Moraine v. Green , 2021 Ohio 869 ( 2021 )

[Cite as Moraine v. Green, 2021-Ohio-869.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
CITY OF MORAINE :
:
Plaintiff-Appellee : Appellate Case No. 28883
:
v. : Trial Court Case No. 2020-TRD-1538
:
SHCONYA K. GREEN : (Criminal Appeal from
: Municipal Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 19th day of March, 2021.
...........
KENT J. DEPOORTER, Atty. Reg. No. 0058487, 7501 Paragon Road, Dayton, Ohio
45459
Attorney for Plaintiff-Appellee
ANTHONY S. VANNOY, Atty. Reg. No. 0067052, 2621 Dryden Road, Suite 306, Dayton,
Ohio 45439
Attorney for Defendant-Appellant
.............
EPLEY, J.
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{¶ 1} Defendant-Appellant Shconya Green was convicted after a bench trial in the
Kettering Municipal Court of reckless operation of a motor vehicle, in violation of Moraine
Codified Ordinance 333.09(b), a fourth-degree misdemeanor. Green appeals from her
conviction, claiming that it was against the manifest weight of the evidence. For the
following reasons, the trial court’s judgment will be affirmed. However, the matter will be
remanded to the trial court for the limited purpose of correcting a typographical error in
the judgment entry.
I. Facts and Procedural History
{¶ 2} The reckless operation charge stems from an incident in the school bus drop-
off area of C.F. Holliday Elementary School involving cars driven by Green and another
parent, Ms. Sledge. The City of Moraine’s evidence established the following facts.
{¶ 3} Marissa Yeakley and Cassie Jordan, both teachers at the school, have front
door bus duty in the mornings and afternoons. In the morning, this entails monitoring the
eight buses that arrive at the school, helping the children get off the bus, speaking with
parents who drop off their children, and letting tardy children into the school. Buses pull
up parallel to the curb in front of the school to drop off the children. The bus lane is a
only one-lane, but it is the width of two cars.
{¶ 4} From 8:30 to 8:45 a.m., cars are supposed to use a separate entrance on the
opposite side of the school, but not all parents comply. In addition, cars that do come in
the bus lane are not supposed to go around the buses, but that also is sometimes an
issue. Children who walk to school are encouraged to use a sidewalk away from this
area, but some parents park in the parking area by the bus lane and walk their children
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up to the school.
{¶ 5} On January 6, 2020, Yeakley and Jordan were outside on bus duty when two
cars that frequently use the bus lane arrived. Green was driving the car in front, and
Sledge was driving a white car behind her. After both parents dropped off their children,
Sledge’s vehicle “went around Miss Green’s car and kind of accelerated rather fast to get
around her.” In response, Green “floored it,” and the two vehicles “jockeyed for position”
as they headed for the stop sign at the end of the bus lane. Near the stop sign, Green
veered to the left and hit the right rear bumper of Sledge’s vehicle. Sledge got out of her
vehicle, said something to Green, made an obscene gesture toward her, and then drove
away. Green pulled into a parking space and called the police.
{¶ 6} Both teachers testified that the drivers had acted aggressively and had driven
faster than appropriate. Yeakley and Jordan both estimated the distance from where
Green had dropped off her children to the stop sign as approximately four car lengths.
After the incident, they informed the school’s principal about what had occurred.
{¶ 7} Moraine Police Officer Jerome Klemmensen responded to the school on a
report of a motor vehicle crash. The officer spoke with Green in the school parking lot;
Sledge was not there. Green reported to the officer that as she was leaving from
dropping off her children, Sledge pulled in front of her and she (Green) hit the back of
Sledge’s car. Klemmensen looked at Green’s vehicle but did not see any damage.
{¶ 8} Officer Klemmensen subsequently made contact with Sledge at her
residence. Sledge told him that no contact had occurred between the vehicles and she
had felt no need to stay at the school. Klemmensen obtained a written statement from
Sledge and looked at her vehicle; the officer did not see any damage on her vehicle either.
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Klemmensen completed his report and submitted it to Sergeant Keghan for processing.
{¶ 9} After Green obtained a copy of the police report and spoke with Sergeant
Keghan, Officer Klemmensen was instructed to do a more thorough investigation, which
included completing Form OH1 (Traffic Crash Report) and interviewing witnesses,
Yeakley and Jordan. Both teachers provided him with written statements. The officer
also spoke again with Green. As a result of the investigation, both Sledge and Green
were charged with reckless operation.
{¶ 10} The matter against Green proceeded to a bench trial, during which Yeakley,
Jordan, and Officer Klemmensen testified for the City. Green testified on her own behalf
and denied that she had driven recklessly. At the conclusion of the trial, the court orally
found Green guilty of reckless operation. The trial court imposed ten days in jail, all of
which were suspended, a fine of $125, and court costs. The court subsequently filed a
written judgment entry consistent with that sentence.
{¶ 11} Green appeals from her conviction.
II. Manifest Weight of the Evidence
{¶ 1} In her sole assignment of error, Green claims that her conviction was against
the manifest weight of the evidence. She argues that Sledge was the aggressor who
drove recklessly. Green further asserts that, under “the physical facts rule,” the trial court
should not have credited testimony that she was driving much faster than appropriate.
Specifically, Green argues that she could not have been speeding and jockeying for
position given the short distance and timeframe described by Yeakley and Jordan.
{¶ 2} “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
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believable or persuasive.” (Citation omitted.) State v. Wilson, 2d Dist. Montgomery No.
22581, 2009-Ohio-525, ¶ 12; see Eastley v. Volkman, 132 Ohio St. 3d 328, 2012-Ohio-
2179, 972 N.E.2d 517, ¶ 19. When reviewing an argument challenging the weight of the
evidence, an appellate court may not substitute its view for that of the trier of fact.
Rather, we review the entire record, weigh the evidence and all reasonable inferences,
consider the credibility of witnesses, and determine whether, in resolving conflicts in the
evidence, the finder 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. State v.
Thompkins, 78 Ohio St. 3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin, 20
Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 3} Because the trier of fact sees and hears the witnesses at trial, we must defer
to the factfinder’s decisions whether, and to what extent, to credit the testimony of
particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL
476684, *4 (Aug. 22, 1997). The fact that the evidence is subject to different
interpretations does not render the 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 exceptional circumstances. Martin at 175.
{¶ 4} Green was charged with violating Moraine Codified Ordinance 333.09(b).
That ordinance provides: “No person shall operate a vehicle on any public or private
property other than streets or highways, without due regard for the safety of persons or
property.” The ordinance makes an exception for the competitive operation of vehicles
with the property owner’s permission, but that exception does not apply in this instance.
Moraine Codified Ordinance 333.09(c) defines “reckless operation” to mean “the
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operation of a vehicle without the degree of care as a reasonably prudent person would
have under similar circumstances.”
{¶ 5} Here, both Yeakley’s and Jordan’s testimony supported a conclusion that
Green committed reckless operation, as charged. According to Yeakley, after the
children exited both vehicles, Sledge’s car “went around Miss Green’s car and kind of
accelerated rather fast to get around her.” Yeakley testified: “And at that time, Miss
Green accelerated as well and they kind of did this side-by-side battle, if you will um, to
get to the stop sign that’s right there at the end of our drive.” (Tr. at 8-9.) Yeakley
elaborated that Green “floored it” in response to Sledge’s actions, and “it was literally a
back and forth” between the two vehicles with the lead car changing two or three times.
Yeakley characterized Green’s response as aggressive and not appropriate. Both cars
were driving much faster than they should have been.
{¶ 6} Yeakley testified that she then heard a “crunch” as Green’s car “kind of
scooted towards the other car” in Sledge’s lane of travel. At that point, Sledge got out of
her vehicle, said something to Green, made a gesture toward her, and then drove off.
Yeakley saw Green pull into a parking space. A parent walking by commented to
Yeakley, “That’s a lot of road rage right there.” (Tr. at 9.)
{¶ 7} Jordan described the event similarly. She testified that, after the children
got out of their parents’ cars, the white car pulled away and started to move around the
driver’s side of Green’s vehicle. Green then also started to pull away, and the two cars
“jockeyed for position.” The car driven by Green then appeared to turn into the other
vehicle’s back bumper. The other parent then got out of her car, “flipped Miss Green
off,” got back in her car, and drove away.
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{¶ 8} Jordan stated that she was watching the vehicles, “because it was unsafe for
the kids who were still walking into the building.” (Tr. 28.) She testified that the drivers’
behavior appeared to be like road rage, and she did not find it appropriate. She indicated
that the cars were not going “super-fast,” but they also were going “faster than they should
have in that space.” (Tr. 45.) Jordan saw Green at the school within a week of the
incident, and Green commented about it to her. Jordan did not recall what Green said,
but she (Jordan) responded, “Yeah, that was crazy.”
{¶ 9} Both Yeakley and Jordan acknowledged on cross-examination that they did
not know if Green saw the white car pull out from behind her. Jordan testified that she
did not observe Green use expletives or obscene gestures toward the other driver.
{¶ 10} Green provided a different version of the events leading to the alleged
collision. She testified that after her children exited her vehicle, she watched them walk
to where Yeakley and Jordan were standing. She then pulled away from the curb.
Green indicated that she did not see anyone beside her as she prepared to pull out.
Green then saw “what appeared like a flash because that’s how quickly this vehicle
appeared.” (Tr. 60.) She stated that, once the other vehicle was in front of her, she hit
the vehicle with the front of her car. Green testified that Sledge exited her vehicle, called
her some names, made an obscene gesture toward her, and then drove off. Green tried
to get her composure and then pulled into a parking space to call the police. Upon
looking at her vehicle, Green also did not see any damage.
{¶ 11} During her testimony, Green denied that she had fought for position with the
other driver or that she even saw Sledge’s vehicle before the collision took place. She
asserted that there was not enough time and distance from her original position to the
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stop sign for jockeying to occur. Green stated that she drove a smart car, which cannot
accelerate at a high rate of speed. Green further testified that she called the police
because she thought that Sledge “needed to be checked on.” Green stated that she
loves her children and other people’s children and would never do anything to jeopardize
any child’s safety.
{¶ 12} Green argues on appeal that Jordan’s and Yeakley’s testimony differed in
terms of how fast the vehicles were travelling. She also asserts that it “defies logic and
physical laws of science” to conclude that she was speeding and jockeying for position
with another vehicle. Green asks us to apply the “physical facts rule” to resolve these
alleged conflicts in the testimony.
{¶ 13} The physical facts rule states that “the testimony of a witness which is
opposed to the laws of nature, or which is clearly in conflict with principles established by
the laws of science, is of no probative value.” McDonald v. Ford Motor Co., 42 Ohio
St.2d 8, 12, 326 N.E.2d 252 (1975). Consequently, a trier of fact “is not permitted to rest
its verdict” on that testimony. Id.; see Bedard v. Gardner, 2d Dist. Montgomery No.
20430, 2005-Ohio-4196, ¶ 33.
{¶ 14} For the physical facts rule to apply, the “palpable untruthfulness” of the
witness’s testimony must be “(1) inherent in the rejected testimony, so that it contradicts
itself or (2) irreconcilable with facts of which, under recognized rules, the court takes
judicial knowledge or (3) is obviously inconsistent with, contradicted by, undisputed
physical facts.” McDonald at 12-13, quoting Duling v. Burnett, 22 Tenn. App. 522, 124
S.W.2d 294 (1938). “The issue is generally whether circumstantial evidence of physical
facts is so conclusive as to wholly rebut oral testimony presenting a different version.”
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Id. at 14.
{¶ 15} McDonald provided several examples to illustrate the application of the
physical facts rule. Addressing automobile accident cases, the Ohio Supreme Court
noted that it is “generally agreed that estimates of the speed or location of movable
objects are not physical facts,” and thus the physical facts rule did not apply to estimates
of time and speed. Id. at 13, citing Hopfer v. Staudt, 207 Or. 487, 492, 298 P.2d 186
(1956) (“The ‘physical facts rule’ cannot come into play with respect to the position, speed,
etc., of movable objects, if facts relative to speed, position, etc., must be established by
oral evidence or where it is necessary to make estimates or measurements or to start
with an assumption of existence of a fact.”).
{¶ 16} In light of McDonald and the evidence presented at trial, we conclude that
the physical facts rule does not apply to this case. Yeakley and Jordan provided
estimates of the distance from where Green dropped off her children to the stop sign.
Neither Yeakley nor Jordan estimated the speed of Green’s car. Yeakley testified that
the speed limit on South Dixie Drive, where the school is located, is 20 mph and that she
“assumed” parents typically drove approximately 5 to 10 mph when dropping off their
children. Yeakley testified that Green and Sledge were driving “much faster than they
should have.” Jordan agreed that the cars were traveling faster than appropriate. This
testimony does not qualify as evidence of physical facts within the meaning of the physical
facts rule.
{¶ 17} Upon review of the evidence at trial, we cannot conclude that Green’s
conviction for reckless operation was against the manifest weight of the evidence. The
City’s evidence established that the driving incident occurred on elementary school
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property in the bus drop-off lane while children were being dropped off for school. The
two teachers who witnessed the incident saw Sledge rapidly pull out from behind Green’s
vehicle and Green respond by accelerating rapidly, too. The teachers indicated that the
vehicles jockeyed for position as they headed toward the nearby stop sign. Both drivers
acted aggressively, and the vehicles travelled faster than was appropriate for the time
and location. The teachers saw Green veer into the back right corner of Sledge’s
vehicle. Green agreed that a collision occurred, although there was no apparent damage
to either vehicle. In finding Green guilty of reckless operation, the trial court did not “lose
its way” simply because it chose to believe the City’s, rather than Green’s, version of
events. On this record, the trial court reasonably concluded that Green had recklessly
operated her vehicle, in violation of Moraine Codified Ordinance 333.09(b).
{¶ 18} Green’s assignment of error is overruled.
{¶ 19} We note that the trial court’s judgment entry incorrectly states that Green
was charged with violating “R.C. 333.09(A).” The traffic citation and accompanying
statement of facts charged Green with violating Moraine Codified Ordinance 333.09(b).
A review of the record reflects that the judgment entry’s reference to R.C. 333.09(A) was
a typographical error, which is subject to correction, pursuant to Crim.R. 36, by means of
a nunc pro tunc entry. State v. Hill, 2d Dist. Montgomery No. 26581, 2015-Ohio-5166,
¶ 49 (“If a judgment entry misidentifies the offense due to a clerical error, that error may
be corrected pursuant to Crim.R. 36.”).
III. Conclusion
{¶ 20} The trial court's judgment will be affirmed. The matter will be remanded to
the trial court for the limited purpose of filing a nunc pro tunc entry, correcting its judgment
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entry so that it reflects that Green was found guilty of violating Moraine Codified
Ordinance 333.09(b).
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TUCKER, P. J. and HALL, J., concur.
Copies sent to:
Kent J. DePoorter
Anthony S. VanNoy
Hon. Robert E. Messham, Jr., Sitting by Assignment