[Cite as State v. Ferguson, 2012-Ohio-4778.]
COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT
: JUDGES: STATE OF OHIO : W. Scott Gwin, P.J. : John W. Wise, J. Plaintiff-Appellee : Julie A. Edwards, J. : -vs- : Case No. 12CA05 : : ELBERT D. FERGUSON : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from Cambridge Municipal Court Case No. 11TRD06666
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 4, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
WILLIAM H. FERGUSON LEWIS M. TINGLE Cambridge Law Director 138 North Seventh Street 150 Highland Ave., Ste. 2 Cambridge, Ohio 43725 Cambridge, Ohio 43725 [Cite as State v. Ferguson, 2012-Ohio-4778.]
Edwards, J.
{¶1} Defendant-appellant, Elbert Ferguson, appeals his conviction and
sentence from the Cambridge Municipal Court on one count of driving outside of
marked lanes. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On November 19, 2011, appellant was cited for driving outside of marked
lanes in violation of R.C. 4511.33, a minor misdemeanor. On December 8, 2011,
appellant entered a plea of not guilty to the charge.
{¶3} A bench trial was held on January 13, 2012. At the trial, Trooper Mark
Masters of the Ohio State Highway Patrol, who has extensive training in accident
reconstruction, testified that he was in uniform in a marked cruiser on November 19,
2011 when he was sent to the scene of an accident between a motor home and a
commercial vehicle. The accident occurred near a split area involving Interstate 70 and
Interstate 77. At the time he arrived, both vehicles had been moved to the north of the
ramp onto 77 and there was no physical evidence on the roadway that would have
assisted him in his investigation. According to the Trooper, “on [appellant’s] vehicle, his
left rear quarter, maybe ah, foot and a half, two feet of it was damaged and the right
front was damaged on the commercial which shows ah, somebody was changing
lanes.” Transcript at 6.
{¶4} Trooper Masters testified that appellant’s motor home had “scraping
damage” which caused him to believe that the vehicle was in motion and that one
vehicle was overtaking the other. Transcript at 8. He testified that, in his opinion,
appellant was changing lanes abruptly to get to the ramp and bumped the commercial Guernsey County App. Case No. 12CA05 3
vehicle thinking that it was clear in front of him. The trooper testified that while this was
not appellant’s version of events, it was the version provided to him by the driver of the
commercial vehicle.
{¶5} On cross-examination, Trooper Masters testified that, according to
appellant, the driver of the commercial vehicle hit appellant’s vehicle while changing
lanes. He testified that there was no debris on the roadway to fix the point of impact.
On redirect, when asked what made him determine that appellant’s version was not
accurate, the Trooper testified, in relevant part, as follows:
{¶6} “A. Yeah, the damage on Mr. Ferguson’s vehicle, first of all, I have ah, it
was the left rear and the commercial was the right front, which shows that somebody
was ah, wanting to change into another lane. Whether it was the commercial or
whether it was ah, Mr. Ferguson. By looking at Mr. Ferguson’s stuff, everything was on
an angle, ah, more of an angle. If it would have been, if the commercial would have
moved into him, it would have been more of a blunt impact. In this case, it was, it was
sort of like this type of impact where it was a scraping, somebody had more momentum,
which in this case it would be Mr. Ferguson. Whether it was accelerating or just
momentum in general.” Transcript at 15-16.
{¶7} On recross, Trooper Masters agreed that the damage to both vehicles was
consistent with appellant’s explanation that he intended to take the ramp to Marietta,
Ohio.
{¶8} Ronald Burgess, the driver of the commercial vehicle, testified that it
appeared that it was appellant’s intention to go southbound on Interstate 77. Burgess
testified that he was in the left hand lane when appellant passed him on the right. Guernsey County App. Case No. 12CA05 4
Burgess testified that appellant then cut over in front of him and clipped the front end of
his truck.
{¶9} At trial, appellant testified that he had gotten onto Interstate 70 at
Zanesville and was traveling towards Cambridge. He testified that it was his intention to
take Interstate 70 eastbound and go south on Interstate 77 to Marietta. Appellant
testified that, as he approached the split of Interstate 77, he was traveling in the right
hand lane. Appellant testified that he intended to take the ramp south off of Interstate
70 to Interstate 77 and that, just before the southbound ramp, there was a collision
between his vehicle and the commercial vehicle. He testified that the driver of the
commercial vehicle moved from the left into the right lane, colliding with appellant.
When asked, appellant indicated that he did not move from the right hand lane into the
left hand lane, causing the collision.
{¶10} Clifford Harris, who was a defense witness, testified that Burgess’ vehicle
changed lanes and came into contact with appellant’s vehicle. At the time of the
accident, Harris was an eighth or a quarter of a mile behind. He testified that he did not
“exactly” see the two vehicles come into contact with each other. Transcript at 65.
{¶11} At the conclusion of the evidence, the trial court found appellant guilty. As
memorialized in a Journal Entry filed on January 13, 2012, the trial court fined appellant
$20.00.
{¶12} Appellant now raises the following assignment of error on appeal:
{¶13} “JUDGMENT OF THE TRIAL COURT WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE IN THAT STATE OF OHIO FAILED TO PRODUCE
SUFFICIENT EVIDENCE TO SUPPORT A CONVICTION.” Guernsey County App. Case No. 12CA05 5
I
{¶14} Appellant, in his sole assignment of error, argues that his conviction for
driving outside of marked lanes is against the manifest weight and sufficiency of the
evidence.
{¶15} When reviewing the sufficiency of the evidence, our inquiry focuses
primarily upon the adequacy of the evidence; that is, whether the evidence, if believed,
reasonably could support a finding of guilt beyond a reasonable doubt. See State v.
Thompkins, 78 Ohio St.3d 380, 386, 1997–Ohio–52, 678 N.E.2d 541, State v. Jenks, 61
Ohio St.3d 259, 273, 574 N.E.2d 492 (1991). The standard of review is whether, after
viewing the probative evidence and inferences reasonably drawn therefrom in the light
most favorable to the prosecution, any rational trier of fact could have found all the
essential elements of the offense beyond a reasonable doubt. Jenks, supra.
{¶16} On review for manifest weight, a reviewing court is to examine the entire
record, weigh the evidence and all reasonable inferences, consider the credibility of the
witnesses and determine whether in resolving conflicts in the evidence, the trier of fact
clearly lost its way and created such a manifest miscarriage of justice that the judgment
must be reversed. The discretionary power to grant a new hearing should be exercised
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[Cite as State v. Ferguson, 2012-Ohio-4778.]
COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT
: JUDGES: STATE OF OHIO : W. Scott Gwin, P.J. : John W. Wise, J. Plaintiff-Appellee : Julie A. Edwards, J. : -vs- : Case No. 12CA05 : : ELBERT D. FERGUSON : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from Cambridge Municipal Court Case No. 11TRD06666
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 4, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
WILLIAM H. FERGUSON LEWIS M. TINGLE Cambridge Law Director 138 North Seventh Street 150 Highland Ave., Ste. 2 Cambridge, Ohio 43725 Cambridge, Ohio 43725 [Cite as State v. Ferguson, 2012-Ohio-4778.]
Edwards, J.
{¶1} Defendant-appellant, Elbert Ferguson, appeals his conviction and
sentence from the Cambridge Municipal Court on one count of driving outside of
marked lanes. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On November 19, 2011, appellant was cited for driving outside of marked
lanes in violation of R.C. 4511.33, a minor misdemeanor. On December 8, 2011,
appellant entered a plea of not guilty to the charge.
{¶3} A bench trial was held on January 13, 2012. At the trial, Trooper Mark
Masters of the Ohio State Highway Patrol, who has extensive training in accident
reconstruction, testified that he was in uniform in a marked cruiser on November 19,
2011 when he was sent to the scene of an accident between a motor home and a
commercial vehicle. The accident occurred near a split area involving Interstate 70 and
Interstate 77. At the time he arrived, both vehicles had been moved to the north of the
ramp onto 77 and there was no physical evidence on the roadway that would have
assisted him in his investigation. According to the Trooper, “on [appellant’s] vehicle, his
left rear quarter, maybe ah, foot and a half, two feet of it was damaged and the right
front was damaged on the commercial which shows ah, somebody was changing
lanes.” Transcript at 6.
{¶4} Trooper Masters testified that appellant’s motor home had “scraping
damage” which caused him to believe that the vehicle was in motion and that one
vehicle was overtaking the other. Transcript at 8. He testified that, in his opinion,
appellant was changing lanes abruptly to get to the ramp and bumped the commercial Guernsey County App. Case No. 12CA05 3
vehicle thinking that it was clear in front of him. The trooper testified that while this was
not appellant’s version of events, it was the version provided to him by the driver of the
commercial vehicle.
{¶5} On cross-examination, Trooper Masters testified that, according to
appellant, the driver of the commercial vehicle hit appellant’s vehicle while changing
lanes. He testified that there was no debris on the roadway to fix the point of impact.
On redirect, when asked what made him determine that appellant’s version was not
accurate, the Trooper testified, in relevant part, as follows:
{¶6} “A. Yeah, the damage on Mr. Ferguson’s vehicle, first of all, I have ah, it
was the left rear and the commercial was the right front, which shows that somebody
was ah, wanting to change into another lane. Whether it was the commercial or
whether it was ah, Mr. Ferguson. By looking at Mr. Ferguson’s stuff, everything was on
an angle, ah, more of an angle. If it would have been, if the commercial would have
moved into him, it would have been more of a blunt impact. In this case, it was, it was
sort of like this type of impact where it was a scraping, somebody had more momentum,
which in this case it would be Mr. Ferguson. Whether it was accelerating or just
momentum in general.” Transcript at 15-16.
{¶7} On recross, Trooper Masters agreed that the damage to both vehicles was
consistent with appellant’s explanation that he intended to take the ramp to Marietta,
Ohio.
{¶8} Ronald Burgess, the driver of the commercial vehicle, testified that it
appeared that it was appellant’s intention to go southbound on Interstate 77. Burgess
testified that he was in the left hand lane when appellant passed him on the right. Guernsey County App. Case No. 12CA05 4
Burgess testified that appellant then cut over in front of him and clipped the front end of
his truck.
{¶9} At trial, appellant testified that he had gotten onto Interstate 70 at
Zanesville and was traveling towards Cambridge. He testified that it was his intention to
take Interstate 70 eastbound and go south on Interstate 77 to Marietta. Appellant
testified that, as he approached the split of Interstate 77, he was traveling in the right
hand lane. Appellant testified that he intended to take the ramp south off of Interstate
70 to Interstate 77 and that, just before the southbound ramp, there was a collision
between his vehicle and the commercial vehicle. He testified that the driver of the
commercial vehicle moved from the left into the right lane, colliding with appellant.
When asked, appellant indicated that he did not move from the right hand lane into the
left hand lane, causing the collision.
{¶10} Clifford Harris, who was a defense witness, testified that Burgess’ vehicle
changed lanes and came into contact with appellant’s vehicle. At the time of the
accident, Harris was an eighth or a quarter of a mile behind. He testified that he did not
“exactly” see the two vehicles come into contact with each other. Transcript at 65.
{¶11} At the conclusion of the evidence, the trial court found appellant guilty. As
memorialized in a Journal Entry filed on January 13, 2012, the trial court fined appellant
$20.00.
{¶12} Appellant now raises the following assignment of error on appeal:
{¶13} “JUDGMENT OF THE TRIAL COURT WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE IN THAT STATE OF OHIO FAILED TO PRODUCE
SUFFICIENT EVIDENCE TO SUPPORT A CONVICTION.” Guernsey County App. Case No. 12CA05 5
I
{¶14} Appellant, in his sole assignment of error, argues that his conviction for
driving outside of marked lanes is against the manifest weight and sufficiency of the
evidence.
{¶15} When reviewing the sufficiency of the evidence, our inquiry focuses
primarily upon the adequacy of the evidence; that is, whether the evidence, if believed,
reasonably could support a finding of guilt beyond a reasonable doubt. See State v.
Thompkins, 78 Ohio St.3d 380, 386, 1997–Ohio–52, 678 N.E.2d 541, State v. Jenks, 61
Ohio St.3d 259, 273, 574 N.E.2d 492 (1991). The standard of review is whether, after
viewing the probative evidence and inferences reasonably drawn therefrom in the light
most favorable to the prosecution, any rational trier of fact could have found all the
essential elements of the offense beyond a reasonable doubt. Jenks, supra.
{¶16} On review for manifest weight, a reviewing court is to examine the entire
record, weigh the evidence and all reasonable inferences, consider the credibility of the
witnesses and determine whether in resolving conflicts in the evidence, the trier of fact
clearly lost its way and created such a manifest miscarriage of justice that the judgment
must be reversed. The discretionary power to grant a new hearing should be exercised
only in the exceptional case in which the evidence weighs heavily against the
judgment.” Thompkins, supra at 387, citing State v. Martin, 20 Ohio App.3d 172, 175,
485 N.E.2d 717 (1st Dist. 1983). Because the trier of fact is in a better position to
observe the witnesses' demeanor and weigh their credibility, the weight of the evidence
and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass, 10
Ohio St.2d 230, 227 N.E.2d 212 (1967), syllabus. Guernsey County App. Case No. 12CA05 6
{¶17} Upon our review of the evidence, we find that any rational trier of fact,
construing the evidence in appellant’s favor, could have found that appellant committed
the offense of driving outside of marked lanes and that the trial court, as trier of fact, did
not lose its way in convicting appellant. As is stated above, Trooper Masters, who
worked in the area of accident reconstruction with the Ohio State Highway Patrol and
who taught classes in crash investigation at the Ohio Highway Patrol Academy, testified
that, based on the condition of the vehicles, the accident was caused by appellant. The
Trooper testified that based on the scraping on appellant’s vehicle, he opined that the
accident was caused when appellant was accelerating while changing lanes. In
addition, Ronald Burgess, the driver of the commercial vehicle, testified that appellant
caused the accident when he cut over in front of Burgess and clipped the front end of
Burgess’ truck. Moreover, Mike Shirley, who was a passenger in Burgess’ vehicle,
testified that he observed appellant’s vehicle “coming in front of us”. Transcript at 38.
The trial court, as trier of fact, was in the best position to assess their credibility and
clearly found their version of events credible. Guernsey County App. Case No. 12CA05 7
{¶18} Based on the foregoing, appellant’s sole assignment of error is, therefore,
overruled.
{¶19} Accordingly, the judgment of the Cambridge Municipal Court is affirmed.
By: Edwards, J.
Gwin, P.J. and
Wise, J. concur
______________________________
JUDGES
JAE/d0710 [Cite as State v. Ferguson, 2012-Ohio-4778.]
IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : ELBERT D. FERGUSON : : Defendant-Appellant : CASE NO. 12CA05
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Cambridge Municipal Court is affirmed. Costs assessed to appellant.
_________________________________