[Cite as State v. Jenkins, 2016-Ohio-5747.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                 :      JUDGES:
                                              :      Hon. Sheila G. Farmer, P.J.
        Plaintiff - Appellee                  :      Hon. W. Scott Gwin, J.
                                              :      Hon. Craig R. Baldwin, J.
-vs-                                          :
                                              :
THOMAS N. JENKINS                             :      Case No. 16-CA-13
                                              :
        Defendant - Appellant                 :      OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Licking County
                                                     Municipal Court, Case No. 16 TRD
                                                     00234




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    August 31, 2016




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

TRICIA M. MOORE                                      ROBERT N. ABDALLA
Assistant Law Director                               Reese, Pyle, Drake and Meyer, P.L.L.
40 W. Main Street                                    P.O. Box 919, 36 North 2nd Street
Newark, Ohio 43055                                   Newark, Ohio 43055
Licking County, Case No. 16-CA-13                                                          2



Baldwin, J.

       {¶1}   Defendant-appellant Thomas N. Jenkins appeals his conviction and

sentence from the Licking County Municipal Court on one count of failure to obey a traffic

control device. Plaintiff-appellee is the State of Ohio.

                               STATEMENT OF THE FACTS AND CASE

       {¶2}   On January 9, 2016, appellant was cited for failure to obey a traffic control

device in violation of R.C. 4511.12. Appellant, on January 19, 2016, entered a written plea

of not guilty to the charge.

       {¶3}   Thereafter, a bench trial was held on February 3, 2016. At the trial, Ohio

State Highway Patrol Trooper Michael Epler testified that at approximately 9:11 a.m. on

January 9, 2016, he was traveling southbound on State Route 310 and approaching

Morse Road when he observed appellant’s vehicle go through a red light at the

intersection. When asked how he determined that the light was red from his direction, the

Trooper testified that it was because his light was green. Trooper Epler also observed

another vehicle sitting in front of or at the stop bar at the traffic light from the same

direction that appellant had traveled.

       {¶4}   Trooper Epler then initiated a traffic stop of appellant’s vehicle. The Trooper

testified that appellant admitted going through a red light and stated that he had sat at the

light for “five minutes and um…the car in front of him did not pull up to the stop bar or

whatever it didn’t trip the light um…is what he stated and he went around the car and

looked both ways and went through the red light.” Trial Transcript at 10. Appellant,

according to the Trooper, asked the Trooper to give him a break and told him that he was
Licking County, Case No. 16-CA-13                                                              3


running late for work. Trooper Epler testified that when he went through the same

intersection later that day, the light changed color.

       {¶5}     On cross-examination, Trooper Epler testified that during the traffic stop,

the white car that had been sitting at the intersection in front of appellant’s vehicle passed

his cruiser. He admitted that he never saw the light change and therefore did not know

whether or not the white car waited for the light to change or just proceeded through the

intersection.

       {¶6}     Paul Boster testified at trial on behalf of appellant. He testified that he lives

near the intersection of Morse and State Route 310 and had experience with the

intersection there. According to him, Route 310 had priority. He testified that he had

experienced the light staying red at such intersection on eastbound for several minutes

and that the light did not change if the signal was not tripped. On cross-examination, he

testified that the light had been there for “probably” the majority of the 26 years he had

lived there and that, while he works for the Ohio Department of Transportation (“ODOT”),

he never complained about the light. Boster further agreed that if the light was red, “you

need to stop and stay at that light until it turns green…” Trial Transcript at 17.

       {¶7}     Appellant also testified at trial. Appellant testified that he drove a courier

vehicle and that three out of four Saturday mornings, the light at the intersection never

changes. He testified that he observed others run the light and that he always stopped

and looked before he did so himself. When asked what happened the morning in question,

appellant testified as follows:

                A: I pulled up behind the lady, I don’t know how long she was sitting

       there but I noticed that her head kept turning back and forth and I sat there
Licking County, Case No. 16-CA-13                                                          4


       for four or five minutes and blew the horn at her three or four times and she

       didn’t move. She looked very confused and I thought well maybe she is

       sick so I pulled around her, I pulled up there and I stopped. I looked both

       ways and didn’t see any cars coming and I pulled across the intersection. I

       went down the road a little ways and was looking in my rearview mirror and

       I saw the trooper turn the corner and I just pulled over and I thought I would

       explain to him what happened but you saw the video there.

       {¶8}   Trial Transcript at 19-20. According to appellant, he was watching the light

and it never changed to green.

       {¶9}   On cross-examination, appellant admitted that he did not say anything to

Trooper Epler about the light and told him that he was running late for work. Appellant did

not deny going through the red light on the day in question and stated that he did not drive

back through the intersection the same day.

       {¶10} At the conclusion of the testimony, the court found appellant guilty and fined

him $15.00 and court costs.

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

       {¶12} THE TRIAL (SIC) ERRED IN ITS INTERPRETATION OF O.R.C. 4511.132

BY FINDING THE STATUTE INAPPLICABLE TO SITUATIONS WHERE A TRAFFIC

LIGHT VEHICLE DETECTOR FAILS TO DETECT A WAITING VEHICLE.

                                                  I

       {¶13} Appellant, in his sole assignment of error, argues that the trial court erred in

finding R.C. 4511.132 inapplicable to his case.
Licking County, Case No. 16-CA-13                                                            5


       {¶14} Appellant, in the case sub judice, argued in closing that he did not deny

going through the red light, but that the traffic light was malfunctioning and that he acted

appropriately pursuant to R.C. 4511.132.

       {¶15} R.C. 4522.132 states, in relevant part, as follows:

       {¶16} (A) The driver of a vehicle, streetcar, or trackless trolley who approaches

an intersection where traffic is controlled by traffic control signals shall do all of the

following, if the signal facing the driver either exhibits no colored lights or colored lighted

arrows or exhibits a combination of such lights or arrows that fails to clearly indicate the

assignment of right-of-way:

       {¶17} (1) Stop at a clearly marked stop line, but if none, stop before entering the

crosswalk on the near side of the intersection, or, if none, stop before entering the

intersection;

       {¶18} (2) Yield the right-of-way to all vehicles, streetcars, or trackless trolleys in

the intersection or approaching on an intersecting road, if the vehicles, streetcars, or

trackless trolleys will constitute an immediate hazard during the time the driver is moving

across or within the intersection or junction of roadways;

       {¶19} (3) Exercise ordinary care while proceeding through the intersection.

       {¶20} However, we concur with appellee that appellant has failed to establish that

the light was malfunctioning. While the statute defined a malfunctioning light as one that

either exhibits no colored lights or colored lighted arrows or exhibits a combination of such

lights or arrows that fails to clearly indicate the assignment of right-of-way, as noted by

appellee, appellant had a steady red signal in his direction and the opposing traffic had a

steady green indicator. Moreover, appellee produced credible evidence, if believed by the
Licking County, Case No. 16-CA-13                                                            6


trial court as trier of fact, that the light was not malfunctioning. At trial, Trooper Epler

testified that he drove through the intersection after his contact with appellant and that the

light changed color and was functioning. He testified that he was unaware of any problems

called into dispatch concerning the light in question. Paul Boster testified that the light

would not change if you did not trip the signal. He testified that he had never complained

to ODOT about the way the light works and that “it is sporadic”. Trial Transcript at 17. He

agreed that if the light was red, one needed to stop and stay at that light until it turned

green.

         {¶21} Testimony also was adduced at the trial that appellant never mentioned

anything to the Trooper about the light, but rather told him that he was running late for

work. Appellant, as is stated above, admitted that he drive through a red light.

         {¶22} Based on the foregoing, we find that the trial court did not err in declining to

apply R.C. 4511.132 to appellant’s case. The trial court, as trier of fact, was in the best

position to assess the credibility of the witnesses and was free to believe the Trooper’s

testimony that the traffic device was functioning properly, despite appellant's allegations

to the contrary.

         {¶23} Appellant’s sole assignment of error is, therefore, overruled.
Licking County, Case No. 16-CA-13                                                     7




      {¶24} Accordingly, the judgment of the Licking County Municipal Court is affirmed.

By: Baldwin, J.

Farmer, P.J. and

Gwin, J. concur.
