[Cite as State v. Ferguson, 2012-Ohio-4778.]


                                       COURT OF APPEALS
                                    GUERNSEY COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


                                               :   JUDGES:
STATE OF OHIO                                  :   W. Scott Gwin, P.J.
                                               :   John W. Wise, J.
                         Plaintiff-Appellee    :   Julie A. Edwards, J.
                                               :
-vs-                                           :   Case No. 12CA05
                                               :
                                               :
ELBERT D. FERGUSON                             :   OPINION

                    Defendant-Appellant




CHARACTER OF PROCEEDING:                            Criminal Appeal from Cambridge
                                                    Municipal Court Case No.
                                                    11TRD06666

JUDGMENT:                                           Affirmed

DATE OF JUDGMENT ENTRY:                             October 4, 2012

APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

WILLIAM H. FERGUSON                                 LEWIS M. TINGLE
Cambridge Law Director                              138 North Seventh Street
150 Highland Ave., Ste. 2                           Cambridge, Ohio 43725
Cambridge, Ohio 43725
[Cite as State v. Ferguson, 2012-Ohio-4778.]


Edwards, J.

        {¶1}     Defendant-appellant, Elbert Ferguson, appeals his conviction and

sentence from the Cambridge Municipal Court on one count of driving outside of

marked lanes. Plaintiff-appellee is the State of Ohio.

                                STATEMENT OF THE FACTS AND CASE

        {¶2}     On November 19, 2011, appellant was cited for driving outside of marked

lanes in violation of R.C. 4511.33, a minor misdemeanor. On December 8, 2011,

appellant entered a plea of not guilty to the charge.

        {¶3}     A bench trial was held on January 13, 2012. At the trial, Trooper Mark

Masters of the Ohio State Highway Patrol, who has extensive training in accident

reconstruction, testified that he was in uniform in a marked cruiser on November 19,

2011 when he was sent to the scene of an accident between a motor home and a

commercial vehicle. The accident occurred near a split area involving Interstate 70 and

Interstate 77. At the time he arrived, both vehicles had been moved to the north of the

ramp onto 77 and there was no physical evidence on the roadway that would have

assisted him in his investigation. According to the Trooper, “on [appellant’s] vehicle, his

left rear quarter, maybe ah, foot and a half, two feet of it was damaged and the right

front was damaged on the commercial which shows ah, somebody was changing

lanes.” Transcript at 6.

        {¶4}     Trooper Masters testified that appellant’s motor home had “scraping

damage” which caused him to believe that the vehicle was in motion and that one

vehicle was overtaking the other. Transcript at 8. He testified that, in his opinion,

appellant was changing lanes abruptly to get to the ramp and bumped the commercial
Guernsey County App. Case No. 12CA05                                                       3


vehicle thinking that it was clear in front of him. The trooper testified that while this was

not appellant’s version of events, it was the version provided to him by the driver of the

commercial vehicle.

        {¶5}   On cross-examination, Trooper Masters testified that, according to

appellant, the driver of the commercial vehicle hit appellant’s vehicle while changing

lanes. He testified that there was no debris on the roadway to fix the point of impact.

On redirect, when asked what made him determine that appellant’s version was not

accurate, the Trooper testified, in relevant part, as follows:

        {¶6}   “A. Yeah, the damage on Mr. Ferguson’s vehicle, first of all, I have ah, it

was the left rear and the commercial was the right front, which shows that somebody

was ah, wanting to change into another lane.           Whether it was the commercial or

whether it was ah, Mr. Ferguson. By looking at Mr. Ferguson’s stuff, everything was on

an angle, ah, more of an angle. If it would have been, if the commercial would have

moved into him, it would have been more of a blunt impact. In this case, it was, it was

sort of like this type of impact where it was a scraping, somebody had more momentum,

which in this case it would be Mr. Ferguson.          Whether it was accelerating or just

momentum in general.” Transcript at 15-16.

        {¶7}   On recross, Trooper Masters agreed that the damage to both vehicles was

consistent with appellant’s explanation that he intended to take the ramp to Marietta,

Ohio.

        {¶8}   Ronald Burgess, the driver of the commercial vehicle, testified that it

appeared that it was appellant’s intention to go southbound on Interstate 77. Burgess

testified that he was in the left hand lane when appellant passed him on the right.
Guernsey County App. Case No. 12CA05                                                     4


Burgess testified that appellant then cut over in front of him and clipped the front end of

his truck.

       {¶9}   At trial, appellant testified that he had gotten onto Interstate 70 at

Zanesville and was traveling towards Cambridge. He testified that it was his intention to

take Interstate 70 eastbound and go south on Interstate 77 to Marietta. Appellant

testified that, as he approached the split of Interstate 77, he was traveling in the right

hand lane.    Appellant testified that he intended to take the ramp south off of Interstate

70 to Interstate 77 and that, just before the southbound ramp, there was a collision

between his vehicle and the commercial vehicle. He testified that the driver of the

commercial vehicle moved from the left into the right lane, colliding with appellant.

When asked, appellant indicated that he did not move from the right hand lane into the

left hand lane, causing the collision.

       {¶10} Clifford Harris, who was a defense witness, testified that Burgess’ vehicle

changed lanes and came into contact with appellant’s vehicle. At the time of the

accident, Harris was an eighth or a quarter of a mile behind. He testified that he did not

“exactly” see the two vehicles come into contact with each other. Transcript at 65.

       {¶11} At the conclusion of the evidence, the trial court found appellant guilty. As

memorialized in a Journal Entry filed on January 13, 2012, the trial court fined appellant

$20.00.

       {¶12} Appellant now raises the following assignment of error on appeal:

       {¶13} “JUDGMENT OF THE TRIAL COURT WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE IN THAT STATE OF OHIO FAILED TO PRODUCE

SUFFICIENT EVIDENCE TO SUPPORT A CONVICTION.”
Guernsey County App. Case No. 12CA05                                                       5


                                                 I

       {¶14} Appellant, in his sole assignment of error, argues that his conviction for

driving outside of marked lanes is against the manifest weight and sufficiency of the

evidence.

       {¶15} When reviewing the sufficiency of the evidence, our inquiry focuses

primarily upon the adequacy of the evidence; that is, whether the evidence, if believed,

reasonably could support a finding of guilt beyond a reasonable doubt. See State v.

Thompkins, 78 Ohio St.3d 380, 386, 1997–Ohio–52, 678 N.E.2d 541, State v. Jenks, 61

Ohio St.3d 259, 273, 574 N.E.2d 492 (1991). The standard of review is whether, after

viewing the probative evidence and inferences reasonably drawn therefrom in the light

most favorable to the prosecution, any rational trier of fact could have found all the

essential elements of the offense beyond a reasonable doubt. Jenks, supra.

       {¶16} 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 the

witnesses and determine whether in resolving conflicts in the evidence, the trier of fact

clearly lost its way and created such a manifest miscarriage of justice that the judgment

must be reversed. The discretionary power to grant a new hearing should be exercised

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

judgment.” Thompkins, supra at 387, citing State v. Martin, 20 Ohio App.3d 172, 175,

485 N.E.2d 717 (1st Dist. 1983). Because the trier of fact is in a better position to

observe the witnesses' demeanor and weigh their credibility, the weight of the evidence

and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass, 10

Ohio St.2d 230, 227 N.E.2d 212 (1967), syllabus.
Guernsey County App. Case No. 12CA05                                                        6


       {¶17} Upon our review of the evidence, we find that any rational trier of fact,

construing the evidence in appellant’s favor, could have found that appellant committed

the offense of driving outside of marked lanes and that the trial court, as trier of fact, did

not lose its way in convicting appellant. As is stated above, Trooper Masters, who

worked in the area of accident reconstruction with the Ohio State Highway Patrol and

who taught classes in crash investigation at the Ohio Highway Patrol Academy, testified

that, based on the condition of the vehicles, the accident was caused by appellant. The

Trooper testified that based on the scraping on appellant’s vehicle, he opined that the

accident was caused when appellant was accelerating while changing lanes.                  In

addition, Ronald Burgess, the driver of the commercial vehicle, testified that appellant

caused the accident when he cut over in front of Burgess and clipped the front end of

Burgess’ truck. Moreover, Mike Shirley, who was a passenger in Burgess’ vehicle,

testified that he observed appellant’s vehicle “coming in front of us”. Transcript at 38.

The trial court, as trier of fact, was in the best position to assess their credibility and

clearly found their version of events credible.
Guernsey County App. Case No. 12CA05                                                  7


      {¶18} Based on the foregoing, appellant’s sole assignment of error is, therefore,

overruled.

      {¶19} Accordingly, the judgment of the Cambridge Municipal Court is affirmed.




By: Edwards, J.

Gwin, P.J. and

Wise, J. concur

                                                 ______________________________



                                                 ______________________________



                                                 ______________________________

                                                             JUDGES

JAE/d0710
[Cite as State v. Ferguson, 2012-Ohio-4778.]


             IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                    :
                                                 :
                            Plaintiff-Appellee   :
                                                 :
                                                 :
-vs-                                             :       JUDGMENT ENTRY
                                                 :
ELBERT D. FERGUSON                               :
                                                 :
                        Defendant-Appellant      :       CASE NO. 12CA05




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

judgment of the Cambridge Municipal Court is affirmed. Costs assessed to appellant.




                                                     _________________________________


                                                     _________________________________


                                                     _________________________________

                                                                  JUDGES
