In re Z.W.

[Cite as In re Z.W., 2018-Ohio-896.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
IN RE:
CASE NO. 5-17-21
Z.W.,
ALLEGED JUVENILE TRAFFIC OPINION
OFFENDER.
Appeal from Hancock County Common Pleas Court
Juvenile Division
Trial Court No. 20171069
Judgment Affirmed
Date of Decision: March 12, 2018
APPEARANCES:
F. Stephen Chamberlain for Appellant
Heather M. Pendleton for Appellee
Case No. 5-17-21
PRESTON, J.
{¶1} Defendant-appellant, Z.W., a minor, appeals the Hancock County Court
of Common Pleas, Juvenile Division, July 11, 2017 judgment entry of sentence. For
the reasons that follow, we affirm.
{¶2} On March 8, 2017, Findlay Police Department Office Cory Glick
(“Officer Glick”) initiated a traffic stop of the vehicle operated by Z.W. after Officer
Glick observed that vehicle “slid[e] sideways for a few feet” before “straighten[ing]
out and continu[ing] to travel * * * at a high rate of speed.” (Doc. No. 1). There
were two juvenile passengers in the vehicle that Z.W. was operating. (Id.). Z.W.
was cited for willful or wanton disregard of safety on highways in violation of R.C.
4511.20, commonly known as reckless operation of a motor vehicle, a minor
misdemeanor. (Id.).
{¶3} On March 14, 2017, Z.W. entered a written not-guilty plea. (Doc. No.
3). On June 26, 2017, a bench trial was held. (Doc. No. 15); (June 26, 2017 Tr. at
1). On July 11, 2017, the trial court issued its entry finding Z.W. to be a juvenile
traffic offender under R.C. 2152.02(N) by virtue of his reckless operation. (Doc.
No. 15). The trial court ordered Z.W. to pay a fine of $50 and $120 in court costs,
converted Z.W.’s operator’s license “back to temporary status until said child’s
eighteenth birthday, September 18, 2017,” and suspended Z.W.’s license “for a
period of six months, from September 18, 2017 until March 18, 2018.” (Id.).
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{¶4} On July 21, 2017, Z.W. filed a notice of appeal. (Doc. No. 16). He
raises three assignments of error for our review, which we will address together.
Assignment of Error No. I
The Conviction and finding that Wagner is a Juvenile Traffic
Offender was against the Manifest Weight of the evidence
presented at trial.
Assignment of Error No. II
The Conviction and finding that Wagner is a Juvenile Traffic
Offender was not based upon Sufficient Evidence to support the
judgment of the Trial Court
Assignment of Error No. III
The State failed to establish that Wagner’s operation of a motor
vehicle was with a willful or wanton disregard of the safety of
persons or property
{¶5} In his assignments of error, Z.W. argues that his reckless-operation
conviction is based on insufficient evidence and against the manifest weight of the
evidence.
{¶6} Manifest “weight of the evidence and sufficiency of the evidence are
clearly different legal concepts.” State v. Thompkins, 78 Ohio St. 3d 380, 389
(1997). As such, we address each legal concept individually.
{¶7} “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
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mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio
St.3d 259 (1981), paragraph two of the syllabus, superseded by state constitutional
amendment on other grounds, State v. Smith, 80 Ohio St. 3d 89 (1997). Accordingly,
“[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.” Id. “In deciding if the
evidence was sufficient, we neither resolve evidentiary conflicts nor assess the
credibility of witnesses, as both are functions reserved for the trier of fact.” State v.
Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, ¶ 33,
citing State v. Williams, 197 Ohio App. 3d 505, 2011-Ohio-6267, ¶ 25 (1st Dist.).
See also State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19
(“Sufficiency of the evidence is a test of adequacy rather than credibility or weight
of the evidence.”), citing Thompkins at 386.
{¶8} On the other hand, in determining whether a conviction is against the
manifest weight of the evidence, a reviewing court must 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 [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.’” Thompkins at 387,
quoting State v. Martin, 20 Ohio App. 3d 172, 175 (1st Dist.1983). A reviewing
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court must, however, allow the trier of fact appropriate discretion on matters relating
to the weight of the evidence and the credibility of the witnesses. State v. DeHass,
10 Ohio St. 2d 230, 231 (1967). When applying the manifest-weight standard,
“[o]nly in exceptional cases, where the evidence ‘weighs heavily against the
conviction,’ should an appellate court overturn the trial court’s judgment.” State v.
Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v.
Hunter, 131 Ohio St. 3d 67, 2011-Ohio-6524, ¶ 119.
{¶9} As an initial matter, we must address Z.W.’s argument that his reckless-
operation conviction is against the manifest weight of the evidence. Although Z.W.
asserts that he is challenging the weight of the evidence supporting his conviction
in the statement of his first assignment of error, he fails to make any argument in
support of that contention. See State v. Yoder, 9th Dist. Wayne No. 15AP0017,
2016-Ohio-7428, ¶ 22 (“[Mr. Yoder] fails to set forth ‘any argument concerning the
credibility of the evidence presented or the weight of the credible evidence.’”),
quoting State v. Schmitz, 9th Dist. Lorain Nos. 11CA010043 and 11CA010044,
2012-Ohio-2979, ¶ 36, quoting State v. Wilson, 9th Dist. Summit No. 25100, 2011-
Ohio-4072, ¶ 21. “[A] defendant has the burden of affirmatively demonstrating the
error of the trial court on appeal.” State v. Stelzer, 9th Dist. Summit No. 23174,
2006-Ohio-6912, ¶ 7, citing State v. Cook, 9th Dist. Summit No. 20675, 2002-Ohio-
2646, ¶ 27. “Moreover, ‘[i]f an argument exists that can support this assignment of
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error, it is not this court’s duty to root it out.’” Id., quoting Cook at ¶ 27. “App.R.
12(A)(2) provides that an appellate court ‘may disregard an assignment of error
presented for review if the party raising it fails to identify in the record the error on
which the assignment of error is based or fails to argue the assignment separately in
the brief, as required under App.R. 16(A).’” State v. Jackson, 10th Dist. Franklin
No. 14AP-670, 2015-Ohio-3322, ¶ 11, quoting App.R. 12(A)(2). “Additionally,
App.R. 16(A)(7) requires that an appellant’s brief include ‘[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.’” Id., quoting
App.R. 16(A)(7). Not only did Z.W. fail to include an argument regarding how his
reckless-operation conviction is against the manifest weight of the evidence, but
Z.W. failed to provide citations to the authorities, statutes, and parts of the record
that support his argument. Accordingly, we decline to conduct a manifest-weight
analysis on Z.W.’s behalf. See Yoder at ¶ 23, citing Schmitz at ¶ 36 and App.R.
16(A)(7). Therefore, we will address only Z.W.’s sufficiency-of-the evidence
argument.
{¶10} R.C. 4511.20 sets forth the offense commonly known as reckless
operation of a motor vehicle and provides, “No person shall operate a vehicle * * *
on any street or highway in willful or wanton disregard of the safety of persons or
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property.” R.C. 4511.20(A). Therefore, to establish that Z.W. operated his vehicle
recklessly, the State had to show that Z.W.: (1) operated a vehicle on any street or
highway and (2) in a willful or wanton disregard of the safety of persons or property.
See State v. Tanner, 9th Dist. Medina No. 3258-M, 2002-Ohio-2662, ¶ 23. Because
Z.W. challenges only the willful-or-wanton element, we will address only whether
the State presented sufficient evidence that Z.W. willfully or wantonly disregarded
the safety of others or property.
{¶11} “[W]illful conduct ‘implies an act done intentionally, designedly,
knowingly, or purposely, without justifiable excuse.’” State v. Luikart, 3d Dist.
Marion No. 9-06-35, 2007-Ohio-770, ¶ 8, quoting State v. Earlenbaugh, 18 Ohio
St.3d 19, 21 (1985). “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.,
quoting Earlenbaugh at 21-22.
{¶12} At trial, Officer Glick testified that he was observing traffic on
Stadium Drive, a residential area in Findlay, Ohio on March 8, 2017. (June 26, 2017
Tr. at 10). According to Officer Glick, the weather that day was “dry,” “[c]lear,”
and with “[g]ood visibility.” (Id.). He testified that vehicles were parked on “the
south side” of Stadium Drive. (Id. at 11). Regarding Z.W., he testified,
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I was parked on the south side of Stadium Drive facing eastbound. I
could hear a loud car behind my direction, which would have been to
the west of me. Using my driver side view mirror, I was watching
that direction when I observed a silver Lexus come off of Southwest
Street on to Stadium Drive, sliding sideways. The vehicle then
straightened out and continued at its high rate of speed past me. I do
not know the speed of that vehicle and I did not have time to get that
vehicle’s speed.
(Id.). He testified that he could “see the side of the vehicle” that Z.W. was operating
after it “turned the corner and accelerated.” (Id. at 33). According to Officer Glick,
he would have seen only “the headlights” of a vehicle if it was “traveling in a straight
pattern down the road.” (Id.). Officer Glick further testified that there were two
passengers in the vehicle—both juveniles. (Id. at 13); (See also id. at 65, 81).
{¶13} Based on that evidence, we conclude that the State presented sufficient
evidence that Z.W. operated his vehicle with a willful and wanton disregard of the
safety of persons and property. That is, the State presented sufficient evidence that
Z.W. “demonstrated a ‘reckless disregard of the rights of others which evinces a
reckless indifference of the consequences’ to the safety and property of other
motorists * * *; the evidence was also sufficient to show that [Z.W.], ‘with full
knowledge of the surrounding circumstances, recklessly and inexcusably disregards
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the rights of other motorists.’” State v. Vanoss, 11th Dist. Trumbull No. 2009-T-
0047, 2010-Ohio-1453, ¶ 13, quoting Earlenbaugh at 21-22. That is, when Z.W.
operated his vehicle in a manner which caused it to slide around a corner, he did so
with juvenile passengers in the vehicle and while other vehicles were parked along
the side of the road. Compare id. (concluding that “Vanoss acted ‘wantonly in
disregard of the safety of others’” when he “passed several vehicles * * * causing
one of the drivers to apply the brakes, a maneuver highly likely to cause the vehicle
to spin out of control due to the precarious road conditions”). Furthermore,
operating his vehicle in a manner that caused the vehicle to slide disregarded a
known risk—the risk of losing control of the vehicle and wrecking. See State v.
Monigold, 7th Dist. Columbiana No. 03 CO 25, 2004-Ohio-1554, ¶ 17 (“At the point
that the vehicle began fishtailing and sliding across the road, the risk of losing
control of the vehicle and wrecking became known. Continuing to drive in a manner
that allowed the vehicle to fishtail and slide was disregarding the known risk.”).
{¶14} Accordingly, we conclude that a rational trier of fact could have found
beyond a reasonable doubt that Z.W. willfully or wantonly disregarded the safety of
others or property. As such, Z.W.’s reckless-operation conviction is based on
sufficient evidence.
{¶15} Z.W.’s assignments of error are overruled.
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{¶16} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ZIMMERMAN and SHAW, J.J., concur.
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