State v. Vargo

[Cite as State v. Vargo, 2018-Ohio-2487.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
BELMONT COUNTY
STATE OF OHIO
BARNESVILLE MAYOR'S COURT,
Plaintiff-Appellee,
v.
EDWARD L. VARGO,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 17 BE 0021
Criminal Appeal from the
Belmont County Court, Western Division, of Belmont County, Ohio
Case No. 17 TR D 00016.
BEFORE:
Cheryl L. Waite, Gene Donofrio, Carol Ann Robb, Judges.
JUDGMENT:
Affirmed.
Atty. Daniel P. Fry, Belmont County Prosecutor and
Atty. Marlin J. Harper
109 E. Church St., Barnesville, Ohio 43713, for Appellee
Edward L. Vargo, Pro se Appellant, 33228 Walter Ridge Rd., Woodsfield, Ohio 43793.
Dated: June 22, 2018
WAITE, J.
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{¶1} Appellant, Edward L. Vargo, pro se, appeals his conviction following a
bench trial in the Western Division of Belmont County Court. Appellant was found guilty
of violating Ordinance 331.04, captioned “Overtaking and Passing On Right,” a minor
misdemeanor. Following his conviction, the trial court imposed a fine in the amount of
$150.00. Appellant contends that his conviction is against the manifest weight of the
evidence, and that the trial court erred when it considered a grainy surveillance video
that was neither turned over to Appellant nor played at the trial. For the following
reasons, Appellant’s conviction is affirmed.
Facts
{¶2} On December 15, 2016 at approximately 7:00 p.m., Appellant and his
wife, Merry Vargo, were traveling southbound on North Chestnut Street in St. Clairsville
in a Jeep Wrangler. The Vargos’ automobile was directly behind a Pontiac G6 driven by
Jessica Shrewsbury. North Chestnut Street is a two-lane highway, with parallel parking
spaces on both sides of the street. According to Appellant’s testimony, he was
travelling at a speed of fifteen to twenty miles per hour.
{¶3} When Shrewsbury slowed her vehicle for the traffic light at the intersection
of Main Street, she activated her left turn signal. Appellant began to pass her vehicle on
the right while still in the single lane of traffic. Merry testified that she saw Shrewsbury’s
left turn signal flash at least twice.
{¶4} At some point, Shrewsbury decided to turn right instead of left onto North
Main Street. Appellant testified that when he realized Shrewsbury was turning right he
blew the horn and hit his brake, expecting that Shrewsbury would realize that he was to
her right and stop her car. However, Shrewsbury continued her right turn onto North
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Main Street, colliding with the driver’s side of the Jeep and tearing off the left front flare
and front bumper. Appellant testified that he turned into the westbound lane on Main
Street in an effort to avoid further damage to his Jeep.
{¶5} Shrewsbury continued on North Main Street with Appellant in pursuit. She
stopped at the next intersection.
{¶6} When Shrewsbury exited the car, she told Appellant that she did nothing
wrong. Shrewsbury’s passenger, who claimed to be her brother, told Appellant that the
accident was Shrewsbury’s fault and asked Appellant not to involve the police because
they could “work [it] out.” (Trial Tr., p. 18.) Neither Appellant nor his wife had a mobile
phone, but several businesses were within walking distance.
{¶7} Shrewsbury’s passenger told Appellant that Shrewsbury had insurance,
but no insurance card. He explained that Shrewsbury’s husband had “totaled” his truck
the previous week and that he probably had the insurance card. They exchanged
information, and Shrewsbury’s passenger promised that Shrewsbury would contact
Appellant the following day to make arrangements to repair the Jeep.
{¶8} Appellant filed an accident report on December 16, 2016. Following a
police investigation of the crash, Appellant was cited for illegally passing Shrewsbury on
the right.
{¶9} The matter proceeded to trial on January 19, 2016. Prior to trial, Appellant
explained to the trial court that he sought legal representation but was told that his case
was “too trivial” and that he would represent himself. (Trial Tr., p. 20.) The trial court
heard testimony from Barnesville Police Department Patrolman Cody Michael Lucas,
who investigated the collision. Appellant and his wife also testified.
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{¶10} As part of his investigation, Patrolman Lucas reviewed video from a
camera mounted on a pole near the intersection in question. The camera had captured
the accident. According to the patrolman’s testimony, Appellant “was traveling at an
excessive rate of speed with no caution to the intersection itself.” (Trial Tr., p. 8.)
Patrolman Lucas further testified that “[t]he only time that [Appellant] stopped was at
contact with [Shrewsbury’s] vehicle.” Merry also testified that Appellant did not stop the
Jeep until it collided with Shrewsbury’s car. (Trial Tr., p. 14.)
{¶11} The trial court inquired, “[s]o he was coming, in your opinion, at an
excessive rate of speed and tried to pass [Ms. Shrewsbury] after she had turned her
right turn signal on?” Patrolman Lucas replied, “[y]es.” (Trial Tr., p. 8.)
{¶12} At the conclusion of the testimony, the trial court requested a copy of the
pole camera video that captured the accident. Appellant did not at any time object to
the trial court’s request for this video or state on the record that he had not been
provided a copy prior to the trial. The trial court took the matter under advisement
pending review of the video, however, it was not admitted into evidence.
Law
{¶13} Ordinance 331.04, which parrots R.C. 4511.28, reads in pertinent part:
(A) The driver of a vehicle or trackless trolley may overtake and pass
upon the right of another vehicle or trackless trolley only under the
following conditions:
(1) When the vehicle or trackless trolley overtaken is making or about to
make a left turn;
Case No. 17 BE 0021
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(2) Upon a roadway with unobstructed pavement of sufficient width for
two or more lines of vehicles moving lawfully in the direction being
traveled by the overtaking vehicle.
(B) The driver of a vehicle or trackless trolley may overtake and pass
another vehicle or trackless trolley only under conditions permitting such
movement in safety. The movement shall not be made by driving off the
roadway.
{¶14} In its docket and journal entry filed on April 3, 2017, the trial court appears
to concede that Appellant met one requirement of subsection A of the ordinance: North
Chestnut Street is a roadway with unobstructed pavement of sufficient width for two or
more lines of vehicles to move lawfully in the direction being traveled by the overtaking
vehicle. The trial court also appears to accept Appellant’s testimony that Shrewsbury
initially signaled a left turn at the intersection.
{¶15} Relying on the catch-all provision of subsection B, however, the trial court
ultimately concluded that the conditions under which Appellant attempted to pass
Shrewsbury were unsafe:
It is clear from the pole video that the lead vehicle was in the process of a
right turn when [Appellant’s] vehicle attempted to pass. Even if the lead
vehicle driver had changed its mind and was initially indicating a left turn
the change was made [so] that [Appellant] should have had plenty of time
to not overtake the vehicle and attempt to pass.
(04/03/17 J.E.)
Analysis
Case No. 17 BE 0021
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{¶16} Pro se Appellant advances a lengthy, multi-part assignment of error in this
appeal.
ASSIGNMENT OF ERROR
APPELLANT'S CONVICTION OF BARNESVILLE ORDINANCE 331.04
WAS BASED ON EVIDENCE THAT THE APPELLANT DID NOT HAVE
ACCESS TO AND WAS NOT ALLOWED TO SEE. THIS IS AGAINST
THE APPELLANT'S CONSTITUTIONAL RIGHTS AND IS PLAIN ERROR.
THE TRIAL COURT ERRED BY USING THE POLE CAMERA VIDEOS, A
TWO DIMENSIONAL PICTURE TAKEN AT NIGHT, TO CONCLUDE
THAT THERE WAS SUFFICIENT DISTANCE TO STOP BEFORE THE
ACCIDENT. BUT OVERLOOKED THE ILLEGAL RIGHT TURN MADE
BY THE LEAD VEHICLE. THIS IS AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE.
THE TRIAL COURT ERRED BY NOT RULING ON THE ILLEGAL RIGHT
TURN THAT JESSICA SHREWSBURY MADE, BUT STATED "EVEN IF
THE LEAD VEHICLE DRIVER HAD CHANGED ITS MIND AND WAS
INITIALLY INDICATING A LEFT TURN THE CHANGE WAS MADE THAT
THE DEFENDANT SHOULD HAVE HAD PLENTY OF TIME TO NOT
OVERTAKE THE VEHICLE AND ATTEMPT TO PASS." THIS IS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
THE BARNESVILLE POLICE, THE PROSECUTOR AND THE JUDGE
ERRED BY OVERLOOKING OR IGNORING THE THREE TRAFFIC
CODE VIOLATIONS THAT JESSICA SHREWSBURY MADE, ILLEGAL
Case No. 17 BE 0021
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RIGHT TURN, FAILING TO STOP AFTER AN ACCIDENT, AND FAILING
TO EXCHANGE DRIVER INFORMATION. THIS IS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
{¶17} From this, we have gleaned that two assignments of error are actually
being advanced on appeal. First, Appellant contends that the state committed a
discovery violation when it failed to turn over the video prior to trial. Second, Appellant
contends his conviction is against the manifest weight of the evidence.
{¶18} Before reaching the substantive issues in this case, it is important to note
that although courts make certain allowances for pro se litigants, these litigants are
ultimately held to the same standards of conduct and are presumed to have the same
knowledge of the law as though they were represented by counsel. Sky Bank v. Hill,
7th Dist. No. 03 MA 114, 2004-Ohio-3046, ¶ 9. We have recognized that, although a
trial judge may take on many roles during litigation, in our adversarial legal system it is
not the function of the judge to act as counsel for pro se litigants. Id.
{¶19} No written request for discovery was filed in this case. Crim.R. 16.
Appellant asserts that he requested the opportunity to view the pole camera video prior
to trial, but the state denied his request. Because Appellant contends that he made a
verbal request, there is no evidence of any such request in the record.
{¶20} The overall objective of the criminal rules is to remove the element of
gamesmanship from a trial. State v. Darmond, 135 Ohio St. 3d 343, 2013-Ohio-966,
986 N.E.2d 971, ¶ 2, citing State v. Howard, 56 Ohio St. 2d 328, 333, 383 N.E.2d 912
(1978). The purpose of the discovery rules is to prevent surprise and the secreting of
evidence favorable to one party. Id.
Case No. 17 BE 0021
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{¶21} When considering whether a discovery violation occurred, courts must
consider three factors: (1) whether the failure to disclose was willful; (2) whether
foreknowledge of the undisclosed material would have benefitted the defendant in trial
preparation; and (3) whether the accused was prejudiced by the late disclosure. State
v. Darmond, 135 Ohio St. 3d 343, 2013-Ohio-966, 986 N.E.2d 971, at ¶ 35, citing State
v. Parson, 6 Ohio St. 3d 442, 453 N.E.2d 689 (1983). It is well settled that “[a] trial court
must inquire into the circumstances surrounding a discovery rule violation and, when
deciding whether to impose a sanction, must impose the least severe sanction that is
consistent with the purpose of the rules of discovery.” Darmond at ¶ 42, citing
Lakewood v. Papadelis, 32 Ohio St. 3d 1, 511 N.E.2d 1138 (1987).
{¶22} However, an appellate court normally does not resolve an alleged error if it
was never brought to the attention of the trial court “at a time when such error could
have been avoided or corrected by the trial court.” State v. Carter, 89 Ohio St. 3d 593,
598, 734 N.E.2d 345. In the absence of an objection, this Court may only examine the
court's actions for plain error. Id.
{¶23} Plain error should be used “with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.” State v. Barnes,
94 Ohio St. 3d 21, 27, 759 N.E.2d 1240. A claim of plain error fails unless, but for the
error, the outcome of the trial would have been different: “[t]he test for plain error is
stringent. A party claiming plain error must show that (1) an error occurred, (2) the error
was obvious, and (3) the error affected the outcome of the trial.” State v. Davis, 116
Ohio St. 3d 404, 2008-Ohio-2, 880 N.E.2d 31, at ¶ 378.
Case No. 17 BE 0021
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{¶24} There are several reasons Appellant’s assignment here is not well-taken.
First, Appellant failed to properly request a copy of the video and no such request
appears in the record. Second, Appellant failed to object to the trial court’s proposed
use of the video. Assuming arguendo that Appellant had properly objected, his
assignment would still fail. Appellant has not demonstrated that the alleged error
affected the outcome of the trial. The trial court’s conclusion is supported by Patrolman
Lucas’s testimony, and the court clearly believed this testimony to be credible. Further,
Merry conceded that Appellant sounded the horn when he realized Shrewsbury was
making a right turn, but did not engage the brake until the Jeep had collided with
Shrewsbury’s car. (Tr., p. 14.) Hence, this record reveals no manifest miscarriage of
justice occurred as a result of the state’s failure to provide a copy of the video to
Appellant. Accordingly, the first issue contained in his assignment of error, an alleged
discovery violation, is without merit.
{¶25} In determining whether a criminal conviction is against the manifest weight
of the evidence, an appellate court must review 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.
State v. Thompkins, 78 Ohio St. 3d 380, 387, 678 N.E.2d 541 (1997); State v. Hunter,
131 Ohio St. 3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 119. “Although a court of
appeals may determine that a judgment of a trial court is sustained by sufficient
evidence, that court may nevertheless conclude that the judgment is against the weight
of the evidence.” Thompkins at 387, 678 N.E.2d 541.
Case No. 17 BE 0021
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{¶26} Regardless, the weight to be given to the evidence and the credibility of
the witnesses are issues for the trier of fact. State v. DeHass, 10 Ohio St. 2d 230, 227
N.E.2d 212 (1967). The trier of fact “has the best opportunity to view the demeanor,
attitude, and credibility of each witness, something that does not translate well on the
written page.” Davis v. Flickinger, 77 Ohio St. 3d 415, 418, 674 N.E.2d 1159 (1997).
{¶27} App.R. 9 governs the record on appeal, and provides in relevant part:
The original papers and exhibits thereto filed in the trial court, the
transcript of proceedings, if any, including exhibits, and a certified copy of
the docket and journal entries prepared by the clerk of the trial court shall
constitute the record on appeal in all cases.
App.R. 9(A)(1).
{¶28} Because the video was not admitted at trial, it is not a part of the record on
appeal. However, the record does reveal that the testimony of Patrolman Lucas and
Appellant’s wife support the decision of the trial court. The evidence, if believed, shows
Appellant was traveling at an elevated rate of speed and did not immediately stop his
vehicle when he realized that Shrewsbury was making a right turn. It is undisputed that
there was only one lane of travel on the road at issue and Shrewsbury maintained the
right of way. Even if Shrewsbury initially intended to turn left and changed her mind,
Appellant at no time had the absolute right to pass her vehicle. The trial court did not
lose its way or create a manifest miscarriage of justice when it convicted Appellant of a
violation of Ordinance 331.04. Accordingly, the second issue contained in Appellant’s
assignment of error is also without merit.
Conclusion
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{¶29} For the foregoing reasons, Appellant’s conviction is affirmed.
Donofrio, J., concurs.
Robb, P.J., concurs.
Case No. 17 BE 0021
[Cite as State v. Vargo, 2018-Ohio-2487.]
For the reasons stated in the Opinion rendered herein, the assignment of error is
overruled and it is the final judgment and order of this Court that the judgment of the
Belmont County Court, Western Division, of Belmont County, Ohio, is affirmed. Costs
to be taxed against the Appellant.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.