Strongsville v. Abouelainein , 2016 Ohio 19 ( 2016 )

[Cite as Strongsville v. Abouelainein, 2016-Ohio-19.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 102608
CITY OF STRONGSVILLE
PLAINTIFF-APPELLEE
vs.
FADI ABOUELAINEIN
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Berea Municipal Court
Case No. 14TRD04953
BEFORE: Blackmon, J., E.T. Gallagher, P.J., and Stewart, J.
RELEASED AND JOURNALIZED: January 7, 2016
ATTORNEY FOR APPELLANT
Alan H. Kraus
Lazzaro and Kraus
20133 Farnsleigh Road, 2nd Floor
Shaker Heights, Ohio 44122
ATTORNEY FOR APPELLEE
George F. Lonjak
Prosecuting Attorney
City of Strongsville
614 Superior Avenue
Suite 1310
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:
{¶1} In this accelerated appeal, appellant Fadi Abouelainein (“Abouelainein”)
appeals his conviction for violating Strongsville Codified Ordinances 432.08 (a) and (b)
and assigns the following two errors for our review:
I. The trial court erred in finding appellant guilty for the traffic offense
under Strongsville Codified Ordinances 432.08(a) and (b) as there was
insufficient evidence of the essential elements of the traffic violation
charged.
II. Appellant’s conviction of violating Strongsville Codified Ordinances
432.08(a) and (b) is against the manifest weight of the evidence.
{¶2} Having reviewed the record and pertinent law, we affirm Abouelainein’s
conviction. The apposite facts follow.
{¶3} On August 4, 2014, as a result of a motor vehicle accident, Abouelainein
was charged with violating Strongsville Codified Ordinances 432.08(a) and (b).
Abouelainein pled not guilty, and the matter proceeded to a bench trial.
{¶4} The evidence produced at trial indicated that the accident occurred at 4:40
p.m., at the intersection of Pearl Road and South Drive in Strongsville, Ohio. Joshua
Novak pulled up to the stop sign on South Road. He wanted to make a left turn onto
Pearl Road to head north. In order to do so, he had to go across several lanes of traffic
on Pearl Road. There are two regular lanes heading south on Pearl Road in this area, and
there was also a multi-turn lane in the center of the road, which is a lane that allows turns
in both directions.
{¶5} Heather Skebo stopped her car at the Pearl Road and South Drive
intersection in the lane closest to the multi-turn lane. According to Skebo, there is a sign
instructing vehicles on Pearl Road to not block the South Drive entrance.
{¶6} As Novak pulled out cautiously to make his left turn, Abouelainein entered
the multi-turn lane on Pearl Road to turn onto Whitney Drive, which was 300 feet past
South Drive. As he did so, he hit the front driver’s side of Novak’s vehicle. According
to Skebo and Novak, Abouelainein came “out of nowhere.” Novak estimated that
Abouelainein was traveling approximately 35 mph.
{¶7} Officer Albert Heyne responded to the accident. He stated that other than
the arrows on the multi-turn lane, the intersection of Pearl Road and South Drive do not
have any traffic control devices controlling the exit and entry to South Drive. The officer
cited Abouelainein for misuse of the multi-turn lane. He stated that according to the
Ohio Bureau of Motor Vehicles Drivers’ Handbook, a driver may not enter the
multi-turning lane until the driver is preparing to make the turn. It is not to be used for
passing other drivers. He stated that the only reason Abouelainein would have been in
that lane was to take a left turn onto Whitney Drive, which was 300 feet past South Drive.
There was nowhere else to make a left turn. Therefore, he concluded that Abouelainein
must have been using the multi-turn lane in order to pass the traffic that was backed up on
Pearl Road to get to Whitney. Abouelainein did not testify.
{¶8} The trial court concluded that Abouelainein violated the traffic ordinance
and ordered Abouelainein to pay a $50 fine plus court costs. The matter was stayed
pending appeal.
Sufficiency of the Evidence
{¶9} Abouelainein argues that the evidence in support of his conviction for the
traffic violation was insufficient.
{¶10} Crim.R. 29 mandates that the trial court issue a judgment of acquittal where
the prosecution’s evidence is insufficient to sustain a conviction for the offense.
Cleveland v. Pate, 8th Dist. Cuyahoga No. 99321, 2013-Ohio-5571. Crim.R. 29(A) and
sufficiency of evidence review require the same analysis. State v. Mitchell, 8th Dist.
Cuyahoga No. 95095, 2011-Ohio-1241, citing State v. Tenace, 109 Ohio St. 3d 255,
2006-Ohio-2417, 847 N.E.2d 386. A challenge to the sufficiency of the evidence
supporting a conviction requires the court to determine whether the prosecution has met
its burden of production at trial. State v. Givan, 8th Dist. Cuyahoga No. 94609,
2011-Ohio-100, citing State v. Thompkins, 78 Ohio St. 3d 380, 1997-Ohio-52, 678 N.E.2d
541.
{¶11} The 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. State v. Vickers, 8th Dist.
Cuyahoga No. 97365, 2013-Ohio-1337, citing State v. Jenks, 61 Ohio St. 3d 259, 574
N.E.2d 492 (1991), paragraph two of the syllabus.
{¶12} Abouelainein was cited under Strongsville Codified Ordinances 432.08(a)
and (b). These sections provide as follows:
Whenever any roadway has been divided into two or more clearly marked
lanes for traffic or wherever traffic is lawfully moving in two or more
substantially continuous lines in the same direction, the following rules
apply:
(a) A vehicle shall be driven, as nearly as is practicable, entirely within a
single lane or line of traffic and shall not be moved from such lane or line
until the driver has first ascertained that such movement can be made with
safety.
(b) Upon a roadway, which is divided into three lanes and provides for
two-way movement of traffic, a vehicle shall not be driven in the center
lane except when overtaking and passing another vehicle where the
roadway is clearly visible and such center lane is clear of traffic within a
safe distance, or when preparing for a left turn, or where such center lane is
at the time allocated exclusively to traffic moving in the direction the
vehicle is proceedings and is posted with signs to give notice of such
allocation.
{¶13} In the instant case, the accident occurred when Abouelainein drove his
vehicle in the Pearl Road multi-turn lane in an area where there was nowhere for him to
turn for at least 300 more feet. Although at trial Abouelainein’s attorney made much of
the fact that there was no sign to give notice of the multi-lane allocation, Officer Heyne
testified that the pavement was clearly marked with arrows. According to the officer, the
Ohio Bureau of Motor Vehicles Handbook of Motor Vehicle Laws sets forth the law
governing multi-turn lanes. The handbook states that the lane “must not be used for
passing. It may be used only to make the turning movement. Vehicles from either
direction may use the lane immediately prior to making a left hand turn.” Using the
multi-turn lane for 300 feet prior to making a left hand turn is not the proper use of a
multi-turn lane. This was not a dedicated left hand turn lane, but a lane to be used by
traffic proceeding in both directions. The lane allows an area to wait to turn without
impeding the traffic in the other lanes. Here, the evidence showed the lane was marked
with multi-directional left arrows, indicating that this was not a dedicated left turn lane,
but a lane to be shared with oncoming traffic. Thus, there was sufficient evidence that
Abouelainein violated Strongsville Codified Ordinances 432.08(b).
{¶14} Moreover, both Novak and Skebo testified that Abouelainein was traveling
at a high rate of speed and “came out of nowhere.” This was an area congested with
rush-hour traffic. Thus, Abouelainein was driving through the area without first
ascertaining if it was safe to proceed. Thus, there was also sufficient evidence that
Abouelainein violated Strongsville Codified Ordinances 432.08(a).
{¶15} Abouelainein also contends that his citation failed to explicitly state the
exact section he violated. His ticket stated “illegal lane usage” and cited to Strongsville
Codified Ordinances 432.08, without telling him which section of that ordinance he
violated. “Traffic offenses need not be issued with the specificity of indictments.”
Cleveland v. Austin, 55 Ohio App. 2d 215, 220, 380 N.E.2d 1357 (8th Dist.1978). While
a traffic citation must provide notice of the nature of the charge, that notice can be
satisfied where the ticket indicates the basic facts and sets forth the ordinance at issue.
Bellville v. Kieffaber, 114 Ohio St. 3d 124, 2007-Ohio-3763, 870 N.E.2d 697, ¶ 19, citing
Austin. In the instant case, the ticket adequately advised Abouelainein of the charge he
was facing. Abouelainein’s first assigned error is overruled.
Manifest Weight of the Evidence
{¶16} Abouelainein also contends that his convictions were against the manifest
weight of the evidence.
{¶17} In State v. Wilson, 113 Ohio St. 3d 382, 2007-Ohio-2202, 865 N.E.2d 1264,
the Ohio Supreme Court addressed the standard of review for a criminal manifest weight
challenge, as follows:
The criminal manifest-weight-of-the-evidence standard was explained in
State v. Thompkins (1997), 78 Ohio St. 3d 380, 678 N.E.2d 541. In
Thompkins, the court distinguished between sufficiency of the evidence and
manifest weight of the evidence, finding that these concepts differ both
qualitatively and quantitatively. Id. at 386, 678 N.E.2d 541. The court
held that sufficiency of the evidence is a test of adequacy as to whether the
evidence is legally sufficient to support a verdict as a matter of law, but
weight of the evidence addresses the evidence’s effect of inducing belief.
Id. at 386-387, 678 N.E.2d 541. In other words, a reviewing court asks
whose evidence is more persuasive — the state’s or the defendant’s? We
went on to hold that although there may be sufficient evidence to support a
judgment, it could nevertheless be against the manifest weight of the
evidence. Id. at 387, 678 N.E.2d 541. “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 factfinder’s resolution of the conflicting testimony.” Id. at 387,
678 N.E.2d 541, citing Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S. Ct.
2211, 72 L. Ed. 2d 652.
Id. at ¶ 25.
{¶18} An appellate court may not merely substitute its view for that of the jury, but
must find that “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.” Thompkins at 387. Accordingly, reversal on manifest weight
grounds is reserved for “the exceptional case in which the evidence weighs heavily
against the conviction.” Id.
{¶19} Abouelainein has failed to cite to any conflicting evidence. Therefore, we
conclude there is no evidence that the trial court “in resolving conflicts in the evidence”
lost its way so that Abouelainein’s conviction constituted a “manifest miscarriage of
justice.” In the event he is contending that Novak’s behavior after the accident, where he
apologized to Abouelainein, conflicted with his testimony at trial that Abouelainein was
at fault, the trial court did not err by resolving the conflict. Novak testified at trial that he
apologized because it was his first accident and he was scared. Accordingly,
Abouelainein’s second assigned error is overruled.
{¶20} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Berea Municipal Court to carry
this judgment into execution. Case remanded to the trial court for execution of
sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE
EILEEN T. GALLAGHER, P.J., CONCURS;
MELODY J. STEWART, J., DISSENTS
(SEE ATTACHED DISSENTING OPINION)
MELODY J. STEWART, J., DISSENTING:
{¶21} By its own terms, Strongsville Codified Ordinances 432.08(b) states that a
vehicle shall not be driven in the center lane except “when preparing for a left turn.”
When Abouelainein entered the center turn lane on Pearl Road, that lane was painted with
an arrow indicating a left turn. As the police officer indicated at trial, that left-turn arrow
indicated that from that point forward, the lane was dedicated to a left turn onto Whitney
Drive because there was no other place to make a left turn prior to Whitney Drive. That
being the case, Abouelainein entered the center lane with the intent to make a left turn.
If he passed cars while doing so, that act was incidental to making the turn. To accept
the majority’s interpretation of the ordinance would mean that under no circumstances
could a driver enter a turn lane if doing so resulted in the center lane driver passing
another vehicle in a through lane. That would make center turn lanes useless because
turn lanes are designed to alleviate congestion at intersections, a goal that necessarily
requires that some drivers who enter turn lanes would pass through drivers waiting. If
the city of Strongsville does not want drivers entering the center turn lane where
Abouelainein entered, in this case more than 300 feet from the only left turn that can be
made, the city should not have a left turn arrow prominently painted in the center lane and
more than 300 feet from Whitney Drive, indicating exactly the opposite. The location of
the left turn arrow baits — no encourages — drivers who want to turn left at Whitney
Drive to proceed in a way that the trial court and the majority opinion have determined to
be illegal. Drivers beware.
{¶22} Finally, there was likewise no evidence to show that Abouelainein violated
Strongsville Codified Ordinances 432.08(a), which states that a vehicle shall not be
moved from a lane of traffic until the driver has first ascertained that such movement can
be made with safety. Abouelainein had the right of way because there was no traffic
signal on Pearl Road at its intersection with South Drive. The driver on South Drive had
a stop sign and thus had the duty to yield to oncoming traffic when making a left turn into
traffic. See R.C. 4511.43(A). Although the driver said that he proceeded cautiously, he
was not cautious enough and failed to yield to Abouelainein.
{¶23} For these reasons, I respectfully dissent and would vacate the judgment.