[Cite as In re D.B., 2017-Ohio-4174.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 IN RE: D.B. JUVENILE                           :   JUDGES:
                                                :
                                                :   Hon. Patricia A. Delaney, P.J.
                                                :   Hon. William B. Hoffman, J.
                                                :   Hon. John W. Wise, J.
                                                :
                                                :   Case No. 2016CA00189
                                                :
                                                :
                                                :
                                                :   OPINION


CHARACTER OF PROCEEDING:                            Appeal from the Stark County Court of
                                                    Common Pleas, Juvenile Division, Case
                                                    No. 2016 JTR 00170



JUDGMENT:                                           AFFIRMED




DATE OF JUDGMENT ENTRY:                             June 5, 2017




APPEARANCES:

 For Plaintiff-Appellee:                            For Defendant-Appellant:

 JOHN D. FERRERO, JR.                               BERNARD L. HUNT
 STARK CO. PROSECUTOR                               2395 McGinty Rd. N.W.
 RENEE M. WATSON                                    N. Canton, OH 44720
 110 Central Plaza South, Ste. 510
 Canton, OH 44702-0049
Stark County, Case No. 2016CA00189                                                       2



Delaney, P.J.

       {¶1} Appellant D.B. appeals from the October 6, 2016 Judgment Entry of the

Stark County Court of Common Pleas, Juvenile Division overruling his objections to the

decision of the magistrate. Appellee is the state of Ohio.

                        FACTS AND PROCEDURAL HISTORY

       {¶2} The following facts are adduced from appellant’s trial before the magistrate

and from the crash report and witness statements included in the record. Sometime

around 3:00 p.m. on February 11, 2016, appellant pulled into the parking lot at Roma’s

Radiator Shop in Perry Township, Stark County, Ohio to talk to a friend. The crash report

is included in the record of the case and describes the vehicle appellant was driving as a

black Ford F-250 pickup truck.

       {¶3} Joseph Kirkman was at work in the radiator shop when he looked out the

window and saw appellant’s black pickup truck back into the fence. Kirkman ran out to

alert appellant and get his information, but the truck pulled out and Kirkman was only able

to get a partial plate number.

       {¶4} Michael Roma Sr., the owner of the property, ran out to try to stop the truck

and someone in the truck said, “I’ve got a gun, you better get back in the building.” Roma

also obtained a partial license plate number.

       {¶5} Three fence posts were damaged and Roma obtained an estimate to repair

the damage for $625. Roma testified appellant never contacted him about the property

damage.

       {¶6} Someone at Roma’s called Perry police, reported the hit-skip and provided

the vehicle description and partial plate number. Shortly thereafter Ptl. Locy observed a
Stark County, Case No. 2016CA00189                                                      3


vehicle matching the description on Perry Drive and completed a traffic stop. Locy asked

appellant if he hit anything and appellant admitted hitting the fence. Locy told appellant

to return to Roma’s Radiator Shop and followed appellant back to the shop.

       {¶7} Another officer, Ptl. Barrett, spoke with appellant at the shop, took

statements, and completed a crash report.

       {¶8} Appellant’s written statement says he pulled into Roma’s Radiator shop to

check on a friend in a separate vehicle in the parking lot. They talked for a moment and

appellant “backed out and left unaware that [he] had backed into Roma’s fence.”

       {¶9} Ptl. Barrett gave Roma a business card which included the crash report

number.

       {¶10} Appellant was charged by Uniform Traffic Ticket (U.T.T.) with one count of

leaving the scene of an accident pursuant to R.C. 4549.021. The case proceeded to trial

before a magistrate and appellant moved for acquittal at the close of appellee’s evidence

and at the close of all of the evidence. The magistrate overruled the motions and

adjudicated appellant a juvenile traffic offender. Appellant objected to the magistrate’s

decision and appellee responded with a memorandum in opposition. On October 6, 2016,

the trial court approved and adopted the magistrate’s decision.

       {¶11} Appellant now appeals from the October 6, 2016 decision of the trial court

and raises one assignment of error:

                              ASSIGNMENT OF ERROR

       {¶12} “THE TRIAL COURT’S DECISION FINDING THAT D.B. WAS A JUVENILE

TRAFFIC OFFENDER WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE,

THUS NOT SUPPORTED BY SUFFICIENT EVIDENCE.”
Stark County, Case No. 2016CA00189                                                        4


                                        ANALYSIS

       {¶13} Appellant argues his conviction upon one count of leaving the scene of an

accident is against the manifest weight and sufficiency of the evidence because he

returned to the scene under police escort. We disagree.

       {¶14} The legal concepts of sufficiency of the evidence and weight of the evidence

are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380,

678 N.E.2d 541, paragraph two of the syllabus. The standard of review for a challenge

to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio Supreme Court

held, “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.”

       {¶15} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing 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 overturned and a new trial ordered.” Thompkins, 78 Ohio St.3d at 387. Reversing a

conviction as being against the manifest weight of the evidence and ordering a new trial
Stark County, Case No. 2016CA00189                                                       5


should be reserved for only the “exceptional case in which the evidence weighs heavily

against the conviction.” Id.

       {¶16} A manifest-weight challenge “concerns ‘the inclination of the greater

amount of credible evidence * * * to support one side of the issue rather than the other.’”

(Emphasis sic.) State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d

180, ¶ 75, citing Thompkins, supra, 78 Ohio St.3d at 387, quoting Black's Law Dictionary

1594 (6th Ed.1990). In addressing a manifest-weight argument, we are able to consider

the credibility of the witnesses. State v. McCrary, 10th Dist. Franklin No. 10AP–881,

2011–Ohio–3161, ¶ 13, citing State v. Cattledge, 10th Dist. No. 10AP–105, 2010–Ohio–

4953, ¶ 6.

       {¶17} 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. State v. Braxton, 10th Dist. Franklin No. 04AP–725, 2005–Ohio–

2198, ¶ 15, citing State v. Roberts, 9th Dist. Lorain No. 96CA006462 (Sept. 17, 1997).

“[T]hus, a determination that a conviction is supported by the weight of the evidence will

also be dispositive of the issue of sufficiency.” Id.

       {¶18} Appellant was found guilty upon one count of leaving the scene pursuant to

R.C. 4549.021, which states in pertinent part:

                      (A)(1) In the case of a motor vehicle accident or collision

              resulting in injury or damage to persons or property on any public or

              private property other than a public road or highway, the operator of

              the motor vehicle, having knowledge of the accident or collision, shall
Stark County, Case No. 2016CA00189                                                         6


             stop at the scene of the accident or collision. Upon request of any

             person who is injured or damaged, or any other person, the operator

             shall give that person the operator's name and address, and, if the

             operator is not the owner, the name and address of the owner of that

             motor vehicle, together with the registered number of that motor

             vehicle, and, if available, exhibit the operator's driver's or commercial

             driver's license.

                    (2) If the operator of the motor vehicle involved in the accident

             or collision does not provide the information specified in division

             (A)(1) of this section, the operator shall give that information, within

             twenty-four hours after the accident or collision, to the police

             department of the city or village in which the accident or collision

             occurred, or if it occurred outside the corporate limits of a city or

             village, to the sheriff of the county in which the accident or collision

             occurred.

                    * * * *.

                    (B)(1) Whoever violates division (A) of this section is guilty of

             failure to stop after a nonpublic road accident. Except as otherwise

             provided in division (B)(2) or (3) of this section, failure to stop after a

             nonpublic road accident is a misdemeanor of the first degree.

                    * * * *.

       {¶19} Appellant argues he cannot be a juvenile traffic offender pursuant to the

statute because he returned to the scene within 24 hours of the crash, albeit under police
Stark County, Case No. 2016CA00189                                                         7


escort, and provided his identifying information to police for inclusion in the crash report.

We disagree with appellant’s characterization of his actions and find he did not comply

with the statute.

       {¶20} In State v. Hoy, 10th Dist. Franklin No. 02AP-1197, 2003-Ohio-2482, at ¶

16, the Tenth District noted:

                     Compliance with R.C. 4549.021 may be made in two ways.

              Following an accident, the person driving the vehicle causing the

              accident shall: (1) stop; (2) if requested, give his name and address,

              or the name and address of the vehicle owner, and the registration

              number of the vehicle; and (3) show a driver's license if available. In

              the alternative, the person driving the vehicle causing the accident

              may report the same information to the police department in the city

              or village where the accident occurred, or, if the accident occurred

              outside the corporate limits, to the sheriff within 24 hours of the

              accident. (Emphasis added.)

       {¶21} In the instant case, appellant failed to comply with either alternative. After

the crash, he didn’t stop, even when employees of the radiator shop ran out to stop him

and get his information. Moreover, he did not report the crash to Perry police. His

apprehension by Perry police does not absolve appellant of his duty to 1) stop, or 2) report

the crash. His statements to the police in response to their questions, subsequent to the

traffic stop, does not equate to appellant “reporting” the crash. “[Subsection (A)(2)] is not

an affirmative defense, but an alternative method of compliance with the statute and the

failure to comply is an element of the offense.” Hoy, supra, 2003-Ohio-2482 at ¶ 18, citing
Stark County, Case No. 2016CA00189                                                        8

State v. Ginn, 2nd Dist. Montgomery No. 7879, 1982 WL 3873, *3 (December 1, 1982).

In Hoy, the appellate court reversed the defendant’s conviction because the defendant

stopped after the crash and provided his name, place of employment, and registration

number. Id. at ¶ 17. The court cited section B of R.C. 4549.021, stating there was no

evidence the defendant did not make a police report within 24 hours. Id. at ¶ 18. In the

instant case, the police report relied upon by appellant was made not at his instigation but

because he was apprehended shortly after leaving the scene.

       {¶22} In another leaving-the-scene case, a defendant made a similar argument:

his only duty was to report the crash to police within twenty-four hours, and because

twenty-four hours had not passed between the time of the crash and his arrest, he could

not be guilty of leaving the scene. The Third District Court of Appeals noted:

                     Here, it is beyond doubt that a reasonable person in

              appellant's position would have interpreted Ms. Hantrwsky's

              suggestion that the two drivers go the hotel lobby and call the police

              as the “request to furnish * * * information” described in the first

              paragraph of the ordinance. Appellant's refusal to comply with Ms.

              Hantrwsky’s suggestion then placed a duty upon him to notify the

              police within twenty-four hours. However, the evidence as viewed in

              a light most favorable to the State establishes that the defendant had

              no intention of reporting the accident at all. When questioned by the

              police shortly after the accident, appellant took the position that he

              knew nothing about it.
Stark County, Case No. 2016CA00189                                                         9

                        City of Bellefontaine v. Pierce, 3rd Dist. Logan Nos. 8-2000-

               10, 8-2000-11, 2000-Ohio-1836, 2000 WL 1273608, *2 (Sept. 1,

               2000).

         {¶23} In the instant case, at trial appellant rested without presenting any evidence

on his own behalf. Appellee’s witnesses testified at least two people ran outside when

appellant struck the fence and attempted to get his information; Roma testified a threat

was made to deter his efforts. Upon being traffic-stopped a short distance away, Locy

asked appellant if he hit anything and appellant admitted hitting the fence, although he

the completed a written statement in which he claimed he was unaware he struck the

fence.     Sitting as the proverbial “thirteenth juror,” we do not find that the quick

apprehension of appellant by the Perry police absolves him of his duty to provide his

identifying information after the crash.

         {¶24} Compare the instant case with that of State v. Kirchner, 15 Ohio Misc. 154,

160–61, 236 N.E.2d 236, 240 (C.P.1968):

                        * * * [I]t affirmatively appears that the conduct and actions of

               the accused in following through as he did brought the matter to the

               attention of the police. It should have been obvious that the accused

               did not hit and skip. He was taking care of the damages while being

               investigated. He did not skip to avoid criminal prosecution for any

               crime that may have been alleged to have been committed in the

               operation of his vehicle. He was always available to have been so

               charged.
Stark County, Case No. 2016CA00189                                                         10


       {¶25} In the instant case, appellant’s conviction upon one count of leaving the

scene is supported by sufficient evidence and is not against the manifest weight of the

evidence because appellant’s conduct established he did not bring the crash to the

attention of police. He fled the parking lot after hitting the fence, threatening a witness as

he did so, made no effort to take care of the damage he caused, and was “available” to

police only because the apprehended him a short distance away based upon witnesses’

descriptions of the truck.

       {¶26} Appellant’s sole assignment of error is overruled.

                                      CONCLUSION

       {¶27} Appellant’s sole assignment of error is overruled and the judgment of the

Stark County Court of Common Pleas, Juvenile Division is affirmed.



By: Delaney, P.J.

And Wise, John, J., concur

Hoffman, J., concurs separately
Stark County, Case No. 2016CA00189                                                          11

Hoffman, J., concurring
      {¶28} I concur in the majority’s disposition of Appellant’s sole assignment of error.

       {¶29} I write separately because I disagree with the majority’s conclusion

Appellant failed to comply with the second “alternative” of R.C. 4549.021, i.e., failing to

report the accident within 24 hours. I find no violation of that alternative can occur prior to

passage of 24 hours after the accident.




                                                   ________________________________
                                                   HON. WILLIAM B. HOFFMAN
