[Cite as Cleveland v. Clunk, 2012-Ohio-4059.]


         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                           JOURNAL ENTRY AND OPINION
                                    No. 97889




                              CITY OF CLEVELAND
                                                      PLAINTIFF-APPELLEE

                                                vs.


                                  PEGGY A. CLUNK
                                                      DEFENDANT-APPELLANT




                                          JUDGMENT:
                                           AFFIRMED


                                    Criminal Appeal from the
                                   Cleveland Municipal Court
                                   Case No. 2012 TRD 000236


        BEFORE:           Jones, J., Celebrezze, P.J., and Cooney, J.

        RELEASED AND JOURNALIZED:                       September 6, 2012
[Cite as Cleveland v. Clunk, 2012-Ohio-4059.]
ATTORNEY FOR APPELLANT

James D. Ingalls
20th Floor, The Standard Building
1370 Ontario Street
Cleveland, Ohio 44113

Also listed:

Peggy A. Clunk
3612 Westpark Road
Cleveland, Ohio 44111


ATTORNEYS FOR APPELLEE

Victor R. Perez
City of Cleveland, Chief Prosecutor

BY: Jonathan L. Cudnik
Assistant City Prosecutor
The Justice Center, 8 Floor
                        ht




1200 Ontario Street
Cleveland, Ohio 44113
[Cite as Cleveland v. Clunk, 2012-Ohio-4059.]
LARRY A. JONES, SR., J.:

          {¶1} Defendant-appellant Peggy Clunk appeals her convictions for failure to yield and

lights required, which were rendered after a bench trial in the Cleveland Municipal Court.       We

affirm.

          {¶2} At trial, plaintiff-appellee, the city of Cleveland, presented the testimony of the

officer who stopped Clunk’s vehicle.            The officer testified that on December 26, 2011, at

approximately 6:30 p.m., he was driving in his police cruiser on Melbourne Avenue when

Clunk’s vehicle, traveling in the opposite direction, approached his vehicle “almost head on

with no headlights on.”       He testified that it was dark outside and he had to swerve to avoid

hitting Clunk’s vehicle.

          {¶3} The officer turned around to pursue Clunk’s vehicle as it headed toward the

intersection of Melbourne and Lorain Avenues.              He testified that at the intersection, the

vehicles traveling on Lorain Avenue have the right of way, and the vehicles traveling on

Melbourne Avenue are controlled by a stop sign.             The officer saw Clunk’s vehicle “enter

Lorain Avenue without properly yielding [to] traffic already [on] the roadway.”

          {¶4} Clunk made a left-hand turn onto Lorain Avenue, and the officer then effectuated

a traffic stop.    The officer testified that Clunk was “quite indignant.”      “She didn’t feel she

should have been stopped.”           The officer issued Clunk citations for failure to yield, no

headlights, and failure to wear a seatbelt.
[Cite as Cleveland v. Clunk, 2012-Ohio-4059.]
        {¶5} Clunk, who appeared pro se at trial, testified that her headlights were on because

they automatically come on at dusk.             Clunk drove a 1990 Cadillac at the time of the incident.

Clunk stated that as she was driving on Melbourne Avenue, she saw the officer’s vehicle in the

“middle of the street just sitting there.”          She “flashed” or “fiddled with” her lights, waited

about 45 seconds until the vehicle moved, and then continued driving.             Clunk testified that as

she drove past the vehicle, she “realize[d] that [she] never turned [her] lights back on.”        Clunk

denied that a head-on collision almost occurred.

        {¶6} Clunk further testified that when she drove up to the intersection at Melbourne and

Lorain Avenues, she stopped at the stop sign and saw the officer’s vehicle behind her.            Clunk

testified that she properly waited at the stop sign until three or four cars passed on Lorain

Avenue and then turned onto Lorain Avenue, at which point the officer stopped her.

        {¶7} Clunk presented the testimony of the passenger in her car that evening. Clunk

asked the passenger if she had her lights on and if she had to flash her lights at the officer’s

vehicle.   The witness answered, “When you turned on the road I didn’t know.                I said, ‘Just

flash your lights.    There is a car parked.’” According to the passenger, the officer’s vehicle

was not moving at the time.            The passenger also testified that Clunk did not pull out

“erratically” onto Lorain Avenue.         When questioned by the court and on cross-examination,

the passenger stated that Clunk did have her lights on.

        {¶8} On this testimony, the trial court found Clunk guilty of failure to yield, lights
required, and the seatbelt violation.1
                                         Clunk raises the following three assignments of error for

our review:

       I. The trial court erred in finding defendant/appellant guilty of the traffic
       offense of driving onto roadway/duty to yield as there was insufficient evidence
       on the essential elements of the traffic violation charged.

       II. The trial court erred in finding defendant/appellant guilty for the traffic
       offense of lights required as there was insufficient evidence on the essential
       elements of the traffic violation charged.

       III. The defendant’s/appellant’s convictions for the traffic offenses of lights
       required and driving onto roadway/duty to yield is against the manifest weight of
       the evidence.

       {¶9} By these assignments of error, Clunk challenges her convictions as not being

supported by sufficient evidence and as being against the manifest weight of the evidence.

We consider her contentions together.

       {¶10} “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,

1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus.             In the simplest sense, the

difference is that sufficiency tests the burden of production while manifest weight tests the

burden of persuasion. Id. at 390 (Cook, J., concurring).

       {¶11} Sufficiency is a question of law. Id. at 386.

       An appellate court’s function when reviewing the sufficiency of the evidence to

       1
        Clunk does not challenge the seatbelt violation.
       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.

State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus,

following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).        Under

this standard, an appellate court does not conduct an exhaustive review of the record, or a

comparative weighing of competing evidence, or speculation as to the credibility of any

witnesses.   Instead, the appellate court presumptively “view[s] the evidence in a light most

favorable to the prosecution.”    Jenks at 294.

       {¶12} Manifest weight is a question of fact. Thompkins at 387.       In a manifest weight

analysis, an appellate court “reviews the entire record, weighs the evidence and all reasonable

inferences, considers the credibility of witnesses and * * * resolves conflicts in the evidence.”

Id.   “A court reviewing questions of weight 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. at 390 (Cook, J., concurring).

       {¶13} An appellate court may not merely substitute its view for that of the jury, but

must find that “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.”    Id. at 387. See also id. at 390

(Cook, J., concurring) (stating that the “special deference given in a manifest-weight review

attaches to the conclusion reached by the trier of fact”).   Accordingly, reversal on manifest
weight grounds is reserved for “the exceptional case in which the evidence weighs heavily

against the conviction.”    Id. at 387.

       {¶14} Although sufficiency and manifest weight are different legal concepts, manifest

weight may subsume sufficiency when conducting the analysis; that is, a finding that a

conviction was supported by the manifest weight of the evidence necessarily includes a finding

of sufficiency.   Id. at 388.   In this case, manifest weight is dispositive.

       {¶15} Under Cleveland Codified Ordinances 431.22, a driver has a duty to yield the

right-of-way to all traffic approaching on the roadway to be entered or crossed.               Under

Cleveland Codified Ordinances 437.02, vehicles traveling on streets or highways are required

to have their headlights on from sunset to sunrise.

       {¶16} The weight of the evidence supported the convictions.          The officer testified that

it was dark as he was driving on Melbourne Avenue, and he had to swerve to avoid a head-on

collision with Clunk’s vehicle, which was being operated without its headlights on.              The

officer then turned around to pursue Clunk’s vehicle and saw the vehicle being driven onto

Lorain Avenue without yielding.

       {¶17} Although Clunk testified that she did have her headlights on while driving on

Melbourne Avenue and that she did properly yield before proceeding onto Lorain Avenue, the

trier of fact is the best judge of credibility and the weight to be given to witness testimony.

State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus.
“‘When conflicting evidence is presented at trial, a conviction is not against the manifest

weight of the evidence simply because the [trier of fact] believed the prosecution testimony.’”

State v. Moore, 2d Dist. No. 20005, 2004-Ohio-3398, ¶ 52, quoting State v. Gilliam, 9th Dist.

No. 97CA006757, 1998 Ohio App. LEXIS 3668 (Aug. 12, 1998).

       {¶18} The officer’s testimony was credible.      Further, we are not persuaded by Clunk’s

contention that the trial court lost its way because it commented that Clunk’s testimony was

that her lights were off.   Clunk clarified for the trial court that her testimony was that her

lights were on.   After that clarification, the trial court asked Clunk if the officer had lied when

he said that her lights were not on, to which Clunk responded “yes.”        The trial court simply

did not find Clunk’s testimony credible.

       {¶19} On this record, the convictions were not against the manifest weight of the

evidence, and therefore the evidence was necessarily sufficient to support them.      Accordingly,

the three assignments of error are overruled.

       {¶20} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the

Cleveland Municipal Court to carry this judgment into execution.                               The

defendant’s conviction having been affirmed, any bail pending appeal is
terminated.    Case remanded to the trial court for execution of sentence.

     A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.




LARRY A. JONES, SR., JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
COLLEEN CONWAY COONEY, J., CONCUR
