[Cite as State v. Yeager, 2010-Ohio-3162.]



                              STATE OF OHIO, CARROLL COUNTY

                                   IN THE COURT OF APPEALS

                                         SEVENTH DISTRICT


STATE OF OHIO,                                 )
                                               )      CASE NO.     10 CA 866
        PLAINTIFF-APPELLEE,                    )
                                               )
        - VS. -                                )      OPINION
                                               )
ANN YEAGER,                                    )
                                               )
        DEFENDANT-APPELLANT.                   )


CHARACTER OF PROCEEDINGS:                          Criminal Appeal from Municipal Court,
                                                   Case No. TRD 0901774.


JUDGMENT:                                          Affirmed.


APPEARANCES:
For Plaintiff-Appellee:                            Attorney Donald Burns
                                                   Prosecuting Attorney
                                                   Attorney John Childers
                                                   Assistant Prosecuting Attorney
                                                   11 East Main Street
                                                   Carrollton, Ohio 44615

For Defendant-Appellant:                           Ann Yeager, Pro se
                                                   3546 Steubenville Road, SE
                                                   Amsterdam, Ohio 43903


JUDGES:
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Hon. Mary DeGenaro


                                                   Dated: June 28, 2010
VUKOVICH, P.J.


       ¶{1}   Defendant-appellant Ann Yeager appeals the decision of the Carroll
County Municipal Court finding her guilty of failing to stop at a stop sign in violation of
R.C. 4511.43(A), a minor misdemeanor. In her pro se brief, Yeager argues that the
trial court incorrectly determined that she was required to stop at the stop sign. The
issue at the heart of this appeal is whether R.C. 4511.43(A) gives the driver discretion
to determine whether to stop at a stop sign when no traffic is coming. We answer that
question in the negative. Pursuant to R.C. 4511.43(A), the driver is required to come
to a complete stop and that requirement is not discretionary.            Accordingly, the
judgment of the trial court is hereby affirmed.
                                STATEMENT OF CASE
       ¶{2}   On December 1, 2009, at approximately 5:45 p.m. Yeager was cited for
failing to stop at the stop sign on Bacon Road at the intersection of State Route 43 in
Carroll County, Ohio. Bacon Road runs perpendicular to State Route 43 and the
intersection creates a T. Tr. 14. It is undisputed that there is a valid visible stop sign
on Bacon Road at the intersection. Yeager pled not guilty to the charge and the case
proceeded to trial.
       ¶{3}   At trial, Patrolman Robert Grubb, the citing officer, testified that Yeager
did not stop at the stop sign at that intersection, but proceeded to turn right onto State
Route 43 going about 10 miles per hour through the stop sign. Tr. 6-7. Yeager
admitted that she did not stop at the stop sign and further added that she never stops
at that stop sign when there is no traffic present. Tr. 25-26.
       ¶{4}   Her argument at trial as to why she should not be found guilty was that
she exercised due care in turning right without stopping. She contended that Ohio
Revised Code Chapter 4511 allows drivers to exercise their discretion. Additionally,
she argued that one is permitted to turn right on red at a traffic signal and that law
should equally apply to stop signs:
       ¶{5}   “A. [Yeager] I’m not saying that Ann Yeager in particular I’m saying that
the total premise of the code forty five (45) is to exercise due care that uh the stop sign
is not about one particular person when you see that you have oncoming, no
oncoming traffic and there is premise [sic] that you can turn right on red at an
electronic signal with traffic coming as long as you exercise due care. These are
things that are reasonable and ordinary and a prudent man would consider. When you
can see a half mile out and see that there’s no approaching traffic in your lane to turn
right should be permitted and that that is just a guide to intersecting traffic and I’m
seeing that across the board and the premise of not only court rulings but in the total
code.” Tr. 28.
       ¶{6}   After hearing both the state’s and Yeager’s arguments, the court found
Yeager guilty of the offense with which she was charged.            It noted that R.C.
4511.43(A) uses the word shall and does not permit driver discretion to determine
whether to stop at a stop sign. Tr. 34; 12/31/09 J.E. Yeager was then fined $50 plus
court costs. Tr. 35; 12/31/09 J.E.     Yeager requested that the fine be suspended
pending appeal. The trial court granted the request. 01/21/10 J.E. Yeager timely
appealed the trial court’s decision.
                 ASSIGNMENTS OF ERROR ONE THROUGH SEVEN
       ¶{7}   “1. FAILURE TO CONSIDER – SCOPE OF EXISTING DECISIONS –
RELIEVING DUTY TO COMPLY – REASING QUESTION OF STRICT SCRUTINY’S
PROPER APPLICATION. SCOPE INCLUDES: COURT DECISIONS; LEGISLATIVE
INTENT AND PREMISE; OBJECT OF LAW; AND CIRCUMSTANCES OF: APPLIED
REASONABILITY;          APPLIED        PRUDENT        BEHAVIOR         (DISCRETION);
OBSERVATION; NO ONE THREATENED/ENDANGERED. (RECORD, PP 15-18; 26-
28; 34)
       ¶{8}   “2. FAILURE TO CONSIDER – DUE CARE – AS INHERENT WITHIN
(TRAFFIC CODE) DIVISION; APPLIED, THEREFORE, APPLIED TO SPECIFIC
SECTION (4511.43A), EVEN THOUGH NOT SPECIFICALLY STATED ON ITS FACE.
(RECORD: P 16)
       ¶{9}   “3. FAILURE TO CONSIDER – IMPLIED ELEMENT OF DISCRETION –
AS INHERENT WITHIN (TRAFFIC CODE) DIVISION; APPLIED, THEREFORE, TO
SPECIFIC SECTION (4511.43A), EVEN THOUGH NOT STATED ON ITS FACE.
(RECORD: P 34)
       ¶{10} “4. PREJUDICIAL ERROR – TO RIGHT OF DEFENDANT/APPELLANT
– TO CROSS-EXAMINE STATE’S WITNESS, WITH QUESTIONS REGARDING HIS
EXPERT-AND-REASONABLE OPINION, AND OBSERVATION. (RECORD: P 11; 15)
       ¶{11} “5. PREJUDICIAL ERROR – TO ALLOW PROSECUTION’S OPINION
TO RULE – IN STEAD [SIC] OF THE JUDGMENT OF THE COURT. (RECORD P 16)
       ¶{12} “6.      ERROR IN JUDICIAL DISCRETION – TO RETAIN HIS
IMPARTIALITY – AS SOLE MEMBER OF THE JURY. (THE EASE OF WHICH THE
TRIER-OF-FACT        SOLICITS     PROSECUTION’S          OPINION     (P    16)   –   RAISES
QUESTIONS       OF    PREEMPTORY          CHALLENGE:           DOES       TRIER-OF-FACT’S
ASSOCIATION WITH THE SMALL AND INTIMATE MEMBER-SETTING OF THE
CARROLL COUNTY BAR ASSOCIATION – UNDULY INFLUENCE HIS ABILITY TO
REMAIN IMPARTIAL – TO DECIDE IN FAVOR OF DEFENDANT/APPELLANT? IS IT
A NATURAL REACTION FOR TRIER-OF-FACT TO SOLICIT AMONG HIS PEERS,
EVEN WHEN THEY APPEAR IN FRONT OF THE TRIER-OF-FACT’S COURT?)
(RECORD: P 16)
       ¶{13} “7. FAILURE TO ADMIT EVIDENCE.”
       ¶{14} When looking at the arguments as they are laid out, the complained of
error at the heart of this appeal is that the trial court failed to consider that appellant
acted with due care. Yeager contends that R.C. 4511.43(A) allows her to not stop at a
stop sign if she acted with due care and thus, since in her opinion she exercised due
care, she cannot be guilty of R.C. 4511.43(A). The state on the other hand contends
that R.C. 4511.43(A) does not give the driver any discretion in stopping at a stop sign.
       ¶{15} The argument presented requires this court to examine the language of
R.C. 4511.43(A) and determine whether it permits driver discretion in stopping at a
stop sign. Consequently, since we are interpreting a statute, the standard of review
utilized by this court on appeal is de novo. State v. Best, 7th Dist. No. 04MA203,
2005-Ohio-4375, ¶34. The de novo standard of review means we review the statute
without any deference to the trial court’s interpretation of that statute. Id.
       ¶{16} That said, we note that Yeager discusses at length another legal
standard of review, abuse of discretion, and requests that this court change the term to
“Failure to Consider.” Under an abuse of discretion standard of review deference is
given to the trial court’s decision and that decision will not be reversed unless the
judgment is arbitrary, unreasonable or unconscionable.           Blakemore v. Blakemore
(1983), 5 Ohio St.3d 217, 219. However, as stated above, we are giving no deference
to the trial court’s interpretation of the statute and are reviewing under a de novo
standard of review.    Thus, Yeager’s arguments regarding the abuse of discretion
standard of review are not addressed because that is not the standard of review we
are employing.
       ¶{17} Having set forth the applicable standard of review, we now turn to R.C.
4511.43(A) and its requirements. It reads as follows:
       ¶{18} “(A) Except when directed to proceed by a law enforcement officer, every
driver of a vehicle or trackless trolley approaching a stop sign shall stop at a clearly
marked stop line, but if none, before entering the crosswalk on the near side of the
intersection, or, if none, then at the point nearest the intersecting roadway where the
driver has a view of approaching traffic on the intersecting roadway before entering it.
After having stopped, the driver shall yield the right-of-way to any vehicle in the
intersection or approaching on another roadway so closely as to constitute an
immediate hazard during the time the driver is moving across or within the intersection
or junction of roadways.”
       ¶{19} In reviewing a city ordinance’s requirement to stop at a stop sign, the
Ohio Supreme Court has held that requirement “is specific and mandatory.” Kettering
v. Greene (1966), 9 Ohio St.2d 26. That case dealt with failing brakes and the Court
concluded that failing brakes was not a legal excuse for failing to stop.      The city
ordinance in question in Kettering used the words “shall stop” just like the statute at
issue in our case. Consequently, based on the Supreme Court’s decision alone it can
be determined that the requirement to stop is mandatory and that there is no driver
discretion in determining whether to stop at a valid visible stop sign.
       ¶{20} But our analysis does not need to stop at that point, even without the
Supreme Court’s decision, it is clear when looking at the statutory language of R.C.
4511.43, stopping at a stop sign is mandatory, not discretionary.
       ¶{21} In looking at the language of R.C. 4511.43(A) it is observed that the
general assembly used the words shall stop.
       ¶{22} Under the statutory rules of construction, the word shall is usually
interpreted in its ordinary usage; the use of the word shall makes the provision in
which it is used mandatory, especially when used frequently. Bergman v. Monarch
Constr. Co., 124 Ohio St.3d 534, 2010-Ohio-622, ¶16, citing Dorrian v. Scioto
Conservancy Dist. (1971), 27 Ohio St.2d 102, 107. However, there are instances
where the word shall may be construed as permissive rather than mandatory. Dorrian,
27 Ohio St.2d 102, paragraph one of the syllabus. Such construction can only occur
when there is “a clear and unequivocal legislative intent” that the word shall is to
receive a construction other than its ordinary usage. Id.
       ¶{23} In reviewing R.C. 4511.43 as a whole, we find that there is no clear and
unequivocal legislative intent that the use of the word shall is meant to be permissive
rather than mandatory. Section A, quoted above, permits some driver discretion in
determining where to stop when there is no stop line or a crosswalk.            That said,
nothing in section A indicates that discretion also applies to the mandate of stopping at
the stop sign. Likewise, section B also indicates that the word shall is mandatory. This
section provides what is required of a driver at a yield sign:
       ¶{24} “The driver of a vehicle or trackless trolley approaching a yield sign shall
slow down to a speed reasonable for the existing conditions and, if required for safety
to stop, shall stop at a clearly marked stop line, but if none, before entering the
crosswalk on the near side of the intersection, or, if none, then at the point nearest the
intersecting roadway where the driver has a view of approaching traffic on the
intersecting roadway before entering it. After slowing or stopping, the driver shall yield
the right-of-way to any vehicle or trackless trolley in the intersection or approaching on
another roadway so closely as to constitute an immediate hazard during the time the
driver is moving across or within the intersection or junction of roadways. Whenever a
driver is involved in a collision with a vehicle or trackless trolley in the intersection or
junction of roadways, after driving past a yield sign without stopping, the collision shall
be prima-facie evidence of the driver's failure to yield the right-of-way.”
       ¶{25} This section provides no driver discretion in slowing down as he or she
approaches the yield sign or in stopping if safety requires. However, it does provide
driver discretion in what is a reasonable speed to slow down to and whether safety
requires stopping.
       ¶{26} Consequently, considering both sections of R.C. 4511.13, we must
conclude that the general assembly, in designating certain actions discretionary and
certain actions mandatory, knew what it was doing. If the “shall stop” in section A is
interpreted as permissive rather than mandatory, a stop sign would be equivalent to a
yield sign and thus, there would be no need for the legislature to define what is
required for each sign. In fact, there would be no need to have a yield sign at all.
Hence, in order to give each section of R.C. 4511.43 a meaning, the word shall must
be construed as mandatory.
       ¶{27} Additionally, in support of the position that R.C. 4511.43 mandates a
vehicle to stop at a stop sign, the Ohio Manual of Uniform Traffic Control Devices
(OMUTCD) states, “When a sign is used to indicate that traffic is always required to
stop, a STOP sign shall be used.” Section 2B.04 of OMUTCD (Emphasis added).
While the OMUTRD is not law, R.C. 4511.09 requires the Ohio Department of
Transportation to adopt such a manual for signs and control devices used in Ohio.
Thus, OMUTCD’s indication that traffic is always required to stop at a stop sign is
persuasive authority that it is not within the driver’s discretion to determine whether to
stop at a stop sign.
       ¶{28} Despite the clear language of the statute, Yeager additionally argues that
R.C. Chapter 4511 in general permits a driver to use due care and driver discretion.
She cites to some statutes under R.C. Chapter 4511 that permit driver discretion.
Yeager is correct that some statutes in R.C. Chapter 4511 give the driver discretion.
For instance, R.C. 4511.34 provides that a driver shall not follow “more closely than is
reasonable and prudent, having due regard for the speed of such vehicle * * *, and the
traffic upon and the condition of the highway.” This statute clearly provides for driver
discretion to act as a reasonable person. The statute at hand when mandating to stop
at a stop sign does not include this type of language, rather it uses the mandatory
word shall. This shows us that the legislature knows how to dictate what is within a
driver’s discretion and what is not. Thus, the fact that some statutes do give driver
discretion does not indicate that all statutes in this Chapter give the driver discretion.
       ¶{29} Yeager also makes an argument that a person can turn right on red with
traffic coming as long as due care is exercised. It appears she is arguing that since a
driver has the discretion to act that way at a red light, the same should apply to a stop
sign. Her argument lacks merit. As the trial court noted, arguments about what can
be done at a signal are not analogous to what is permitted at a sign. While some
statutes apply to stop signs and signals, others clearly only apply to one or the other.
For instance, R.C. 4511.13 through R.C. 4511.15 clearly addresses signals only.
       ¶{30} However, even if it is analogous, the ability to turn right on red does not
help Yeager’s argument. The only way that the analogy of turning right on red could
support her argument that she does not have to stop at the stop sign before turning
right when no traffic is coming, would be if there is no requirement to stop prior to
turning right on red. R.C. 4511.13(C)(2) clearly indicates that when a driver is facing a
steady red light, the driver may cautiously turn right on red after stopping. There is
no discretion in the statute for the driver to stop at the continuous red light, it is
mandatory. The only discretion the driver has in turning right on red is after the stop to
cautiously turn right. Consequently, if turning right on red is analogous to turning right
at a stop, it does not support Yeager’s position. Rather, it supports the conclusion that
there is no discretion in whether to stop at a stop sign.
       ¶{31} In addition to the above arguments, Yeager’s brief also contains an
argument about evidence that she wished to be admitted at trial to show that she
acted with due care in not stopping at the stop sign. The evidence was a map that
showed the point where she could see that there was no traffic on State Route 43, the
road onto which she was turning. This evidence was not relevant because, as stated
above, there is no discretion for a driver to determine that since no traffic is coming he
or she does not have to stop at a stop sign.1
       ¶{32} Lastly, Yeager cites many cases in her brief that she contends support
her position.    Most of those cases are out of state cases.               Even if these cases
specifically held that a driver has discretion to not stop at a stop sign, they do not
provide binding authority for this court and do not indicate that the Ohio Supreme
Court’s Kettering case is inapplicable. Furthermore, the one court case that Yeager
cites from our district, State v. Drogi (1994), 96 Ohio App.3d 466, does not provide a
basis for reversal for two reasons. First, Drogi is a DUI case and dealt with whether
the officer had a reasonable and articulable suspicion to stop Drogi. The case at hand
is not a DUI case and does not deal with whether the stop was warranted.2 Thus, it is
not relevant to the determination of whether R.C. 4511.43(A) allows for driver
discretion in stopping at a stop sign. Second, even if it was relevant, Drogi is no


       1
         There were photographs admitted into evidence which could show almost the equivalent of the
map. It showed the sight lines from Bacon Road onto State Route 43.
        2
         Yeager was stopped for violating a statute, which permits the stop.
longer good law. This court overruled the Drogi holding in State v. Hodge, 147 Ohio
App.3d 550, 2002-Ohio-3053.
      ¶{33} In conclusion, R.C. 4511.43(A) does not grant drivers the discretion to
not stop at a stop sign when turning right when there is no oncoming traffic. That
conclusion renders all other arguments asserted in the pages and pages of argument
in her brief moot and, thus, we will not address them.     The trial court correctly
determined that Yeager was guilty of the offense.
      ¶{34} For the foregoing reasons, the judgment of the trial court is hereby
affirmed.

Waite, J., concurs.
DeGenaro, J., concurs.
