[Cite as S. Euclid v. Whitledge, 2014-Ohio-2405.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 100543




                              CITY OF SOUTH EUCLID
                                                          PLAINTIFF-APPELLEE

                                                    vs.

                                  JON K. WHITLEDGE
                                                          DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                       Criminal Appeal from the
                                     South Euclid Municipal Court
                                        Case No. TRD 1300994

        BEFORE: Rocco, P.J., Keough, J., and E.A. Gallagher, J.

        RELEASED AND JOURNALIZED: June 5, 2014

                                                    -i-
ATTORNEY FOR APPELLANT

Joseph T. McGinness
5005 Rockside Road
Suite 600
Cleveland, OH 44131

ATTORNEYS FOR APPELLEE

Michael P. Lograsso
Law Director, South Euclid
By: Michael Shaughnessy
      City Prosecutor
1349 South Green Road
South Euclid, OH 44121
KENNETH A. ROCCO, P.J.:

       {¶1} Defendant-appellant Jon K. Whitledge appeals from his conviction in the

South Euclid Municipal Court for violating South Euclid Municipal Code (“SEMC”)

331.34(c), failure to give full time and attention while operating a vehicle (“full time and

attention”).

       {¶2} Whitledge presents one assignment of error. He asserts that the municipal

court should have granted his motion for a “directed verdict” in his favor and dismissed

the city’s case against him. In essence, Whitledge argues that he should be excused for

causing an accident because the city failed to post signs warning him about the

construction zone where the accident occurred.

       {¶3} A review of the record, however, supports the municipal court’s decision.

Consequently, Whitledge’s assignment of error is overruled, and his conviction is

affirmed.

       {¶4} Whitledge’s conviction resulted from an incident that occurred at

approximately 7:45 a.m. on April 2, 2013. Whitledge was traveling southbound at that

time on Trebisky Road; he was approaching traffic lights marking the intersection of

Monticello Boulevard.

       {¶5} Construction vehicles occupied the northbound side of Trebisky Road. In

order to permit two lanes of traffic, one northbound and one southbound, therefore, the

construction workers had set up orange traffic cones. The traffic cones blocked the
southbound turning lane for traffic seeking to proceed eastbound onto Monticello;

instead, the cones directed northbound traffic into this lane and provided only a single

lane for southbound traffic.

       {¶6} Whitledge failed to notice that the lanes for Trebisky Road had been

narrowed. He entered the eastbound turning lane without heeding the traffic cones.

When he saw that he was in the path of oncoming traffic, he swerved back into the single

southbound lane of travel.

       {¶7} By the time Whitledge made his correction, however, another southbound car,

operated by Suchi Tirunagari, was already in the process of proceeding past him toward

the intersection. As a result, the front passenger side of Whitledge’s car collided into the

driver’s side door of Tirunagari’s car.

       {¶8} After the collision, Whitledge and Tirunagari drove their cars into a nearby

driveway and awaited the arrival of the police. Officer Chris Khoenle responded to the

scene. He took photos of the damage to the two cars and created an accident report.

Khoenle also cited Whitledge for violating SEMC 331.34(c), full time and attention.

       {¶9} Whitledge pleaded not guilty to the charge. After a bench trial, however, the

municipal court found Whitledge guilty.       The court imposed a fine for Whitledge’s

conviction, but stayed execution of the sentence pending the outcome of this appeal.

       {¶10} Whitledge presents the following as his sole assignment of error.
              I. The trial court erred when it denied the defendant’s motion for directed verdict

       notwithstanding the undisputed fact that there were no official signs posted in the

       construction zone as required by law.

       {¶11} In his assignment of error, Whitledge does not specifically challenge the sufficiency of the

evidence to support his conviction. Whitledge argues instead that the municipal court should have

granted his motion for acquittal of the charge of full time and attention because, at the time of the

accident, no signs were in place to direct him into the correct lane of travel. He bases his argument on

the premise that the city’s failure to comply with the Temporary Traffic Control portion of the Ohio

Uniform Manual for Traffic Control Devices (the “TTC Manual”) mandates dismissal of the city’s case

against him. This court does not agree with Whitledge’s premise.

       {¶12} SEMC 331.34(c) states in pertinent part: “No person shall operate a vehicle without

giving his or her full time and attention to the operation of such vehicle.”

       {¶13} In Cleveland v. English, 8th Dist. Cuyahoga No. 92591, 2009-Ohio-5011, ¶ 15-17, this

court made the following observations:

             This court held in Seven Hills v. Gossick (Nov. 15, 1988), Cuyahoga App. No.
       48088 that this offense is a “specific instance of failure to control” a vehicle. The offense
       may be established by proof that the offender’s “driving behavior” was either erratic or
       posed a danger to persons or property. Cleveland v. Isaacs (1993), 91 Ohio App.3d 360,
       632 N.E.2d 928; Lakewood v. Komaromy, Cuyahoga App. No. 80258, 2002-Ohio-4076,
       P18-23.


              Thus, in State v. Roberson (Oct. 28, 1996), Stark App. No. 1996CA00001, 1996

       Ohio App. LEXIS 6080, the court held that “the offense * * * does not require, as an

       element * * *, that the offender actually be involved in an accident * * * . It is the
       reckless manner in which the driver operates his vehicle that establishes a violation of

       this offense * * * .” The “ordinary standard of negligence” provides “the requisite proof

       of culpability within * * * [the] ordinance.” State v. Lett, Ashland App. No. 02COA049,

       2002-Ohio-3366, 12, citing State v. Jones (Apr. 25, 1989), Franklin App. No. 88AP-920,

       1989 Ohio App. LEXIS 1475.

              Therefore, in order to overcome a motion for acquittal, the city need not prove

       precisely “which of [the defendant’s] driving actions caused him not to give his full time

       and attention to his driving.” Komaromy, supra. Rather, it is sufficient that the direct or

       circumstantial evidence, which is, in turn, gathered through first or secondhand

       observation, demonstrates the offender’s “full time and attention” was not directed at his

       driving. Id.

(Emphasis added.)

       {¶14} In light of the indisputable fact in this case that Whitledge’s sudden correction out of the

lane marked by the traffic cones for northbound travel caused a collision with Tirunagari’s car, the city

presented sufficient evidence to prove the offense.

       {¶15} Whitledge, however, claims that the traffic cones were inadequate to comply with the

city’s obligations under the TTC Manual. Citing R.C. 4511.12, he asserts that he thus could not be

found guilty of the offense. A review of the relevant portions of the TTC Manual, however, does not

support his claim.

              {¶16} Part 6 of the Manual sets forth the relevant guidelines for TTC situations.

       Section 6A.01 states the “general” provisions, and provides at ¶ 7 as follows:
             No one set of TTC devices can satisfy all conditions for a given
      project or incident. At the same time, defining details that would be
      adequate to cover all applications is not practical. Instead, Part 6 displays
      typical applications that depict common applications of TTC devices. The
      TTC selected for each situation depends on the type of highway, road user
      conditions, duration of operation, physical constraints, and the nearness of
      work space
        * * * to road users.

      {¶17} The “standard” of this section is set forth at ¶ 10 as follows:

             TTC plans and devices shall be the responsibility of the authority of
      a public body or official having jurisdiction for guiding road users. There
      shall be adequate statutory authority for the implementation and
      enforcement of needed road user regulations * * * . Such statutes shall
      provide sufficient flexibility in the application of TTC to meet the needs of
      changing conditions in the TTC zone.

      {¶18} SEMC 301.46 states in pertinent part:

               “Traffic control device” means a flagger, sign, signal, marking, or
      other device used to regulate, warn, or guide traffic, placed on, over, or
      adjacent to a street, highway, private road open to public travel, pedestrian
      facility, or shared-use path by authority of a public agency or official
      having jurisdiction * * * .

(Emphasis added.)

      {¶19} Section 6C.10 of the TTC Manual addresses “One-Lane, Two-Way Traffic

Control,” and permits the following “option” at ¶ 5:

      If the work space on a low-volume street or road is short and road users from both

directions are able to see the traffic approaching from the opposite direction through and

beyond the worksite, the movement of traffic through a one-lane, two-way constriction

may be self-regulating.
       {¶20} In addition, Sections 6F.63 through 6F.65 permit the use of “channelizing devices.” The

permitted designs of such devices are shown in the TTC Manual’s Figure 6F-7. For short-term

daytime work on roadways with a speed limit of less than 40 miles per hour, the TTC Manual allows

the use of either orange “tubular markers” or cones that are 18 inches in height as “channelizing

devices.” Signage is not mandatory in such situations. Indeed, Section 6F.65 of the TTC Manual

states in pertinent part at ¶ 6 that “[t]ubular markers may be used effectively to divide opposing lanes of

road users * * * .”

The evidence admitted at Whitledge’s trial proved that the South Euclid city workers complied with

their duties under SEMC 301.46 and the TTC Manual on the morning of the incident. Compare

Bellefontaine v. Reinman, 3d Dist. Logan No. 8-04-13, 2004-Ohio-4806 (city failed to post required

sign when construction work was not temporary). The city workers set up self-regulating traffic cones

to guide drivers into Trebisky Road’s temporary lanes. Drivers who paid ordinary attention to the road

conditions had no difficulty understanding the meaning of the permitted traffic devices; Whitledge

presented no evidence that any other accidents occurred at the location.

              {¶21} The municipal court, therefore, correctly denied Whitledge’s motion for

       acquittal of the charge.     Lakewood v. Komaromy, 8th Dist. Cuyahoga No. 80258,

       2002-Ohio-4076; compare Cleveland v. Ismail, 8th Dist. Cuyahoga No. 100179,

       2014-Ohio-1080. Accordingly, his assignment of error is overruled.

              {¶22} Whitledge’s conviction is affirmed.

              It is ordered that appellee recover from appellant costs herein taxed.

              The court finds there were reasonable grounds for this appeal.
       It is ordered that a special mandate issue out of this court directing the South

Euclid Municipal Court to carry this judgment into execution.           The defendant’s

conviction having been affirmed, any bail pending appeal is terminated. Case remanded

to the trial court for execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



__________________________________________
KENNETH A. ROCCO, PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., and
EILEEN A. GALLAGHER, J., CONCUR
