because Alexander had
his own car. And Alexander, of course, testified that he was not driving. The trial court
justified its decision this way:
[T]here was no testimony as to the defendant’s whereabouts on the date
and time of the ticket. The ticketing officer did not testify as to who he
actually ticketed. The ticketing officer was present in the courtroom and was
subpoenaed to testify but was never called to the stand by either party. The
testimony presented was conflicting in nature and the Court finds that the
testimony of Derek Jasper was more believable than David Alexander.
Judgment Entry (Feb. 26, 2015). Although the evidence does not show where Alexander
was that night, one could not find from the evidence that Alexander was driving the car.
Indeed, there is essentially no evidence that puts him in the driver’s seat of the car that
night. Thus the trial court’s implicit finding to the contrary is not supported by competent
and credible evidence, and we need not defer to it. See Seasons Coal Co. v. Cleveland,
10 Ohio St.3d 77, 80,
461 N.E.2d 1273 (1984).
{¶ 10} After looking at this case the second time around, however, we do not think
that the primary issue in this appeal is whether Alexander was driving. Instead, the critical
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issue is whether he participated in paying the ticket knowing that his name was on it.
Traffic Rule 13(D)(3) provides that “[r]emittance of the fine and costs to the traffic
violations bureau by any means other than personal appearance by the defendant at the
bureau constitutes a guilty plea and waiver of trial whether or not the guilty plea and
waiver of trial provision of the ticket are signed by the defendant.” A Staff and Committee
note to the rule explains that by remitting the fine and costs it may be reasonably assumed
that the offender intends to plead guilty and waive trial. 1975 Staff and Committee Note,
Traf.R. 13.1 Consequently if Alexander knew his name was on the ticket and Alexander
directed Jasper to pay it, his conviction is likely valid, even if he (Alexander) was not
driving.
{¶ 11} At the time the ticket was issued, Alexander was insured under an SR-22
bond, which covers only the individual named on the policy. According to the trial court,
though the ticket was not paid until April 18, proof of the bond was shown to the court on
March 22. Jasper’s testimony about how the ticket was taken care of differs from that of
Alexander. Jasper testified that Alexander called him and asked him to pay the ticket,
1 The note, written for a prior version of the rule, says:
Rule 13(D)(2) is a new provision which permits a person charged with an
offense which can be processed in the violations bureau to sign the guilty
plea and waiver of trial provision of the ticket and mail the ticket and a check
or money order for the amount of the fine and costs to the violations bureau.
The section provides further that the remittance by mail of the fine and costs
constitutes a guilty plea and trial waiver whether or not the ticket is signed
by defendant. When the offender remits the specified fine and costs by mail
without signing the plea and waiver, it is a reasonable assumption that the
failure to sign was an inadvertence. The intent of the offender is amply
demonstrated by the remittance. No useful purpose would be served by the
expenditure of time and effort to secure the completion of the form under
those circumstances.
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giving Jasper his bond card to present. As to whether Alexander knew that the ticket was
in his name, Jasper’s testimony conflicts. During direct-examination, Jasper said that
Alexander “told me that it was a ticket in his name.” (Tr. 27). But on cross, Jasper said
that Alexander did not explicitly tell him that it was his ticket:
Q. You go over to David Alexander’s house, you get the insurance card from
him and he tells you to pay this ticket, correct?
A. Right.
Q. What’s your assumption? That it’s his ticket, right?
A. That ticket occurred, right.
Q. That it’s his ticket.
A. Right.
Q. Is that what he told you?
A. No, he didn’t tell me that.
(Tr. 35). Alexander testified that it was Jasper who came to him. Alexander said that
Jasper told him that he (Jasper) had been cited for speeding and needed to show proof
of insurance. Alexander said that he gave his bond card to Jasper, telling Jasper that it
probably would not help, because the SR-22 bond did not cover the car. That was the last
that Alexander heard of the matter until later in the year.
{¶ 12} We think that the evidence weighs against finding that Alexander directed
Jasper to pay the ticket or knew that the ticket was in his name. It is difficult to believe
that Jasper was so willing to pay someone else’s ticket. It is even more difficult to believe
that Jasper’s girlfriend, who actually paid it, would be so willing. As we said earlier, there
is no evidence that Alexander was the one driving that night. Although there is no direct
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evidence that Jasper was driving either, there is strong circumstantial evidence of this
fact. The car was de facto Jasper’s. And if he was driving, Jasper had a strong motive for
passing himself off as Alexander: at the time, Jasper did not have a valid driver’s license
or insurance. This would explain why Jasper readily took responsibility for the ticket and
why Fitzgerald, Jasper’s girlfriend, paid it. Moreover, we find it incredulous that a casual
driver known only as “P.J.” would know Alexander was a titled owner, or be able to give
Alexander’s birthdate when stopped. Of course, who was driving, and whether they were
speeding has to be proved at a trial on the merits. At this stage, Alexander has only shown
that he is entitled to relief from the speeding conviction.
{¶ 13} Given the evidence, the trial court’s decision overruling the Civ.R. 60(B)
motion is unreasonable and against the manifest weight of the evidence.
{¶ 14} The sole assignment of error is sustained.
III. Conclusion
{¶ 15} The trial court’s judgment overruling the Civ.R. 60(B) motion is reversed. If
Civ.R. 60(B) is satisfied, the prior judgment is ordinarily vacated pending a trial on the
merits. See State ex rel. Citizens for Responsible Taxation v. Scioto Cty. Bd. Of Elections,
67 Ohio St.3d 134, 136,
616 N.E.2d 869 (1993). Accordingly, the April 18, 2013 speeding
conviction is vacated, and this case is remanded for trial.
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FROELICH, P.J., and FAIN, J., concur.
Copies mailed to:
Jesse J. Green
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Barry S. Galen
Hon. Julie L. Monnin
