[Cite as State v. Beckett, 2012-Ohio-4814.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
STATE OF OHIO : William B. Hoffman, P.J.
: Sheila G. Farmer, J.
Plaintiff-Appellee : Julie A. Edwards, J.
:
-vs- : Case No. 2012 AP 01 0002
:
:
FLOYD D. BECKETT : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from Tuscarawas
County Court Case No. TRD 11
00427
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 12, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ROBERT R. STEPHENSON, II E. MARIE SEIBER
Newcomerstown Solicitor P.O. Box 108
206 West High Avenue Dennison, Ohio 44621
New Philadelphia, Ohio 44663
[Cite as State v. Beckett, 2012-Ohio-4814.]
Edwards, J.
{¶1} Appellant, Floyd D. Beckett, appeals a judgment of the Tuscarawas
County Court convicting him of improper starting (Newcomerstown Village Ordinance
331.13). Appellee is the State of Ohio.
STATEMENT OF FACTS AND CASE
{¶2} On March 10, 2011, Sandra Sears was operating a car in the Village of
Newcomerstown. Her daughter Marcella Sears was in the passenger seat, while her
son Daniel Sears was in the backseat. Daniel’s daughter had been life flighted to
Columbus and the group planned to stop at the Chase Bank in Newcomerstown before
traveling to Columbus.
{¶3} While the Sears vehicle was slowing down to turn into the bank near the
Newcomerstown News building, appellant pulled out of a parking space, striking the
Sears vehicle on the passenger side. Appellant said, “It’s okay, ma’am, everything’s
fine. I did hit you.” Daniel Sears replied, “Yeah, I know you knew it was your fault.”
Marcella told her brother to go back to the car.
{¶4} Shirley Hayes was working in the Newcomerstown News building and
heard the crash, but did not see the accident. She saw that an accident had occurred in
front of a building next to hers, which used to be a coffee shop. She called the police
because she could hear raised voices.
{¶5} Officer Bryan Eubanks of the Newcomerstown Police Department arrived
on the scene. He was aware that an ambulance had picked up Daniel Sears’ daughter
earlier and she was sent to Columbus by a life flight. However, at the scene, Daniel
Tuscarawas County App. Case No. 2012 AP 01 0002 3
Sears did not give Eubanks his real name, and instead indentified himself using the
name of Marcella’s son.
{¶6} At the scene of the accident, appellant’s passenger told the officer that the
accident happened either in front of the coffee shop or the Newcomerstown News.
Appellant told Eubanks that Sears was speeding. He told the officer that he went to pull
out from a parking spot, Sears was going too fast and he did not see her vehicle.
However, the officer believed Sears estimated speed of 25 mph to be accurate because
there would have been more damage to her car at a higher speed. The officer noted
that there was damage to the Sears vehicle on the front passenger bumper and parking
light, while the damage to appellant’s vehicle was between the tip of the driver’s side
door to almost even with the center of the tire. He noted that there was no damage to
the side of the Sears vehicle or to the front of the tire, as would normally be found if the
vehicles side-swiped.
{¶7} Appellant was cited for improper starting. The case proceeded to trial in
the Tuscarawas County Court. Appellant testified that he and his fiancé went to the
Family Dollar store to buy toilet paper. While traveling in front of the Newcomerstown
News, he felt someone bump the rear of the vehicle. The Sears vehicle then started to
pass him and side-swiped him to avoid an oncoming vehicle. He claimed the officer did
not talk to him, nor did the officer talk to his fiancé. He testified that the officer talked
only to the occupants of the Sears vehicle and then told him he was being cited. He
testified that the accident occurred half a block after he had pulled out of his parking
space, and that because Daniel Sears gave a false name to police, he believed he was
driving the vehicle and the drivers switched after the accident.
Tuscarawas County App. Case No. 2012 AP 01 0002 4
{¶8} The trial court found appellant guilty and fined him $25.00. He assigns
two errors on appeal:
{¶9} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN THAT THE
EVIDENCE WAS INSUFFICIENT TO FIND APPELLANT GUILTY OF IMPROPER
STARTING, A VIOLATION OF NEWCOMERSTOWN VILLAGE ORDINANCE §331.13.
{¶10} “II. THE TRIAL COURT ERRED AS A MATTER OF LAW IN THAT THE
VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
I, II
{¶11} Appellant argues that the judgment is against the manifest weight of the
evidence and is not supported by sufficient evidence. Appellant appears to argue that
he could not have been parked in front of the Newcomerstown News building because
Shirley Hayes testified that the two spaces in front of the building were occupied by her
vehicle and her co-worker’s vehicle.
{¶12} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court reviews the entire record, weighs the evidence and all
reasonable inferences, considers the credibility of witnesses, and determines whether in
resolving conflicts in evidence the trier of fact 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, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541,
quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983).
{¶13} An appellate court's function when reviewing the sufficiency of the
evidence is to determine 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
Tuscarawas County App. Case No. 2012 AP 01 0002 5
crime proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492, paragraph two of the syllabus (1991).
{¶14} Newcomerstown Village Ordinance 331.13 provides, “No person shall
start a vehicle, streetcar, or trackless trolley which is stopped, standing, or parked until
such movement can be made with reasonable safety.”
{¶15} There clearly was sufficient evidence, viewing the evidence in a light most
favorable to the prosecution, to support the conviction. Sandra and Marcella Sears
both testified that appellant pulled out from a parking spot, striking their vehicle.
Marcella testified that he pulled out from a spot in front of the Newcomerstown News,
while Sandra testified that the newspaper office was the closest building to where the
accident occurred. Shirley Hayes heard the accident which she testified happened in
front of a building next to the newspaper office, which used to be a coffee shop. Officer
Eubanks testified that the damage to the vehicle was consistent with appellant pulling
from a parking space into the Sears vehicle, and inconsistent with a side-swipe
accident. He further testified that appellant admitted to him at the scene that he pulled
out of a parking space and into the Sears vehicle, but claimed he did not see the vehicle
because it was traveling too fast. Further, Officer Eubanks testified that appellant’s
passenger told him the accident occurred at the coffee shop or the newspaper office.
{¶16} We also cannot find that the trier of fact lost its way in weighing the
evidence and considering the credibility of the witnesses. Appellant’s testimony that the
accident occurred when Sears side-swiped him attempting to pass contradicts all the
other evidence in the case, including that of the officer who testified that the physical
damage to the vehicles was not consistent with a side-swipe accident. Further, while it
Tuscarawas County App. Case No. 2012 AP 01 0002 6
is unclear exactly where appellant was parked, the witnesses agreed the accident
occurred somewhere in the area of the newspaper office or a former coffee shop, which
the evidence reflected are next to each other.
{¶17} The first and second assignments of error are overruled.
{¶18} The judgment of the Tuscarawas County Court is affirmed.
By: Edwards, J.
Hoffman, P.J. and
Farmer, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/r0828
[Cite as State v. Beckett, 2012-Ohio-4814.]
IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
FLOYD D. BECKETT :
:
Defendant-Appellant : CASE NO. 2012 AP 01 0002
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Tuscarawas County Court is affirmed. Costs assessed to appellant.
_________________________________
_________________________________
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JUDGES