[Cite as State v. Stout, 2017-Ohio-8258.]




                               IN THE COURT OF APPEALS OF OHIO
                                  FOURTH APPELLATE DISTRICT
                                       ATHENS COUNTY

STATE OF OHIO,                                   :
CITY OF ATHENS,                                  :
                                                 :
        Plaintiff-Appellee,                      :     Case No. 16CA24
                                                 :
v.                                               :
                                                 :     DECISION AND
CRAIG STOUT,                                     :     JUDGMENT ENTRY
                                                 :
        Defendant-Appellant.                     :     RELEASED 10/16/2017


                                            APPEARANCES:

Ralph C. Buss, Painesville, Ohio for Appellant

Lisa A. Eliason, Athens City Law Director, and Jessica L. Branner, Athens City Prosecutor,
Athens, Ohio for Appellee.


Hoover, J.

        {¶ 1} Defendant-appellant Craig Stout (“Stout”) appeals the judgment of the Athens

County Municipal Court convicting him of a violation of Athens City Code 7.04.01(A), Assured

Clear Distance Ahead (“ACDA”). Stout was sentenced to a $40 fine; and he was ordered to pay

court costs. On appeal, Stout argues that his conviction is against the manifest weight of the

evidence.

        {¶ 2} After reviewing the record, we conclude that Stout’s conviction is not against the

manifest weight of the evidence. Accordingly, we affirm the judgment of the trial court.

                                     I. Facts and Procedural History
Athens App. No. 16CA24                                                                       2


        {¶ 3} On August 11, 2016, Lieutenant Adam L. Claar served Stout with a complaint

citing Stout with a violation of Athens City Ordinance 7.04.01(A), ACDA. On September 29,

2016, the case proceeded to a bench trial. The following evidence was presented, in relevant part:

        {¶ 4} Lesa A. Withers (“Withers”) testified that on August 1, 2016, she was involved in a

traffic accident on North Court Street in Athens, Ohio in which she collided with Stout. Withers

was at the traffic light facing east at the intersection of West Washington Street and Court Street

by the Sheriff’s office. Withers testified that she turned left into the left hand lane of North Court

Street and immediately merged into the right hand lane. Withers merged right on North Court

Street because she wanted to park in a vacant parking space located on the right hand side of the

road.

        {¶ 5} Withers claimed that before she merged into the right hand lane, it was clear.

Withers testified that she did not see motorcycles in her rearview mirror. She glanced in her

rearview mirror and “nobody was there”; however, as she was pulling into the parking spot, the

motorcycle driven by Stout came “up to [her] right and came all the way down to the side of

[her] right of [her] car. Body slammed the parking meter. And struck the right fender of [her]

car.” The hubcap on Withers’s vehicle was also damaged as a result of the collision with Stout’s

motorcycle.

        {¶ 6} Next, Lieutenant Adam Claar (“Lt. Claar”) testified. Lt. Claar was the officer who

investigated the crash. When Lt. Claar arrived on the scene, Stout was on the ground with a leg

injury; and Withers’s vehicle was stopped. Lt. Claar spoke to both Withers and Stout; and he also

took photographs at the scene of the incident. Lt. Claar opined that the crash occurred at a low

speed and that the point of impact was “right in the area of the parking spaces.” Lt. Claar

believed that the crash occurred in the parking spot, not the lane of travel.
Athens App. No. 16CA24                                                                          3


        {¶ 7} As a part of Lt. Claar’s investigation, he obtained video footage from Lucky’s Bar,

the Athens County Courthouse and the City of Athens from cameras located at Court and

Washington Street. During the bench trial, the Lucky’s video was played. Lt. Claar testified

during the video that Withers was “clearly in the right lane” and then Stout’s “vehicle comes into

the right of it.” Lt. Claar testified to his recollection of the contents of the city’s video. Lt. Claar

testified that the video showed Stout “taking off [from the stop light] at a higher rate of speed

and operating his vehicle too fast to bring it to a stop in a congested uptown area.”

        {¶ 8} Lt. Claar charged neither Withers nor Stout on the day of the incident because he

did not have all the facts. Both Withers and Stout gave different versions of the occurrence;

therefore, Lt. Claar followed-up by obtaining the video footage. Lt. Claar explained that the

Lucky’s video demonstrated that Withers’s vehicle was clearly in the right hand lane; and

Withers was ahead of Stout.

        {¶ 9} Stout provided a different version of the incident. Stout is a mechanic who works at

the Harley shop in Athens. Stout was also a helicopter mechanic in the Marine Corps in Iraq.

Prior to the collision on North Court Street, Stout and his father were riding their motorcycles.

They were side by side behind a silver car that was stopped facing north at the red light at the

intersection of Court Street and Washington Street. Beside the silver car was a red car. When the

light changed from red to green, the silver car “was moving faster than the red car to its right.”

Stout decided that “there was a gap large enough for [his] motorcycle…to traverse through.”

Thus, Stout decided to change his lane and travel into the right lane ahead of the red car. Stout

testified that because he was planning to make a right turn onto Carpenter Street at the end of

Court Street, he wanted to get in the right lane as soon as possible so that he would not “have to

fight later on.”
Athens App. No. 16CA24                                                                       4


       {¶ 10} Stout explained that he got into the right lane almost immediately at the other side

of the intersection of Court Street and Washington Street. As Stout was going around the silver

car, he noticed Withers’s vehicle coming over towards the lane. Stout proceeded to “move as far

to the right hand side of the lane as [he] possible could which, in turn, ended up being the

parking spot.” As soon as Stout began to enter the parking spot to try to avoid Withers’s vehicle,

the crash occurred. Stout testified that his motorcycle made impact with the vehicle from the

front left peg all the way to the front axle of the bike. Stout’s front axle made the hole in the

middle of Withers’s hubcap. Stout explained that he was not trying to pass Withers, “other than

the fact that she was already in the left hand lane. And started to come over towards [him]. Then

[Stout] attempted to pass [Withers] into the parking spot because there was no other option that,

but to try to get out of the way.”

       {¶ 11} After all of the evidence was presented and closing arguments were given, the

trial court ruled from the bench finding Stout guilty of the violation of ACDA. Prior to finding

Stout guilty, the trial court noted that it had the advantage of viewing the stop frame photographs

of the Lucky’s video. The trial court pointed out that the photographs showed that Withers’s

vehicle was fully in the right lane; and the dividing line could be seen in the photographs. The

trial court interpreted the photographs to mean that Withers was in the lane prior to Stout being

in the lane. Consequently, the trial court found that Withers “had a priority to [the right] lane” as

she was there first; and it was Stout’s “responsibility to make sure that there was not an

accident.”

       {¶ 12} After the trial court found Stout guilty of a violation of ACDA, the trial court next

sentenced Stout to a $40 fine and ordered Stout to pay court costs.

       {¶ 13} Stout timely appeals.
Athens App. No. 16CA24                                                                          5


                                      II. Assignments of Error

        {¶ 14} Stout presents the following assignment of error for our review:

        ASSIGNMENT OF ERROR:

        THE TRIAL COURT’S JUDGMENT WAS AGAINST THE MANIFEST
        WEIGHT OF THE EVIDENCE.

                                        III. Law and Analysis

            A. Standard of Review for Manifest Weight of the Evidence Argument

        {¶ 15} In his sole assignment of error, Stout argues that his conviction is against the

manifest weight of the evidence. “When an appellate court considers a claim that a conviction is

against the manifest weight of the evidence, the court must dutifully examine the entire record,

weigh the evidence, and consider the credibility of witnesses.” State v. Topping, 4th Dist.

Lawrence No. 11CA6, 2012–Ohio–5617, ¶ 60. “The reviewing court must bear in mind,

however, that credibility generally is an issue for the trier of fact to resolve.” Id., citing State v.

Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001), and State v. DeHass, 10 Ohio St.2d 230, 227

N.E.2d 212 (1967), paragraph one of the syllabus. This is so because “[t]he trier of fact ‘is best

able to view the witnesses and observe their demeanor, gestures, and voice inflections, and use

these observations in weighing the credibility of the proffered testimony.’ ” State v. Pippen, 4th

Dist. Scioto No. 11CA3412, 2012–Ohio–4692, ¶ 31, quoting Seasons Coal Co. v. Cleveland, 10

Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984).

        {¶ 16} “Once the reviewing court finishes its examination, the court may reverse the

judgment of conviction only if it appears that the fact-finder, when resolving the conflicts in

evidence, clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered.” (Quotations omitted.) State v. Davis, 4th

Dist. Ross No. 12CA3336, 2013–Ohio–1504, ¶ 14.
Athens App. No. 16CA24                                                                       6


       {¶ 17} If the prosecution presented substantial evidence upon which the trier of fact

reasonably could conclude, beyond a reasonable doubt, that the essential elements of the offense

had been established, the judgment of conviction is not against the manifest weight of the

evidence. State v. Cooper, 170 Ohio App.3d 418, 2007–Ohio–1186, 867 N.E.2d 493, ¶ 16 (4th

Dist.). A reviewing court should find a conviction against the manifest weight of the evidence “

‘only in the exceptional case in which the evidence weighs heavily against the conviction.’ ”

State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin, 20

Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983); see also State v. Lindsey, 87 Ohio St.3d

479, 483, 721 N.E.2d 995 (2000).

       {¶ 18} When applying the above standard of review, we disagree with Stout’s assertion

that the trial court’s judgment was against the manifest weight of the evidence.

                          B. Assured Clear Distance Ahead Ordinance

       {¶ 19} Athens City Ordinance 7.04.01(A) is the ordinance at issue here. It reads as

follows:

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

       speed greater or less than is reasonable or proper, having due regard to the traffic,

       surface, and width of the street or highway and any other conditions, and no

       person shall drive any motor vehicle, trackless trolley, or streetcar in and upon

       any street or highway at a greater speed than will permit him to bring it to a stop

       within the assured clear distance ahead.

       {¶ 20} The Athens City Ordinance 7.04.01(A) mirrors R.C. 4511.21(A). “To establish a

violation of that statute, the prosecution must establish that the driver collided with an object that

(1) was ahead of him in his path of travel, (2) was stationary or moving in the same direction as
Athens App. No. 16CA24                                                                       7


the driver, (3) did not suddenly appear in the driver’s path, and (4) was reasonably discernible.”

State v. Passmore, 4th Dist. Pickaway No. 04CA28, 2005-Ohio-1569, ¶ 7, citing Pond v. Leslein,

72 Ohio St.3d 50, 52, 647 N.E.2d 477 (1995); see also State v. Hochstetler, 9th Dist. Wayne No.

03CA0025, 2004-Ohio-595, ¶ 11; State v. Lippencott, 10th Dist. Franklin No. 00AP-491, 2000

WL 1724876 (Nov. 21, 2000).

                     C. The Trial Court’s Judgment Was Not Against the

                                Manifest Weight of the Evidence

       {¶ 21} Stout argues that Withers made an abrupt merging maneuver directly into his path

and suddenly appeared in his path. Stout asserts that he was travelling lawfully on North Court

Street in the right lane when Withers, who was in the left lane, began to move directly into his

lane of travel. On the other hand, the State of Ohio, City of Athens, (“State”) contends that it

presented substantial evidence that Stout failed to maintain an assured clear distance ahead. The

State asserts that the testimony of Withers and Lt. Claar and the video and photographic evidence

provided the trial court substantial evidence to prove its case.

       {¶ 22} The State further urges us to rule similarly in this case as we did in State v.

Passmore, 4th Dist. Pickaway No. 04CA28, 2005-Ohio-1569. In Passmore, this court affirmed

the trial court’s judgment convicting Passmore of a violation of 4511.21(A), ACDA. Passmore

had argued unsuccessfully that his conviction was against the manifest weight of the evidence.

Id. at ¶ 6. Passmore asserted, like Stout, that the other driver suddenly turned into his lane of

travel. However, this court found that the evidence failed to support Passmore’s contention.

       {¶ 23} In the case sub judice, substantial evidence was presented that demonstrates that

Withers was (1) ahead of Stout in his path of travel; (2) stationary or moving in the same

direction as Stout; and (3) reasonably discernible. Withers claimed that before she merged into
Athens App. No. 16CA24                                                                        8


the right lane, it was clear. Lt. Claar explained that the Lucky’s video revealed that Withers’s

vehicle was clearly in the right hand lane; and Withers was ahead of Stout. The stop frame

photographs of the Lucky’s video show Withers’s vehicle fully in the right lane as the dividing

line could be seen in the photographs. The motorcycle wheel is not seen in the stop frame

photographs until such time that Withers’s vehicle is fully in the right lane. Even Stout admitted

that as he was going around the silver car, he noticed Withers’s vehicle ahead of him.

        {¶ 24} The issue then, like in Passmore, was whether Withers’s vehicle “suddenly

appeared” in Stout’s path. Withers asserted that before she merged into the right lane, she did not

see motorcycles in her rearview mirror. It was not until Withers was pulling into the parking

spots that Stout’s motorcycle struck her vehicle. It was Lt. Claar’s belief that the crash occurred

“right in the area of the parking spaces” not the lane of travel. In addition, Lt. Claar testified that

the city’s video showed Stout “taking off [from the stop light] at a higher rate of speed and

operating his vehicle too fast to bring it to a stop in a congested uptown area.”

        {¶ 25} The trial court did point out, however, that the entire packet of stop frame

photographs from the Lucky’s video spans only a time period of two seconds. However, during

that time period, the trial court found that Withers’s vehicle is fully in the right lane prior to

Stout’s motorcycle wheel appearing in the photographs; and the dividing line can be seen in the

photos. The trial court also acknowledged that Stout’s motorcycle had greater acceleration than

Withers’s vehicle; and the trial court also recognized the fact that the damage to Withers’s

vehicle was at the right front fender rather than the rear of the vehicle. The trial court explained

that although this was unusual for an ACDA case, it could still be considered as an impact from

behind as Stout was “coming up from behind and on the right.”
Athens App. No. 16CA24                                                                       9


         {¶ 26} In sum, the trial court had before it substantial evidence to conclude that Withers’s

vehicle did not “suddenly appear” in Stout’s path and that Stout violated the ACDA ordinance.

The trier of fact believed that Withers’s established her right to the lane of travel and that “it was

Stout’s responsibility to make sure there was not an accident.” Moreover, the trier of fact

apparently found the State’s version of events more credible than Stout’s; and the trier of fact

was free to do so. We cannot say that the fact-finder, when resolving the conflicts in evidence,

clearly lost its way and created such a manifest miscarriage of justice that the conviction must be

reversed. This is not an exceptional case where the evidence weighs heavily in favor of Stout.

         {¶ 27} Accordingly, we overrule Stout’s assignment of error.

                                           IV. Conclusion

         {¶ 28} Having overruled Stout’s assignment of error, we affirm the judgment of the trial

court.

                                                                         JUDGMENT AFFIRMED.
Athens App. No. 16CA24                                                                        10


                                       JUDGMENT ENTRY

        It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs.

        The Court finds that reasonable grounds existed for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Athens County
Municipal Court to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously posted. The
purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of proceedings in that court. If a stay is continued by
this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of
the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day
appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio.
Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days,
the stay will terminate as of the date of such dismissal.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.

Harsha, J., and McFarland, J.: Concur in Judgment and Opinion.


                                                For the Court


                                                BY: ____________________________
                                                    Marie Hoover, Judge




                                      NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and
the time period for further appeal commences from the date of filing with the clerk.
