Cleveland v. Ignatov , 2012 Ohio 596 ( 2012 )

[Cite as Cleveland v. Ignatov, 2012-Ohio-596.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97011
CITY OF CLEVELAND
PLAINTIFF-APPELLEE
vs.
YULIYAN T. IGNATOV
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART, REVERSED IN PART AND VACATED IN
PART
Criminal Appeal from the
Cleveland Municipal Court
Case No. 2011 TRD 017013
BEFORE: Sweeney, J., Boyle, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: February 16, 2012
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ATTORNEY FOR APPELLANT
Scott A. Rumizen, Esq.
Kraig & Kraig
815 Superior Avenue
1920 Superior Building
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
William D. Mason, Esq.
Cuyahoga County Prosecutor
By: Gina M. Villa, Esq.
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
Victor R. Perez, Esq.
Chief City Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
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JAMES J. SWEENEY, J.:
{¶1} Defendant-appellant Yuliyan T. Ignatov appeals the judgment of the
Cleveland Municipal Court that found him guilty of two misdemeanor traffic violations.
For the reasons that follow, we affirm in part and reverse and vacate in part.
{¶2} At the bench trial, the following evidence was introduced:
{¶3} On March 7, 2011, defendant was driving a truck southbound on East 71st
Street, a thoroughfare with enough room for two vehicles to travel side-by-side in the
same direction. Michael Dungy was driving his grandmother’s car in the same direction.
Mark Smith also testified that he was driving at the same time in the same direction
behind them.
{¶4} Defendant positioned his truck near the center line as he intended to make a
right-hand turn onto Park Avenue. Defendant testified that the truck had to be in this
position in order to make the right-hand turn at the intersection. Defendant testified that
he used his directional and checked his rearview mirror. He did not see Dungy’s vehicle
on the inside curb lane of East 71st Street.
{¶5} Dungy testified that he moved into the right lane and was passing
defendant’s truck. At that time, he did not observe any indicator lights being used by
defendant. Dungy said his rate of speed was about 25 miles per hour. As he was passing
defendant’s truck, the truck started turning right and Dungy began beeping his horn and
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slowing down. He said defendant was not paying attention and the trailer part of the
truck struck Dungy’s vehicle causing damage.
{¶6} Dungy observed that defendant was wearing a headset, which defendant
confirmed he used in order to be able to talk on his phone.
{¶7} Smith testified that he was leaving a donut store when he noticed the truck.
He was intending to write down the trucking company’s name or number to provide to a
friend looking for work. Smith recalled looking for a pen when his attention was
redirected to the truck, which was involved in a collision at the intersection of East 71st
and Park. Smith caught up with defendant who apparently had not realized his trailer hit
Dungy’s vehicle. Smith offered to drive defendant back to the scene and gave him his
contact information.
{¶8} Defendant and Dungy both spoke to Officer Litton who had responded to
the scene. Defendant did not advise Officer Litton that Smith was an eyewitness and
Smith had already left.
{¶9} After conducting an investigation, Litton cited defendant for violating two
city ordinances, Cleveland Codified Ordinances 431.10 and 431.34C. At trial, Litton
testified that defendant had to angle his truck from the center lane in order to make the
right turn.
{¶10} The trial court found defendant guilty of both misdemeanors and
defendant appeals from these convictions.
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I.
The Trial Court erred by finding Defendant guilty on both citations as it was
against the manifest weight of the evidence.
II.
The Trial Court erred by failing to apply the “reasonable doubt” standard
of proof in determining Defendant’s guilt or innocence.
We address these assignments of error together.
{¶11} When reviewing sufficiency of the evidence, an appellate court must
determine, “after viewing the evidence in a light most favorable to the prosecution,
whether any reasonable trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d
492 (1991).
{¶12} The proper test for an appellate court reviewing a manifest weight of the
evidence claim is as follows:
The appellate court sits as the “thirteenth juror” and, reviewing the
entire record, weighs all the reasonable inferences, considers the credibility
of witnesses and determines whether, in resolving conflicts in 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.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).
{¶13} Cleveland Codified Ordinances 431.10(a) provides:
The driver of a vehicle intending to turn at an intersection shall be governed
by the following rules:
(a) Approach for a right turn and a right turn shall be made as close as
practicable to the right-hand curb or edge of the roadway.
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{¶14} The Cleveland police officer who issued the citation testified that
defendant’s truck was in a lawful position when he attempted to make his right turn. The
officer specifically testified that defendant would “have to make a wide right turn to go
down Park Avenue * * * most trucks would make a wide right turn into the left lane,
across the right lane.”
{¶15} Upon further examination, the defense elicited the following testimony from
Officer Litton:
So for a truck to make a turn is it your testimony that the truck —
that the truck would not be able to make a turn from what we’ll call the
right lane, we’d have to be in the middle of that road?
Yes, that’s correct.
{¶16} All of the other evidence in the record corroborates the fact that in order
to make a right turn from 71st Street onto Park a truck would have to make a wide turn.
Accordingly, defendant’s conviction under this ordinance was against the manifest weight
of the evidence and was not supported by sufficient evidence.
{¶17} Cleveland Codified Ordinances 431.34C provides:
{¶18} “(c) No person shall operate a motor vehicle or motorcycle without
giving his full time and attention to the operation of such vehicle.”
{¶19} There was ample evidence in the record to support defendant’s conviction
for violating this ordinance. For example, Dungy testified that he was beeping his horn
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trying to get defendant’s attention. Defendant was wearing a headset and did not see
Dungy’s vehicle. According to Smith, defendant was unaware that he had hit Dungy’s
vehicle. The court did not err by finding defendant guilty of violating this ordinance.
{¶20} Defendant’s conviction under Cleveland Codified Ordinances 431.34C is
affirmed but his conviction under Cleveland Codified Ordinances 431.10(a) is reversed
and vacated.
{¶21} Judgment affirmed in part and reversed and vacated in part.
It is ordered that appellee and appellant split the costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Cleveland
Municipal Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
JAMES J. SWEENEY, JUDGE
MARY J. BOYLE, P.J., and
SEAN C. GALLAGHER, J., CONCUR