[Cite as State v. Cornish, 2014-Ohio-4279.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, : CASE NO. CA2014-02-054 Plaintiff-Appellee, : OPINION : 9/29/2014 - vs - :
ROBERT E. CORNISH, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY AREA I COURT Case No. TRD 1301471
Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee
Neal D. Schuett, 121 West High Street, Oxford, Ohio 45056, for defendant-appellant
M. POWELL, J.
{¶ 1} Defendant-appellant, Robert Cornish, appeals his conviction in the Butler
County Area I Court for failing to yield at a stop sign.
{¶ 2} On September 17, 2013, appellant was cited for failing to yield at a stop sign in
violation of Oxford Codified Ordinances (OCC) 331.19. The citation stemmed from a collision
between appellant and Brian Overly which occurred at the intersection of College Avenue
and Chestnut Street in Oxford, Ohio. A bench trial was held on December 12, 2013. Butler CA2014-02-054
Appellant, Overly, Katherine Larsen (a witness to the collision), and Oxford Police Officer
Benjamin Hoole (who was dispatched to the scene of the accident) testified at trial.
{¶ 3} College Avenue is a north-south, two-lane roadway which dead-ends on its
south end into Chestnut Street in a "T" intersection. Chestnut Street is an east-west, two-
lane roadway. The intersection is a three-way stop intersection controlled by three stop signs;
traffic traveling southbound on College Avenue and eastbound and westbound on Chestnut
Street is required to stop at the intersection.
{¶ 4} On the morning of September 17, 2013, appellant was operating his Chevrolet
Silverado pick-up truck and hauling a trailer westbound on Chestnut Street, and Overly was
operating his vehicle eastbound on Chestnut Street, as they both approached the
intersection. Appellant testified he stopped at the stop sign before proceeding through the
intersection. Overly testified he stopped at the stop sign before entering the intersection and
turning left onto College Avenue. The front bumper of appellant's pick-up truck struck the
right rear passenger door of Overly's vehicle as Overly was completing his left turn onto
College Avenue. Overly's vehicle was totaled as a result of the collision. At the time of the
collision, Larsen was stopped in the southbound lane of College Avenue waiting to turn into
Chestnut Street. She testified the collision happened in front of her and that Overly's vehicle
"was pretty well through the intersection before it got hit."
{¶ 5} By judgment entry filed on January 16, 2014, the trial court found appellant
guilty as charged. Appellant was ordered to pay a $60 fine plus court costs.
{¶ 6} Appellant appeals, raising four assignments of error.
{¶ 7} Assignment of Error No. 1:
{¶ 8} THE TRIAL COURT ERRED WHEN IT FAILED TO MAKE A FINDING
REGARDING "RIGHT OF WAY."
{¶ 9} Appellant argues the trial court erred in failing to determine who had the right of -2- Butler CA2014-02-054
way before the collision. Appellant further argues that even if Overly had the right of way, he
forfeited it by committing three traffic violations while going through the intersection: failure to
use his turn signal, failure to yield while turning left, and improper left turn (appellant alleges
Overly "cut the corner" while making his left turn). Appellant cites State v. Harris, 12th Dist.
Clinton No. CA91-06-012, 1991 WL 278245 (Dec. 30, 1991), in support of his argument.
{¶ 10} Appellant was convicted of failing to yield at a stop sign, in violation of OCC
331.19(a), which states:
Except when directed to proceed by a law enforcement officer, every driver of a vehicle approaching a stop sign shall stop at a clearly marked stop line, but if none, before entering the crosswalk on the near side of the intersection, or, if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering it. After having stopped, the driver shall yield the right of way to any vehicle in the intersection or approaching on another roadway so closely as to constitute an immediate hazard during the time the driver is moving across or within the intersection or junction of roadways.
OCC 331.19(a) mirrors R.C. 4511.43(A).
{¶ 11} As applicable here, R.C. 4511.01(UU)(1) defines "right of way" as the "right of a
vehicle * * * to proceed uninterruptedly in a lawful manner in the direction in which it * * * is
moving in preference to another vehicle * * * approaching from a different direction into its * *
* path." The "definition is impersonal in nature and relates to the right of a vehicle to proceed
uninterruptedly in preference to another vehicle." Mikusevich v. Reed, 11th Dist. Trumbull
No. 2715, 1979 WL 208185, *4 (Oct. 1, 1979) (Hofstetter, J., concurring).
{¶ 12} "[A] driver with the right of way has an absolute right to proceed uninterruptedly
in a lawful manner, and other drivers must yield to him." In re Neill, 160 Ohio App.3d 439,
2005-Ohio-1696, ¶ 10 (3d Dist.). "Conversely, the driver with the right of way forfeits this
preferential status over other drivers if he or she fails to proceed in a lawful manner." Id.
"[T]he state is not required to prove lawful operation as an element of proving a failure to -3- Butler CA2014-02-054
yield the right-of-way, as the law presumes that a vehicle that is claimed to have the right-of-
way is proceeding lawfully." Harris, 1991 WL 278245 at *2. Thus, "in order to establish that
the right-of-way has been lost, the defendant is required to present evidence rebutting the
presumption of lawful operation." Id. "When evidence of unlawful operation is presented, it
is incumbent upon the trier-of fact to resolve the issue of whether the right-of-way has been
forfeited." Id.
{¶ 13} In Harris, the defendant collided with William Miller at the intersection of Mount
Pleasant Road and Gurneyville Road. Traveling on Mount Pleasant Road, the defendant
stopped at the stop sign before proceeding through the intersection. It appears drivers
traveling on Gurneyville Road did not have to stop at the intersection. At issue at trial was
Miller's speed immediately prior to the collision. Miller testified he was traveling within the
speed limit whereas the defendant testified Miller was traveling at an excessive speed.
Miller's testimony was corroborated by a state highway patrol report. The defendant's
testimony was supported by the testimony of an expert witness who also explained why the
state highway patrol report was incorrect.
{¶ 14} The trial court convicted the defendant of failure to yield in violation of R.C.
4511.43. The trial court found that, had the defendant simply continued across the
intersection (rather than attempting to back out after observing Miller approaching the
intersection), the accident would not have occurred. In reaching its guilty verdict, the trial
court did not explicitly resolve the issue of Miller's speed. This court reversed the trial court's
judgment and remanded for a determination of whether Miller was operating his vehicle in a
lawful manner. Specifically, this court found that the defendant had presented evidence that
Miller was proceeding in an unlawful manner and thus:
Having been presented with evidence to rebut the presumption of lawful operation, the trial court was obligated to resolve the issue of whether Miller was proceeding lawfully. * * * The record -4- Butler CA2014-02-054
reveals no conclusion on the part of the trial court concerning the manner in which Miller was proceeding. Therefore, as there could be no finding of a violation of R.C. 4511.43 without a determination that Miller possessed the right-of-way, the trial court erred in its finding of guilt.
Harris, 1991 WL 278245 at *3.
{¶ 15} In Cleveland v. Keah, 157 Ohio St. 331 (1952), a decision cited by the state,
the defendant was convicted of failing to yield when he turned left in front of an oncoming
vehicle at an intersection, resulting in a collision. The defendant challenged his conviction on
the ground the other driver was proceeding in an unlawful manner by speeding. The Ohio
Supreme Court upheld the conviction, finding:
It would * * * seem apparent that the 30-mile-per-hour speed of the automobile as testified to was not a factor in the collision but that the collision was due entirely to the sudden left turn of [the defendant] without regard for the existing [oncoming] traffic conditions[.]
***
The Municipal Court found the defendant guilty of violating [the ordinance] by turning his vehicle to the left directly into or in front of the oncoming automobile, thereby causing the collision, and apparently concluded, on the basis of facts developed, that the driver of the automobile was not at fault and not proceeding in such a manner as to forfeit his right of way.
Id. at 336-337.
{¶ 16} Appellant asserts he presented evidence Overly was proceeding through the
intersection in an unlawful manner at the time of the collision. Specifically, appellant testified
Overly failed to use his turn signal, "cut the corner" while turning left onto College Avenue,
and failed to yield to appellant while turning left, in violation of OCC 331.14, 331.10, and
331.17. No other evidence was presented by appellant in support of Overly's three alleged
traffic violations. Overly testified that at the time of the collision, (1) he "was going
perpendicular," (2) he was almost all the way through the intersection, and (3) "given another
-5- Butler CA2014-02-054
second, [he] would have been out of the intersection." No evidence was presented to refute
or corroborate appellant's assertion Overly did not use his turn signal.
{¶ 17} As is fully discussed in appellant's third and fourth assignments of error,
testimony at trial indicates that Overly's vehicle was nearly through the intersection when it
was struck by appellant's pick-up truck. Thus, Overly was entitled to the right of way
pursuant to the explicit terms of OCC 331.19(a) and could not have failed to yield while
turning left in violation of OCC 331.17 as alleged by appellant. By finding appellant guilty of
failing to yield at a stop sign, the trial court implicitly found that Overly's alleged traffic
violations did not contribute to the collision and/or that Overly was not proceeding in an
unlawful manner when his vehicle was struck by appellant's pick-up truck.
{¶ 18} In Keah, the municipal court implicitly determined that the oncoming driver’s
alleged unlawful operation of his vehicle was not a factor contributing to the collision and
therefore the driver did not forfeit the right of way. Harris differs from Keah in that the
evidence in Harris raised an unresolved issue of whether Miller's speed contributed to the
collision with a consequent forfeiture of the right of way. The case at bar is controlled by
Keah, and not Harris, because of the unequivocal evidence of Overly’s presence in the
intersection at the time of the collision. Therefore, appellant failed to yield in violation of OCC
331.19, regardless of Overly's alleged improper left turn and failure to use his turn signal.
{¶ 19} In light of the foregoing, we find that the trial court did not err in failing to
expressly determine who had the right of way before the collision, and in implicitly finding that
Overly had and maintained the right of way at the time of the collision.
{¶ 20} Appellant's first assignment of error is overruled.
{¶ 21} Assignment of Error No. 2:
{¶ 22} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT-
APPELLANT WHEN IT ALLOWED THE STATE TO OFFER OPINION EVIDENCE IN -6- Butler CA2014-02-054
VIOLATION OF EVID.R. 701 AND EVID.R. 702.
{¶ 23} Appellant argues the trial court erred in allowing Officer Hoole to state his
opinion as to whether appellant failed to stop at the stop sign prior to the collision. Appellant
argues the officer's testimony was inadmissible because the officer was neither an expert
witness under Evid.R. 702 nor a proper lay witness under Evid.R. 701. The record shows
that Officer Hoole did not testify as an expert witness. Consequently, we will not address
appellant's argument that the officer's testimony was inadmissible under Evid.R. 702.
{¶ 24} Pursuant to Evid.R. 701, a lay witness may testify in the form of opinions or
inferences as long as the opinions or inferences are "(1) rationally based on the perception of
the witness and (2) helpful to a clear understanding of the witness' testimony or the
determination of a fact in issue." "If the opinion is not 'rationally based on the perception of
the witness,' then the opinion is speculation, and as such, cannot be 'helpful to a * * *
determination of a fact in issue.'" State v. Feerer, 12th Dist. Warren No. CA2008-05-064,
2008-Ohio-6766, ¶ 23, quoting State v. Hall, 2d Dist. Montgomery No. 19671, 2004-Ohio-
663, ¶ 8.
{¶ 25} Evid.R. 701 grants the trial court wide latitude in allowing or controlling lay
witness opinion testimony. State v. Kehoe, 133 Ohio App.3d 591, 603 (12th Dist.1999). An
appellate court reviews a trial court's decision regarding lay witness testimony for an abuse of
discretion. Id.; Urbana ex rel. Newlin v. Downing, 43 Ohio St.3d 109, 113 (1989). The party
challenging the testimony must demonstrate that, if the trial court abused its discretion, such
abuse "materially prejudiced the objecting party." Kehoe at id.
{¶ 26} Officer Hoole testified he arrived at the scene of the accident four minutes after
the collision. Appellant's pick-up truck and Overly's vehicle had not been moved and were in
their resting position. Officer Hoole testified he looked at the vehicles' resting position,
examined markings on the pavement, examined the damage to both vehicles, interviewed -7- Butler CA2014-02-054
Larsen, and spoke to both appellant and Overly.
{¶ 27} Officer Hoole testified that appellant's pick-up truck was stopped in the
intersection, blocking College Avenue, and that as a result of the collision, Overly's vehicle
"was actually spun almost 180 degrees" and was partially resting in the crosswalk of the
southbound lane of College Avenue. The officer testified appellant's pick-up truck sustained
some damage to the grille and bumper, however it was not heavy damage. The officer found
Overly's vehicle to be damaged "on the B pillar in the rear door of the car," which broke out a
glass window and disabled the vehicle as "the strike impeded the turning of the rear wheel."
{¶ 28} The officer was not allowed to testify where the collision occurred within the
intersection or whether Overly's vehicle was almost through the intersection before it was
struck. The officer testified he considered the resting position of the vehicles in determining
whom to cite for the collision. Officer Hoole explained that based on the vehicles' resting
position, Larsen's statement, and the fact he did not believe appellant's pick-up truck "could
have caused that much damage to [Overly's] vehicle, if it had actually stopped," the officer
decided to cite appellant for failure to yield.
{¶ 29} We find that Officer Hoole's opinion was rationally based on his perception. His
decision to cite appellant and his belief appellant could not have stopped at the intersection
were based on his observation of the vehicles' resting position four minutes after the collision,
markings on the pavement, and the damage sustained by the vehicles. Given the conflicting
statements provided by appellant and Overly, the officer's opinion was also helpful to the trial
court in determining whose testimony to credit on the issue of right of way at the time of the
collision.
{¶ 30} In addition, this was a bench trial and the trial court is presumed to know the
applicable law and apply it accordingly. See State v. Lloyd, 12th Dist. Warren Nos. CA2007-
04-052 and CA2007-04-053, 2008-Ohio-3383. Further, the trial court is presumed to -8- Butler CA2014-02-054
consider only reliable, relevant, and competent evidence unless it affirmatively appears to the
contrary. Id.; State v. Waters, 8th Dist. Cuyahoga No. 87431, 2006-Ohio-4895. Therefore,
we presume that the trial court considered and properly applied all applicable law. See State
v. Haney, 7th Dist. Mahoning No. 05 MA 151, 2006-Ohio-4687 (police officer's improper lay
witness opinion under Evid.R. 701 does not constitute reversible error where the trial is a
bench trial, the trial court is presumed to consider only relevant and competent evidence, and
there is no evidence the trial court relied on incompetent evidence in reaching its verdict).
{¶ 31} We therefore find that Officer Hoole's testimony was admissible lay witness
opinion testimony under Evid.R. 701 and that the trial court did not abuse its discretion in
allowing the officer to so testify.
{¶ 32} Appellant's second assignment of error is overruled.
{¶ 33} Assignment of Error No. 3:
{¶ 34} THE STATE PRESENTED INSUFFICIENT EVIDENCE TO CONVICT
DEFENDANT-APPELLENT OF FAILURE TO YIELD IN VIOLATION OF OCC §331.19. (sic)
{¶ 35} Assignment of Error No. 4:
{¶ 36} APPELLANT'S CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.
{¶ 37} Appellant argues his conviction is not supported by sufficient evidence and is
against the manifest weight of the evidence because the state failed to prove appellant did
not stop at the marked stop line or failed to yield to an immediate hazard.
{¶ 38} When reviewing the sufficiency of the evidence supporting a criminal conviction,
an appellate court's function is to examine the evidence admitted at trial, and upon viewing
such evidence in a light most favorable to the prosecution, determine whether "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 (1991), paragraph two of the syllabus; -9- Butler CA2014-02-054
State v. Layne, 12th Dist. Clermont No. CA2009-07-043, 2010-Ohio-2308, ¶ 23.
{¶ 39} When considering whether a judgment is against the manifest weight of the
evidence in a bench trial, an appellate court will not reverse a conviction where the trial court
could reasonably conclude from substantial evidence that the state has proven the offense
beyond a reasonable doubt. State v. Godby, 12th Dist. Butler No. CA2005-03-056, 2006-
Ohio-205, ¶ 4, citing State v. Eskridge, 38 Ohio St.3d 56, 59 (1988). In conducting its review,
an appellate court examines 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 trial court "clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered." State v.
Cooper, 12th Dist. Butler No. CA2010-05-113, 2011-Ohio-1630, ¶ 7.
{¶ 40} In making this analysis, the reviewing court must be mindful that the original
trier of fact was in the best position to judge the credibility of witnesses and the weight to be
given the evidence. Id. at ¶ 7. A determination that a conviction is supported by the manifest
weight of the evidence will also be dispositive of the issue of sufficiency. State v. Church,
12th Dist. Butler No. CA2011-04-070, 2012-Ohio-3877, ¶ 10.
{¶ 41} Appellant was convicted of violating OCC 331.19(a) which requires a driver
approaching a stop sign to first stop at a clearly marked stop line, and after having stopped,
to yield the right of way to any vehicle in the intersection or approaching on another roadway
so closely as to constitute an immediate hazard during the time the driver is moving across or
within the intersection.
{¶ 42} Appellant first argues the state failed to prove he did not stop at a "clearly
marked stop line," and furthermore, failed to prove a clearly marked stop line existed for the
westbound lane of Chestnut Street at the intersection with College Avenue.
{¶ 43} While neither Overly, nor Officer Hoole or Larsen testified as to the existence of - 10 - Butler CA2014-02-054
a clearly marked stop line, both the officer and Larsen testified the intersection was a three-
way stop. The officer further testified the intersection was controlled by three stop signs.
While OCC 331.19(a) refers to a "clearly marked stop line," the principal objective of the
provision is to require all traffic to stop in obedience to a stop sign. See Kurtz v. Adams, 3d
Dist. Allen No. 1-84-63, 1986 WL 5911 (May 12, 1986) (addressing R.C. 4511.43, a statutory
provision identical to OCC 331.19). We also note that photographs taken by appellant
sometime after the collision and admitted into evidence show the existence of a "clearly
marked stop line" in the westbound lane of Chestnut Street at the intersection with College
Avenue.
{¶ 44} The testimony of appellant, Overly, and Larsen reveals that as they all
approached the intersection, two vehicles on Chestnut Street were already at the
intersection: one vehicle was ahead of appellant's pick-up truck in the westbound lane of
Chestnut Street, and one vehicle was ahead of Overly's vehicle in the eastbound lane of
Chestnut Street. Appellant testified that as he approached the intersection, the vehicle
ahead of him was leaving the intersection. Thereafter, appellant stopped at the stop sign
before proceeding through the intersection. Overly testified appellant did not stop at the stop
sign but rather, followed the vehicle that was ahead of appellant's pick-up truck directly
through the intersection. Larsen could not say whether appellant stopped before proceeding
through the intersection.
{¶ 45} It is well-established that when conflicting evidence is presented at trial, a
conviction is not against the manifest weight of the evidence simply because the trier of fact
believed the prosecution testimony. See State v. Davis, 12th Dist. Butler No. CA2010-06-
143, 2011-Ohio-2207. The trial court, sitting as the trier of fact, did not lose its way simply
because it chose to believe Overly's testimony over appellant's testimony. See State v.
Amburgey, 12th Dist. Clermont No. CA2005-01-007, 2006-Ohio-1000, ¶ 7. - 11 - Butler CA2014-02-054
{¶ 46} Further, even assuming, arguendo, that appellant stopped at the stop sign
before proceeding through the intersection, OCC 331.19 requires a driver, "[a]fter having
stopped, to yield the right of way to any vehicle in the intersection or approaching on another
roadway so closely as to constitute an immediate hazard during the time the driver is moving
across or within the intersection." Appellant argues the state failed to prove Overly's vehicle
was already in the intersection or that it was an immediate hazard to appellant's vehicle when
appellant proceeded to enter the intersection.
{¶ 47} Overly testified that when he stopped at the stop sign in the eastbound lane of
Chestnut Street, two vehicles were already at the intersection: one vehicle was on College
Avenue, ahead of Larsen's vehicle, and one vehicle was in the westbound lane of Chestnut
Street, ahead of appellant's pick-up truck. After these two vehicles went through the
intersection, Overly entered the intersection to turn left onto College Avenue. As Overly was
turning left, appellant's pick-up truck hit Overly's vehicle in the rear passenger door. Overly
testified that at the time of the collision, (1) he "was going perpendicular," (2) he was almost
all the way through the intersection, (3) in fact, "given another second, [he] would have been
out of the intersection," and (4) he did not see appellant's vehicle "until about a split second"
before the collision. Overly believed he was driving at 10 m.p.h. at the time of the collision.
{¶ 48} Larsen testified that when she stopped at the stop sign on College Avenue, a
vehicle traveling in appellant's lane went through the intersection. Larsen believed Overly's
vehicle was already stopped by the time she reached the intersection. Thereafter, as
Overly's vehicle was going through the intersection and turning left onto College Avenue, it
was hit by appellant's pick-up truck. Larsen testified she was surprised by the collision as
she believed it was Overly's turn to proceed through the intersection. She further testified
Overly's vehicle "was pretty well through the intersection before it got hit."
{¶ 49} Officer Hoole's testimony indicates that Overly's vehicle was struck in the rear - 12 - Butler CA2014-02-054
passenger door by the front right corner of appellant's pick-up truck. The officer testified he
did not believe appellant's vehicle could have caused that much damage to Overly's vehicle,
had appellant actually stopped at the stop sign. The officer testified that based on Larsen's
statement, the resting place of the vehicles which was not where the collision occurred, and
the extent and location of the damage on the vehicles, he decided to cite appellant for failure
to yield.
{¶ 50} Appellant testified that as he approached the intersection, (1) a vehicle ahead
of him on Chestnut Street and a car ahead of Overly on Chestnut Street were going through
the intersection; (2) Larsen's vehicle was stopping at the stop sign on College Avenue; and
(3) Overly's vehicle was approaching the stop sign on Chestnut Street. Neither Larsen nor
Overly had their turn signal on. Appellant testified that when he was stopped at the
intersection, the vehicle ahead of him was "pretty much" through the intersection and Overly's
vehicle was stopped at the intersection. Appellant testified he was concerned Larsen might
pull out in front of him. Thereafter, as appellant proceeded through the intersection, Overly's
vehicle "cut the corner" while turning left onto College Avenue, pulled in front of appellant,
and hit him. Appellant testified the collision occurred in front of the southbound lane of
College Avenue. He also testified that as he entered the intersection, there was no vehicle in
the intersection that would have created the threat of an impact. Appellant testified that
"where [his] car came to its resting spot isn't actually the point of impact."
{¶ 51} The record shows that during trial, appellant and Overly used a diagram of the
intersection to illustrate their testimony and explain how and where the collision occurred.
Officer Hoole likewise used the diagram to illustrate his testimony. The diagram is not part of
the record before this court.
{¶ 52} Upon thoroughly reviewing the record, we find that appellant's conviction for
failing to yield is not against the manifest weight of the evidence. Testimony at trial indicates - 13 - Butler CA2014-02-054
that Overly's vehicle was well within the intersection (if not almost out of the intersection) and
turning left onto College Avenue when it was struck by appellant's vehicle. Thus, pursuant to
OCC 331.19, Overly's vehicle was in the intersection, or alternatively, constituted an
immediate hazard to appellant's vehicle at the time of the collision.
{¶ 53} While appellant and Overly provided conflicting testimony, a conviction is not
against the manifest weight of the evidence simply because the trier of fact believed the
prosecution testimony. See Davis, 2011-Ohio-2207. As the trial court was in the best
position to gauge the credibility of the witnesses and had the benefit of the diagram of the
intersection, we "afford substantial deference to [the trial court's] determination of credibility."
Barberton v. Jenney, 126 Ohio St.3d 5, 2010-Ohio-2420, ¶ 20; State v. Fry, 9th Dist. Summit
No. 23211, 2007-Ohio-3240. The trial court did not lose its way simply because it chose to
believe Overly's testimony over appellant's version of the incident. Amburgey, 2006-Ohio-
1000 at ¶ 7.
{¶ 54} Further, this was a three-way stop intersection controlled by three stop signs,
and neither College Avenue nor Chestnut Street were a through roadway. Thus, the
intersection was akin to a four-way stop intersection. Because "the code does not afford a
preferential right of way to any driver required to stop, the driver approaching a four-way stop
intersection from any direction has a statutory duty to stop, followed by the common-law duty
to exercise ordinary care [while] proceed[ing] through the intersection." 7 Ohio Jurisprudence
3d, Traffic Laws, Section 341 (2014); Allstate Ins. Co. v. Angelo, 7 Ohio App.2d 149 (5th
Dist.1966). We find the same analysis applies here.
{¶ 55} We also note that State v. Abele, 4th Dist. Jackson No. 04CA7, 2005-Ohio-
2378, a decision of the Fourth Appellate District cited by appellant, involves a three-way stop
intersection and a violation of R.C. 4511.43. However, this decision is not applicable here:
the case did not involve a collision, there was no failure to yield, and thus, the defendant's - 14 - Butler CA2014-02-054
failure to yield was not an issue. Rather, the defendant was solely convicted of failing to stop
at a stop sign under the first part of R.C. 4511.43. For the same reasons, a decision of the
Eighth Appellate District cited by appellant and involving a defendant's conviction under a city
ordinance identical to OCC 331.19(a) and R.C. 4511.43(A), solely for failing to stop at a stop
sign in a four-way stop intersection, is inapplicable here. See Cleveland v. McShane, 8th
Dist. Cuyahoga No. 96720, 2012-Ohio-1532.
{¶ 56} Accordingly, in light of all of the foregoing, we find that appellant's conviction for
failure to yield at a stop sign is not against the manifest weight of the evidence. We also
necessarily find that the conviction is supported by sufficient evidence. Church, 2012-Ohio-
3877 at ¶ 10.
{¶ 57} Appellant's third and fourth assignments of error are overruled.
{¶ 58} Judgment affirmed.
HENDRICKSON, P.J., and S. POWELL, J., concur.
- 15 -