[Cite as State v. Burk, 2018-Ohio-4993.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                     CHAMPAIGN COUNTY

 STATE OF OHIO                                   :
                                                 :
         Plaintiff-Appellee                      :   Appellate Case No. 2018-CA-13
                                                 :
 v.                                              :   Trial Court Case No. 2018-TRD-758
                                                 :
 RICHARD BURK                                    :   (Criminal Appeal from
                                                 :   Municipal Court)
         Defendant-Appellant                     :
                                                 :

                                            ...........

                                           OPINION

                          Rendered on the 14th day of December, 2018.

                                            ...........

MARK FEINSTEIN, Atty. Reg. No. 0065183, Champaign County Municipal Prosecutor,
205 South Main Street, Second Floor, Urbana, Ohio 43078
      Attorney for Plaintiff-Appellee

APRIL F. CAMPBELL, Atty. Reg. No. 0089541, 545 Metro Place South, Suite 100, Dublin,
Ohio 43017
      Attorney for Defendant-Appellant

                                           .............




TUCKER, J.
                                                                                          -2-




       {¶ 1} This case is before us on the appeal of Defendant-Appellant, Richard Burk,

from his conviction for Overtaking and Passing on the Right, a minor misdemeanor traffic

violation.   In support of his appeal, Burk contends that the evidence was legally

insufficient and that the evidence weighed heavily against his conviction.

       {¶ 2} For the reasons discussed below, we conclude that the trial court’s judgment

was based on sufficient evidence and was also not against the weight of the evidence.

Accordingly, the judgment of the trial court will be affirmed.



                              I. Facts and Course of Proceedings

       {¶ 3} On April 7, 2018, City of Urbana Police Officer Cade Hunt issued a traffic

citation to Burk for Overtaking and Passing on the Right, a violation of Section 331.04 of

the City of Urbana Code of Ordinances (“Code”). After Burk pled not guilty to the charge,

the trial court held a bench trial on April 27, 2018, and heard testimony from Burk, Hunt,

and a driver whose automobile had collided with Burk’s truck.

       {¶ 4} Crystal Adkins, the other driver, testified that on the day of the accident, she

was driving south on Main Street through Urbana, Ohio, when she encountered a truck

with an attached trailer that was stopped ahead of her automobile.           The truck was

stopped to turn left into the fairgrounds. At the time, traffic was coming from the north,

and the truck was waiting to turn. Adkins stated that she was not turning left; instead,

she was planning to go straight after the truck turned.

       {¶ 5} After waiting less than five minutes, Adkins prepared to go around the truck

because she knew it was going to be there awhile due to the traffic coming north. Adkins
                                                                                          -3-


looked behind and did not see anyone. However, when she went around the truck, the

front of her vehicle hit Burk’s vehicle, which was attempting to pass her on her right.

       {¶ 6} Burk testified that on the day of the accident, he was at a light on Main Street

and saw a truck pulling a trailer and another car behind the truck. Both vehicles had on

their brake lights and were sitting at a light. Burk continued south down the road and

stopped about five or six cars behind the other vehicles. According to Burk, neither

vehicle had activated a turn signal, and Burk thought that the two vehicles were together.

Burk also claimed that no cars were coming from the north. After sitting there awhile and

seeing no movement, Burk went to the right of Adkins’s car. He then saw in his rearview

mirror that Adkins’s car was pulling out. Burk honked his horn and sped up, but Adkins

hit the side of his truck.

       {¶ 7} Officer Hunt was dispatched to the accident scene. He observed damage

on the right front of Adkins’s car and damage to the rear left of Burk’s truck. Photos of

the vehicles were taken, and Hunt issued a citation to Burk for overtaking and passing on

the right.

       {¶ 8} After hearing the testimony, the trial court found Burk guilty of the violation,

noted that Burk had no violations on his driving record, and imposed $142 in court costs.

This timely appeal followed.



                             II. Sufficiency and Weight of the Evidence

       {¶ 9} Burk’s sole assignment of error states that:

               Burk’s Conviction and Sentence for Overtaking and Passing Upon

       the Right Should be Reversed: The State’s Evidence that Burk Violated that
                                                                                         -4-


       Traffic Code is Legally Insufficient as a Matter of Law, and the Evidence

       Weighs Heavily Against Convicting Him.

       {¶ 10} Under this assignment of error, Burk contends that his conviction was based

on insufficient evidence because the State failed to prove that he did not have the right to

overtake and pass Adkins’s vehicle on the right. According to Burk, he had the right to

presume, absent some warning, that the course of the vehicle in front of him would not

be changed.

       {¶ 11} Before we address Burk’s argument, we note that the State failed to file a

brief, despite the issuance of show cause orders on August 27 and 29, 2018. In such

situations, App.R. 18(C) allows us to “accept the appellant's statement of the facts and

issues as correct and reverse the judgment if appellant's brief reasonably appears to

sustain such action.”

       {¶ 12} As was noted, Burk was convicted of violating Code Section 331.04. This

section is tailored on R.C. 4511.18, and provides, in relevant part, that:

               (a) The driver of a vehicle may overtake and pass upon the right of

       another vehicle only under the following conditions:

               (1) When the vehicle overtaken is making or about to make a left

       turn;

               (2) Upon a roadway with unobstructed pavement of sufficient width

       for two or more lines of vehicles moving lawfully in the direction being

       traveled by the overtaking vehicle.

               (b) The driver of a vehicle may overtake and pass another vehicle

       only under conditions permitting such movement in safety. The movement
                                                                                          -5-


       shall not be made by driving off the roadway.

       {¶ 13} After hearing the testimony, the trial court found that Burk failed to comply

with the first element in the ordinance, because Adkins was not turning left, and there was

no testimony by anyone that she was turning. The court further noted that Burk had said

that he did not know what either of the vehicles ahead of him was doing. Transcript of

Proceedings (“Tr.”), p. 24.

       {¶ 14} Although Burk did not specifically mention manifest weight of the evidence

in his assignment of error, we assume that he is raising both sufficiency of the evidence

and a manifest weight challenge. “A sufficiency of the evidence argument disputes

whether the State has presented adequate evidence on each element of the offense to

allow the case to go to the jury or sustain the verdict as a matter of law.” State v. Wilson,

2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio

St.3d 380, 678 N.E.2d 541 (1997). In this situation, we apply the test from State v. Jenks,

61 Ohio St.3d 259, 574 N.E.2d 492 (1991), which states that:

              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.

Id. at paragraph two of the syllabus.

       {¶ 15} In contrast, “[a] weight of the evidence argument challenges the believability
                                                                                           -6-


of the evidence and asks which of the competing inferences suggested by the evidence

is more believable or persuasive.”       (Citation omitted.)   Wilson at ¶ 12.      Where a

manifest weight challenge is involved, a court reviews “ ‘the entire record, weighs the

evidence and all reasonable inferences, considers the credibility of witnesses and

determines 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. The discretionary power to grant a new trial should be exercised

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

conviction.’ ” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1st Dist.1983). Accord State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-

5084, 854 N.E.2d 1038, ¶ 193.

        {¶ 16} “Although sufficiency and manifest weight are different legal concepts,

manifest weight may subsume sufficiency in conducting the analysis; that is, a finding that

a conviction is supported by the manifest weight of the evidence necessarily includes a

finding of sufficiency.” (Citations omitted.) State v. McCrary, 10th Dist. Franklin No.

10AP-881, 2011-Ohio-3161, ¶ 11. Accord State v. Robinson, 2d Dist. Montgomery No.

26441, 2015-Ohio-1167, ¶ 17.         As a result, “a determination that a conviction is

supported by the weight of the evidence will also be dispositive of the issue of sufficiency.”

(Citations omitted.) State v. Braxton, 10th Dist. Franklin No. 04AP-725, 2005-Ohio-2198,

¶ 15.

        {¶ 17} In the case before us, the trial was before the court, not a jury.

Nonetheless, in either situation, “[b]ecause the factfinder * * * has the opportunity to see

and hear the witnesses, the cautious exercise of the discretionary power of a court of
                                                                                           -7-


appeals to find that a judgment is against the manifest weight of the evidence requires

that substantial deference be extended to the factfinder's determinations of credibility.

The decision whether, and to what extent, to credit the testimony of particular witnesses

is within the peculiar competence of the factfinder, who has seen and heard the witness.”

State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997).

See also State v. Hill, 2d Dist. Montgomery No. 25274, 2013-Ohio-2016, ¶ 17.

       {¶ 18} After reviewing the record, we cannot find that the conviction was against

the manifest weight of the evidence.

       {¶ 19} In Westervelt v. Rooker, 4 Ohio St.3d 146, 447 N.E.2d 1307 (1983), the

Supreme Court of Ohio held that “R.C. 4511.28 prescribes a rule of conduct, and the

issue of whether the movement contemplated by the statute can be made in safety is for

jury determination from all of the attending facts and circumstances as shown by the

evidence.” Id. at paragraph two of the syllabus. The court further stated that “the

permission to pass is conditioned solely upon what the stranger ahead intends to do, and

intent, being a subjective matter, necessarily depends upon an evaluation of multiple facts

and circumstances. Surely, the approaching motorist, in the usual course of events, is

not required to stop in a hazardous position on the thoroughfare and await some

providential sign that the vehicle ahead is definitely “ ‘about to make a left turn.’ ” Id. at

148.

       {¶ 20} In arguing that the trial court erred, Burk relies on the last sentence of the

above statement in Rooker. Specifically, Burk argues that he had waited long enough

and was entitled to presume that Adkins’s vehicle was not going to suddenly change

course. However, the trial court was in the best position to observe the witnesses and
                                                                                         -8-


decide credibility.    In fact, the court specifically stated that it did not believe Burk’s

statements about how long the other cars had been sitting in the middle of the road. Tr.

at p. 27. The witnesses gave conflicting accounts, and the trial court was entitled to

judge their credibility.

       {¶ 21} Burk’s own testimony was also contradictory, as he initially said that he

thought both vehicles were together. Id. at p. 18. However, the following exchange

later occurred during Burk’s testimony:

                Q. Did it appear that they [the two other vehicles] were sitting there

       to turn left?

                A. I don’t know. I didn’t know if she was with him, because he

       didn’t have taillights on the trailer or what the story was. I don’t know what

       they were doing. They were just sitting there.

Tr. at p. 19.

       {¶ 22} Based on the preceding discussion, the conviction was not against the

manifest weight of the evidence.         Furthermore, in view of this conclusion, Burk’s

argument about sufficiency of the evidence is also without merit. McCrary, 10th Dist.

Franklin No. 10AP-881, 2011-Ohio-3161, at ¶ 11; Braxton, 10th Dist. Franklin No. 04AP-

725, 2005-Ohio-2198, at ¶ 15. Burk’s sole assignment of error, therefore, is overruled.



                                          III. Conclusion

       {¶ 23} Burk’s sole assignment of error having been overruled, the judgment of the

trial court is affirmed.
                                                -9-


                                .............



WELBAUM, P.J. and HALL, J., concur.



Copies sent to:

Mark Feinstein
April F. Campbell
Hon. Gil S. Weithman
