[Cite as State v. Frum,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )

STATE OF OHIO C.A. No. 12CA0039

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE ROBERT W. FRUM WAYNE COUNTY MUNICIPAL COURT COUNTY OF WAYNE, OHIO Appellant CASE No. TRD-12-05-04569

DECISION AND JOURNAL ENTRY

Dated: March 25, 2013

BELFANCE, Presiding Judge.

{¶1} Defendant-Appellant Robert Frum appeals from his conviction in the Wayne

County Municipal Court. For the reasons set forth below, we reverse.

I.

{¶2} On May 18, 2012, Mr. Frum worked for J & J Refuse and was responsible for

both driving a garbage truck and picking up trash in Orrville. The garbage truck that Mr. Frum

drove was only equipped with a left-side steering wheel such that he had to exit the truck on the

traffic side of the road every time he stopped. Around 7:00 a.m. that day, Mr. Frum was

proceeding east down Back Massillon Road to collect trash after having just finished doing so on

Heartland Avenue. At approximately the fifth stop on Back Massillon Road, and after Mr. Frum

exited the garbage truck and closed the door, he was struck by a car driven by Brandon Stark.

{¶3} Police were called to the scene, and Mr. Frum was cited for opening his door into

oncoming traffic in violation of Orrville Codified Ordinance 351.08. Mr. Frum pleaded not 2

guilty to the charge, and a bench trial ensued. The judge found Mr. Frum guilty of the violation

and fined him. Mr. Frum appeals, raising a single assignment of error for our review.

II.

ASSIGNMENT OF ERROR

THE VERDICT OF THE WAYNE COUNTY MUNICIPAL COURT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶4} Mr. Frum asserts in his sole assignment of error that the trial court’s finding of

guilty is against the manifest weight of the evidence. Nonetheless, a review of the weight of the

evidence necessarily involves an evaluation of the sufficiency of the evidence in that, in order for

this Court to weigh the evidence, there must be evidence to weigh. See State v. Recklaw, 9th

Dist. No. 24078,

; see also State Anderson, 9th Dist. No. 26006, 2012-

Ohio-3663, ¶ 5; State v. Eikleberry,

,

, ¶ 15 (9th Dist.);

Estate of Harrold v. Collier, 9th Dist. Nos. 07CA0074, 08CA0024,

, ¶ 15-16;

see also Tibbs v. Florida,

(1982) (noting that “[a] reversal based on the

weight of the evidence * * * can occur only after the State both has presented sufficient evidence

to support conviction and has persuaded the jury to convict[]”). As the dissent points out, this

Court has not always addressed sufficiency of the evidence on appeal, even in cases where it has

been raised. See State v. Horne, 9th Dist. No. 24672,

, ¶ 7. However, the dissent

points to nothing that would prevent us from sua sponte doing so when it is obvious on the face

of the record that the conviction is based upon insufficient evidence. To uphold such a

conviction would violate a defendant’s due process rights. See State v. Thompkins,

(1997) (“[A] conviction based on legally insufficient evidence constitutes a denial

of due process.”); see also Jackson v. Virginia,

(1979) (“[A] conviction based

upon a record wholly devoid of any relevant evidence of a crucial element of the offense charged 3

is constitutionally infirm.”). As it is clear from the face of the record before us that Mr. Frum’s

conviction is based upon insufficient evidence, we conclude we are obligated to reverse it.

{¶5} In determining whether the evidence presented was sufficient to sustain a

conviction, this Court reviews the evidence in a light most favorable to the prosecution. State v.

Jenks,

(1991). Furthermore:

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

at paragraph two of the syllabus.

{¶6} O.C.O. 351.08 provides that “[n]o person shall open the door of a vehicle on the

side available to moving traffic unless and until it is reasonably safe to do so, and can be done

without interfering with the movement of other traffic, * * * .” O.C.O. 351.08 mirrors R.C.

4511.70(C).

{¶7} Mr. Stark and Officer Ryan Pitchure testified for the State, and Mr. Frum testified

in his own defense. Mr. Stark indicated that, on the morning of May 18, 2012, he was on his

way to work and turned onto Back Massillon Road behind Mr. Frum’s garbage truck. Prior to

turning onto Back Massillon Road, Mr. Stark observed Mr. Frum in his bright colored vest

walking across the street and making stops. As Mr. Stark pulled up behind the garbage truck,

Mr. Frum was coming to a stop. Mr. Stark slowed down as he approached the garbage truck and

then sped up to 20-25 miles per hour to pass the garbage truck. The posted speed limit was 35

miles per hour. Mr. Stark did not honk his horn as he was attempting to pass it. As Mr. Stark

was passing the garbage truck, Mr. Frum hopped out of the truck, and Mr. Stark’s vehicle 4

collided with Mr. Frum. Mr. Stark did not hit the garbage truck door or any other part of the

garbage truck. Mr. Stark testified that he was not even sure if the garbage truck had doors. Mr.

Starks’ vehicle suffered damage to its ride side; the right side of the windshield was broken, the

right side mirror was torn off of the car, and a substantial portion of paint was removed from the

area above the right front wheel.

{¶8} Officer Pitchure with the City of Orrville Police Department testified that Mr.

Stark told him that Mr. Stark waited for oncoming traffic to pass and then proceeded to pass the

garbage truck. As he was doing so, Mr. Frum exited the truck, and the collision occurred. Mr.

Frum told Officer Pitchure that, as he was exiting the garbage truck, he looked back, did not see

any vehicles, exited, and the next thing he knew he was struck by a car. Officer Pitchure did not

observe any damage to the garbage truck but did observe the damage to Mr. Stark’s vehicle.

Ultimately, police took a crash report and only issued Mr. Frum a citation.

{¶9} Mr. Frum testified that, on the date of the collision, he was working alone, both

operating the garbage truck and collecting the trash. The garbage truck that Mr. Frum drove was

only equipped with a left-side steering wheel such that he had to exit the truck on the traffic side

of the road every time he stopped. He had started work at 5 a.m. and had finished collecting

trash on Heartland Avenue around 7 a.m. He then turned onto Back Massillon Road heading

east. At approximately the fifth stop on Back Massillon Road, and after Mr. Frum exited the

garbage truck and closed the door, he was struck by the car driven by Mr. Stark. In describing

the crash, Mr. Frum stated that,

I [went] ahead to start to get out and as I[ was] getting out, I look[ed] behind me, [Mr. Stark] [wa]s still behind me, he look[ed] like he[ was] slowing down so I[ was] like okay, he is going to stop. * * * So when I [took] my step off I turn[ed] to the left, I close[d] the door to make sure no more traffic [wa]s coming to me and as I[ was] taking my step, he hits me[.] 5

{¶10} He reaffirmed that, at the time of the crash, he had already exited the vehicle and

closed the door. Mr. Frum also testified that, at the time he exited the truck, he felt it was

reasonably safe to do.

{¶11} Even when viewing the record in a light most favorable to the State, we cannot

conclude that it met its burden. There was no evidence that the action of Mr. Frum opening the

door interfered with the movement of traffic or was done at a point in time when it was not

reasonable to do so. There was no evidence that Mr. Frum’s door played any role in causing the

collision. Mr. Frum testified that he stepped down from the truck, closed the door, and then was

hit by Mr. Stark’s vehicle. There is nothing in the record that contradicts his testimony on this

point. Mr. Stark was asked whether Mr. Frum was using a door to get in and out of the garage

truck, and Mr. Stark responded that he did not believe so and stated that he did not recall whether

he saw a door on the garbage truck. Further, there was no evidence that the garbage truck was

damaged in any way. It is undisputed that Mr. Stark hit Mr. Frum with Mr. Stark’s vehicle. Mr.

Stark did not hit Mr. Frum’s door or any portion of Mr. Frum’s garbage truck.

{¶12} The plain language of the ordinance appears to be designed to prohibit activity by

individuals that would lead to accidents caused by the individuals opening their doors into

traffic. O.C.O. 351.08. There is nothing in the ordinance to suggest that it was intended to

prohibit the conduct that took place in the instant matter. While Mr. Frum’s actions may have

violated another ordinance, the State did not establish that Mr. Frum violated O.C.O. 351.08.

The evidence establishes that Mr. Frum was able to open and close his door without incident,

leading to the conclusion that Mr. Frum opened his door into traffic at a time when it was

reasonably safe to do and that the act did not interfere with traffic. Accordingly, we reverse Mr.

Frum’s conviction, and the matter is remanded for the court to enter a judgment of acquittal. 6

III.

{¶13} In light of the foregoing, we reverse the judgment of the Wayne County

Municipal Court.

Judgment reversed, and cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Wayne County

Municipal Court, County of Wayne, State of Ohio, to carry this judgment into execution. A

certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellee.

EVE V. BELFANCE FOR THE COURT

CARR, J. CONCURS. 7

WHITMORE, J. DISSENTING.

{¶14} I respectfully dissent. Based upon the record on appeal, I would conclude that

Frum’s conviction is not against the manifest weight of the evidence and affirm the judgment of

the trial court.

{¶15} I do not agree with the majority’s decision to conduct a sufficiency analysis when

Frum’s sole argument is that his conviction is against the manifest weight of the evidence. The

majority cites State v. Recklaw, 9th Dist. No. 24078,

, and several other cases for

the proposition that, in order for this Court to weigh evidence, it first must determine that there is

evidence to weigh. The statement of law from Recklaw upon which the majority relies is that “a

court cannot weigh the evidence unless there is evidence to weigh.” Recklaw at ¶ 14, quoting

Whitaker v. M.T. Automotive Inc., 9th Dist. No. 21836,

. Recklaw,

however, was a case in which the appellant raised both sufficiency and weight as assignments of

error. Moreover, the cases upon which the abovementioned quote in Recklaw is based, Whitaker

and Chicago Ornamental Iron Co. v. Rook,

(1915), are also inapplicable to the

case at hand because they both contained challenges to sufficiency and weight. See also State v.

Anderson, 9th Dist. No. 26006,

(relying upon Recklaw to reach

sufficiency); State v. Eikleberry,

,

, ¶ 15 (9th Dist.)

(relying upon Whitaker to reach sufficiency); Estate of Harrold v. Collier, 9th Dist. Nos.

07CA0074 & 08CA0024,

, ¶ 16 (9th Dist.) (relying upon Whitaker to reach

sufficiency).

{¶16} This Court has written in several cases that “although sufficiency and manifest

weight are different legal concepts, manifest weight may subsume sufficiency in conducting the

analysis; that is, a finding that a conviction was supported by the manifest weight of the evidence 8

necessarily includes a finding of sufficiency.” E.g., State v. Johnson, 9th Dist. No.

06CA008911,

. As was the case in Recklaw, however, all of the cases

containing the foregoing language involved both sufficiency and weight arguments. See, e.g.,

id.; State v. Brooks, 9th Dist. No. 23236,

; State v. Owens, 9th Dist. No. 23267,

. “[W]eight of the evidence and sufficiency of the evidence are clearly different

legal concepts.” State v. Thompkins,

(1997). In constructing his

argument on appeal, Frum chose to only present a weight challenge. Because he limited his

argument to weight, one could infer that Frum chose to concede the sufficiency of the evidence

and focus solely on seeking a reversal on the weight of the evidence. See

, quoting

Tibbs v. Florida,

(1982) (“A reversal based on the weight of the evidence * *

* can occur only after the State both has presented sufficient evidence to support conviction and

has persuaded the jury to convict.”).

{¶17} It would appear that what the majority actually seeks to do is to perform a sua

sponte review of Frum’s conviction for sufficiency under the theory that it would be plain error

for a conviction based on insufficient evidence to stand. See State v. Davis, 8th Dist. No. 91943,

, ¶ 34-40. The result of such an analysis is that the State is deprived of any

opportunity to respond to an analysis that (1) was never asserted in the defendant’s brief, and (2)

might result in the loss of a conviction for the State, as it has in this case. Moreover, it is

difficult to predict when such an analysis might be applied. In a fairly recent case, this Court

wrote:

Although he assigns error to the sufficiency of the evidence, Horne has failed to adequately present this Court with any argument to support this contention. He has failed to state the standard of review for sufficiency, failed to state the elements of the charges he contends the State failed to prove, and finally, his conclusion to this assignment of error only mentions manifest weight. We decline to create a sufficiency argument for him. 9

State v. Horne, 9th Dist. No. 24672,

, ¶ 7. Thus, this Court has refused to

undertake a sufficiency analysis even when sufficiency has been raised in an appellant’s brief on

appeal. In the instant case, the majority has created an entire sufficiency argument for Frum

where none exists.

{¶18} In any event, the record here does in fact contain conflicting evidence. Frum

testified that he saw a car several hundred feet behind him as he stopped his garbage truck at the

fifth house on Back Massillon Road. According to Frum, each time he stopped his truck he

would sit in it and wait for a minute before exiting so that he could ensure it was safe to do so.

Frum testified that when he pulled up to his fifth stop, he “s[a]t there and wait[ed] a minute,”

looked behind the truck for traffic, waited for several cars to pass, and then “start[ed] to get out.”

As he started to get out, Frum testified, he still saw a car behind his truck, but it “look[ed] like [it

was] slowing down,” so he believed it would stop. Frum then exited the truck, closed the door,

made sure no more traffic was coming from the opposite direction, and took a step. At that

point, Stark’s car struck him.

{¶19} Frum’s trial testimony differed from the statement he gave to the police. Officer

Ryan Pitchure testified that he interviewed Frum on the day of the accident and that Frum

“specifically stated to me he looked back, didn’t see any vehicles, he then exited, and the next

thing he knew as he got out of the truck he was struck by a vehicle * * *.” Thus, Frum did not

mention anything to Officer Pitchure about having seen Stark’s car. Moreover, he stated that he

was struck by a car “as he got out of the truck.” (Emphasis added.) Frum did not say that he was

struck after he got out of the truck, shut the door, and stepped away from it.

{¶20} Stark testified that he had observed Frum’s garbage truck make several stops as

he prepared to turn onto Back Massillon Road. Stark then turned and began to approach the 10

truck from behind. Stark testified that he slowed his car as he approached the truck, waited for

oncoming traffic to clear, and then accelerated to pass the truck as the truck “was coming to a

stop.” Stark was clear that Frum was still inside his truck and not on the roadway when he

started to pass the truck. Frum then “jumped out” of the truck during Stark’s pass. Stark

testified that he tried to swerve when he saw Frum jumping out, but he struck Frum with the

right side of his car.

{¶21} The majority is incorrect that nothing in the record contradicts Frum’s testimony

that he stepped down from his truck, closed the door, and then was hit by Stark’s car. The record

contains conflicting testimony with regard to the point at which Frum exited his truck and

whether he saw Stark’s car. Stark testified that Frum was still in his truck when Stark began to

pass him and that he struck Frum when Frum “jumped out” of his truck during Stark’s pass.

Frum testified that he waited for a minute after he stopped his truck, stepped out of the truck,

shut the door, looked for oncoming traffic, and began to walk before Stark hit him. Thus,

according to Frum, his truck had already been stopped and he had already been outside of it for

an appreciable amount of time at the point at which Stark’s car struck him. Common sense

dictates that both versions could not be true. If Frum was still operating the truck when Stark

began to pass and then jumped out of it, then he could not have let the truck come to a complete

stop for a minute, stepped out of it, shut the door, looked for traffic, and begun to walk. Either

he was jumping out of the truck when Stark hit him (Stark’s version) or he was starting to walk

after already having stopped the truck for a time, gotten out of the truck, shut the door, and

looked around (Frum’s version). The trial testimony differed. Further, Frum’s trial testimony

differed from his own statement to Officer Pitchure. Frum told the officer that he never saw 11

Stark’s car and was struck by it “as he got out of the truck.” (Emphasis added.) Frum’s trial

testimony contradicted his earlier statement.

{¶22} The majority makes much of the fact that Frum’s garbage truck was not damaged

in the accident and the fact that Stark did not testify about the garbage truck’s door having

played a role in the accident. The only definitive testimony Stark gave at trial about the garbage

truck door was that he did not recall seeing a door. Yet, the fact that Stark did not recall seeing a

door is unsurprising, given the stress of the situation. Stark remembered his shock at Frum

jumping out of the truck, his attempt to swerve out of the way, and his hitting Frum with his car.

Stark’s inability to recall the door does not mean that the door was not open. It is impossible to

say exactly how the accident here occurred. For instance, it is possible that the truck and its door

were not damaged because Frum’s body blocked Stark’s car from hitting the door. It is also

possible that if Frum “jumped out” of the truck, he jumped far enough for a portion of his body

to extend past the open door such that, when combined with Stark’s attempt to swerve, only

Frum was struck by Stark’s car. The fact that the garbage truck was not damaged does not prove

anything.

{¶23} The trial court here was presented with competing versions of the events. Stark’s

version of the events supported the conclusion that Frum did not exit his truck in a reasonably

safe manner, as it described Frum coming to a stop as Stark began to pass his truck and exiting

the truck as soon as he stopped (when Stark had already begun to pass it). Moreover, Frum

himself gave inconsistent versions of the events. The trial court was in the best position to view

the evidence and was free to believe Stark’s version of the events. State v. Cross, 9th Dist. No.

25487,

, quoting Prince v. Jordan, 9th Dist. No. 04CA008423, 2004-Ohio- 12

7184, ¶ 35. Frum’s conviction is not against the manifest weight of the evidence. Thus, I would

overrule Frum’s assignment of error and affirm the judgment of the trial court.

APPEARANCES:

ROBERT C. MEYER, Attorney at Law, for Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting Attorney, for Appellee.