COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67789 : ACCELERATED DOCKET CITY OF CLEVELAND HEIGHTS : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION CHARLES A. BALLARD : : Defendant-Appellant : PER CURIAM : : DATE OF ANNOUNCEMENT OF DECISION : MARCH 30, 1995 CHARACTER OF PROCEEDING : Criminal appeal from : Cleveland Heights Municipal : Court : Case No. 94-TRD-6285 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : __________________________ APPEARANCES: For plaintiff-appellee: KIM T. SEGEBARTH, Prosecutor City of Cleveland Heights 40 Severance Circle Cleveland Heights, Ohio 44118 For defendant-appellant: BARRY KING Attorney at Law 425 Marion Building 1276 West Third Street Cleveland, Ohio 44113 - 2 - PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App. R. 11.1 and Loc. R. 25, the records from the Cleveland Heights Municipal Court, the briefs and the oral arguments of counsel. Defendant-appellant, Charles Ballard, timely appeals his conviction for improper passing of another vehicle upon the right in violation of Cleveland Heights Ordinance Section 331.04. This action arose out of a two-car accident on Mayfield Road. The facts, as adduced at appellant's bench trial, are as follows: On June 24, 1994, a Friday, at approximately 2:00 p.m., Richard Clinton parked his vehicle at 2878 Mayfield Road. Mr. Clinton was legally parked in the right-hand, curb-side lane of Mayfield Road, facing in an eastbound direction. At the scene of the accident, Mayfield Road has three lanes, two headed eastbound and one westbound, as well as a left-hand turn lane for eastbound traffic. Mr. Clinton testified that he checked his rearview and side- view mirrors and looked over his left shoulder before attempting to exit his vehicle. Mr. Clinton observed a truck, which was not moving, in the center lane which "looked like it could have been - 3 - ready to make that [left-hand] turn into the next street that was coming up." Not observing any oncoming traffic, Mr. Clinton opened the driver's side door "a couple of inches maybe," heard brakes squeal, and the next thing he knew, his door was struck by appellant's car as appellant attempted to pass the truck on the right. According to Mr. Clinton, the driver's side door sustained damage, as did the front quarter panel near the wheel. On cross-examination, Mr. Clinton testified he told appellant he was sorry but did not recall whether he told appellant it was his fault. However, Mr. Clinton acknowledged it was possible he told appellant that it was his fault. Mr. Clinton further reiterated that there was no oncoming traffic when he opened his car door. Gerald Mack, a Cleveland Heights police officer, responded to the scene of the accident to conduct an investigation. Officer Mack testified that skid marks, originating from appellant's car, started approximately four to five car lengths behind Mr. Clinton's vehicle, "straddling both the curb eastbound lane of traffic as well as the continuous center lane [traveling] eastbound [on] Mayfield ***." Officer Mack also testified that appellant gave him two different versions of the accident. Officer Mack stated that in the first version, appellant was under the impression that the truck was going to make a left turn at the intersection from the wrong lane, while in the next version, appellant was not sure if - 4 - the truck was going to make a left turn. In any event, Officer Mack maintained that the eastbound lanes of Mayfield Road were too narrow for three eastbound vehicles to proceed safely. Based on his observations, Officer Mack issued appellant the instant citation for improperly passing the truck on the right. Additionally, Officer Mack maintained that a vehicle parked in the curb lane could open its door without intruding into the center, continuous lane. Appellant, testifying on his own behalf, stated that on the day in question, he was driving eastbound on Mayfield Road when he approached a van which began to move into the left lane to turn. Appellant proceeded to his right when suddenly a car door opened up and extended about three feet. As appellant hit his brakes, the person in the other car "just took his hand back through the door, only his hand was out the door and I hit the door of the car ***." Appellant testified he stopped his car and spoke with Mr. Clinton, who told appellant, "I'm in the fault of this." Based on the foregoing, the trial court found appellant 1 guilty as charged and fined him $75 plus court costs. At 1 We pause here to emphasize that appellant was not sentenced to thirty days in jail, as represented by the City. The uniform traffic citation herein discloses that appellant was fined $75 plus $42 for court costs. The line on the citation where jail sentence would be indicated is left blank. Under the lines indicating "Other Orders," appellant's fine was "stayed 30 days pending appeal." Because the line on the citation indicating "receipt number" and "date" of payment received is left blank, we interpret the court's order to stay the fine and court costs (continued...) - 5 - appellant's motion, sentence was suspended pending appeal. Appellant raises the following assignments of error for our review: I. THE TRIAL COURT ERRED IN OVERRULING DEFENDANT'S MOTION FOR ACQUITTAL PURSUANT TO RULE 29. II. WHETHER THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant's first assignment of error contests the sufficiency of the evidence to sustain his conviction for improper passing of another vehicle upon the right in violation of Cleveland Heights Ordinance Section 331.04. Crim.R. 29 provides: The court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal of one or more offenses charged in the indictment, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses. The court may not reserve ruling on a motion for judgment of acquittal made at the close of the state's case. The standard of review with regard to the sufficiency of evidence is set forth in State v. Bridgeman (1978), 55 Ohio St. 261, syllabus one: Pursuant to Criminal Rule 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material 1 (...continued) pending outcome of the instant appeal. Because the fine has yet to be paid, this appeal is not moot. - 6 - element of a crime has been proved beyond a reasonable doubt. See, also, State v. Apanovitch (1987), 33 Ohio St.3d 19, 23; State v. Davis (1988), 49 Ohio App.3d 109. Bridgeman must be interpreted in light of the sufficiency test as outlined in State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus, in which the Ohio Supreme Court held: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence submitted at trial to determine whether such 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. (Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed.) Reviewing the evidence in a light most favorable to the prosecution, this court concludes appellant's conviction for improper passing on the right is supported with sufficient evidence. The trial court, therefore, did not err in overruling appellant's motion for acquittal. Cleveland Heights Codified Ordinance Section 331.04 provides: 331.04 OVERTAKING AND PASSING UPON RIGHT. (a) The driver of a vehicle may overtake and pass upon the right of another vehicle only under the following conditions: (1) When the vehicle overtaken is making or about to make a left turn; - 7 - (2) Upon a roadway with unobstructed pavement of sufficient width for two or more lines of vehicles moving lawfully in the direction being traveled by the overtaking vehicle. (b) The driver of a vehicle may overtake and pass another vehicle only under conditions permitting such movement in safety. The movement shall not be made by driving off the roadway. (ORC 4511.28) In the present case, this court concludes sufficient evidence exists to sustain appellant's conviction. The evidence before this court clearly demonstrates that appellant attempted to overtake and pass the van under circumstances which did not safely permit such movement. Mr. Clinton testified that after checking his rearview and sideview mirrors and looking over his left shoulder and observing no oncoming traffic, he attempted to open his driver's side door. He then heard the squeal of brakes, at which time appellant's vehicle collided with Mr. Clinton's door, causing damage to the door and front quarter panel. Moreover, Officer Mack testified as to his observations regarding the skid marks left by appellant's car. The skid marks originated in the left continuous lane and veered into the curbside lane occupied by Mr. Clinton's vehicle. In short, the evidence demonstrates that appellant attempted to pass the van on the left while occupying both the left continuous lane and the curbside lane occupied by Mr. Clinton's vehicle. Officer Mack further testified that the two eastbound lanes of Mayfield Road are too narrow for three eastbound vehicles to proceed safely. - 8 - Appellant's first assignment of error is, therefore, overruled. Having determined that sufficient evidence exists to support appellant's conviction, this court now turns its attention to appellant's second assignment of error in which he claims the verdict is against the manifest weight of the evidence. In State v. Martin (1983), 20 Ohio App.3d 172, this court aptly set forth the test to be utilized by an appellate court when reviewing a claim that a conviction is against the manifest weight of the evidence. The Martin court stated as follows: There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. Here the test is much broader. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. *** In determining whether a verdict is against the manifest weight of the evidence, the following factors are guidelines to be taken into account by a reviewing court: (1) awareness that even a 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; - 9 - (6) the reliability of the evidence; (7) the extent to which a witness may have a personal interest to advance or defend by his testimony; (8) the extent to which the evidence is vague, uncertain, conflicting or fragmentary. State v. Mattison (1985), 23 Ohio App. 3d 10; State v. Wilson (June 9, 1994), Cuyahoga App. Nos. 64442 & 64443, unreported, at 18-19. Appellant argues that the physical evidence, including a photograph of the scene taken soon after the accident, coupled with Mr. Clinton's admission that the accident was his fault, renders the verdict against the manifest weight of the evidence. In short, appellant argues that Mr. Clinton is at fault for opening his car door into moving traffic, a violation of Cleveland Heights Ordinance 351.08, which provides: 351.08 OPENING VEHICLE DOOR ON TRAFFIC SIDE. No person shall open the door of a vehicle on the side available to moving traffic unless and until it is reasonably safe to do so, and can be done without interfering with the movement of other traffic, nor shall any person leave a door open on the side of a vehicle available to moving traffic for a period of time longer than necessary to load or unload passengers. (ORC 4511.70(C)) In the first instance, the photograph supports Officer Mack's testimony by clearly showing that appellant occupied both the left-hand continuous lane and the curbside lane occupied by Mr. Clinton while attempting to pass the van to the right. The - 10 - photograph shows the tire skid marks, left by appellant's car, originate in the left-hand continuous lane and veer into the curbside lane. The skid marks also run very close to Mr. Clinton's car and support Officer Mack's assertions that there was not enough room for appellant to safely pass on the right side in between the van and Mr. Clinton's vehicle. Additionally, while appellant testified that Mr. Clinton admitted fault for the accident, Mr. Clinton testified that he could not recall whether he made such admission. Mr. Clinton did testify he told appellant he was sorry, however. In any event, it is the province of the trial court to determine a disputed issue of fact. State v. DeHass (1967), 10 Ohio St.2d 230; State v. Williams (1990), 67 Ohio App.3d 677. We also add that a witness's admission of fault is only one factor to consider when determining whether a contrary verdict is warranted by the weight of the evidence. Mattison, supra. Finally, with respect to the assertion that Mr. Clinton improperly opened his door into oncoming traffic, we reiterate that Mr. Clinton testified he checked his rearview and sideview mirrors and looked over his left shoulder but did not observe any oncoming traffic. Thus, there was substantial, competent evidence before the trial court to conclude that Mr. Clinton opened his car door while appellant's vehicle was obscured behind the van in the left continuous lane. Appellant's attempt to pass the van to the right, therefore, was done under conditions which did not safely permit such movement. - 11 - Appellant's second assignment of error is overruled. Judgment affirmed. - 12 - This cause is affirmed. 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 Heights Municipal Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. LEO M. SPELLACY, PRES. JUDGE PATRICIA BLACKMON, JUDGE DONALD C. NUGENT, JUDGE 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 journalization, at which time it will become the judgment and order of the Court .