[Cite as State v. Lopez,
2024-Ohio-4967.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO,
CASE NO. 13-24-07
PLAINTIFF-APPELLEE,
v.
JUAN V. LOPEZ, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
CASE NO. 13-24-08
PLAINTIFF-APPELLEE,
v.
JUAN V. LOPEZ, OPINION
DEFENDANT-APPELLANT.
Appeals from Tiffin-Fostoria Municipal Court
Trial Court Nos. TRC 2300037 ABCD
Judgments Affirmed in Part, Reversed in Part, and Cause Remanded
Date of Decision: October 15, 2024
APPEARANCES:
Michael G. Aird and Michael Stahl for Appellant
Case No. 13-24-07, 13-24-08
WALDICK, J.
{¶1} Defendant-appellant, Juan Lopez (“Lopez”), brings these appeals from
the January 31, 2024 judgments of the Tiffin-Fostoria Municipal Court. On appeal,
Lopez argues that there was insufficient evidence presented to convict him of, inter
alia, OVI, that his convictions were against the manifest weight of the evidence,
that the trial court abused its discretion by permitting the State to recall a deputy to
testify over objection, and that the State committed prosecutorial misconduct during
closing arguments. For the reasons that follow, the judgments of the trial court are
affirmed in part, and reversed in part.
Background
{¶2} On January 6, 2023, Lopez was charged in trial court case
23TRC00037(A)-(D) with OVI in violation of R.C. 4511.19(A)(1)(a), OVI with a
Refusal in violation of R.C. 4511.19(A)(2)(a), Driving Under Suspension in
violation of R.C. 4510.111(A)1, and Failure to Yield in violation of R.C.
4511.43(A). In addition, a criminal complaint was filed that same date in trial court
case 23CRB00019 for Failure to Disclose in violation of R.C. 2921.29(A)(1). All of
the charges arose from the same incident. Lopez pled not guilty to the charges.
1
Lopez was originally charged with Driving Under Suspension in violation of R.C. 4510.11; however, that
charge was later amended to a violation of R.C. 4510.111(A).
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Case No. 13-24-07, 13-24-08
{¶3} On April 20, 2023, Lopez proceeded to trial on all the charges. The trial
was bifurcated, with the OVIs and the Failure to Disclose charges being tried to a
jury, while the Failure to Yield and Driving Under Suspension charges were tried
to the bench. Lopez was found guilty of all charges.
{¶4} On January 31, 2024, Lopez was sentenced to, inter alia, 180 days in
jail on the OVI charge, with 150 days suspended. That same day, judgment entries
were filed memorializing Lopez’s convictions. It is from these judgments that Lopez
appeals, asserting the following assignments of error for our review.2
First Assignment of Error
The trial court abused its discretion by allowing the State to recall
Deputy Cantu, over objection, to add further testimony after he
had been released and had the opportunity to speak with the
prosecutor.
Second Assignment of Error
The State committed prosecutorial misconduct when it
improperly suggested that Mr. Lopez had a burden to prove his
innocence.
Third Assignment of Error
The convictions in this case are insufficient of evidence [sic] and
the manifest weight of the evidence does not support the jury’s
verdict.
2
We note that Lopez has a petition for post-conviction relief pending in the trial court. Lopez requested a
stay of this appeal until the petition was resolved; however, we denied the stay as we have concurrent
jurisdiction in these circumstances pursuant to App.R. 6.
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{¶5} For ease of discussion, we elect to address the assignments of error out
of the order in which they were raised. Further, we note that he State did not file a
brief in this matter. The Appellate Rules state: “if an appellee fails to file his brief
within the time provided by this rule, or within the time as extended, he will not be
heard at oral argument … and in determining the appeal, the court may accept the
appellant’s statement of the facts and issues as correct and reverse the judgment if
appellant’s brief reasonably appears to sustain such action.” App. R. 18(C).
Third Assignment of Error
{¶6} In his third assignment of error, Lopez argues that there was insufficient
evidence presented to convict him of all charges, and that his convictions were
against the manifest weight of the evidence.
Standard of Review
{¶7} It is well established that “[t]he legal concepts of sufficiency of the
evidence and weight of the evidence are both quantitatively and qualitatively
different.” State v. Thompkins, 78 Ohio St.3d 380 (1997), paragraph two of the
syllabus.
{¶8} An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to 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. State v. Jenks, 61 Ohio
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St.3d 259 (1991), paragraph two of the syllabus. Consequently, “[t]he 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.” Id. “In deciding if the evidence was
sufficient, we neither resolve evidentiary conflicts nor assess the credibility of
witnesses, as both are functions reserved for the trier of fact.” State v. Jones, 2013-
Ohio-4775, ¶ 33.
{¶9} By contrast, when reviewing whether a verdict was against the manifest
weight of the evidence, the appellate court sits as a “thirteenth juror” and examines
the conflicting testimony. Thompkins at 387. In doing so, an appellate court must
review the entire record, weigh the evidence and all reasonable inferences, consider
the credibility of witnesses and determine whether, in resolving conflicts in the
evidence, the factfinder “clearly lost its way and created such a manifest miscarriage
of justice that the conviction must be reversed and a new trial ordered.”
Id.
Nevertheless, when assessing a manifest-weight challenge, a reviewing court must
allow the trier-of-fact appropriate discretion on matters relating to the credibility of
the witnesses. State v. DeHass,
10 Ohio St.2d 230, 231 (1967). When applying the
manifest weight standard, only in exceptional cases, where the evidence weighs
heavily against the conviction, should an appellate court overturn the trial court’s
judgment. State v. Hunter,
2011-Ohio-6524, ¶ 119.
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Controlling Statute(s)
{¶10} Lopez was convicted of OVI in violation of R.C. 4511.19(A)(1),
Driving Under Suspension in violation of R.C. 4510.111(A), Failure to Yield in
violation of R.C. 4511.43(A), and Failure to Disclose in violation of R.C.
2921.29(A)(1). These statutory subsections read as follows:
[OVI]
(A)(1) No person shall operate any vehicle, streetcar, or trackless
trolley within this state, if, at the time of the operation, any of the
following apply:
(a) The person is under the influence of alcohol, a drug of abuse, or a
combination of them.
[Driving Under Suspension]
(A) No person shall operate any motor vehicle upon a highway or any
public or private property used by the public for purposes of vehicular
travel or parking in this state whose driver's or commercial driver's
license has been suspended pursuant to section 2151.354, 2151.87,
2935.27, 3123.58, 4301.99, 4510.032, 4510.22, or 4510.33 of the
Revised Code.
[Failure to Yield]
(A) Except when directed to proceed by a law enforcement officer,
every driver of a vehicle or trackless trolley approaching a stop sign
shall stop at a clearly marked stop line, but if none, before entering
the crosswalk on the near side of the intersection, or, if none, then at
the point nearest the intersecting roadway where the driver has a view
of approaching traffic on the intersecting roadway before entering it.
After having stopped, the driver shall yield the right-of-way to any
vehicle in the intersection or approaching on another roadway so
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Case No. 13-24-07, 13-24-08
closely as to constitute an immediate hazard during the time the driver
is moving across or within the intersection or junction of roadways.
[Failure to Disclose]
(A) No person who is in a public place shall refuse to disclose the
person's name, address, or date of birth, when requested by a law
enforcement officer who reasonably suspects either of the following:
(1) The person is committing, has committed, or is about to commit a
criminal offense.
Evidence Presented
{¶11} Deputy Luke Cantu of the Seneca County Sheriff’s Office testified
that he was on duty in the early morning hours of January 6, 2023, in uniform and
in a marked patrol car. Deputy Cantu testified that around 3:00 a.m. on January 6,
2022, he observed a “silver 2010 Ford Fusion driving on Township Road 1029”
without its headlights on. (Tr. at 50). Deputy Cantu testified that the “vehicle then
failed to stop for the stop sign at Township Road 1029 and Township Road 1028.”
(Id.) Deputy Cantu then began following the vehicle and he observed it fail to stop
at another stop sign at Township Road 73. (Tr. at 50).
{¶12} Deputy Cantu testified that as he followed the vehicle he activated his
overhead lights. He testified he never lost sight of the vehicle. Deputy Cantu
testified that he observed the vehicle drive off the road and into the front yard of a
residence. He then observed a man he later identified as Lopez exiting the driver’s
“position” of the vehicle along with two dogs.
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{¶13} Deputy Cantu approached Lopez and asked Lopez for his name. Lopez
refused to provide it “[i]n an aggressive manner.” (Tr. at 53). Deputy Cantu asked
Lopez to walk toward his patrol vehicle, and Lopez did, “in an unstable, as in a side-
step manner.” (Id. at 52). Deputy Cantu thought that Lopez’s movement was
possibly indicative of impairment.
{¶14} Deputy Cantu testified that Lopez initially had his phone in his hand
and Lopez stated he was recording the interaction; however, Deputy Cantu told
Lopez to place the phone on the hood of the patrol vehicle for officer safety. Deputy
Cantu then instructed Lopez to stand with his back to the patrol vehicle. Deputy
Cantu explained that he was going to have Lopez perform standard field sobriety
tests; however, Lopez refused and stated that he had not done anything wrong and
was not driving. Deputy Cantu learned that the vehicle was registered to a “Thomas
Lopez” who did not match the physical description of Lopez.
{¶15} Deputy Cantu testified that during his interaction with Lopez, he
observed Lopez to have “bright, glossy eyes” and “an odor of intoxicating beverage
emanating from [his] person.” (Tr. at 53-54). Deputy Cantu testified that due to
Lopez’s appearance and behavior, he was detained and placed into Deputy Cantu’s
patrol vehicle. Around that time, Sergeant Weimerskirch of the Seneca County
Sheriff’s Office arrived on location to assist.
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Case No. 13-24-07, 13-24-08
{¶16} Deputy Cantu searched the vehicle he had seen Lopez driving and
located an open Michelob ULTRA can that was sitting in the center console cup
holder. The beer was half-full. Deputy Cantu testified that he later checked Lopez’s
driving record once he learned Lopez’s identity and he discovered that Lopez was
driving under suspension. (Tr. at 56).
{¶17} On cross-examination, Deputy Cantu clarified that Lopez did not
“roll” through the stops sings, he “flew by them.” (Tr. at 59). When asked if there
were any recordings of the incident, Deputy Cantu testified that they did not have
dash cameras in their vehicles at the time of the incident, and that he just got a body
camera “about a month ago.” (Tr. at 68). Deputy Cantu testified that Lopez was
taken to the Sheriff’s Office and offered a breath test, but Lopez refused. Notably,
Deputy Cantu testified that he had never met Lopez before so he did not know what
Lopez’s eyes or his gait were like normally.
{¶18} The State next presented the testimony of Sergeant Chris
Weimerskirch of the Seneca County Sheriff’s Office. Sergeant Weimerskirch
testified that he was called to assist in the traffic stop of the man who was later
identified as Lopez. Sergeant Weimerskirch testified that when he arrived to assist
with the situation, Lopez was already in the back of Deputy Cantu’s patrol vehicle.
Sergeant Weimerskirch testified that he tried to converse with Lopez to get
information out of him and to find someone to get his dogs, but Lopez was
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Case No. 13-24-07, 13-24-08
“argumentative.” (Tr. at 80). Sergeant Weimerskirch noted that when he stuck his
head in the window of the patrol car to talk to Lopez, he could “smell a strong odor
of alcohol emitting form the back of the patrol vehicle.” (Id.)
{¶19} On cross-examination, Sergeant Weimerskirch testified that he did not
have a body camera at the time of the incident. He also testified that only a few
patrol vehicles had dash cameras.
Analysis
{¶20} In arguing that the evidence did not support his convictions, Lopez
contends that the evidence did not establish, or even “suggest,” that he was impaired
in this case. He argues that the fact that he was uncooperative did not suggest
impairment. He argues that there was not body camera or dash camera footage
illustrating his condition, and that the officers’ testimony was not credible. We will
address each of his convictions in turn.
{¶21} With regard to his Driving Under Suspension convictions, Lopez
argues that there was no evidence that his license was under suspension at the time
of the incident; however, a certified driving record was entered into evidence
indicating that Lopez’s license had been suspended indefinitely on November 11,
2022. Thus Lopez’s argument is inaccurate and is unsupported by the evidence.
Simply put, evidence was presented from which a reasonable factfinder could
conclude beyond a reasonable doubt that Lopez was operating the vehicle on the
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Case No. 13-24-07, 13-24-08
date in question and that he was driving under suspension. Therefore, there was
sufficient evidence to support the Driving Under Suspension conviction, and
because contrary evidence was not presented, the conviction was not against the
manifest weight of the evidence.
{¶22} With regard to his Failure to Yield conviction, Lopez argues that there
was no camera footage to support the officer’s testimony that Lopez failed to stop
at two stop signs. However, Deputy Cantu clearly testified that he observed a vehicle
being driven by Lopez failing to stop at two stop signs. This constitutes sufficient
evidence to support the conviction. The conviction is also not against the manifest
weight of the evidence because the factfinder was free to determine Deputy Cantu’s
credibility and we will not second-guess that determination based on the evidence
that was actually presented to the factfinder.3 See DeHaas, supra. Therefore,
Lopez’s arguments related to his Failure to Yield conviction are unavailing.
{¶23} Lopez next argues that his Failure to Disclose conviction was not
supported by the evidence. He argues there was “no testimony given that it would
have been reasonable for any law enforcement officer to have suspected Lopez of
committing or having committed a crime.” (Appt’s Br. at 15). This argument ignores
Deputy Cantu’s testimony that he observed a vehicle driving at 3:00 a.m. without
3
Lopez argues that Deputy Cantu’s testimony is not credible because Deputy Cantu testified that none of the
officers had body cameras at the time of the incident and it later turned out that there was body camera footage
from an officer who was not at the scene but who interacted with Lopez at the Sheriff’s Office. This
information was not presented to the factfinder to evaluate Deputy Cantu’s credibility.
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Case No. 13-24-07, 13-24-08
its headlights on, and driving through two stop signs without stopping. It also
ignores Deputy Cantu’s observations regarding the odor of an alcoholic beverage,
Lopez’s eyes, and his unsteady walking. Testimony regarding these issues all
support Deputy Cantu suspecting Lopez of committing a crime. Thus this conviction
is supported by sufficient evidence, and it is not against the manifest weight of the
evidence.
{¶24} Finally, with regard to his OVI conviction, Lopez argues that the
conviction was based on the testimony of Deputy Cantu, and the deputy’s testimony
should have been suspect because of his claim regarding there not being body
camera footage of the incident. First, it is important to emphasize that the record
does not establish that there was any body or dash camera footage from when
Deputy Cantu interacted with Lopez at the scene. Deputy Cantu and Sergeant
Weimerskirch testified that at the time of the incident they did not have body
cameras and not all cruisers had dash cameras. The body camera footage actually
came from a third officer who only interacted with Lopez once Lopez was brought
to the Sheriff’s Office. It is not clear that Deputy Cantu was ever aware that someone
else had body camera footage from later in the day. However, there was some video
footage from the Sheriff’s Office depicting Lopez and his interaction with officers,
but that footage, which both parties had, was not shown to the jury.
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Case No. 13-24-07, 13-24-08
{¶25} Regardless, the body camera footage that evidently existed was never
shown to the jury and thus the jury did not have this information before it to
determine Deputy Cantu’s credibility. To be certain, Deputy Cantu’s credibility was
an essential factor in this case; however, we are confined to the record before us and
the video is not in our record and it was not presented to the jury.
{¶26} The evidence that was actually presented to the jury included
testimony of Lopez driving at 3:00 a.m. without his headlights on and Lopez driving
through multiple stop signs. Lopez had an odor of an alcoholic beverage emanating
from his person. He had glossy eyes and an unsteady gait. The vehicle from which
Deputy Cantu saw Lopez exit had an open, half-full beer can inside it. When
analyzing all the facts in their entirety, we do not find that there was insufficient
evidence presented to convict Lopez of OVI. Further, we do not find that the
convictions were against the manifest weight of the evidence. As all of Lopez’s
convictions are supported by sufficient evidence, and are not against the manifest
weight of the evidence, his third assignment of error is overruled.
Second Assignment of Error
{¶27} In his second assignment of error, Lopez argues that the trial court
erred by permitting the prosecutor to make improper comments during closing
arguments.
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Case No. 13-24-07, 13-24-08
Relevant Authority
{¶28} The test for prosecutorial misconduct in closing arguments “is whether
the remarks were improper, and if so, whether they prejudicially affected substantial
rights of the defendant.” State v. Smith, 14 Ohio St.3d 13, 14 (1984). “[T]he
touchstone of due process analysis in cases of alleged prosecutorial misconduct is
the fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips,
455
U.S. 209, 219 (1982). Thus prosecutorial misconduct is not grounds for reversal
unless the defendant has been denied a fair trial. State v. Maurer,
15 Ohio St.3d 239,
266 (1984).
{¶29} Here, Lopez concedes he did not object to statements made during the
prosecutor’s closing argument, thus he has waived all but plain error. “A court
recognizes plain error with utmost caution, under exceptional circumstances, and
only to prevent a miscarriage of justice. State v. Pilgrim, 2009-Ohio-5357, ¶ 58.
{¶30} For an error to be “plain error” under Crim.R. 52(B), it must satisfy
three elements: 1) there must be an error or a deviation from a legal rule; 2) the error
must be “plain,” meaning an obvious defect in the trial proceedings; and 3) the error
must have affected “substantial rights,” meaning the error must have impacted the
outcome of the trial. State v. Barnes, 94 Ohio St.3d 21, 27 (2002). Specific to
allegations of prosecutorial misconduct, under a plain error standard, a reviewing
court asks whether a defendant would not have been convicted in the absence of the
improper conduct. State v. Abdullahi,
2024-Ohio-418, ¶ 29 (10th Dist.).
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Case No. 13-24-07, 13-24-08
Analysis
{¶31} In order to address Lopez’s argument that the prosecutor committed
misconduct during closing arguments, we must review the purported improper
statement, which reads as follows:
Also, I would argue, take into consideration the fact that the
Defendant did not complete any field sobriety tests. He did not
complete a breath tests. Those – if, if whether or not he was under the
influence of alcohol was in question, State would argue those are, are
determining factors in proving innocence.”
(Emphasis added.) (Tr. at 98).
{¶32} Lopez argues that the preceding statement regarding proving his
innocence was improper and prejudicial. He argues that it is particularly problematic
here because this was not a case of overwhelming evidence of Lopez’s guilt due to
the fact that there were no field sobriety tests.
{¶33} While the Supreme Court of Ohio has stated previously that “isolated
comments by a prosecutor are not to be taken out of context and given their most
damaging meaning,” State v. Noling, 2002-Ohio-7044, ¶ 94, the prosecutor’s
statements in this matter were not isolated. During rebuttal closing argument, the
prosecutor stated:
We heard evidence that there was an alcoholic container in the car
open. We heard evidence that he did not identify himself and that he
did not complete field sobriety tests to prove that he wasn’t under the
influence; or the breath test to prove that he was [sic] under the
influence.
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Case No. 13-24-07, 13-24-08
(Emphasis added.) (Tr. at 103).
{¶34} In the case sub judice, the trial was brief, consisting of only two
witnesses. Closing arguments were similarly brief. The prosecutor’s closing
argument and his rebuttal closing argument totaled approximately three transcript
pages. Of those three pages, the prosecutor used multiple portions of his argument
to suggest that Lopez effectively had a burden to prove his lack of intoxication.
{¶35} After reviewing the statements of the prosecutor in closing arguments,
we find that the statements were improper and could confuse a jury regarding the
burden of proof. While the prosecution is generally not prevented from commenting
upon the failure of the defense to offer evidence, directly implying that the defense
had a burden to prove something is different. See State v. Smith, 14 Ohio St.3d 13,
14 (1984) (“To begin with, the prosecution must avoid insinuations and assertions
which are calculated to mislead the jury.”); see also State v. Encarnacion, 2017-
Ohio-5530, ¶ 16 (holding that comments that do not imply a burden of proof has
shifted to the defense are not improper); c.f. Columbus v. Aleshire,
2010-Ohio-2773,
¶ 44 (10th Dist.) (finding no error where the prosecutor’s closing arguments did not
imply that a burden of proof had shifted and the trial court provided an additional
instruction after prosecutor’s questionable comments to emphasize that the
defendant had no burden of proof).
{¶36} However, finding that the prosecutor’s comments in closing
arguments were improper does not end our analysis. “An improper comment does
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not affect a substantial right of the accused if it is clear beyond a reasonable doubt
that the jury would have found the defendant guilty even without the improper
comments.” State v. Treesh, 2001-Ohio-4.
{¶37} In assessing whether the prosecutor’s comments impacted Lopez’s
substantial rights, we must look to the instructions provided to the jury to see if any
potential confusion regarding burden of proof was cured. Here, the jury was
instructed that it was the State’s burden to prove Lopez’s guilt beyond a reasonable
doubt. However, the jury was never instructed on the actual definition of reasonable
doubt pursuant to R.C. 2901.05(A)/(C)/(E). Similarly, the jury was never instructed
on the presumption of innocence afforded to criminal defendants. State v. Schaeffer,
2015-Ohio-3531, ¶ 89 (3d Dist.) (holding inadequate jury instructions can constitute
plain error).
{¶38} We emphasize that R.C. 2901.05(C) requires the trial court to provide
the definition of reasonable doubt to a jury. Since that was not done here, the jury
was left with confusing and erroneous statements of the prosecutor regarding
burdens of proof, and no specific guidance from the court on determining reasonable
doubt. We find that the errors in this case rise to the level of plain error.
{¶39} Notably, plain error can be overcome if the convictions are supported
by overwhelming evidence. State v. West, 2022-Ohio-1556. Here, while the
evidence was strong enough to support the convictions, we do not find that the
evidence is “overwhelming” such that it overcomes the errors. See
Schaeffer, supra.
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We therefore find that Lopez did not receive a fair trial on the OVIs and the Failure
to Disclose charges that were tried to the jury. See State v. Freeman, 138 Ohio
App.3d 408, 423 (1st Dist.2000) (finding that appellant was denied a fair trial where,
inter alia, prosecutor made improper comments during closing arguments).
{¶40} However, we find that Lopez’s Failure to Yield and Driving Under
Suspension charges, which were tried to the bench, were not impacted by any
erroneous comments of the prosecutor during closing argument or any failure of the
trial court to instruct the jury on the definition of reasonable doubt. Lopez was found
guilty of the two charges by the trial court before closing arguments occurred on the
charges being tried to the jury and before instructions were provided to the jury.
More importantly, in a bench trial, the trial court is “presumed to know the
applicable law and apply it accordingly.” State v. Turner, 2004-Ohio-5632, ¶ 15.
Thus the errors herein did not impact Lopez’s convictions that were tried to the
bench.
{¶41} In sum, the prosecutor committed multiple instances of misconduct
during closing arguments. We find that in this case, Lopez’s substantial rights were
affected by the prosecutor’s comments, particularly because the jury was never
properly instructed on the definition of reasonable doubt. Therefore, Lopez’s second
assignment of error is sustained in part. His convictions for OVI and Failure to
Disclose are reversed, and those charges are remanded to the trial court for a new
trial.
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First Assignment of Error
{¶42} In his first assignment of error, Lopez argues that the trial court abused
its discretion by permitting the State to recall Deputy Cantu to add additional
testimony after he had been released as a witness. Deputy Cantu’s testimony when
he was recalled was related to the OVI charges. As we have sustained Lopez’s
second assignment of error and the case is being reversed and remanded for a new
trial on the OVIs, Lopez’s first assignment of error is moot and we decline to further
address it.
Conclusion
{¶43} Having found error prejudicial to Lopez in some of the particulars
assigned and argued, the judgments of the Tiffin-Fostoria Municipal Court are
affirmed in part, and reversed in part. This case is remanded for a new trial on the
OVIs and the Failure to Disclose charge.
Judgments Affirmed in Part,
Reversed in Part and
Cause Remanded
WILLAMOWSKI, P.J. and MILLER, J., concur.
/jlm
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