[Cite as Sidney v. Alter,
2014-Ohio-3374.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SHELBY COUNTY
CITY OF SIDNEY,
PLAINTIFF-APPELLEE, CASE NO. 17-13-22
v.
JAMES A. ALTER, OPINION
DEFENDANT-APPELLANT.
Appeal from Sidney Municipal Court
Trial Court No. 13TRD03202
Judgment Reversed and Cause Remanded
Date of Decision: August 4, 2014
APPEARANCES:
Nathan J. Stuckey for Appellant
Jeffrey L. Amick for Appellee
Case No. 17-13-22
PRESTON, J.
{¶1} Defendant-appellant, James A. Alter (“Alter”), appeals the Sidney
Municipal Court’s November 13, 2013 judgment entry convicting him of driving
on a street posted as closed for repair in violation of Sidney Traffic Code 331.24.
For the reasons that follow, we reverse.
{¶2} On August 24, 2013, Sidney Police Department Officer Kevin Calvert
initiated a traffic stop of the vehicle operated by Alter after Calvert observed the
vehicle drive on a closed portion of Wapakoneta Avenue in Sidney. (Doc. No. 1).
Alter was traveling to Grace Baptist Church, where he is the senior pastor. (Id.);
(Dec. 2, 2013 Tr. at 56). Calvert did not cite Alter that day, but after consulting
his supervisors, Calvert issued a citation to Alter two days later for driving on a
street posted as closed for repair in violation of Sidney Traffic Code 331.24.
(Doc. No. 1). The citation was filed in the Sidney Municipal Court on August 27,
2013. (Id.).
{¶3} On August 29, 2013, Alter filed a written plea of not guilty to the
charge. (Doc. No. 3).
{¶4} The trial court held a bench trial on November 8, 2013. (Dec. 2, 2013
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Tr. at 4);1 (Doc. No. 20). Plaintiff-appellee, the City of Sidney (“City”),2
presented the testimony of Calvert. (Dec. 2, 2013 Tr. at 5-26). Calvert testified
that he observed the vehicle operated by Alter drive around two “road closed”
signs, both of which stated that Wapakoneta Avenue was closed, except to local
traffic. (Id. at 8). The first “road closed” sign—at the intersection of Wapakoneta
Avenue and Russell Road—listed businesses that motorists were permitted to
access despite the road closure. (Id.). Grace Baptist Church was not one of the
businesses listed on the sign. (Id.). Calvert testified that he observed Alter’s
vehicle turn from an unpaved portion of Wapakoneta Avenue onto West
Edgewood Street, then into an entrance to the church’s parking lot. (Id. at 9-12).
According to Calvert, based on Alter’s ultimate destination on West Edgewood
Street, he could have used an alternate route that would not have required driving
on a closed road. (Id. at 11). Specifically, Alter could have taken Russell Road to
Main Street to West Edgewood Street. (Id.).
{¶5} After Calvert testified, the trial court admitted the City’s sole exhibit,
Plaintiff’s Exhibit 1, which Calvert identified as a Google Maps map depicting
where Grace Baptist Church is situated on West Edgewood Street at the
intersection of West Edgewood Street and Wapakoneta Avenue. (Id. at 11, 14,
1
The trial transcript bears a date of December 2, 2013, which is the day Alter filed his notice of appeal of
the underlying judgment entry. We will refer to the transcript by the apparently erroneous date of
December 2, 2013, rather than the actual trial date of November 8, 2013.
2
The parties and the trial court refer to the plaintiff as the State of Ohio. However, we note that the
plaintiff is actually the City of Sidney because Alter was charged with violating only a Sidney ordinance,
not a Revised Code section. (See Doc. No. 1).
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26). The City rested, and Alter moved for acquittal under Crim.R. 29. (Id. at 26-
30). The trial court denied Alter’s motion. (Id. at 30). In his case, Alter presented
the testimony of two witnesses, including Alter. (Id. at 30-72). At the conclusion
of trial, the trial court took the case under advisement. (Id. at 79-80).
{¶6} On November 13, 2013, the trial court filed a judgment entry finding
Alter guilty of driving on a street posted as closed for repair in violation of Sidney
Traffic Code 331.24. (Doc. No. 20). The trial court “impose[d] no fine, just Court
Costs.” (Id.).
{¶7} Alter filed his notice of appeal on December 2, 2013. (Doc. No. 24).
He raises two assignments of error for our review. Because it is dispositive, we
address only Alter’s first assignment of error.
Assignment of Error No. I
The trial court erred by denying Pastor Alter’s motion for
judgment of acquittal because the State [sic] failed to prove each
element of City of Sidney Ordinance 331.24, driving upon street
posted as closed for repair, beyond a reasonable doubt.
{¶8} In his first assignment of error, Alter argues that the trial court erred
by not granting his Crim.R. 29 motion for judgment of acquittal. Specifically,
Alter argues that the City failed to prove beyond a reasonable doubt an essential
element of Sidney Traffic Code 331.24—namely, that the closed street was
“posted with appropriate signs.” Alter argues that the essential elements of Sidney
Traffic Code 331.24 are identical to those of R.C. 4511.71 and that this court’s
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holding in Bellefontaine v. Reinman stands for the proposition that the City was
required to prove beyond a reasonable doubt that appropriate signs were posted.
{¶9} In a bench trial, “the defendant’s plea of not guilty serves as a motion
for judgment of acquittal, and obviates the necessity of renewing a Crim.R. 29
motion at the close of all the evidence.” City of Dayton v. Rogers, 60 Ohio St.2d
162, 163 (1979), overruled on other grounds in State v. Lazzaro,
76 Ohio St.3d
261, 266 (1996). Therefore, it was unnecessary for Alter to move for judgment of
acquittal under Crim.R. 29 at the close of the City’s case.
Id. See also State v.
Miller, 3d Dist. Seneca No. 13-12-52,
2013-Ohio-3194, ¶ 27, fn. 3, citing Rogers.
Regardless, “[t]he purpose of a motion for judgment of acquittal is to test the
sufficiency of the evidence,” so we will treat Alter’s first assignment of error as
challenging the sufficiency of the evidence.
Rogers at 163. See also Miller at ¶
27, fn. 3.
{¶10} When reviewing the sufficiency of the evidence, “[t]he 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.” State v. Jenks, 61 Ohio St.3d 259
(1981), paragraph two of the syllabus, superseded by state constitutional
amendment on other grounds as stated in State v. Smith,
80 Ohio St.3d 89 (1997).
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{¶11} The ordinance at issue in this case, Sidney Traffic Code 331.24, sets
forth the offense of driving on a street posted as closed for repair, along with the
corresponding offense level:
(a) No person shall drive upon, along or across a street or highway,
or any part of a street or highway that has been closed in the process
of its construction, reconstruction or repair, and posted with
appropriate signs by the authority having jurisdiction to close such
street or highway.
(b) Whoever violates this section is guilty of a minor misdemeanor.
(ORC 4511.71)
(Emphasis added.) Sidney Traffic Code 331.24. The ordinance references R.C.
4511.71, subsection (A) of which is substantially similar to Sidney Traffic Code
331.24(a):
No person shall drive upon, along, or across a street or highway, or
any part of a street or highway that has been closed in the process of
its construction, reconstruction, or repair, and posted with
appropriate signs by the authority having jurisdiction to close such
highway.
(Emphasis added.) R.C. 4511.71(A).
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{¶12} To be “appropriate” under Sidney Traffic Code 331.24 or R.C.
4511.71, a sign must comply with the Ohio Manual of Uniform Traffic Control
Devices (“OMUTCD”), which the Ohio Department of Transportation has adopted
under R.C. 4511.09. Bellefontaine v. Reinman, 3d Dist. Logan No. 8-04-13,
2004-Ohio-4806, ¶ 8-9; Maple Hts. v. Smith,
131 Ohio App.3d 406, 407-408 (8th
Dist.1999). R.C. 4511.11(A) requires that “[l]ocal authorities in their respective
jurisdictions … place and maintain traffic control devices in accordance with
the [OMUTCD], upon highways under their jurisdiction as are necessary to
indicate and to carry out sections 4511.01 to 4511.76 and 4511.99 of the Revised
Code, local traffic ordinances, or to regulate, warn, or guide traffic.” See Reinman
at ¶ 8. R.C. 4511.11(D) further states that “[a]ll traffic control devices erected on
any street, highway, alley, bikeway, or private road open to public travel shall
conform to the [OMUTCD].” See Smith at 408. In short, “[l]ocal authorities must
place and maintain traffic control devices in accordance with the [OMUTCD].”
Id., citing R.C. 4511.11(A) and (D).
{¶13} Alter argues that the posting of appropriate signs is a material
element of Sidney Traffic Code 331.24(a) that the City was required to prove
beyond a reasonable doubt. In making his argument, Alter relies on our decision
in Reinman, in which we concluded, “The plain language of R.C. 4511.71 clearly
requires that an appropriate sign be posted indicating that the street is closed in
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order for criminal liability to attach for driving upon a closed street.” Reinman at
¶ 7. We also concluded that “R.C. 4511.71 requires the posting of an appropriate
road closed sign in compliance with OMUTCD” and that “one can not be
convicted of violating a statute that requires a sign unless that sign complies with
OMUTCD standards.” Id. at ¶ 9, 13.
{¶14} The City agrees that Reinman “stand[s] for the proposition that for
one to be convicted under R.C. 4511.71, appropriate signs under the [OMUTCD]
must be present.” (Appellee’s Brief at 4). The City also agrees that Alter
“correctly asserts that the State [sic] is required to establish this fact as a part of its
case.” (Id.). However, the City argues that “there exists a rebuttable presumption
that traffic signage placed by a governmental entity is legally erected in
compliance with applicable law” and “that it is the responsibility of the defendant
to rebut that presumption.” (Id. at 4-5). In support of this assertion, the City cites
three civil cases: Chambers v. McFerren, 168 Ohio St. 398 (1959); Bartlett v.
McDonald,
59 Ohio App. 85 (7th Dist.1937); Hoover v. Blackmore,
54 Ohio Law
Abs. 177 (M.C.1949). The City admits that it “did not offer evidence to prove that
the ‘road closed’ signs complied with the OMUTCD ….” (Appellee’s Brief at
5). But because Alter “offered no evidence to rebut the afore-stated presumption
as the same relates to these signs,” the City argues that it “was not required to
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present evidence concerning the compliance of those signs with OMUTCD
standards.” (Id.).
{¶15} We agree with Alter and hold that the portion of Sidney Traffic Code
331.24 requiring that the closed street or highway be “posted with appropriate
signs” is a material element of the offense stated in that ordinance.3 In the case of
traffic offenses, as with criminal offenses, the prosecution is required to prove
each material or essential element beyond a reasonable doubt. See Marion v.
Newell, 3d Dist. Marion No. 9-03-54, 2004-Ohio-2363, ¶ 13; Trotwood v.
Sampson,
63 Ohio Misc.2d 504, 506 (C.C.1993). Accordingly, the City was
required to prove beyond a reasonable doubt, among other elements, that the
closed portion of Wapakoneta Avenue on which Alter drove was “posted with
appropriate signs.” Sidney Traffic Code 331.24. Specifically, the City was
required to prove that the signs complied with the OMUTCD. See Reinman,
2004-Ohio-4806, at ¶ 9.
{¶16} Our conclusion is supported not only by the plain language of Sidney
Traffic Code 331.24, but also by Sidney Traffic Code 313.01(a)(2), which
prohibits the enforcement of any Traffic Code provision for which signs are
required if a proper sign is not posted:
3
We note that the City also failed to offer evidence that appropriate signs were posted “by the authority
having jurisdiction to close such street or highway.” Sidney Traffic Code 331.24(a). The parties do not
raise the issue of whether that quoted portion of the ordinance is also an essential element of the offense of
driving on a street posted as closed for repair. Therefore, we need not and do not address that issue in this
opinion.
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Case No. 17-13-22
No provision of this Traffic Code for which signs are required shall
be enforced against an alleged violator if, at the time and place of the
alleged violation, an official sign is not in proper position and
sufficiently legible to be seen by an ordinarily observant person.
Whenever a particular section of this Traffic Code does not state that
signs are required, that section shall be effective even though no
signs are erected or in place.
(ORC 4511.12(A))
Sidney Traffic Code 313.01(a)(2). As the ordinance suggests, it is modeled after
the substantially similar R.C. 4511.12(A), which we cited in Reinman as
supportive of our conclusion that R.C. 4511.71 requires the posting of OMUTCD-
compliant signs. Reinman, 2004-Ohio-4806, at ¶ 7-9, 13.
{¶17} We reject the City’s argument that a rebuttable presumption applies
in this case. “[T]he burden of proof on an essential element of a crime may not be
shifted to the defendant by means of a conclusive or persuasion-shifting
presumption.” State v. Wiley, 8th Dist. Cuyahoga No. 99576, 2014-Ohio-27, ¶ 37.
In other words, presumptions may not be used “to prove one of the essential
elements of the crime charged.” State v. Coldwell, 1st Dist. Hamilton No. C-
790421,
1980 WL 352948, *4 (June 18, 1980). See also Brecksville v. Crow, 8th
Dist. Cuyahoga No. 76909,
2000 WL 1847571, *2 (Dec. 18, 2000) (“The reason
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such a presumption is not used to prove the essential element of a crime is rather
simple: [T]he Due Process Clause protects the accused against conviction except
upon proof beyond a reasonable doubt of every fact necessary to constitute the
crime with which he is charged.”), quoting In re Winship, 397 U.S. 358, 365,
90
S.Ct. 1068 (1970).
{¶18} Here, the City attempts to use a rebuttable presumption to prove an
essential element of the offense. The City acknowledges that it was required to
establish that OMUTCD-compliant signs were posted. It also acknowledges that it
failed to offer evidence that the signs complied with the OMUTCD. However, the
City argues that an unrebutted rebuttable presumption relieved it of its duty to
prove that appropriate signs were posted. Presumptions may not be used in that
manner in traffic or criminal prosecutions. Therefore, we reject the City’s
argument along with the inapposite civil cases it cites.
{¶19} Furthermore, even if we were to accept the rebuttable presumption as
stated by the City, we note that the City did not offer evidence that would have
triggered that presumption. In other words, the City argues that “there exists a
rebuttable presumption that traffic signage placed by a governmental entity is
legally erected in compliance with applicable law.” (Emphasis added.)
(Appellee’s Brief at 4). The City offered no evidence that the “road closed” signs
in this case were “placed by a governmental entity.”
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{¶20} This case is similar to Columbus v. Gibbons, 10th Dist. Franklin No.
87AP-681, 1988 WL 33591 (Mar. 15, 1988). That case involved Columbus City
Code 2131.10(E), “No operator shall turn a vehicle at any intersection where
signs, signals, or markings prohibit such turn and have been erected or placed in
accordance with Chapter 2105.” (Emphasis sic.) Id. at *1. The Tenth District
“conclude[d] that to prove a violation of C.C. 2131.10(E), the city must produce
evidence proving beyond a reasonable doubt that the sign at issue was placed in
accordance with C.C. Chapter 2105, and, more particularly, that the signs were
placed under the authority of the service director.” Id. The court reversed the trial
court’s conviction of the defendant because the city “failed to prove a central
element of the offense charged,” and the trial court “should have granted
defendant’s motion to dismiss.” Id. The same is true in this case.
{¶21} After viewing the evidence in a light most favorable to the City, we
conclude that no rational trier of fact could have found the essential elements of
Sidney Traffic Code 331.24 proven beyond a reasonable doubt. Therefore, the
trial court erred by entering a guilty verdict that was based on insufficient
evidence.
{¶22} Alter’s first assignment of error is sustained.
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Case No. 17-13-22
Assignment of Error No. II
Pastor Alter’s conviction for violating City of Sidney Ordinance
331.24, driving upon street posted as closed for repair, is
contrary to the manifest weight of the evidence.
{¶23} In his second assignment of error, Alter argues that his conviction is
against the manifest weight of the evidence.
{¶24} In light of our decision to sustain Alter’s first assignment of error, his
second assignment of error has been rendered moot, and we decline to address it.
App.R. 12(A)(1)(c); State v. Davis, 1st Dist. Hamilton No. C-110620, 2012-Ohio-
2642, ¶ 10 (noting that the court’s holding that the defendant’s conviction was not
supported by sufficient evidence rendered moot his argument that his conviction
was contrary to the manifest weight of the evidence).
{¶25} Having found error prejudicial to the appellant herein in the
particulars assigned and argued in his first assignment of error, we reverse the
judgment of the trial court and remand for further proceedings.
Judgment Reversed and
Cause Remanded
WILLAMOWSKI, P.J. and ROGERS, J., concur.
/jlr
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