State v. Obermeyer

2024 Ohio 4508

• Court: Ohio Court of Appeals
• Decided: September 13, 2024
• Docket: 30064
• Status: Published

Opinion

[Cite as State v. Obermeyer, 2024-Ohio-4508.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Appellee : C.A. No. 30064 : v. : Trial Court Case No. 23TRD04613 : FRANK J. OBERMEYER : (Criminal Appeal from Municipal Court) : Appellant : :

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OPINION

Rendered on September 13, 2024

FRANK J. OBERMEYER, Pro Se Appellant

JOHN D. EVERETT, Attorney for Appellee

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LEWIS, J.

{¶ 1} Defendant-Appellant Frank J. Obermeyer appeals from a judgment of the

Kettering Municipal Court convicting him of disobeying a traffic control device. For the

following reasons, we will affirm the judgment of the trial court. -2-

I. Facts and Course of Proceedings

{¶ 2} On September 21, 2023, Obermeyer was involved in an automobile accident

with Amy Kettner at the intersection of Woodman Drive and Forrer Boulevard in Kettering,

Ohio. Obermeyer was issued a traffic citation by the Kettering Police for disobeying a

traffic control device in violation of Kettering Ordinance Section 414.01.

{¶ 3} A bench trial was held on January 25, 2024. Amy Kettner testified first at

trial. Tr. 6-15. On the early afternoon of September 21, 2023, she was driving a black

Honda Civic and heading north on Woodman Drive toward the intersection of Woodman

and Forrer Boulevard. She intended to turn left onto Forrer. As she approached the

intersection in the left turn lane, the light turned from green to yellow “fairly quickly.”

Kettner immediately pulled forward into the intersection, the light turned red, and then

Kettner began to proceed with her turn, as all the traffic traveling on Woodman from the

opposite direction was coming to a stop. As she turned left, a white car driven by

Obermeyer entered the intersection heading southbound on Woodman and hit her car.

She did not see the car driven by Obermeyer until she had almost finished her turn.

Kettner’s car was struck on the passenger side. Kettner went to the emergency room to

have her injuries treated.

{¶ 4} Kettering Police Officer John McCoy testified next at the trial. Id. at 16-34.

He had been dispatched to an accident at the intersection of Woodman Drive and Forrer

Boulevard on September 21, 2023, at approximately 1:44 p.m. Officer McCoy was

wearing a body camera at that time. One of the other officers already at the scene told -3-

Officer McCoy that one eyewitness had stated that “the white car ran the red light.”

Officer McCoy reviewed the intersection video to assist in his investigation as to who was

at fault for the accident. Based on his review of the video, he determined “that based off

the timing of the light cycle that the white car did in fact run the red light.” Id. at 18-19.

{¶ 5} Because of the way the traffic camera was angled, Officer McCoy could not

see in the video whether the traffic signal for traffic heading south on Woodman was red

at the time of the crash. But he could see the traffic signal for the traffic heading

eastbound on Forrer. According to Officer McCoy, the yellow light at this particular

intersection on Woodman lasts for 4.1 seconds. There is then a delay of one second

between the north and southbound traffic lights turning red and the east and westbound

traffic lights turning green. Officer McCoy also explained that the national standard for

traffic lights requires a yellow light to last four seconds on a 35 mile per hour roadway and

4.5 seconds on a 40 mile per hour roadway. He explained that the video showed “almost

instantly at the time of impact is when you see that light cycle to green for eastbound

traffic.” Id. at 23. The speed limit on Woodman is 35 miles per hour. Based on this

information and the video, Officer McCoy concluded that Obermeyer “should have had

about 4 seconds advance notice coming up on that intersection to slow down and stop

before that red light.” Id. at 24.

{¶ 6} After discussing the evidence with Officer Rustad, who had investigated

numerous crashes for the Kettering Police Department, Officer McCoy determined that

Obermeyer ran the red light. He issued Obermeyer a traffic citation. Officer McCoy also

watched a full light cycle at the intersection to make sure there were no anomalies in the -4-

timing of the lights.

{¶ 7} On cross-examination, Officer McCoy testified that he spoke briefly with

Kettner and Obermeyer but did not speak with the driver of a third vehicle that Obermeyer

struck after the initial collision. He also did not include any of his mathematical

computations in the traffic crash report that he completed.

{¶ 8} Beverly Schiermeyer testified next. Tr. 34-38. She was on Forrer

Boulevard in the right-hand lane planning to make a right turn onto Woodman Avenue at

the time of the collision involving Kettner and Obermeyer. Her light was red, and she

decided that she would turn right onto Woodman after the white convertible cleared the

intersection. But that vehicle crashed into her before she could turn right.

{¶ 9} Obermeyer testified last at the trial. Tr. 39-47. He is semi-retired after

previously working for 20 years as a cargo van driver making deliveries in the United

States and Canada. According to Obermeyer, he had never had any accidents or traffic

citations during his years driving the cargo van. Immediately before the accident with

Kettner, Obermeyer was in his 1992 white Oldsmobile driving in the right-hand lane

heading south on Woodman Drive. He testified as follows as to what happened when

he arrived at the intersection of Woodman and Forrer: “As I entered the intersection my

light was green and within a split second this black car just comes right in front of me and

prevented me from clearing the intersection and obviously I crashed into her. And she

was accelerating and actually pushed my car over to the curb lane and Ms. Schiermeyer’s

car.” Tr. 41. Obermeyer estimated that at the time he entered the intersection, he “was

probably going 35 maybe a little under at that point.” On cross-examination, Obermeyer -5-

stated that the video showed the light on Forrer was still red when he crashed into Kettner

and then it turned green after the impact. He did not see a yellow or red light on the

traffic light on Woodman before he entered the intersection.

{¶ 10} At the conclusion of the trial, the trial court found Obermeyer guilty of

disobeying a traffic control device and fined him $25 plus court costs. Obermeyer filed

a timely notice of appeal.

II. Obermeyer’s Conviction Was Supported by Sufficient Evidence and Was Not

Against the Manifest Weight of the Evidence

{¶ 11} Initially, we note that Obermeyer’s pro se brief does not comply with the

rules for a proper brief as set forth in App.R. 16(A). His pro se brief fails in almost every

respect to comply with the requirements governing the content of the brief of an appellant.

App.R.16 (A)(1)-(7). Briefs filed in this Court, whether by counsel or pro se, must comply

with App.R. 16.

{¶ 12} Obermeyer’s brief does not include a table of cases, statutes, and other

authority, in violation of App.R. 16(A)(1) and (2). His brief does not include a statement

of the issues presented for review, as required by App.R. 16(A)(4), or a brief statement

of the case, as mandated by App.R. 16(A)(5). Most importantly, Obermeyer has failed

to set forth any assignments of error or propositions of law and to cite to the record in this

matter. App.R. 16(A)(3) requires that a brief contain assignments of error presented for

review on appeal and that they be included in a separate statement.

{¶ 13} Compliance with the appellate rule is mandatory. Obermeyer’s failure to -6-

comply with App.R. 16 is tantamount to failing to file a brief in this matter. Pursuant to

App.R. 12(A)(2), we are not required to address issues that are not argued separately as

assignments of error, as required by App.R. 16(A). Kremer v. Cox, 114 Ohio App.3d 41,

60 (9th Dist. 1996). Such a deficiency permits this Court to dismiss Obermeyer’s appeal.

Erdman v. Williams, 2013-Ohio-980, ¶ 9 (5th Dist.). Notwithstanding the omissions in

Obermeyer’s brief, in the interests of justice and finality, we elect to review the one implicit

issue raised in his appeal. Id.

{¶ 14} Obermeyer filed a one-page document that contained the following seven

paragraphs:

There was no eyewitness to this accident. The North/South

cameras were not working.

The entire findings were hearsay.

The findings were all based on my speed when I entered the

intersection, which was determined to be 35 MPH. However, as I stated in

Court, I have had many years of driving with no accidents or violations and

I have the best insurance rates for safe driving. In fact, I always slow down

when a light has been green for some time. My speed was 30 MPH or

less, with my headlights on for safety.

Ms. Kettner stated she was watching the cross walk light when she

turned right in my path at a high rate of speed, giving me no chance to clear

the intersection. Using a stopwatch at 30 MPH or less I didn’t have the

time to clear the intersection. -7-

Beverly Schiermeyer, who was waiting to turn South at Woodman

and Forrer stated the East/West light was red prior to the accident. The

crash occurred before the East/West light changed to green.

I was in the beginning of the intersection on green in the far lane.

I pray you will take this information into consideration in granting my

appeal.

{¶ 15} In its appellate brief, the City of Kettering construed Obermeyer’s filing as

raising an argument that his conviction was against the manifest weight of the evidence

and not supported by sufficient evidence. We agree with the City of Kettering that

Obermeyer’s one-page filing contains an implied assignment of error arguing that his

conviction was against the manifest weight of the evidence and was not supported by

sufficient evidence. Therefore, we will exercise our discretion to resolve this implicit

assignment of error.

{¶ 16} “The legal concepts of sufficiency of the evidence and weight of the

evidence are both quantitatively and qualitatively different.” State v. Thompkins, 78 Ohio

St.3d 380 (1997), paragraph two of the syllabus. “An appellate court's function when

reviewing the sufficiency of the evidence to support a criminal conviction is to examine

the evidence admitted at trial to determine whether such evidence, if believed, would

convince the average mind of the defendant's guilt beyond a reasonable doubt.” State

v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. “The 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 -8-

a reasonable doubt.” Id., citing Jackson v. Virginia, 443 U.S. 307 (1979).

{¶ 17} When reviewing the sufficiency of the evidence, “the court does not engage

in a determination of the witnesses' credibility.” State v. Goff, 82 Ohio St.3d 123, 139,

(1998), citing State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus.

Rather, the relevant inquiry is whether the evidence presented, if believed, was sufficient

to support the conviction. State v. Jones, 2021-Ohio-3311, ¶ 16, citing Thompkins at

390 (Cook, J., concurring). The verdict will not be disturbed on appeal “unless the

appellate court finds that reasonable minds could not reach the conclusion reached by

the trier-of-fact.” State v. Dennis, 79 Ohio St.3d 421, 430 (1997), citing Jenks at 273.

{¶ 18} “[A] weight of the evidence argument challenges the believability of the

evidence and asks which of the competing inferences suggested by the evidence is more

believable or persuasive.” State v. Wilson, 2009-Ohio-525, ¶ 12 (2d Dist.), citing State

v. Hufnagle, 1996 WL 501470 (2d Dist. Sept. 6, 1996). When evaluating whether a

conviction is against the manifest weight of the evidence, the appellate court must review

the entire record, weigh the evidence and all reasonable inferences, consider witness

credibility, 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 conviction

must be reversed and a new trial ordered.’ ” Thompkins at 387, quoting State v. Martin,

20 Ohio App.3d 172, 175 (1st Dist. 1983). The fact that the evidence is subject to

different interpretations does not render a conviction against the manifest weight of the

evidence. Wilson at ¶ 14. A judgment of conviction should be reversed as being

against the manifest weight of the evidence “only in the exceptional case in which the -9-

evidence weighs heavily against the conviction.” (Citations omitted.) Martin at 175.

{¶ 19} Obermeyer was charged with and convicted of a violation of Kettering

Ordinance Section 414.01, which provides, in pertinent part: “No pedestrian or driver of

a vehicle shall disobey the instructions of any traffic control device placed in accordance

with the provisions of this Traffic Code, unless at the time otherwise directed by a police

officer.” Based on the record before us, we conclude that Obermeyer’s conviction was

supported by sufficient evidence and was not against the manifest weight of the evidence.

{¶ 20} Kettner testified that the light on Woodman turned red while she was waiting

to turn left in the intersection of Woodman and Forrer. Obermeyer disagreed and stated

that the light was still green when he entered the same intersection and hit Kettner’s car.

Officer McCoy testified that he had reviewed the video recording from the perspective of

traffic heading eastbound on Forrer Boulevard. This recording was introduced at the

trial, and we have reviewed the recording. According to Officer McCoy, the impact

between the vehicles driven by Kettner and Obermeyer occurred at the same time the

light on Forrer turned green. The video recording supported Officer McCoy’s testimony.

Further, Officer McCoy testified that the light on Woodman would have been red for one

second before the light on Forrer turned green. Therefore, the light on Woodman had

turned red one second before Obermeyer struck Kettner’s vehicle. Under the facts of

this case, this means that Obermeyer failed to obey the traffic signal when he entered the

intersection at Woodman and Forrer. This evidence was sufficient to support

Obermeyer’s conviction.

{¶ 21} Ultimately, the trial court credited the testimony of Kettner and Officer -10-

McCoy over the testimony of Obermeyer. The video recording submitted at trial

supported the trial court’s decision to do so. We cannot conclude that this is “the

exceptional case in which the evidence weighs heavily against the conviction.”

Therefore, Obermeyer’s conviction was not against the manifest weight of the evidence.

{¶ 22} The sole implied assignment of error is overruled.

III. Conclusion

{¶ 23} Having overruled Obermeyer’s sole implied assignment of error, the

judgment of the trial court will be affirmed.

WELBAUM, J. and TUCKER, J., concur.