COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67801 JAMES A. CRAN : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION MARTIN S. DRABEK : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 7, 1995 CHARACTER OF PROCEEDING: Civil appeal from Rocky River Municipal Court Case No. 94-CVI-0046 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: CARL MCMAHON, ESQ. MARTIN S. DRABEK, PRO SE 410 Leader Building 7696 Cecilia Drive 526 Superior Avenue Parma, Ohio 44134 Cleveland, Ohio 44114-1979 - 2 - DYKE, J.: Defendant-appellant Martin S. Drabek, appeals a judgment of the Rocky River Municipal Court which granted $1,385.00 in property damages to Plaintiff-appellee, James A. Cran, after finding that the appellant was 75% negligent in causing the automobile accident which prompted appellee's complaint. In three assignments of error, appellant claims that the court erred in permitting the testimony of the responding officer; that the verdict was against the manifest weight of the evidence and that he was denied due process. Upon review, we find appellant's assignments of error to be without merit. Accordingly, we affirm the judgment of the trial court. As in all appeals, our review is limited to the reported proceedings of the lower court. We are prohibited from considering that which has not been certified to this Court for review. See, App.R.12(A) Hence, we cannot consider any allegations which are premised upon comments made off the record. Also, if there are gaps in the record, as there are with respect to portions of appellee's and Officer Zinsmeyer's testimony due to audio tape changes as acknowledged by the appellant in his brief (See, Pg. 6, 9), we are bound to presume regularity. See, Knapp v. Edwards Laboratories (1980), 68 Ohio St.2d 197, 199. The record demonstrates that on December 21, 1993 the appellant was traveling eastbound on Mastick Road in snowing conditions and attempted to make a left hand turn onto West 210th - 3 - Street. In doing so, he stopped his vehicle left of center and partially blocked the westbound lane in which appellee was traveling. Appellee applied his brakes causing his vehicle to skid and strike appellant's stopped vehicle. On January 7, 1994 appellee filed a small claims complaint for $2,000 for damages sustained as a result of the collision. On February 28, 1994 matter was tried before a referee who recommended judgment in favor of the appellee in the amount of $1,847.71 plus interest and costs. Appellant appealed the recommendation and demanded a bench trial which was conducted on July 18, 1994. The court again found in favor of the appellee but reduced the damage award to $1,385.00 finding that the appellee was 25% contributorily negligent in failing to control his vehicle. The instant appeal followed. I WHETHER THE TRIAL COURT JUDGE ERRED IN PERMITTING TESTIMONY OF POLICE OFFICER WITH POLICE REPORT DIAGRAMMING APPELLEE'S AUTOMOBILE IN WRONG DIRECTION, CONTRARY TO FACTS, AND PERMITTING USE OF A POLICE REPORT COMPLETED THIRTY DAYS AFTER THE DATE OF ACCIDENT BY THE POLICE OFFICER. II WHETHER THE TRIAL COURT JUDGE ERRED IN FINDING FOR APPELLEE, AGAINST THE WEIGHT OF THE EVIDENCE IN THE TRIAL COURT. Appellant's first and second assignments of error are related and shall be addressed together. Appellant claims that Officer Zinsmeyer's testimony was inadmissible because the diagram Zinsmeyer drew of the accident contained an error and because the - 4 - diagram was untimely drawn. Appellant's arguments do not establish reversible error. It is well settled that a reviewing court will not overturn a trial court's ruling regarding the admissibility of evidence absent an abuse of discretion. O'Brien v. Angley (1980), 63 Ohio St.2d 159. It is also well settled that judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.3d 279. Moreover, the credibility of a witness is a matter for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 231. At trial Zinsmeyer admitted that a portion of the diagram he drew was inaccurate in so far the orientation of appellee's car. He further admitted that he did not draw the diagram until he returned from vacation nearly thirty days later. However, in testifying Zinsmeyer explained the proper orientation of appellee's vehicle and further explained that while he failed to draw the diagram on a timely basis, he completed the written accident report on day it 1 occurred. Our review of Zinsmeyer's report indicates that it was consistent with his testimony which included the following statements: 1 Zinsmeyer's report indicated that the appellant had "stopped for left turn" and in doing so "stopped over the double yellow line." - 5 - Zinsmeyer: He (the appellant) was moving along, beginning to make a left turn and stopped for oncoming traffic ahead of Mr. Cran. Mr. Cran applied his breaks, slid, the left front of his vehicle, (sic) the wheel area of his Toyota collided with the right front of Mr. Drabek's vehicle, sustaining damages to the wheel area, okay. The Court: Anyone injured? Zinsmeyer: No one was injured. At that point in time, (sic) issued a, right of way while turning left. Due to the fact that, the basis of where the collision damage was on the roadway, it was apparent that Mr. Drabek's vehicle was over the middle in the oncoming traffic of Mr. Cran's vehicle. (Tr. 6-7) Zinsmeyer further testified that he had investigated hundreds of accidents and that based upon the position of the damage on each of the two vehicles, the location of certain debris and the existence of a fresh indentation in the snow, it was his opinion that appellant's vehicle "was over, left of center." (Tr.37) Hence, appellant's claimed diagrammatic error is harmless as competent and credible evidence was adduced at trial to support the judge's verdict. Appellant challenges the admissibility of 2 Zinsmeyer's testimony alleging other deficiencies. However, these allegations are irrelevant to the issue of whether the appellant was 75% negligent in causing the accident which damaged appellee's car. His first and second assignments of error are overruled. 2 Appellant claims inter alia, that Zinsmeyer's testimony was inadmissible because in filling out the traffic citation he issued to the appellant, Zinsmeyer indicated that the appellant was driving a two instead of four-door vehicle; that the road was concrete and asphalt and that it was 23 instead of 30 feet wide. - 6 - III WHETHER THE TRIAL COURT JUDGE DENIED THE APPELLANT DUE PROCESS, VIOLATING HIS CIVIL RIGHTS. In his third assignment of error, appellant claims that the court's verdict must be reversed 1) because he was not provided an opportunity to make a closing statement 2) because the only sworn witness was the officer 3) because he was not given an opportunity to call a witness 4) because the court became personally involved in the trial and 5) because the court improperly concluded that he had attempted to make a left hand turn. Once again, appellant's arguments fail to demonstrate reversible error. Officer Zinsmeyer presented competent, credible testimonial evidence that appellant's vehicle was left of center when the collision occurred. Hence, appellant's first argument raises only harmless error. Appellant's second argument also constitutes only harmless error. While it is reversible error for a court to rely upon unsworn testimony in reaching its decision, the court did not do so in this case as the record clearly demonstrates that Zinsmeyer testified while he was under oath. See, Allstate Ins. Co. v. Rule (1980), 64 Ohio St.2d 67. Additionally, the appellant and his wife were permitted to cross-examine Zinsmeyer at length. Appellant's third and fourth arguments are unsupported by the record. Appellant stated in the record that he "did not invite" a particular witness to testify because the witness could not "definitely say" whether the instant accident was the one he had seen. (Tr. 22) Appellant has also failed to support his court - 7 - involvement argument as the record demonstrates that the presiding judge merely commented that she was familiar with the intersection at issue. Appellant's fifth argument is meritless as the court was permitted to find that he attempted a left-hand turn based on Zinsmeyer's sworn testimony. See, State v. DeHass (1967), 10 Ohio St.2d 231. Appellant's third assignment of error is overruled. Accordingly, the judgment of the trial court is affirmed. - 8 - It is ordered that appellee recover of appellant his 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 Rocky River 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. PATTON, C.J., AND *CORRIGAN, J., CONCUR ANN DYKE JUDGE *Sitting by Assignment: Judge John V. Corrigan, Retired, of the Eighth District Court of Appeals. 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, .