[Cite as State v. Wolf,
2014-Ohio-2698.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2013-G-3152
- vs - :
DUSTIN A. WOLF, :
Defendant-Appellant. :
Criminal Appeal from the Chardon Municipal Court, Case No. 2013 TR D 02615.
Judgment: Affirmed.
Dennis M. Coyne, City of Chardon Prosecutor, 111 Water Street, Chardon, OH 44024
(For Plaintiff-Appellee).
Katherine S. Riedel, Law Offices of Katherine S. Riedel Co., L.P.A., Jefferson
Commercial Park, 1484 State Route 46 North, No. 5, Jefferson, OH 44047 (For
Defendant-Appellant).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, Dustin A. Wolf, appeals the judgment of the Chardon Municipal
Court finding him guilty of violating R.C. 4511.31, Hazardous Zones, a minor
misdemeanor. Based on the following, we affirm.
{¶2} On May 15, 2013, appellant was involved in an automobile accident on
State Route 87 in Middlefield Township, Geauga County, Ohio. Prior to the accident,
appellant was driving eastbound on State Route 87. Ms. April Lynch, who was driving
in front of appellant, was also traveling eastbound on State Route 87. Ms. Lynch
significantly slowed her vehicle in an attempt to turn left into a driveway. Appellant
attempted to pass Ms. Lynch on the left by driving into the westbound lane of the road in
a no-passing zone signified by a double, yellow line painted in the center of the
roadway.
{¶3} In his attempt to pass, appellant struck Ms. Lynch’s vehicle as she was
making the left-hand turn. Appellant was cited for a violation of R.C. 4511.31.
Appellant pled not guilty, and the matter proceeded to a bench trial.
{¶4} At trial, Ms. Lynch testified that as she began to turn left into a driveway,
her car was struck by appellant’s vehicle. Ms. Lynch indicated that her vehicle was
struck on the driver’s side near her front tire.
{¶5} Appellant testified that he was traveling behind Ms. Lynch. Appellant
stated that Ms. Lynch “slowed down at a pretty fast pace.” Appellant testified that he did
not know “what she was doing” so he decided to go around her vehicle; Ms. Lynch then
turned “into [him] and struck [his] right tire and right side of the vehicle.” In response to
the court asking appellant whether it was his “point to go left of center to avoid striking
the rear of her vehicle,” appellant replied, “yes.”
{¶6} Helen Spicer, a witness, also testified. Ms. Spicer stated that she
observed Ms. Lynch’s vehicle travel slowly and then stop. Ms. Spicer then saw
appellant’s vehicle cross the double, yellow line and attempt to pass Ms. Lynch’s
vehicle.
{¶7} Trooper Timothy Kay of the Ohio State Highway Patrol testified that based
upon the physical evidence in the roadway, most notably the tire marks that lead up to
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appellant’s vehicle, along with statements from appellant, Ms. Lynch, and Ms. Spicer,
he issued a citation to appellant. Trooper Kay noted that the accident occurred in front
of a driveway. Trooper Kay also stated that the speed limit of this area was 50 miles
per hour.
{¶8} Upon the state resting and defense counsel calling no witness, the court
stated the following:
It’s the ruling of this Court based upon the testimony that both cars
were traveling at 45 miles per hour, as testified to, which is within
the speed limit there.
Further testimony of Mr. Wolf that said he stopped abruptly as Miss
Lynch slowed abruptly, however, I also believe him that he had to
avoid hitting the rear of Miss Lynch’s car and went to the left to go
around her at her slow rate of speed at that point. Therefore, I
don’t believe that he meets the exceptions of the one, two and
three such that he is guilty of violating 4511.31, hazardous passing.
{¶9} The trial court imposed a fine of $25 plus costs. The trial court stayed
appellant’s sentence, in part, pending the disposition of this appeal. Appellant filed a
timely notice of appeal and asserts the following assigned error for our review:
{¶10} “The trial court erred in its determination that defendant-appellant was
guilty of violating O.R.C. 4511.31.”
{¶11} On appeal, appellant maintains the trial court’s finding of guilt is against
both the sufficiency and manifest weight of the evidence.
{¶12} We first address appellant’s sufficiency argument. Appellant maintains
that although it is undisputed that he crossed the double, yellow line, he did not violate
R.C. 4511.31 because, in crossing the double, yellow line, he complied with the
provisions outlined in (B)(1)-(3) of R.C. 4511.31.
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{¶13} When measuring the sufficiency of the evidence, an appellate court must
consider whether the state set forth adequate evidence to sustain the jury’s verdict as a
matter of law. Kent v. Kinsey, 11th Dist. Portage No. 2003-P-0056, 2004-Ohio-4699,
¶11, citing State v. Thompkins,
78 Ohio St.3d 380, 387 (1997). A verdict is supported
by sufficient evidence when, after viewing the evidence most strongly in favor of the
prosecution, there is substantial evidence upon which a jury could reasonably conclude
that the state proved all elements of the offense beyond a reasonable doubt. State v.
Schaffer,
127 Ohio App.3d 501, 503 (11th Dist.1998), citing State v. Schlee, 11th Dist.
Lake No. 93-L-082,
1994 Ohio App. LEXIS 5862, *14-15 (Dec. 23, 1994).
{¶14} Appellant was found guilty of a violation of R.C. 4511.31, which states:
(A) The department of transportation may determine those portions
of any state highway where overtaking and passing other traffic or
driving to the left of the center or center line of the roadway would
be especially hazardous and may, by appropriate signs or markings
on the highway, indicate the beginning and end of such zones.
When such signs or markings are in place and clearly visible, every
operator of a vehicle or trackless trolley shall obey the directions of
the signs or markings, notwithstanding the distances set out in
section 4511.30 of the Revised Code.
(B) Division (A) of this section does not apply when all of the
following apply:
(1) The slower vehicle is proceeding at less than half the speed of
the speed limit applicable to that location.
(2) The faster vehicle is capable of overtaking and passing the
slower vehicle without exceeding the speed limit.
(3) There is sufficient clear sight distance to the left of the center or
center line of the roadway to meet the overtaking and passing
provisions of section 4511.29 of the Revised Code, considering the
speed of the slower vehicle.
{¶15} R.C. 4511.29, driving to left of center line, states:
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(A) No vehicle or trackless trolley shall be driven to the left of the
center of the roadway in overtaking and passing traffic proceeding
in the same direction, unless such left side is clearly visible and is
free of oncoming traffic for a sufficient distance ahead to permit
such overtaking and passing to be completely made, without
interfering with the safe operation of any traffic approaching from
the opposite direction or any traffic overtaken. In every event the
overtaking vehicle or trackless trolley must return to an authorized
lane of travel as soon as practicable and in the event the passing
movement involves the use of a lane authorized for traffic
approaching from the opposite direction, before coming within two
hundred feet of any approaching vehicle.
{¶16} The parties stipulated that appellant crossed the double, yellow line.
However, appellant maintained both below and on appeal that the provisions of R.C.
4511.31(B)(1)-(3) are applicable, and thus, he is not guilty of violating R.C. 4511.31.
Appellant claims the testimony revealed that Ms. Lynch was traveling less than half the
speed limit—five miles per hour; that appellant was able to pass Ms. Lynch’s vehicle
without exceeding the speed limit—he was initially traveling 45 miles per hour but
slowed significantly when attempting to pass Ms. Lynch’s vehicle; and that there was no
on-coming traffic in the westbound lane of State Route 87 at the time he attempted to
pass Ms. Lynch’s vehicle.
{¶17} R.C. 4511.31(B)(3) expressly provides that a vehicle, when traveling to the
left of the center or center line, must meet the overtaking and passing provision of R.C.
4511.29. R.C. 4511.29 states that a vehicle must not interfere with “any traffic
overtaken.” Therefore, a violation of R.C. 4511.31 occurs if the vehicle driven left of
center of the roadway interferes with the safe operation of the traffic being overtaken.
{¶18} The evidence produced at trial reveals that appellant was traveling behind
Ms. Lynch’s vehicle. Ms. Lynch’s vehicle came to a stop and then slowly proceeded in
order to turn left into a driveway, which was depicted on the traffic crash report. The
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testimony of appellant indicates that he was traveling approximately 45 miles per hour;
however, when Ms. Lynch’s vehicle stopped to turn left, he traveled left of center
because he “didn’t want to take the chance of striking her vehicle.” In traveling left of
center, appellant caused a collision with Ms. Lynch’s vehicle. The trial court found that
part of the reason appellant passed Ms. Lynch was because he was traveling at a rate
of speed that did not allow him to overtake Ms. Lynch’s vehicle safely. Because the
exceptions contained in R.C. 4511.31(B)(1)-(3) include the obligations contained in R.C.
4511.29, the exceptions do not exonerate appellant. Therefore, there was sufficient
evidence for the trial court to find appellant guilty of violating R.C. 4511.31 beyond a
reasonable doubt.
{¶19} Under this assignment of error, appellant also maintains that the trial
court’s finding of guilt is against the manifest weight of the evidence.
{¶20} To determine whether a verdict is against the manifest weight of the
evidence, a reviewing court must consider the weight of the evidence, including the
credibility of the witnesses and all reasonable inferences, to determine whether the trier
of fact “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, 78 Ohio
St.3d 380, 387 (1997). In weighing the evidence submitted at a criminal trial, an
appellate court must defer to the factual findings of the trier of fact regarding the weight
to be given the evidence and credibility of the witnesses. State v. DeHass,
10 Ohio
St.2d 230 (1967), paragraph one of the syllabus. Further, a conviction resulting from a
trial by jury shall not be reversed on the weight of the evidence except by the
concurrence of all three judges hearing the appeal.
Thompkins at 386.
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{¶21} Appellant does not challenge the trial court’s determination of the
credibility of the witnesses’ testimony. Appellant argues, however, that the trial court
failed to weigh the relevant evidence in its determination that appellant failed to meet
the elements of R.C. 4511.31(B)(1)-(3). Specifically, appellant maintains that while his
actions may have “constituted a violation of the assured clear distance statute, his
stated purpose for deciding to pass Ms. Lynch’s car does not ‘bar’ him from satisfying
the elements of R.C. 4511.31(B).” Appellant reiterates the aforementioned testimony
which allegedly satisfied the exceptions in R.C. 4511.31(B)(1)-(3).
{¶22} As we previously discussed, the trial court found that appellant traveled
across the double, yellow line, at least in part to avoid striking Ms. Lynch’s vehicle as
she attempted to turn left into a driveway. Appellant, in crossing the center line,
interfered with the safe operation of the traffic being overtaken, contrary to the
requirements of R.C. 4511.29. Further, in rendering its decision, the trial court indicated
it had reviewed the exceptions outlined in R.C. 4511.31(B)(1)-(3), which includes an
obligation to comply with R.C. 4511.29. Nothing in the record indicates the trial court
lost its way in finding appellant guilty of violating R.C. 4511.31.
{¶23} Based on the opinion of this court, the judgment of the Chardon Municipal
Court is hereby affirmed.
DIANE V. GRENDELL, J.,
THOMAS R. WRIGHT, J.,
concur.
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