OPINION

Scully presents two assignments of error for review. In his first assignment of error, he states that trial court's finding of guilt was not supported by sufficient evidence. He contends that the evidence did not show that he operated his vehicle without due regard for the safety of persons or property. This assignment of error is not well taken.

Cincinnati Municipal Code 506-6 provides that "[n]o person shall operate a vehicle on any street or highway without due regard for the safety of persons or property." Interpreting a similar provision in the Ohio Administrative Code, the Ohio Supreme Court has held that the phrase "without due regard" requires the driver of a motor vehicle to exercise the same degree of care as would a reasonably prudent person under similar circumstances. Statev. Cichon (1980), 61 Ohio St.2d 181, 399 N.E.2d 1259, syllabus. This court has held that this language sets forth a negligence standard and that proof of recklessness is not required to establish a violation of Cincinnati Municipal Code 506-6. State v. Hoorazar (May 23, 1984), Hamilton App. No. C-830680, unreported. Further, we have held that "operation of a hydraulic lift that caused [a] vehicle to bounce so that the tires left the surface of the road * * *" rose to the level of criminal negligence sufficient to support a conviction under Cincinnati Municipal Code 506-6. State v. Bruner (Mar. 17, 2000), Hamilton App. C-990481, unreported.

In this case, the police officer testified that the vehicle's hydraulic system caused one of the car's wheels to leave the road and that the vehicle traveled on three wheels as Scully made the turn. This evidence was sufficient to establish negligence. The state's evidence, when viewed in a light most favorable to the prosecution, could convince a rational trier of fact beyond a reasonable doubt that Scully operated his vehicle without due regard for the safety of persons or property. Therefore, the evidence was sufficient to support his conviction, and we overrule his first assignment of error. State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus; Bruner, supra.

In his second assignment of error, Scully contends that his conviction was against the manifest weight of the evidence. After reviewing the record, we cannot conclude that the trier of fact clearly lost its way and created such a manifest miscarriage of judgment that we must reverse the conviction and order a new trial. Therefore, Scully's conviction is not against the manifest weight of the evidence. State v. Thompkins (1997),78 Ohio St.3d 380, 387, 678 N.E.2d 541, 546-547; State v. Allen (1990), 69 Ohio App.3d 366, 374, 590 N.E.2d 1272, 1278. Scully argues that the state's evidence was not credible, but matters as to credibility of evidence are primarily for the trier of fact to decide. State v. DeHass (1967), 10 Ohio St.2d 230,227 N.E.2d 212, paragraph one of the syllabus. Accordingly, we overrule Scully's second assignment of error and affirm the judgment of the trial court.

Judgment affirmed.

_________________________ DOAN, Judge

Raymond E. Shannon, retired, of the First Appellate District, sitting by assignment.

Though Cincinnati Municipal Code 506-6 is strangely titled "Reckless Operation," it specifies a negligence standard (without due regard for safety). This is in contrast with its counterpart in the state code, also titled "Reckless Operation," which states a reckless standard (with willful and wanton disregard for safety).¹ Though the titles of legislation are not part of the law under the state code,² I can find no similar provision in the city code³ — though researching the latter is nigh impossible. Having two co-existing provisions entitled "Reckless Operation," with differing standards of conduct required to violate them, causes confusion and consternation among those charged with enforcing, administering, and interpreting the law.

In any event, there was no proof of negligence in this case. There was really no proof of anything, except that the vehicle in question was equipped with some type of hydraulic machinery that allowed the vehicle to move in strange ways. There was no testimony, expert or otherwise, of the effects of this alteration, and whether it was "unsafe." The arresting officer testified that he "believed" it was unsafe, but there was no basis whatever for that statement (the condition of the vehicle may have been unsafe, and the modification of it may very well have been improper, but that determination would require something called proof).

A violation of Cincinnati Municipal Code 506-6 requires proof beyond a reasonable doubt that the defendant's actions endangered people or property. There was none in this case. The officer testified only that one wheel failed to touch the pavement during an otherwise perfectly proper right turn. While driving with three wheels might be unusual, there are three-wheeled vehicles, and in the absence of expert testimony establishing some type of danger, there is no violation. Cannot a three-legged dog walk safely?

¹ R.C. 4511.20.

² R.C. 1.01; State ex rel. Larkins v. Baker (1995), 73 Ohio St.3d 658,661, 653 N.E.2d 701, 703.

³ Though perhaps there should be, as the section defining "bicycle" includes vehicles with three wheels. Cincinnati Municipal Code Section 501-1-B.