         [Cite as State v. Zou, 2012-Ohio-1911.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                     :   APPEAL NO. C-110515
                                                       TRIAL NO. 11TRD-34925
        Plaintiff-Appellee,                        :
                                                           O P I N I O N.
  vs.                                              :

YONGKUN ZOU,                                       :

    Defendant-Appellant.                           :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: May 2, 2012


John Curp, City Solicitor, Charles Rubenstein, City Prosecutor, and Christopher Liu,
Assistant City Prosecutor, for Plaintiff-Appellee,

Charleston C. K. Wang, for Defendant-Appellant.




Please note: This case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS




D INKELACKER , Judge.

       {¶1}    Following a bench trial, defendant-appellant Yongkun Zou was

convicted of violating Cincinnati Municipal Code 506-39. It provides that “[t]he

operator of a vehicle about to enter or cross a highway from any place other than

another roadway shall yield the right of way to all traffic approaching on the roadway

to be entered or crossed.” Zou has filed a timely appeal from that conviction in

which she asserts three assignments of error. We find merit in her arguments, and

we, therefore, reverse the trial court’s judgment.

       {¶2}    In her first assignment of error, she contends that the trial court erred

by failing to apply a reasonable-doubt standard. She argues that the state was

required to prove the elements of Cincinnati Municipal Code 506-39 beyond a

reasonable doubt, and that the trial court violated her right to due process by not

requiring that level of proof. This assignment of error is well taken.

       {¶3}    Cincinnati Municipal Code 512-1 specifically states that “[i]t is a

misdemeanor for any person to violate the provisions of the traffic code unless such a

violation is a parking infraction * * * or unless such violation is by a law of this state

declared to be a felony.” Thus, the code defines a violation of Cincinnati Municipal

Code 506-39 as a misdemeanor.

       {¶4}    Further, Cincinnati Municipal Code 902-1 provides that “[o]ffenses in

the Cincinnati Municipal Code include misdemeanors of the first, second, third, and

fourth degree, minor misdemeanors, and misdemeanors not specifically classified.”

Thus, the Cincinnati Municipal Code indicates, and the state concedes, that a

violation of Cincinnati Municipal Code 506-39 is a misdemeanor criminal offense

requiring the state to prove the elements of the offense beyond a reasonable doubt.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



See R.C. 2901.05(A); State v. Lynn, 129 Ohio St.3d 146, 2011-Ohio-2722, 950 N.E.2d

931, ¶ 15; State v. Brown, 7 Ohio App.3d 113, 115, 454 N.E.2d 596 (10th Dist.1982).

       {¶5}     The record shows that at the close of the state’s case, Zou moved for a

judgment of acquittal under Crim.R. 29(A). The trial court stated, “So the standard

is not reasonable doubt at this juncture. So it’s denied.” After the defense rested

without presenting any evidence, Zou’s counsel argued, “we reiterate to the Court the

testimony here is not beyond a reasonable doubt of what occurred.” The trial court

responded, “Good try.       The finding is guilty.”   Thus, Zou argues, the record

affirmatively demonstrates that the court failed to apply the reasonable-doubt

standard. See State v. Townsend, 6th Dist. No. L-09-1231, 2011-Ohio-6308, ¶ 68-71.

We agree.

       {¶6}     The state contends that the standard of proof for a Crim. R. 29 motion

and a conviction are not the same. It argues that because a Crim.R. 29 motion

requires the court to view the evidence in a light most favorable to the prosecution,

the burden of proof is significantly lower than the reasonable-doubt standard. This

is not a correct interpretation of the law.

       {¶7}     “Pursuant to Crim.R. 29(A), a court shall not order an entry of

judgment of acquittal if the evidence is such that reasonable minds can reach

different conclusions as to whether each material element of a crime has been proved

beyond a reasonable doubt.” (Emphasis added.) State v. Bridgeman, 55 Ohio St.2d

251, 381 N.E.2d 184 (1978), syllabus. This court has said many times that a claim

that the trial court erred in overruling a Crim.R. 29(A) motion is the same as a claim

that the evidence was insufficient to support the conviction. See, e.g., State v. Jones,

1st Dist. No. C-080518, 2009-Ohio-4190, ¶ 41; State v. Brewster, 1st Dist. Nos. C-

030024 and C-030025, 2004-Ohio-2993, ¶ 73.



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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶8}     Courts, including this one, have held that the failure to properly

instruct a jury on reasonable doubt is prejudicial error. See State v. Black, 78 Ohio

App.3d 130, 133-134, 604 N.E.2d 171 (1st Dist.1991); Cleveland v. Buckley, 67 Ohio

App.3d 799, 805, 588 N.E.2d 912 (8th Dist.1990); Brown, 7 Ohio App.3d at 115-116,

454 N.E.2d 596. In so holding, we stated,

       The idea that a defendant is presumed innocent until his guilt is

       established beyond a reasonable doubt is the very cornerstone of our

       criminal justice system. It is, by design, a difficult standard to meet,

       and any charge to the jury which lessens the standard or which leaves

       the jury uncertain as to what the standard is or how it is to be applied

       is not acceptable. Black at 133-134.

If it is error for a trial court to fail to properly instruct a jury on reasonable doubt, it

is also error for a court to fail to apply the correct standard in a bench trial.

       {¶9}     Consequently, we sustain Zou’s first assignment of error. We reverse

the trial court’s judgment of conviction, and remand the case to the trial court for a

new trial. Our resolution of the first assignment of error renders her second and

third assignments of error moot, and we decline to address them.               See App.R.

12(A)(1)(c).

                                                 Judgment reversed and cause remanded.



H ILDEBRANDT , P.J., and C UNNINGHAM , J., concur.


Please note:
       The court has recorded its own entry this date.




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