[Cite as State v. Thomas, 2014-Ohio-319.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. Sheila G. Farmer, J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
:
-vs- :
: Case No. 13 CAC 05 0039
RYAN J. THOMAS :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Delaware
Municipal Court, Case No. 13 TRD 02895
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 29, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ELIZABETH A. MATUNE J. MICHAEL REIDENBACH
Assistant Prosecuting Attorney WILLIAM THOMAS
Delaware City Prosecutor 163 North Sandusky Street
70 North Union Street Delaware, OH 43015
Delaware, OH 43015
[Cite as State v. Thomas, 2014-Ohio-319.]
Gwin, P.J.
{¶1} Appellant Ryan J. Thomas [“Thomas”] appeals his conviction and
sentence for one count of operation without maintain reasonable control in violation of
R.C. 4511.02 after a bench trial in the Delaware County Municipal Court.
Facts and Procedural History
{¶2} On March 6, 2013, Thomas was driving his pickup truck with a front
snowplow northbound on State Route 257, a two-lane road, at approximately 3:00 am. It
was snowing and there was heavy snow on the roads. Thomas was working as part of
his business of snow removal services. Due to the conditions, Thomas was travelling
between 25 mph and 30 mph in a speed zone marked 55 mph. Thomas was in control
of his truck at this time. While traveling northbound, a southbound dump truck with an
oversized plow was “encroaching” Thomas's lane of travel. Thomas moved to the right
of his lane of travel with two of the truck’s tires going off the road onto the grass. After
the other snowplow had passed, Thomas attempted to turn left to reenter his lane of
travel; he crossed over the centerline of the roadway, travelled across the lane
designated for oncoming traffic, went off the road, down an embankment and collided
with a tree.
{¶3} Shortly thereafter, State Highway Patrol Trooper Steven M. Schemine
noticed taillights “sticking up out of the ditch.” Trooper Schemine approached Thomas's
vehicle and proceeded to interview Thomas and investigate the scene. Thomas stated
he "overcorrected" and went off the left side of the road. Further, Thomas wrote in his
statement he had "over [compensated]." Trooper Schemine issued a citation for
violation of R.C. 4511.202.
Delaware County, Case No. 13 CAC 05 0039 3
{¶4} On April 2, 2013, a bench trial was held before the Delaware County
Municipal Court. Trooper Schemine and Thomas were the only witnesses. Thomas
hand written account of the events as given to Trooper Schemine the night of the
incident was admitted into evidence.
{¶5} After hearing testimony from Trooper Schemine and Thomas, the trial
court found Thomas guilty. Thomas subsequently filed a motion for a new trial pursuant
to Crim. R. 33(A)(4) and (5), which was denied.
Assignments of Error
{¶6} Thomas raises three assignments of error,
{¶7} “I. THE EVIDENCE WAS NOT LEGALLY SUFFICIENT TO SUPPORT A
GUILTY VERDICT AS THE STATE FAILED TO PROVE EACH AND EVERY
ELEMENT OF THE OFFENSE BEYOND A REASONABLE DOUBT.
{¶8} “II. THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE AS THE ACCIDENT WAS CAUSED BY A SUDDEN EMERGENCY.
{¶9} “III. TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION
FOR A NEW TRIAL.”
Analysis
{¶10} Thomas’ first, second and third assignments of error raise common and
interrelated issues; therefore, we will address the arguments together. All of Thomas’
assignments contend that Thomas was confronted by a sudden emergency not of his
making and beyond his control. As such, his conviction is against the manifest weight
and sufficiency of the evidence.
Delaware County, Case No. 13 CAC 05 0039 4
{¶11} Our review of the constitutional sufficiency of evidence to support a
criminal conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979), which requires a court of appeals to determine whether
“after viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Id.; see also McDaniel v. Brown, 558 U.S. 120, 130 S.Ct. 665, 673, 175 L.Ed.2d
582(2010) (reaffirming this standard); State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-
1017, 926 N.E.2d 1239–Ohio–1017, ¶ 146; State v. Clay, 187 Ohio App.3d 633, 2010-
Ohio-2720, 933 N.E.2d 296 (5th Dist.)–Ohio–2720, ¶ 68.
{¶12} Weight of the evidence addresses the evidence's effect of inducing belief.
State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), superseded
by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio
St.3d 89, 684 N.E.2d 668, 1997-Ohio–355. Weight of the evidence concerns “the
inclination of the greater amount of credible evidence, offered in a trial, to support one
side of the issue rather than the other. It indicates clearly to the jury that the party
having the burden of proof will be entitled to their verdict, if, on weighing the evidence in
their minds, they shall find the greater amount of credible evidence sustains the issue
which is to be established before them. Weight is not a question of mathematics, but
depends on its effect in inducing belief.” (Emphasis sic.) Id. at 387, 678 N.E.2d 541,
quoting Black's Law Dictionary (6th Ed. 1990) at 1594.
{¶13} When a court of appeals reverses a judgment of a trial court on the basis
that the verdict is against the weight of the evidence, the appellate court sits as a
“’thirteenth juror’” and disagrees with the fact finder’s resolution of the conflicting
Delaware County, Case No. 13 CAC 05 0039 5
testimony. Id. at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102
S.Ct. 2211, 72 L.Ed.2d 652 (1982). However, an appellate court may not merely
substitute its view for that of the jury, but must find that “‘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.’” State v. Thompkins, supra, 78 Ohio St.3d at 387, quoting State v.
Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist. 1983).
Accordingly, reversal on manifest weight grounds is reserved for “‘the exceptional case
in which the evidence weighs heavily against the conviction.’” Id.
“[I]n determining whether the judgment below is manifestly against
the weight of the evidence, every reasonable intendment and every
reasonable presumption must be made in favor of the judgment and the
finding of facts.
***
“If the evidence is susceptible of more than one construction, the
reviewing court is bound to give it that interpretation which is consistent
with the verdict and judgment, most favorable to sustaining the verdict and
judgment.”
Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.
3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).
{¶14} R.C. 4511.202, Operation without reasonable control provides,
(A) No person shall operate a motor vehicle, trackless trolley,
streetcar, agricultural tractor, or agricultural tractor that is towing, pulling,
or otherwise drawing a unit of farm machinery on any street, highway, or
Delaware County, Case No. 13 CAC 05 0039 6
property open to the public for vehicular traffic without being in reasonable
control of the vehicle, trolley, streetcar, agricultural tractor, or unit of farm
machinery.
{¶15} The “ordinary standard of negligence” provides “the requisite proof of
culpability within * * * [the] ordinance.” State v. Lett, 5th Dist. Ashland No. 02COA049,
2002-Ohio-3366, ¶12 (construing analogous city ordinance), citing State v. Jones 10th
Dist. Franklin No. 88AP-920, 1989 WL 43286(Apr. 25, 1989). As the Court of Appeals
for the Fourth District has observed,
Simply put, motor vehicle operators must keep their vehicles under
control and on their own side of the roadway. See State v. Lunsford
(1987), 118 Ohio App.3d 380, 383, 692 N.E.2d 1078; also see Oechsle v.
Hart (1967), 12 Ohio St.2d 29, 34, 231 N.E.2d 306. There is no question
that Davis failed to meet that obligation. By her own admission, Davis
swerved the bus to the right and into a ditch, brought the bus back onto
the road, and veered across the road through the other lane of travel into
an adjacent field and rolled the bus. This evidence sufficiently establishes
that Davis failed to maintain reasonable control of her vehicle.
State v. Davis, 4th Dist. Pickaway No. 04CA1, 2004 WL 2390013(Oct. 21, 2004), ¶11.
{¶16} In Oechsle, the defendant's car skidded on an icy or wet spot on the
pavement and went left of center, striking another vehicle. The Supreme Court noted
that a showing by a motorist that he was a victim of a sudden emergency would excuse
his failure to comply with the statute in question. 12 Ohio St.2d at 34, 231 N.E.2d 306.
However, the Court noted,
Delaware County, Case No. 13 CAC 05 0039 7
As was stated in paragraph five of the syllabus of Spalding v.
Waxler, 2 Ohio St.2d 1, 205 N.E.2d 890:
‘An emergency which will relieve a motorist of his duty to comply
with a safety statute regulating vehicular traffic must arise as the result of
something over which he has no control. A self-created emergency, one
arising from the driver’s own conduct or from circumstances under his
control, cannot serve as an excuse.’
Skidding upon wet or icy roadway pavement is a circumstance
within the power of motorists to prevent. Bad road conditions, alone,
should not excuse a driver from the mandatory requirements of Sections
4511.25 [Lanes of travel upon roadways] and 4511.26 [Vehicles traveling
in opposite directions], Revised Code.
***
However, the operator of a motor vehicle is responsible for keeping
his vehicle under control and on his side of the road. This is true
irrespective of the condition of the road. Violation of Sections 4511.25 and
4511.26, Revised Code, is negligence per se. It follows that defendant
must bear the loss, for it is her violation of those statutes that caused the
loss. Peters v. B. & F. Transfer Co., 7 Ohio St.2d 143, 219 N.E.2d 27. Cf.
Stump v. Phillians, 2 Ohio St.2d 209, 207 N.E.2d 762.
Oechsle, 12 Ohio St.2d at 34, 231 N.E.2d 306. The Oechsle Court concluded,
It was error for the trial court to so charge the jury as the sudden
emergency doctrine was not properly in the case, where the only
Delaware County, Case No. 13 CAC 05 0039 8
justification offered for defendant’s driving in the left half-i. e., the ‘wrong
side’-of the roadway was that she unexpectedly encountered an isolated
patch of ice on an otherwise clear highway.
Oechsle, 12 Ohio St.2d at 35, 231 N.E.2d 306.
{¶17} In the case at bar, the evidence established that Thomas was aware of the
snowy conditions on the roadway and was proceeding without incident or difficulty. He
moved to the right side of the road without difficulty to allow the other snowplow
additional room. After the other vehicle had passed, Thomas brought his truck back
onto the roadway and veered into the oncoming lane and subsequently off the road and
into the embankment.
{¶18} Viewing the evidence in a light most favorable to the prosecution, we
conclude that a reasonable person could have found beyond a reasonable doubt that
Thomas committed the crime of operating his vehicle without reasonable control in
violation of R.C. 4511.202. We hold, therefore, that the state met its burden of
production regarding each element of the crime and, accordingly, there was sufficient
evidence to support Thomas’ conviction.
{¶19} Ultimately, “the reviewing court must determine whether the appellant or
the appellee provided the more believable evidence, but must not completely substitute
its judgment for that of the original trier of fact ‘unless it is patently apparent that the fact
finder lost its way.’” State v. Pallai, 7th Dist. Mahoning No. 07 MA 198, 2008-Ohio-6635,
¶31, quoting State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964
(2nd Dist. 2004), ¶ 81. In other words, “[w]hen there exist two fairly reasonable views of
the evidence or two conflicting versions of events, neither of which is unbelievable, it is
Delaware County, Case No. 13 CAC 05 0039 9
not our province to choose which one we believe.” State v. Dyke, 7th Dist. Mahoning
No. 99 CA 149, 2002-Ohio-1152, at ¶ 13, citing State v. Gore, 131 Ohio App.3d 197,
201, 722 N.E.2d 125(7th Dist. 1999).
{¶20} The weight to be given to the evidence and the credibility of the witnesses
are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d
212(1967), paragraph one of the syllabus; State v. Hunter, 131 Ohio St.3d 67, 2011-
Ohio-6524, 960 N.E.2d 955, ¶118. Accord, Glasser v. United States, 315 U.S. 60, 80,
62 S.Ct. 457, 86 L.Ed. 680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct.
843, 74 L.Ed.2d 646 (1983).
{¶21} Although Thomas testified and argued that the he lost control as a result
of a “sudden emergency” and that he misspoke when he told Trooper Schemine and
wrote in his statement the night of the incident that he “overcompensated” while
attempting to get back onto the roadway, the weight to be given to the evidence and the
credibility of the witnesses are issues for the trier of fact. State v. DeHass, 10 Ohio
St.2d 230, 227 N.E.2d 212(1967), paragraph one of the syllabus; State v. Hunter, 131
Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶118. Accord, Glasser v. United
States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Marshall v. Lonberger, 459
U.S. 422, 434, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983). The judge as the trier of fact was
free to accept or reject any and all of the evidence offered by the parties and assess the
witness’s credibility. "While the [trier of fact] may take note of the inconsistencies and
resolve or discount them accordingly * * * such inconsistencies do not render
defendant's conviction against the manifest weight or sufficiency of the evidence". State
v. Craig, 10th Dist. Franklin No. 99AP-739, 1999 WL 29752 (Mar 23, 2000) citing State
Delaware County, Case No. 13 CAC 05 0039 10
v. Nivens, 10th Dist. Franklin No. 95APA09-1236, 1996 WL 284714 (May 28, 1996).
Indeed, the [trier of fact] need not believe all of a witness' testimony, but may accept
only portions of it as true. State v. Raver, 10th Dist. Franklin No. 02AP-604, 2003-Ohio-
958, ¶21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964); State v.
Burke, 10th Dist. Franklin No. 02AP-1238, 2003-Ohio-2889, citing State v. Caldwell, 79
Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although the evidence may have
been circumstantial, we note that circumstantial evidence has the same probative value
as direct evidence. State v. Jenks, supra.
“[I]n determining whether the judgment below is manifestly against
the weight of the evidence, every reasonable intendment and every
reasonable presumption must be made in favor of the judgment and the
finding of facts.
***
“If the evidence is susceptible of more than one construction, the
reviewing court is bound to give it that interpretation which is consistent
with the verdict and judgment, most favorable to sustaining the verdict and
judgment.”
Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.
3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191-192 (1978).
{¶22} In Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E. 2d 118 (1954), the
Supreme Court further cautioned,
The mere number of witnesses, who may support a claim of one or
the other of the parties to an action, is not to be taken as a basis for
Delaware County, Case No. 13 CAC 05 0039 11
resolving disputed facts. The degree of proof required is determined by
the impression which the testimony of the witnesses makes upon the trier
of facts, and the character of the testimony itself. Credibility, intelligence,
freedom from bias or prejudice, opportunity to be informed, the disposition
to tell the truth or otherwise, and the probability or improbability of the
statements made, are all tests of testimonial value. Where the evidence is
in conflict, the trier of facts may determine what should be accepted as the
truth and what should be rejected as false. See Rice v. City of Cleveland,
114 Ohio St. 299, 58 N.E.2d 768.
161 Ohio St. at 477-478. (Emphasis added).
A fundamental premise of our criminal trial system is that “the [trier
of fact] is the lie detector.” United States v. Barnard, 490 F.2d 907, 912
(9th Cir. 1973) (emphasis added), cert. denied, 416 U.S. 959, 94 S.Ct.
1976, 40 L.Ed.2d 310 (1974). Determining the weight and credibility of
witness testimony, therefore, has long been held to be the “part of every
case [that] belongs to the [trier of fact], who [is] presumed to be fitted for it
by [his] natural intelligence and their practical knowledge of men and the
ways of men.” Aetna Life Ins. Co. v. Ward, 140 U.S. 76, 88, 11 S.Ct. 720,
724-725, 35 L.Ed. 371 (1891).
United States v. Scheffer (1997), 523 U.S. 303, 313, 118 S.Ct. 1261, 1266-1267(1997).
{¶23} We find that this is not an “‘exceptional case in which the evidence weighs
heavily against the conviction.’” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541,
Delaware County, Case No. 13 CAC 05 0039 12
quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The judge neither lost his way
nor created a miscarriage of justice in convicting Thomas of the charge.
{¶24} Based upon the foregoing and the entire record in this matter, we find
Thomas’ conviction was not against the sufficiency or the manifest weight of the
evidence. To the contrary, the judge appears to have fairly and impartially decided the
matters before him. The judge as a trier of fact can reach different conclusions
concerning the credibility of the testimony of the officer and Thomas. This court will not
disturb the judge's finding so long as competent evidence was present to support it.
State v. Walker, 55 Ohio St.2d 208, 378 N.E.2d 1049 (1978). The judge heard the
witnesses, evaluated the evidence, and was convinced of Thomas’ guilt.
{¶25} Finally, upon careful consideration of the record in its entirety, we find that
there is substantial evidence presented which if believed, proves all the elements of the
crime beyond a reasonable doubt.
{¶26} As Thomas’ conviction was not against the manifest weight or the
sufficiency of the evidence, the trial court correctly overruled Thomas’ motion for a new
trial.
Delaware County, Case No. 13 CAC 05 0039 13
{¶27} Thomas’ first, second and third assignments of error are overruled in their
entirety, and the judgment of the Delaware Municipal Court is affirmed.
By Gwin, P.J.,
Farmer, J., and
Delaney, J., concur