[Cite as State v. Harris, 2017-Ohio-4095.]




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

 STATE OF OHIO                                     :
                                                   :
          Plaintiff-Appellee                       :   C.A. CASE NO. 27083
                                                   :
 v.                                                :   T.C. NO. 16-TRD-1240
                                                   :
 ANGELA S. HARRIS                                  :   (Criminal Appeal from
                                                   :    Municipal Court)
          Defendant-Appellant                      :
                                                   :

                                              ...........

                                             OPINION

                 Rendered on the ___2nd ___ day of _____June_____, 2017.

                                              ...........

NOLAN C. THOMAS, Atty. Reg. No. 0078255, Prosecuting Attorney, 2325 Wilmington
Pike, Kettering, Ohio 45420
       Attorney for Plaintiff-Appellee

DANIEL J. O’BRIEN, Atty. Reg. No. 0031461, 1210 Talbott Tower, 131 N. Ludlow Street,
Dayton, Ohio 45402
      Attorney for Defendant-Appellant

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

FROELICH, J.

        {¶ 1} After a bench trial in Kettering Municipal Court, Angela Harris was found

guilty of a marked lanes violation, in violation of R.C. 4511.33, a minor misdemeanor.

The charge stemmed from a two-vehicle collision at the intersection of West Alex Bell and

McEwen Roads in Washington Township, Ohio. The trial court imposed a $25 fine and
                                                                                               -2-


court costs. As a result of the conviction, two points would be assessed on Harris’s

driver’s license. At Harris’s request, the trial court stayed the judgment pending appeal.

       {¶ 2} Harris raises three assignments: (1) the trial court erred in failing to inform

her of and obtain a waiver of her right to counsel, (2) the trial court committed plain error

in allowing a deputy to testify as an accident reconstruction expert, and (3) her conviction

was based on insufficient evidence and was against the manifest weight of the evidence.

We will address them in an order that facilitates our analysis.

       {¶ 3} For the following reasons, the trial court’s judgment will be affirmed.

                             I. Defendant’s Right to Counsel

       {¶ 4} In her first assignment of error, Harris claims that the trial court erred in failing

to inform her of her right to counsel. Harris further states that she never knowingly,

intelligently, and voluntarily waived her right to counsel.

       {¶ 5} In State v. Wheeler, 2016-Ohio-2964, 65 N.E.3d 182 (2d Dist.), we discussed

a defendant’s right to counsel when he (or she) is charged with a minor misdemeanor:

              “[A] defendant has no constitutional right to court-appointed counsel

       when a criminal prosecution carries no possibility of incarceration.”

       (Citations omitted.) State v. Woods, 2d Dist. Montgomery No. 16665, 1998

       WL 906786, *4 (Dec. 31, 1998). Rather, a defendant merely has the right

       to retain counsel of his or her own choice. State v. Bettah, 5th Dist. Licking

       No. 05 CA 50, 2006-Ohio-1916, ¶ 42. Under that circumstance, we have

       held that a trial court is not obligated to advise a defendant of the right to

       counsel or to obtain a waiver of that right.           State v. Minne, 2d Dist.

       Montgomery No. 23390, 2010-Ohio-2269, ¶ 20, citing State v. Sturgill, 3d
                                                                                         -3-

       Dist. Auglaize No. 2-01-34, 2002 WL 596114, *2 (Apr. 18, 2002), and State

       v. Wiest, 1st Dist. Hamilton No. C-030674, 2004-Ohio-2577, ¶ 26-27.

              * * * Wheeler was charged with a minor misdemeanor, which does

       not carry the possibility of incarceration. Because he was not facing the

       possibility of incarceration, Wheeler had no right to a court-appointed

       counsel and the trial court did not have any obligation to advise Wheeler of

       the right to counsel or to obtain a waiver of that right. Therefore, we do not

       find that the trial court’s failure to obtain a waiver of the right to counsel

       violated due process, as Wheeler had no such right to waive. Without this

       right, the act of determining whether Wheeler understood the ramifications

       of representing himself or his capability of doing so was unwarranted.

Wheeler at ¶ 23-24.

       {¶ 6} Here, Harris was charged with a marked lanes violation, in violation of R.C.

4511.33. Pursuant to R.C. 4511.33(B), a marked lanes violation is generally a minor

misdemeanor.1 As discussed in Wheeler, because a minor misdemeanor does not carry

the possibility of incarceration, Harris had no right to court-appointed counsel, and the

trial court was not required to inform her of her right to counsel and to obtain a waiver of

her right to counsel.

       {¶ 7} Harris’s first assignment of error is overruled.

                 II. Sufficiency and Manifest Weight of the Evidence



1
  A marked lanes violation can be a fourth-degree misdemeanor or a third-degree
misdemeanor if the offender previously has been convicted of one or more predicate
motor vehicle or traffic offenses within one year of the offense, R.C. 4511.33(B), but the
record reflects that it was a minor misdemeanor in this case.
                                                                                          -4-


       {¶ 8} In her third assignment of error, Harris claims that her conviction was based

on insufficient evidence and was against the manifest weight of the evidence.

       {¶ 9} A sufficiency of the evidence argument disputes whether the State has

presented adequate evidence on each element of the offense to 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, 386, 678 N.E.2d 541 (1997). “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.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph two of the syllabus.

       {¶ 10} In contrast, an argument based on the weight of the evidence “challenges

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

by the evidence is more believable or persuasive.” Wilson at ¶ 12; See Eastley v.

Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 19 (“ ‘manifest weight

of the evidence’ refers to a greater amount of credible evidence and relates to

persuasion”). When evaluating whether a conviction is against the manifest weight of

the evidence, the appellate court must review the entire record, weigh the evidence and

all reasonable inferences, consider witness credibility, 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 conviction must be reversed and a new trial

ordered.” Thompkins at 387, citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d

717 (1st Dist.1983).

       {¶ 11} Because the trier of fact sees and hears the witnesses at trial, we must defer
                                                                                           -5-


to the factfinder’s decisions whether, and to what extent, to credit the testimony of

particular witnesses.    State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL

476684 (Aug. 22, 1997).       However, we may determine which of several competing

inferences suggested by the evidence should be preferred.            Id.   The fact that the

evidence is subject to different interpretations does not render the conviction against the

manifest weight of the evidence. Wilson at ¶ 14. A judgment of conviction should be

reversed as being against the manifest weight of the evidence only in exceptional

circumstances. Martin at 175.

       {¶ 12} At trial, the State presented two witness: Adrienne Crouch, the driver of the

other vehicle, and Deputy Josh Wolf, who responded to the collision. Harris represented

herself at trial and testified on her own behalf.

       {¶ 13} As described by Wolf, the intersection of West Alex Bell and McEwen Roads

is a four-way intersection controlled by a stop light. Alex Bell Road runs roughly east-

west through the intersection, McEwen Road runs south from the intersection, and Olde

Sterling Way runs north from the intersection. At that stop light, McEwen has one lane

of travel each way and a left-turn lane for northbound traffic to turn left onto Alex Bell

Road. Alex Bell Road has a through lane for each direction (east and west) and a central

left-turn lane; eastbound traffic would use the left-turn lane to turn left onto Olde Sterling

Way, whereas westbound traffic would use the left-turn lane to turn left onto McEwen.

Olde Sterling Way has two lanes (northbound and southbound) at the intersection.

       {¶ 14} According to Crouch, at approximately 3:35 p.m. on February 13, 2016, she

was driving eastbound on Alex Bell Road in a silver Yukon. Her three-year-old son was

also in the vehicle. As she approached the intersection of Alex Bell and McEwen Roads,
                                                                                        -6-


she was driving in the same lane behind a blue Subaru; Crouch identified Harris as the

driver of the blue vehicle.

         {¶ 15} Crouch testified that Harris’s vehicle began to turn right on McEwen.

However, when the blue Subaru “had almost completed her turn onto McEwen” and

Crouch proceeded to go through the green light to continue on Alex Bell, the blue vehicle

“kind of made a U-turn back into [Crouch’s] lane” and hit Crouch’s Yukon.         Crouch

clarified that Harris had “practically completed her turn onto McEwen” and was no longer

in Crouch’s lane when Crouch started going through the intersection. Harris’s car was

going “roughly northeast” on McEwen when the vehicles collided. Crouch stated that the

blue vehicle’s front driver’s side “t-boned” the passenger-side front corner of the Yukon.

The vehicles ended up at the curb of the right lane of Alex Bell on the east side of the

Alex Bell/ McEwen intersection. Flames were coming out of the front of her Yukon.

         {¶ 16} Deputy Wolf responded to the collision. When he arrived, another officer,

Sergeant Whitaker, was already on scene, and the vehicles’ occupants were providing

witness statements.       Wolf extinguished the Yukon’s flames with a fire extinguisher.

Wolf noticed that the front driver’s side of the blue Subaru was damaged from the crash.

         {¶ 17} After talking to the occupants of the vehicles, Wolf “examined the roadway

for any indicators, physical evidence from the crash.” He observed that all of the debris

was in the eastbound lanes, and no debris was located on the north side (i.e., westbound

lanes) of the intersection. He saw damage to the front driver’s side of the Subaru and

the front passenger side of the Yukon.

         {¶ 18} Wolf further testified, without objection2:


2
    Harris asked Wolf on cross-examination whether the sergeant’s oral report would be
                                                                                            -7-


       I asked Sergeant Whitaker if there had been any witnesses that had

       stopped.    She advised that there had been but when we diverted our

       attention to put out the fire they had already left. She had spoken to them

       and they had confirmed [Crouch’s] story as to the * * * blue Subaru turning

       and turning back into the lane of travel.

The officers did not obtain witness statements from these witnesses, because they had

already left. The only witness statements were from the occupants of the vehicles.3

       {¶ 19} As a result of the investigation, Deputy Wolf issued a citation for a marked

lanes violation to Harris. Wolf testified that he did so, because “she left the lanes of travel

and then return[ed] to the lanes of travel. And when she did so she caused an accident.”

Wolf identified Harris as the individual he cited.

       {¶ 20} Harris questioned Wolf during cross-examination about whether he had

witnessed any damage to the rear of her vehicle.           Wolf responded that he did not

examine the back of Harris’s vehicle, because the primary impact was to the front driver’s

side of her car. On redirect examination, Wolff testified that damage to the back of

Harris’s vehicle from the collision was “not likely” due to the angle of impact (“almost a 45

degree angle”).

       {¶ 21} Testifying on her own behalf, Harris stated that she was heading down Alex

Bell Road and was in the left lane, with her left turn signal on, to turn into the neighborhood


considered hearsay; he responded, “No.” However, she did not ask the trial court to
exclude Wolf’s testimony regarding Whitaker’s statements.
3
 Attached as an appendix to Harris’s appellate brief is a Traffic Crash Report and the
occupants’ witness statements. These documents were not presented at trial, and the
State has moved to strike the appendix. The State’s motion is granted. Accordingly,
we will not consider these documents in ruling on Harris’s assignments of error.
                                                                                        -8-


off Olde Sterling Way. Harris stated that, as she was completing her turn, the Yukon

“came around me” on the left and collided with the rear driver’s side of her Subaru. Harris

denied that she was turning right and then decided to turn left. She stated that she “knew

exactly where I was headed and my left turn signal was on. And I was in the left lane

making that turn.”    Harris stated that the two vehicles were in the middle of the

intersection, not within the lanes, when the collision occurred. On cross-examination,

Harris stated that the impact to the rear of the vehicle caused her Subaru to rotate, and

the front of her car came into contact with the side of Crouch’s vehicle.

       {¶ 22} Harris showed the trial court several photographs (apparently from her cell

phone) that she had taken at the scene. The record has been supplemented with three

photographs that were most likely viewed at trial.      One photograph shows the two

vehicles at rest following the collision. The two additional photographs show damage to

the rear driver’s side of the Subaru.

       {¶ 23} Harris stated on cross-examination that she had never been to the Olde

Sterling Way neighborhood before, but her passenger (who was not called to testify) had

been there and was directing her.        She stated that, prior to the intersection, her

passenger had instructed her to turn left.

       {¶ 24} The trial court orally found Harris guilty of the marked lanes violation. The

court stated, “Based upon the evidence, the physical evidence in particular and the

testimony presented as to the investigation of the accident, the Court does find that the

prosecution has proven its case beyond a reasonable doubt and will enter a finding of

guilty. Again I am relying upon the physical evidence, the testimony of the investigation

as to points of impact[,] [w]here the debris was found and where the vehicles wound up
                                                                                       -9-


after the collision.”

       {¶ 25} Reviewing the evidence in the light most favorable to the State, we find

sufficient evidence to prove that Harris committed a marked lanes violation. Deputy Wolf

described the Alex Bell and McEwen Roads intersection and how the lanes approaching

that intersection were marked. Crouch’s testimony, if believed, established that Harris

began to turn right from eastbound Alex Bell Road onto southbound McEwen Road, that

Crouch proceeded through the intersection in the eastbound through lane, that Harris

turned around on McEwen, and that Harris hit the right passenger side of Crouch’s Yukon.

In addition, Deputy Wolf testified that the debris was located in the eastbound lanes and

that no debris was located on the north side (i.e., westbound lanes) of the intersection.

Wolf observed damage to the front driver’s side of the Subaru and the front passenger

side of the Yukon.      Harris’s conviction for a marked lanes violation was based on

sufficient evidence.

       {¶ 26} Upon review of all the evidence submitted at trial, we cannot conclude that

the trial court “lost its way” when it found Harris guilty of the marked lanes violation.

Harris testified that she was in the left-turn lane and that her vehicle was rear-ended by

Crouch’s vehicle as Harris was making a left-hand turn onto Olde Sterling Way. Harris

had photographs of damage to the rear driver’s side of her vehicle, but Deputy Wolf’s

observations were consistent with Crouch’s version of events. The credibility of the

witnesses and the weight to be given to their testimony were matters for the judge, as the

trier of fact, to determine. Although there was conflicting evidence regarding how the

collision occurred, we cannot conclude that Harris’s conviction was against the manifest

weight of the evidence.
                                                                                         -10-


       {¶ 27} Harris’s third assignment of error is overruled.

                        III. Accident Reconstruction Testimony

       {¶ 28} In her second assignment of error, Harris claims that the trial court

committed plain error in allowing Deputy Wolf, the deputy who responded to the accident,

to testify as an accident reconstruction expert. Harris did not object to Wolf’s testimony

during the trial.

       {¶ 29} In order to constitute plain error, the error must be an obvious defect in the

trial proceedings, and the error must have affected substantial rights. State v. Norris, 2d

Dist. Montgomery No. 26147, 2015-Ohio-624, ¶ 22; Crim.R. 52(B). The Ohio Supreme

Court has stated that, even if an accused shows that the trial court committed plain error

affecting the outcome of the proceeding, an appellate court is not required to correct it.

State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 23. Rather,

plain error should be noticed “with the utmost caution, under exceptional circumstances

and only to prevent a manifest miscarriage of justice.” (Emphasis added in Rogers.)

Id., quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of

the syllabus.

       {¶ 30} A police officer does not need to be an expert to testify about the collection

of data and recording of information at an accident scene, but accident reconstruction

“involves the use of scientific methodology to draw inferences from investigative data.”

State v. Mobley, 2d Dist. Montgomery No. 26858, 2016-Ohio-4579, ¶ 31, quoting State v.

Brady, 7th Dist. Mahoning No. 13 MA 88, 2014-Ohio-5721, ¶ 43. Consequently, a police

officer who testifies about the cause of an accident must have knowledge concerning or

experience in determining the cause of accidents. Id.
                                                                                     -11-


       {¶ 31} Here, Deputy Wolf testified about his observations at the scene of the

collision. He indicated where he had observed debris, the placement of the vehicles in

the roadway, and the location of the damage that he had observed to the vehicles. Wolf’s

testimony related to the collection of data at the accident scene, not accident

reconstruction testimony, and he did not offer an expert opinion as to the cause of the

accident. We find no error, let alone plain error, in the admission of Deputy Wolf’s

testimony, as a police officer, of his observations at the accident site.

       {¶ 32} Harris’s second assignment of error is overruled.

                                      IV. Conclusion

       {¶ 33} The trial court’s judgment will be affirmed.

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

HALL, P.J. and TUCKER, J., concur.

Copies mailed to:

Nolan C. Thomas
Daniel J. O’Brien
Hon. Frederick W. Dressel
