COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72321 VILLAGE OF MAYFIELD : ACCELERATED DOCKET : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION WILLIAM E. FARAGHER : : PER CURIAM : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 25, 1997 CHARACTER OF PROCEEDING: Civil appeal from Lyndhurst Municipal Court, No. 96-TRD-10595. JUDGMENT: VACATED AND JUDGMENT ENTERED FOR DEFENDANT-APPELLANT. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Timothy X. McGrail, Esq. Vincent A. Feudo, Esq. 1100 Illuminating Building 55 Public Square Cleveland, OH 44113 For Defendant-Appellant: John F. Norton, Esq. 1202 Bond Court Building 1300 E. 9th Street Cleveland, OH 44114 PER CURIAM: This cause came to be heard upon the accelerated calender pursuant to App.R. 11.1 and Loc.R. 25, the record from the Lyndhurst Municipal Court, and the briefs of the parties. William 2 Faragher, defendant-appellant, appeals the denial of his Crim.R. 29 motion for acquittal. For the following reasons, we vacate the decision of the trial court and enter judgment for defendant- appellant. On August 18, 1996, at approximately 2:48 p.m. defendant- appellant was driving southbound on Som Center Road in Mayfield Village, Ohio. Apparently defendant-appellant observed a driver in distress. Defendant-appellant stopped his car on Som Center Road and exited his car to help the woman push her disabled car into a nearby parking lot. While defendant-appellant was pushing the vehicle, another car ran into the back of his parked automobile. The police arrived at the scene and defendant-appellant was issued a traffic citation for violating Mayfield Village Ordinance 351.10 which is analogous to R.C. 4511.66 and reads: PROHIBITION AGAINST PARKING ON STREETS OR HIGHWAYS. Upon any street or highway outside a business or residence district, no person shall stop, park or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the street or highway if it is practicable to stop, park or so leave such vehicle off the paved or main traveled part of the street or highway. In every event, a clear and unobstructed portion of the street or highway opposite such standing vehicle shall be left for the free passage of other vehicles, and a clear view of such stopped vehicle shall be available from a distance of 200 feet in each direction upon such street or highway. This section does not apply to the driver of any vehicle which is disabled while on the paved or improved or main traveled portion of a street of highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving the disabled vehicle in such position (ORC 4511.66). (emphasis added). Defendant-appellant pled not guilty to the charge and a bench 3 trial was held on March 5, 1997. At the trial, the Village presented the testimony of Patrol Officer Stephan LaBuda who was called to the scene of the accident. Office LaBuda testified that he observed defendant-appellant's vehicle on Som Center Road approximately seventy (70) feet south of the Som Center Road and Aintree Park Drive intersection. Defendant's vehicle was facing south and partly on a tree lawn in between a no parking sign and a bus stop. There is no dispute that defendant-appellant did not have any flashing lights or hazard lights on. The officer then testified to the following: . This general area where the accident occurred, what is located around there? A. We had Excelleration, which is an automotive repair place; we have a beverage store; Pizzaz; we have restaurants, shopping centers, it's a pretty busy business area. 4 On cross-examination, the officer testified: . And the area in which this accident or collision for stopping of the vehicle occurred was in an area that you said contained a number of stores, a beverage store? A. Well, in the general area. That actual intersection is apartments alongside where the accident occurred. . Well, what is the area, is it residential, or is it -- A. Business. . It's business? . Well, it changes just about where the accident occurred, it's a 35, but from that point north is all a 25 mile an hour zone. Q. Okay. So it happened in a business district just about to change? . Yes. At the close of the Village's case, defense counsel moved to dismiss the charges against defendant-appellant pursuant to Crim.R. 29. Defense counsel argued that the evidence presented failed to establish that the defendant-appellant stopped, parked or left standing his vehicle outside a business or residence district as required by Mayfield Village Ordinance 351.10. The trial court disagreed and denied defendant-appellant's motion. Defendant- appellant was subsequently found guilty of violating Mayfield Village Ordinance 351.10. Under Crim.R. 29, a trial court shall not order an entry of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. State v. 5 Bridgeman (1978), 55 Ohio St.2d 261, syllabus. A motion for judgment of acquittal under Crim.R. 29(A) should only be granted where reasonable minds could not fail to find reasonable doubt. State v. Apanovitch (1987), 33 Ohio St.3d 18, 23. Thus, the test an appellate court must apply in reviewing a challenge based on a denial of a motion for acquittal is the same as a challenge based on the sufficiency of the evidence to support a conviction. See State v. Bell (May 26, 1994), Cuyahoga App. No. 65356, unreported. In State v. Jenks (1991), 61 Ohio St.3d 259, 273, the Ohio State Supreme Court set forth the test an appellate court should apply when reviewing the sufficiency of the evidence to support a conviction: [T]he relevant inquiry on appeal is whether any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. In other words, an appellate court's function when reviewing the sufficiency of the evidence is to examine the evidence admitted at trial and determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Eley [(1978), 56 Ohio St.2d 169]. 6 See, also, Jackson v. Virginia (1979), 443 U.S. 307; 99 S.Ct 2781; 61 L.Ed.2d 560. Plaintiff-appellee argues the testimony establishes that the accident occurred just outside of a business district. We find such interpretation to be unreasonable. From a review of the entire record, it is clear that the accident occurred just before the 35 m.p.h. portion of Som Center Road. As evidenced by the officer's testimony, the accident occurred in a business district just about to change. Plaintiff-appellee has failed to present evidence from which a reasonable trier of fact can find defendant-appellant stopped, parked, or left his vehicle standing outside a business or residential area. The trial court erred in denying defendant- appellant's motion for acquittal. Judgment vacated and judgment entered on behalf of defendant- appellant. 7 It is ordered that appellant recover of appellee 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 Common Pleas 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. PATRICIA BLACKMON, PRESIDING JUDGE DAVID T. MATIA, JUDGE JAMES M. PORTER, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.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 .