[Cite as Youngstown v. Walker, 2011-Ohio-1174.]
                           STATE OF OHIO, MAHONING COUNTY

                                 IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT

CITY OF YOUNGSTOWN,                               )
                                                  )   CASE NO. 09 MA 176
        PLAINTIFF-APPELLEE,                       )
                                                  )
        - VS -                                    )         OPINION
                                                  )
MARTINETTE WALKER,                                )
                                                  )
        DEFENDANT-APPELLANT.                      )


CHARACTER OF PROCEEDINGS:                             Criminal Appeal from
                                                      Youngstown Municipal Court,
                                                      Case No. 09TRD3612.


JUDGMENT:                                             Affirmed.


APPEARANCES:
For Plaintiff-Appellee:                               Attorney Joseph Macejko
                                                      City Prosecutor
                                                      Attorney John H. Marsh, Jr.
                                                      Assistant City Prosecutor
                                                      26 S. Phelps Street, 4th Floor
                                                      Youngstown, OH 44503

For Defendant-Appellant:                              Attorney Scott Essad
                                                      5815 Market Street, Suite 1
                                                      Youngstown, OH 44512


JUDGES:
Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Joseph J. Vukovich


                                                      Dated: February 18, 2011
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DeGenaro, J.
       {¶1}    Defendant-Appellant, Martinette E. Walker, appeals two October 16, 2009
judgments (Case No. 09-TRD-1821 and Case No. 09-TRD-3612) of the Youngstown
Municipal Court, each convicting her of one count of violating Youngstown's excessive
vehicular sound ordinance, and sentencing her accordingly. On appeal, Walker contends
her conviction in Case No. 09-TRD-1821 is against the sufficiency and the manifest
weight of the evidence. Additionally, she argues the trial court erred by conducting the
trial for Case No. 09-TRD-3612 immediately following the trial for Case No. 09-TRD-1821.
       {¶2}    Upon review, Walker's arguments are meritless. Any rational fact-finder
could have found Walker guilty of violating the excessive vehicular sound ordinance in
Case No. 09-TRD-1821, and therefore her conviction is supported by sufficient evidence.
Further the resolution of Case No. 09-TRD-1821 hinged on credibility determinations best
left to the trial court as fact-finder. The trial court did not lose its way so as to create a
manifest miscarriage of justice and therefore Walker's conviction in Case No. 09-TRD-
1821 is not against the manifest weight of the evidence. Finally, Walker failed to object to
the timing of the two trials. It is clear that the trial court did not commit plain error by
trying Case Nos. 09-TRD-1821 and 09-TRD-3612 successively.                 Accordingly, the
judgments of the trial court are affirmed.
                             Facts and Procedural History
       {¶3}    On April 27, 2009, Walker was issued a citation for violating Youngstown's
excessive vehicular sound law, Youngstown Codified Ordinance (YCO) 539.07(b) (Case
No. 09-TRD-1821). Walker was granted a continuance of her arraignment, but then failed
to appear on June 1, 2009, as ordered. A capias was issued. Walker appeared in court
on July 10, 2009, on Case No. 09-TRD-1821, and entered a not guilty plea, and the
matter was set for trial on July 16, 2009. Walker subsequently waived her speedy trial
rights and Case No. 09-TRD-1821 was reset for trial on August 10, 2009. Walker failed
to appear for trial. When Walker finally appeared in court on August 14, 2009, Case No
09-TRD-1821 was re-set for trial on September 4, 2009, and upon Walker's motion was
continued to September 25, 2009.
                                                                                       -3-


        {¶4}   In the meantime, on August 22, 2009, Walker was issued another citation
for excessive vehicular sound, this time by Youngstown Police Officer Assad Chaibi
(Case No. 09-TRD-3612). This case was also set for trial on September 25, 2009.
        {¶5}   Crim.R. 11 plea agreements were reached in both cases whereby Walker
agreed to plead no contest to each charge. After entering those pleas, but before
sentence was imposed, Walker denied culpability in open court. The court permitted
Walker to withdraw her no contest pleas and after a short recess the matters proceeded
to trial.
        {¶6}   First, the court conducted a bench trial on Case No. 09-TRD-1821. Officer
Scott testified that she was working a security detail at the Plazaview Apartments on April
27, 2009. She stated she was standing outside the office for the apartments when she
heard loud R&B music coming from McGuffey Road and Plazaview Court. She then saw
the vehicle driving and continued to hear the loud music when it was over 100 feet away.
Officer Scott saw the vehicle park and walked over to it. The music was still playing but
the driver had exited. Officer Scott asked a group of people who had assembled outside
the vehicle the identity of the driver and learned it was Walker. When Walker returned to
her vehicle, she admitted it belonged to her. On cross, Scott stated that she did not
measure the vehicle's distance from her when she first heard the loud music, but stated
she knew it was over 50 feet. Following Officer Scott's testimony, defense counsel made
a Crim.R. 29 motion for acquittal, which was denied.
        {¶7}   Walker then testified in her own defense. She admitted she was driving her
truck to the Plazaview Apartments on the evening of April 27, 2009, to drop off her infant
godson. She admitted she had R&B music playing, but said she only had the volume
turned up half-way; not very loud since she had a baby in the vehicle. The windows were
open "a little bit." She testified that while she was inside the apartments dropping off her
godson, a woman reached in through the window of her vehicle and turned up the volume
on the stereo. Walker said she did not give permission for anyone to turn up the volume.
Following Walker's testimony, defense counsel made another Crim.R. 29 motion, which
was denied.
                                                                                    -4-


      {¶8}   After considering the testimony in Case No. 09-TRD-1821, the trial court
found Walker guilty.
      {¶9}   The court then proceeded to immediately conduct a bench trial for Case No.
09-TRD-3612. Officer Chaibi testified that on August 22, 2009, he heard loud music
coming from Walker's truck from over 75 feet away. Walker testified she was not playing
any music at that time. Walker presented as a witness a friend with whom she was
allegedly on the phone at the time, to corroborate her testimony that no music was
playing. After considering the evidence in Case No. 09-TRD- 3612, the trial court found
Walker guilty.
      {¶10} A sentencing hearing was held on October 16, 2009, for both cases. In
Case No. 09-TRD-1821, the court sentenced Walker to 10 days in jail, to be served
consecutively with the sentence in 09-TRD-3612, a $500 fine, $100 in reimbursement to
Community Control Supervision, and two years of intensive probation supervision. In
Case No. 09-TRD-3612, the court sentenced Walker to 10 days in jail, to be served
consecutively with the sentence in 09-TRD-1812, a $500 fine, $100 in reimbursement to
Community Control Supervision, and two years of intensive probation supervision.
      {¶11} Walker filed a timely appeal from both judgments on October 16, 2009. The
trial court granted Walker's motion to stay her sentences in both cases pending the
outcome of this appeal.
                          Sufficiency: Case No. 09-TRD-1821
      {¶12} Walker asserts in her first of three assignments of error:
      {¶13} "The trial court erred in denying the Appellant's Crim.R. 29 motion for
acquittal in Case No. 09-TRD-1821."
      {¶14} "Sufficiency of the evidence is the legal standard applied to determine
whether the case may go to the jury or whether the evidence is legally sufficient as a
matter of law to support the jury verdict." State v. Smith (1997), 80 Ohio St.3d 89, 113,
684 N.E.2d 668. Therefore, "sufficiency is a test of adequacy." State v. Thompkins
(1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541. It is a question of law "whether the
evidence is legally sufficient to sustain a verdict." Id. "In reviewing the record for
                                                                                         -5-


sufficiency, '[t]he 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.'" Smith at 113 (citations
omitted).
       {¶15} In Case No. 09-TRD-1821, Walker was convicted of violating Youngstown's
excessive vehicular sound ordinance as set forth in YCO 539.07(b)(1):
       {¶16} "(b) Excessive Vehicular Sound Amplification Systems Prohibited.
       {¶17} "(1) No person operating or occupying a motor vehicle upon any public road,
street, highway or private property shall operate or permit the operation of any sound
amplification system from within the vehicle so as to disturb the quiet, comfort or repose
of other persons, or at a volume that is plainly audible from outside of the vehicle."
       {¶18} "Sound amplification system" is defined as "any radio, tape player, compact
disc, loudspeaker, speaker or other electronic device used for the amplification of musical
instruments or other sounds." YCO 539.07(b)(2).
       {¶19} "Plainly audible" means any sound produced by a sound amplification
system from within the vehicle that can clearly be heard outside the vehicle at a distance
of fifty feet or more. Measurement standards shall be by the auditory senses, based
upon direct line of sight.    Words or phrases need not be discernible and bass
reverberations are included. * * *." YCO 539.07(b)(3)*.
       {¶20} Walker makes much of the fact that the ordinance does not define the word
"operating." When an ordinance does not define a term it is generally given its common
meaning. As the Ohio Supreme Court has stated:
       {¶21} "A legislative body need not define every word it uses in an enactment.
Moreover, any term left undefined by statute is to be accorded its common, everyday
meaning. * * * 'Words in common use will be construed in their ordinary acceptation and
significance and with the meaning commonly attributed to them.'" (Internal citations
omitted.) State v. Dorso (1983), 4 Ohio St.3d 60, 62, 4 OBR 150, 446 N.E.2d 449.
       {¶22} Walker concedes that the common meaning of "operating" the vehicle
would, at minimum, encompass driving the vehicle. This is consistent with the Ohio
                                                                                        -6-


Revised Code definition, as set forth in R.C. 4511.01(HHH), which states in pertinent part
that "'[o]perate' means to cause or have caused movement of a vehicle[.]"
       {¶23} Further, the city ordinance does not require that a person be operating the
vehicle at the time; rather it states that "[n]o person operating or occupying a motor
vehicle * * * shall operate or permit the operation of any sound amplification system from
within the vehicle * * *." (Emphasis added.) YCO 539.07(b)(1). And YCO 539.07(b)(3)
expressly states that: "[t]he motor vehicle may be parked, stopped, standing or moving."
       {¶24} Regardless, there was evidence presented at trial that Walker was driving
the vehicle when Officer Scott heard the excessive noise emanating therefrom. Officer
Scott testified she heard, and then observed Walker's vehicle moving past her location
with the music plainly audible from a distance of greater than 50 feet. By the time Officer
Scott walked over to Walker's vehicle, Walker had exited and gone inside an apartment
building. Officer Scott asked one of the people standing outside Walker's car the identity
of the driver. Officer Scott was told that the driver was Walker. Walker, herself, admitted
she had been driving the vehicle. Thus, evidence was presented as to each element at
trial. Any rational trier of fact could have found the essential elements of the crime proven
beyond a reasonable doubt. As Walker's conviction in Case No. 09-TRD-1821 is
supported by sufficient evidence, her first assignment of error is meritless.
                       Manifest Weight: Case No. 09-TRD-1821
       {¶25} Walker asserts in her second assignment of error:
       {¶26} "The judgment in Case No. 09-TRD-1821 was against the manifest weight
of the evidence."
       {¶27} To determine whether a verdict is against the manifest weight of the
evidence, an appellate court must review the entire record, weigh the evidence and all
reasonable inferences and determine 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 reversed and a new trial ordered. State v. Thompkins (1997), 78 Ohio
St.3d 380, 387, 678 N.E.2d 541.
       {¶28} "Weight of the evidence concerns the inclination of the greater amount of
                                                                                            -7-


credible evidence, offered in a trial, to support one side of the issue rather than the other."
(Emphasis sic.) Id. In making its determination, a reviewing court is not required to view
the evidence in a light most favorable to the prosecution but may consider and weigh all
of the evidence produced at trial. Id. However, a conviction will only be reversed as
against the manifest weight of the evidence in exceptional circumstances. Id. This is so
because the trier of fact is in a better position to determine credibility issues, since he
personally viewed the demeanor, voice inflections and gestures of the witnesses. State v.
Hill (1996), 75 Ohio St.3d 195, 204, 661 N.E.2d 1068; State v. DeHass (1967), 10 Ohio
St.2d 230, 231, 39 O.O.2d 366, 227 N.E.2d 212.
       {¶29} Ultimately, "the reviewing court must determine whether the appellant or the
appellee provided the more believable evidence, but must not completely substitute its
judgment for that of the original trier of fact 'unless it is patently apparent that the
factfinder lost its way.' " State v. Pallai, 7th Dist. No. 07 MA 198, 2008-Ohio-6635, at ¶31,
quoting State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964, at ¶81.
In other words, "[w]hen there exist two fairly reasonable views of the evidence or two
conflicting versions of events, neither of which is unbelievable, it is not our province to
choose which one we believe." State v. Dyke, 7th Dist. No. 99 CA 149, 2002-Ohio-1152,
at ¶13, citing State v. Gore (1999), 131 Ohio App.3d 197, 201, 722 N.E.2d 125.
       {¶30} Here, as the court noted during trial, resolution of this case "turn[s] upon the
credibility of witnesses." Such determinations are best left to the fact-finder, where as
here, neither witness's testimony was completely unbelievable. The fact-finder could
have believed Officer Scott's testimony that she observed Walker's vehicle moving past
her location with the music plainly audible from a distance of greater than 50 feet. Or it
could have believed Walker's testimony that she was operating her vehicle with the music
at half the maximum level with the windows ajar when she turned onto Plazaview Court.
By resolving the credibility of witnesses in favor of the State, the trial court did not lose its
way so as to create a manifest miscarriage of justice. Accordingly, Walker's second
assignment of error is meritless.
                                                                                          -8-


          Trying Case Nos. 09-TRD-1821 and 09-TRD-3612 Successively
       {¶31} In her third and final assignment of error Walker asserts:
       {¶32} "Generally, judicial economy is preferred, but in this case, it was error for the
trial court to try Martinette Walker's cases back-to-back."
       {¶33} Walker argues that the trial court abused its discretion by conducting the
trial for Case No. 09-TRD-3612 immediately following Case No. 09-TRD-1821. However,
Walker never objected to this at the trial court.
       {¶34} Failure to object to an error at the proper time to the trial court waives all but
plain error. Reversal based upon the plain error doctrine requires an obvious error that
affected a defendant's substantial rights under exceptional circumstances. Crim.R. 52(B);
State v. Barnes (2002), 94 Ohio St.3d 21, 27, 759 N.E.2d 1240. It cannot be utilized
unless the outcome clearly would have been different if not for the error. State v. Waddell
(1996), 75 Ohio St.3d 163, 166, 661 N.E.2d 1043. "Even so, plain error is a discretionary
doctrine which may, but need not, be employed if warranted." (Emphasis sic.) State v.
Donald, 7th Dist. No. 08 MA 154, 2009-Ohio-4638, at ¶68, citing State v. Hughbanks, 99
Ohio St.3d 365, 792 N.E.2d 1081, 2003-Ohio-4121, at ¶39.
       {¶35} The trial court did not commit any error, let alone plain error, by trying the
two cases successively. The law that Walker cites regarding joinder is irrelevant as the
trial court conducted separate trials for each case. And as the State points out, had
Walker appeared in court as ordered in Case No. 09-TRD-1821, it is likely that case
would have been resolved well before the citation for Case No. 09-TRD-3612 would have
been issued.
       {¶36} Further, Walker's claim that the "trial judge was fairly up-in-arms" before trial
"to the point where she may not have been able to disassociate her finding of guilt in the
first case from the one is the second case", is unsupported by the record. Although the
trial court did make comments prior to trial which perhaps revealed its exasperation with
those who violate the noise ordinance, there is no evidence that this biased the court in
any way. A judge is presumed to be unbiased and unprejudiced in the matters over
which the judge presides. In re Disqualification of Olivito (1994), 74 Ohio St.3d 1261,
                                                                                              -9-


1263, 657 N.E.2d 1361. The trial court did not commit plain error by trying the two cases
successively. Accordingly, Walker's third assignment is meritless.
       {¶37} All of Walker's assignments of error are meritless. Any rational fact-finder
could have found Walker guilty of violating the excessive vehicular sound ordinance in
Case No. 09-TRD-1821, and therefore her conviction is supported by sufficient evidence.
Further the resolution of Case No. 09-TRD-1821 hinged on credibility determinations best
left to the trial court as fact-finder. It is clear that the trial court did not lose its way so as
to create a manifest miscarriage of justice and therefore Walker's conviction in Case No.
09-TRD-1821 is not against the manifest weight of the evidence. Finally, Walker failed to
object to the timing of the two trials. The trial court did not commit plain error by trying
Case Nos. 09-TRD-1821 and 09-TRD-3612 successively. Accordingly, the judgments of
the trial court are affirmed.
Donofrio, J., concurs.
Vukovich, J., concurs.
