State v. Delevie , 2019 Ohio 3563 ( 2019 )

[Cite as State v. Delevie, 2019-Ohio-3563.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 18-CA-111
:
RAYMOND DELEVIE :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County
Municipal Court, Case No. 18TRD13235
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: September 3, 2019
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
J. MICHAEL KING RAYMOND DELEVIE
City of Newark 131 S. Roosevelt Ave.
40 West Main St. Bexley, OH 43209
Fourth Floor
Newark, OH 43055
Licking County, Case No. 18-CA-111 2
Delaney, J.
{¶1} Appellant Raymond Delevie appeals from the November 6, 2018 Court
Entry of the Licking County Municipal Court. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} This case arose shortly before 12:19 p.m. on October 5, 2018, in the
eastbound traffic lanes of Interstate 70 in Bowling Green Township, Licking County.
{¶3} Close to where the crash occurred, eastbound traffic consisted of three
lanes. Near milepost 135, however, a flashing billboard indicated the right lane was
closed due to construction. The right lane was closed at milepost 138, reducing
eastbound traffic to two lanes.
{¶4} Also near milepost 135 was a permanent sign warning drivers that the left
lane ended in three-quarters of a mile. A second sign states the left lane ends and drivers
must merge to the right.
{¶5} Due to the right-lane closure and the left-lane termination, eastbound traffic
was reduced to a single lane of travel: the center lane.
{¶6} At the time of these events, traffic was heavy and moving slowly due to the
right-lane closure. Eric Stone was operating his tractor-trailer “semi” eastbound, in the
center lane. Near the point where the left lane ends, the roadway has a significant grade.
Although Stone was only traveling about 10 miles per hour, he was accelerating to get
the semi up the incline.
{¶7} As the left lane was about to terminate, Stone observed a car to his left, in
the terminating left lane. The driver, appellant, ran out of room in the left lane and entered
Licking County, Case No. 18-CA-111 3
Stone’s lane of travel. The passenger-side mirror of appellant’s car struck a side signal
light located at the middle of the trailer.
{¶8} Stone and appellant each drove on to a rest stop about four miles away
before stopping and contacted the Ohio State Highway Patrol.
{¶9} Trooper Sawyers was dispatched and investigated the crash. Stone said
he had a dash camera, but the video was not working that day. Both drivers answered
Sawyers’ questions and completed written statements. Sawyers observed the damage
to the vehicles and took photos.
{¶10} Sawyers determined appellant was at fault in the crash and that the
mechanism of the crash was straightforward: Stone had achieved his lane and was
proceeding straight in the center lane; appellant attempted to move into Stone’s lane of
travel without ensuring he could safely do so. Appellant struck Stone’s vehicle. Sawyers
noted the highway signage was clearly marked to give drivers three-quarters of a mile to
move out of the terminating left lane. Despite the fact that traffic was backed up due to
construction, appellant was obligated to merge safely.
{¶11} Appellant was charged by Uniform Traffic Ticket (U.T.T.) with one count of
traffic control devices pursuant to R.C. 4511.12 and one count of turn signal violation
pursuant to R.C. 4511.39. Both offenses are minor misdemeanors. Appellant entered
pleas of not guilty and the matter proceeded to bench trial. Appellant moved for a
judgment of acquittal at the close of appellee’s evidence, but the motion was overruled.
Appellant rested without presenting evidence.
{¶12} Appellant was found guilty as charged. The trial court imposed a fine of
twenty-five dollars upon each count, plus court costs.
Licking County, Case No. 18-CA-111 4
{¶13} Appellant now appeals from the judgment entry of his convictions and
sentence.
{¶14} Appellant raises three assignments of error:
ASSIGNMENTS OF ERROR
{¶15} “I. THE TRIAL COURT ERRED IN FINDING THAT APPELLANT
VIOLATED R.C. 4511.12 (TRAFFIC CONTROL DEVICES) AND R.C. 4511.39 (TRAFFIC
SIGNAL DEVICES) BECAUSE, AS A MATTER OF LAW, PLAINTIFF FAILED TO
PRODUCE SUFFICIENT EVIDENCE, NECESSARY TO PROVE EVERY FACT
BEYOND A REASONABLE DOUBT, TO ESTABLISH THE ELEMENTS OF EACH
OFFENSE.”
{¶16} “II. THE TRIAL COURT ERRED IN FAILING TO FIND THAT R.C. 4511.12
AND R.C. 4511.39 ARE ALLIED OFFENSES OF SIMILAR IMPORT UNDER R.C.
2941.25 AND STATE V. ROGERS.”
{¶17} “III. THE TRIAL COURT ERRED IN FINDING THAT APPELLANT
VIOLATED BOTH R.C. 4511.12 AND R.C. 4511.39 BECAUSE THE EVIDENCE IS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. (sic).”
ANALYSIS
I., III.
{¶18} Appellant’s first and third assignments of error are related and will be
considered together. Appellant contends his convictions are not supported by sufficient
evidence and are against the manifest weight of the evidence. We disagree.
{¶19} The legal concepts of sufficiency of the evidence and weight of the evidence
are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St. 3d 380,
Licking County, Case No. 18-CA-111 5
1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review
for a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio
St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio
Supreme Court held, “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind of the
defendant’s guilt beyond a reasonable doubt. 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.”
{¶20} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the
entire record, weighs the evidence and all reasonable inferences, considers the credibility
of witnesses and determines 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 overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.
Reversing a conviction as being against the manifest weight of the evidence and ordering
a new trial should be reserved for only the “exceptional case in which the evidence weighs
heavily against the conviction.” Id.
{¶21} Appellant was cited pursuant to R.C. 4511.12(A), “traffic control devices,”
which states in pertinent part: “No * * * driver of a vehicle* * * shall disobey the instructions
of any traffic control device placed in accordance with this chapter, unless at the time
otherwise directed by a police officer.” He was also cited pursuant to R.C. 4511.39(A),
“turn signals,” which states in pertinent part: “No person shall turn a vehicle * * * or move
Licking County, Case No. 18-CA-111 6
right or left upon a highway unless and until such person has exercised due care to
ascertain that the movement can be made with reasonable safety nor without giving an
appropriate signal in the manner hereinafter provided.”
{¶22} The record before us includes appellee’s exhibit 1, a photo of the damage
to the passenger-side mirror of appellant’s vehicle. Appellee’s exhibit 2 is a photo of
Stone measuring the height of the point at which appellant made contact with his trailer.
Appellee’s exhibit 3 is a photo of a scuff mark from appellant’s side mirror. Appellee’s
exhibits 4 and 5 are photos of the large orange overhead sign stating, “Left lane ends ¾
mile.” Appellee’s exhibit 6 is a photo of a large orange overhead sign stating, “Left lane
ends merge right.” The record also includes appellant’s exhibit 1, the traffic crash report
of the OSHP; exhibit 2, the U.T.T.; exhibit 3, appellant’s written statement; and exhibit 4,
the Ohio Manual of Uniform Traffic Control Devices.
{¶23} Appellee’s evidence consisted of the exhibits cited supra and the testimony
of Stone and Sawyers. Drivers in the left eastbound lane of Interstate 70, less than a mile
before where this crash occurred, are warned by two permanent fixtures first that the left
lane will end in three-quarters of a mile, and then that the left lane ends and they must
merge right. The orange signs depicted in appellee’s exhibits 4, 5, and 6 are “traffic control
devices” within the meaning of R.C. 4511.01(QQ) [“Traffic control device” means a * * *
sign * * * used to regulate, warn, or guide traffic, placed on, over, or adjacent to a street,
highway * * * by authority of a public agency * * *.”] Appellant disobeyed the traffic control
devices, failed to merge in time, and unsuccessfully attempted to pass the semi driven by
Stone. Appellant proceeded without caution into Stone’s lane, striking the trailer with his
mirror. R.C. 4511.39 requires a motorist both to use reasonable care and to signal when
Licking County, Case No. 18-CA-111 7
making a turn, and failure to do either gives rise to a traffic violation. State v. Richardson,
94 Ohio App. 3d 501, 505, 641 N.E.2d 216 (1st Dist.1994), abrogated on other grounds
by Dayton v. Erickson, 76 Ohio St. 3d 3, 1996-Ohio-431, 665 N.E.2d 1091 (1996). The
evidence patently established violations of R.C. 4511.39 and R.C. 4511.12(A).
{¶24} Appellant makes several arguments why his convictions upon each of these
offenses are not supported by sufficient evidence and are against the manifest weight of
the evidence. We find these arguments unavailing upon our review of the unequivocal
evidence presented at trial.
{¶25} Appellant asserts there is “reasonable doubt” that he is guilty of the offenses
because the trial court observed appellant presented an “interesting case” and the trial is
subject to review by another court. We do not agree with appellant that the trial court’s
observations are admissions of reasonable doubt as to appellant’s guilt.
{¶26} Appellant argues the testimony of Eric Stone violates the “physical facts
rule” and therefore should have been discounted by the trial court. The “physical-facts
rule” states that “[t]he testimony of a witness which is positively contradicted by the
physical facts cannot be given probative value by the court.” McDonald v. Ford Motor Co.,
42 Ohio St. 2d 8, 12–14, 326 N.E.2d 252, 254–55 (1975), citing Lovas v. General Motors
Corp., 212 F.2d 805, 808 (6 Cir. 1954). This is not a case requiring application of the
physical-facts rule because Stone’s testimony is not positively contradicted by the
physical evidence. “The palpable untruthfulness' of plaintiff's testimony requiring a trial
court to take a case from the jury under the physical facts rule ‘must be (1) inherent in the
rejected testimony, so that it contradicts itself or (2) irreconcilable with facts of which,
under recognized rules, the court takes judicial knowledge or (3) is obviously inconsistent
Licking County, Case No. 18-CA-111 8
with, contradicted by, undisputed physical facts.’” McDonald v. Ford Motor Co., supra,
citing Duling v. Burnett, 22 Tenn.App. 522, 124 S.W.2d 294 (1938). In the instant case,
we find the physical-facts rule cannot be applied to Stone’s testimony because there is
no such “palpable untruthfulness.” The physical evidence, and Sawyers’ investigation,
corroborate Stone’s testimony.
{¶27} Appellant supports his argument with a number of theories premised upon
facts not in evidence. The mechanism of the crash in the instant case is straightforward
and easily gleaned from the record as noted supra. Moreover, the weight of the evidence
and the credibility of the witnesses are determined by the trier of fact. State v. Yarbrough,
95 Ohio St. 3d 227, 231, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79.
{¶28} Appellant asserts Stone effectively “cut him off” and failed to yield to him.
The uncontroverted evidence at trial established, however, that Stone had at all times
maintained his lane of travel and was under no duty to yield to appellant, who in turn failed
to follow instructions to merge because his lane was ending. Appellant was further
required to make any movement with due care, but he instead effectively side-swiped the
semi as he entered its lane.
{¶29} Appellant also argues there is reasonable doubt as to his guilty because
Trooper Sawyers “allowed [Stone] to drive off without seizing the dash cam.” The
uncontroverted evidence at trial established Stone’s dash cam was not working on the
date of the crash. Further, appellant offers sheer speculation as to the evidentiary value
of the video, had it existed.
{¶30} We simply do not find that appellant’s theories are supported by the
straightforward evidence of how this crash occurred. Moreover, any inconsistencies in
Licking County, Case No. 18-CA-111 9
the evidence were for the trial court to resolve. State v. Dotson, 5th Dist. Stark No.
2016CA00199, 2017-Ohio-5565, 2017 WL 2815197, ¶ 49. “The weight of the evidence
concerns the inclination of the greater amount of credible evidence offered in a trial to
support one side of the issue rather than the other.” State v. Brindley, 10th Dist. Franklin
No. 01AP-926, 2002-Ohio-2425, 2002 WL 1013033, ¶ 16.
{¶31} We find in the instant case that appellant’s convictions are supported by
sufficient evidence and are not against the manifest weight of the evidence. His first and
third assignments of error are overruled.
II.
{¶32} In his second assignment of error, appellant argues the trial court should
have found R.C. 4511.12 and R.C. 4511.39 are allied offenses of similar import. We
disagree.
{¶33} R.C. 2941.25 states as follows:
(A) Where the same conduct by defendant can be construed
to constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such offenses,
but the defendant may be convicted of only one.
(B) Where the defendant's conduct constitutes two or more
offenses of dissimilar import, or where his conduct results in two or
more offenses of the same or similar kind committed separately or
with a separate animus as to each, the indictment or information may
contain counts for all such offenses, and the defendant may be
convicted of all of them.
Licking County, Case No. 18-CA-111 10
{¶34} For the first time on appeal, appellant argues that R.C. 4511.12 (traffic
control devices) and R.C. 4511.39 (turn signal violations) are allied offenses of similar
import. An accused's failure to raise the issue of allied offenses of similar import in the
trial court forfeits all but plain error, and a forfeited error is not reversible error unless it
affected the outcome of the proceeding and reversal is necessary to correct a manifest
miscarriage of justice. State v. Rogers, 143 Ohio St. 3d 385, 2015-Ohio-2459, 38 N.E.3d
860, ¶ 3. Accordingly, an accused has the burden to demonstrate a reasonable
probability that the convictions are for allied offenses of similar import committed with the
same conduct and without a separate animus; absent that showing, the accused cannot
demonstrate that the trial court's failure to inquire whether the convictions merge for
purposes of sentencing was plain error. Id.
{¶35} In State v. Ball, 5th Dist. Licking No. 18-CA-1, 2018-Ohio-2942, at ¶ 49, we
noted the decision of the Ohio Supreme Court in State v. Ruff, 143 Ohio St. 3d 114, 2015-
Ohio-995, 34 N.E.2d 892, revising its allied-offense jurisprudence. A trial court, and the
reviewing court on appeal, when considering whether there are allied offenses that merge
into a single conviction under R.C. 2941.25(A), must first take into account the conduct
of the defendant. Id. In other words, how were the offenses committed? Id. If any of the
following is true, the offenses cannot merge and the defendant may be convicted and
sentenced for multiple offenses: (1) the offenses are dissimilar in import or significance—
in other words, each offense caused separate, identifiable harm, (2) the offenses were
committed separately, and (3) the offenses were committed with separate animus or
motivation. Id.
Licking County, Case No. 18-CA-111 11
{¶36} Appellant has not met his burden of establishing a reasonable probability
that his convictions are allied offenses. One can disobey a traffic signal without
committing a turn-signal violation, and vice-versa. Therefore, the charged offenses are
of dissimilar import. The act of failing to timely merge right was committed separately from
the failure to move right upon the highway without exercising due care. Appellant was
appropriately subjected to two separate and distinct charges, one charge for failing to
obey the traffic signals and another charge for moving into Stone’s lane without due care.
{¶37} There may be instances when a court's failure to merge allied offenses can
constitute plain error, but this case does not present one of those instances. Appellant
failed to demonstrate any probability that he has, in fact, been convicted of allied offenses
of similar import committed with the same conduct and with the same animus, and he
therefore failed to show any prejudicial effect on the outcome of the proceeding. Ball,
supra, 2018-Ohio-2942, ¶ 54, and Rogers, 2015-Ohio-2459 at ¶ 25.
{¶38} Appellant’s second assignment of error is overruled.
Licking County, Case No. 18-CA-111 12
CONCLUSION
{¶39} Appellant’s three assignments of error are overruled and the judgment of
the Licking County Municipal Court is affirmed.
By: Delaney, J.,
Gwin, P.J. and
Wise, John, J., concur.