State v. Melvin ( 2011 )


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  • [Cite as State v. Melvin, 2011-Ohio-6418.]
    COURT OF APPEALS
    ASHLAND COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    STATE OF OHIO                                :    JUDGES:
    :    Hon. William B. Hoffman, P.J.
    Plaintiff-Appellee                   :    Hon. Sheila G. Farmer, J.
    :    Hon. Julie A. Edwards, J.
    -vs-                                         :
    :
    CLARISSA LYNN MELVIN                         :    Case No. 11-COA-016
    :
    Defendant-Appellant                  :    OPINION
    NUNC PRO TUNC
    CHARACTER OF PROCEEDING:                          Appeal from the Municipal Court, Case
    No. 11-TRD-00634
    JUDGMENT:                                         Reversed
    DATE OF JUDGMENT:                                 December 13, 2011
    APPEARANCES:
    For Plaintiff-Appellee                            For Defendant-Appellant
    DAVID M. HUNTER                                   ADAM VAN HO
    1213 East Main Street                             137 South Main Street
    Ashland, OH 44805                                 Suite 201
    Akron, OH 44308
    Ashland County, Case No. 11-COA-016                                                      2
    Farmer, J.
    {¶ 1} On February 6, 2011, appellant, Clarissa Melvin, observed three puppies
    on the side of the interstate. She attempted to flag down a passing patrol car being
    operated by Ashland County Sheriff's Deputy, Sergeant Donald Sims. Sergeant Sims
    did not stop, but pursued a speeding vehicle instead. He stopped the speeding vehicle
    at the entrance to an exit ramp. As Sergeant Sims was talking to the driver of the
    speeding vehicle, appellant drove by and honked her horn.
    {¶ 2} Sergeant Sims stopped appellant and charged her with reckless operation
    in violation of R.C. 4511.20. A bench trial was held on February 23, 2011. By judgment
    order filed March 28, 2011, the trial court found appellant guilty and ordered her to pay a
    fine of $150.00 plus court costs.
    {¶ 3} Appellant filed an appeal and this matter is now before this court for
    consideration. Assignment of error is as follows:
    I
    {¶ 4} "APPELLANT'S CONVICTION FOR RECKLESS OPERATION IS BASED
    ON INSUFFICIENT EVIDENCE AND IS AGAINST THE MANIFEST WEIGHT OF THE
    EVIDENCE, IN VIOLATION OF SECTION 4511.20 OF THE OHIO REVISED CODE,
    THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
    CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION."
    I
    {¶ 5} Appellant claims her conviction for reckless operation was against the
    sufficiency and manifest weight of the evidence as the evidence presented failed to
    Ashland County, Case No. 11-COA-016                                                       3
    establish that her driving was in willful or wanton disregard for the safety of persons or
    property. We agree.
    {¶ 6} On review for sufficiency, a reviewing court is to examine the evidence at
    trial to determine whether such evidence, if believed, would support a conviction. State
    v. Jenks (1991), 
    61 Ohio St. 3d 259
    . "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." Jenks at
    paragraph two of the syllabus, following Jackson v. Virginia (1979), 
    443 U.S. 307
    . On
    review for manifest weight, a reviewing court is to examine 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." State v. Martin (1983), 
    20 Ohio App. 3d 172
    , 175. See also, State
    v. Thompkins, 
    78 Ohio St. 3d 380
    , 1997-Ohio-52. The granting of a new trial "should be
    exercised only in the exceptional case in which the evidence weighs heavily against the
    conviction." Martin at 175.
    {¶ 7} Appellant was cited for violating R.C. 4511.20(A) which states, "[n]o
    person shall operate a vehicle, trackless trolley, or streetcar on any street or highway in
    willful or wanton disregard of the safety of persons or property." In State v. Ducheine,
    Licking App. No. 09 CA 0096, 2010-Ohio-3122, ¶13, this court defined "willful or
    wanton" as follows:
    {¶ 8} "The Ohio Supreme Court has held that willful conduct 'implies an act
    done intentionally, designedly, knowingly, or purposely, without justifiable excuse.'
    Ashland County, Case No. 11-COA-016                                                        4
    State v. Earlenbaugh (1985), 
    18 Ohio St. 3d 19
    , 21, 
    479 N.E.2d 846
    , citing Black's Law
    Dictionary (5 Ed.1979) 1434. Wanton conduct, on the other hand, is defined as 'an act
    done in reckless disregard of the rights of others which evinces a reckless indifference
    of the consequences to the life, limb, health, reputation, or property of others.' 
    Id. at 21-
    22."
    {¶ 9} Sergeant Sims testified on the day in question, he observed a speeding
    vehicle on I-71. T. at 6. As he pulled out to stop the vehicle, he observed appellant
    "sitting along side the road.    And I thought maybe she was a disabled vehicle or
    something."     
    Id. As Sergeant
    Sims drove by appellant, he perceived her to look
    "angered that I didn't stop behind her when I pulled out from where I was sitting." 
    Id. Appellant "was
    waiving her hands out the window and kind of mouthing, you know, kind
    of like she was angry." 
    Id. {¶ 10}
    Sergeant Sims pursued the speeding vehicle and stopped it at the
    "entrance to the exit ramp up to 250" off of I-71. T. at 7-8. As he was talking to the
    driver, Sergeant Sims noticed a vehicle coming up behind him fast, approximately ten
    feet away. T. at 9-10. The driver of this vehicle "started laying on its horn back at my
    cruiser***[a]nd it continued on past me and all the way past the car***that I had pulled
    over." T. at 10. Sergeant Sims recognized the vehicle as the same vehicle which he
    had observed earlier being operated by appellant.           
    Id. Sergeant Sims
    testified
    appellant's vehicle was "going at a pretty good clip up the exit ramp." T. at 11. It was
    his opinion that appellant's "actions were definitely causing a hazard in that area." T. at
    14-15.
    Ashland County, Case No. 11-COA-016                                                     5
    {¶ 11} Appellant testified she observed three puppies on the side of I-71 so she
    pulled over and waved out the window to get Sergeant Sims's attention for help. T. at
    18-19. She observed Sergeant Sims pull out and drive by her and she decided to leave
    because "I thought he was doing his thing" with the speeding vehicle and "it wasn't like
    a huge deal." T. at 19. As she pulled onto the interstate, a van dropped in behind her
    and honked at her. T. at 19-20. She honked back which happened to be as she was
    exiting the interstate and passing Sergeant Sims. T. at 20. Appellant testified she
    "thought I was a fine distance away from him, because there was no other lane to get
    into since it's an off ramp."   
    Id. In addition,
    appellant testified she "slowed down
    immediately" because "it's a short exit ramp. You can't just go flying up an exit ramp
    and then, I mean, my brakes don't work that well." T. at 24.
    {¶ 12} Although it is clear from the testimony of both Sergeant Sims and
    appellant that appellant did not move over pursuant to R.C. 4511.23, it is also clear that
    Sergeant Sims had stopped the speeding vehicle at the very beginning of the exit ramp.
    The logical conclusion is that a total reduction in speed would not have been practical or
    safe for appellant.   The testimony relative to appellant's speed was vague.        This,
    coupled with the ten feet distance between appellant's vehicle and Sergeant Sims,
    leads us to the conclusion that there was insufficient evidence of recklessness to
    support a conviction of R.C. 4511.20.
    {¶ 13} Upon review, we find the trial court erred in convicting appellant of
    violating R.C. 4511.20 under the facts of this case.
    {¶ 14} The sole assignment of error is granted.
    Ashland County, Case No. 11-COA-016                                             6
    {¶ 15} The judgment of the Municipal Court of Ashland County, Ohio is hereby
    reversed.
    By Farmer, J.
    Hoffman, P.J. and
    Edwards, J. concur.
    s/ Sheila G. Farmer _____________
    _s/ William B. Hoffman__________
    _s/ Julie A. Edwards___________
    JUDGES
    SGF/sg110
    [Cite as State v. Melvin, 2011-Ohio-6418.]
    IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    STATE OF OHIO                                  :
    :
    Plaintiff-Appellee                     :
    :
    -vs-                                           :        JUDGMENT ENTRY
    :
    CLARISSA LYNN MELVIN                           :        NUNC PRO TUNC
    :
    Defendant-Appellant                    :        CASE NO. 11-COA-016
    For the reasons stated in our accompanying Memorandum-Opinion, the
    judgment of the Municipal Court of Ashland County, Ohio is reversed.             Costs to
    appellee.
    s/ Sheila G. Farmer _____________
    _s/ William B. Hoffman__________
    _s/ Julie A. Edwards___________
    JUDGES
    IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    STATE OF OHIO                               :
    :
    Plaintiff-Appellee              :
    :
    :
    - vs -                                      :
    :        JUDGMENT ENTRY
    CLARISSA LYNN MELVIN                        :
    :
    Defendant-Appellant                :        CASE NO. 11-COA-016
    :
    This Judgment Entry reflects the Opinion that was filed on November 30, 2011.
    There was an error on the Judgment Entry page in regard to the disposition of the case.
    IT IS SO ORDERED.
    s/ Sheila G. Farmer _____________
    _s/ William B. Hoffman__________
    _s/ Julie A. Edwards___________
    JUDGES
    

Document Info

Docket Number: 11-COA-016

Judges: Farmer

Filed Date: 12/13/2011

Precedential Status: Precedential

Modified Date: 10/30/2014