State v. Rick L. Rossiter

• Decision Date: 16 March 1993
• Docket Number: 93-LW-0914,92 CA 21
• Parties: STATE OF OHIO, Plaintiff-Appellee v. RICK L. ROSSITER, Defendant-Appellant Case
• Court: Ohio Court of Appeals

STATE OF OHIO, Plaintiff-Appellee v. RICK L. ROSSITER, Defendant-Appellant

No. 92 CA 21.

93-LW-0914 (4th)

Court of Appeals of Ohio, Fourth District Pickaway

March 16, 1993

Bricker and Eckler, Richard D. Rogovin, Columbus, Ohio, for Appellant.

P Eugene Long II, Assistant Prosecuting Attorney, for Appellee.

DECISION

Stephenson P.J.

This is an appeal by Rick L. Rossiter, defendant below and appellant herein, from a judgment of conviction and sentence entered after a bench trial by the Circleville Municipal Court finding him guilty of violating R.C. 4511.44 which proscribes the offense of failure to yield the right-of-way when entering or crossing a highway from any place other than a roadway.

The following errors are assigned:

"1. The trial court's finding that the road between State Route 23 and Island Road is not a 'roadway' was against the manifest weight of the evidence.

2. The trial court erred in finding that Mr. Reis was traveling in a lawful manner at the time of the accident since the evidence proved that he was not wearing his required corrective lenses.

3. The trial court erred in finding that Mr. Reis was traveling in a lawful manner at the time of the accident since the evidence proved that he travelled for several miles with his turn indicator on and made an affirmative hand signal to Defendant to proceed.

4. The trial court erred in finding Defendant Rossiter violated Ohio Revised Code Section 4511.44."

Much of the salient facts in this appeal are undisputed. On October 24, 1991, appellant was operating a tractor-trailer north on U.S. Route 23 in Pickaway County preparatory to making a delivery to the Pickaway County garage. He turned left into a road which is adjacent to, and used by, Fletcher Trucking. The road, which consists of two lanes and is blacktopped continues, and then intersects with Island Road. A stop sign in located at the intersection. Appellant, upon reaching Island Road stopped, turned left, and entered the nearby county garage located on Island Road. He observed a road-closed sign on the road, but was informed by a garage employee that trucks use the road regularly.

Appellant then turned right from Island Road and proceeded on to the two lane roadway intending to intersect with, and turn north on U.S. Route 23, which is a four-lane highway with a median stop between the north and south bound lanes. A paved cross area exists between the north and south bound lanes which extended from the two-lane road on which appellant had been travelling. There was no stop sign at the intersection and the evidence was disputed as to whether appellant stopped.

As appellant approached U.S. Route 23, he observed on his left a red automobile being driven south on the outside or curb lane. The driver was Joseph J. Reis, who was eighty-five years of age. The right turn signal of the Reis vehicle was flashing. There was evidence the flashing had continued for several miles. Appellant assumed Mr. Reis, who was driving at a lawful speed, intended to turn right into the two lane road from which he was exiting.

Appellant then proceeded easterly onto U.S. Route 23. After the tractor had cleared the two southbound lanes and was in the cross over, the trailer was blocking both southbound lanes. The oncoming Reis automobile, after leaving 39 feet of light skid marks, collided and slid underneath the trailer by the rear wheels. The automobile was severely damaged and Mr. Reis sustained massive injuries from which he subsequently died. Additional facts will be set forth where pertinent in the discussion of each assignment of error.

Under the first assignment of error appellant argues that the disputed road by Fletcher Trucking is a "roadway" within the meaning of R.C. 4511.01 (EE) and the court's finding that it was a "private road" as defined in R.C. 4511.01(DD) was against the manifest weight of the evidence. It was then argued that R.C. 4511.44 under which appellant was charged proscribed failure to yield the right-of-way only at highway entrances other than a roadway.

Pertinent statutes are as follows:

R.C. 4511.44

"The operator of a vehicle, streetcar, or trackless trolley about to enter or cross a highway from any place other than another roadway shall yield the right of way to all traffic approaching on the roadway to be entered or crossed."

R.C. 4511.01(B)

"'Street' or 'highway' means the entire width between the boundary lines of every way open to the use of the public as a thoroughfare for purposes of vehicular travel."

R.C. 4501.01(DD)

"'Private road or driveway' means every way or place in private ownership used for vehicular travel by the owner and those having express or implied permission from the owner but not by other persons."

R.C. 4501.00(EE)

"'Roadway' means that portion of a highway improved, designed, or ordinarily used for vehicular travel, except the berm or shoulder. If a highway includes two or more separate roadways the term 'roadway' means any such roadway separately but not all such roadways collectively."

The thrust of appellant's argument in support of his assignment of error is, that because of the evidence that the road had been improved by the county and was frequently used by members of the public, it was a "highway" within the meaning of R.C. 4511.(EE). We disagree, and conclude for the reasons hereinafter set forth, that the road was a "private road" within the meaning of R.C. 4511.01(EE).

We deem it significant that no evidence was adduced that the road was ever dedicated for public use or legally accepted as a public thoroughfare. Cf State v. Root (1937), 132 Ohio St. 229. Likewise, there is no evidence that traffic laws are enforced on the road. It appears from the evidence that the road in question was at one time clearly a private road, so marked, and closed on weekends. In 1988 or 1989 the road was located on a tract of land from which a parcel was acquired by Pickaway County from American Aggregates for the county engineer facility now located on Island Road. An easement in favor of the county was secured for the road at that time for use by the county.

It appears that the road was paved by the county after the county acquired its easement. Charles Fletcher who owns Fletcher Trucking, a business which had a parking lot adjoining the road, testified as follows:

"DEFENSE: Mr. Fletcher, that road back there that runs past your place, goes down to what's that other road down there?

A. Island Road.

Q. Island Road. Alright,and you see a lot of people use that road?

A. Oh, it's just run constantly.

Q. By all members of the public?

A. Yes.

Q. And, there has never been a private road sign up there has there?

A. They did up until the county built their garage back there. They used to close it off on the weekends. Right there close to my business and also the other side, but after the county bought it, nobody has ever closed it off. Then they blacktopped it and now it's a racetrack across there."

However, Mr. Fletcher also testified as follows:

"Q. Isn't it true that that is a private drive and not a public road?

A. It's suppose to be about three different outfits, it's suppose to be a private road across there."

Jim Bingmam, road bridge superintendent of the Pickaway County Engineer's Department, testified, inter alia, that the road was not a public highway, had not been dedicated, and although the county had an easement for their use, ownership remained under American Aggregates.

In Kitchens v. Duffield (1947), 83 Ohio App. 41, similar predecessors of the present pertinent revised code sections being then in effect the court stated on page 48, the following:

"In a general way, roads, highways or driveways may be classified in at least four classes with respect to the expense of construction and use, as follows, (1) constructed at public expense for unrestricted use of the public, (2) constructed at public expense for limited or restricted use by persons given express or implied permission by the owner, (3) constructed at private expense for public purpose, and (4) constructed at private expense for private purpose.

In our judgment a public road, highway or driveway may be defined as a way open to the public at large without distinction, discrimination or restriction, except such as is incident to regulations calculated to secure to the general public the largest practical benefit there from and enjoyment thereof. The prime essential of a public highway is the right to travel on it by all the world, and not the actual exercise of the right. The proper test is the use to which such roadways or driveways are put. In our opinion when the proper test is applied to the facts in thin case, the roadways or driveways at Lockbourne Army Air Base do no properly fall in either class 1, 3 or 4, but in class 2 as stated above. In our considered opinion such roadways or driveways are private roadways or driveways and not public highways."

The trial court held the road to be a private roadway. Ample evidence supports such finding given the facts that the road was never dedicated as a public road or accepted as such, that it remains under private control and used by the county under its easement. It logically follows that while it is frequently used by members of the public, they are using it, at best, by implied permission and not as of right.

In reviewing a claim that a finding was against the manifest weight of the evidence, or that the evidence was insufficient, an appellate court's duty is to review the record and determine whether there was sufficient evidence for the trier of fact to find all essential elements to prove defendant guilty beyond a reasonable doubt. State v Brown (1988), 38 Ohio St.3d 305, at paragraph four of the syllabus. We are...