[Cite as Rocky River v. Zorc, 2018-Ohio-389.]


                   Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 105596




                              CITY OF ROCKY RIVER
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                      SCOTT L. ZORC
                                                      DEFENDANT-APPELLANT




                                    JUDGMENT:
                               REVERSED AND VACATED


                                     Criminal Appeal from the
                                    Rocky River Municipal Court
                                      Case No. 16 TRD 03871

        BEFORE: Laster Mays, J., Kilbane, P.J., and McCormack, J.

        RELEASED AND JOURNALIZED: February 1, 2018
                               -i-
ATTORNEY FOR APPELLANT

Jonathan N. Garver
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, Ohio 44103


ATTORNEYS FOR APPELLEE

Andrew D. Bemer
Rocky River Law Director

By: Michael J. O’Shea
Assistant Prosecuting Attorney
Rocky River Law Department
21012 Hilliard Boulevard
Rocky River, Ohio 44116
ANITA LASTER MAYS, J.:

       {¶1}   Defendant-appellant Scott L. Zorc (“Zorc”) appeals his conviction for

failure to change lanes when approaching a stationary public safety vehicle in violation of

the city of Rocky River Codified Ordinances 333.031(A)(1). We reverse and vacate.

I.     Background and Facts

       {¶2} On May 18, 2016, the city of Rocky River issued a complaint against Zorc

for two traffic violations occurring on April 18, 2016. Zorc was charged with violating:

(1) the city of Rocky River Codified Ordinances 333.031(a)(1) by failing to change lanes

when approaching a Rocky River police vehicle with lights activated; and (2) the city of

Rocky River Codified Ordinances 333.09(A) due to reckless operation of a motor vehicle.

       {¶3}   On June 13, 2016, Zorc entered a plea of not guilty. A bench trial was

conducted before the magistrate on November 3, 2016, and December 1, 2016. Officers

Krebs, Dudas, and Riley from the Westlake police department, and Rocky River police

department officers King, Bowen, and Blazer testified. Exhibits included dash cam

videos and still photographs of the dash cam scenes.

       {¶4}    On April 18, 2016, at approximately 11:23 a.m., Officer Krebs was

involved in a high speed pursuit of a white van that eventually proceeded eastbound on

Interstate 90 (“I-90”). Officer Krebs radioed dispatch for assistance from the Westlake

and Rocky River police departments. Officers Dudas and Riley joined the pursuit.

The speed of the vehicles exceeded 90 miles per hour.
       {¶5} The three Westlake officers testified that their lights and sirens were activated

during the pursuit and that the Rocky River police cruiser positioned on the left side of

the highway berm with lights activated during the pursuit (“Rocky River cruiser”) was

visible from a distance.       Officers Blazer and Bowen were manning the Rocky River

cruiser and were positioned to deploy stop stick tire deflators to slow down the van. The

Westlake officers stated that other vehicles moved over from the far left lane due to the

presence of the Rocky River cruiser, demonstrating that the Rocky River cruiser was

visible to oncoming traffic.

       {¶6} Zorc was traveling eastbound in the far left lane of the three-lane highway

ahead of the pursuit. Joint exhibit No. 1, the dash cam video recording from Officer

Riley’s cruiser, was introduced into evidence during his testimony. Officer Riley pointed

out several other cars pulling over to the right lanes in deference to the Rocky River

cruiser, but Zorc’s vehicle did not.

       {¶7} Officer King confirmed that the Westlake police cruisers pursued with lights

and sirens activated. He also stated the Rocky River cruiser could be observed from a

distance positioned with lights activated.

       {¶8} Officers Blazer and Bowen manned the Rocky River cruiser. The lights

were activated, but the siren was not. Officer Blazer was positioned in front of the

Rocky River cruiser, waiting to throw the stop sticks in front of the approaching van that

was proceeding in the far left high speed lane behind appellant’s vehicle.
       {¶9}     Officer Blazer tossed the stop sticks into the lane as Zorc and the van

approached. The sticks punctured the van’s two left tires and Zorc’s right tire. Officer

Blazer testified that he and Officer Bowen who continued in pursuit were ordered to

return to the scene of Zorc’s disabled vehicle. The officers asked Zorc whether he

wanted to file an incident report. Zorc mentioned that he suffered from a medical

condition, so the police supervisor instructed the officers to let Zorc leave because

charges could be sent by summons.

       {¶10}     At the close of the city’s case, Zorc moved for judgment of acquittal

under Crim.R. 29(A).           The magistrate ordered that the parties brief the issue and

scheduled a hearing for December 1, 2016. On that date, the trial court granted acquittal

of the reckless operation charge, and Zorc decided to testify as to the remaining charge.

       {¶11} Zorc’s testimony reflected that he is age 64, is a Vietnam veteran who

receives disability     assistance.      He suffers from Myasthenia Gravis, a chronic

autoimmune neuromuscular disorder.             Symptoms of the disease include muscle

weakness, difficulty walking, and extreme fatigue. The symptoms are aggravated by

stress and other activities.

       {¶12} Zorc asserted that he was not aware of the police chase until it was upon

him. He did see the Rocky River cruiser on the berm and was focused on changing lanes

safely but there were vehicles in his way. At the point that Zorc approached the Rocky

River cruiser, the speeding van passed him to his right, preventing him from moving over.

 Instead, Zorc states he slowed down and carefully passed the officers standing in the
berm by the Rocky River cruiser. Officer Blazer deployed the stop sticks, puncturing the

left tires of the van as well as Zorc’s right front tire. Zorc confirmed that he did not

receive a citation at the scene, but he did receive one by mail 30 days after the incident,

which was two days after contacting the Rocky River police department to request

reimbursement for the damaged tire.

       {¶13}    The magistrate found Zorc guilty of failing to change lanes and signed the

dismissal of the reckless operation charge.1 On December 8, 2016, Zorc filed objections

to the magistrate’s report. The city failed to file a brief in response to the objections in

spite of the trial court’s December 12, 2016 order. On February 6, 2017, after submission

of the hearing transcripts, the trial court agreed to review the exhibits and transcripts prior

to ruling on the objections.

       {¶14}    On March 6, 2017, the trial court ruled on the objections.

       To rule on the objections filed by defendant herein, the Court read the
       transcript from the trial and viewed the dash cam videos marked as Joint
       Exhibit 1 and Joint Exhibit 2.

       The Court finds that the two dash camera videos viewed along with the
       testimony show that the highway was not crowded at the time in question.
       Further, defendant did not activate his turn signal which he should have
       done if he was trying to move over to the lane on his right. The videos
       show defendant made no effort to move over and that had he slowed down
       and activated his turn signal he would have been able to do so. Based upon
       this review, the defendant’s Objections to the Magistrate Decision are
       overruled.


       1  After the instant appeal was filed, the case was remanded to the trial
court to adopt the magistrate’s recommendation and issue a final order. The order
was issued on July 27, 2017.
      The Court adopts the recommendation of the Magistrate wherein she found
      defendant guilty of approaching a stationary public safety vehicle. This is
      now a final Judgment of this Court. Further, the Court adopts the
      recommendation as to sentencing. Fine is waived. Defendant owes costs
      and said costs are ordered to be paid by 3/30/17 by 4:00 p.m.

II.   Assignments of Error

      {¶15} Zorc filed the instant appeal, challenging the sufficiency and manifest

weight of the evidence. We combine the assigned errors for analysis.

      A.      Standard of Review

      {¶16}     Crim.R. 29(A) tests the sufficiency of the evidence.             State v.

Hoskin-Hudson, 8th Dist. Cuyahoga No. 103615, 2016-Ohio-5410, ¶ 7, citing State v.

Capp, 8th Dist. Cuyahoga No. 102919, 2016-Ohio-295, ¶ 19. The Ohio Supreme Court

has explained that, “[t]he legal concepts of sufficiency of the evidence and weight of the

evidence are both quantitatively and qualitatively different.” State v. Thompkins, 78

Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).

      {¶17}    “Sufficiency of the evidence is a test of adequacy as to whether the

evidence is legally sufficient to support a verdict as a matter of law, but weight of the

evidence addresses the evidence’s effect of inducing belief.” State v. Wilson, 113 Ohio

St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing Thompkins at 386-387.

      {¶18} Viewed in a light most favorable to the prosecution, did the state meet its

burden of production? The question is not whether the prosecution’s evidence “is to be

believed, but whether, if believed, the evidence admitted at trial supported the

conviction.” State v. Rudd, 8th Dist. Cuyahoga No. 102754, 2016-Ohio-106, ¶ 32, citing
State v. Hunter, 8th Dist. Cuyahoga No. 86048, 2006-Ohio-20, ¶ 41, Thompkins at 390,

State v. Starks, 8th Dist. Cuyahoga No. 91682, 2009-Ohio-3375, ¶ 25. Would “‘any

rational trier of fact’” find that “‘the essential elements of the crime [were] proven beyond

a reasonable doubt.’” State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d

229, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph

two of the syllabus.

       {¶19} In contrast, we sit as a thirteenth juror and intercede only where it is

apparent that “a jury has ‘lost its way’” when entertaining a manifest weight challenge.

State v. Stewart, 8th Dist. Cuyahoga No. 86411, 2006-Ohio-813, ¶ 11, quoting

Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541. While we “may determine” that the

trial court’s judgment “is sustained by sufficient evidence,” we “may nevertheless

conclude that the judgment is against the weight of the evidence.” Thompkins at 387.

       B.      Discussion

       {¶20}     Rocky River Codified Ordinances 333.031(A)(1) is the local codification

of R.C. 4511.213(A)(1). The ordinance requires that a driver “approaching a stationary

public safety vehicle” with emergency lights activated “shall,” on a highway consisting of

two or more lanes of traffic traveling in the same direction “shall proceed with due

caution and, if possible with due regard to the road, weather, and traffic conditions, shall

change lanes into a lane that is not adjacent to” the “safety vehicle.”

       {¶21}    A review of the video recordings in this case is instructive.        Officer

Riley’s video depicts a divided highway with three eastbound lanes near the Rocky River
cruiser’s location. Officer Riley is in pursuit of the van, followed by a second cruiser.

The Rocky River cruiser is parked with lights activated on the inner berm area on the far

left side of the highway, against the highway divider wall. The van is in the left lane

followed by officer Riley and a second police cruiser. As the vehicles approach the

Rocky River cruiser, the van seeks to shift right to the center lane to move around Zorc to

escape the police, but is unable to move immediately due to vehicles in the center lane.

       {¶22} The van’s attempt to shift brings Zorc’s vehicle briefly into view on the

inside lane. The van shifted back into Zorc’s lane. Immediately prior to reaching the

Rocky River cruiser, the vehicles in the center lane shifted to the right lane, the van

immediately shifted to the center lane, and Zorc and the van were momentarily parallel

when passing the Rocky River cruiser. The stop sticks were deployed and appeared to be

immediately effective in impeding Zorc’s progress who promptly hit his brakes. The van

continued in the center lane with damage to the two left tires. Officer Riley and the

second cruiser (still in pursuit) passed Zorc’s vehicle on the left berm.

       {¶23}     Joint exhibit No. 2, the Rocky River video also provides insight. The

Rocky River dash cam cruiser was in the center lane when the van and two Westlake

police cruisers sped past him in the left lane.     Several vehicles can be viewed in the

center lane as the van and police rapidly approach the cruiser’s location.     The second

cruiser in pursuit attempted to move over to the center lane but shifted back due to traffic

in the center lane.   The Rocky River dash cam cruiser moved to the left lane behind the

Westlake police cruisers.    The dash cam data indicates the speed of the Rocky River
police cruiser at 97 miles per hour at one point, and the van and officers were still

distancing themselves from the recording vehicle.

       {¶24} As the center lane vehicles approached the Rocky River cruiser, and the van

and officers in pursuit drew closer, several vehicles shifted from the center to the right

lane and the van quickly shifted to center passing Zorc as the sticks were deployed.

Zorc braked and quickly stopped as a result of the stop sticks, the Westlake police

cruisers passed on the left berm and the Rocky River police cruiser with the dash cam

passed Zorc in the center lane.

       {¶25} Zorc stated that he was initially unaware that vehicles were approaching

behind him at speeds in excess of 90 miles per hour. With the pursuit, traffic next to

him, flashing lights on the Rocky River cruiser ahead, and the quick shift by the van when

the center lane traffic moved over, there was little time to react.

       {¶26} The ordinance dictates that Zorc “shall proceed with due caution and, if

possible with due regard to the road, weather, and traffic conditions,” move to the

adjacent lane. Viewed in a light most favorable to the prosecution, the evidence does not

support a willful failure to move over.

       {¶27} We do not find that the evidence was sufficient to support Zorc’s

conviction. Thompkins, 78 Ohio St.3d at 390, 678 N.E.2d 541. Because we found

insufficient evidence to support his conviction, his manifest weight of the evidence

argument is moot. See App.R. 12(A)(1)(c); State v. Shabazz, 8th Dist. Cuyahoga No.

100021, 2014-Ohio-1828, ¶ 46.
      {¶28} The trial court’s order is reversed, and upon remand, appellant’s conviction

shall be vacated and points removed from the Ohio Bureau of Motor Vehicles.

      It is ordered that appellant recover from appellee 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 Rocky

River Municipal Court to carry this judgment into execution.

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

the Rules of Appellate Procedure.



_________________________________________
ANITA LASTER MAYS, JUDGE

MARY EILEEN KILBANE, P.J., and
TIM McCORMACK, J., CONCUR
