[Cite as State v. Houston, 2019-Ohio-3962.]




             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                   NOBLE COUNTY

                                          STATE OF OHIO,

                                          Plaintiff-Appellee,

                                                  v.

                                        JAY H. HOUSTON,

                                       Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                         Case No. 18 NO 0464


                                    Criminal Appeal from the
                                County Court of Noble County, Ohio
                                      Case No. 17 TRD 407

                                         BEFORE:
                  Cheryl L. Waite, Gene Donofrio, Carol Ann Robb, Judges.


                                              JUDGMENT:
                                                Affirmed.


 Atty. Kelly A. Riddle, Noble County Prosecutor and Atty. Jamie A. Riley Pointer,
 Assistant Prosecuting Attorney, 150 Courthouse, Caldwell, Ohio 43724, for Plaintiff-
 Appellee

 Atty. Michael J. Kinlin, and Atty. Stephen Hanudel, 124 Middle Avenue, Suite 900,
 Elyria, Ohio 44035, for Defendant-Appellant.
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                                Dated: September 30, 2019


 WAITE, P.J.

       {¶1}    Appellant Jay H. Houston appeals the judgment of the Noble County Court.

Following our earlier remand, Appellant was found guilty of failure to control his motor

vehicle in violation of R.C. 4511.202. Appellant contests the weight of the evidence used

to convict him. Based on the following, the trial court did not lose its way or create a

manifest miscarriage of justice in finding that Appellant failed to reasonably control his

vehicle. Appellant’s assignment of error is without merit and the judgment of the trial court

is affirmed.

                              Factual and Procedural History

       {¶2}    On May 21, 2017, at 4:25 a.m., Trooper William Howard (“Trooper Howard”)

of the Ohio State Highway Patrol was called to the scene of a single-vehicle accident on

Interstate 77 North in Noble County. A badly damaged box truck was resting on the

median. At the scene, Appellant informed Trooper Howard that he was the driver of the

vehicle and that he had swerved off the road to avoid hitting a deer. Trooper Howard

investigated the scene, and issued Appellant a citation for failure to control, in violation of

R.C. 4511.202.

       {¶3}    A bench trial was held at Noble County Court on September 5, 2017.

Trooper Howard appeared on behalf of the state. He testified that on his arrival at the

scene he observed a large, yellow Penske rental truck leaning to its side on the grass

median. (9/5/17 Tr., p. 4.) He concluded the truck had driven off of the left side of the

road and into the grass median where it overturned, rolled and landed upright, leaving the

truck with extensive damage to its frame. (9/5/17 Tr., pp. 4-5.) Trooper Howard noted



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that the road condition was dry. He observed cuts on both Appellant and his brother, who

was a passenger in the truck. (9/5/17 Tr., pp. 8-9.) According to Trooper Howard’s

testimony, there were no skid marks on the roadway but there were tire tread marks in

the grass where the vehicle left the pavement. He testified that these both indicate that

the tires were free rolling and no brake had been applied. (9/5/17 Tr., pp. 6, 12, 17.) A

photograph was admitted into evidence showing the tire tracks in the grass median.

Another photograph was admitted showing the damage to the truck. This included a

crushed cab roof, broken windshield, and metal sheared off the top and passenger side

of the truck’s box compartment. Household items from the truck’s box compartment were

observed strewn across the median. Trooper Howard testified that he did not detect any

fur or blood on the vehicle when checking to see if Appellant had hit an animal. (9/5/17

Tr., p. 8.) On cross-examination, Trooper Howard acknowledged that Appellant had

conveyed that he did not think he actually struck the deer. (9/5/17 Tr., p. 19.) He also

testified that collisions with deer were common on that roadway and could cause death

to motorists. (9/5/17 Tr., pp. 18-19.)

       {¶4}   Appellant testified in his own defense. He had rented the box truck in North

Carolina to move from North Carolina to Ohio and was planning to make several trips.

He testified that he and his brother left North Carolina at 8:00 p.m. and he was driving

north when he saw a deer enter the road from the right side of the roadway. (9/5/17 Tr.,

p. 27.) He testified that he swerved off the road to the left, but could not remember if he

applied the brakes. (9/5/17 Tr., p. 28.) He testified that the truck rolled over and landed

on its tires. (9/5/17 Tr., p. 27.) Appellant testified that he believed he was traveling




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approximately 60 to 70 miles per hour and that the truck had a governor which limited

driving over 70 miles per hour. (9/5/17 Tr., pp. 28, 30.)

       {¶5}   At the conclusion of the evidence, defense counsel renewed his earlier

motion for acquittal. The trial court overruled the motion, concluding that when the

evidence was viewed in a light most favorable to the state, reasonable minds could find

Appellant guilty.   During closing arguments, defense counsel raised the sudden

emergency defense. The trial court discussed the requirements in applying this defense

and concluded that a wild animal entering in the roadway in rural Ohio was foreseeable,

and did not constitute a sudden emergency as a matter of law.

       {¶6}   In a judgment entry dated September 5, 2017, the trial court found Appellant

guilty and imposed a fine of $50 plus court costs. Appellant paid the fine and fees, but

filed an appeal on October 6, 2017. While the appeal was considered untimely, as it was

one day late, we granted Appellant leave to file a delayed appeal.

       {¶7}   On appeal, Appellant challenged the sufficiency and weight of the evidence.

He also contended that the trial court erred when it determined that an animal entering

the roadway is foreseeable, and hence, in concluding that the affirmative defense of

sudden emergency was not available to Appellant. In Appellant’s initial appeal, we held

that “a deer may constitute a sudden emergency; therefore, the trial court erred in ruling,

as a matter of law, that a deer in the road cannot be a sudden emergency.” State v.

Houston, 7th Dist. Noble No. 17 NO 0455, 2018-Ohio-2788, 114 N.E.3d 1236, ¶ 1. The

matter was remanded “with instructions to consider Appellant’s sudden emergency

defense.” Id. at ¶ 39.




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       {¶8}   On remand, the trial court held another bench trial on September 25, 2018.

Trooper Howard once again testified for the state. His testimony was virtually identical to

his testimony in Appellant’s first trial. He described the condition of the vehicle, the dry

road conditions, and that Appellant acknowledged he was the driver of the vehicle.

(9/25/18 Tr., pp. 3-5.) He reiterated that Appellant told him that Appellant had swerved

to avoid hitting a deer but that Appellant did not think he actually struck the deer. (9/25/18

Tr., p. 5.) Trooper Howard said he inspected the truck for signs of blood or animal fur,

which were not present. The state introduced the same photographs into evidence of the

roadway and the grass median. Trooper Howard testified that the lack of tire marks on

the road’s surface, but tread marks in the grass, indicated that Appellant most likely did

not apply his brakes as the vehicle left the roadway.          (9/25/18 Tr., pp. 5-8.)    His

investigation revealed that the vehicle had skidded sideways off of the road, rolled over,

and landed on its tires. The box compartment of the vehicle was partially sheared off on

the passenger side and household contents were scattered on the median. (9/25/18 Tr.,

pp. 8-9.) On cross-examination Trooper Howard again acknowledged that Appellant told

him that he did not think he actually hit the deer, but that he swerved to miss it. (9/25/18

Tr., p. 12.) Defense counsel asked Trooper Howard if he looked for hoof prints near the

crash site to corroborate Appellant’s claim. Trooper Howard replied in the negative,

explaining that because there were always deer in the area, there would most likely

always be some hoof prints present. (9/25/18 Tr., p. 28.)

       {¶9}   At the close of the state’s evidence defense counsel made a Crim.R. 29

motion, asserting that the state failed to present sufficient evidence to convict Appellant

for failure to control in violation of R.C. 4511.202. The trial court overruled the motion,




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concluding that the state presented evidence Appellant was driving a vehicle that drove

onto the median and rolled, and “unless [defense counsel was] trying to insinuate that

[Appellant] did it on purpose, would seem he’s doing this without reasonable control. And

therefore, there’s going to be plenty of evidence to support the case, State’s position at

this time.” (9/25/18 Tr., pp. 31-32.)

       {¶10} Appellant again testified as a witness and gave testimony virtually identical

to his testimony in the first trial. Appellant testified that he had rented the truck because

he was moving from North Carolina to Ohio. In the process of relocating to Ohio, he

traveled this same route many times, stopping at the same locations during each trip.

(9/25/18 Tr., p. 35.) Appellant was accompanied by his brother during this trip. They left

North Carolina at approximately 8:00 p.m. Appellant testified that he typically made three

stops on route to their destination, but they elected not to stop at one of Appellant’s typical

stops in Caldwell, Ohio. Shortly after that decision was made, Appellant’s brother noticed

there was something in the road and Appellant swerved the vehicle, causing the accident.

(9/25/18 Tr., p. 35.) Appellant testified that the vehicle rolled over and landed on its tires

and that he was traveling approximately 70 miles per hour. He also testified that the truck

had a governor on it preventing it from accelerating past 70 miles per hour. (9/25/18 Tr.,

p. 36.) Appellant testified that they got out of the vehicle and within a few minutes a

sheriff’s deputy stopped and summoned an ambulance.                   (9/25/18 Tr., p. 37.)

Approximately one-half hour later Trooper Howard arrived to investigate the scene.

(9/25/18 Tr., p. 37.) Appellant testified that he did not fall asleep and that he was not

texting or otherwise distracted while driving. (9/25/18 Tr., p. 39.) Appellant presented

testimony on the issue of sudden emergency. He testified that it was a matter of two to




Case No. 18 NO 0464
                                                                                        –7–


three seconds between the time he saw the deer and when he swerved off the road to

avoid colliding with it. (9/25/18 Tr., p. 43.) He had both hands on the wheel when the

vehicle slid off the road and rolled over. It took Appellant twenty seconds for the vehicle

to reach a complete stop. (9/25/18 Tr., p. 44.) He testified that he could not have stopped

the vehicle instead of swerving because of his rate of speed and because the deer ran

“directly in front of me.” (9/25/18 Tr., p. 44.)

          {¶11} Defense counsel made another Crim.R. 29 motion. The trial court again

stated that the evidence was sufficient to meet the elements of failure to control. The

court acknowledged that Appellant had presented evidence on the affirmative defense of

sudden emergency, but stated that “there is sufficient evidence that reasonable minds

could find that this uh, uh, statute’s been violated” and overruled the motion. (9/25/18 Tr.,

p. 45.)

          {¶12} Both sides made closing arguments. The state contended that the evidence

did not support Appellant’s version of events. Evidence showed Appellant never applied

his brakes to avoid hitting anything. Because he was driving in the left lane and testified

the deer entered from the right, even if an animal entered the roadway it would not amount

to a sudden emergency, because Appellant had time to react. In any event, the state

asserted that Appellant should have maintained control of the vehicle by applying the

brakes to avoid entering the median and rolling the vehicle, since the roadway was

completely dry.

          {¶13} Defense counsel argued that Appellant was truthful in his recounting of the

events and swerved out of the path of the deer for his own safety. Defense counsel

asserted that Trooper Howard’s investigation fell short because he did not look for fresh




Case No. 18 NO 0464
                                                                                          –8–


hoof prints near the scene, the absence of which would have contradicted Appellant’s

version of events. Counsel claimed that Appellant was unable to maintain control of the

vehicle because of his need to react to the deer for his own safety. Lastly, counsel argued

that Appellant acted as a reasonably prudent person would have under the circumstances

because, although it is foreseeable that a deer could run into the road, “the exact time

and place is completely unforeseeable.” (9/25/18 Tr., p. 47.) Hence, counsel maintained

that Appellant should be acquitted based on sudden emergency.

      {¶14} Ultimately, the court held:


      [T]he Court, having listened to all the evidence, has paid particular attention

      to the manner in which uh, the parties have testified. Uh, in particular, their

      mannerisms, their frankness, lack of it. Uh, their egris, bias and infinity to

      go with the facts and circumstances surrounding the uh, well, surrounding

      the accident. And right off the bat, I will say that what the Trooper did, or

      did not look for, as far as deer tracks goes, is certainly not being held against

      him. And asking him to do so, when it’s been already testified to that this

      was in the dark, seems a little bit off page of where should be. Uh, that, so

      that doesn’t track as far as the Court’s concerned. What the Court finds did

      happen is that on or about May 21st of 2017 (May twenty-first of twenty

      seventeen) and in Noble County, at approximately four, twenty-five (4:25)

      in the morning, that being dark, the defendant was operating a box truck

      owned by Penske Northbound on Interstate 77 (seventy-seven). At which

      time uh, he left the roadway, there being no signs of skid, hitting anything,

      or anything of that nature on road (INAUDIBLE) … entered the median. Uh,



Case No. 18 NO 0464
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       thereafter, the tires went from rolling to sideways skidding. And the box

       truck overturned. * * * Now, the statute in particular uh, 4511.202 states, in

       an essence, that nobody shall operate a motor vehicle uh, on any street or

       highway without being in reasonable control of the vehicle. Now, that is

       apparent what happened. The defendant went up 77 (seventy-seven), went

       off the roadway into the median, lost controlled [sic] and crashed. But, he

       is setting forth a defense of sudden emergency. The sudden emergency

       has to be proven by the defendant by a preponderance of the evidence. He

       contends that a deer ran out in front of him, causing him to swerve and lose

       control of the vehicle. The Court finds that that testimony is not credible

       and is nothing more than self-serving. He had a half (1/2) an hour to come

       up with a justification as to why he ran off the road. And it looks like he

       didn’t hit the deer. Uh, apparently it came across a whole lane of the

       interstate into his path, at which he still managed to miss the deer. And I,

       quite frankly, don’t believe there was a deer present, period. I think it was

       just a justification as to why he lost control of the vehicle. And, as such, I

       am going to find, beyond a reasonable doubt, that you violated Section

       4511.202 of the Ohio Revised Code.


(9/25/18 Tr., pp. 48-49.)

       {¶15} In a thorough judgment entry, dated September 26, 2018, the trial court set

forth findings of fact based on the testimony and evidence presented at trial. The trial

court concluded:




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       The Court had the opportunity to listen to the defendant’s testimony,

       observe the manner in which the defendant testified, frankness of the

       defendant, or in this case the lack of it, together with the bias of the

       defendant, together with all the other facts and circumstances surrounding

       the testimony, hereby finds that the defendant’s testimony was not credible.

       The Court does not believe that there was a deer involved in this accident

       and that the defendant’s claim of a deer causing the wreck was no more

       than a self-serving statement as [sic] to justify the cause for the crash.


       For the foregoing reasons the Court found the defendant Guilty, beyond a

       reasonable doubt, of violating §4511.202 of the Ohio Revised Code,

       Operating a vehicle without reasonable control.


(9/26/18 J.E.)

       {¶16} Appellant was found guilty and the court again imposed a fine of $50 and

$89 in court costs.

       {¶17} Appellant filed this timely appeal.

                                ASSIGNMENT OF ERROR


       THE TRIAL COURT ERRED BY FINDING THE APPELLANT GUILTY

       AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.


       {¶18} Weight of the evidence focuses on “the inclination of the greater amount of

credible evidence, offered in a trial, to support one side of the issue rather than the other.”

(Emphasis deleted.) State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).




Case No. 18 NO 0464
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A review of the manifest weight of the evidence focuses on the state’s burden of

persuasion. State v. Merritt, 7th Dist. Jefferson No. 09 JE 26, 2011-Ohio-1468, ¶ 34. A

reviewing court “weighs the evidence and all reasonable inferences, considers the

credibility of witnesses and determines whether in resolving conflicts in the evidence, the

jury clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered.” Thompkins at 387, quoting State

v. Martin, 20 Ohio App.3d 172, 175, 484 N.E.2d 717 (1st Dist.1983).

       {¶19} A reversal should be granted only “in the exceptional case in which the

evidence weighs heavily against the conviction.” State v. Andric, 7th Dist. Columbiana

No. 06 CO 28, 2007-Ohio-6701, ¶ 19, citing Martin at 175. Determinations regarding

witness credibility, conflicting testimony and evidence weight “are primarily for the trier of

the facts.” State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 995, ¶ 118,

quoting State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of

the syllabus. The trier of fact is in the best position to weigh all evidence and judge the

witnesses’ credibility by observing their gestures, voice inflections, and demeanor.

Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). When

presented with two fairly reasonable perspectives regarding the evidence or with two

conflicting versions of events, neither of which can be ruled out as unbelievable, we will

not choose which one is more credible. State v. Gore, 131 Ohio App.3d 197, 201, 722

N.E.2d 125 (7th Dist.1999).

       {¶20} Trooper Howard’s testimony in Appellant’s second trial was virtually

identical to that of the first. In Appellant’s original appeal we concluded:




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       The trooper’s testimony was believable. He testified about a lack of skid

       marks on the pavement or in the grass where the truck first left the road.

       His conclusions as to the tire tracks, sideways motion, and overturning were

       persuasive.    The trial court did not lose its way or create a manifest

       miscarriage of justice in finding Appellant failed to reasonably control the

       vehicle.


Houston, 2018-Ohio-2788 at ¶ 20.

       {¶21} The only minor addition to Trooper Howard’s testimony at Appellant’s

second trial related to hoof prints. On cross-examination, defense counsel asked Trooper

Howard if he investigated the accident scene for hoof prints near the side of the road to

corroborate or call into question Appellant’s claim that a deer caused the accident.

Trooper Howard testified that he did not look for fresh hoof prints. He testified that portion

of Interstate 77 was known for heavy deer traffic and the presence of hoof prints near the

road would not be exculpatory in his opinion. The defense’s theory was that the presence

of fresh hoof prints would at least indicate that a deer may have been present and would

tend to support a sudden emergency defense. The trial court did not find the trooper’s

failure to look for deer tracks determinative, especially since it was dark at the time of the

accident. (9/25/18 Tr., p. 48.)

       {¶22} A party asserting an affirmative defense must establish either that (1) the

defense has been expressly designated as affirmative; or (2) the defense relates to an

excuse or justification peculiarly within the knowledge of the accused and in which the

accused can fairly be required to adduce supporting evidence. R.C. 2901.05(D)(1). The




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accused has the burden of going forward with an affirmative defense and has the burden

of proof by a preponderance of the evidence. R.C. 2901.05(A).

       {¶23} The defense of sudden emergency is defined as: “An emergency which will

relieve a motorist of his duty to comply with a safety statute regulating vehicular traffic

must arise as the result of something over which he has no control.” Oechsle v. Hart, 12

Ohio St.2d 29, 34, 231 N.E.2d 306 (1967). An emergency resulting from one’s own

conduct or from circumstances under the motorist’s control are not exculpatory under the

sudden emergency defense. Id.

       {¶24} In Appellant’s first trial the court determined, as a matter of law, that a deer

running into the road in rural Ohio did not qualify as an affirmative defense. On appeal,

we concluded only that the court’s decision that a deer running into the road can never

be viewed as a sudden emergency was erroneous, and remanded so that the trial court

could consider the evidence and determine whether, under the facts of this case,

Appellant could support his affirmative defense.

       {¶25} Appellant presented testimony at his second trial directed to the affirmative

defense of sudden emergency. As noted above, Appellant testified that it was a matter

of two to three seconds from the time he saw a deer and when he swerved off the road

to avoid colliding with it. (9/25/18 Tr., p. 43.) He testified he could not have stopped

instead of swerving because of his speed and because the deer ran in front of the vehicle.

(9/25/18 Tr., p. 44.) Appellant also testified that he was not in any way distracted while

driving.

       {¶26} The trial court concluded after hearing all of the testimony that Appellant’s

version of events was not credible. The evidence presented by the state that Appellant




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did not at any time during the incident apply his brakes weighed heavily in making this

decision. The trial court concluded from Appellant’s demeanor that Appellant’s claim that

a deer entered the roadway and caused the accident was pretextual.

       {¶27} Appellant argues that, on remand, his guilt was a foregone conclusion. He

appears to argue that because we overruled the trial court initially and remanded the

matter, “[t]he trial court, with the same judge presiding, was going to find [Appellant] guilty

no matter what evidence was presented by the defense.”              (Appellant’s Brf., p. 9.)

However, Appellant can cite to nothing in the record in support of his assertion that the

trial court acted in a biased or improper fashion.

       {¶28} Appellant had the burden of proof to show by a preponderance of the

evidence that a deer entering the roadway became a sudden emergency which

unavoidably caused this accident, and that the accident was not caused by his own failure

to control his vehicle. The trial court did not find Appellant’s testimony as credible as that

of Trooper Howard. The trial court, as trier of fact in this bench trial, was in the best

position to weigh the evidence presented and make determinations as to the credibility of

the witnesses. Seasons Coal, at 80. The trial court was presented with two reasonable,

otherwise believable versions of the incident and made a determination as to which was

more credible. Gore, at 201. We will not disturb that determination absent extraordinary

circumstances, none of which exist in the record in this matter.

       {¶29} We conclude the trial court, as trier of fact, did not lose its way and did not

create a manifest miscarriage of justice in determining that Appellant failed to control the

vehicle through his own conduct and not due to a sudden emergency.




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       {¶30} For the above reasons, Appellant’s assignment of error is without merit and

is overruled. The judgment of the trial court is affirmed.


Donofrio, J., concurs.

Robb, J., concurs.




Case No. 18 NO 0464
[Cite as State v. Houston, 2019-Ohio-3962.]




         For the reasons stated in the Opinion rendered herein, the assignment of error

 is overruled and it is the final judgment and order of this Court that the judgment of the

 County Court of Noble County, Ohio, is affirmed.        Costs to be taxed against the

 Appellant.

         A certified copy of this opinion and judgment entry shall constitute the mandate

 in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that

 a certified copy be sent by the clerk to the trial court to carry this judgment into

 execution.




                                        NOTICE TO COUNSEL

         This document constitutes a final judgment entry.
