State v. Donkers (170 Ohio App. 3d 509, 2007)

Vukovich, Judge.

{¶ 1} Defendant-appellant Catherine Donkers appeals from the judgment of the Portage County Municipal Court, Ravenna Division, finding her guilty of driving without a valid license, failure to use a child-restraint system, and failure to comply with an order or signal of a police officer by fleeing or eluding. On appeal, she raises a great many allegations, including the lack of dialogue at her initial appearances, ineffective assistance of counsel, denial of the right to counsel, speedy trial, suppression, insufficient discovery and bill of particulars, tainted trial atmosphere, judicial bias, coverture and freedom of religion, sufficiency of the evidence, weight of the evidence, and consideration of prior arrests in sentencing.

{¶ 2} For the following reasons, appellant’s child-restraint conviction is reversed with prejudice due to insufficient evidence on the element requiring that the subject vehicle be registered in the state of Ohio. Appellant’s driving-without-a-valid-license charge is modified from a first-degree misdemeanor to a minor misdemeanor due to insufficient evidence that her license had been expired for more than six months. This minor-misdemeanor driving-without-a-valid-license charge and the failure-to-comply charge are reversed and the cause is remanded for a new initial appearance that provides proper discourse on appellant’s rights.

STATEMENT OF FACTS

{¶ 3} On May 8, 2003, a trucker driving on the Ohio Turnpike in Portage County called 911 to report a woman (appellant) driving with a baby lying in her lap. The Ohio State Highway Patrol dispatched the nearest trooper, who waited in a median crossover and clocked the described vehicle three times as it approached. The lowest speed clocked was 62 miles per hour, but the highest was said to be 68 in a 65-mile-per-hour zone. At the time, the trucker was surpassing the 55-mile-per-hour speed limit for trucks as he tailed behind appellant’s vehicle flashing his lights, beeping his horn, and pointing to her car.

{¶ 4} The trooper testified that he viewed the baby in appellant’s lap as she passed by his position. The trooper pulled behind appellant into the center of three lanes of traffic with the pursuit lights activated. Appellant moved into the right lane, kept her right turn signal activated, and slowed to 45 miles per hour. She was also seen pointing out of her window. Although the trooper used his lights, siren, air horn, and loudspeaker, appellant did not pull over.

{¶ 5} After traveling like this for three miles, appellant exited the turnpike and entered a line at a tollbooth. The trooper quickly approached the vehicle. He ordered appellant to turn off the vehicle and hand over her keys, which she did only after multiple requests. She voluntarily explained that she had been breastfeeding her six-month-old child, which she urged was lawful based upon legal research she performed before making the trip. She stated that she did not pull over right away because she was looking for a safe, populated place. The trooper’s sergeant appeared on the scene to assist.

{¶ 6} At first, appellant would not display identification or reveal her name. She cited United States Supreme Court case law dealing with lack of police authority to demand identification where no criminal investigation was occurring; however, she failed to recognize that although the trooper admitted that he was not conducting a criminal investigation, he was referring to crimes other than the traffic offenses which he believed she committed that day. Finally, she handed over an apparently homemade identification card/affidavit displaying her picture, her name, and a Pennsylvania address.

{¶ 7} In the meantime, the trooper ran the Michigan license plate on the vehicle and found it registered to appellant. He discovered problems with her Michigan driver’s license that rendered her ineligible to drive. The trooper issued a traffic citation for driving without a valid license in violation of R.C. 4507.02(A)(1) and for failux-e to use a child-restraint device in violation of R.C. 4511.81, a minor misdemeanor. The citation also noted an accompanying criminal charge of obstructing official business. The police waited until the child’s father, Brad Barnhill, could arrive to pick up the baby before officially arresting appellant. She was then sent to jail for processing and posted bond sometime later.

{¶ 8} The next morning, May 9, 2003, appellant appeared at her initial appearance before Municipal Court Judge Pittman. Appellant attempted to question the court regarding the case numbers, possibly because the court failed to advise her that she was charged with the child-restraint violation. The court interrupted her and asked if she had counsel, at which point it appears that appellant attempted to argue her right to lay counsel. The court threatened to charge appellant with disorderly conduct for presenting her arguments, entered a not-guilty plea on her behalf, and continued the case for a pi-etrial on June 9, 2003.

{¶ 9} Appellant and Mr. Barnhill (with whom she claims to have a common-law marriage under the laws of Pennsylvania) filed numerous pleadings. One of the main claims was that Mr. Barnhill should be substituted as the defendant because of the doctrine of coverture and their religious belief that he is the head of household who ordered her to commit the offenses. Another major point of contention surrounded the exception in Ohio’s child-restraint law for nonresidents whose nonuse of the child restraint is in compliance with the law of their state of residence. Her motions pointed out that Michigan’s child-restraint law has an exception for a child who is being nursed. See Mich.Comp.Laws 257.710d (statute does not differentiate between driver and passenger or front seat and back seat or cars with airbags versus those without).

{¶ 10} On June 5, 2003, a criminal complaint was filed by the assistant prosecutor in the Portage County Municipal Court in Ravenna. The complaint charged appellant with two additional offenses arising out of the May 8, 2003 incident: failure to comply with an order or signal of a police officer in violation of R.C. 2921.331(B), which entails willfully fleeing or eluding; and child endangering in violation of R.C. 2919.22(A), which involves recklessly creating a substantial risk to the health or safety of a child by violating a duty of care, protection, or support. Both offenses are first-degree misdemeanors.

{¶ 11} On June 9, 2003, appellant appeared for the pretrial on the traffic citation. Her initial appearance on the new complaint was also held that day before Municipal Court Judge Martell. He entered a not-guilty plea on her behalf when she advised that she was without counsel, and he advised her how to receive appointed counsel. On June 12, the court set the trial on all charges for August 6, 2003.

{¶ 12} On July 11, 2003, the court appointed the Portage County Public Defender’s Office to represent appellant. She apparently had moved from her Pennsylvania address without providing a change of address or making arrangements with her attorney to speak about the case. She finally met with counsel in the days preceding her trial and discovered that he would not agree to raise all the defenses she desired to present.

{¶ 13} On the morning of the August 6, 2003 trial, the court was advised that appellant refused appointed counsel’s representation. Maintaining her coverture argument, appellant explained that she was representing her husband’s interest and that she would be her husband’s first choice of counsel. Before allowing appellant to proceed pro se, the court inquired into her understanding of the case and the situation. Counsel was then permitted to withdraw but ordered to remain as stand-by counsel.

{¶ 14} Before proceeding, the state dismissed the obstructing-official-business charge. (This was probably because the traffic ticket specified there were only two charges, obstructing is not a traffic offense, obstructing was listed as a criminal charge that would be filed later, and no later criminal charge was filed on that offense as the state charged her with fleeing and eluding instead.) The bench trial took two full days plus the morning of the third day for closing arguments. The trucker testified that he looked out of his driver’s side window and saw a sleeping baby laying face down in appellant’s lap with its head toward the driver’s door. He did not see her nursing and noted that he would not have been able to see this since the baby’s head was on her left side. The trooper testified to the sequence of events leading up to her arrest, and the video from his dashboard camera was viewed. The sergeant also testified for the state.

{¶ 15} Mr. Barnhill testified for the defense that appellant has a residence in Livonia, Michigan, that is a condominium owned by a trust, with her same name, for which she was the trustee. Mr. Barnhill identified a gas bill for the residence in appellant’s name and testified that appellant stays at the Michigan residence very often, approximately two times per month and often for extended stays. He also testified that he instructed appellant to nurse while driving to save time on the drive to Michigan; he explained that he had researched the law to determine the propriety of the action. He also disclosed that when appellant called him to inform him that she was being signaled to stop, he told appellant to proceed to the nearest toll booth before stopping. He explained that she must do exactly as he says and that he is the only public voice.

{¶ 16} Appellant then called herself as a witness. She explained that she maintains a legal residence in Michigan and a domicile in Pennsylvania. She advised that the baby was fussy so she stopped at the first rest area in Ohio to change the baby’s diaper and feed her some rice cereal. The baby was still fussy so she placed a nursing pillow on her lap and allowed the baby to nurse. She then began driving again while the child nursed. She explained that the baby nurses for an hour and Mr. Barnhill instructed her that it would be legal to nurse on the way to save time. She opined that nursing was less distracting than listening to a screaming baby while driving. She explained that nursing her child does not require her hands to be off the steering wheel. She also mentioned that the child did not nurse the entire time because she often takes breaks and then latches on again on her own.

{¶ 17} As for her failure to immediately pull over, she stated that she had her cruise control set on 65 miles per hour and thus she did not think the trooper was after her at first. She also noted her concern with the tailing trucker. When she moved over to the right lane and the trooper followed, she realized he was signaling to her. She then called Mr. Barnhill on her cellular phone for instructions. She advised the court that she had been the victim of sexual assault twice in the past and the victim of assault by police officers. Thus, she claimed to fear being stopped without witnesses. She stated that she tried to use hand signals to tell the officer that she would stop at the next exit by pointing at each green exit sign they passed. She testified that she got in the tollbooth line due to construction in the berm and that she intended to pull over after paying at the booth.

{¶ 18} The court found appellant guilty of driving without a valid license, failure to use a child restraint, and failure to comply with an order or signal of a police officer by fleeing and eluding. The court acquitted appellant of the child-endangering charge due to the fact that the child-restraint law states that such act shall not be used as a basis for criminal prosecution of another offense or as evidence of any other offense. R.C. 4511.81(D).

{¶ 19} A sentencing hearing was held on December 4, 2003. Thereafter, the court fined appellant $100 for the minor-misdemeanor child-restraint violation. For driving without a valid license, the court sentenced appellant to 180 days in jail with 90 days suspended and 90 days of house arrest, a $200 fine, and two years of supervised probation. For the charge of failure to comply with a police officer by fleeing and eluding, the court imposed this same sentence to run concurrently, required a mental-health evaluation, and ordered appellant to follow any counseling recommendations to assist her in dealing with authority figures.

{¶ 20} Appellant filed a timely notice of appeal in the Eleventh District Court of Appeals on December 31, 2003. Various problems delayed the progress of this appeal. For instance, there were issues concerning appellant’s continued indigency, which were addressed after a hearing before an appellate court magistrate. Then, the appeal was dismissed for failure to prosecute. However, the appeal was reinstated in February 2006, and counsel was permitted to file a brief containing six main assignments of error with various subissues. Appellant was then permitted to file a pro se supplemental brief, which contains five supplemental assignments of error. Appellant then sought leave to file a second supplemental brief.

{¶ 21} A visiting panel from the Seventh District Court of Appeals was appointed to decide the appeal. This panel denied her request to file a second supplemental brief. The appeal is now before this court. Some assignments of error or parts thereof will be addressed together when they are sufficiently related.

ASSIGNMENT OF ERROR NUMBER ONE AND SUPPLEMENTAL ASSIGNMENT NUMBER FOUR

{¶ 22} The first assignment of error briefed by counsel and the fourth supplemental assignment briefed by appellant pro se provide:

{¶ 23} “The trial court erred in failing to follow the required procedure upon the appellant’s initial appearance by not fully advising her of the charges against her and of her rights.”

{¶ 24} “The court erred to the prejudice of Catherine by denying to Catherine due process of law by failing to notify Catherine not only of her right to a jury at either arraignment, but that this right must be claimed or it would be deemed waived.”

{¶ 25} Appellant urges that Crim.R. 5(A) was violated by the judges at both initial appearances. She cites both transcripts and points out that she was not informed of her right to counsel, her right to remain silent, her right to a jury trial, and the need to demand a jury to invoke that right. She also notes that at the May 9, 2003 initial appearance, the court never even mentioned the child-restraint charge.

{¶ 26} Crim.R. 5(A) provides the procedure upon initial appearance. When a defendant first appears before the judge, the judge shall permit the accused or his counsel to read the complaint and shall inform the defendant of the nature of the charge against him. Crim.R. 5(A)(1). The court shall also inform the defendant that he has a right to counsel or court-appointed counsel and the right to a reasonable continuance to secure counsel. Crim.R. 5(A)(2). The court must then inform the defendant that he need make no statement and that any statement made may be used against him. Crim.R. 5(A)(3). Finally, the court must inform the defendant of his right, where appropriate, to a jury trial and of the need to make a jury demand in a petty-offense case. Crim.R. 5(A)(5). The rule continues that in misdemeanor cases, the defendant may be called upon to plead at the initial appearance. Crim.R. 5(A). If the defendant enters a plea, the procedures in Crim.R. 10 and 11 become applicable. Id. Not guilty is one of the four available pleas. Crim.R. 11(A).

{¶ 27} Appellant was asked to plead, and a not-guilty plea was entered on her behalf as permitted in Crim.R. 11(A). Applying the above law to the facts herein, we must now view and apply Crim.R. 10 because a plea was entered at the initial appearance. See Crim.R. 5(A). Technically, Crim.R. 10 pertains to arraignments. It provides that the court shall read the complaint to the defendant or state the substance of the charge and call on him to plead to the complaint. Crim.R. 10(A). The defendant may, in open court, waive the reading of the complaint, and the defendant shall be given a copy of the complaint or shall acknowledge receipt of it before being asked to plead. Id.

{¶ 28} Crim.R. 10(C) is then entitled “explanation of rights” and provides that when a defendant who is not represented by counsel is brought before a court and called upon to plead, the judge shall cause him to be informed and shall determine that he understands the following: a right to retain counsel, a right to a reasonable continuance in the proceedings to secure counsel even if he intends to plead guilty, the right to court-appointed counsel, the right to bail, and the fact that he need make no statement at any point in the proceeding, but that any statement made can and may be used against him. If there are multiple defendants to be arraigned, the judge may by general announcement advise them of their rights as prescribed in the rule. Crim.R. 10(D).

{¶ 29} These rules apply to any criminal charges. But for the traffic offenses, the corresponding Traffic Rules apply. See Traf.R. 1(A) (apply Traffic Rules to traffic cases); Traf.R. 2(A) (traffic case is a proceeding involving violation of a law governing the operation and use of a vehicle). The first appearance in a traffic case is called the arraignment. See Traf.R. 8. See, also, 1975 Staff Note 1 to Traf.R. 8.

{¶ 30} Traf.R. 8 closely mirrors Crim.R. 10 and contains elements from Crim.R. 5 as well. See 1975 Staff Note 1 and 5 to Traf.R. 8. This rule provides that the arraignment shall be conducted in open court and shall consist of reading the complaint (traffic ticket) to the defendant, or stating to him the substance of the charge, and calling on him to plead to the complaint. Traf.R. 8(A). See, also, Traf.R. 3(A). The defendant shall be given a copy of the complaint, or shall acknowledge receipt thereof, before being called upon to plead and may in open court waive the reading of the complaint. Traf.R. 8(A).

{¶ 31} Similar to the Criminal Rules, the Traffic Rules also require an explanation of rights at the arraignment stage. Traf.R. 8(D). Specifically, before calling the defendant to plead, the judge shall cause him to be informed and shall determine that defendant knows and understands that he has a right to counsel or appointed counsel and the right to a reasonable continuance in the proceedings to secure counsel, that he has a right to bail, that he need make no statement at any point in the proceeding, but any statement made may be used against him, that he has, where such right exists, a right to jury trial which must be demanded in petty offenses, and that, if he is convicted, the conviction will become part of his driving record. Id. If there are multiple defendants to be arraigned, the judge may advise, or cause them to be advised, of their rights by general announcement. Traf.R. 8(E).

{¶ 32} The transcripts from both initial appearances are lacking a full discussion of the defendant’s rights. The May 9, 2003 transcript shows that the court inquired into whether appellant will be represented by counsel. However, the court did not mention the right to counsel, the right to court-appointed counsel, or the right to a continuance to secure counsel. The court continued bail; thus, that right was covered. The court noted the right to a trial in general but did not advise of the right to a jury trial or the need to demand one to preserve that right. The court made no reference to the fact that appellant could remain silent and that all statements can be used against her. Finally, the court failed to note that appellant’s driving record will be affected by any traffic infractions.

{¶ 33} At the June 9, 2003 appearance, the court continued bail and revealed the right to court-appointed counsel and the process for determining eligibility. Yet the court did not advise appellant of her right to a jury trial or the need to demand one in order to preserve that right. Furthermore, the court did not warn appellant that all statements can be used against her or mention the right to remain silent.

{¶ 34} The state claims that these two municipal courts play a video to the defendants prior to beginning the individual appearances, which contains a recitation of the defendants’ rights. Such procedure could be permissible to “inform” the defendant of her rights at arraignment. See Crim.R. 10(D); Traf.R. 8(E). However, there exist various problems here.

{¶ 35} First, we do not have the video or a transcript of its contents before us. Second, we do not know if appellant was present for the viewing. Third, we do not know if the defendants were specifically instructed to watch the video or if it was simply playing in the background. Fourth, informing the defendant of her rights by video is not sufficient to determine that the defendant knows and understands those rights. We shall proceed to discuss these issues further.

{¶ 36} In responding to various arguments appellant presented at sentencing similar to those raised in this assignment, Judge Martell stated that he is aware that Judge Pittman has a lengthy rights tape for initial appearances and opined that appellant viewed that video on May 9, 2003. Appellant answered, “Absolutely not.” Judge Martell then inquired if she saw the video at the June 9, 2003 initial appearance before him. She stated that she did not pay attention as she was conferring with Mr. Barnhill about her surprise over the two new charges. She also explained that she did not know that she needed to listen before her case was called.

{¶ 37} The state contends that it is appellant’s obligation to provide the appellate court with the video when submitting the transcript from the initial appearance. We note the following statements of the Ninth District relevant to this issue:

{¶ 38} “The state argues that the defendant has not produced a transcript of proceedings or a record of the arraignment. Counsel for the state further says that an explanation of a defendant’s rights, or a record of the arraignment is generally done orally by the court, or at its direction, before each session of the court. While the defendant does have the burden of seeing that the record is complete, under the appellate rules, he can do no more than request the clerk to prepare and forward the transcript of docket and journal entries, and the transcript of proceedings.

{¶ 39} “ * * * Here, the defendant requested and filed the transcripts, and the reviewing court can determine from such transcripts whether or not an error was committed. We must assume that those transcripts, as certified by the clerk and the trial judge, respectively, are complete and accurate.” State v. Boerst (1973), 45 Ohio App.2d 240, 241-242, 74 O.O.2d 350, 343 N.E.2d 141.

{¶ 40} In the case before us, appellant ordered the entire transcript of the proceedings in her case from the dates of the initial appearances. The court reporter certified the submitted transcripts as true and correct. The transcripts of the initial appearances make no reference to a video and do not allude to any previous explanation of rights. If the state insists that there is more content that the court reporter failed to include and that is crucial to their position, the state could have used App.R. 9(E) to correct the record and to submit the video along ■with a certification that it was played at appellant’s initial appearance so that we could judge its contents.

{¶ 41} Regardless, the existence of a complying video is irrelevant without proof that appellant was present for the playing of the video. Even if her statement at sentencing could be taken as proof that she was present for the playing of the June 9 video, this would not resolve the problem of the May 9 initial appearance. Additionally, assuming she was present for the presentation, there would also have to be proof that while she was present, there were orders or instructions given as to the need to watch the video.

{¶ 42} It is also important to point out that even if a complying video was played on both dates and if appellant can be confirmed as being present and if the importance of watching it was explained in her presence, a video or other en masse description of rights is merely that — a description of the rights. It does not satisfy the requirement that directs the court to determine that the defendant “understands” the rights listed in Crim.R. 10(C) or “understands and knows” the rights listed in Traf.R. 8(D). These provisions require an individualized inquiry.

{¶ 43} As appellant points out, the Eleventh District, whom we are representing here, was once presented with a case containing a similar issue. State v. Bayer (1995), 102 Ohio App.3d 172, 656 N.E.2d 1314. At the initial appearance, the defendant was merely asked if he had an attorney, and he responded in the negative. Id. at 180, 656 N.E.2d 1314. The defendant pleaded not guilty at his initial appearance, and he was later found guilty after a pro se trial. On appeal, he claimed among other things that the court violated Crim.R. 5 and 10 at his initial appearance.

{¶ 44} In response, the state claimed that the court gave a pamphlet to the defendants and read a standardized introduction defining the pleas and instructing the defendants to read the pamphlet. Id. at 179, 656 N.E.2d 1314. The state submitted on appeal an affidavit of the bailiff stating that he gave the defendant a copy of the pamphlet and that the defendant was present for the court’s standard, general introduction. Id. at 179-180, 656 N.E.2d 1314, fn. 8-9. Attached to the bailiffs affidavit was the court’s general introduction to all defendants, which was not part of the transcript. Id. at 180, 656 N.E.2d 1314, fn. 9.

{¶ 45} The Eleventh District concluded in Bayer that a one-sided rights colloquy to all defendants does not provide the discourse required by the rules concerning initial appearances to ensure comprehension of the rights. Id. at 180, 656 N.E.2d 1314. Similarly, Staff Note 3 to Traf.R. 8 provides:

{¶ 46} “Although the nature of the available pleas may be given in a general instruction to all defendants, Traf.R. 8(E), the establishment of the understanding of the charge is a personal matter and the judge must conduct this aspect of the arraignment with each defendant individually.”

{¶ 47} As set forth above, no listed rights were discussed at the May 9 initial appearance besides bail. Furthermore, there was no determination that appellant understood the right to counsel or court-appointed counsel, the right to a continuance to secure counsel, the right to a jury trial, the need to demand a jury trial, the right to remain silent, the caveat that anything she says can be used against her, and the fact that traffic violations will be reported on her driving record. Contrary to the state’s position at oral argument, alluding to the right to a trial does not satisfy the obligation to state the right to a jury trial or the need to demand a jury trial, and even if it did, it does not ensure an understanding.

{¶ 48} Then, at the June 9 initial appearance on other charges, a different judge discussed only court-appointed counsel and bail. There was no discussion of the right to a jury trial or the need to demand a jury in order to preserve that right. Nor was there a determination that appellant understood the right to remain silent and the caveat that anything she says can be used against her.

{¶ 49} Thus, neither court reviewed the full list of rights. Nor did either court even generally ask if appellant understood the rights previously discussed in the alleged video. These are clear violations of Crim.R. 5 and 10 and Traf.R. 8. These violations are especially significant considering the following facts that exist in this case: appellant was tried without a jury as no jury was demanded, counsel was not appointed until over two months from the May 9 initial appearance and over one month from the June 9 initial appearance, this appointment was less than one month from the scheduled trial date, appellant ended up representing herself (with a host of media and cameras pointing at her from the jury box), and she made multiple incriminating statements in pretrial filings and at trial from the stand and during arguments. Each of these facts is related to a right that should have been discussed and understood at the initial appearance.

{¶ 50} Moreover, an explanation of the nature of charges obviously cannot be given en masse since that is an individualized matter. At the May 9, 2003 initial appearance, the court advised, “You are charged with Obstructing Official Business, a second degree misdemeanor, as well as Driving without a Driver’s License.” The state dismissed the obstructing charge, so the sufficiency of the initial appearance with regard to that charge is not at issue here. The most glaring problem regarding this recitation of the charges is that the court did not even advise appellant of the existence of the child-restraint charge. Thus, appellant was certainly not advised of the substance of that charge as required by Traf.R. 8(B).

{¶ 51} Further, there is no indication on the record that appellant was given a copy of the complaint, or acknowledged receipt thereof, before being called upon to plead (or waive the reading) as is specifically required by Traf.R. 8(B). See, also, Crim.R. 5(A) and 10(A). This failure, combined with the lack of a recorded advisement of rights and the failure to individually determine an understanding of those rights in a case where appellant made multiple incriminating statements and represented herself in a bench trial due to the failure to file a jury demand, is cause for reversal.

{¶ 52} At the June 9, 2003 initial appearance, the court advised that appellant was charged with failure to comply with an order or signal of a police officer. The court disclosed that the offense was a first-degree misdemeanor that carried a potential of six months in jail and a $1,000 fine plus costs. (We note that appellant was acquitted of the child-endangering charge. Thus, the sufficiency of that initial appearance is not before us.) There is no specific allegation here that the court’s statement failed to comply with the requirement in Crim.R. 5(A)(1) that the court inform the defendant of the nature of the charges and the requirement in Crim.R. 10(A) that the court explain the substance of the charges. However, there is no indication that appellant was given a copy of the complaint, or acknowledged receipt thereof, before being called upon to plead as required by Crim.R. 10(A). The failure to ensure receipt of the complaint at the June 9, 2003 initial appearance, when combined with the even more important lack of a recorded and submitted advisement of rights and the failure to ensure that appellant understood certain rights as analyzed above, is cause for reversal.

{¶ 53} Finally, we note the state’s argument that the failure to discuss the right to counsel or appointed counsel at the May 9 initial appearance is irrelevant because a not-guilty plea was entered. Likewise, the state contends that the failure to mention the right to remain silent and the fact that all statements can be used against her is irrelevant because she did not incriminate herself at either initial appearance. These arguments miss the point of the requirement that the defendant must be told and determined to understand her rights. The point is not just to protect her at the initial appearance, but to protect her throughout the proceedings. The state’s contention that she failed to note the lack of a jury when she appeared for trial is similarly misguided. This could very well be because she still did not know that she had the right to a jury trial.

{¶ 54} For all of the foregoing reasons, this assignment of error has merit. Accordingly, appellant’s convictions must be reversed and remanded for further proceedings starting with the initial appearance.

{¶ 55} However, not all charges can be retried upon our remand due to the sufficiency issues discussed next. That is, when evidence is insufficient to support an offense, such matter cannot be ignored merely because the appellate court is remanding for retrial on other grounds. The state is never permitted a second chance at providing sufficient evidence of an offense where the state originally presented insufficient evidence. See State v. Lovejoy (1997), 79 Ohio St.3d 440, 450, 683 N.E.2d 1112; State v. Thompkins (1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (double jeopardy bars retrial if appellate court finds insufficient evidence). Unlike certain other issues discussed below, sufficiency is not moot when it to comes the above-ordered remand. See id. See, also, State v. Alexander, Carroll App. No. 03CA789, 2004-Ohio-5525, 2004 WL 2340039, ¶ 36; State v. Larsen (June 26, 1997), Franklin App. No. 96APA10-1401, 1997 WL 360846.

ASSIGNMENT OF ERROR NUMBER FIVE

{¶ 56} Due to the effect a finding of insufficient evidence will have on the charges available for retrial, we shall now discuss appellate counsel’s fifth assignment of error, which alleges:

{¶ 57} “The trial court erred in denying the motion of the defendant appellant at the conclusion of the state’s case to dismiss each of three counts, operating a motor vehicle without a license, failure to comply and child restraint.”

{¶ 58} Here, appellant raises issues surrounding her motion for acquittal, general sufficiency of the evidence, and manifest weight of the evidence. Appellant filed a motion for acquittal at the end of the state’s case and at the close of all evidence.

{¶ 59} An appellate court reviews a denial of a Crim.R. 29 motion for acquittal utilizing the same standard used to review a sufficiency-of-the-evidence claim. State v. Carter (1995), 72 Ohio St.3d 545, 553, 651 N.E.2d 965. Sufficiency is a question of law dealing with adequacy of the evidence. Thompkins, 78 Ohio St.3d at 386, 678 N.E.2d 541. In evaluating the sufficiency of the evidence, we view the evidence in the light most favorable to the state and determine whether reasonable minds can reach different conclusions as to whether each element has been proven beyond a reasonable doubt. State v. Goff (1998), 82 Ohio St.3d 123, 128, 694 N.E.2d 916.

{¶ 60} Even if the evidence is legally sufficient to sustain the conviction, the conviction may be against the manifest weight of the evidence. Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541. Weight and sufficiency are distinct concepts, and different tests apply to each concept. Id. at 386-387, 678 N.E.2d 541. Weight of the evidence concerns the effect of the evidence in inducing belief. Id. at 387, 678 N.E.2d 541. In conducting a weight-of-the-evidence review, the court of appeals 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 jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Id.

{¶ 61} The fact-finder, in this case the trial judge, occupies the best position to observe the demeanor, gestures, and voice inflection of the witnesses. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 10 OBR 408, 461 N.E.2d 1273. Because credibility of the witnesses and weight of the evidence are questions primarily within the province of the fact-finder, a verdict is reversed on manifest-weight-of-the-evidence grounds only in exceptional circumstances where the evidence weighs heavily against the conviction. See Tkompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541; State v. DeHass (1967), 10 Ohio St.2d 230, 231, 39 O.O.2d 366, 227 N.E.2d 212.

{¶ 62} First, we shall address the child-restraint charge. The child-restraint law is contained in R.C. 4511.81, which provides:

{¶ 63} “(A) When any child who is in either or both of the following categories is being transported in a motor vehicle, other than a taxicab or public safety vehicle as defined in section 4511.01 of the Revised Code, that is registered in this state and is required by the United States department of transportation to be equipped with seat belts at the time of manufacture or assembly, the operator of the motor vehicle shall have the child properly secured in accordance with the manufacturer’s instructions in a child restraint system that meets federal motor vehicle safety standards:

{¶ 64} “(1) A child who is less than four years of age;

{¶ 65} “(2) A child who weighs less than forty pounds.”

{¶ 66} “(B) [requires the same child-restraint use in vehicle registered in this state that is operated by a nursery school, kindergarten, or daycare]

{¶ 67} * * *

{¶ 68} “(F) If a person who is not a resident of this state is charged with a violation of division (A) or (B) of this section and does not prove to the court, by a preponderance of the evidence, that the person’s use or nonuse of a child restraint system was in accordance with the law of the state of which the person is a resident, the court shall impose the fine levied by division (H)(2) of section 4511.99 of the Revised Code.”

{¶ 69} Appellant’s claim on appeal revolves around her contention that Ohio’s car-seat exception applies to her. That is, R.C. 4511.81(F) provides a defense to nonresidents of Ohio if they prove by a preponderance of the evidence that their nonuse of the car seat was in accordance with the law of the state of their residence. Much dispute at trial centered on whether appellant was a Michigan resident or a Pennsylvania resident, where she maintained a domicile with Mr. Barnhill. This is because as stipulated by the state, Mich.Comp.Laws 257.7HM specifically provides an exception to the child-restraint law for children who are being nursed. Notably, that Michigan nursing exception does not distinguish between drivers and passengers, front and back seat, or cars with and without airbags.

{¶ 70} Appellant testified that she is a Michigan resident. She was born and raised in Michigan. She graduated from the University of Michigan. Her car is registered in Michigan. Her suspended driver’s license is from Michigan. A trust of which she is the beneficiary and trustee owns a condominium in Michigan. She considers this address her legal residence. She testified that she stays there a couple times a month for multiple days at a time. She presented alternative arguments that she had two residences or that Pennsylvania was merely her domicile and Michigan was her residence.

{¶ 71} Besides disputing her residency, the state tried to avoid this issue by arguing that the baby was not continuously nursing. For instance, it argued without support that a baby would not nurse for 40 minutes. At oral argument, the state pointed to appellant’s testimony that the baby was not nursing the entire time, referring to the baby’s latching on and off during a feed. Likewise, the trial court avoided the residency element of her defense by deciding that she was not in fact nursing. Thus, the court found that she could not invoke Ohio’s exception because she was not complying with Michigan law. However, before this court can reach the sufficiency of appellant’s defense, we must review the sufficiency of the state’s evidence on the elements of the child-restraint offense. This is because the state must meet its burden on the elements before a defendant has the burden to present an affirmative defense. See R.C. 2901.05(A).

{¶ 72} There is a glaring problem here. That is, R.C. 4511.81(A) only applies when the qualifying child is being transported in a motor vehicle that is registered in this state. The exception in division (F) need only be utilized by a nonresident who was properly charged with committing a violation of division (A). If the car in which the child was transported was not registered in Ohio, division (A) was not violated, and thus the nonresident exception does not come into play.

{¶ 73} Contrary to the state’s assumption, the existence of a nonresident exception does not create a violation. The violations are contained in divisions (A) and (B). Division (F) is clearly a defense to any violations. If the elements in division (A) are not satisfied, then the defense is irrelevant and unnecessary. In other words, if the government fails to meet its burden of proving the essential elements, then the defendant’s burden to prove an affirmative defense never arises. See R.C. 2901.05(A).

{¶ 74} We also point out that the element in division (A) requiring the vehicle to be registered in this state has nothing to do with residency. Thus, under the statute’s plain terms even an Ohio resident does not violate the child-restraint law if he is operating a vehicle that is not registered in Ohio.

{¶ 75} We also note that there is no valid argument that the phrase “registered in this state” refers only to taxicabs and public-safety vehicles. Placement of commas around taxicabs and public safety vehicles in the context of the sentence clearly establishes that the taxi and safety-vehicle exception is an intruding clause that stands alone.

{¶ 76} When there is plain and clear statutory language, it must be applied without further interpretation. State ex. rel Plain Dealer Publishing Co. v. Cleveland, 106 Ohio St.3d 70, 2005-Ohio-3807, 831 N.E.2d 987, ¶ 38. Legislative intent is first and foremost expressed through the plain language of the statute; no further source shall be consulted if there is unambiguous language. Id. Where the language lacks ambiguity, the court must apply, not construe, the law. Id. This statute contains plain language.

{¶ 77} The state argued that this plain-language reading of the statute would be nonsensical as division (F) would have no meaning. However, this is untrue. The defense in division (F) is available for use by a nonresident who is pulled over while operating a vehicle registered in Ohio. That situation would arise if a nonresident was driving a rental car registered in this state. That situation would also arise if a nonresident was visiting friends of family, for instance, and driving a borrowed car that was registered in Ohio. Those visiting residents can be ticketed for violating Ohio’s car seat law if they drive Ohio vehicles, but they can assert the division (F) defense at trial.

{¶ 78} Whether it was the legislature’s actual intent to exclude from the child-restraint law all children riding in vehicles not registered in Ohio is unknown and irrelevant since the statute’s plain language requires the subject child to be riding in a vehicle registered in this state. We also note that statutes defining criminal offenses must be strictly construed against the state and liberally in favor of the accused. State v. Jordan (2000), 89 Ohio St.3d 488, 492, 733 N.E.2d 601, citing R.C. 2901.04(A).

{¶ 79} In conclusion, the legislature expressed that an essential element to a child-restraint violation is that the vehicle transporting the child is registered in Ohio. R.C. 4511.81(A) and (B). In this case, the state failed to prove this essential element. In fact, the state set forth affirmative evidence that the car was registered in Michigan. Because there is insufficient evidence of a violation of R.C. 4511.81(A), appellant’s child-restraint conviction is reversed with prejudice. See Lovejoy, 79 Ohio St.3d at 450, 683 N.E.2d 1112; Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541 (double jeopardy bars retrial if appellate court finds insufficient evidence).

{¶ 80} As to the charge of driving without a valid license, appellant contends here and under her pro se second supplemental assignment of error that there was insufficient evidence to support the degree of the offense with which she was convicted. She contends that her conviction and sentence for driving without a valid license should have been a minor misdemeanor rather than a first-degree misdemeanor. In support, she states that there was no evidence that her license had been expired for more than six months at the time of the incident; she also notes that she had no prior convictions for driving without a license or driving under suspension. The state’s brief makes no argument regarding this issue.

{¶ 81} However, appellant was charged with violating the following statute: “No person * * * shall operate any motor vehicle upon a highway * * * unless the person has a valid driver’s license issued under this chapter.” R.C. 4507.02(A)(1). See, also, R.C. 4507.04 (applying this chapter to nonresidents). At the time, the penalties for driving without a valid license were provided in R.C. 4507.99. Specifically, this statute provided:

{¶ 82} “(D) Whoever violates division (A)(1) or (3) of section 4507.02 of the Revised Code by operating a motor vehicle when the offender’s driver’s or commercial driver’s license has been expired for no more than six months is guilty of a minor misdemeanor. * * *

{¶ 83} “* * *

{¶ 84} “(H) Except as provided in divisions (A) to (E) of this section and unless another penalty is provided by the laws of this state, whoever violates any provision of sections 4507.01 to 4507.081 or 4507.10 to 4507.37 of the Revised Code is guilty of a misdemeanor of the first degree.” (See wwwdegislature.state. oh.us for this version of the statute effective until Jan. 1, 2004, when the 124th General Assembly passed 2002 S.B. 123 to renumber the sections and also to add new degrees where the offender has prior convictions of driving without a valid license.)

{¶ 85} Thus, the state had to prove and the court had to find that appellant’s license had been expired for more than six months in order to convict her of a first-degree misdemeanor and impose the penalties relative to that degree. See State v. Gordon (1971), 28 Ohio St.2d 45, 48, 57 O.O.2d 180, 276 N.E.2d 243 (state must prove degree enhancements beyond a reasonable doubt). If the state fails to prove that appellant’s license was expired for more than six months, then only a minor misdemeanor could be listed as the convicted crime with its maximum fine of $150 and no jail time. See R.C. 2929.28(A)(2)(a)(v). See, also, R.C. 2929.21 (Legislative Service Commission penalty table). A first-degree misdemeanor carries a maximum jail term of 180 days and a maximum fine of $1,000. R.C. 2929.24(A)(1); R.C. 2929.28(A)(2)(a)®. As aforementioned, the court here convicted appellant of first-degree-misdemeanor driving without a valid license. On this charge, the court sentenced her to the maximum jail time for a first-degree misdemeanor of 180 days, with 90 days suspended and 90 days of electronically monitored house arrest, and the court imposed two years of supervised probation. The court also imposed a $200 fine.

{¶ 86} We also note that the traffic ticket did not specify the degree of the offense and did not mark the preprinted blanks asking whether the license had been expired for more than six months or for six months or less. As set forth in assignment of error number one regarding the initial appearance, the court did not mention the degree of the offense, the possible penalties, or any allegations as to how long her license had been expired. As set forth in assignment of error number four, the bill of particulars provided by the state merely provided that she drove without a valid license and that the offense is a first-degree misdemeanor. It did not provide that the reason it was a first-degree misdemeanor was because of allegations that her license had been expired for more than six months.

{¶ 87} Most important, when the trooper testified, he merely stated with regard to this issue that the status of appellant’s license is expired. He was not asked and did not give any indication of how long her license had been expired. The state presented no evidence that appellant’s license had been expired for more than six months. Thus, although there is sufficient evidence of an expired license, there is insufficient evidence to support the penalty-enhancing element of being expired for more than six months.

{¶ 88} At trial, the state focused on license suspensions. At oral argument, the state responded to this issue by pointing to appellant’s suspension. However, appellant was only charged with driving without a valid license under R.C. 4507.02(A)(1). She was not charged with driving under a suspended license. In fact, in closing arguments, the trial court warned the state to stop speaking about a crime (driving under suspension) with which appellant was not charged. The state responded to the court’s warning by opining that appellant’s license was not valid both because it was expired and because it was suspended. However, the statute differentiates between the two categories. Furthermore, we have previously held that a person does not commit the offense of driving without a valid license by driving under suspension. State v. Logue (Feb. 11, 2000), Belmont App. No. 97BA46, 2000 WL 179765 (suspension does not make a license invalid). See, also, State v. Gilbo (1994), 96 Ohio App.3d 332, 337-338, 645 N.E.2d 69. Rather, driving without a valid license refers to those who have never had a license or those who have an expired license. See id. Thus, the state’s response is invalid.

{¶ 89} Due to the insufficiency of the evidence on a license that has been expired more than six months, appellant’s conviction and sentence can only reflect a minor misdemeanor. Thus, appellant’s conviction for first-degree misdemeanor driving without a valid license is modified to a conviction for minor-misdemeanor driving without a valid license. See R.C. 2945.79(D) (where insufficient evidence of degree of crime convicted but sufficient evidence of lesser degree, court of appeals can modify the offense). Since under assignment of error one, this court is reversing and remanding for a new trial on the driving-without-a-valid-license charge due to the problems with the initial appearance, the resolution of this assignment finding insufficient evidence of the higher degree limits any retrial to a minor-misdemeanor offense of driving without a license. See Lovejoy, 79 Ohio St.3d at 450, 683 N.E.2d 1112; Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541 (double jeopardy bars retrial if appellate court finds insufficient evidence).

{¶ 90} We now turn to the charge alleging that appellant failed to comply. Some of the arguments concerning this issue are also contained within the third and fourth subassignments within her fifth supplemental assignment of error. Thus, those arguments will also be addressed at this time. Pursuant to R.C. 2921.331:

{¶ 91} “(A) No person shall fail to comply with any lawful order or direction of any police officer invested with authority to direct, control, or regulate traffic.

{¶ 92} “(B) No person shall operate a motor vehicle so as willfully to elude or flee a police officer after receiving a visible or audible signal from a police officer to bring the person’s motor vehicle to a stop.

{¶ 93} “(C)(1) Whoever violates this section is guilty of failure to comply with an order or signal of a police officer.”

{¶ 94} Appellant was charged with and convicted of division (B) of this failure-to-comply statute. She contends that there was insufficient evidence to support her conviction and that conviction of that offense was against the manifest weight of the evidence. Specifically, she contends that no evidence supported the conclusion that she was willfully fleeing or eluding. She complains that the court used a thesaurus to define these terms. She argues that fleeing means escaping by acceleration and eluding means escaping by guile, and she claims that she did neither.

{¶ 95} She also points out that the police did not charge her with failure to comply. Rather, the prosecution added this charge a month after the incident. She notes that the trooper’s ticket gave notice of future charges for obstructing official business under R.C. 2921.31, which provides:

{¶ 96} “(A) No person, without privilege to do so and with purpose to prevent, obstruct, or delay the performance by a public official of any authorized act within the public official’s official capacity, shall do any act that hampers or impedes a public official in the performance of the public official’s lawful duties.”

{¶ 97} The prosecution’s bill of particulars stated that the obstruction offense (that was never actually charged) was for her initial refusal to supply identification. However, the trooper testified that he and his supervisor meant the charge of obstructing official business to encompass all her acts, including her failure to immediately pull over. The trooper stated that he did not charge appellant with the fleeing-and-eluding division of failure to comply because she was not aggressively trying to get away. His sergeant testified that they were trying to give her the benefit of a doubt regarding her stated desire to get to a safe place before pulling over and that is why she was not charged with failure to comply. The obstructing charge, which was a second-degree misdemeanor, as opposed to failure to comply, which is a first-degree misdemeanor, was dismissed by the state before trial.

{¶ 98} Appellant then factually notes that the trooper and the trucker testified that she slowed to the minimum permitted speed on the turnpike of 45 miles per hour and drove in the right lane with her right turn signal on. She testified that her hand signals were an attempt to point at the green exit signs to show that she would get off at the next exit. She did in fact get off at the first available exit, three miles away. She states that the evidence established that she was merely trying to get to a safe, populated spot before pulling over due to prior traumatic experiences. She also testified that she ended up in the tollbooth line because the right berm next to the line had construction barrels so she thought she would pull over once she went through the gate.

{¶ 99} The trooper confirmed that appellant slowed to 45 or 50 miles per hour and moved to the right lane, leaving her right turn signal on. He testified that he did not know what her hand signals meant or he thought they meant she would be pulling over to the berm. He stated that there was plenty of clear, unobstructed berm on which to stop in the three miles before the exit. He noted that when she finally pulled into a tollbooth line, he feared she was attempting to go through the gateway. On cross-examination, he opined that she was trying to escape by making him give up or by getting far enough away for him to lose sight of her. The sergeant noted that some police chases are high speed and some are not, and he noted that they cannot know the intent of the driver with regards to why there is not an immediate stop. The trucker opined on cross-examination that she was not trying to accelerate into a high-speed chase but that she was “trying to do an O.J.” It was also noted that appellant had a cell phone, but instead of calling 911 to explain her refusal to stop during the three-mile pursuit, she called Mr. Barnhill.

{¶ 100} First, we must determine whether, after viewing the evidence in the light most favorable to the state, some rational person could find that appellant’s actions and/or omissions constituted willful fleeing and eluding. Neither word is defined in the Ohio Revised Code. See State v. Thomas, 106 Ohio St.3d 133, 2005-Ohio-4106, 832 N.E.2d 1190, ¶ 15 (as to fleeing). Thus, we turn to “the time-honored rule that words used by the General Assembly are to be construed according to their common usage.” Id., quoting Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 103, 522 N.E.2d 489. The Supreme Court has stated that to flee is to run away from, to try to escape, to hasten for safety or to withdraw hastily. Thomas, 106 Ohio St.3d 133, 832 N.E.2d 1190, at ¶ 15, citing V Oxford English Dictionary (2d Ed.1989) 1037, and noting that Black’s Law Dictionary (8th Ed.2004) 764 does not define fleeing.

{¶ 101} “Since the meaning to the average ordinary person is that with which we are concerned in construing criminal statutes, the words ‘elude’ and ‘flee’ as used in R.C. 4511.02 must be given their ordinary meaning. Webster’s Third New International Dictionary defines ‘elude’ as ‘to avoid slyly or adroitly (as by artifice, stratagem, or dexterity).’ The same dictionary gives several definitions for ‘flee,’ including ‘to run away,’ or ‘to endeavor to avoid or escape from’ or ‘to leave abruptly.’ * * * Thus, it would appear that in the context of the statute the word ‘flee’ does connote haste and swiftness; whereas, the word ‘elude’ connotes the use of artifice.” Columbus v. Fantozzi (Mar. 10, 1981), Franklin App. Nos. 80AP-737, 80AP-738, 80AP-739, and 80AP-740, 1981 WL 3046.

{¶ 102} These definitions appear sound. Thus, the court is left to decide whether a reasonable person could find that appellant was eluding by slyly avoiding with artifice, stratagem, or dexterity. The trooper opined that appellant was hoping to elude him. One could come up with various theories to support appellant’s intent to elude. For instance, one could believe that she was trying to leave the jurisdiction and was hoping the trooper could not follow. Or one could believe that she was eluding the trooper by getting in the tollbooth line and hoping he got stuck behind cars. Furthermore, one could believe that she hoped the trooper would find someone else to pull over if she kept driving, such as the trucker who made unusual maneuverings, whom she did not know was the informant.

{¶ 103} Viewing the evidence in the light most favorable to the state, a rational person could find beyond a reasonable doubt that her actions after noticing the trooper’s signals constituted eluding as she was engaging in actions that could be construed as designed to slyly avoid the trooper by artifice, guile, or stratagem. Upon being ordered to pull over, appellant made hand signals, which she now admits were confusing. The trooper used lights, sirens, an air horn, and a loudspeaker to impress upon her the importance of stopping immediately. Still, she drove three miles and exited the turnpike. She kept driving and entered a tollbooth line when the trooper approached and ordered her to hand over her keys. She admitted she was going to pass through the gateway. After considering all of this evidence in the light most favorable to the state, there is sufficient evidence of eluding.

{¶ 104} As for weight of the evidence, if her claim was believed that she was merely trying to find a safe, populated place to pull over, then a trier of fact could find that she was not guilty of the willful fleeing or eluding required by R.C. 2921.331(B). Although there comes a point when one cannot just keep searching for what one considers to be a safe place (what if the nearest exit was 20 miles away?), if her search for a location was considered unreasonable, some other crime could have been charged like obstructing or failure to comply under division (A). However, we are merely concluding that the trial court could have found she was not guilty, not that the court had to so find.

{¶ 105} This is because there exist two reasonable constructions of the conflicting evidence here: (1) eluding or (2) finding a safe place (whether reasonably or unreasonably). Thus, one can disbelieve appellant’s testimony that she was only trying to find a safe place. The trial court was in the best position to judge her credibility. The fact that she was driving without a valid license can be considered a key piece of evidence as motive for eluding and provides weight in the state’s favor. See State v. Newsom, Belmont App. No. 02BE28, 2003-Ohio-3284, 2003 WL 21