COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59413 CITY OF CLEVELAND : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION TERESA CALHOUN : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 14, 1991 CHARACTER OF PROCEEDING : Criminal appeal from : Cleveland Municipal Court : Case No. 89-CRB-12548 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: MARK A. McCLAIN, City Prosecutor VERNA JO LANHAM, Assistant Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: BRADLEY L. GREENE Attorney at Law 1223 West Sixth Street Cleveland, Ohio 44113 - 1 - FRANCIS E. SWEENEY, P.J.: Defendant-appellant, Teresa Calhoun, was charged with vehi- cular homicide under Cleveland Codified Ordinance Section 621.01. After a bench trial, appellant was found guilty as charged. Appellant timely appeals her conviction, raising two assignments of error. For the reasons set forth below, we affirm. Appellant's assignments of error raise similar issues of law and fact and will be considered jointly. They state: I. THE TRIAL COURT ERRED, AS A MATTER OF LAW, IN FINDING APPELLANT GUILTY OF VEHICULAR HOMICIDE. II.THE TRIAL COURT'S GUILTY VERDICT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant argues the verdict is against the manifest weight of the evidence. She contends that her conduct did not demon- strate a failure to exercise due care. Alternatively, she argues it was the decedent's contributory negligence, not appel- lant's, which proximately caused the former's death. "An appellate court's function when reviewing the suffi- ciency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such - 2 - evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. 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 a reasonable doubt." State v. Jenks (1991), 61 Ohio St. 3d 259, paragraph two of the court's syllabus; Jackson v. Virginia (1979), 443 U.S. 307. The credibility of testimony and the weight of the evidence are primarily matters for the trier of fact. The verdict will not be disturbed unless the appellate court finds that reasonable minds could not reach the conclusion reached by the trier of fact. Jenks, supra, at 273. Cleveland Codified Ordinance Section 621.01, vehicular homicide, provides in pertinent part that no person while operat- ing a motor vehicle shall negligently cause the death of another. Section 621.02 is identical to R.C. 2903.07(A) proscribing vehi- cular homicide. Cleveland Codified Ordinance Section 601.01(e) states: "Negligence" means a person acts negligently when, because of a substantial lapse from due care, he fails to perceive or avoid a risk that his conduct may cause a certain result or may be of a certain nature. A person is negligent with respect to circumstances when, because of a substantial lapse from due care, he fails to perceive or avoid a risk that such circumstances may exist. The pertinent facts are as follows: - 3 - On May 19, 1989, at approximately 11:30 p.m., appellant was traveling eastbound on Lorain Avenue and attempted to make a left turn onto West 85th Street. The traffic signal at West 85th Street and Lorain Avenue was green for traffic heading both east and west on Lorain. Robert Knapp and passenger Marcia Lambert were traveling westbound on Lorain Avenue on Knapp's brother's motorcycle. As appellant turned her vehicle left onto West 85th Street, Knapp's motorcycle collided into the passenger side of appellant's vehicle. Robert Knapp was immediately killed, and Ms. Lambert was seriously injured. It is undisputed that Mr. Knapp had a blood alcohol content of .12 (blood) and .15 (urine). Appellant's blood alcohol con- tent was .01. The evidence further indicates that the decedent was traveling at least 45 m.p.h., 10 m.p.h. over the legal speed limit. Neither decedent nor his riding companion wore protective head gear. Robert Stephen testified that he and a companion rode along- side decedent on the night in question. Mr. Stephen stated he noticed that decedent's headlight was working sometime prior to the accident. The state presented testimony that all 1977 Harley Davidson motorcycles, which decedent drove, are equipped with headlights which turn on automatically when the motorcycle is started. The evidence further indicates that when the motorcycle headlight bulb was broken, the light was working. However, in fairness to appellant, Detective Russell Theiss testified that - 4 - appellant and her passenger both stated that they did not see any headlights on the motorcycle which struck appellant's car. Appellant presented no evidence on her behalf. From the record, we conclude that competent, credible evi- dence exists to support the trial court's judgment. The trial court was free to find the evidence favorable to the state more credible than that favorable to appellant. Appellant's contention that it was decedent's negligence which was the direct and proximate cause of death and not appel- lant's lacks merit. In order to find a person guilty of vehicu- lar homicide, "it must be shown that such negligent operation ... was the direct and proximate cause of death ..." State v. Vaught (1978), 56 Ohio St. 2d 93, 94, quoting from Annotation, 99 A.L.R. 756, 772. Furthermore, the contributory negligence of the victim is not a defense to vehicular homicide. However, the trier of fact may consider contributory negligence if it is the sole proximate cause of the accident. See, Cleveland v. Pollock (1983), 8 Ohio Misc. 2d 37, 38, citing Goldsmith, Involuntary Manslaughter: Review and Commentary in Ohio Law (1979), 40 Ohio St. L.J. 569, 600. In the present case, evidence exists indicat- ing that appellant's negligence was a direct and proximate cause of the decedent's death. Appellant made a left hand turn into oncoming traffic. A collision ensued, resulting in the immediate death of Robert Knapp. - 5 - Further, this court cannot say that the decedent's contri- butory negligence was the sole proximate cause of his death. The trial court heard all of the evidence and was free to find that appellant's negligence was a direct and proximate cause of dece- dent's death. Therefore, appellant's assignments of error lack merit. Judgment affirmed. - 6 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cleveland Municipal Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOHN F. CORRIGAN, J. JAMES D. SWEENEY, J. CONCUR PRESIDING JUDGE FRANCIS E. SWEENEY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .