[Cite as State v. Melvin, 2011-Ohio-6418.]


                                        COURT OF APPEALS
                                     ASHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT




STATE OF OHIO                                :    JUDGES:
                                             :    Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                   :    Hon. Sheila G. Farmer, J.
                                             :    Hon. Julie A. Edwards, J.
-vs-                                         :
                                             :
CLARISSA LYNN MELVIN                         :    Case No. 11-COA-016
                                             :
        Defendant-Appellant                  :    OPINION


                                                  NUNC PRO TUNC


CHARACTER OF PROCEEDING:                          Appeal from the Municipal Court, Case
                                                  No. 11-TRD-00634



JUDGMENT:                                         Reversed




DATE OF JUDGMENT:                                 December 13, 2011



APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

DAVID M. HUNTER                                   ADAM VAN HO
1213 East Main Street                             137 South Main Street
Ashland, OH 44805                                 Suite 201
                                                  Akron, OH 44308
Ashland County, Case No. 11-COA-016                                                      2

Farmer, J.

       {¶ 1} On February 6, 2011, appellant, Clarissa Melvin, observed three puppies

on the side of the interstate. She attempted to flag down a passing patrol car being

operated by Ashland County Sheriff's Deputy, Sergeant Donald Sims. Sergeant Sims

did not stop, but pursued a speeding vehicle instead. He stopped the speeding vehicle

at the entrance to an exit ramp. As Sergeant Sims was talking to the driver of the

speeding vehicle, appellant drove by and honked her horn.

       {¶ 2} Sergeant Sims stopped appellant and charged her with reckless operation

in violation of R.C. 4511.20. A bench trial was held on February 23, 2011. By judgment

order filed March 28, 2011, the trial court found appellant guilty and ordered her to pay a

fine of $150.00 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} "APPELLANT'S CONVICTION FOR RECKLESS OPERATION IS BASED

ON INSUFFICIENT EVIDENCE AND IS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE, IN VIOLATION OF SECTION 4511.20 OF THE OHIO REVISED CODE,

THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION."

                                             I

       {¶ 5} Appellant claims her conviction for reckless operation was against the

sufficiency and manifest weight of the evidence as the evidence presented failed to
Ashland County, Case No. 11-COA-016                                                       3


establish that her driving was in willful or wanton disregard for the safety of persons or

property. We agree.

       {¶ 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

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.

       {¶ 7} Appellant was cited for violating R.C. 4511.20(A) which states, "[n]o

person shall operate a vehicle, trackless trolley, or streetcar on any street or highway in

willful or wanton disregard of the safety of persons or property." In State v. Ducheine,

Licking App. No. 09 CA 0096, 2010-Ohio-3122, ¶13, this court defined "willful or

wanton" as follows:

       {¶ 8} "The Ohio Supreme Court has held that willful conduct 'implies an act

done intentionally, designedly, knowingly, or purposely, without justifiable excuse.'
Ashland County, Case No. 11-COA-016                                                        4

State v. Earlenbaugh (1985), 18 Ohio St.3d 19, 21, 479 N.E.2d 846, citing Black's Law

Dictionary (5 Ed.1979) 1434. Wanton conduct, on the other hand, is defined as 'an act

done in reckless disregard of the rights of others which evinces a reckless indifference

of the consequences to the life, limb, health, reputation, or property of others.' Id. at 21-

22."

         {¶ 9} Sergeant Sims testified on the day in question, he observed a speeding

vehicle on I-71. T. at 6. As he pulled out to stop the vehicle, he observed appellant

"sitting along side the road.    And I thought maybe she was a disabled vehicle or

something."     Id.   As Sergeant Sims drove by appellant, he perceived her to look

"angered that I didn't stop behind her when I pulled out from where I was sitting." Id.

Appellant "was waiving her hands out the window and kind of mouthing, you know, kind

of like she was angry." Id.

         {¶ 10} Sergeant Sims pursued the speeding vehicle and stopped it at the

"entrance to the exit ramp up to 250" off of I-71. T. at 7-8. As he was talking to the

driver, Sergeant Sims noticed a vehicle coming up behind him fast, approximately ten

feet away. T. at 9-10. The driver of this vehicle "started laying on its horn back at my

cruiser***[a]nd it continued on past me and all the way past the car***that I had pulled

over." T. at 10. Sergeant Sims recognized the vehicle as the same vehicle which he

had observed earlier being operated by appellant.           Id.   Sergeant Sims testified

appellant's vehicle was "going at a pretty good clip up the exit ramp." T. at 11. It was

his opinion that appellant's "actions were definitely causing a hazard in that area." T. at

14-15.
Ashland County, Case No. 11-COA-016                                                     5


      {¶ 11} Appellant testified she observed three puppies on the side of I-71 so she

pulled over and waved out the window to get Sergeant Sims's attention for help. T. at

18-19. She observed Sergeant Sims pull out and drive by her and she decided to leave

because "I thought he was doing his thing" with the speeding vehicle and "it wasn't like

a huge deal." T. at 19. As she pulled onto the interstate, a van dropped in behind her

and honked at her. T. at 19-20. She honked back which happened to be as she was

exiting the interstate and passing Sergeant Sims. T. at 20. Appellant testified she

"thought I was a fine distance away from him, because there was no other lane to get

into since it's an off ramp."   Id.   In addition, appellant testified she "slowed down

immediately" because "it's a short exit ramp. You can't just go flying up an exit ramp

and then, I mean, my brakes don't work that well." T. at 24.

      {¶ 12} Although it is clear from the testimony of both Sergeant Sims and

appellant that appellant did not move over pursuant to R.C. 4511.23, it is also clear that

Sergeant Sims had stopped the speeding vehicle at the very beginning of the exit ramp.

The logical conclusion is that a total reduction in speed would not have been practical or

safe for appellant.   The testimony relative to appellant's speed was vague.        This,

coupled with the ten feet distance between appellant's vehicle and Sergeant Sims,

leads us to the conclusion that there was insufficient evidence of recklessness to

support a conviction of R.C. 4511.20.

      {¶ 13} Upon review, we find the trial court erred in convicting appellant of

violating R.C. 4511.20 under the facts of this case.

      {¶ 14} The sole assignment of error is granted.
Ashland County, Case No. 11-COA-016                                             6


      {¶ 15} The judgment of the Municipal Court of Ashland County, Ohio is hereby

reversed.

By Farmer, J.

Hoffman, P.J. and

Edwards, J. concur.




                                         s/ Sheila G. Farmer _____________



                                        _s/ William B. Hoffman__________



                                        _s/ Julie A. Edwards___________

                                                     JUDGES



SGF/sg110
[Cite as State v. Melvin, 2011-Ohio-6418.]


                   IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                  :
                                               :
        Plaintiff-Appellee                     :
                                               :
-vs-                                           :        JUDGMENT ENTRY
                                               :
CLARISSA LYNN MELVIN                           :        NUNC PRO TUNC
                                               :
        Defendant-Appellant                    :        CASE NO. 11-COA-016




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

judgment of the Municipal Court of Ashland County, Ohio is reversed.             Costs to

appellee.




                                               s/ Sheila G. Farmer _____________



                                               _s/ William B. Hoffman__________



                                               _s/ Julie A. Edwards___________

                                                           JUDGES
             IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO

                                 FIFTH APPELLATE DISTRICT

STATE OF OHIO                               :
                                            :
            Plaintiff-Appellee              :
                                            :
                                            :
- vs -                                      :
                                            :        JUDGMENT ENTRY
CLARISSA LYNN MELVIN                        :
                                            :
         Defendant-Appellant                :        CASE NO. 11-COA-016
                                            :




         This Judgment Entry reflects the Opinion that was filed on November 30, 2011.

There was an error on the Judgment Entry page in regard to the disposition of the case.

         IT IS SO ORDERED.




                                            s/ Sheila G. Farmer _____________



                                            _s/ William B. Hoffman__________



                                            _s/ Julie A. Edwards___________

                                                         JUDGES
