[Cite as State v. Thomas, 2014-Ohio-319.]


                                       COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                      JUDGES:
STATE OF OHIO                                 :       Hon. W. Scott Gwin, P.J.
                                              :       Hon. Sheila G. Farmer, J.
                         Plaintiff-Appellee   :       Hon. Patricia A. Delaney, J.
                                              :
-vs-                                          :
                                              :       Case No. 13 CAC 05 0039
RYAN J. THOMAS                                :
                                              :
                    Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                          Criminal appeal from the Delaware
                                                  Municipal Court, Case No. 13 TRD 02895



JUDGMENT:                                         Affirmed


DATE OF JUDGMENT ENTRY:                           January 29, 2014


APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

ELIZABETH A. MATUNE                               J. MICHAEL REIDENBACH
Assistant Prosecuting Attorney                    WILLIAM THOMAS
Delaware City Prosecutor                          163 North Sandusky Street
70 North Union Street                             Delaware, OH 43015
Delaware, OH 43015
[Cite as State v. Thomas, 2014-Ohio-319.]


Gwin, P.J.

        {¶1}    Appellant Ryan J. Thomas [“Thomas”] appeals his conviction and

sentence for one count of operation without maintain reasonable control in violation of

R.C. 4511.02 after a bench trial in the Delaware County Municipal Court.

Facts and Procedural History

        {¶2}    On March 6, 2013, Thomas was driving his pickup truck with a front

snowplow northbound on State Route 257, a two-lane road, at approximately 3:00 am. It

was snowing and there was heavy snow on the roads. Thomas was working as part of

his business of snow removal services. Due to the conditions, Thomas was travelling

between 25 mph and 30 mph in a speed zone marked 55 mph. Thomas was in control

of his truck at this time. While traveling northbound, a southbound dump truck with an

oversized plow was “encroaching” Thomas's lane of travel. Thomas moved to the right

of his lane of travel with two of the truck’s tires going off the road onto the grass. After

the other snowplow had passed, Thomas attempted to turn left to reenter his lane of

travel; he crossed over the centerline of the roadway, travelled across the lane

designated for oncoming traffic, went off the road, down an embankment and collided

with a tree.

        {¶3}    Shortly thereafter, State Highway Patrol Trooper Steven M. Schemine

noticed taillights “sticking up out of the ditch.” Trooper Schemine approached Thomas's

vehicle and proceeded to interview Thomas and investigate the scene. Thomas stated

he "overcorrected" and went off the left side of the road. Further, Thomas wrote in his

statement he had "over [compensated]." Trooper Schemine issued a citation for

violation of R.C. 4511.202.
Delaware County, Case No. 13 CAC 05 0039                                            3


      {¶4}   On April 2, 2013, a bench trial was held before the Delaware County

Municipal Court. Trooper Schemine and Thomas were the only witnesses. Thomas

hand written account of the events as given to Trooper Schemine the night of the

incident was admitted into evidence.

      {¶5}   After hearing testimony from Trooper Schemine and Thomas, the trial

court found Thomas guilty. Thomas subsequently filed a motion for a new trial pursuant

to Crim. R. 33(A)(4) and (5), which was denied.

Assignments of Error

      {¶6}   Thomas raises three assignments of error,

      {¶7}   “I. THE EVIDENCE WAS NOT LEGALLY SUFFICIENT TO SUPPORT A

GUILTY VERDICT AS THE STATE FAILED TO PROVE EACH AND EVERY

ELEMENT OF THE OFFENSE BEYOND A REASONABLE DOUBT.

      {¶8}   “II. THE VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE AS THE ACCIDENT WAS CAUSED BY A SUDDEN EMERGENCY.

      {¶9}   “III. TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION

FOR A NEW TRIAL.”

Analysis

      {¶10} Thomas’ first, second and third assignments of error raise common and

interrelated issues; therefore, we will address the arguments together. All of Thomas’

assignments contend that Thomas was confronted by a sudden emergency not of his

making and beyond his control. As such, his conviction is against the manifest weight

and sufficiency of the evidence.
Delaware County, Case No. 13 CAC 05 0039                                                   4


       {¶11} Our review of the constitutional sufficiency of evidence to support a

criminal conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979), which requires a court of appeals to determine whether

“after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Id.; see also McDaniel v. Brown, 558 U.S. 120, 130 S.Ct. 665, 673, 175 L.Ed.2d

582(2010) (reaffirming this standard); State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-

1017, 926 N.E.2d 1239–Ohio–1017, ¶ 146; State v. Clay, 187 Ohio App.3d 633, 2010-

Ohio-2720, 933 N.E.2d 296 (5th Dist.)–Ohio–2720, ¶ 68.

       {¶12} Weight of the evidence addresses the evidence's effect of inducing belief.

State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), superseded

by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio

St.3d 89, 684 N.E.2d 668, 1997-Ohio–355. Weight of the evidence concerns “the

inclination of the greater amount of credible evidence, offered in a trial, to support one

side of the issue rather than the other. It indicates clearly to the jury that the party

having the burden of proof will be entitled to their verdict, if, on weighing the evidence in

their minds, they shall find the greater amount of credible evidence sustains the issue

which is to be established before them. Weight is not a question of mathematics, but

depends on its effect in inducing belief.” (Emphasis sic.) Id. at 387, 678 N.E.2d 541,

quoting Black's Law Dictionary (6th Ed. 1990) at 1594.

       {¶13} When a court of appeals reverses a judgment of a trial court on the basis

that the verdict is against the weight of the evidence, the appellate court sits as a

“’thirteenth juror’” and disagrees with the fact finder’s resolution of the conflicting
Delaware County, Case No. 13 CAC 05 0039                                                      5

testimony. Id. at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102

S.Ct. 2211, 72 L.Ed.2d 652 (1982). However, an appellate court may not merely

substitute its view for that of the jury, but must find that “‘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.’” State v. Thompkins, supra, 78 Ohio St.3d at 387, quoting State v.

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist. 1983).

Accordingly, reversal on manifest weight grounds is reserved for “‘the exceptional case

in which the evidence weighs heavily against the conviction.’” Id.

              “[I]n determining whether the judgment below is manifestly against

       the weight of the evidence, every reasonable intendment and every

       reasonable presumption must be made in favor of the judgment and the

       finding of facts.

                                             ***

              “If the evidence is susceptible of more than one construction, the

       reviewing court is bound to give it that interpretation which is consistent

       with the verdict and judgment, most favorable to sustaining the verdict and

       judgment.”

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

3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).

       {¶14} R.C. 4511.202, Operation without reasonable control provides,

              (A) No person shall operate a motor vehicle, trackless trolley,

       streetcar, agricultural tractor, or agricultural tractor that is towing, pulling,

       or otherwise drawing a unit of farm machinery on any street, highway, or
Delaware County, Case No. 13 CAC 05 0039                                                  6


      property open to the public for vehicular traffic without being in reasonable

      control of the vehicle, trolley, streetcar, agricultural tractor, or unit of farm

      machinery.

      {¶15} The “ordinary standard of negligence” provides “the requisite proof of

culpability within * * * [the] ordinance.” State v. Lett, 5th Dist. Ashland No. 02COA049,

2002-Ohio-3366, ¶12 (construing analogous city ordinance), citing State v. Jones 10th

Dist. Franklin No. 88AP-920, 1989 WL 43286(Apr. 25, 1989). As the Court of Appeals

for the Fourth District has observed,

             Simply put, motor vehicle operators must keep their vehicles under

      control and on their own side of the roadway. See State v. Lunsford

      (1987), 118 Ohio App.3d 380, 383, 692 N.E.2d 1078; also see Oechsle v.

      Hart (1967), 12 Ohio St.2d 29, 34, 231 N.E.2d 306. There is no question

      that Davis failed to meet that obligation. By her own admission, Davis

      swerved the bus to the right and into a ditch, brought the bus back onto

      the road, and veered across the road through the other lane of travel into

      an adjacent field and rolled the bus. This evidence sufficiently establishes

      that Davis failed to maintain reasonable control of her vehicle.

State v. Davis, 4th Dist. Pickaway No. 04CA1, 2004 WL 2390013(Oct. 21, 2004), ¶11.

      {¶16} In Oechsle, the defendant's car skidded on an icy or wet spot on the

pavement and went left of center, striking another vehicle. The Supreme Court noted

that a showing by a motorist that he was a victim of a sudden emergency would excuse

his failure to comply with the statute in question. 12 Ohio St.2d at 34, 231 N.E.2d 306.

However, the Court noted,
Delaware County, Case No. 13 CAC 05 0039                                               7

             As was stated in paragraph five of the syllabus of Spalding v.

      Waxler, 2 Ohio St.2d 1, 205 N.E.2d 890:

             ‘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. A self-created emergency, one

      arising from the driver’s own conduct or from circumstances under his

      control, cannot serve as an excuse.’

             Skidding upon wet or icy roadway pavement is a circumstance

      within the power of motorists to prevent. Bad road conditions, alone,

      should not excuse a driver from the mandatory requirements of Sections

      4511.25 [Lanes of travel upon roadways] and 4511.26 [Vehicles traveling

      in opposite directions], Revised Code.

                                          ***

             However, the operator of a motor vehicle is responsible for keeping

      his vehicle under control and on his side of the road. This is true

      irrespective of the condition of the road. Violation of Sections 4511.25 and

      4511.26, Revised Code, is negligence per se. It follows that defendant

      must bear the loss, for it is her violation of those statutes that caused the

      loss. Peters v. B. & F. Transfer Co., 7 Ohio St.2d 143, 219 N.E.2d 27. Cf.

      Stump v. Phillians, 2 Ohio St.2d 209, 207 N.E.2d 762.

Oechsle, 12 Ohio St.2d at 34, 231 N.E.2d 306. The Oechsle Court concluded,

             It was error for the trial court to so charge the jury as the sudden

      emergency doctrine was not properly in the case, where the only
Delaware County, Case No. 13 CAC 05 0039                                                       8


       justification offered for defendant’s driving in the left half-i. e., the ‘wrong

       side’-of the roadway was that she unexpectedly encountered an isolated

       patch of ice on an otherwise clear highway.

Oechsle, 12 Ohio St.2d at 35, 231 N.E.2d 306.

       {¶17} In the case at bar, the evidence established that Thomas was aware of the

snowy conditions on the roadway and was proceeding without incident or difficulty. He

moved to the right side of the road without difficulty to allow the other snowplow

additional room. After the other vehicle had passed, Thomas brought his truck back

onto the roadway and veered into the oncoming lane and subsequently off the road and

into the embankment.

       {¶18} Viewing the evidence in a light most favorable to the prosecution, we

conclude that a reasonable person could have found beyond a reasonable doubt that

Thomas committed the crime of operating his vehicle without reasonable control in

violation of R.C. 4511.202. We hold, therefore, that the state met its burden of

production regarding each element of the crime and, accordingly, there was sufficient

evidence to support Thomas’ conviction.

       {¶19} Ultimately, “the reviewing court must determine whether the appellant or

the appellee provided the more believable evidence, but must not completely substitute

its judgment for that of the original trier of fact ‘unless it is patently apparent that the fact

finder lost its way.’” State v. Pallai, 7th Dist. Mahoning No. 07 MA 198, 2008-Ohio-6635,

¶31, quoting State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964

(2nd Dist. 2004), ¶ 81. In other words, “[w]hen there exist two fairly reasonable views of

the evidence or two conflicting versions of events, neither of which is unbelievable, it is
Delaware County, Case No. 13 CAC 05 0039                                                9

not our province to choose which one we believe.” State v. Dyke, 7th Dist. Mahoning

No. 99 CA 149, 2002-Ohio-1152, at ¶ 13, citing State v. Gore, 131 Ohio App.3d 197,

201, 722 N.E.2d 125(7th Dist. 1999).

      {¶20} The weight to be given to the evidence and the credibility of the witnesses

are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d

212(1967), paragraph one of the syllabus; State v. Hunter, 131 Ohio St.3d 67, 2011-

Ohio-6524, 960 N.E.2d 955, ¶118. Accord, Glasser v. United States, 315 U.S. 60, 80,

62 S.Ct. 457, 86 L.Ed. 680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct.

843, 74 L.Ed.2d 646 (1983).

      {¶21} Although Thomas testified and argued that the he lost control as a result

of a “sudden emergency” and that he misspoke when he told Trooper Schemine and

wrote in his statement the night of the incident that he “overcompensated” while

attempting to get back onto the roadway, the weight to be given to the evidence and the

credibility of the witnesses are issues for the trier of fact. State v. DeHass, 10 Ohio

St.2d 230, 227 N.E.2d 212(1967), paragraph one of the syllabus; State v. Hunter, 131

Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶118. Accord, Glasser v. United

States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Marshall v. Lonberger, 459

U.S. 422, 434, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983). The judge as the trier of fact was

free to accept or reject any and all of the evidence offered by the parties and assess the

witness’s credibility. "While the [trier of fact] may take note of the inconsistencies and

resolve or discount them accordingly * * * such inconsistencies do not render

defendant's conviction against the manifest weight or sufficiency of the evidence". State

v. Craig, 10th Dist. Franklin No. 99AP-739, 1999 WL 29752 (Mar 23, 2000) citing State
Delaware County, Case No. 13 CAC 05 0039                                              10

v. Nivens, 10th Dist. Franklin No. 95APA09-1236, 1996 WL 284714 (May 28, 1996).

Indeed, the [trier of fact] need not believe all of a witness' testimony, but may accept

only portions of it as true. State v. Raver, 10th Dist. Franklin No. 02AP-604, 2003-Ohio-

958, ¶21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964); State v.

Burke, 10th Dist. Franklin No. 02AP-1238, 2003-Ohio-2889, citing State v. Caldwell, 79

Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although the evidence may have

been circumstantial, we note that circumstantial evidence has the same probative value

as direct evidence. State v. Jenks, supra.

             “[I]n determining whether the judgment below is manifestly against

      the weight of the evidence, every reasonable intendment and every

      reasonable presumption must be made in favor of the judgment and the

      finding of facts.

                                             ***

             “If the evidence is susceptible of more than one construction, the

      reviewing court is bound to give it that interpretation which is consistent

      with the verdict and judgment, most favorable to sustaining the verdict and

      judgment.”

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

3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191-192 (1978).

      {¶22} In Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E. 2d 118 (1954), the

Supreme Court further cautioned,

             The mere number of witnesses, who may support a claim of one or

      the other of the parties to an action, is not to be taken as a basis for
Delaware County, Case No. 13 CAC 05 0039                                                  11


      resolving disputed facts. The degree of proof required is determined by

      the impression which the testimony of the witnesses makes upon the trier

      of facts, and the character of the testimony itself. Credibility, intelligence,

      freedom from bias or prejudice, opportunity to be informed, the disposition

      to tell the truth or otherwise, and the probability or improbability of the

      statements made, are all tests of testimonial value. Where the evidence is

      in conflict, the trier of facts may determine what should be accepted as the

      truth and what should be rejected as false. See Rice v. City of Cleveland,

      114 Ohio St. 299, 58 N.E.2d 768.

161 Ohio St. at 477-478. (Emphasis added).

             A fundamental premise of our criminal trial system is that “the [trier

      of fact] is the lie detector.” United States v. Barnard, 490 F.2d 907, 912

      (9th Cir. 1973) (emphasis added), cert. denied, 416 U.S. 959, 94 S.Ct.

      1976, 40 L.Ed.2d 310 (1974). Determining the weight and credibility of

      witness testimony, therefore, has long been held to be the “part of every

      case [that] belongs to the [trier of fact], who [is] presumed to be fitted for it

      by [his] natural intelligence and their practical knowledge of men and the

      ways of men.” Aetna Life Ins. Co. v. Ward, 140 U.S. 76, 88, 11 S.Ct. 720,

      724-725, 35 L.Ed. 371 (1891).

United States v. Scheffer (1997), 523 U.S. 303, 313, 118 S.Ct. 1261, 1266-1267(1997).

      {¶23} We find that this is not an “‘exceptional case in which the evidence weighs

heavily against the conviction.’” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541,
Delaware County, Case No. 13 CAC 05 0039                                                   12

quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The judge neither lost his way

nor created a miscarriage of justice in convicting Thomas of the charge.

         {¶24} Based upon the foregoing and the entire record in this matter, we find

Thomas’ conviction was not against the sufficiency or the manifest weight of the

evidence. To the contrary, the judge appears to have fairly and impartially decided the

matters before him. The judge as a trier of fact can reach different conclusions

concerning the credibility of the testimony of the officer and Thomas. This court will not

disturb the judge's finding so long as competent evidence was present to support it.

State v. Walker, 55 Ohio St.2d 208, 378 N.E.2d 1049 (1978). The judge heard the

witnesses, evaluated the evidence, and was convinced of Thomas’ guilt.

         {¶25} Finally, upon careful consideration of the record in its entirety, we find that

there is substantial evidence presented which if believed, proves all the elements of the

crime beyond a reasonable doubt.

         {¶26} As Thomas’ conviction was not against the manifest weight or the

sufficiency of the evidence, the trial court correctly overruled Thomas’ motion for a new

trial.
Delaware County, Case No. 13 CAC 05 0039                                            13


      {¶27} Thomas’ first, second and third assignments of error are overruled in their

entirety, and the judgment of the Delaware Municipal Court is affirmed.



By Gwin, P.J.,

Farmer, J., and

Delaney, J., concur
