State v. Gill , 2021 Ohio 4112 ( 2021 )

[Cite as State v. Gill, 2021-Ohio-4112.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2021-03-022
: OPINION
- vs - 11/22/2021
:
RONALD E. GILL, :
Appellant. :
CRIMINAL APPEAL FROM HAMILTON MUNICIPAL COURT
Case No. 20TRD03370-A
Laura R. Gibson, City of Hamilton Prosecuting Attorney, for appellee.
Engel & Martin, LLC, and Jim L. Hardin, for appellant.
PIPER, P.J.
{¶1} Appellant, Ronald Gill, appeals his convictions in the Hamilton Municipal
Court for operation without control and failure to stop after an accident on private property.
{¶2} Gill visited a Kroger grocery store and pulled his vehicle front-facing into a
parking spot. When he returned to his car after shopping, he was met by a security guard
employed by Kroger who claimed that Gill had hit the back of her vehicle while parking. A
confrontation ensued between the security guard and Gill, and Gill left the parking lot without
Butler CA2021-03-022
providing his name or insurance information and without waiting for the police to arrive on
the scene.
{¶3} Before Gill left the parking lot, the security guard photographed Gill's license
plate and called the police. The police responded and spoke with the security guard, who
provided officers the license plate information she photographed. Police obtained
information that the vehicle was rented to Gill, and called him to discuss the issue. Gill
admitted to an officer over the phone that he drove to the store, was involved in a
confrontation with the security guard over her allegations that he hit her car, and that he did
not provide his information to her. However, he denied having hit the security guard's car.
{¶4} The officer met with Gill several days later and issued him citations for failure
to stop after an accident on private property as well as operating a vehicle without control.
The matter proceeded to a bench trial during which multiple witnesses, including Gill,
testified regarding the matter, and the trial court viewed video surveillance regarding the
incident. The trial court found Gill guilty on both counts and sentenced him to a suspended
jail sentence, probation, a driver's license suspension, as well as fines. Gill now appeals
his convictions, raising the following assignments of error.
{¶5} Assignment of Error No. 1:
{¶6} THE TRIAL COURT ERRED IN FINDING DEFENDANT GUILTY OF A
VIOLATION OF HAMILTON OHIO CODIFIED ORDINANCE 335.13.
{¶7} Gill argues in his first assignment of error that his conviction for leaving the
scene of an accident was against the manifest weight of the evidence.
{¶8} A manifest weight of the evidence challenge examines the "inclination of the
greater amount of credible evidence, offered at a trial, to support one side of the issue rather
than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶
14, citing State v. Wilson, 12th Dist. Warren No. CA2006-01-007, 2007-Ohio-2298, ¶ 34.
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To determine whether a conviction is against the manifest weight of the evidence, the
reviewing court must look at the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of the witnesses, and determine whether in resolving the
conflicts in the 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. Morgan, 12th Dist. Butler Nos. CA2013-08-146 and CA2013-08-147, 2014-Ohio-2472, ¶
34, citing State v. Graham, 12th Dist. Warren No. CA2008-07-095, 2009-Ohio-2814, ¶ 66.
{¶9} However, the determination of witness credibility is primarily for the trier of
fact to decide. State v. Baker, 12th Dist. Butler No. CA2019-08-146, 2020-Ohio-2882, ¶ 30.
This court "will overturn a conviction due to the manifest weight of the evidence only in
extraordinary circumstances when the evidence presented at trial weighs heavily in favor
of acquittal." Ohio v. McKinney, 12th Dist. Butler No. CA2021-03-029, 2021-Ohio-3870, ¶
21.
{¶10} Gill was convicted of violating Hamilton Ohio Codified Ordinance 335.13,
which provides,
(a)(1) In the case of a motor vehicle accident or collision
resulting in injury or damage to persons or property on any
public or private property other than a public road or highway,
the operator of the motor vehicle, having knowledge of the
accident or collision, shall stop at the scene of the accident or
collision. Upon request of any person who is injured or
damaged, or any other person, the operator shall give that
person the operator’s name and address, and, if the operator is
not the owner, the name and address of the owner of that motor
vehicle, together with the registered number of that motor
vehicle, and, if available, exhibit the operator’s driver’s or
commercial driver’s license.
(2) If the operator of the motor vehicle involved in the accident
or collision does not provide the information specified in
subsection (a)(1) of this section, the operator shall give that
information, within twenty-four hours after the accident or
collision, to the Police Department.
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(3) If the accident or collision is with an unoccupied or
unattended motor vehicle, the operator who collides with the
motor vehicle shall securely attach the information required
under subsection (a)(1) of this section, in writing, to a
conspicuous place in or on the unoccupied or unattended motor
vehicle.
{¶11} After reviewing the record, we find that Gill's conviction was not against the
manifest weight of the evidence. The state presented testimony from the security guard
regarding the incident, which occurred on August 28, 2020. The security guard testified
that she is employed by Kroger and that she drives her personal vehicle, a 2017 Toyota
Corolla, to work. The security guard recalled parking in the lot on the day in question and
later checked on her vehicle during her shift. The security officer testified that she observed
a white car parked behind her car with its front-end parked over the yellow line separating
the parking spaces. She observed damage to the rear of her vehicle that matched the same
size and area of a bolt holding the license plate to the front-end of the white car.
{¶12} The security guard testified that she reviewed surveillance video that was in
use by Kroger on the day of the incident.1 The state then played the video and the security
guard testified that based on what she observed in the video, she returned to the parking
lot and photographed the vehicles in question. The security guard testified that the video
shows "his car hit my car, and the car moved a little bit." The photographs depict how close
the white car was parked to the rear of the security guard's car, as well as what damage
was done to her vehicle.
{¶13} The security guard waited near the vehicles until Gill exited the store and
returned to his car where the two then engaged in a confrontation. The security guard
1. The video is not in the record. This court went to great lengths to procure a copy of the video, but the
video was not kept by the lower court or the parties. The law in Ohio is clear that an appellant bears the
burden of providing a record upon which the assigned errors are rooted. State v. McDonald, 12th Dist.
Clermont No. CA2013-07-056, 2014-Ohio-989, ¶ 17. Upon failure to complete the record, we are to presume
the regularity of the lower court's proceedings. Id.-4-
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testified that when she asked Gill for his name and insurance information, he refused to tell
her. When the security guard informed Gill that she was going to call the police, he told
her, "go ahead, when the cops get here, I will be gone anyway, * * * I am not staying."
{¶14} The state also presented testimony from an officer with the Hamilton Police
Department who is tasked with investigating "hit skip" accidents. The officer testified that
she made contact with Gill twice during her investigation. Specifically, the officer testified
that she spoke with Gill first over the phone on September 2, more than 24 hours after the
incident occurred, and that he admitted to being in the parking lot and having an argument
with the security guard. After viewing photographs and video surveillance of the incident,
the officer next met with Gill in person several days later and Gill admitted to parking in the
Kroger parking lot on the day in question and having an encounter with the security guard.
Gill also admitted to the officer that he had not provided his information to the security guard
because "he wasn't in an accident, he didn't have to give her anything."
{¶15} Gill testified in his own defense and claimed that he did not hit the security
guard's vehicle on the day in question, though Gill acknowledged that when he parked his
car that day, it "stuttered a little bit." He also testified that he attempted to provide the
security guard with his insurance information digitally stored within his cellular phone and
that he assumed she had taken a picture of his information.
{¶16} The record indicates that the trial court viewed the photographs of the vehicles
after the collision was alleged to have occurred, viewed the surveillance video of what
occurred on the day in question, and was present to consider testimony from the witnesses
regarding what occurred that day. By virtue of the trial court's verdict, it did not find Gill's
testimony credible that he did not hit the security guard's car. Nor did the trial court find
Gill's testimony credible that he tried to provide his information by showing his cellular phone
to the security guard. As the trial court is in the best position to judge the credibility of the
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witnesses, we will not disturb its findings on appeal.
{¶17} Gill admitted during his testimony that he did not provide the security guard
with his information, and the testimony of the officer reveals that he did not provide his
information to police within the 24-hour timeframe as required by the ordinance. Nor did
Gill leave his information by virtue of attaching a note to the unoccupied vehicle at the time
of the collision. As such, the case sub judice does not constitute the extraordinary
circumstances where the evidence presented at trial weighs heavily in favor of acquittal.
Upon finding that Gill's conviction is not against the manifest weight of the evidence, we
overrule his first assignment of error.
{¶18} Assignment of Error No. 2:
{¶19} THE TRIAL COURT ERRED IN FINDING DEFENDANT GUILTY OF A
VIOLATION OF HAMILTON OHIO CODIFIED ORDINANCE 335.13. [SIC]
{¶20} Gill argues in his second assignment of error that the trial court erred in finding
him guilty of failure to control his vehicle.2
{¶21} According to Hamilton Codified Ordinance 333.022,
(a) No person shall operate a motor vehicle, agricultural tractor, or
agricultural tractor that is towing, pulling, or otherwise drawing a
unit of farm machinery on any street, highway, or property open
to the public for vehicular traffic without being in reasonable
control of the vehicle, agricultural tractor or unit of farm
machinery.
(b) Whoever violates this section is guilty of operating a motor
vehicle or agricultural tractor without being in control of it, a
minor misdemeanor.
{¶22} Hamilton Codified Ordinance 301.26(b) defines private road open to public
travel as follows,
2. Preliminarily, the state suggests that Gill did not raise his conviction as being improper. However, we note
that Gill's not guilty pleas preserves his right to object to the insufficiency of the evidence proving his conduct
violated the ordinance. See State v. Jones, 91 Ohio St.3d 335, 346, 2001-Ohio-57.
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(b) "Private road open to public travel" means a private toll road
or road, including any adjacent sidewalks that generally run
parallel to the road, within a shopping center, airport, sports
arena, or other similar business or recreation facility that is
privately owned but where the public is allowed to travel without
access restrictions. "Private road open to public travel" includes
a gated toll road but does not include a road within a private
gated property where access is restricted at all times, a parking
area, a driving aisle within a parking area, or a private grade
crossing. (ORC 4511.01(OOO)).
(Emphasis added). Thus, the ordinances use slightly different terminology when defining
what areas are or are not included within the purview of the statute for which Gill was
convicted.
{¶23} Even so, we find that the terms are sufficiently related to show that parking
areas are excluded from prosecution for failure to control. "Traffic" is also a defined term
within the code, as a "vehicle * * * either singly or together, while using for purposes of travel
any street or highway or private road open to public travel." (Emphasis added.) Hamilton
Codified Ordinance 301.45. In other words, 333.022(a)'s "property open to the public for
vehicular traffic" phrase includes the word "traffic," which is defined in 301.45 as occurring
on a "private road open to public travel," which is defined in 301.26(b) as excluding parking
areas. Thus, the word "traffic" ties the key phrases in 333.02 and 301.26 together and
demonstrates that parking areas are excluded from the confines of the section for which
Gill was convicted.3
{¶24} Thus, reading the applicable ordinances together, we find that 333.022
excludes "a parking area" and a "driving aisle within a parking area" from the definition of
areas open to the public for vehicular traffic. As such, the trial court erred in convicting Gill
of violating the ordinance, as the collision occurred in the parking area and was thus
3. The state concedes in its brief that Gill's conviction was improper, though it suggests without a supporting
analysis that the phrases "property open to the public for vehicular traffic" and "private road open to public
travel" essentially mean the same thing.
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excluded from prosecution under the ordinance. Gill's conviction for failure to control is
therefore reversed and he is discharged on that charge alone.
{¶25} Judgment affirmed in part, reversed and vacated in part.
M. POWELL and BYRNE, JJ., concur.
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