State of Ohio v. David Jones

• Decision Date: 25 April 1989
• Docket Number: 89-LW-1374,88AP-920
• Parties: STATE of Ohio, Petitioner-Appellee, v. David JONES, Defendant-Appellant.
• Court: Ohio Court of Appeals

STATE of Ohio, Petitioner-Appellee, v. David JONES, Defendant-Appellant.

No. 88AP-920.

89-LW-1374 (10th)

Court of Appeals of Ohio, Tenth District Franklin.

April 25, 1989

Appeal from the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch.

Michael Miller, Prosecuting Attorney, and Jeffrey A. Plunkett, for appellee.

Thomas M. Tyack & Associates Co., L.P.A., and Mark A. Serrott, for appellant.

OPINION

YOUNG Judge.

Appellant, David Jones, appeals from a judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, convicting him of violating Gahanna City Code Section 331.34, failure to control a motor vehicle. The conviction resulted from an accident in which appellant was involved. Two assignments of error are asserted on appeal:

"I.The trial court erred in imposing the civil standard of negligence and finding Mr. Jones guilty of failing to control his vehicle based upon the civil law definition of negligence.

"A.The trial court erred in overruling the objections to the report of the referee because the referee erroneously ruled that all traffic offenses were strict liability offenses not requiring proof of any culpability or mens rea.

"II.The trial court erred in overruling the objections to the referee's report and finding Mr. Jones guilty in that the judgment is against the manifest weight of the evidence.

"A.The evidence as to what caused the collision to occur is wholly circumstantial. The evidence was not irreconciliable [sic ] with any reasonable theory of evidence [sic ]."

Testimony before the referee indicates that appellant was driving south on Cherry Bottom Road in Gahanna on December 25, 1987. Appellant's girlfriend was a passenger in the car. The roads were wet that day, and the section of the road where the accident occurred was an "S-shaped" curve. Appellant testified that as he approached the "S-shaped" curve, he was traveling approximately thirty to thirty-five m.p.h. He felt the car slide as he started into the curve so he forcefully applied the brakes. The car then slid across the center line into the northbound lane and collided with a car traveling in the opposite direction. The driver of the car with which appellant collided maintained that he had maneuvered his car partially off of the road in an attempt to avoid the impact with appellant, who appeared to be driving at a speed in excess of thirty-five m.p.h. Additionally, the police officer who cited appellee testified that although the posted speed limit in that area was thirty-five m.p.h., a twenty-five m.p.h. cautionary zone was in effect in the area where the curves were located.

In his first assignment of error, appellant asserts that the trial court erred in imposing the civil standard of negligence and upholding the referee's decision that all the traffic offenses are strict liability offenses, which do not require proof of culpability or mens rea. Appellant was convicted of violating Gahanna City Code Section 331.34, failure to control a motor vehicle, which provides, in pertinent part, as follows:

"FAILURE TO CONTROL; WEAVING; FULL TIME AND ATTENTION.

"(a) No person shall operate a vehicle without exercising reasonable and ordinary control over such vehicle."

Appellant argues that this ordinance necessarily requires proof of the element of recklessness since the Gahanna City Code does not distinguish between criminal and traffic offenses. Appellant relies upon Gahanna City Code Section 501.07 which states, in pertinent part, "[w]hen the section neither specifies culpability nor plainly indicates a purpose to impose strict liability, recklessness is sufficient culpability to commit the offense." Appellant argues that Gahanna City Code Section 331.34 does not specify culpability and fails to impose strict liability; therefore, the state was required to prove recklessness as the culpable mental state pursuant to Gahanna City Code Section 501.07.

However, this interpretation is cursory, and upon further analysis, Gahanna City Code Section 331.34 does set forth a specific degree of culpability. Gahanna City Code Section 331.34, states that no person shall operate a motor vehicle "without exercising reasonable and ordinary control." Thus, the Gahanna City Code has incorporated, or adopted, the ordinary standard of negligence as the requisite proof of culpability in its "failure to control" ordinance. See Gahanna City Code Section 331.34. Although the referee erred in reasoning that since all traffic offenses were strict liability offenses and thus, Gahanna City Code Section 331.34 was also regarded as negligence per se, the trial court corrected that error by properly applying the ordinary standard of negligence as it is incorporated, adopted and set forth in Gahanna City Code Section 331.34. Accordingly, appellant's first assignment of error is not well-taken and is overruled.

In the second assignment of error, appellant asserts that the trial court's decision was against the manifest weight of the evidence and that the circumstantial evidence was irreconcilable with any reasonable theory of innocence. The appellate standard in determining whether a trial court's decision is against the manifest weight of the evidence involves a review with the following guidelines taken into account:

"1.The reviewing court is not required to accept as true the incredible;

"2.whether the evidence is uncontradicted;

"3.whether a witness was impeached;

"4.what was not proved;

"5.the certainty of the evidence;

"6.the reliability of the evidence;

"7.whether a witness' testimony is self-serving;

"8.whether the evidence is vague, uncertain, conflicting or fragmentary." (Emphasis in original.)

State v. Mattison (1985), 23 Ohio App.3d 10, 11....