State v. McGregor

2016 Ohio 3082

• Court: Ohio Court of Appeals
• Decided: May 19, 2016
• Docket: 15COA023
• Status: Published

Opinion

[Cite as State v. McGregor, 2016-Ohio-3082.]

COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J. -vs- Case No. 15-COA-023 CHRISTOPHER MCGREGOR

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Ashland Municipal Court, Case No. 15TRD01451

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: May 19, 2016

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

ANDREW N. BUSH CHRISTOPHER S. MCGREGOR, PRO SE Assistant Director of Law 2405 Parkwood Dr, NW 1213 E. Main St. Warren, Ohio 44485 Ashland, Ohio 44805 Ashland County, Case No. 15-COA-023 2

Hoffman, P.J.

{¶1} Defendant-appellant Christopher Stuart McGregor appeals the July 20,

2015 Judgment Order entered by the Ashland Municipal Court, finding him guilty of the

charge of speeding. The state of Ohio is plaintiff-appellee.

STATEMENT OF FACTS AND CASE

{¶2} On March 16, 2015, Appellant was operating his motor vehicle westbound

on US 30 in Ashland County. Ohio State Highway Patrol Trooper Speicher measured

Appellant’s speed at 76 m.p.h. in a 60 m.p.h. speed limit zone, using a calibrated laser

device. Trooper Speicher issued Appellant a citation for speeding, in violation of R.C.

4511.21(D)(2), showing the time of violation as being 8:56 a.m.

{¶3} Appellant pled not guilty at his arraignment and the case was scheduled for

a bench trial. A pretrial was conducted on April 28, 2015. The matter proceeded to trial

on June 15, 2015. Appellant was found guilty and sentenced via Judgment Order filed

July 20, 2015. It is from that judgment Appellant prosecutes this appeal, assigning as

error:

{¶4} “I. APPELLANT’S CONVICTION WAS MADE UPON LEGALLY

INSUFFICIENT EVIDENCE AND WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE U.S. CONS.

AM.14, AND THE OHIO CONS. ART.1 SEC 16.

{¶5} “II. THE TRIAL COURT ERRED IN ALLOWING THE AMENDMENT OF

THE TICKET DURING TRIAL IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE

U.S. CONS. AM.14, AND THE OHIO CONS. ART 1 SEC 16. Ashland County, Case No. 15-COA-023 3

{¶6} “III. THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTOR TO

ENFORCE A NO PLEA BARGAIN POLICY AGAINST THE VIOLATION OF THE EQUAL

PROTECTION CLAUSE OF THE U.S. CONS.AM.14.”

I

{¶7} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,

weighs the evidence and all reasonable inferences, considers the credibility of witnesses,

and determines whether in resolving conflicts in evidence the jury ‘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. Thompkins, 78 Ohio St.3d 380, 387, 1997–Ohio–52, 678

N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983).

{¶8} An appellate court's function when reviewing the sufficiency of the evidence

is to determine 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, 574 N.E.2d 492,

paragraph two of the syllabus (1991).

{¶9} Appellant’s argument herein focuses upon his assertion Trooper Speicher’s

testimony lacked any credibility because of the trooper’s “fabricating 3 different stories

relative to the time the offense occurred.” Appellant contends because the trooper

“showed his willingness to lie,” his testimony could not be considered credible to establish

Appellant’s speeding violation. We disagree.

{¶10} The jury was free to accept or reject any and all of the evidence offered by

the parties and assess the witness's credibility. “While the jury may take note of the Ashland County, Case No. 15-COA-023 4

inconsistencies and resolve or discount them accordingly * * * such inconsistencies do

not render defendant's conviction against the manifest weight or sufficiency of the

evidence.” State v. Craig (Mar. 23, 2000), Franklin App. No. 99AP–739, citing State v.

Nivens (May 28, 1996), Franklin App. No. 95APA09–1236. Indeed, the jurors need not

believe all of a witness' testimony, but may accept only portions of it as true. State v.

Raver, Franklin App. No. 02AP–604, 2003–Ohio–958, at ¶ 21, citing State v. Antill (1964),

176 Ohio St. 61, 67, 197 N.E.2d 548; State v. Burke, Franklin App. No. 02AP1238, 2003–

Ohio–2889, citing State v. Caldwell (1992), 79 Ohio App.3d 667, 607 N.E.2d 1096.

{¶11} Even if the trial court did not find the trooper’s testimony concerning the time

of the offense credible, such does not preclude the trier-of-fact from believing other

portions of the trooper’s testimony. The exact time of the offense is not an element of the

offense. Trooper Speicher testified as to Appellant’s speed based upon both visual

estimation and the use of a calibrated laser measuring device. The trial court as trier-of-

fact was free to accept this portion of the trooper’s testimony as credible despite any

discrepancies in his testimony regarding the time of the offense.

{¶12} We find the trial court’s verdict was supported by sufficient evidence and

was not against the manifest weight of the evidence.

{¶13} Appellant’s first assignment of error is overruled.

II

{¶14} In his second assignment of error, Appellant asserts the trial court erred in

allowing the state of Ohio to amend the traffic ticket to reflect the time of the offense as

8:56 a.m., rather than the time listed on the ticket, which was 8:05 a.m. The trial court Ashland County, Case No. 15-COA-023 5

allowed the amendment which corresponded to the time shown on the trooper’s video

dash cam.

{¶15} We find the amendment was proper under Crim.R.7(D) as the amendment

did not change the name or identify of the charge.

{¶16} Furthermore, Appellant fails to demonstrate specifically how the

amendment prejudiced or impeded his defense other than his conclusory assertion it did

so.

{¶17} Appellant’s second assignment of error is overruled.

III

{¶18} In his third assignment of error, Appellant asserts the trial court violated his

constitutional right to equal protection by allowing the prosecutor to refuse to engage in a

plea bargain. Appellant cites no case law in support of his assertion. We know of none.

Appellant fails to identify he is a member of a constitutionally protected class. There is

no constitutional right to a plea bargain. Weatherford v. Bursey (1977), 429 U.S. 545,

561.

{¶19} Appellant’s third assignment of error is overruled. Ashland County, Case No. 15-COA-023 6

{¶20} The judgment of the Ashland Municipal Court is affirmed.

Delaney, J. and

Baldwin, J. concur