[Cite as State v. Murphy, 2014-Ohio-3368.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                 :   JUDGES:
                                              :
                                              :   Hon. William B. Hoffman, P.J.
       Plaintiff-Appellee                     :   Hon. John W. Wise, J.
                                              :   Hon. Patricia A. Delaney, J.
-vs-                                          :
                                              :   Case No. 13-CA-122
                                              :
MICHAEL J. MURPHY                             :
                                              :
                                              :
       Defendant-Appellant                    :   OPINION


CHARACTER OF PROCEEDING:                          Appeal from the Licking County
                                                  Municipal Court, Case No. 13-TRD-
                                                  9411



JUDGMENT:                                         Reversed and Remanded




DATE OF JUDGMENT ENTRY:                           July 28, 2014




APPEARANCES:

For Plaintiff-Appellee:                           For Defendant-Appellant:

J. MICHAEL KING                                   DAVID B. STOKES
ASST. NEWARK LAW DIRECTOR                         33 West Main St., Suite 102
40 West Main St.                                  Newark, OH 43055
Newark, OH 43055
Licking County, Case No. 13-CA-122                                                    2

Hoffman, P.J.

        {¶1} Appellant Michael J. Murphy appeals the Judgment of Conviction entered

by the Licking County Municipal Court on November 19, 2013. Appellee is the state of

Ohio.

                        FACTS AND PROCEDURAL HISTORY

        {¶2} The following facts are adduced from a bench trial held before the Licking

County Municipal Court on November 19, 2013.

        {¶3} This case arose on September 5, 2013 around 5:30 p.m. in the city of

Newark when Leah Ogilbee was traveling westbound in her Nissan Altima on Shields

Street and entered the intersection of Shields and 11th Street. Ogilbee had the right of

way with no stop signs or other traffic signals impeding her progress on Shields.

Ogilbee’s two children were with her and she was on her way home.

        {¶4} In the meantime, Appellant was delivering pizzas in his vehicle. He was

operating a Kia, proceeding northbound on 11th Street, and testified he stopped for the

stop sign at the intersection of 11th Street and Shields. He did not see Ogilbee and

proceeded into the intersection.

        {¶5} Too late, Ogilbee saw Appellant; she attempted to swerve to miss his

vehicle but struck him. Ogilbee sustained damage to the center front of her vehicle;

Appellant’s vehicle was damaged on the passenger side. Both vehicles had to be

towed from the scene and Ogilbee’s was “totaled.”

        {¶6} Officer Purtee of the Newark Police Department investigated the crash.

Ogilbee was transported to the hospital and Purtee did not speak with her. Purtee did
Licking County, Case No. 13-CA-122                                                      3


speak to Appellant, who told him he stopped for the stop sign, was distracted by the

gospel music he was listening to, and never saw Ogilbee until she struck him.

       {¶7} At trial Purtee described the crash as a “T-bone type of accident” although

not quite straight-on, with Ogilbee’s vehicle striking a “glancing blow” off the side of

Appellant’s vehicle. It was apparent to Purtee Appellant ran the stop sign, or failed to

yield to Ogilbee after stopping.

       {¶8} Appellant called Mark Stalling as a proposed expert witness.          Stalling

works in vehicle restoration and does auto body and collision work. He inspected both

vehicles involved in the crash and photographed them; he also visited the crash scene.

Based upon the damage to the vehicles, Stalling opined Ogilbee swerved immediately

prior to the crash. When he was asked his opinion of the relative speed of the vehicles,

Appellee objected, arguing no foundation was laid to establish Stalling was an expert in

crash reconstruction. The trial court agreed and sustained the objection. Appellant

thereupon proffered Stalling’s estimation that Ogilbee was traveling at least 35 miles per

hour in a 25-mile-per-hour zone at the time of the impact.

       {¶9} Appellant testified at trial. He said he stopped for the stop sign, looked

both ways, did not see Ogilbee, and proceeded into the intersection where he was

suddenly struck. He stated he was listening to gospel music at the time but denied

telling Purtee he was “distracted” by the music. Instead, he said he told the officer,

“Can you believe this happened while I was listening to gospel music?” He denied he

was distracted looking for the address of a pizza customer; he stated it is against his

employer’s policy to look at pizza receipts while driving. He simply did not see or hear

anything until he was hit.
Licking County, Case No. 13-CA-122                                                         4


       {¶10} Purtee cited Appellant by uniform traffic ticket (U.T.T.) with one count of

failure to yield the right of way pursuant to R.C. 4511.41. At the conclusion of the trial to

the court, Appellant moved to dismiss the U.T.T. because he was cited with the wrong

code section, arguing he should have been cited pursuant to R.C. 4511.43. Appellee

responded the facts fit either code section and moved to amend the violation to R.C.

4511.43. Appellant objected it was too late to amend, but the trial court overruled the

objection, found Appellant guilty upon a violation of R.C. 4511.43, and imposed a fine of

$25 plus court costs.

       {¶11} Appellant now appeals from the judgment entry of conviction.

       {¶12} Appellant raises four assignments of error:

                               ASSIGNMENTS OF ERROR

       {¶13} “I. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION BY

FINDING APPELLANT GUILTY OF AN OFFENSE FOR WHICH HE WAS NOT

CHARGED.”

       {¶14} “II. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION BY

DISALLOWING MARK STALLING TO TESTIFY AS AN EXPERT WITNESS.”

       {¶15} “III.   THERE WAS INSUFFICIENT EVIDENCE TO FIND APPELLANT

GUILTY OF R.C. 4511.41 OR R.C. 4511.43; HENCE, THE TRIAL COURT ERRED BY

FINDING APPELLANT GUILTY OF R.C. 4511.43.”

       {¶16} “IV. THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION

BY NOT GRANTING APPELLANT’S MOTION FOR ACQUITTAL AT THE CLOSE OF

THE EVIDENCE (TR. 62).”
Licking County, Case No. 13-CA-122                                                          5


                                              I.

       {¶17} Appellant argues the trial court should not have permitted the amendment

to R.C. 4511.43 and should not have found him guilty thereof. We agree.

       {¶18} The U.T.T. completed by Purtee cites R.C. 4511.41 and is described as

“failure to yeild [sic] (ROW).” The bill of particulars provided by appellee states:

              On September 5, 2013, the defendant was at the intersection of

              North 11th Street and West Shields Street in the City of Newark,

              Licking County, Ohio. The Defendant pulled out in front of another

              vehicle driven by Ms. Ogilbee, who struck the Defendant.                The

              Defendant stated he was distracted by his music and did not see

              the on-coming vehicle.

       {¶19} Appellant was cited with a violation of R.C. 4511.41, “right-of-way at

intersections,” which states:

                     (A) When two vehicles, including any trackless trolley or

              streetcar, approach or enter an intersection from different streets or

              highways at approximately the same time, the driver of the vehicle

              on the left shall yield the right-of-way to the vehicle on the right.

                     (B) The right-of-way rule declared in division (A) of this

              section is modified at through highways and otherwise as stated in

              Chapter 4511. of the Revised Code.

                     (C) Except as otherwise provided in this division, whoever

              violates this section is guilty of a minor misdemeanor. If, within one

              year of the offense, the offender previously has been convicted of
Licking County, Case No. 13-CA-122                                                        6


              or pleaded guilty to one predicate motor vehicle or traffic offense,

              whoever violates this section is guilty of a misdemeanor of the

              fourth degree. If, within one year of the offense, the offender

              previously has been convicted of two or more predicate motor

              vehicle or traffic offenses, whoever violates this section is guilty of a

              misdemeanor of the third degree.

       {¶20} Appellant did not move for a judgment of acquittal at the close of

Appellee’s evidence. Appellant presented his case and rested; Appellee presented

rebuttal evidence. At the close of all of the evidence, Appellant made a motion to

dismiss, arguing he should have been cited instead with a violation of R.C. 4511.43.

The pertinent portion of R.C. 4511.43, “driving in response to stop or yield sign,” states:

                     (A) Except when directed to proceed by a law enforcement

              officer, every driver of a vehicle or trackless trolley approaching a

              stop sign shall stop at a clearly marked stop line, but if none, before

              entering the crosswalk on the near side of the intersection, or, if

              none, then at the point nearest the intersecting roadway where the

              driver has a view of approaching traffic on the intersecting roadway

              before entering it. After having stopped, the driver shall yield the

              right-of-way to any vehicle in the intersection or approaching on

              another roadway so closely as to constitute an immediate hazard

              during the time the driver is moving across or within the intersection

              or junction of roadways.

                     * * * *.
Licking County, Case No. 13-CA-122                                                        7


                     (C) Except as otherwise provided in this division, whoever

              violates this section is guilty of a minor misdemeanor. If, within one

              year of the offense, the offender previously has been convicted of

              or pleaded guilty to one predicate motor vehicle or traffic offense,

              whoever violates this section is guilty of a misdemeanor of the

              fourth degree. If, within one year of the offense, the offender

              previously has been convicted of two or more predicate motor

              vehicle or traffic offenses, whoever violates this section is guilty of a

              misdemeanor of the third degree.

       {¶21} The Traffic Rules are silent regarding amendment of citations by the trial

court; therefore Traf.R. 20 refers to Crim.R. 7(D), which states:

                     The court may at any time before, during, or after a trial

              amend the indictment, information, complaint, or bill of particulars,

              in respect to any defect, imperfection, or omission in form or

              substance, or of any variance with the evidence, provided no

              change is made in the name or identity of the crime charged. If any

              amendment is made to the substance of the indictment,

              information, or complaint, or to cure a variance between the

              indictment, information, or complaint and the proof, the defendant is

              entitled to a discharge of the jury on the defendant's motion, if a jury

              has been impaneled, and to a reasonable continuance, unless it

              clearly appears from the whole proceedings that the defendant has

              not been misled or prejudiced by the defect or variance in respect
Licking County, Case No. 13-CA-122                                                         8


             to which the amendment is made, or that the defendant's rights will

             be fully protected by proceeding with the trial, or by a

             postponement thereof to a later day with the same or another jury.

             Where a jury is discharged under this division, jeopardy shall not

             attach to the offense charged in the amended indictment,

             information, or complaint. No action of the court in refusing a

             continuance or postponement under this division is reviewable

             except after motion to grant a new trial therefor is refused by the

             trial court, and no appeal based upon such action of the court shall

             be sustained nor reversal had unless, from consideration of the

             whole proceedings, the reviewing court finds that a failure of justice

             resulted.

      {¶22} Although     the   rule   permits   most   amendments,    it   flatly   prohibits

amendments that change the name or identity of the crime charged. State v. Plaster,

164 Ohio App.3d 750, 2005-Ohio-6770, 843 N.E.2d 1261 (5th Dist.2005), ¶ 32,

citing State v. O'Brien, 30 Ohio St.3d 122, 126, 508 N.E.2d 144 (1987). A change in the

name or identity of the charged crime occurs when a complaint is amended so that the

offense alleged in the original complaint and that alleged in the amended complaint

contain different elements which require independent proof. State v. West, 52 Ohio

App.3d 110, 111, 557 N.E.2d 136 (12th Dist. 1988). A trial court commits reversible

error when it permits an amendment that changes the name or identity of the offense

charged, regardless of whether the defendant suffered prejudice. State v. Smith, 10th

Dist. Franklin No. 03AP-1157, 2004-Ohio-4786, ¶ 10. See, also, State v. Headley, 6
Licking County, Case No. 13-CA-122                                                          9


Ohio St.3d 475, 453 N.E.2d 716. “Whether an amendment changes the name or identity

of the crime charged is a matter of law.” State v. Cooper, 4th Dist. Ross No. 97CA2326,

1998 WL 340700 (June 25, 1998), *1, citing State v. Jackson, 78 Ohio App.3d 479, 605

N.E.2d 426 (2nd Dist.1992).

       {¶23} The amendment in this case was neither sua sponte nor initiated by

Appellee, but in response to Appellant’s argument he should have been cited under

R.C. 4511.43 in the first place. Appellee argued the evidence established Appellant’s

guilt under either section because the violation contained in both sections is the

operator’s failure to yield to a driver having the right-of-way; the difference is the type of

intersection and whether it is controlled by a stop or yield sign. Both offenses are minor

misdemeanors.     The difference between the two code sections is described in the

legislative history to R.C. 4511.41:

                     Under prior law, a driver approaching an intersection where

              two roadways crossed each other was generally required to yield

              the right of way to any vehicle approaching from the right, but

              exceptions were made, by reference to section 4511.43, for

              vehicles on through highways, those required to stop by a stop sign

              or traffic signal, those required to yield the right of way by a yield

              sign, and those transferring from one traffic lane to another when

              entering a through highway from a ramp or entrance. Prior law also

              required a driver on a dead-end road or highway to yield to any

              vehicle on the intersecting road or highway unless otherwise

              directed by a traffic control device “or as provided in section
Licking County, Case No. 13-CA-122                                                     10


             4511.43.” The effect of the reference to section 4511.43 was not

             clear in this instance.

                        The new version of the section retains the right of way rule

             former law provided for a driver approaching an intersection not

             controlled by signs or traffic signals, and incorporates, by a general

             reference to exceptions established by other sections of Chapter

             4511., the exceptions prior law established by reference to section

             4511.43. The major difference between the new version of the

             section and prior law is removal of the right of way formerly granted

             a driver on a road that intersected with a dead-end road or

             highway. Under the new version of the section, unless such an

             intersection is controlled by a traffic control device, a driver

             approaching or entering the intersection is required to yield to any

             vehicle approaching from the right regardless of which road the

             driver or other vehicle may be moving on.

             * * * *.

      {¶24} In Allstate Ins. Co. v. Angelo, this Court examined the relationship of R.C.

4511.41 to R.C. 4511.43 and concluded the latter operates as an “exception” to the

former under which a driver at a stop sign approaching from the right, who would

otherwise have the right-of-way, loses the preferential right-of-way because he or she is

required to stop. 7 Ohio App.2d 149, 153, 210 N.E.2d 218 (5th Dist.1966).
Licking County, Case No. 13-CA-122                                                    11


       {¶25} We reach the inevitable conclusion, therefore, despite the circumstances

of the case, the amendment of the traffic citation at issue did change the name or

identity of the violation, which is impermissible pursuant to Crim.R. 7(D).

       {¶26} We therefore do not reach the question of whether Appellant suffered

prejudice from the amendment.       See, State v. Jackson, 78 Ohio App.3d 479, 605

N.E.2d 426 (2nd Dist.1992); State v. Pignaloso, 11th Dist. Portage No. 2006-P-0068,

2007-Ohio-3194. Because we have concluded the amendment changed the name or

identity of the offense, this case is distinguishable from City of Logan v. Quillen, 4th

Dist. Hocking No. 94CA26, 1995 WL 637059, appeal not allowed, 75 Ohio St.3d 1422,

662 N.E.2d 25 [even if amendment changed name and identity of offense, which it did

not, appellant did not sustain prejudice] and our decision in State v. Elliott, 5th Dist.

Licking No. 2011-CA-00064, ¶ 31, appeal not allowed, 132 Ohio St.3d 1410, 2012-Ohio-

2454, 968 N.E.2d 492 [amendment permitted to reflect proper subsection of offense].

       {¶27} Appellant’s first assignment of error is sustained.

                                                II.

       {¶28} In his second assignment of error, Appellant argues the trial court should

have allowed Mark Stalling to testify as an expert witness as to the issue of Ogilbee’s

speed. We disagree.

       {¶29} The initial determination of whether a witness qualifies to testify as an

expert rests with the trial court and will not be reversed absent an abuse of discretion.

State v. Garland, supra, 116 Ohio App.3d at 468, citing Kitchens v. McKay, 38 Ohio

App.3d 165, 169, 528 N.E.2d 603 (12th Dist.1987).
Licking County, Case No. 13-CA-122                                                     12


       {¶30} It is within the sound discretion of a trial court to refuse to admit the

testimony of an expert witness if such testimony is not essential to the trier of fact's

understanding of the issue and the trier of fact is capable of coming to a correct

conclusion without it. Bostic v. Connor, 37 Ohio St.3d 144, 148, 524 N.E.2d 881 (1988).

In this case, Stallings proffered his opinion Ogilbee was traveling “at least 35 miles per

hour,” which would be in excess of the posted 25-mile-per-hour speed limit and in

excess of Purtee’s estimate of her speed at 25 miles per hour.

       {¶31} Purtee testified Ogilbee’s speed was not relevant to his citation of

appellant because it was Appellant’s failure to yield from the stop sign which was the

overall cause of the crash. We find this reasoning persuasive in finding the trial court

did not abuse its discretion in disallowing Stalling’s testimony as an expert witness on

the issue of speed because the trial court was able to determine whether Appellant

failed to yield the right of way from a stop sign without the expert testimony.

       {¶32} Moreover, we find the trial court did not abuse its discretion in finding

Appellant laid an insufficient foundation to establish Stalling was an expert in

establishing the speed of the vehicles. Stalling testified his analysis of the crash was

limited to viewing the vehicles and the crash scene after the fact; he did not take any

measurements from the scene or make any calculations therefrom, and he was not able

to obtain any “black box” evidence from either vehicle.

       {¶33} Appellant’s second assignment of error is overruled.
Licking County, Case No. 13-CA-122                                                13


                                             III & IV

       {¶34} Based upon our disposition of Appellant's Assignment of Error I, we find

these assignments of error premature.

       {¶35} The judgment of the trial court is reversed and the case is remanded to

that court with instruction to render judgment as to whether Appellant violated R.C.

4511.41 as initially cited.

By: Hoffman, P.J.

Wise, J., concurs;

Delaney, J., concurring in part and dissenting in part
Licking County, Case No. 13-CA-122                                                      14

Delaney, J., concurring in part and dissenting in part.

        {¶36} I concur in the majority’s decision the amendment of the traffic citation was

impermissible pursuant to Crim.R. 7(D) and agree to sustain Appellant’s Assignment of

Error I.

        {¶37} However, I respectfully dissent from the majority’s remand instructions to

the trial court to render judgment as to whether Appellant violated R.C. 4511.41, as

initially cited.   I believe the proper disposition should be to reverse the trial court’s

judgment and Appellant discharged. In light thereof, I would find Appellant’s

Assignments of Error III and IV to be moot.

        {¶38} Lastly, I concur in the majority’s decision overruling Appellant’s

Assignment of Error II.
