State v. Hessler

[Cite as State v. Hessler, 2020-Ohio-2859.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
SANDUSKY COUNTY
State of Ohio Court of Appeals No. S-19-029
Appellee Trial Court Nos. 19TRD69A
19TRD69B
v.
Martha W. Hessler DECISION AND JUDGMENT
Appellant Decided: May 8, 2020
*****
Beth A. Tischler, Sandusky County Prosecuting Attorney,
for appellee.
Angela M. Lavin and Aaron A. Hessler, for appellant.
*****
PIETRYKOWSKI, J.
{¶ 1} Defendant-appellant, Martha W. Hessler, appeals the July 24, 2019
judgment of the Sandusky County Court which, following a bench trial finding her guilty
of failing to yield at a stop sign and distracted driving, ordered her to pay fines totaling
$300. For the reasons that follow, we affirm the convictions but modify the fine.
{¶ 2} On January 7, 2019, in Washington Township, Sandusky County, Ohio,
appellant was issued a traffic citation for failing to stop/yield at a stop sign and for the
secondary offense of distracted driving. Appellant contested the charges and the matter
was set for trial.
{¶ 3} The matter proceeded to a bench trial on May 8, 2019. The state presented
the testimony of Ohio State Highway Patrol Trooper, Donte Hanns. Trooper Hanns
stated that on January 7, 2019, under light rain conditions, he was stopped in his patrol
vehicle in the median or “suicide lane” on U.S. 20 near the intersection of S.R. 600 and
was monitoring eastbound traffic. Trooper Hanns’ dashboard camera recorded the
incident; Hanns narrated the viewing of the video during his testimony. Trooper Hanns
stated that he observed multiple vehicles on S.R. 600 at the stop sign at the intersection.
The first two vehicles stopped and then proceeded through crossing U.S. 20. After
stopping, a pickup truck turned left onto U.S. 20. Trooper Hanns stated that appellant
then “piggybacked” off of the pickup truck also turning left onto U.S. 20. Hanns
explained that appellant failed to make a complete stop before turning. He stated that
from where appellant last stopped she could not have seen oncoming, eastbound traffic
on U.S. 20 due to a house near the corner.
{¶ 4} Trooper Hanns testified that he then followed and stopped appellant. When
asked, appellant stated that she was distracted by the GPS on her cell phone. Appellant
did not admit to failing to stop; she indicated that she believed that she did stop. Trooper
2.
Hanns testified that he had no doubt that appellant failed to yield at the stop sign and that
he issued a citation for the infraction as well as for distracted driving.
{¶ 5} During cross-examination, Trooper Hanns testified that at the intersection
there is a white stop line as well as a stop sign. Hanns admitted that he did not know
where the pickup truck stopped in relation to the white line or where appellant’s vehicle
was positioned in relation to the white line. He also admitted that he could not see the
stop sign from his position.
{¶ 6} Defense counsel then introduced a photograph of the intersection in
question. It depicted the location of the white line which was even with a telephone pole.
Comparing the photograph to the video, Trooper Hanns stated that appellant’s only stop
near the intersection was behind the pickup truck and that the truck’s front tires were
positioned in line with the telephone pole. Hanns agreed that this placed appellant’s
vehicle at least one full car length behind the white line. This was the last point she was
stopped before her entry into the intersection.
{¶ 7} The court then determined that based on its review of the statute, the video,
and the photograph it was clear that appellant failed to stop at the stop sign before turning
onto U.S. 20. The court noted that common sense applied in that based on the dangerous
nature of the intersection (which the judge stated she was very familiar with), many
people stop and pull up and stop again prior to proceeding. The court further found that
appellant admitted to being distracted while driving. The court then ordered appellant to
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pay $150 fine plus court costs as to each violation. This appeal followed with appellant
raising three assignments of error for our review:
First Assignment of Error: The trial court erred in convicting
appellant, Martha W. Hessler, of violating R.C. 4511.43(A) when the
manifest weight of the evidence shows that appellant did stop at the stop
sign and that state failed to introduce the evidence necessary to convict
appellant of violating R.C. 4511.43(A).
Second Assignment of Error: The trial court erred in convicting
appellant, Martha W. Hessler of violating R.C. 4511.43(A) when the trial
judge relied on her personal knowledge of the facts that were in dispute in
the trial.
Third Assignment of Error: The trial court erred in sentencing
appellant, Martha W. Hessler to a $150 fine for violating R.C. 4511.991
when the maximum fine permitted under the statute is $100.
{¶ 8} Appellant’s first assignment of error is that appellant’s conviction for failing
to yield at a stop sign was against the manifest weight of the evidence. When considering
whether a judgment is against the manifest weight of the evidence in a bench trial, an
appellate court will not reverse a conviction where the trial court could reasonably
conclude from substantial evidence that the state has proved the offense beyond a
reasonable doubt. State v. Eskridge, 38 Ohio St. 3d 56, 59, 526 N.E.2d 304 (1988). The
court reviews the entire record, weighs the evidence and all reasonable inferences,
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considers the credibility of witnesses and determines whether, in resolving conflicts in
the evidence, the court “‘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), quoting State v. Martin, 20
Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). The discretionary power to grant
a new trial should be exercised only in exceptional cases where the evidence weighs
heavily against the conviction. Id.
{¶ 9} The statute in dispute, R.C. 4511.43(A), provides:
Except when directed to proceed by a law enforcement officer, every
driver of a vehicle or trackless trolley approaching a stop sign shall stop at a
clearly marked stop line, but if none, before entering the crosswalk on the
near side of the intersection, or, if none, then at the point nearest the
intersecting roadway where the driver has a view of approaching traffic on
the intersecting roadway before entering it. After having stopped, the
driver shall yield the right-of-way to any vehicle in the intersection or
approaching on another roadway so closely as to constitute an immediate
hazard during the time the driver is moving across or within the intersection
or junction of roadways.
{¶ 10} Appellant contends that this court should hold that a motorist has not
violated R.C. 4511.43(A) where the motorist stops behind a vehicle stopped beyond the
white line and then proceeds through the intersection without stopping a second time.
5.
Supporting this argument, appellant relies on a case finding in favor of the motorist
where the state failed to present any evidence as to where the appellant stopped in
relation to the stop sign. State v. Abele, 4th Dist. Jackson No. 04CA7, 2005-Ohio-2378.
In Abele, the citing officer admitted that appellant came to a stop behind another vehicle
that was stopped beyond the stop line. Id. at ¶ 11. The court concluded that the
admission that appellant came to a complete stop combined with the failure to show
where appellant stopped in relation to the white line was insufficient to prove a violation
of R.C. 4511.43. Id.
{¶ 11} In the present case, unlike Abele, testimony and evidence was presented to
show that the pickup truck directly in front of appellant stopped at the white line and that
appellant’s last stop was, at minimum, a pickup truck’s length back from that line. See
State v. Hudson, 4th Dist. Gallia App. No. 17CA19, 2018-Ohio-2717, ¶ 25,
distinguishing Abele. Accordingly, we find that the court did not lose its way or create a
manifest injustice by finding that appellant violated R.C. 4511.43(A).1 Appellant’s first
assignment of error is not well-taken.
1
Although not raised as an assignment of error, we reject appellant’s assertion that the
use of her GPS could not form the basis of a distracted driving charge because it is
excluded under R.C. 4511.991(1)(a)(iii). The subsection provides an exception to
distracted driving for use of “[a] ‘voice-operated or hands-free’ device that allows the
person to use the electronic wireless communications device without the use of either
hand except to activate, deactivate, or initiate a feature or function[.]” First, at trial there
was no evidence presented as to how appellant’s cell phone, mounted to her steering
column, was being used. Regardless, R.C. 4511.991(1)(b) also defines distracted driving
as “[e]ngaging in any activity that is not necessary to the operation of a vehicle and
impairs, or reasonably would be expected to impair, the ability of the operator to drive
6.
{¶ 12} In her second assignment of error, appellant argues that the trial judge erred
by relying on her “personal knowledge” of the facts that were in dispute. Appellant also
contends that the court offered “opinion testimony” in contravention of Evid.R. 605. We
disagree.
{¶ 13} First, the court did not offer testimony as asserted by appellant; the
comments regarding the intersection were made while the court was rendering its verdict.
Further, the comments made were not as to any facts that were in dispute. Whether the
intersection was historically “dangerous” was not an issue for trial nor was the question
of whether appellant stopped a second time before turning onto U.S. 20. Reviewing the
trial transcript, it is clear that the court based its decision on the evidence properly before
it. The court specifically concluded that comparing the video and photograph it was clear
that appellant did not stop at the white line and proceeded almost “simultaneously”
behind the pickup truck into the intersection. Finally, it is not surprising that the court
had knowledge of a busy intersection in its jurisdiction. Appellant’s second assignment
of error is not well-taken.
{¶ 14} In appellant’s third and final assignment of error she argues that the trial
court erred by imposing a $150 fine for the distracted driving violation where the
the vehicle safely.” Appellant’s admission to being distracted by her GPS combined with
the officer’s observation of the stop sign violation was sufficient to support the charge.
7.
maximum fine is $100. See R.C. 4511.991(B). The state concedes the error.
Accordingly, appellant’s third assignment of error is well-taken.
{¶ 15} On consideration whereof, we find that the Sandusky County Court’s
judgment convicting appellant of failure to stop/yield at a stop sign and distracted driving
is affirmed. Pursuant to App.R. 12(1)(a), we modify appellant’s sentence to reduce the
$150 distracted driving fine to $100. Pursuant to App.R. 24, the parties are ordered to
equally share the costs of this appeal.
Judgment affirmed
and modified.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Gene A. Zmuda, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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