 [Cite as State v. Benavides, 2014-Ohio-2089.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                  CHAMPAIGN COUNTY

 STATE OF OHIO                                       :
                                                     :     Appellate Case No. 2013-CA-42
           Plaintiff-Appellee                        :
                                                     :     Trial Court No. 2013-TRD-1083
 v.                                                  :
                                                     :
 COOPER E. BENAVIDES                                 :     (Criminal Appeal from
                                                     :     Champaign County Municipal Court)
           Defendant-Appellant                       :
                                                     :
                                                 ...........
                                                 OPINION
                                Rendered on the 16th day of May, 2014.
                                                 ...........

BREANNE PARCELS, Atty. Reg. #0089370, Champaign County Municipal Prosecutor’s
Office, 205 South Main Street, Urbana, Ohio 43078
        Attorney for Plaintiff-Appellee

JOHN P. CARLSON, Atty. Reg. #0076002, 131 North Ludlow Street, Suite 1400, Dayton, Ohio
45402
      Attorney for Defendant-Appellant

                                                 .............

FAIN, J.

       {¶ 1}       Defendant-appellant Cooper E. Benavides appeals from his conviction and fine

for Speeding, in violation of R.C. 4511.21(D)(1). Benavides contends that the trial court erred
                                                                                           2


in denying his Crim.R. 29 motion for acquittal, because the State failed to present sufficient

evidence to support a conviction for Speeding. In particular, Benavides contends that the State’s

lay witnesses should not have been permitted to testify regarding the speed at which Benavides’s

vehicle was traveling.    Benavides also contends that the trial court erred in allowing his

admission into evidence, because it constitutes inadmissible hearsay.

       {¶ 2}      We conclude that the trial court did not err in overruling Benavides’s Crim.R.

29 motion.     We also conclude that Benavides’s admission qualifies as an admission of a

party-opponent, which does not constitute hearsay. Accordingly, the judgment of the trial court

is Affirmed.



                    I. Benavides Is Involved in an Accident while Speeding

       {¶ 3}      In April 2013, Cooper Benavides and Paul Sandrus were driving their vehicles

on the way home from attending classes at Triad High School. According to Sandrus and

eyewitnesses, Benavides and Sandrus were racing at speeds of at least 65 miles per hour on

Urbana Woodstock Pike. As another motorist attempted to cross Urbana Woodstock Pike in

front of the two racers, Benavides’s vehicle crashed into the crossing motorist.

       {¶ 4}      Benavides was questioned at the scene of the accident by Deputy John

McNeely. According to McNeely, Benavides admitted that he was driving 65 miles per hour.

The speed limit on that particular road is 55 miles per hour. Benavides was cited for Speeding,

in violation of R.C. 4511.21(D)(1).



                                II. The Course of Proceedings
[Cite as State v. Benavides, 2014-Ohio-2089.]
        {¶ 5}     At the conclusion of witnesses’ testimony, Benavides moved for a judgment of

acquittal, pursuant to Crim.R. 29. The trial court overruled the motion and found Benavides

guilty of Speeding. The trial court imposed a $150 fine. From this judgment, Benavides

appeals.



                       III. The State Presented Sufficient Evidence to Support

                      a Conviction for Speeding Pursuant to R.C. 4511.21(D)(1)

        {¶ 6}     Benavides’s First Assignment of Error states:

                 THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO

        SUPPORT A CONVICTION FOR SPEEDING UNDER R.C. 4511.21(D)(1).

        {¶ 7}     “A sufficiency of the evidence argument disputes whether the State has presented

adequate evidence on each element of the offense to allow the case to go to the jury or sustain the

verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶

10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). When reviewing

whether the State has presented sufficient evidence to support a conviction, the relevant inquiry is

whether any rational finder of fact, after viewing the evidence in a light most favorable to the

State, could have found the essential elements of the crime proven beyond a reasonable doubt.

State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997). A guilty verdict will not be

disturbed on appeal unless “reasonable minds could not reach the conclusion reached by the

trier-of-fact.” Id.

        {¶ 8}     Benavides was convicted of a violation of R.C. 4511.21(D)(1), which provides

that: “No person shall operate a motor vehicle, trackless trolley, or streetcar upon a street or

highway as follows: (1) At a speed exceeding fifty-five miles per hour * * * .” At trial, Deputy
                                                                                              4


McNeely testified that Benavides admitted at the accident scene that he was driving 65 miles per

hour. Furthermore, Sandrus, who was racing Benavides at the time of the accident, admitted that

he and Benavides were traveling well in excess of the speed limit. Also, two eyewitnesses

estimated that Sandrus and Benavides were traveling at speeds of 70 miles per hour or greater.

This testimony is sufficient to support a conviction for Speeding, in violation of R.C.

4511.21(D)(1).

       {¶ 9}     Benavides contends that the testimony of the eyewitnesses regarding how fast

Benavides was traveling should have been disregarded. In support of his contention, Benavides

cites R.C. 4511.091(C)(1), which concerns a peace officer’s unaided visual estimation of the

speed of a motor vehicle. This statutes provides, in part: “No person shall be arrested, charged,

or convicted of a violation of any provision of divisions (B) to (O) of section 4511.21 or section

 4511.211 of the Revised Code or a substantially similar municipal ordinance based on a peace

officer's unaided visual estimation of the speed of a motor vehicle, trackless trolley, or streetcar.”

       {¶ 10} Benavides urges us to construe the restriction in R.C. 4511.091(C)(1) as applying

to lay persons, as well as to peace officers, in order to avoid what he claims would be an absurd

result. We decline to do so. The plain language of the statute addresses only a peace officer’s

unaided visual estimation; no construction is required. Nor is the result necessarily absurd.

One possible rationale may have been a concern about peace officers using visual estimations of

speed to meet ticket quotas, for example. Another may have been, as the State suggests, a

prophylactic rule intended to encourage police officers to use the devices to measure vehicle

speeds that are ordinarily available to them, which would not apply to persons other than police

officers. But even if we might question the rationale of a statutory provision, we are bound by
                                                                                           5


its plain language, so long as it is constitutional.

        {¶ 11} Benavides’s conviction is not based on the unaided visual estimation of a peace

officer. His conviction is based on eyewitness testimony from individuals who are not police

officers, in addition to his own admission at the accident scene and the testimony of Sandrus.

Therefore, R.C. 4511.091(C) does not apply to the case before us.

        {¶ 12} Benavides also contends that the witnesses who testified against him were not

credible or were mistaken in their testimony. The credibility of the witnesses and the weight to

be given to their testimony are matters for the trier of facts to resolve. State v. DeHass, 10 Ohio

St.2d 230, 231, 227 N.E.2d 212 (1967). “The decision whether, and to what extent, to credit the

testimony of particular witnesses is within the peculiar competence of the factfinder, who has

seen and heard the witness.” State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL

476684, *4 (Aug. 22, 1997). Based on our review of the testimony at trial, we conclude that the

evidence was sufficient to support a conviction for Speeding. Consequently, the trial court

properly overruled Benavides’ motion for judgment of acquittal pursuant to Crim.R. 29.

        {¶ 13} The First Assignment of Error is overruled.



                            IV. Benavides’s Admission Is Not Hearsay

        {¶ 14} Benavides’s Second Assignment of Error states:

                THE TRIAL COURT ERRED IN ALLOWING INADMISSIBLE

        HEARSAY INTO EVIDENCE.

        {¶ 15} In this assignment of error, Benavides contends that the trial court improperly

admitted hearsay evidence by allowing testimony regarding a statement against interest that
                                                                                        6


Benavides made at the accident scene. According to Benavides, the trial court erred in allowing

such testimony where there were no corroborating circumstances clearly indicating the

trustworthiness of the statement. Brief, p. 11-12, citing Evid.R. 804(B)(3). We disagree.

       {¶ 16} Benavides correctly points out that Evid.R. 804(B)(3) concerns statements

against interest and provides, in part: “A statement tending to expose the declarant to criminal

liability, whether offered to exculpate or inculpate the accused, is not admissible unless

corroborating circumstances clearly indicate the truthworthiness of the statement.” Benavides

ignores, however, Evid.R. 801(D)(2), which provides that a statement constituting an admission

by a party-opponent is not hearsay if it “is offered against a party and is (a) the party’s own

statement, in either an individual or a representative capacity.”

       {¶ 17} The First District Court of Appeals recently addressed the important distinction

between Evid.R. 801(D)(2) and 804(B)(3).           In State v. Webster, 1st Dist. Hamilton No.

C-120452, 2013-Ohio-4142,¶ 66, the court stated, in part:

               Evid.R. 804(B)(3) provides that a statement against interest may be

       admitted under certain circumstances as an exception to the hearsay rule. But

       Evid.R. 804(B)(3) does not apply to statements made by a party to the action.

       1993 Staff Note to Evid.R. 804(B)(3). A statement made by a defendant is

       considered an “admission,” and is governed by Evid.R. 801(D)(2).              An

       “admission” and a “statement against interest” reflect two distinct concepts and

       different rules of admissibility apply to each. See Ferrebee v. Boggs, 24 Ohio

       App.2d 18, 263 N.E.2d 574 (4th Dist.1970). In pertinent part, Evid.R. 801(D)(2)

       provides that the statement sought to be admitted at trial must be offered against

       the party who had made the statement.
[Cite as State v. Benavides, 2014-Ohio-2089.]
        {¶ 18} The language in Evid.R. 804(B)(3) regarding “corroborating circumstances

clearly indicating the trustworthiness of the statement” is not contained in Evid.R. 801(D)(2).

Furthermore, admissions of a party-opponent do not constitute hearsay. Therefore, Benavides’

contentions regarding inadmissible hearsay must fail.

        {¶ 19} Finally, Benavides contends that the testimony of the officers conflicted with the

testimony of the eyewitnesses. We have reviewed the trial transcript and conclude that all of the

witnesses who testified regarding Benavides’ speed agreed that Benavides was traveling in

excess of the speed limit.         Therefore, we conclude that the trial court properly convicted

Benavides of Speeding in violation of R.C. 4511.21(D)(1).

        {¶ 20} The Second Assignment of Error is overruled.



                                                V. Conclusion

        {¶ 21} Both of the assignments of error having been overruled, the judgment of the trial

court is Affirmed.

                                                .............

FROELICH, P.J., and WELBAUM, J., concur.



Copies mailed to:

Breanne Parcels
John P. Carlson
Hon. Susan J. Fornof-Lippencott
