[Cite as State v. Wheaton, 2018-Ohio-1648.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                      :
                                                    :
         Plaintiff-Appellee                         :   Appellate Case No. 27615
                                                    :
 v.                                                 :   Trial Court Case No. 2017-TRD-961
                                                    :
 DASHAWNDA WHEATON                                  :   (Criminal Appeal from
                                                    :   Municipal Court)
         Defendant-Appellant                        :
                                                    :

                                               ...........

                                              OPINION

                             Rendered on the 27th day of April, 2018.

                                               ...........

TROY B. DANIELS, Atty. Reg. No. 0084957, Assistant Prosecuting Attorney, City of
Dayton, 335 West Third Street, Room 372, Dayton, Ohio 45402
      Attorney for Plaintiff-Appellee

THADDEUS HOFFMEISTER, Atty. Reg. No. 0081977, 300 College Park Drive, Dayton,
Ohio 45469
      Attorney for Defendant-Appellant

                                              .............




WELBAUM, P.J.
                                                                                         -2-




         {¶ 1} This case is before us on the appeal of Defendant-Appellant, Dashawnda

Wheaton, from her convictions and sentences on charges of Operating a Motor Vehicle

Without a Valid License, Leaving the Scene of an Accident, and Failure to Control.

         {¶ 2} According to Wheaton, the trial court should have granted her motion for

acquittal because the State did not prove that she failed to maintain reasonable control

over her vehicle. Wheaton further contends that the conviction for failing to maintain

reasonable control was against the manifest weight of the evidence because a trier of fact

would have to suspend a belief in basic physics to conclude that the accident occurred

as the State claimed. In addition, Wheaton argues that the trial court failed to properly

examine witness credibility. Finally, Wheaton maintains that the State did not prove that

she failed to furnish necessary information before leaving the scene of the accident.1

         {¶ 3} For the reasons discussed below, we conclude that Wheaton’s convictions

are supported by sufficient evidence and are not against the manifest weight of the

evidence. Accordingly, the judgment of the trial court will be affirmed.



                               I. Facts and Course of Proceedings

         {¶ 4} On December 27, 2016, Wheaton was driving a black Chevrolet Impala home

from the grocery store when she became involved in an accident. The Impala belonged

to another person and Wheaton did not have a drivers’ license.           After the accident

occurred, Wheaton provided some information to the other driver, but left the scene

before the police arrived. She did so because she was afraid she would be arrested for


1   Wheaton is not challenging her conviction for driving without a license.
                                                                                       -3-


driving without a license.

       {¶ 5} The Impala had a temporary tag, but the last number was missing.

Ultimately, a police detective was able to trace the vehicle by using different databases,

and ordered the vehicle’s owner to come in for questioning. The owner then notified

Wheaton, who called the detective and came in to see him. Wheaton did not dispute

that she had been driving without a license, but contended that she was not at fault for

the accident. At the meeting, the detective cited Wheaton for Operating a Motor Vehicle

Without a Valid License in violation of R.C. 4510.12; Driving a Vehicle While Under F.R.A.

Suspension, in violation of R.C. 4510.16; Failure to Control, in violation of Dayton Code

of Ordinances (“D.C.O.”) 71.1802; and Hit Skip, in violation of R.C. 4549.02.

       {¶ 6} A bench trial occurred on March 28, 2017, after which the court found

Wheaton guilty of all offenses other than the charge involving the F.R.A. suspension,

which the State had dismissed prior to trial. The court then sentenced Wheaton to 180

days and a $250 fine for the Hit Skip, with the entire sentence and fine suspended; a

class five license suspension, fifty hours of community service, one year of non-reporting

community control; $150 for the Failure to Control, with the fine suspended, and 180 days

in jail and a $250 fine for Operating a Motor Vehicle Without a Valid License, with both

the jail time and the fine suspended. Wheaton timely appealed from the trial court’s

decision.



                             II. Sufficiency and Weight of the Evidence

       {¶ 7} Wheaton’s first two assignments of error are interrelated and will be

considered together. These assignments of error are as follows:
                                                                                        -4-


              The Trial Court Wrongfully Denied Appellant’s Rule 29 Motion for

       Acquittal Because the Evidence Provided by the State Was Insufficient to

       Prove the Appellant Did Not Maintain Reasonable Control of Her Vehicle,

       and;

       The Guilty Verdict Was Against the Manifest Weight of the Evidence.

       {¶ 8} Under these assignments of error, Wheaton contends that the trial court

should have granted her motion for acquittal because the State did not prove that she

failed to maintain reasonable control over her vehicle. She further contends that the

conviction for failing to maintain reasonable control was against the manifest weight of

the evidence because the trier of fact would have had to suspend a belief in basic physics

to conclude that the accident occurred as the State claimed.          In addition, Wheaton

argues that the trial court failed to properly examine witness credibility.

       {¶ 9} “A sufficiency of the evidence argument disputes whether the State has

presented adequate evidence on each element of the offense to allow the case to go to

the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery

No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 678

N.E.2d 541 (1997). In such situations, we apply the test from State v. Jenks, 61 Ohio

St.3d 259, 574 N.E.2d 492 (1991), which states that:

       An 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
                                                                                         -5-


       favorable to the prosecution, any rational trier of fact could have found the

       essential elements of the crime proven beyond a reasonable doubt.

(Citation omitted). Id. at paragraph two of the syllabus.

       {¶ 10} In contrast, “[a] weight of the evidence argument challenges the believability

of the evidence and asks which of the competing inferences suggested by the evidence

is more believable or persuasive.” (Citation omitted.) Wilson at ¶ 12. In this situation,

a court reviews “ ‘the entire record, 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. The discretionary power

to grant a new trial should be exercised only in the exceptional case in which the evidence

weighs heavily against the conviction.’ ” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d

541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

Accord State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 193.

“The fact that the evidence is subject to different interpretations does not render the

conviction against the manifest weight of the evidence.” State v. Adams, 2d Dist. Greene

Nos. 2013-CA-61, 2013-CA-62, 2014-Ohio-3432, ¶ 24, citing Wilson at ¶ 14.

       {¶ 11} “Although sufficiency and manifest weight are different legal concepts,

manifest weight may subsume sufficiency in conducting the analysis; that is, a finding that

a conviction is supported by the manifest weight of the evidence necessarily includes a

finding of sufficiency.” (Citations omitted.) State v. McCrary, 10th Dist. Franklin No.

10AP-881, 2011-Ohio-3161, ¶ 11. Accord State v. Winbush, 2017-Ohio-696, 85 N.E.3d

501, ¶ 58 (2d Dist.). As a result, “a determination that a conviction is supported by the
                                                                                           -6-


weight of the evidence will also be dispositive of the issue of sufficiency.” (Citations

omitted.) State v. Braxton, 10th Dist. Franklin No. 04AP-725, 2005-Ohio-2198, ¶ 15.

      {¶ 12} Furthermore, “[b]ecause the factfinder * * * has the opportunity to see and

hear the witnesses, the cautious exercise of the discretionary power of a court of appeals

to find that a judgment is against the manifest weight of the evidence requires that

substantial deference be extended to the factfinder's determinations of credibility. The

decision whether, and to what extent, to credit the testimony of particular witnesses is

within the peculiar competence of the factfinder, who has seen and heard the witness.”

State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997).

      {¶ 13} As was noted, Wheaton was charged with having violated D.C.O. 71.1802,

which provides that:

             No person shall operate a motor vehicle, trackless trolley, or

      streetcar on any street, highway, or property open to the public for vehicular

      traffic without being in reasonable control of the vehicle, trolley, or streetcar.

      {¶ 14} The language of this ordinance is essentially the same as R.C. 4511.202(A)

(“Operation without reasonable control”). “Reasonable control” is “ ‘the care or control

that a cautious person would use under the same or similar circumstances.’ ” State v.

Stankus, 2d Dist. Montgomery No. CA 11633, 1990 WL 102375, *3 (July 26, 1990),

quoting State v. Wisecup, 2d Dist. Montgomery No. 11400, 1989 WL 101143, *2 (Aug.

31, 1989). See also State Farm Mut. Auto. Ins. Co. v. Nanavati, 11th Dist. Portage No.

99-P-0043, 2001 WL 20548, *6. (Citation omitted.)

      {¶ 15} At trial, the State presented the testimony of the driver of the second vehicle

involved in the accident, as well as three witnesses who were in that vehicle. According
                                                                                       -7-


to the State’s evidence, the driver of the second vehicle was Willie Peavy, who was

employed by the Montgomery County Juvenile Court as an E.R.C. specialist/probation

officer. On December 27, 2016, Peavy and three other probation officers (Tawanda

Thompson, India Byers, and Joyous Johnson), were conducting home visits to

probationers, and were using a white van that belonged to Montgomery County.

       {¶ 16} Around mid-day, Peavy drove the van to Parkhill Drive in Dayton, Ohio, and

parked on the street near a curve. He stated that he was not parked near an intersection,

and that the van was not far from the edge of the curb. The street was narrow and a

number of cars were parked on the street. After the van was parked, two officers went

into a house to do a home visit, and the others waited in the van. According to the

testimony, only two probation officers will conduct home visits at a time, because having

all four officers involved would be threatening.

       {¶ 17} After the home visit was completed, Peavy and the others were sitting in the

van, with the car in park. The testimony was conflicting concerning whether the van was

running. Peavy indicated the engine was running, while others either could not recall or

said the engine was turned on after the accident occurred.

       {¶ 18} Peavy stated that he was taking notes, writing down what the parents had

said about the child. At that point, a black Impala sideswiped the front bumper of the van

on the driver’s side.

       {¶ 19} Thompson was sitting in the first passenger row behind the front seat. She

was emailing another probation officer and testified that the van was not moving at the

time of the accident. Thompson felt the impact, looked up, and saw a black Chevy

Impala moving down the street. Byers was sitting in the third row of the van, on the
                                                                                       -8-


driver’s side. She stated that the van was parked and was not moving because they had

just gotten into the van.   Byers was on her phone and did not see the collision.

However, she felt the impact.

      {¶ 20} Johnson was sitting in the front passenger seat of the van. She stated that

when the accident occurred, the employees had finished up what they had to do at the

location and were just getting back in the van. Like the others, Johnson said the van

was parked. She did not really feel the impact, but heard it.

      {¶ 21} The driver of the black Impala (later identified as Wheaton) stopped her car

a little bit farther away from the van and got out. Peavy pulled the van up to where

Wheaton’s car was, and the four employees got out of the van. Peavy observed damage

to the side of the front bumper of the van; the damage was on the driver’s side and was

basically a scrape. According to Peavy, the back of the Impala’s bumper was scraped.

Peavy denied ever telling the police that the damage was to the front of the Impala.

      {¶ 22} After everyone got out of their cars, Wheaton said she did not have a license

or insurance and was leaving.       While Peavy was on the phone to his supervisor,

Wheaton gave a name and address to Thompson. Both Peavy and Thompson could not

recall the name that Wheaton provided, but they both stated that the name she gave was

not Dashawnda Wheaton.          Thompson indicated that she knew the name was not

“Dashawnda” because that name was close to her own name and she would have

remembered it.

      {¶ 23} Wheaton stayed at the scene for between three and fifteen minutes (the

estimates of the witnesses varied), and then left, even though the employees told her it

was a crime to leave the scene of an accident. Wheaton was not there when the police
                                                                                         -9-


arrived to investigate.

           {¶ 24} The State also presented the testimony of a detective and a police officer

with the Dayton Police Department. Officer Hammond arrived at the accident scene

around 2:30 p.m., and observed a large white van with several occupants. The driver of

the other car was not there, and the occupants of the van gave her a temporary tag

number from the Impala. Hammond included the number on her report, as well as where

the occupants of the van thought the damage to the Impala was. As recorded on one

police report, the damage to the Impala was located on the right front side.

           {¶ 25} Detective Brown received a hit and run crash report for an accident on

Parkhill Drive, and attempted to find the driver and owner of the vehicle. A supplemental

report provided a temporary plate number, with the last number missing, and a description

of the car. There was no owner information. After looking at different databases, Brown

located a black Impala registered to Jacquita Clemons. Brown then sent Clemons an

order and notification to come in and talk to him. Subsequently, Brown received a call

from Clemons, who said she was not driving the car at the time and had lent the car to

Dashawnda Wheaton. Wheaton then came in to speak with Brown on January 29, 2017.

Wheaton told Brown that the van had pulled out in front of her. She said she did not stay

at the scene because she did not have a driver’s license and thought she would be going

to jail.

           {¶ 26} Based on the information he had, Brown issued citations to Wheaton for

failure to exercise reasonable control, hit and run, and some license violations. He noted

that Wheaton had showed him some pictures that showed damage to the rear of the

Impala. What Brown believed was the final version of the police report showed damage
                                                                                       -10-

to the right rear side of the Impala. See Defendant’s Ex. 3. Brown indicated that police

reports are typically updated or supplemented during an investigation.

      {¶ 27} After the State rested, Wheaton moved for acquittal under Crim.R. 29 on

two grounds: (1) the State failed to prove that information was not exchanged at the

scene; and (2) the witness statements indicating that Wheaton caused the accident were

not credible because the damage was done to the rear of the Impala, not the front. The

trial court overruled the motion, and Wheaton then testified.       She also presented

testimony from her stepdaughter, B.D.

      {¶ 28} Wheaton admitted that she was driving without a license. She stated that

on the day of the accident, she had borrowed her daughter, Jacquinta’s, car, and had

gone to a phone store and a grocery store. The occupants of her car consisted of B.D.,

two of Wheaton’s own children, and a family friend.

      {¶ 29} After leaving the grocery store, Wheaton drove down Prescott Avenue,

stopped at a stop sign, and turned left on Parkhill Drive. Wheaton stated that as she

turned left onto Parkhill from Prescott, she was hit on the back of her car. All she heard

was a boom, and she stopped.       When she got out of the car, a white van came up

behind her. According to Wheaton, she talked to all the occupants of the van, and gave

them her real name, address, and phone number. One of the women in the van had a

clipboard and wrote down the name, address, and phone number.

      {¶ 30} Wheaton stated that she left the scene after Peavy had called both his boss

and the police, because she did not want to go to jail. She believed that Peavy had given

her information to the police. After Jacquinta sent her a picture of a piece of paper that

mentioned a hit and run, Wheaton called the police and told Detective Brown what had
                                                                                      -11-


happened. She did not show Brown pictures when she met with him. However, when

she got home, she emailed Brown photos showing the damage to the Impala.

(Defendant’s Exs. 4 and 5).

       {¶ 31} The citations were filed in Dayton Municipal Court on February 1, 2017. At

the end of February or the beginning of March 2017, Wheaton took pictures of the entire

vehicle. These pictures (Defendant’s Ex. 6-10) showed no damage to the front of the

Impala. Wheaton said the Impala had been sitting in her garage since December 27,

2016, and had not been driven because it needed tags. She did admit pulling the car

out of the garage to take the pictures.

       {¶ 32} As was noted, Wheaton denied losing reasonable control of the Impala; she

stated that the van hit her as she was turning onto Parkhill Drive. She also said she was

not guilty of the hit and run charge because she provided her real name and address.

She admitted not furnishing the address of the owner of the car.

       {¶ 33} Wheaton’s witness, B.D., was seventeen years old and was sitting in the

back seat of the car, behind the driver’s seat. B.D. did not see the accident, as she was

looking down at her sister’s new phone and was not paying attention. She heard a big

boom when they got hit, and looked up. That is when she saw the van. B.D. testified

that the van was parked along Parkhill Drive and was not moving at the time of the

accident. Transcript of Proceedings, p. 137-138. Later, B.D. stated that the van must

have hit them because the Impala had the right of way. B.D. also testified that Wheaton

had driven her to court on the day of trial.

       {¶ 34} As was noted, after hearing the evidence, the trial court found Wheaton

guilty of the three remaining charges and sentenced her accordingly.
                                                                                          -12-


       {¶ 35} After reviewing the record, we find that the judgment is not against the

weight of the evidence. While Wheaton denied being at fault, even her own witness

indicated that the van was parked and was not moving at the time of the accident. As

noted, we are mindful that the trier of facts is in the best position to judge credibility.

Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684, at *4. Furthermore, ample

testimony supported the trial court’s decision.

       {¶ 36} We also disagree with Wheaton’s assertion that the State’s account of the

accident defies the laws of physics. As a preliminary point, Wheaton did not submit

expert testimony. In addition, the pictures Wheaton submitted show scratches along the

rear passenger side of the car, just behind the right rear wheel. There was no indication

at trial that a “side-swipe” by a vehicle is only consistent with damage to the vehicle’s

front, rather than its rear, side.

       {¶ 37} According to Wheaton, for the damage to occur, she would have had to

drive at such a speed as to cause the rear of her car to drift into the front of the van as

her car turned. However, this scenario requires that one accept two points that were

controverted: (1) that the van was moving and was not parked; and (2) that the accident

occurred very close to the intersection of Prescott and Parkhill, while Wheaton was

turning left. However, Peavy testified that the van was not parked near the intersection.

In addition, all the witnesses, other than Wheaton, testified that the van was parked and

was not moving at the time of the accident. It is impossible for a parked car to hit another

car, and the trial court did not err in concluding that Wheaton failed to exercise “ ‘the care

or control that a cautious person would use under the same or similar circumstances.’ ”

Stankus, 2d Dist. Montgomery No. CA 11633, 1990 WL 102375, at *3.
                                                                                         -13-


       {¶ 38} Even if we eliminated the testimony of Wheaton’s own witness, who

contradicted herself, there were still four witnesses who testified that the van was parked

when it was hit.      Wheaton suggests that these witnesses were not telling the truth

because Peavy needed a valid driver’s license and a good driving record for his job. At

best, this might provide a reason for Peavy to be less than candid; it would not be a reason

for the other witnesses to commit perjury.

       {¶ 39} Moreover, the trial court had reason to doubt Wheaton’s credibility.

Wheaton left the scene of an accident without disclosing her real name and address, and,

while she was being tried for driving without a license, actually drove herself and a witness

to court the day of trial. While Wheaton contends that she did provide her real name, the

State’s witnesses indicated otherwise. Again, the trial court was in the best position to

assess credibility.

       {¶ 40} Because the conviction for Wheaton’s failure to reasonably control her

vehicle was not against the manifest weight of the evidence, it was also not based on

insufficient evidence.    The trial court, therefore, did not err in overruling Wheaton’s

Crim.R. 29 motion for acquittal or in convicting Wheaton of Failure to Control.

       {¶ 41} Based on the preceding discussion, the First and Second Assignments of

Error are overruled.



                                 III. Stopping After the Accident

       {¶ 42} Wheaton’s Third Assignment of Error states that:

              The State Did Not Sufficiently Prove That Appellant Failed to Provide

       the Necessary Information Before Leaving the Scene of the Accident.
                                                                                       -14-


      {¶ 43} According to Wheaton, the State failed to prove a violation of R.C. 4549.02

because she furnished sufficient information at the scene of the accident. In this regard,

Wheaton makes two points: (1) she provided her name and address at the scene; and (2)

she gave the information to probation officers, who should be equated with police officers

for purposes of R.C. 4549.02.

      {¶ 44} R.C. 4549.02(A)(1) provides that:

             In the case of a motor vehicle accident or collision with persons or

      property on a public road or highway, the operator of the motor vehicle,

      having knowledge of the accident or collision, immediately shall stop the

      operator's motor vehicle at the scene of the accident or collision. The

      operator shall remain at the scene of the accident or collision until the

      operator has given the operator's name and address and, if the operator is

      not the owner, the name and address of the owner of that motor vehicle,

      together with the registered number of that motor vehicle, to all of the

      following:

             (a) Any person injured in the accident or collision;

             (b) The operator, occupant, owner, or attendant of any motor vehicle

             damaged in the accident or collision;

             (c) The police officer at the scene of the accident or collision.

      {¶ 45} As we observed, “[a] sufficiency of the evidence argument disputes whether

the State has presented adequate evidence on each element of the offense to allow the

case to go to the jury or sustain the verdict as a matter of law.” (Citation omitted.)

Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, at ¶ 10. The pertinent inquiry
                                                                                          -15-


in deciding sufficiency 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.” Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492,

at paragraph two of the syllabus.

       {¶ 46} As indicated, R.C. 4549.02(A) requires identifying information to be given

to both the operator of a motor vehicle damaged in an accident and to the police.

Contrary to the statute, Wheaton gave information only to the operator of the van, not to

the police. Wheaton contends, however, that probation officers are considered “police”

under R.C. 2301.27(A)(1)(c), and that providing information to these officers at the scene

satisfied the requirements of R.C. 4549.02(A)(1)(c).

       {¶ 47} R.C. 2301.27 governs the establishment of county departments of

probation, and states, among other things, in subsection (A)(1)(c), that “[p]robation

officers have all the powers of regular police officers and shall perform any duties that are

designated by the judge or judges of the court.” Wheaton reasons that because she

provided information to persons who are considered police officers that the purpose

behind the notification provisions of R.C. 4549.02(A) was satisfied.         However, this

argument has been waived because Wheaton failed to present it to the trial court. See,

e.g., State v. Goss, 2d Dist. Montgomery No. 21162, 2006-Ohio-836, ¶ 9 (arguments not

presented to trial court are waived.)

       {¶ 48} Even if such an argument had been presented, it would be irrelevant,

because Wheaton failed to provide the information required by R.C. 4549.02(A). Under

the statute, if the operator of a vehicle involved in an accident is not the owner, the

operator must furnish “the name and address of the owner of that motor vehicle, together
                                                                                      -16-


with the registered number of that motor vehicle * * *.”      Even if one assumes that

Wheaton provided her own name and address (which was disputed), she failed to provide

the name and address of the owner of the Impala. Clearly, Wheaton knew the identity

of the owner, as she testified that the car belonged to her daughter.

       {¶ 49} R.C. 4549.02 is designed to give law enforcement officials sufficient

information to conduct investigations. State v. Bowman, 10th Dist. Franklin No. 01AP-

514, 2001 WL 1548796, *3 (Dec. 6, 2001). The statute makes no exception for providing

partial information. The need for complete information is illustrated by the facts of the

present case, since Detective Brown had to search various databases to discover the

owner of the car. In addition, even though Wheaton allegedly left her name and address

at the scene, the police were unaware of her identify until she contacted Brown at her

daughter’s request.

       {¶ 50} Accordingly, the State presented sufficient proof to convict Wheaton of a

violation of R.C. 4549.02(A).     Wheaton’s Third Assignment of Error, therefore, is

overruled.



                                        IV. Conclusion

       {¶ 51} All of Wheaton’s assignments of error having been overruled, the judgment

of the trial court is affirmed.




                                     .............
                                     -17-




FROELICH, J. and HALL, J., concur.



Copies mailed to:

Troy B. Daniels
Thaddeus Hoffmeister
Hon. Deirdre E. Logan
