[Cite as In re H.C., 2019-Ohio-441.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                SHELBY COUNTY




IN RE:
                                                           CASE NO. 17-18-14
        H.C.,

ALLEGED JUVENILE TRAFFIC                                   OPINION
OFFENDER.




                  Appeal from Shelby County Common Pleas Court
                                  Juvenile Division
                           Trial Court No. 2018-TRF-0075

                                       Judgment Affirmed

                           Date of Decision: February 11, 2019




APPEARANCES:

        Robert E. Long, III for Appellant

        Anne K. Bauer for Appellee
Case No. 17-18-14


SHAW, J.

       {¶1} Juvenile-appellant, H.C., brings this appeal from the August 15, 2018,

judgment of the Shelby County Common Pleas Court, Juvenile Division, finding

that H.C. was a juvenile traffic offender based on his failure to stop at a stop sign in

violation of R.C. 4511.12(A). On appeal, H.C. argues that the evidence did not

support the finding that he was a juvenile traffic offender based on his violation of

R.C. 4511.12(A).

                       Relevant Facts and Procedural History

       {¶2} On May 10, 2018, Deputy Greg Birkemeier of the Shelby County

Sheriff’s Office received a report regarding a motorcycle traveling at a high rate of

speed in the area of Schenk and Lindsey Road. Deputy Birkemeier responded to

the area and stopped his cruiser on Lindsey Road watching the intersection with

Schenk Road. The intersection was a four-way stop. Deputy Birkemeier observed

a truck that was pulling a trailer going westbound on Schenk stop at the stop sign,

then drive through the intersection. A motorcycle—driven by H.C.—was behind

the truck trailer. The motorcycle followed the truck and trailer through the four-

way stop without stopping at the stop sign.




                                          -2-
Case No. 17-18-14


           {¶3} Deputy Birkemeier initiated a traffic stop of H.C., who claimed that he

had looked into the intersection before going forward. Deputy Birkemeier issued

H.C. a ticket for a violation of R.C. 2152.02 and R.C. 4511.12.1

           {¶4} H.C. denied the charge and his case proceeded to an adjudication

hearing. At the hearing, Deputy Birkemeier testified to the events as described.

H.C.’s counsel questioned the Deputy as to whether he measured the height of the

stop sign and the distance it was from the road. Deputy Birkemeier indicated that

he did not, but the stop sign was clearly visible, sufficiently legible, and it was in

what appeared to be a proper position. Deputy Birkemeier was the only witness

who testified for the State.

           {¶5} At the conclusion of the State’s case, H.C.’s counsel moved for a

judgment of acquittal arguing, inter alia, that the State failed to establish that the

stop sign complied with the Ohio Manual of Uniform Traffic Control Devices. The

trial court denied H.C.’s motion.

           {¶6} H.C. did not call any witnesses and rested his case. Based on the

evidence presented, the trial court found that H.C. was a juvenile traffic offender

due to his violation of R.C. 2152.02 and R.C. 4511.12. The trial court proceeded to

the dispositional phase, noting that this was H.C.’s third traffic violation. His

license was suspended for 1 year, and he was ordered to pay a $50 fine and court



1
    Deputy Birkemeier did not originally realize that H.C. was a juvenile so the ticket had to be amended.

                                                      -3-
Case No. 17-18-14


costs. H.C. was permitted to file for driving privileges after 90 days. A judgment

entry memorializing H.C.’s disposition was filed August 15, 2018.

       {¶7} It is from this judgment that H.C. appeals, asserting the following

assignment of error for our review.

                               Assignment of Error
       The trial court erred in adjudicating the appellant a juvenile
       traffic offender for [a] violation of R.C. 4511.12 and R.C. 2152.02
       because the appellee-State of Ohio failed to prove beyond a
       reasonable doubt that the traffic control device (stop sign)
       complied with the Ohio Manual of Uniform Traffic Control
       Devices (OMUTCD).

       {¶8} In his assignment of error, H.C. argues that the State did not establish

that the stop sign he failed to stop at complied with the Ohio Manual of Uniform

Traffic Control Devices.         More specifically, H.C. contends that on cross-

examination Deputy Birkemeier testified that he did not measure the height of the

stop sign from the ground, or the lateral offset of the stop sign from the road, thus

Deputy Birkemeier could not testify that the stop sign was in compliance with the

Ohio Manual.

                                   Relevant Authority

       {¶9} Courts have repeatedly held that, “ ‘Once it has been demonstrated that

a traffic control device exists in a specific location, an inference arises that the traffic

control device was placed pursuant to lawful authority.’ ” Painesville v. Kincaid,

11th Dist. No. 2015-L-023, 2015-Ohio-5532, ¶ 19, quoting State v. Rivera, 11th


                                            -4-
Case No. 17-18-14


Dist. Ashtabula No. 2001-A-0005, 2001 WL 1117073, *2 (Sept. 21, 2002), citing

Akron v. Cook, 67 Ohio App.3d 640, 643, 588 N.E.2d 157 (9th Dist.1990). “The

burden then switches to the defendant to rebut the inference that the traffic control

device, i.e., a stop sign, was placed in compliance with the Ohio Manual of Uniform

Traffic Control Devices.” Id. citing Rivera at *2-3. In the face of actual adversarial

evidence regarding the position of the sign, the ultimate burden of proof reverts back

to the State. City of Mentor v. Mills, 11th Dist. Lake No. 12-269, 1988 WL 76764;

but see State v. Kilgore, 2d Dist. Montgomery No. 22034, 2008-Ohio-1162, ¶ 11

(defendant’s burden of rebutting the inference is viewed as an affirmative defense).

                                      Analysis

       {¶10} In this case, H.C. was alleged to have violated Revised Code

4511.12(A), which reads as follows.

       (A) No pedestrian, driver of a vehicle, or operator of a streetcar
       or trackless trolley shall disobey the instructions of any traffic
       control device placed in accordance with this chapter, unless at
       the time otherwise directed by a police officer.

       No provision of this chapter for which signs are required shall be
       enforced against an alleged violator if at the time and place of the
       alleged violation an official sign is not in proper position and
       sufficiently legible to be seen by an ordinarily observant person.
       Whenever a particular section of this chapter does not state that
       signs are required, that section shall be effective even though no
       signs are erected or in place.

R.C. 4511.12.



                                         -5-
Case No. 17-18-14


       {¶11} In its case against H.C., the State presented the testimony of Deputy

Birkemeier, who testified that the stop sign at the intersection of Lindsey and

Schenk was completely visible, that it was unobstructed, and that it was in a normal

position for a posted stop sign. Under the previously cited authority, this is

sufficient to create an inference that the stop sign was placed pursuant to lawful

authority.

       {¶12} On appeal, H.C. argues that Deputy Birkemeier specifically stated on

cross-examination that he did not measure the height of the stop sign, or its lateral

offset from the road, and thus Deputy Birkemeier could not say unequivocally that

the sign complied with the Ohio Manual of Uniform Traffic Control Devices. H.C.

contends that based on this cross-examination, he rebutted the inference that the stop

sign was compliant with the Ohio Manual. We disagree. H.C. did not present any

actual evidence rebutting the inference that the stop sign was compliant with the

Ohio Manual.

       {¶13} Courts have held that where a defendant presents actual evidence that

a stop sign did not comply with Ohio Manual requirements, the stop sign will be

found to be unenforceable. For example, in Painesville v. Kincaid, 11th Dist.

Portage No. 2015-L-023, 2015-Ohio-5532, the Eleventh District Court of Appeals

found that where a defendant presented the testimony of a surveyor that the height

of a stop sign did not meet the minimum height required under the Ohio Manual, it


                                         -6-
Case No. 17-18-14


was not enforceable against the driver. According to the surveyor, the stop sign in

question was 47 inches high, and under the Ohio Manual the stop sign had to be at

least sixty inches high, or five feet. The Eleventh District found that where the

defense presented such testimony from a surveyor, and the State did not produce

any evidence contradicting the surveyor’s testimony, the stop sign was not

enforceable.

       {¶14} In this case, unlike Kincaid, there was no actual evidence presented to

rebut the inference that the stop sign was compliant with the Ohio Manual. The

questioning of Deputy Birkemeier as to whether he measured the stop sign or

whether he knew for a fact that it was compliant with the Ohio Manual was not

sufficient to overcome the inference that was created when Deputy Birkemeier

testified that the stop sign was placed in a normal position, that it was readily

observable, and that it was unobstructed. We have no indication that if the sign was

measured it would be anything but compliant with the Ohio Manual. Given the

inference that arises once it is established that a traffic control device is in a specific

location, H.C.’s argument is not well-taken. Therefore, his assignment of error is

overruled.




                                           -7-
Case No. 17-18-14


                                   Conclusion

       {¶15} For the foregoing reasons H.C.’s assignment of error is overruled and

the judgment of the Shelby County Common Pleas Court, Juvenile Division, is

affirmed.

                                                              Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr




                                       -8-
