[Cite as State v. Gray, 2018-Ohio-1939.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                   :

                 Plaintiff-Appellee,             :
                                                             No. 17AP-601
v.                                               :     (M.C. No. 2017TRD-150522)

Justin W. Gray,                                  :     (REGULAR CALENDAR)

                 Defendant-Appellant.            :




                                           D E C I S I O N

                                       Rendered on May 17, 2018


                 On brief: Zach Klein, City Attorney, Lara N. Baker, and
                 Melanie R. Tobias, for appellee.

                 On brief: Justin W. Gray, pro se.

                       APPEAL from the Franklin County Municipal Court

DORRIAN, J.

        {¶ 1} Defendant-appellant, Justin W. Gray, appeals from the July 25, 2017
judgment of the Franklin County Municipal Court convicting him of R.C. 4511.48(C). For
the following reasons, we reverse.
I. Facts and Procedural History
        {¶ 2} On June 20, 2017, appellant was charged with a minor misdemeanor
pedestrian violation pursuant to R.C. 4511.48(C). Appellant pled not guilty to the charge
and the case proceeded to a bench trial. The trial court found plaintiff-appellee, State of
Ohio, had proven beyond a reasonable doubt the elements of the case.
II. Assignments of Error
        {¶ 3} Appellant appeals and assigns the following four assignments of error for our
review:
No. 17AP-601                                                                              2


               I. THE TRIAL COURT ERRED BY ARGUING A DIFFERENT
               CHARGE THAN THE ONE SPECIFIED ON APPELLANT'S
               ORIGINAL COMPLAINT.

               II. THE TRIAL COURT ERRED BY FINDING APPELLANT
               GUILTY AGAINST THE MANIFEST WEIGHT OF THE
               EVIDENCE.

               III. THE TRIAL COURT MADE AN ERROR IN LAW AS IT
               PERTAINS TO RIGHT OF WAY.

               IV. THE TRIAL COURT ERRED BY EMPLOYING
               PROCEDURES THAT DENIED APPELLANT HIS
               FUNDAMENTAL DUE PROCESS RIGHT TO BE HEARD.

III. Discussion
       {¶ 4} Appellee concedes error as to the first, second, and third assignments of error
and states:
               Appellee concedes that Appellant was charged under the
               incorrect code section and that his conviction was not
               supported by sufficient evidence and was against the manifest
               weight of the evidence.

       {¶ 5} Further, appellee provides by way of explanation:

               Appellant's First, Second and Third Assignments of Error are
               interrelated and thus will be addressed together for the sake
               of efficiency. Appellant was charged with a minor
               misdemeanor pedestrian violation pursuant to Revised Code
               4511.48(C) which provides: "Between adjacent intersections
               at which traffic control signals are in operation, pedestrians
               shall not cross at any place except in a marked crosswalk." At
               trial, the evidence presented by the state established that
               Appellant was in fact in an unmarked crosswalk and thus the
               proper subsection under which to cite Appellant was R.C.
               4511.48(A), which provides: "Every pedestrian crossing a
               roadway at any point other than within a marked crosswalk or
               within an unmarked crosswalk at an intersection shall yield
               the right of way to all vehicles, trackless trolleys, or streetcars
               upon the roadway." Tr. 8, 10. Further, Appellant is correct
               that the state argued to the trial court and presented its
               evidence as though Appellant was in fact charge[d] with R.C.
               4511.48(A). Tr. 3, 8, 10. To this end, even if Appellant had
               been cited with the proper subsection of R.C. 4511.48,
               subsection (A), the evidence presented by the State was not
No. 17AP-601                                                                               3


               sufficient to support a finding that Appellant did not yield the
               right of way. The unrefuted testimony at trial was that
               Appellant crossed the roadway in an unmarked crosswalk,
               yielding to a stopped COTA bus, when he was struck by an
               oncoming vehicle that had left its lawful lane of travel in an
               attempt to pass the stopped bus. Tr. 6-8. After reviewing the
               record and for all the aforementioned reasons, Appellee
               concedes that Appellant's conviction was not supported by
               sufficient evidence and was against the manifest weight of the
               evidence.

(Appellee's Brief at 1-2.)
       {¶ 6} Appellee finally argues that because it has conceded error on the first, second,
and third assignments of error, the fourth assignment of error is moot.
       {¶ 7} We accept appellee's concession of error as to the first, second, and third
assignments of error, and predicated on this concession, we sustain the same. We further
find the fourth assignment of error moot.
IV. Conclusion
       {¶ 8} We sustain appellant's first, second, and third assignments of error and find
the fourth assignment of error to be moot. Accordingly, we reverse and vacate the judgment
of the Franklin County Municipal Court.
                                                                        Judgment reversed.
                              TYACK and KLATT, JJ., concur.
