[Cite as State v. Claypool, 2011-Ohio-2296.]


                                        COURT OF APPEALS
                                      HOLMES COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                        Hon. Sheila G. Farmer, J.
                                                  Hon. Patricia A. Delaney, J.
-vs-

BRIAN CLAYPOOL                                    Case No. 11CA006

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Municipal Court, Case No
                                               2010-TRD-1899



JUDGMENT:                                      Affirmed




DATE OF JUDGMENT ENTRY:                        May 6, 2011




APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

CHRISTINE C. WILLIAMS                          BRIAN W. BENBOW
164 East Jackson Street                        605 Market Street
Millersburg, OH 44654                          Zanesville, OH 43701
Holmes County, Case No. 11CA006                                                           2

Farmer, J.

       {¶1}   On November 8, 2010, appellant, Brian Claypool, was charged with

speeding in a school zone in violation of R.C. 4511.21. Appellant was charged with

driving 40 m.p.h. in a 20 m.p.h. zone.

       {¶2}   A bench trial commenced on January 12, 2011.           Appellant moved for

acquittal under Crim.R. 29 after the state's case-in-chief and again at the conclusion of

all the evidence. The trial court denied the motions. The trial court found appellant

guilty and ordered him to pay a $100.00 fine plus court costs.

       {¶3}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                             I

       {¶4}   "THE TRIAL COURT'S JANUARY 12, 2011 JUDGMENT ENTRY

CONVICTING DEFENDANT/APPELLANT OF SPEEDING IN A SCHOOL ZONE IS

AGAINST BOTH THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE."

                                             I

       {¶5}   Appellant claims his conviction was against the manifest weight and

sufficiency of the evidence. We disagree.

       {¶6}   On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State

v. Jenks (1991), 61 Ohio St.3d 259. "The relevant inquiry 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 at

paragraph two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307. On
Holmes County, Case No. 11CA006                                                            3


review for manifest weight, a reviewing court is to examine the entire record, weigh the

evidence and all reasonable inferences, consider the credibility of witnesses and

determine "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." State v. Martin (1983), 20 Ohio App.3d 172, 175. See also, State

v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. The granting of a new trial "should be

exercised only in the exceptional case in which the evidence weighs heavily against the

conviction." Martin at 175. We note the weight to be given to the evidence and the

credibility of the witnesses are issues for the trier of fact. State v. Jamison (1990), 49

Ohio St.3d 182, certiorari denied (1990), 498 U.S. 881. The trier of fact "has the best

opportunity to view the demeanor, attitude, and credibility of each witness, something

that does not translate well on the written page." Davis v. Flickinger, 77 Ohio St.3d 415,

418, 1997-Ohio-260.

       {¶7}   In his brief at 4, appellant argues the state "failed to present any evidence

that the sign marking the school speeding zone complied with the Ohio Manual of

Uniform Traffic Control Devices."        In denying appellant's Crim.R. 29 motions for

acquittal on this issue, the trial court stated the following:

       {¶8}   "No the statute does just require that it [posted sign] be within so many

feet of a school zone.

       {¶9}   "Again the sign is total irrelevant. Statute doesn't require a school zone

sign. It specifically says nothing in this section or in the manual specification for uniform

system of traffic control devices shall be construed to require school zones to be

indicated by signs equipped with flashing or other lights. Or giving other special notice
Holmes County, Case No. 11CA006                                                           4


in which thee (sic) hours of the school zone are in effect. It's kind of an absolute." T. at

10 and 20, respectively.

       {¶10} Lieutenant Gary Chanay of the Holmes County Sheriff's Department

testified he clocked appellant driving 40 m.p.h. in a school zone between 3:20 and 3:30

p.m. on a school day. T. at 4-5. School buses were attempting to pull out into traffic

and parents were picking up their children. T. at 4. The flashing lights on the 20 m.p.h.

school zone sign were activated. T. at 5. Appellant admitted to driving 40 m.p.h. and

seeing the school zone sign, but claimed the flashing lights were not on. T. at 12, 14.

He did not see any busses or parents and children leaving indicating that school was

letting out. T. at 12-14. Appellant's sister, Connie Claypool, was in the vehicle with

appellant at the time and testified she also did not see any flashing lights or children

leaving the school. T. at 17-18.

       {¶11} Appellant was convicted of violating R.C. 4511.21(B)(1)(a) which states

the following:

       {¶12} "(B) It is prima-facie lawful, in the absence of a lower limit declared or

established pursuant to this section by the director of transportation or local authorities,

for the operator of a motor vehicle, trackless trolley, or streetcar to operate the same at

a speed not exceeding the following:

       {¶13} "(1)(a) Twenty miles per hour in school zones during school recess and

while children are going to or leaving school during the opening or closing hours, and

when twenty miles per hour school speed limit signs are erected;***The end of every

school zone may be marked by a sign indicating the end of the zone. Nothing in this

section or in the manual and specifications for a uniform system of traffic control devices
Holmes County, Case No. 11CA006                                                         5


shall be construed to require school zones to be indicated by signs equipped with

flashing or other lights, or giving other special notice of the hours in which the school

zone speed limit is in effect."

       {¶14} As clearly stated in R.C. 4511.21(B)(1), the speed limit within a school

zone when such school zone is in effect is 20 m.p.h. The statute "specifically states that

the school zone need not be designated by flashing lights or signs giving special notice

of effective hours. Rather, it is only required that general signs designating the school

zone be erected." Haithcock v. Hunter (2000), Madison App. No. CA2000-01-001.

       {¶15} In the case sub judice, there was testimony that there were flashing yellow

school zone signs erected indicating a school zone. Lieutenant Chanay testified school

was in session, and the flashing lights were activated when school was letting out.

Busses and parents and children were leaving the school.

       {¶16} Upon review, we find sufficient evidence was presented to establish the

school zone was in effect when appellant drove through at 40 m.p.h., and no manifest

miscarriage of justice.

       {¶17} The sole assignment of error is denied.
Holmes County, Case No. 11CA006                                                6


      {¶18} The judgment of the Municipal Court of Holmes County, Ohio is hereby

affirmed.

By Farmer, J.

Gwin, P.J. and

Delaney, J. concur.




                                       _s/ Sheila G. Farmer_________________




                                       _s/ W. Scott Gwin____________________




                                       _s/ Patricia A. Delaney________________


                                                       JUDGES

SGF/sg 404
Holmes County, Case No. 11CA006                                                 7


             IN THE COURT OF APPEALS FOR HOLMES COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT



STATE OF OHIO                           :
                                        :
       Plaintiff-Appellee               :
                                        :
-vs-                                    :        JUDGMENT ENTRY
                                        :
BRIAN CLAYPOOL                          :
                                        :
       Defendant-Appellant              :        CASE NO. 11CA006




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Municipal Court of Holmes County, Ohio is affirmed.    Costs to

appellant.




                                        _s/ Sheila G. Farmer_________________




                                        _s/ W. Scott Gwin____________________




                                        _s/ Patricia A. Delaney________________


                                                        JUDGES
