[Cite as State v. Ross, 2013-Ohio-1488.]


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

STATE OF OHIO                                         C.A. No.      12CA0008

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
GARY A. ROSS                                          WAYNE COUNTY MUNICIPAL COURT
                                                      COUNTY OF WAYNE, OHIO
        Appellant                                     CASE No.   TRC-11-05-03983

                                  DECISION AND JOURNAL ENTRY

Dated: April 15, 2013



        BELFANCE, Presiding Judge.

        {¶1}     Defendant-Appellant Gary Ross appeals from the judgment of the Wayne County

Municipal Court. For the reasons set forth below, we reverse.

                                                 I.

        {¶2}     Mr. Ross was stopped by the State Highway Patrol on May 29, 2011, after

Trooper Brandon Richardson believed he observed Mr. Ross commit a marked lanes violation.

Ultimately, Mr. Ross was cited for driving under the influence in violation of              R.C.

4511.19(A)(1)(a) and 4511.19(A)(2), crossing marked-lanes in violation of R.C. 4511.33, and

failing to wear his seatbelt in violation of R.C. 4513.263(B)(1).

        {¶3}     The driving-under-the-influence charges were dismissed, and the matter

proceeded to a bench trial on the remaining charges. The trial court found Mr. Ross guilty of a

marked-lanes violation and a seatbelt violation, fined him a total of $80, and ordered him to pay
                                                 2


court costs. Mr. Ross filed a motion for a delayed appeal, which this Court granted. He now

raises a single assignment of error for our review.

                                                II.

                                   ASSIGNMENT OF ERROR

       DEFENDANT-APPELLANT’S CONVICTION FOR A MARKED LANES
       VIOLATION WAS AGAINST THE MANIFEST WEIGHT OF THE
       EVIDENCE.

       {¶4}     Mr. Ross asserts in his sole assignment of error that his conviction for a marked-

lanes violation is against the manifest weight of the evidence because (1) Trooper Richardson’s

testimony was not credible; (2) Mr. Ross’ testimony was credible; and (3) the DVD of the traffic

stop supported Mr. Ross’ version of events.

       {¶5}    Nonetheless, a review of the weight of the evidence necessarily involves an

evaluation of the sufficiency of the evidence in that, in order for this Court to weigh the

evidence, there must be evidence to weigh. See State v. Recklaw, 9th Dist. No. 24078, 2008-

Ohio-5444, ¶ 14; State v. Anderson, 9th Dist. No. 26006, 2012-Ohio-3663, ¶ 5; State v.

Eikleberry, 184 Ohio App.3d 219, 2009-Ohio-3648, ¶ 15 (9th Dist.); Estate of Harrold v.

Collier, 9th Dist. Nos. 07CA0074, 08CA0024, 2009-Ohio-2782, ¶ 15-16; see also State v. Frum,

9th Dist. No. 12CA0039, 2013-Ohio-1096, ¶ 4. As it is clear from the face of the record before

us that Mr. Ross’ conviction is based upon insufficient evidence, we conclude we are obligated

to reverse it. We conclude that there was insufficient evidence to establish that, in moving either

between lanes of traffic or completely out of a lane of traffic, Mr. Ross failed to ascertain the

safety of such movement prior to making the movement. See R.C. 4511.33(A)(1). Accordingly,

Mr. Ross’ conviction is based upon insufficient evidence.
                                                3


       {¶6}    In determining whether the evidence presented was sufficient to sustain a

conviction, this Court reviews the evidence in a light most favorable to the prosecution. State v.

Jenks, 61 Ohio St.3d 259, 274 (1991). Furthermore,

       [a]n appellate court’s function when reviewing the sufficiency of the evidence to
       support a criminal conviction is to examine the evidence admitted at trial to
       determine whether such evidence, if believed, would convince the average mind
       of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is
       whether, after viewing the evidence in a light most favorable to the prosecution,
       any rational trier of fact could have found the essential elements of the crime
       proven beyond a reasonable doubt.

Id. at paragraph two of the syllabus.

       {¶7}    R.C. 4511.33(A)(1) provides that

       [w]henever any roadway has been divided into two or more clearly marked lanes
       for traffic, or wherever within municipal corporations traffic is lawfully moving in
       two or more substantially continuous lines in the same direction, the following
       rules apply:

       (1) A vehicle or trackless trolley shall be driven, as nearly as is practicable,
       entirely within a single lane or line of traffic and shall not be moved from such
       lane or line until the driver has first ascertained that such movement can be made
       with safety.

       {¶8}    In State v. Barner, 9th Dist. No. 04CA0004-M, 2004-Ohio-5950, this Court

determined that, “in order to sustain a conviction pursuant to R.C. 4511.33(A), the State must put

forth evidence that the driver of a vehicle moving either between lanes of traffic or completely

out of a lane of traffic failed to ascertain the safety of such movement prior to making the

movement.” Id. at ¶ 14. Other appellate districts are in accord with our analysis in Barner. See

State v. Hernandez, 10th Dist. No. 09AP-765, 2010-Ohio-2066, ¶ 9 (listing cases from the Tenth

and Eighth Districts with similar holdings). Further, the Ohio Supreme Court has not addressed

the elements of the statute when determining the sufficiency of the evidence. See Hernandez at ¶

15.
                                                4


       {¶9}    In 2008, the Ohio Supreme Court decided State v. Mays, 119 Ohio St.3d 406,

2008-Ohio-4539. In Mays, the Supreme Court of Ohio examined whether it was constitutional

for an officer to stop a motorist when an officer observed “a motorist cross a right white edge

line [] without any further evidence of erratic driving or that the crossing was done in an unsafe

manner * * * [.]” (Internal quotations and citations omitted.) Id. at ¶ 1. In determining that the

stop was constitutional, see id., the Court discussed R.C. 4511.33. See id. at ¶ 15-21. The

Supreme Court stated that “R.C. 4511.33 requires a driver to drive a vehicle entirely within a

single lane of traffic. When an officer observes a vehicle drifting back-and-forth across an edge

line, the officer has a reasonable and articulable suspicion that the driver has violated R.C.

4511.33.” Id. at ¶ 16. While Barner was decided prior to the Supreme Court’s decision in Mays,

we do not believe that Mays alters our holding in Barner, given Mays’ focus on the

constitutionality of the stop rather than analyzing the sufficiency of the evidence under R.C.

4511.33(A). See Hernandez, 2010-Ohio-2066, at ¶ 15.

       {¶10} In Mays, “[t]he court noted that R.C. 4511.33 does allow for drivers to cross a

lane line in certain circumstances without violating the statute. The court, however, construed

these circumstances as ‘a possible defense’ to the charge and, therefore, irrelevant to the

reasonable and articulable suspicion analysis.” Hernandez at ¶ 12, quoting Mays at ¶ 17. While

it is possible to conclude that the Supreme Court intended “defense” to mean an affirmative

defense requiring the defendant to carry the burden of proof on the issue, we do not think that

such an interpretation is warranted. See Hernandez at ¶ 13-18. But see State v. Rochowiak, 2d

Dist. No. 2008 CA 12, 2009-Ohio-2550, ¶ 51-56 (concluding that the issue of whether it is

impracticable for a driver to stay in a marked lane and whether the driver first ascertained that

movement from his lane could be made safely was an affirmative defense to a violation of R.C.
                                                 5


4511.33). We agree with the reasoning of the Tenth District in Hernandez and conclude that our

decision in Barner is still valid. Notably, Mays was not examining the sufficiency or weight of

the evidence, but was instead examining whether reasonable suspicion warranting a traffic stop

had been established. See Mays at ¶ 1. Thus, Mays did not examine the elements necessary to

commit a violation of R.C. 4511.33. Further, Mays does not refer to the language at issue in the

statute as an affirmative defense; instead referring to it as a defense. See Mays at ¶ 17. As noted

by our colleagues in the Tenth District, defense and affirmative defensive are not coextensive.

See Hernandez at ¶ 14, 16. A defendant could assert that he or she did not violate the statute at

all, which would be a defense, whereas an affirmative defense generally involves a justification

or excuse for violating the statute. See R.C. 2901.05(D)(1) (defining an affirmative defense as

“[a] defense involving an excuse or justification peculiarly within the knowledge of the accused,

on which the accused can fairly be required to adduce supporting evidence[]”). Moreover, “[t]he

impracticability and safety issues in the statute are not necessarily within the peculiar knowledge

of a driver[] and, thus, outside the definition of an affirmative defense. Hernandez at ¶ 17.

       {¶11} Accordingly, we continue to hold that, in order to establish a violation of R.C.

4511.33, the State must present evidence “that the driver of a vehicle moving either between

lanes of traffic or completely out of a lane of traffic failed to ascertain the safety of such

movement prior to making the movement.” Barner, 2004-Ohio-5950, at ¶ 14. In the instant

matter, the State failed to present any evidence of the foregoing.

       {¶12} Trooper Richardson testified that, on May 29, 2011, at approximately 3:30 a.m.,

he was working on State Route 57 in Wayne County in a marked vehicle. He stated that he

observed

       a Chevy pick-up truck pass[] [him] going South, just South of Church Road. As
       that vehicle passed [him], [he] look[ed] in [his] rearview mirror and it appeared
                                                6


       that it, [Mr. Ross’] vehicle was driving on the white fog line. So at Church Road
       [he] turned around in the roadway and caught up to the vehicle and the pick-up
       truck traveled outside of the marked white fog lines, by approximately a couple of
       feet. And at that point [he] initiated a traffic stop.

       {¶13} When questioned, Trooper Richardson confirmed that he saw the vehicle travel

over the fog line with both the front and rear tires on the passenger side. Trooper Richardson

offered no testimony evidencing that Mr. Ross failed to ascertain the safety of such movement

prior to making the movement. See Barner at ¶ 14.

       {¶14} Mr. Ross also testified in his defense. He indicated that, on the early morning in

question,

       [he] drove from [his] home in Orrville to Rittman, picked [up a friend], drove him
       home to Clinton and then [] was proceeding home. At the time the officer pulled
       [him] over, [he] was coming southbound on State Route 57. As [he] passed
       Church Road, the tracks [were] a little bit rough there * * * so [he] was running a
       little bit to the right but [] was not outside the white line. And as [he] proceeded
       on further south, [he saw] headlights coming up fast behind [him.] * * * [A]t that
       time of night [he] was worried about * * * some drunk come flying up behind and
       hit[ting] [him]. [He] always worr[ies] about other vehicles [because he] drive[s]
       [a] truck for a living. So [he] moved slightly to the right but [he] was not over the
       white line.

Mr. Ross maintained that he did not cross the white line at any point.

       {¶15} The DVD of the stop was also made part of the record. It depicts the Trooper’s

vehicle driving one direction, Mr. Ross’ vehicle passing the Trooper’s vehicle going the opposite

way, and the Trooper’s vehicle crossing railroad tracks, turning around, and pursuing Mr. Ross’

vehicle at what appears to be a fairly high rate of speed. From the video, due to the time of day,

the speed the Trooper’s vehicle was traveling, and the Trooper’s distance from Mr. Ross’ vehicle

for the majority of the pursuit, it is not possible to determine with any accuracy whether Mr.

Ross’ vehicle crosses the white fog line. In addition, the video does demonstrate that, at the time

Mr. Ross may have crossed the fog line, no other cars were on the road. Thus, even when
                                                  7


viewing the video in a light most favorable to the State, it does not support the conclusion that

Mr. Ross failed to ascertain the safety of leaving the lane prior to doing so.

       {¶16} The dissent asserts that, because there was some evidence presented that Mr. Ross

was tired when he was driving, there was evidence that he failed to ascertain the safety of the

vehicle’s movement out of the lane. It concludes that any driver who crosses a fog line solely

because he is tired violates R.C. 4511.33.

       {¶17} We do not agree. While it is possible that driving while tired can lead one to

drive in an unsafe manner, it is equally probable that someone who is aware that he or she is tired

will be more cautious in order to avoid the possibility of an accident. There was no evidence

presented that Mr. Ross was so tired that he was falling asleep at the wheel or any observation by

the Trooper that the vehicle appeared to jerk in and out of the lane, as might happen if someone

had fallen asleep while driving. In light of all the other evidence, including the video, which

does not even suggest that Mr. Ross failed to ascertain the safety of leaving the lane prior to

doing so, we conclude that the State was required to inquire further in order to sustain its burden.

Accordingly, we are not persuaded by the dissent’s analysis.

       {¶18} As the State failed to present evidence that Mr. Ross failed to ascertain the safety

of his movement outside of the marked lane prior to making the movement, it failed to present

sufficient evidence to support a finding of guilty based upon a violation of R.C. 4511.33. Mr.

Ross’ conviction is reversed.

                                                 III.

       {¶19} In light of the foregoing, we reverse the judgment of the Wayne County

Municipal Court, and the matter is remanded for the court to enter a judgment of acquittal on Mr.

Ross’ conviction for a marked-lanes violation.
                                                 8


                                                                               Judgment reversed,
                                                                              and cause remanded.




        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 Appellee.




                                                     EVE V. BELFANCE
                                                     FOR THE COURT



CARR, J.
CONCURS IN JUDGMENT ONLY.

WHITMORE, J.
DISSENTING.

        {¶20} I respectfully dissent. Based upon the record on appeal, I would conclude that

Ross’ conviction is not against the manifest weight of the evidence and affirm the judgment of

the trial court.
                                                 9


       {¶21} Initially, I would note that “weight of the evidence and sufficiency of the evidence

are clearly different legal concepts.” State v. Thompkins, 78 Ohio St.3d 380, 389 (1997). In

constructing his argument on appeal, Ross chose to only present a weight challenge. Because he

limited his argument to weight, one could infer that Ross chose to concede the sufficiency of the

evidence and focus solely on seeking a reversal on the weight of the evidence. See id. at 388,

quoting Tibbs v. Florida, 457 U.S. 31, 42-43 (1982) (“A reversal based on the weight of the

evidence * ** can occur only after the State both has presented sufficient evidence to support

conviction and has persuaded the jury to convict.”). Nevertheless, I acknowledge that this Court

has overturned a R.C. 4511.33(A) conviction on sufficiency grounds when presented solely with

a manifest weight argument. See State v. Barner, 9th Dist. No. 04CA0004-M, 2004-Ohio-5950.

       {¶22} Several years after this Court issued Barner, the Supreme Court issued State v.

Mays, 119 Ohio St.3d 406, 2008-Ohio-4539. While I agree that Mays concerned the validity of a

traffic stop under R.C. 4511.33 rather than the sufficiency of a conviction under the same, Mays’

discussion of the statute is instructive. Specifically, the Court agreed with the Seventh District’s

interpretation of R.C. 4511.33 and explained:

       “The legislature did not intend for a motorist to be punished when road debris or a
       parked vehicle makes it necessary to travel outside the lane. Nor, we are quite
       certain, did the legislature intend this statute to punish motorists for traveling
       outside their lane to avoid striking a child or animal. We are equally certain the
       legislature did not intend the statute to give motorists the option of staying within
       the lane at their choosing. Common sense dictates that the statute is designed to
       keep travelers, both in vehicles and pedestrians, safe. The logical conclusion is
       that the legislature intended only special circumstances to be valid reasons to
       leave a lane, not mere inattentiveness or carelessness. To believe that the statute
       was intended to allow motorists the option of when they will or will not abide by
       the lane requirement is simply not reasonable.”
                                                10


(Emphasis added.) Mays at ¶ 19, quoting State v. Hodge, 147 Ohio App.3d 550, 2002-Ohio-

3053, ¶ 43 (7th Dist.). Having the foregoing explanation in mind, I would conclude that this case

is distinguishable from Barner.

       {¶23} In Barner, the officer simply testified that he witnessed Barner’s truck cross the

fog line three times and that he was the only motorist on the highway behind Barner when the

lane violations occurred. Barner at ¶ 10. Barner then testified and provided an explanation for

his behavior. He stated that, while he did not believe he ever crossed the fog line, he did drift to

the right at several points during his drive to avoid potholes that could damage his truck and to

determine whether the officer’s cruiser was still behind him. Id. at ¶ 12-13. There was no

testimony about the officer having spoken with Barner at the scene.

       {¶24} Here, Trooper Richardson testified that he observed Ross commit lane violations

when Ross’ truck crossed over the fog line by several feet. He then executed a stop and spoke to

Ross. Trooper Richardson testified that when he informed Ross that he had stopped him for a

marked lane violation Ross “told me he was tired and he was leaving a friend’s house and just

trying to get home.” When Ross testified, he offered a different explanation for his behavior.

Ross stated that he was traveling on the right side of his lane to begin with because “[a]s I passed

Church Road, the tracks are a little bit rough there.” According to Ross, he then moved to the

right again when he saw headlights coming up behind him because “at that time of night I was

worried about * * * some drunk * * * flying up behind and hit[ting] me.” Ross stated that he

moved to the right “so that if [the other driver] tried to pass me as fast as he was coming up on

me he would have more room to clear me.”

       {¶25} Ross’ statement to Trooper Richardson at the scene was distinctly different than

his testimony at trial. The only explanation Ross gave Trooper Richardson for his behavior was
                                                 11


that he was tired. I would equate tiredness to “mere inattentiveness or carelessness.” Mays, 119

Ohio St.3d 406, 2008-Ohio-4539, at ¶ 19, quoting Hodge, 147 Ohio App.3d 550, 2002-Ohio-

3053, at ¶ 43. Tiredness is not a “special circumstance[]” that would give rise to a “valid

reason[] to leave a lane.” Mays at ¶ 19, quoting Hodge at ¶ 43. Therefore, a driver who crosses

a fog line solely because he is tired violates R.C. 4511.33.

       {¶26} Ross did not tell Trooper Richardson that he drifted to the right because the road

was rough or because he was concerned about a possible drunk driver. He only said he was tired

and “just trying to get home.” I do not believe it was Trooper Richardson’s responsibility to

press Ross for additional information once Ross gave him the foregoing explanation. Moreover,

given Ross’ explanation to Trooper Richardson, I do not believe the State was required to ask

any specific questions about whether Ross ascertained the safety of his truck’s movement before

making the movement. See R.C. 4511.33(A)(1). If Ross’ movement was due to his tiredness,

then it was wholly divorced from any purposeful movement or thought process on his part. It

was simply due to “inattentiveness or carelessness.” Mays at ¶ 19, quoting Hodge at ¶ 43. I do

not agree that the State failed to prove an element of its case. The State presented evidence that

Ross crossed the fog line on the road and only did so because he was tired. Thus, the State

presented sufficient evidence that Ross violated R.C. 4511.33(A)(1). The issue on appeal is

strictly one of weight, not of sufficiency.

       {¶27} The trial court here was presented with competing versions of the events. On the

one hand, the court had Trooper Richardson’s testimony that (1) he observed Ross commit lane

violations and (2) Ross’ explanation for his behavior was that he was tired and “just trying to get

home.” On the other hand, the court had Ross’ testimony, in which he asserted that (1) he never

crossed the fog line and (2) his behavior was due to the rough road and his concern over a
                                                12


possible drunk driver. The trial court was in the best position to view the evidence and was free

to believe Trooper Richardson’s version of the events. State v. Cross, 9th Dist. No. 25487, 2011-

Ohio-3250, ¶ 35, quoting Prince v. Jordan, 9th Dist. No. 04CA008423, 2004-Ohio-7184, ¶ 35.

Ross’ conviction is not against the manifest weight of the evidence. Thus, I would overrule his

assignment of error and affirm the judgment of the trial court.



APPEARANCES:

BRIAN L. SUMMERS, Attorney at Law, for Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting
Attorney, for Appellee.
