Moraine v. Green

[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