[Cite as State v. Wolf, 2014-Ohio-2698.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                      GEAUGA COUNTY, OHIO


STATE OF OHIO,                                  :       OPINION

                 Plaintiff-Appellee,            :
                                                        CASE NO. 2013-G-3152
        - vs -                                  :

DUSTIN A. WOLF,                                 :

                 Defendant-Appellant.           :


Criminal Appeal from the Chardon Municipal Court, Case No. 2013 TR D 02615.

Judgment: Affirmed.


Dennis M. Coyne, City of Chardon Prosecutor, 111 Water Street, Chardon, OH 44024
(For Plaintiff-Appellee).

Katherine S. Riedel, Law Offices of Katherine S. Riedel Co., L.P.A., Jefferson
Commercial Park, 1484 State Route 46 North, No. 5, Jefferson, OH 44047 (For
Defendant-Appellant).



TIMOTHY P. CANNON, P.J.

        {¶1}     Appellant, Dustin A. Wolf, appeals the judgment of the Chardon Municipal

Court finding him guilty of violating R.C. 4511.31, Hazardous Zones, a minor

misdemeanor. Based on the following, we affirm.

        {¶2}     On May 15, 2013, appellant was involved in an automobile accident on

State Route 87 in Middlefield Township, Geauga County, Ohio. Prior to the accident,

appellant was driving eastbound on State Route 87. Ms. April Lynch, who was driving
in front of appellant, was also traveling eastbound on State Route 87.           Ms. Lynch

significantly slowed her vehicle in an attempt to turn left into a driveway. Appellant

attempted to pass Ms. Lynch on the left by driving into the westbound lane of the road in

a no-passing zone signified by a double, yellow line painted in the center of the

roadway.

       {¶3}   In his attempt to pass, appellant struck Ms. Lynch’s vehicle as she was

making the left-hand turn.       Appellant was cited for a violation of R.C. 4511.31.

Appellant pled not guilty, and the matter proceeded to a bench trial.

       {¶4}   At trial, Ms. Lynch testified that as she began to turn left into a driveway,

her car was struck by appellant’s vehicle. Ms. Lynch indicated that her vehicle was

struck on the driver’s side near her front tire.

       {¶5}   Appellant testified that he was traveling behind Ms. Lynch.          Appellant

stated that Ms. Lynch “slowed down at a pretty fast pace.” Appellant testified that he did

not know “what she was doing” so he decided to go around her vehicle; Ms. Lynch then

turned “into [him] and struck [his] right tire and right side of the vehicle.” In response to

the court asking appellant whether it was his “point to go left of center to avoid striking

the rear of her vehicle,” appellant replied, “yes.”

       {¶6}   Helen Spicer, a witness, also testified.       Ms. Spicer stated that she

observed Ms. Lynch’s vehicle travel slowly and then stop.            Ms. Spicer then saw

appellant’s vehicle cross the double, yellow line and attempt to pass Ms. Lynch’s

vehicle.

       {¶7}   Trooper Timothy Kay of the Ohio State Highway Patrol testified that based

upon the physical evidence in the roadway, most notably the tire marks that lead up to




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appellant’s vehicle, along with statements from appellant, Ms. Lynch, and Ms. Spicer,

he issued a citation to appellant. Trooper Kay noted that the accident occurred in front

of a driveway. Trooper Kay also stated that the speed limit of this area was 50 miles

per hour.

       {¶8}   Upon the state resting and defense counsel calling no witness, the court

stated the following:

              It’s the ruling of this Court based upon the testimony that both cars
              were traveling at 45 miles per hour, as testified to, which is within
              the speed limit there.

              Further testimony of Mr. Wolf that said he stopped abruptly as Miss
              Lynch slowed abruptly, however, I also believe him that he had to
              avoid hitting the rear of Miss Lynch’s car and went to the left to go
              around her at her slow rate of speed at that point. Therefore, I
              don’t believe that he meets the exceptions of the one, two and
              three such that he is guilty of violating 4511.31, hazardous passing.

       {¶9}   The trial court imposed a fine of $25 plus costs. The trial court stayed

appellant’s sentence, in part, pending the disposition of this appeal. Appellant filed a

timely notice of appeal and asserts the following assigned error for our review:

       {¶10} “The trial court erred in its determination that defendant-appellant was

guilty of violating O.R.C. 4511.31.”

       {¶11} On appeal, appellant maintains the trial court’s finding of guilt is against

both the sufficiency and manifest weight of the evidence.

       {¶12} We first address appellant’s sufficiency argument. Appellant maintains

that although it is undisputed that he crossed the double, yellow line, he did not violate

R.C. 4511.31 because, in crossing the double, yellow line, he complied with the

provisions outlined in (B)(1)-(3) of R.C. 4511.31.




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      {¶13} When measuring the sufficiency of the evidence, an appellate court must

consider whether the state set forth adequate evidence to sustain the jury’s verdict as a

matter of law. Kent v. Kinsey, 11th Dist. Portage No. 2003-P-0056, 2004-Ohio-4699,

¶11, citing State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). A verdict is supported

by sufficient evidence when, after viewing the evidence most strongly in favor of the

prosecution, there is substantial evidence upon which a jury could reasonably conclude

that the state proved all elements of the offense beyond a reasonable doubt. State v.

Schaffer, 127 Ohio App.3d 501, 503 (11th Dist.1998), citing State v. Schlee, 11th Dist.

Lake No. 93-L-082, 1994 Ohio App. LEXIS 5862, *14-15 (Dec. 23, 1994).

      {¶14} Appellant was found guilty of a violation of R.C. 4511.31, which states:

             (A) The department of transportation may determine those portions
             of any state highway where overtaking and passing other traffic or
             driving to the left of the center or center line of the roadway would
             be especially hazardous and may, by appropriate signs or markings
             on the highway, indicate the beginning and end of such zones.
             When such signs or markings are in place and clearly visible, every
             operator of a vehicle or trackless trolley shall obey the directions of
             the signs or markings, notwithstanding the distances set out in
             section 4511.30 of the Revised Code.

             (B) Division (A) of this section does not apply when all of the
             following apply:

             (1) The slower vehicle is proceeding at less than half the speed of
             the speed limit applicable to that location.

             (2) The faster vehicle is capable of overtaking and passing the
             slower vehicle without exceeding the speed limit.

             (3) There is sufficient clear sight distance to the left of the center or
             center line of the roadway to meet the overtaking and passing
             provisions of section 4511.29 of the Revised Code, considering the
             speed of the slower vehicle.

      {¶15} R.C. 4511.29, driving to left of center line, states:




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              (A) No vehicle or trackless trolley shall be driven to the left of the
              center of the roadway in overtaking and passing traffic proceeding
              in the same direction, unless such left side is clearly visible and is
              free of oncoming traffic for a sufficient distance ahead to permit
              such overtaking and passing to be completely made, without
              interfering with the safe operation of any traffic approaching from
              the opposite direction or any traffic overtaken. In every event the
              overtaking vehicle or trackless trolley must return to an authorized
              lane of travel as soon as practicable and in the event the passing
              movement involves the use of a lane authorized for traffic
              approaching from the opposite direction, before coming within two
              hundred feet of any approaching vehicle.

       {¶16} The parties stipulated that appellant crossed the double, yellow line.

However, appellant maintained both below and on appeal that the provisions of R.C.

4511.31(B)(1)-(3) are applicable, and thus, he is not guilty of violating R.C. 4511.31.

Appellant claims the testimony revealed that Ms. Lynch was traveling less than half the

speed limit—five miles per hour; that appellant was able to pass Ms. Lynch’s vehicle

without exceeding the speed limit—he was initially traveling 45 miles per hour but

slowed significantly when attempting to pass Ms. Lynch’s vehicle; and that there was no

on-coming traffic in the westbound lane of State Route 87 at the time he attempted to

pass Ms. Lynch’s vehicle.

       {¶17} R.C. 4511.31(B)(3) expressly provides that a vehicle, when traveling to the

left of the center or center line, must meet the overtaking and passing provision of R.C.

4511.29.    R.C. 4511.29 states that a vehicle must not interfere with “any traffic

overtaken.” Therefore, a violation of R.C. 4511.31 occurs if the vehicle driven left of

center of the roadway interferes with the safe operation of the traffic being overtaken.

       {¶18} The evidence produced at trial reveals that appellant was traveling behind

Ms. Lynch’s vehicle. Ms. Lynch’s vehicle came to a stop and then slowly proceeded in

order to turn left into a driveway, which was depicted on the traffic crash report. The



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testimony of appellant indicates that he was traveling approximately 45 miles per hour;

however, when Ms. Lynch’s vehicle stopped to turn left, he traveled left of center

because he “didn’t want to take the chance of striking her vehicle.” In traveling left of

center, appellant caused a collision with Ms. Lynch’s vehicle. The trial court found that

part of the reason appellant passed Ms. Lynch was because he was traveling at a rate

of speed that did not allow him to overtake Ms. Lynch’s vehicle safely. Because the

exceptions contained in R.C. 4511.31(B)(1)-(3) include the obligations contained in R.C.

4511.29, the exceptions do not exonerate appellant. Therefore, there was sufficient

evidence for the trial court to find appellant guilty of violating R.C. 4511.31 beyond a

reasonable doubt.

       {¶19} Under this assignment of error, appellant also maintains that the trial

court’s finding of guilt is against the manifest weight of the evidence.

       {¶20} To determine whether a verdict is against the manifest weight of the

evidence, a reviewing court must consider the weight of the evidence, including the

credibility of the witnesses and all reasonable inferences, to determine whether the trier

of fact “lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered.” State v. Thompkins, 78 Ohio

St.3d 380, 387 (1997).      In weighing the evidence submitted at a criminal trial, an

appellate court must defer to the factual findings of the trier of fact regarding the weight

to be given the evidence and credibility of the witnesses. State v. DeHass, 10 Ohio

St.2d 230 (1967), paragraph one of the syllabus. Further, a conviction resulting from a

trial by jury shall not be reversed on the weight of the evidence except by the

concurrence of all three judges hearing the appeal. Thompkins at 386.




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       {¶21} Appellant does not challenge the trial court’s determination of the

credibility of the witnesses’ testimony. Appellant argues, however, that the trial court

failed to weigh the relevant evidence in its determination that appellant failed to meet

the elements of R.C. 4511.31(B)(1)-(3). Specifically, appellant maintains that while his

actions may have “constituted a violation of the assured clear distance statute, his

stated purpose for deciding to pass Ms. Lynch’s car does not ‘bar’ him from satisfying

the elements of R.C. 4511.31(B).” Appellant reiterates the aforementioned testimony

which allegedly satisfied the exceptions in R.C. 4511.31(B)(1)-(3).

       {¶22} As we previously discussed, the trial court found that appellant traveled

across the double, yellow line, at least in part to avoid striking Ms. Lynch’s vehicle as

she attempted to turn left into a driveway.        Appellant, in crossing the center line,

interfered with the safe operation of the traffic being overtaken, contrary to the

requirements of R.C. 4511.29. Further, in rendering its decision, the trial court indicated

it had reviewed the exceptions outlined in R.C. 4511.31(B)(1)-(3), which includes an

obligation to comply with R.C. 4511.29. Nothing in the record indicates the trial court

lost its way in finding appellant guilty of violating R.C. 4511.31.

       {¶23} Based on the opinion of this court, the judgment of the Chardon Municipal

Court is hereby affirmed.




DIANE V. GRENDELL, J.,

THOMAS R. WRIGHT, J.,

concur.




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