[Cite as State v. Cutlip, 2018-Ohio-726.]


STATE OF OHIO                      )                   IN THE COURT OF APPEALS
                                   )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                   )

STATE OF OHIO                                          C.A. No.      28735

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
ERIC CUTLIP                                            STOW MUNICIPAL COURT
                                                       COUNTY OF SUMMIT, OHIO
        Appellant                                      CASE No.   2016 TRC 08790

                                  DECISION AND JOURNAL ENTRY

Dated: February 28, 2018



        HENSAL, Judge.

        {¶1}     Eric Cutlip appeals his convictions for operating a vehicle under the influence and

failure to stop after an accident in the Stow Municipal Court. For the following reasons, this

Court affirms in part and reverses in part.

                                                  I.

        {¶2}     On the evening of June 16, 2016, Mr. Cutlip lost control of his vehicle, drove off

the road, and crashed into a mailbox before landing upside down in a ditch. He crawled out of

the vehicle and went into the nearby woods, returning to the scene about 50 minutes later. By

then, emergency personnel had arrived. After Mr. Cutlip identified himself as the driver of the

vehicle, Officer Michael Plesz arrested him for failure to stop after an accident. Back at the

police station, the officer had Mr. Cutlip perform field sobriety tests. Following those tests,

Officer Plesz also charged Mr. Cutlip with operating a vehicle under the influence.
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       {¶3}    Mr. Cutlip moved to suppress the evidence against him, arguing that Officer Plesz

did not have probable cause to arrest him because the accident did not occur on a public road.

He also argued that the field sobriety tests were not conducted in substantial compliance with

national standards. Following a hearing, the municipal court denied his motion. A jury found

him guilty of the offenses, and the court sentenced him to 180 days in jail. Mr. Cutlip has

appealed, assigning two errors.

                                                 II.

                                   ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO
       SUPPRESS, AS THERE WAS NO PROBABLE CAUSE TO ARREST
       APPELLANT WITH A VIOLATION OF MACEDONIA ORDINANCE 335.12.
       ALL EVIDENCE AND CHARGES OBTAINED, AFTER THE INITIAL
       ARREST, ARE FRUIT OF THE POISONOUS TREE.

       {¶4}    Mr. Cutlip argues that the court incorrectly denied his motion to suppress. A

motion to suppress presents a mixed question of law and fact:

       When considering a motion to suppress, the trial court assumes the role of trier of
       fact and is therefore in the best position to resolve factual questions and evaluate
       the credibility of witnesses. Consequently, an appellate court must accept the trial
       court’s findings of fact if they are supported by competent, credible evidence.
       Accepting these facts as true, the appellate court must then independently
       determine, without deference to the conclusion of the trial court, whether the facts
       satisfy the applicable legal standard.

(Internal citations omitted.) State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.

       {¶5}    Mr. Cutlip argues that Officer Plesz did not have probable cause to arrest him for

failing to stop after an accident because the only damage he caused was to property that was off

the road. He, therefore, argues that he had 24 hours to report the accident to police.

       {¶6}    The municipal court determined that Officer Plesz had probable cause to arrest

Mr. Cutlip for failure to stop after an accident. It also determined that, even if the officer did not
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arrest Mr. Cutlip under the correct ordinance, “the court would still find probable cause to arrest

[Mr. Cutlip] for OVI at the scene.” In his brief, Mr. Cutlip has contested the municipal court’s

determination that Officer Plesz had probable cause to arrest him for failing to stop after an

accident, but he has not contested the court’s determination that the officer also had probable

cause to arrest him for operating under the influence. It is not the duty of this Court to develop

an argument for him. State v. Grad, 9th Dist. Medina No. 15CA0014-M, 2016-Ohio-8388, ¶ 15.

Because Mr. Cutlip has not challenged the court’s alternative reason for finding that probable

cause existed, we conclude that he has failed to establish that the municipal court incorrectly

denied his motion to suppress. Mr. Cutlip’s first assignment of error is overruled.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED IN OVERRULING THE MOTION FOR
       ACQUITTAL PURSUANT TO CRIM.R. 29.

       {¶7}    Mr. Cutlip next argues that the municipal court incorrectly denied his motion for

acquittal. Specifically, he argues that the State presented insufficient evidence to convict him of

failure to stop after an accident. Under Criminal Rule 29(A), a defendant is entitled to a

judgment of acquittal on a charge against him “if the evidence is insufficient to sustain a

conviction * * *.” Whether a conviction is supported by sufficient evidence is a question of law,

which we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In making this

determination, we must view the evidence in the light most favorable to the prosecution:

       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 favorable to the prosecution,
       any rational trier of fact could have found the essential elements of the crime
       proven beyond a reasonable doubt.

State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
                                                4


       {¶8}   The jury found Mr. Cutlip guilty of violating Macedonia Ordinance 335.12. It

provides:

       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.

Codified Ordinance of the City of Macedonia, Ohio 335.12(a)(1). Mr. Cutlip argues that he

could not be convicted under that ordinance because he did not collide with an individual, a

vehicle, or property on the roadway, only property adjacent to the road. The municipal court

denied his motion because Mr. Cutlip lost control of his vehicle while on a public roadway, left

markings on the road, and only then proceeded off the roadway onto private property.

       {¶9}   We agree with Mr. Cutlip.        Under the plain language of the ordinance, the

accident or collision must occur on a public roadway. In this case the only collisions occurred

off the roadway when Mr. Cutlip crashed into a mailbox and a ditch. Although not every

“accident” requires a collision, Mr. Cutlip’s mere failure to control his vehicle on the roadway

did not constitute an accident. We note that the term “accident” is not defined in Macedonia’s

Codified Ordinances. If a word is not defined in an ordinance, it will be given its common and

ordinary meaning. City of Cuyahoga Falls v. Kobulnicky, 9th Dist. Summit No. 20972, 2002-

Ohio-3742, ¶ 12.    The term “accident” ordinarily means “[a]n unintended and unforeseen
                                                 5


injurious occurrence; something that does not occur in the usual course of events or that could

not be reasonably anticipated.” Black’s Law Dictionary 15 (8th Ed.2004).

       {¶10} Other Ohio district courts, construing Revised Code Section 4549.02(A), which is

identical to the ordinance, are in agreement that the accident or collision must occur on a public

road or highway. See R.C. 4549.02(A). In State v. Clark, 5th Dist. Stark No. CA-7544, 1988

Ohio App. LEXIS 5374 (Dec. 28, 1988), the Fifth District Court of Appeals held that the driver,

whose vehicle slid into a telephone pole that was next to the road, did not fail to stop for an

accident because there was no “property ‘upon any of the public roads or highways’” that was

damaged. Id. at *3, quoting former R.C. 4549.02; see State v. Mills, 5th Dist. Knox No. 14CA9,

2014-Ohio-3563, ¶ 9 (following Clark). In State v. Spence, 12th Dist. Clermont No. CA2002-

02-012, 2002-Ohio-3600, the Twelfth District Court of Appeals held that the driver, whose

vehicle slid into a utility pole in inclement weather, also did not violate Revised Code 4549.02,

explaining that “[t]he facts of this case are more compatible with R.C. 4549.03 as they involve a

collision with property located adjacent to a highway.” Id. at ¶ 13, 14.

       {¶11} Upon review of the record, we conclude that, viewing the evidence the State

submitted in a light most favorable to it, there was insufficient evidence to convince the average

mind of Mr. Cutlip’s guilt beyond a reasonable doubt.         See Jenks, 61 Ohio St.3d 259, at

paragraph two of the syllabus. We, therefore, conclude that the municipal court incorrectly

denied his motion for judgment of acquittal under Criminal Rule 29(A) as to the charge of failure

to stop after an accident. Mr. Cutlip’s second assignment of error is sustained as to that

conviction.
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                                                III.

       {¶12} Mr. Cutlip’s first assignment of error is overruled. His second assignment of

error is sustained as to his conviction for failure to stop after an accident. The judgment of the

Stow Municipal Court is affirmed in part and reversed in part, and this matter is remanded for

proceedings consistent with this decision.

                                                                        Judgment affirmed in part,
                                                                                 reversed in part,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Stow Municipal

Court, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                       JENNIFER HENSAL
                                                       FOR THE COURT

TEODOSIO, P. J.
CALLAHAN, J.
CONCUR.
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APPEARANCES:

KRISTOPHER K. HILL and THOMAS J. DEBACCO, Attorneys at Law, for Appellant.

MARK V. GUIDETTI, Law Director, for Appellee.
