[Cite as State v. Delevie,

.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. John W. Wise, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 18-CA-111 : RAYMOND DELEVIE : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Licking County Municipal Court, Case No. 18TRD13235

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: September 3, 2019

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

J. MICHAEL KING RAYMOND DELEVIE City of Newark 131 S. Roosevelt Ave. 40 West Main St. Bexley, OH 43209 Fourth Floor Newark, OH 43055 Licking County, Case No. 18-CA-111 2

Delaney, J.

{¶1} Appellant Raymond Delevie appeals from the November 6, 2018 Court

Entry of the Licking County Municipal Court. Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} This case arose shortly before 12:19 p.m. on October 5, 2018, in the

eastbound traffic lanes of Interstate 70 in Bowling Green Township, Licking County.

{¶3} Close to where the crash occurred, eastbound traffic consisted of three

lanes. Near milepost 135, however, a flashing billboard indicated the right lane was

closed due to construction. The right lane was closed at milepost 138, reducing

eastbound traffic to two lanes.

{¶4} Also near milepost 135 was a permanent sign warning drivers that the left

lane ended in three-quarters of a mile. A second sign states the left lane ends and drivers

must merge to the right.

{¶5} Due to the right-lane closure and the left-lane termination, eastbound traffic

was reduced to a single lane of travel: the center lane.

{¶6} At the time of these events, traffic was heavy and moving slowly due to the

right-lane closure. Eric Stone was operating his tractor-trailer “semi” eastbound, in the

center lane. Near the point where the left lane ends, the roadway has a significant grade.

Although Stone was only traveling about 10 miles per hour, he was accelerating to get

the semi up the incline.

{¶7} As the left lane was about to terminate, Stone observed a car to his left, in

the terminating left lane. The driver, appellant, ran out of room in the left lane and entered Licking County, Case No. 18-CA-111 3

Stone’s lane of travel. The passenger-side mirror of appellant’s car struck a side signal

light located at the middle of the trailer.

{¶8} Stone and appellant each drove on to a rest stop about four miles away

before stopping and contacted the Ohio State Highway Patrol.

{¶9} Trooper Sawyers was dispatched and investigated the crash. Stone said

he had a dash camera, but the video was not working that day. Both drivers answered

Sawyers’ questions and completed written statements. Sawyers observed the damage

to the vehicles and took photos.

{¶10} Sawyers determined appellant was at fault in the crash and that the

mechanism of the crash was straightforward: Stone had achieved his lane and was

proceeding straight in the center lane; appellant attempted to move into Stone’s lane of

travel without ensuring he could safely do so. Appellant struck Stone’s vehicle. Sawyers

noted the highway signage was clearly marked to give drivers three-quarters of a mile to

move out of the terminating left lane. Despite the fact that traffic was backed up due to

construction, appellant was obligated to merge safely.

{¶11} Appellant was charged by Uniform Traffic Ticket (U.T.T.) with one count of

traffic control devices pursuant to R.C. 4511.12 and one count of turn signal violation

pursuant to R.C. 4511.39. Both offenses are minor misdemeanors. Appellant entered

pleas of not guilty and the matter proceeded to bench trial. Appellant moved for a

judgment of acquittal at the close of appellee’s evidence, but the motion was overruled.

Appellant rested without presenting evidence.

{¶12} Appellant was found guilty as charged. The trial court imposed a fine of

twenty-five dollars upon each count, plus court costs. Licking County, Case No. 18-CA-111 4

{¶13} Appellant now appeals from the judgment entry of his convictions and

sentence.

{¶14} Appellant raises three assignments of error:

ASSIGNMENTS OF ERROR

{¶15} “I. THE TRIAL COURT ERRED IN FINDING THAT APPELLANT

VIOLATED R.C. 4511.12 (TRAFFIC CONTROL DEVICES) AND R.C. 4511.39 (TRAFFIC

SIGNAL DEVICES) BECAUSE, AS A MATTER OF LAW, PLAINTIFF FAILED TO

PRODUCE SUFFICIENT EVIDENCE, NECESSARY TO PROVE EVERY FACT

BEYOND A REASONABLE DOUBT, TO ESTABLISH THE ELEMENTS OF EACH

OFFENSE.”

{¶16} “II. THE TRIAL COURT ERRED IN FAILING TO FIND THAT R.C. 4511.12

AND R.C. 4511.39 ARE ALLIED OFFENSES OF SIMILAR IMPORT UNDER R.C.

2941.25 AND STATE V. ROGERS.”

{¶17} “III. THE TRIAL COURT ERRED IN FINDING THAT APPELLANT

VIOLATED BOTH R.C. 4511.12 AND R.C. 4511.39 BECAUSE THE EVIDENCE IS

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. (sic).”

ANALYSIS

I., III.

{¶18} Appellant’s first and third assignments of error are related and will be

considered together. Appellant contends his convictions are not supported by sufficient

evidence and are against the manifest weight of the evidence. We disagree.

{¶19} The legal concepts of sufficiency of the evidence and weight of the evidence

are both quantitatively and qualitatively different. State v. Thompkins,

, Licking County, Case No. 18-CA-111 5

,

, paragraph two of the syllabus. The standard of review

for a challenge to the sufficiency of the evidence is set forth in State v. Jenks,

,

(1991) at paragraph two of the syllabus, in which the Ohio

Supreme Court held, “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.”

{¶20} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the

entire record, weighs the evidence and all reasonable inferences, considers the credibility

of witnesses and determines 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 overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.

Reversing a conviction as being against the manifest weight of the evidence and ordering

a new trial should be reserved for only the “exceptional case in which the evidence weighs

heavily against the conviction.” Id.

{¶21} Appellant was cited pursuant to R.C. 4511.12(A), “traffic control devices,”

which states in pertinent part: “No * * * driver of a vehicle* * * shall disobey the instructions

of any traffic control device placed in accordance with this chapter, unless at the time

otherwise directed by a police officer.” He was also cited pursuant to R.C. 4511.39(A),

“turn signals,” which states in pertinent part: “No person shall turn a vehicle * * * or move Licking County, Case No. 18-CA-111 6

right or left upon a highway unless and until such person has exercised due care to

ascertain that the movement can be made with reasonable safety nor without giving an

appropriate signal in the manner hereinafter provided.”

{¶22} The record before us includes appellee’s exhibit 1, a photo of the damage

to the passenger-side mirror of appellant’s vehicle. Appellee’s exhibit 2 is a photo of

Stone measuring the height of the point at which appellant made contact with his trailer.

Appellee’s exhibit 3 is a photo of a scuff mark from appellant’s side mirror. Appellee’s

exhibits 4 and 5 are photos of the large orange overhead sign stating, “Left lane ends ¾

mile.” Appellee’s exhibit 6 is a photo of a large orange overhead sign stating, “Left lane

ends merge right.” The record also includes appellant’s exhibit 1, the traffic crash report

of the OSHP; exhibit 2, the U.T.T.; exhibit 3, appellant’s written statement; and exhibit 4,

the Ohio Manual of Uniform Traffic Control Devices.

{¶23} Appellee’s evidence consisted of the exhibits cited supra and the testimony

of Stone and Sawyers. Drivers in the left eastbound lane of Interstate 70, less than a mile

before where this crash occurred, are warned by two permanent fixtures first that the left

lane will end in three-quarters of a mile, and then that the left lane ends and they must

merge right. The orange signs depicted in appellee’s exhibits 4, 5, and 6 are “traffic control

devices” within the meaning of R.C. 4511.01(QQ) [“Traffic control device” means a * * *

sign * * * used to regulate, warn, or guide traffic, placed on, over, or adjacent to a street,

highway * * * by authority of a public agency * * *.”] Appellant disobeyed the traffic control

devices, failed to merge in time, and unsuccessfully attempted to pass the semi driven by

Stone. Appellant proceeded without caution into Stone’s lane, striking the trailer with his

mirror. R.C. 4511.39 requires a motorist both to use reasonable care and to signal when Licking County, Case No. 18-CA-111 7

making a turn, and failure to do either gives rise to a traffic violation. State v. Richardson,

,

(1st Dist. 1994), abrogated on other grounds

by Dayton v. Erickson,

,

,

(1996). The

evidence patently established violations of R.C. 4511.39 and R.C. 4511.12(A).

{¶24} Appellant makes several arguments why his convictions upon each of these

offenses are not supported by sufficient evidence and are against the manifest weight of

the evidence. We find these arguments unavailing upon our review of the unequivocal

evidence presented at trial.

{¶25} Appellant asserts there is “reasonable doubt” that he is guilty of the offenses

because the trial court observed appellant presented an “interesting case” and the trial is

subject to review by another court. We do not agree with appellant that the trial court’s

observations are admissions of reasonable doubt as to appellant’s guilt.

{¶26} Appellant argues the testimony of Eric Stone violates the “physical facts

rule” and therefore should have been discounted by the trial court. The “physical-facts

rule” states that “[t]he testimony of a witness which is positively contradicted by the

physical facts cannot be given probative value by the court.” McDonald v. Ford Motor Co.,

, 12–14,

, 254–55 (1975), citing Lovas v. General Motors

Corp.,

(6 Cir. 1954). This is not a case requiring application of the

physical-facts rule because Stone’s testimony is not positively contradicted by the

physical evidence. “The palpable untruthfulness' of plaintiff's testimony requiring a trial

court to take a case from the jury under the physical facts rule ‘must be (1) inherent in the

rejected testimony, so that it contradicts itself or (2) irreconcilable with facts of which,

under recognized rules, the court takes judicial knowledge or (3) is obviously inconsistent Licking County, Case No. 18-CA-111 8

with, contradicted by, undisputed physical facts.’” McDonald v. Ford Motor Co., supra,

citing Duling v. Burnett,

,

(1938). In the instant case,

we find the physical-facts rule cannot be applied to Stone’s testimony because there is

no such “palpable untruthfulness.” The physical evidence, and Sawyers’ investigation,

corroborate Stone’s testimony.

{¶27} Appellant supports his argument with a number of theories premised upon

facts not in evidence. The mechanism of the crash in the instant case is straightforward

and easily gleaned from the record as noted supra. Moreover, the weight of the evidence

and the credibility of the witnesses are determined by the trier of fact. State v. Yarbrough,

,

,

.

{¶28} Appellant asserts Stone effectively “cut him off” and failed to yield to him.

The uncontroverted evidence at trial established, however, that Stone had at all times

maintained his lane of travel and was under no duty to yield to appellant, who in turn failed

to follow instructions to merge because his lane was ending. Appellant was further

required to make any movement with due care, but he instead effectively side-swiped the

semi as he entered its lane.

{¶29} Appellant also argues there is reasonable doubt as to his guilty because

Trooper Sawyers “allowed [Stone] to drive off without seizing the dash cam.” The

uncontroverted evidence at trial established Stone’s dash cam was not working on the

date of the crash. Further, appellant offers sheer speculation as to the evidentiary value

of the video, had it existed.

{¶30} We simply do not find that appellant’s theories are supported by the

straightforward evidence of how this crash occurred. Moreover, any inconsistencies in Licking County, Case No. 18-CA-111 9

the evidence were for the trial court to resolve. State v. Dotson, 5th Dist. Stark No.

2016CA00199,

,

, ¶ 49. “The weight of the evidence

concerns the inclination of the greater amount of credible evidence offered in a trial to

support one side of the issue rather than the other.” State v. Brindley, 10th Dist. Franklin

No. 01AP-926,

,

, ¶ 16.

{¶31} We find in the instant case that appellant’s convictions are supported by

sufficient evidence and are not against the manifest weight of the evidence. His first and

third assignments of error are overruled.

II.

{¶32} In his second assignment of error, appellant argues the trial court should

have found R.C. 4511.12 and R.C. 4511.39 are allied offenses of similar import. We

disagree.

{¶33} R.C. 2941.25 states as follows:

(A) Where the same conduct by defendant can be construed

to constitute two or more allied offenses of similar import, the

indictment or information may contain counts for all such offenses,

but the defendant may be convicted of only one.

(B) Where the defendant's conduct constitutes two or more

offenses of dissimilar import, or where his conduct results in two or

more offenses of the same or similar kind committed separately or

with a separate animus as to each, the indictment or information may

contain counts for all such offenses, and the defendant may be

convicted of all of them. Licking County, Case No. 18-CA-111 10

{¶34} For the first time on appeal, appellant argues that R.C. 4511.12 (traffic

control devices) and R.C. 4511.39 (turn signal violations) are allied offenses of similar

import. An accused's failure to raise the issue of allied offenses of similar import in the

trial court forfeits all but plain error, and a forfeited error is not reversible error unless it

affected the outcome of the proceeding and reversal is necessary to correct a manifest

miscarriage of justice. State v. Rogers,

,

,

. Accordingly, an accused has the burden to demonstrate a reasonable

probability that the convictions are for allied offenses of similar import committed with the

same conduct and without a separate animus; absent that showing, the accused cannot

demonstrate that the trial court's failure to inquire whether the convictions merge for

purposes of sentencing was plain error.

{¶35} In State v. Ball, 5th Dist. Licking No. 18-CA-1,

, at ¶ 49, we

noted the decision of the Ohio Supreme Court in State v. Ruff,

, 2015-

Ohio-995,

, revising its allied-offense jurisprudence. A trial court, and the

reviewing court on appeal, when considering whether there are allied offenses that merge

into a single conviction under R.C. 2941.25(A), must first take into account the conduct

of the defendant.

In other words, how were the offenses committed?

If any of the

following is true, the offenses cannot merge and the defendant may be convicted and

sentenced for multiple offenses: (1) the offenses are dissimilar in import or significance—

in other words, each offense caused separate, identifiable harm, (2) the offenses were

committed separately, and (3) the offenses were committed with separate animus or

motivation.

Licking County, Case No. 18-CA-111 11

{¶36} Appellant has not met his burden of establishing a reasonable probability

that his convictions are allied offenses. One can disobey a traffic signal without

committing a turn-signal violation, and vice-versa. Therefore, the charged offenses are

of dissimilar import. The act of failing to timely merge right was committed separately from

the failure to move right upon the highway without exercising due care. Appellant was

appropriately subjected to two separate and distinct charges, one charge for failing to

obey the traffic signals and another charge for moving into Stone’s lane without due care.

{¶37} There may be instances when a court's failure to merge allied offenses can

constitute plain error, but this case does not present one of those instances. Appellant

failed to demonstrate any probability that he has, in fact, been convicted of allied offenses

of similar import committed with the same conduct and with the same animus, and he

therefore failed to show any prejudicial effect on the outcome of the proceeding. Ball,

supra,

, ¶ 54, and Rogers,

at ¶ 25.

{¶38} Appellant’s second assignment of error is overruled. Licking County, Case No. 18-CA-111 12

CONCLUSION

{¶39} Appellant’s three assignments of error are overruled and the judgment of

the Licking County Municipal Court is affirmed.

By: Delaney, J.,

Gwin, P.J. and

Wise, John, J., concur.