State v. Graham , 2012 Ohio 34 ( 2012 )


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  • [Cite as State v. Graham, 
    2012-Ohio-34
    .]
    COURT OF APPEALS
    TUSCARAWAS COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    STATE OF OHIO                                    JUDGES:
    Hon. W. Scott Gwin, P. J.
    Plaintiff-Appellee                       Hon. John W. Wise, J.
    Hon. Julie A. Edwards, J.
    -vs-
    Case No. 2011 AP 07 0031
    GREGORY J. GRAHAM
    Defendant-Appellant                      OPINION
    CHARACTER OF PROCEEDING:                      Criminal Appeal from the New Philadelphia
    Municipal Court, Case No. TRD 1003925
    JUDGMENT:                                     Affirmed
    DATE OF JUDGMENT ENTRY:                       January 3, 2012
    APPEARANCES:
    For Plaintiff-Appellee                        For Defendant-Appellant
    CHRISTINE M. WEIMER                           GREGORY J. GRAHAM
    ASSISTANT PROSECUTOR                          PRO SE
    150 East High Avenue                          5904 State Route 800 NE
    New Philadelphia, Ohio 44663                  Dover, Ohio 44622
    Tuscarawas County, Case No. 2011 AP 07 0031                                                 2
    Wise, J.
    {¶1}   Appellant Gregory J. Graham appeals from his traffic conviction, in the
    New Philadelphia Municipal Court, Tuscarawas County, on a citation for unlawfully
    driving on the left side of the roadway, R.C. 4511.30. The relevant facts leading to this
    appeal are as follows.
    {¶2}   On the afternoon of August 10, 2010, Debra Senko was driving her
    automobile westbound on State Route 212 in Lawrence Township, Tuscarawas
    County. Senko was heading to a work-related education planning meeting. There were
    no adverse weather conditions that afternoon. At about 2:39 PM, Senko slowed and
    duly engaged her car’s turn signal to make a left-hand turn onto Kingwood Drive.1 As
    Senko made her turn in the intersection, her car was struck on its left side by
    appellant’s motorcycle passing from the rear. The car received body damage, including
    a torn-off front bumper.
    {¶3}   After the Ohio State Highway Patrol responded, appellant was given a
    traffic citation under R.C. 4511.30, which prohibits, among other things, driving on the
    left side of the road at or near an intersection. The matter proceeded to a trial before a
    municipal court magistrate on September 1, 2010, following which appellant was found
    guilty of violating the statute. He was ordered to pay a fine of $17.00 plus court costs,
    and two points were assessed to his driver’s license.
    {¶4}   Appellant, with leave of court, filed an objection to the magistrate’s
    decision on October 22, 2010, which was heard by the trial court on February 9, 2011.
    1
    Appellant denied seeing Senko use her signal.
    Tuscarawas County, Case No. 2011 AP 07 0031                                          3
    {¶5}   The trial court, via a judgment entry filed on June 30, 2011, adopted the
    magistrate’s finding of guilty and corresponding sanctions.
    {¶6}   On July 7, 2011, appellant filed a notice of appeal. He herein raises the
    following three Assignments of Error:
    {¶7}   “I.     THE PROSECUTION ERRED IN PROCEEDING AFTER BEING
    SHOWN THE EVIDENCE IN THIS CASE.
    {¶8}   “II. THE MAGISTRATE ERRED BY FINDING DEFENDANT GUILTY.
    {¶9}   “III. THE JUDGE ERRED IN FINDING THE DEFENDANT GUILTY AND
    CHANGING THE TESTIMONY.”
    I.
    {¶10} In his First Assignment of Error, appellant contends the prosecution
    improperly proceeded on the case after reviewing photographic evidence of the
    intersection area.
    {¶11} We note appellant’s brief at this point alleges an error by the city
    prosecutor, rather than couching his argument as a potential error made by the trial
    court. See, e.g., In re White Children, Stark App.No. 2002CA00203, 
    2002-Ohio-4749
    , ¶
    4, citing Ohio Constitution Art. IV, § 3(B)(2). Said constitutional provision reads in
    pertinent part: “Courts of appeals shall have such jurisdiction as may be provided by
    law to review and affirm, modify, or reverse judgments or final orders of the courts of
    record inferior to the court of appeals within the district * * *.” See, also, App.R.
    16(A)(3).
    {¶12} Accordingly, we hold appellant has failed to present a cognizable assigned
    error for this Court to review. The First Assignment of Error is overruled.
    Tuscarawas County, Case No. 2011 AP 07 0031                                             4
    II., III.
    {¶13} In his Second and Third Assignments of Error, appellant contends the
    magistrate and judge erred in finding him guilty of violating R.C. 4511.30. We disagree.
    {¶14} We interpret appellant’s claims as being based on a theory of insufficiency
    of the evidence. In reviewing a claim of insufficient evidence, “[t]he relevant inquiry is
    whether, after viewing the evidence in a light most favorable to the prosecution, any
    rational trier of fact could have found the essential elements of the crime proven
    beyond a reasonable doubt.” State v. Jenks (1991), 
    61 Ohio St.3d 259
    , 
    574 N.E.2d 492
    , paragraph two of the syllabus.
    {¶15} R.C. 4511.30 states in pertinent part as follows:
    {¶16} “(A) No vehicle or trackless trolley shall be driven upon the left side of the
    roadway under the following conditions:
    {¶17} “ * * *
    {¶18} “(3) When approaching within one hundred feet of or traversing any
    intersection or railroad grade crossing.” (Emphasis added.)
    {¶19} Appellant first contends that the roadway at the intersection in question is
    not painted with yellow no-passing lines, thus making his conviction improper.
    However, in Chambers v. McFerren (1959), 
    168 Ohio St. 398
    , 
    155 N.E.2d 917
    ,
    paragraph two of the syllabus, the Ohio Supreme Court made clear that the fact that a
    highway is marked by a broken line separating its right lane from its left lane and that
    there are no yellow lines or other markings within one hundred feet of an intersecting
    highway does not constitute a legal excuse for a violation of R.C. 4511.30.
    Tuscarawas County, Case No. 2011 AP 07 0031                                             5
    {¶20} Appellant secondly contends that the area in question constitutes a “blind”
    intersection because of a curve and a rise in the terrain, and that finding him guilty of
    the offense in question violates due process. At trial, appellant introduced several
    photographs he took of the intersection approaches. Nonetheless, the magistrate
    reviewed the pictures and heard the testimony, specifically finding: “ *** You know,
    there’s a tiny bit of a hump here but the view is --- I mean you can see a long way
    there. You can see almost all the way to where the stores and so forth start, you know.
    It’s a little bit hazy but you can actually see one of the stores. There’s quite a line of
    sight there. ***.” Tr. at 40-41. We are herein disinclined to substitute our judgment for
    that of the trier of fact.
    {¶21} Appellant finally contends that in the judgment entry under appeal, the trial
    court “completely changed the defendant’s testimony and argument.” Appellant’s Brief
    at 2. Appellant does not further elaborate on this assertion. We note App.R. 16(A)(7)
    provides that an appellant’s brief must contain “[a]n argument containing the
    contentions of the appellant with respect to each assignment of error presented for
    review and the reasons in support of the contentions, with citations to the authorities,
    statutes, and parts of the record on which appellant relies.” (Emphasis added). As
    such, we find no merit in appellant’s argument in this regard.
    {¶22} We hold appellant’s traffic conviction under R.C. 4511.30 is supported by
    sufficient evidence. Accordingly, appellant's Second and Third Assignments of Error
    are overruled.
    Tuscarawas County, Case No. 2011 AP 07 0031                                       6
    {¶23} For the reasons stated in the foregoing opinion, the judgment of the New
    Philadelphia Municipal Court, Tuscarawas County, Ohio, is hereby affirmed.
    By: Wise, J.
    Gwin, P. J., and
    Edwards, J., concur.
    ___________________________________
    ___________________________________
    ___________________________________
    JUDGES
    Tuscarawas County, Case No. 2011 AP 07 0031                                7
    IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    STATE OF OHIO                         :
    :
    Plaintiff-Appellee             :
    :
    -vs-                                  :        JUDGMENT ENTRY
    :
    GREGORY J. GRAHAM                     :
    :
    Defendant-Appellant            :        Case No. 2011 AP 07 0031
    For the reasons stated in our accompanying Memorandum-Opinion, the
    judgment of the New Philadelphia Municipal Court, Tuscarawas County, Ohio, is
    affirmed.
    Costs assessed to Appellant.
    ___________________________________
    ___________________________________
    ___________________________________
    JUDGES
    

Document Info

Docket Number: 2011 AP 07 0031

Citation Numbers: 2012 Ohio 34

Judges: Wise

Filed Date: 1/3/2012

Precedential Status: Precedential

Modified Date: 2/19/2016