[Cite as State v. Heater, 2018-Ohio-4250.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                   )

STATE OF OHIO                                        C.A. No.      17AP0035

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
WILLIAM C. HEATER                                    WAYNE COUNTY MUNICIPAL COURT
                                                     COUNTY OF WAYNE, OHIO
        Appellant                                    CASE No.   2017-TR-D 007402

                                 DECISION AND JOURNAL ENTRY

Dated: October 22, 2018



        TEODOSIO, Judge.

        {¶1}     Defendant-Appellant, William Heater, appeals from his conviction in the Wayne

County Municipal Court. This Court affirms.

                                                I.

        {¶2}     One July afternoon, Trooper Jeremy Parks was observing traffic traveling

eastbound on U.S. 30. The traffic conditions were light to moderate when he saw a car speeding

toward him and clocked it at 98 miles per hour. The car was traveling in the left lane, but, as it

approached the trooper, it slowed and moved to the right lane. Once it passed, Trooper Parks

executed a traffic stop.

        {¶3}     Mr. Heater was the driver of the car that Trooper Parks stopped. When the

trooper approached him, Mr. Heater indicated that he had been speeding because a red van had

been relentlessly tailgating him. He claimed that the van kept matching his speed, regardless of

whether he sped up or slowed down, so he was trying to elude it. After Trooper Parks returned
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to his cruiser, completed a citation, and went to hand it to Mr. Heater, Mr. Heater then claimed

that the van driver had pointed at him and, possibly, had been holding a gun when he did so.

       {¶4}       Mr. Heater pleaded not guilty to speeding and, at a bench trial, raised the

affirmative defense of sudden emergency. After hearing all of the evidence, the court rejected

his defense and found him guilty. The court also found that Mr. Heater had engaged in reckless

operation. Accordingly, in addition to fining him for his speeding violation, the court sentenced

him to a six-month license suspension and assessed two points against his license.

       {¶5}       Mr. Heater now appeals from his conviction and raises two assignments of error

for our review.

                                                   II.

                                  ASSIGNMENT OF ERROR ONE

       THE TRIAL COURT ERRED BY FINDING THAT THE DEFENSE OF
       SUDDEN EMERGENCY DID NOT EXCULPATE THE DEFENDANT FROM
       THE SPEEDING VIOLATION WITH WHICH HE WAS CITED AS THAT
       DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

       {¶6}       In his first assignment of error, Mr. Heater argues that his conviction is against the

manifest weight of the evidence. Specifically, he argues that the court lost its way when it

rejected his sudden emergency defense. We disagree.

       {¶7}       This Court has stated:

       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 and a new trial ordered.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). “[W]hen reversing a conviction on the

basis that it was against the manifest weight of the evidence, an appellate court sits as a
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‘thirteenth juror,’ and disagrees with the factfinder’s resolution of the conflicting testimony.”

State v. Tucker, 9th Dist. Medina No. 06CA0035-M, 2006-Ohio-6914, ¶ 5. This discretionary

power “should be exercised only in the exceptional case in which the evidence weighs heavily

against the conviction.” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting State v.

Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).

       {¶8}   The affirmative defense of sudden emergency will excuse a motorist’s violation

of a traffic law if it occurs due to “a sudden and unexpected occurrence or condition * * *.”

Zehe v. Falkner, 26 Ohio St.2d 258 (1971), paragraph two of the syllabus. Yet, “[not] every

unexpected occurrence * * * constitute[s] a sudden emergency.” Oechsle v. Hart, 12 Ohio St.2d

29, 34 (1967). The motorist must “show that something over which [he] had no control, or an

emergency not of [his] own making, made it impossible to comply with the [traffic law].” State

v. Davis, 4th Dist. Pickaway No. 04CA1, 2004-Ohio-5680, ¶ 15.

       “For example, a driver proceeding lawfully in [his] lane of travel, suddenly struck
       by a motorist that ignored a stop sign, and as a result of the collision forced to
       veer or travel to the left of the center line should not be held to have violated the
       driving left of center statute.”

State v. Gabriel, 9th Dist. Medina No. 14CA0005-M, 2014-Ohio-5387, ¶ 18, quoting Davis at ¶

15. The sudden emergency defense “does not comprehend a static condition which last[s] over a

period of time.” Miller v. McAllister, 169 Ohio St. 487 (1959), paragraph six of the syllabus.

Likewise, “[a] self-created emergency, one arising from his own conduct or from circumstances

under his control, cannot serve as an excuse.” Zehe at paragraph three of the syllabus. Accord

Grange Mut. Cas. Co. v. Biehl, 9th Dist. Summit No. 18304, 1998 Ohio App. LEXIS 892, *8

(Mar. 11, 1998).

       {¶9}   Trooper Jeremy Parks testified that he was watching eastbound traffic on U.S. 30

from a stationary position when he first observed Mr. Heater’s car. He stated that traffic
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conditions were light to moderate that day, and he first saw Mr. Heater from a distance of

approximately 1,200 to 1,300 feet. He visually estimated that Mr. Heater was traveling at 100

miles per hour and used his laser to confirm that his actual speed was 98 miles per hour in the 70

mile per hour zone. Mr. Heater was initially traveling in the left lane, but slowed and moved to

the right lane as he approached. He then passed Trooper Parks, and the trooper executed his

stop.

        {¶10} Trooper Parks testified that he spoke with Mr. Heater twice; once when he first

stopped him and once when he returned to Mr. Heater’s car to issue him a citation. The first

time they spoke, Mr. Heater said he was speeding because a red van was tailgating him. He

claimed that he had tried increasing and decreasing his speed, but the van had simply matched

his speed each time. Mr. Heater informed Trooper Parks that his chest hurt, it had been hurting

all day, and he had been speeding to try to evade the van. Trooper Parks testified that

        [a]t that point [he] told [Mr. Heater] * * * the best thing to do in one of [those]
        scenarios is just to slow down or if you have to hit the shoulder, you know, to stop
        to let that vehicle go by, you know, that would be the safest thing to do [rather]
        than almost travel a hundred miles per hour to get away from him.

According to Trooper Parks, Mr. Heater never told him that he had, in fact, pulled to the side of

the road to allow the van to pass. After Mr. Heater declined medical attention for his chest pain,

Trooper Parks returned to his cruiser to complete Mr. Heater’s citation.

        {¶11} When Trooper Parks returned to hand Mr. Heater his citation, Mr. Heater then

told him that the van driver had pointed something at him and he “didn’t know if it was his hand

or a gun * * *.” Trooper Parks confirmed that, on his initial approach, Mr. Heater never

mentioned the van driver engaging him in that fashion. Further, Trooper Parks testified that he

never personally witnessed any aggressive driving between Mr. Heater and the red van as he

watched Mr. Heater’s car approach from an initial distance of 1,200 to 1,300 feet. The trooper
                                                  5


recalled that he saw a red van behind Mr. Heater’s car, but testified that it was several car lengths

away. He indicated that he was able to pull out from his stationary position, stop Mr. Heater’s

car, and place his cruiser in park before the red van passed his cruiser.

       {¶12} Mr. Heater testified that he was driving home from work and traveling in the right

lane when a red van began tailgating him. He stated that he waited for the van to pass, but it did

not. Reasoning that the van driver wanted him to move over, Mr. Heater then changed lanes. He

testified that the van driver also moved over, however, so he returned to the right lane.

According to Mr. Heater, the van driver then accelerated to pull even, made some kind of hand

gesture, and crossed slightly into Mr. Heater’s lane of travel. Mr. Heater indicated that he could

not see the driver’s face because the van’s windows were tinted. He claimed that he became

concerned, however, because he had received a death threat from his ex-wife’s son two weeks

earlier and did not know what kind of vehicle the son drove. According to Mr. Heater, he

slowed and pulled to the side of the road to call 911, but his cell phone was dead. He testified

that, when he looked up from his phone, he saw that the van had stopped behind him. He then

“took off” and attempted to speed away from the van. About one mile later, he noticed the van

was slowing and saw Trooper Parks’ cruiser.

       {¶13} Mr. Heater conceded that, when Trooper Parks initially approached his car, he did

not tell him that the van driver had made a hand gesture or that the driver had followed him when

he had pulled to the side of the road. According to Mr. Heater, he failed to inform the trooper of

those details because he was in shock. He testified that he was experiencing chest pains and,

after the trooper released him, he received treatment for an anxiety attack.

       {¶14} Mr. Heater argues that the trial court lost its way when it failed to conclude that a

sudden emergency justified his otherwise unlawful conduct. He asserts that he was forced to
                                                6


speed due to circumstances beyond his control (i.e., the conduct of the van driver), so the court

ought to have excused his speeding violation. He contends that his testimony about the van

driver was uncontroverted and showed that he acted the way any reasonable person would have

in that situation. Thus, he argues that his speeding conviction is against the manifest weight of

the evidence.

       {¶15} This Court will assume for purposes of its analysis that a motorist, faced with the

situation Mr. Heater described, could avail himself of the sudden emergency defense. But see

Miller, 169 Ohio St. 487 at paragraph six of the syllabus and Zehe, 26 Ohio St.2d 258 at

paragraph three of the syllabus (sudden emergency defense does not apply to static conditions or

in circumstances under one’s own control). Even so, this Court cannot conclude that the trial

court clearly lost its way when it rejected Mr. Heater’s affirmative defense. See Otten, 33 Ohio

App.3d at 340. The trial court specifically noted that it did not find Mr. Heater’s version of the

events to be entirely credible. That is because Mr. Heater did not attempt to stop for help when

he saw Trooper Parks’ cruiser and he failed to tell the trooper important details when he initially

spoke with him (e.g., that the van driver followed him to the side of the road and might have

pointed a gun at him). Trooper Parks also never observed any aggressive driving between the

two vehicles. Though Mr. Heater was the only one to testify about the moments preceding the

trooper’s involvement, the trial court was not required to accept his testimony. “This Court has

repeatedly held that the trier of fact is in the best position to determine the credibility of

witnesses and evaluate their testimony accordingly.” State v. Johnson, 9th Dist. Summit No.

25161, 2010-Ohio-3296, ¶ 15.       The trial court, observing Mr. Heater and listening to his

testimony, was free to reject it in whole or part. See State v. Clark, 9th Dist. Wayne No.

14AP0002, 2015-Ohio-2978, ¶ 24. The record reflects that this is not the exceptional case in
                                                 7


which the evidence weighs heavily against Mr. Heater’s conviction.              See Otten at 340.

Consequently, his first assignment of error is overruled.

                               ASSIGNMENT OF ERROR TWO

       THE TRIAL COURT ABUSED ITS DISCRETION BY FINDING THAT THE
       DEFENDANT’S ACTIONS WERE RECKLESS AND IMPOSING A LICENSE
       SUSPENSION UPON HIM.

       {¶16} In his second assignment of error, Mr. Heater argues that the trial court abused its

discretion when it found that he engaged in reckless operation, and thus, suspended his driver’s

license. We disagree.

       {¶17} “[I]n addition to or independent of all other penalties provided by law,” a trial

court may suspend a driver’s license if he commits a motor vehicle violation “relating to reckless

operation.” R.C. 4510.15. Speeding is one type of violation for which a court may impose a

license suspension. See Akron v. Willingham, 166 Ohio St. 337, 338 (1957). “When deciding

whether to suspend a driver’s license * * *, a court considers all of the relevant evidence

probative of whether the defendant’s operation of a motor vehicle was reckless.” State v.

Secrest, 9th Dist. Wayne No. 04CA0023, 2004-Ohio-4585, ¶ 7.

       “That a driver’s operation of a motor vehicle was reckless is a conclusion reached
       by examining both the driving in issue and all the circumstances under which it
       took place. Foremost among these circumstances is the threat this manner of
       operation poses to others.”

(Emphasis deleted.) Akron v. Cripple, 9th Dist. Summit No. 21385, 2003-Ohio-3920, ¶ 23,

quoting State v. Hartman, 41 Ohio App.3d 142, 144 (12th Dist.1987), fn. 3. “A person acts

recklessly when, with heedless indifference to the consequences, [he] disregards a substantial

and unjustifiable risk that [his] conduct is likely to cause a certain result or is likely to be of a

certain nature.”    R.C. 2901.22(C).      In finding that the circumstances warrant a license

suspension, “the court need not make any special finding of recklessness.” Secrest at ¶ 7.
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       {¶18} This Court applies an abuse of discretion standard when reviewing a trial court’s

decision to suspend a driver’s license. Cripple at ¶ 22. An abuse of discretion indicates that the

trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore,

5 Ohio St.3d 217, 219 (1983). When applying the abuse of discretion standard, this Court may

not substitute its judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d

619, 621 (1993).

       {¶19} The trial court determined that Mr. Heater engaged in reckless operation when he

drove his car at an extremely high rate of speed and repeatedly changed lanes while other cars

were present. Mr. Heater argues that the court abused its discretion in reaching that conclusion

because there was no evidence that there were other cars on the road apart from his own car and

the red van. He further argues that it was unreasonable for the court to suspend his license

because he acted the way that any reasonable person would have in the foregoing scenario.

       {¶20} Having reviewed the record, we cannot conclude that the trial court abused its

discretion when it decided to suspend Mr. Heater’s license. See Cripple at ¶ 22. Trooper Parks

specifically testified that traffic conditions were light to moderate when he observed Mr. Heater

and executed his traffic stop. Additionally, on the citation he issued Mr. Heater, he marked that

the traffic flow was moderate. The trial court heard evidence that Mr. Heater was traveling at 98

miles per hour in the middle of the afternoon, changing lanes of travel as he progressed. As

such, it reasonably could have concluded that he posed a threat to those around him, see id. at ¶

23, and acted with heedless indifference to those consequences. See R.C. 2901.22(C). This

Court rejects Mr. Heater’s argument to the contrary.         His second assignment of error is

overruled.
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                                                III.

       {¶21} Mr. Heater’s assignments of error are overruled. The judgment of the Wayne

County Municipal Court is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Wayne County

Municipal Court, County of Wayne, State of Ohio, to carry this judgment into execution. A

certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       THOMAS A. TEODOSIO
                                                       FOR THE COURT



SCHAFER, P. J.
CALLAHAN, J.
CONCUR.
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APPEARANCES:

STEVE C. BAILEY, Attorney at Law, for Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, and ANDREA D. UHLER, Assistant Prosecuting
Attorney, for Appellee.
