COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69252 VILLAGE OF WOODMERE : ACCELERATED DOCKET : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION ALBERT ABOODY : : Defendant-apppellant : : PER CURIAM DATE OF ANNOUNCEMENT : DECEMBER 5, 1996 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Bedford Municipal Court : Case No. 95-TRD-4447 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: KATHARINE LANG BETTASSO, ESQ. JAMES G. DAWSON, ESQ. 700 West St. Clair Avenue 4881 Foxlair Trail Hoyt Block, Suite 210 Richmond Heights, OH 44143 Cleveland, OH 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 court of common pleas and the briefs. Defendant-appellant Albert Aboody appeals the trial court's decision finding him guilty for improperly passing in a no passing zone by driving left of center over the double yellow line. Plain- tiff-appellee Village of Woodmere argues the weight of the evidence presented at trial established defendant's guilt beyond a reason- able doubt. On May 4, 1995 at approximately 5:25 p.m. a police officer observed defendant driving southbound on a single lane thorough- fare. As defendant approached the intersection he passed to the left of several vehicles in order to enter a left turn lane, which was inaccessible because of the heavy rush-hour traffic. The officer saw defendant's tires cross the double yellow lines. He then stopped defendant and cited him for crossing the double yellow line in violation of Woodmere Village Ordinance 331.07. On June 1, 1995 defendant appeared in Bedford Municipal Court for trial. The police officer testified he saw defendant's vehicle pass over the double yellow lines. Defendant testified and admitted he passed to the left of several vehicles but stated the width of the street allows for two cars to be in the single lane at the same time without one of the cars passing over the double yellow lines. In support of this - 3 - defense, defendant submitted evidence that the width of the lane he was driving in is fifteen (15) feet while the width of his car is only five (5) feet. Defendant argues the width of the lane clearly allows two cars to fit in the lane at the same time. The trial court found defendant guilty and fined him $100.00 and costs. Defense counsel requested a statement of facts and conclusions of law at trial. The trial court later denied this motion based upon a review of Traffic and Criminal Rules of Procedure. Defendant appeals the judgment of the trial court finding him guilty and the denial of his motion for a statement of facts and conclusions of law. Defendant first and third assignments of error are interrelated and will be reviewed together. They state as follows: I. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY FINDING HIM GUILTY OF VIOLATING SECTION 331.07 OF THE CODIFIED ORDINANCES OF THE VILLAGE OF WOODMERE (CROSSING A DOUBLE YELLOW LINE) ABSENT PROOF BEYOND A REASONABLE DOUBT. III. THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THE DEFENDANT GUILTY OF VIOLATING SECTION 331.07 OF THE CODIFIED ORDINANCES OF THE VILLAGE OF WOODMERE. Defendant claims (1) the trial court erred by relying on the testimony of the police office which was based on assumptions rather than personal observations and (2) the trial court erred by not considering the testimony of defendant. Defendant argues the conviction was not supported by suffi- cient probative evidence. The test for whether a conviction was - 4 - supported by sufficient probative evidence is "whether after reviewing the evidence and inferences in a light most favorable to the prosecution, any rational trier of fact could have found all essential elements of the offense beyond a reasonable doubt. State v. Davis (1988), 49 Ohio App.3d 109, 112-113. Defendant was charged with No Passing - Driving Left of Center Over Double Yellow Line for Improper Passing in a No Passing Zone in violation of Section 331.07 of the codified ordinances of the Village of Woodmere. The section states in pertinent part: "331.07 HAZARDOUS OR NO PASSING ZONES Hazardous zones, commonly called 'no passing zones,' shall consist of an auxiliary yellow line marked on the roadway pavement and placed parallel to the normal center line or marked lane line. * * * When auxiliary yellow lines appear on both sides of the normal center line or marked lane line, drivers proceeding in either direction shall not drive across such auxiliary yellow lines to overtake and pass another vehicle proceeding in the same direction." The police officer testified to the following: Q. Okay, what did you observe in reference to Defendant's vehicle on the date in question? A. The date in question, this was rush hour traffic, it was very heavy at the time. The traffic was backed up from northbound on Brainard past Melbourne, which is a one-way side street, and at the time I was observing traffic. And the vehicle in question that I cited that day went around the traffic over the double yellow line, proceeded up into the turn lane, which is approximately 180 feet from Melbourne, it's at the starting of the turning lane. - 5 - Q. Is this what you drew your attention to this particular vehicle? A. That and the fact that when the vehicle did go over the double-yellow line there was another vehicle going northbound on Brainard which had to pull over slightly to possibly avoid hitting this vehicle. * * * A. Did I see the vehicle's tires cross the yellow line? Q. Yes, that's the question. A. Oh, I will have to say yes because from here past here I could have seen in between the cars that were stopped. Defendant argues the lane is fifteen feet wide, which is ample space for two cars to fit in while leaving enough room for one car to pass the other without crossing the double yellow lines. Defendant also testified he did not cross the double yellow lines. The police officer testified he saw defendant cross the double yellow line. He then stated a car going in the opposite direction had to pull over to avoid hitting the defendant's car. After viewing the evidence in a light most favorable to the prosecution, we believe any reasonable trier of fact could have found the essential elements of the crime proven beyond a reason- able doubt based on the police officer's testimony and exhibits offered as evidence by the prosecution. Defendant's first assignment of error overruled. Defendant's second assignment of error states as follows: - 6 - II. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT WHERE ITS DECISION IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Defendant argues he had approximately seven feet of space, to maneuver his vehicle past the other vehicles and into the turning lane without crossing the double yellow lines. He claims, based on this evidence, the trial court's decision was against the manifest weight of the evidence. The relevant inquiry when determining the manifest weight of the evidence is whether, such evidence, if believed would convince the average mind of defendant's guilt beyond a reasonable doubt. State v. Jenks (1991), 61 Ohio St.3d 259. Also, an appellate court may not weigh the evidence or judge the credibility of the wit- nesses, which is primarily a function for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230. The police officer's eye-witness testimony that defendant crossed over the double yellow line and exhibits showing the width of the street in relation to the cars is evidence which would convince the average mind of defendant's guilt beyond a reasonable doubt. Therefore, the judgment of the trial court is not against the manifest weight of the evidence. Defendant's second assignment of error is overruled. Defendant's fourth assignment of error states as follows: IV. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT BY DENYING HIS MOTION FOR A STATEMENT OF FACTS AND CONCLUSION OF LAW. - 7 - Defendant argues the trial court erred by not issuing a statement of facts and conclusion of law based on the oral request made at trial. Defendant cites Civ.R. 52 for the proposition that the trial court had a duty to issue findings of fact and conclu- sions of law. Ordinarily, a judgment entered without the requested findings of fact and conclusions of law is not in compliance with the Rules of Civil Procedure and is not a final appealable order such that we would have jurisdiction to review it. See Caudill v. Caudill (1991), 71 Ohio App.3d 564, 565. However, that problem does not arise in the present case. Unlike the Civil Rules, the Criminal Rules make no provision for separate findings of fact and con- clusions of law after a non-jury trial. State v. Salvatore (Aug. 11, 1983), Cuyahoga App. No. 46271, unreported. Defendant fails to realize the provisions of Civ.R. 52 apply only in civil matters with certain limited exceptions none of which is present in this case. See Civ.R. 1. Even if Civ.R. 52 did apply, it states the request for findings of fact and conclusions of law must be made in writing and in this case the request was made orally. Additionally, Crim.R. 23(C) refers to trials without a jury and states "[i]n a case tried without a jury the court shall make a general finding." Applying this rule to the present case the court issued a general finding on May 18, 1995, finding defendant guilty. Thus, the trial court complied with the rules of Criminal - 8 - Procedure and defendant's fourth assignment of error is overruled. Judgment affirmed. - 9 - This cause is affirmed. It is ordered that appellee recover of appellant their 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 Bedford 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. ANN DYKE, PRESIDING JUDGE JOSEPH J. NAHRA, JUDGE JOHN T. PATTON, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App. R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .