[Cite as State v. Burke, 2013-Ohio-2888.]


                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                   WASHINGTON COUNTY

STATE OF OHIO,                                     :      Case No. 12CA39
                                                   :
        Plaintiff-Appellee,                        :
                                                   :      DECISION AND
        v.                                         :      JUDGMENT ENTRY
                                                   :
MARK A. BURKE,                                     :
                                                   :      RELEASED 6/27/13

     Defendant-Appellant.             :
______________________________________________________________________
                            APPEARANCES:

Eric E. Willison, Columbus, Ohio, for appellant.

Paul G. Bertram, III, Marietta City Law Director, and Daniel Everson, Marietta City
Assistant Law Director, Marietta, Ohio, for appellee.
______________________________________________________________________
Per Curiam

        {¶1}     Following a bench trial, the court found Mark Burke guilty of disobeying

the instructions of a traffic control device while driving a vehicle. The court implicitly

found Burke disobeyed the instructions for a stop sign because he failed to stop at a

clearly marked stop line when he approached the sign. Burke contends his conviction is

against the manifest weight of the evidence. We agree. The record contains no

evidence there was a stop line at the location at issue. Even if there was a stop line,

which Burke arguably appears to concede, there is no evidence about the location of his

vehicle in relation to the line at any time. Thus, we reverse Burke’s conviction. This

decision renders his other arguments moot.

                                            I. Facts
Washington App. No. 12CA39                                                                   2


       {¶2}    Burke pleaded not guilty to a charge of disobeying the instructions of a

traffic control device, i.e., a stop sign, while driving a vehicle, in violation of R.C.

4511.12. At a bench trial, Trooper Eric Knowlton with the Ohio State Highway Patrol

testified that while on patrol in Washington County, he saw a vehicle stopped at a stop

sign on Market Street and saw a second vehicle stopped behind the first vehicle. As he

approached the intersection, both vehicles “came out together and made a left turn.” In

other words, the second vehicle did not come to a complete stop at the stop sign after

the first vehicle proceeded into the intersection. Burke was driving the second vehicle.

       {¶3}    Burke testified that he stopped behind a truck at the stop sign. He did not

enter the intersection until the truck turned and exited the intersection. Burke claimed

he came to a separate, complete stop at the sign after the truck pulled out. Burke

explained: “I hesitated while the truck started out of the intersection. Then I was back

from the white bar a little bit, after my hesitation stopped. I was back from that white

bar. So what [the trooper] saw was me pulling up to that white bar and taking another

look. I’m already stopped. I’m pulling up to the white bar, after I’m stopped, and the

truck cleared the intersection, and I looked to the right and I looked to the left, and I said

I have enough time to get out without causing an accident.”

       {¶4}    The court issued a decision and specifically found that “there is a stop line

on Market Street.” The court found “beyond a reasonable doubt that [Burke] did fail to

stop as required by [R.C.] 4511.12 before entering the intersection.” After sentencing,

Burke filed this appeal.

                                   II. Assignments of Error

       {¶5}    Burke assigns the following errors for our review:
Washington App. No. 12CA39                                                                  3


       I.     The Trial Court Erred When Convicting Defendant When There
              Was Uncontradicted Evidence that Defendant Did Stop at the Stop
              Sign.

       II.    The Trial Court Erred in Conducting an Ex Parte Investigation of the
              Scene.

       III.   The Trial Court Erred in Concluding that there was Evidence
              Beyond a Reasonable Doubt that Defendant Appellant Proceeded
              Without Stopping.

                           III. Manifest Weight of the Evidence

       {¶6}   In his first assignment of error, Burke contends the court erred when it

found him guilty because the evidence shows he did stop at the stop sign. In his third

assignment of error, Burke claims the court erred in concluding there was evidence

beyond a reasonable doubt that he “proceeded without stopping.” We interpret these

assignments of error as manifest weight of the evidence challenges and consider them

together.

       {¶7}   To determine whether a conviction is against the manifest weight of the

evidence, we “must review the entire record, weigh the evidence and all reasonable

inferences, consider the credibility of witnesses 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.” State v. Brown, 4th Dist.

No. 09CA3, 2009-Ohio-5390, ¶ 24, citing State v. Thompkins, 78 Ohio St.3d 380, 387,

678 N.E.2d 541 (1997). A reviewing court “may not reverse a conviction when there is

substantial evidence upon which the trial court could reasonably conclude that all

elements of the offense have been proven beyond a reasonable doubt.” State v.

Johnson, 58 Ohio St.3d 40, 42, 567 N.E.2d 266 (1991).

       {¶8}   We must remember the weight to be given evidence and credibility to be
Washington App. No. 12CA39                                                                    4

afforded testimony are issues for the trier of fact. State v. Frazier, 73 Ohio St.3d 323,

339, 652 N.E.2d 1000 (1995). The fact finder “is best able to view the witnesses and

observe their demeanor, gestures, and voice inflections, and use these observations in

weighing the credibility of the proffered testimony.” Seasons Coal Co. v. City of

Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). We will only interfere if the

fact finder clearly lost its way and created a manifest miscarriage of justice. “Unlike a

manifest weight challenge to a conviction resulting from a jury verdict, which requires a

unanimous concurrence of all three appellate judges to reverse, a manifest weight

challenge to a conviction resulting from a bench trial requires only a majority

concurrence to reverse.” State v. Hill, 7th Dist. No. 09-MA-202, 2011-Ohio-6217, ¶ 49.

          {¶9}   Burke was charged with violating R.C. 4511.12(A), which provides that no

driver of a vehicle “shall disobey the instructions of any traffic control device placed in

accordance with [R.C. Chapter 4511], unless at the time otherwise directed by a police

officer.” Here, the device was a stop sign, and R.C. 4511.43(A) contains the

instructions for it that the trial court concluded Burke did not follow. R.C. 4511.43(A)

states:

          Except when directed to proceed by a law enforcement officer, every
          driver of a vehicle or trackless trolley approaching a stop sign shall stop at
          a clearly marked stop line, but if none, before entering the crosswalk on
          the near side of the intersection, or, if none, then at the point nearest the
          intersecting roadway where the driver has a view of approaching traffic on
          the intersecting roadway before entering it. After having stopped, the
          driver shall yield the right-of-way to any vehicle in the intersection or
          approaching on another roadway so closely as to constitute an immediate
          hazard during the time the driver is moving across or within the
          intersection or junction of roadways.

          {¶10} The trial court specifically found that “there is a stop line on Market Street”

before it found Burke guilty. Therefore, we conclude the court implicitly found that
Washington App. No. 12CA39                                                                   5


Burke disobeyed the instructions of a traffic control device, i.e., a stop sign, because he

failed to stop at a clearly marked stop line when he approached the sign.

       {¶11} The record contains no evidence there was a stop line. Although Burke

mentioned a “white bar” during his testimony, he never clarified what this bar was. In

his brief, Burke appears to acknowledge there was in fact a stop line. But as he points

out, there is no evidence as to where the line was in relation to the stop sign, the vehicle

in front of him, or his vehicle at any time during this incident. Knowlton only testified

about the location of the vehicles in relation to the stop sign itself.

       {¶12} The State concedes there was no testimony about the position of the stop

line relative to the stop sign. (Appellee’s Br. 5). The State suggests that “simple logic

tells us that if indeed the Defendant was stopped behind the leading car (which was

stopped at the red light), the Defendant could not have been stopped at the stop line as

is required by statute, much less stopped at the point nearest the intersecting roadway if

that stop line somehow did not exist.” (Emphasis sic). (Appellee’s Br. 5).

       {¶13} The State mistakenly argues that the leading car stopped at a red light

when evidence shows it was a stop sign. Moreover, we cannot simply assume that the

first vehicle stopped at the stop line simply because Knowlton testified the vehicle

stopped at the stop sign. Again, we have no evidence about the location of the stop line

in relation to the stop sign or any of the vehicles.

       {¶14}    The State argues that Burke never raised the issue of the position of the

stop line at the trial level, so he forfeited that issue for purposes of appeal. The State

complains that “nobody ever claimed at the trial court level that this was anything but a

properly marked stop sign with a corresponding stop line in the appropriate location,
Washington App. No. 12CA39                                                                  6


with a driver ahead that had properly stopped at the intersection. Had these matters

been raised as objections to the charge, on point evidence could have (and would have)

been taken.” (Appellee’s Br. 5-6). The State cites no authority for its argument. The

State had the burden to prove beyond a reasonable doubt that Burke disobeyed the

instructions of a stop sign. Burke did not forfeit his right to have the State prove that

simply because he did not make a Crim.R. 29(A) motion for acquittal. His not guilty plea

preserved the right to appeal on the manifest weight and sufficiency of the evidence.

State v. Cooper, 170 Ohio App.3d 418, 2007-Ohio-1186, 867 N.E.2d 493, ¶ 13 (4th

Dist.) (“[A] defendant preserves his right to object to the alleged insufficiency of the

evidence when he enters his ‘not guilty’ plea.”); Compare State v. Hill, 8th Dist. No.

90513, 2008-Ohio-4857, ¶ 6 (stating that “[a] guilty plea waives a defendant’s right to

challenge sufficiency or manifest weight of the evidence.”).

       {¶15} For the foregoing reasons, we find that Burke’s conviction was against the

manifest weight of the evidence. We need not address Burke’s other arguments as to

why his conviction was against the manifest weight of the evidence. They are moot.

See App.R. 12(A)(1)(c). Accordingly, we sustain the first and third assignments of error,

reverse Burke’s conviction, and remand so the court can discharge him. This decision

renders moot Burke’s second assignment of error, so we need not address it. See id.

                                                            JUDGMENT REVERSED AND
                                                                  CAUSE REMANDED.
Washington App. No. 12CA39                                                                    7


                                    JUDGMENT ENTRY

    It is ordered that the JUDGMENT IS REVERSED and that the CAUSE IS
REMANDED. Appellee shall pay the costs.

       The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Marietta
Municipal Court to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

Abele, J. & Hoover, J.: Concur in Judgment and Opinion.
Harsha, J.: Dissents.

                                            For the Court


                                            BY: __________________________
                                                Peter B. Abele, Judge


                                            BY: __________________________
                                                Marie Hoover, Judge


                                            BY: ___________________________
                                                William H. Harsha, Judge

                               NOTICE TO COUNSEL
       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
