COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73073 CITY OF CLEVELAND, : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION JEANNE CHEBIB, : : Defendant-Appellant : : : : : DATE OF ANNOUNCEMENT OF DECISION: JULY 16, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Cleveland Municipal Court Case No. 97-TRD-57585 JUDGMENT: REVERSED AND APPELLANT DISCHARGED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: CAROLYN W. ALLEN Chief Prosecutor City of Cleveland PINKEY S. CARR Assistant Prosecutor 8th Floor - The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JEANNIE CHEBIB, Pro se 2218 Selzer Avenue Cleveland, Ohio 44109 -2- JUDGE TERRENCE O'DONNELL: Jeanne Chebib appeals from a bench trial verdict of the Cleveland Municipal Court finding her guilty of violating Cleveland Municipal Ordinance 431.09, Following Too Closely, alleging denial of a jury trial and failure to prove her guilt beyond a reasonable doubt. For the reasons which follow, we reverse the decision of the trial court and discharge Chebib. The record before us reflects that shortly before 3 p.m., on June 25, 1997, as Jeanne Chebib operated her 1983 Ford pickup truck northbound in the center lane of West 25th Street at a speed of approximately 10 to 15 miles per hour behind another northbound older model brown Buick, that car, suddenly and without signaling, turned left into a mall entrance. In order to avoid a collision as a result of this sudden emergency, Chebib stepped on her brake and after quickly checking her rear-view mirror, swerved into the right lane of travel, in front of a Cleveland Police vehicle operated by Cleveland Police Officer David Carroll, causing him to strike the curb. Following this incident, Carroll ticketed Chebib for Following Too Closely in violation of Cleveland Municipal Traffic Code 431.09, despite her protestations that she had avoided an accident by not colliding with the motorist in front of her who had suddenly turned without signaling, which precipitated the incident. Upon receipt of her traffic citation, Chebib pled not guilty and demanded a trial, following which the court, sitting without a jury, found her guilty. She now appeals and complains the court denied her a jury trial and argues the court erred in finding her -3- guilty because the state failed to establish that she committed the offense of Following Too Closely beyond a reasonable doubt. The issues then before us, are whether Chebib has a right to a jury trial in this case, and whether the city proved her guilt beyond a reasonable doubt. Chebib complains that she requested a jury trial on the matter, but the court refused to accommodate her request. We recognize that R.C. 2945.17 provides: At any trial, in any court, for the violation of any statute in this state, or of any ordinance of any municipal corporation, except in cases in which the penalty involved does not exceed a fine of one hundred dollars, the accused has a right to be tried by jury. (Emphasis added). Cleveland Municipal Code Section 403.99 provides that a first offense violation of any provision of the traffic code is considered a minor misdemeanor and provides for a maximum fine of $100. In this case, because the penalty resulting from Chebib's offense could not exceed a fine of one hundred dollars, she had no right to a trial by jury. Accordingly, the court did not err in this regard. More significantly, however, Cleveland Municipal Code Section 431.09(a), which sets forth the offense of Following Too Closely, provides in relevant part: The operator of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle, and the traffic upon and condition of the street. Thus, in this case, the city assumed the burden to prove beyond a reasonable doubt that Chebib followed another vehicle more -4- closely than is reasonable and prudent, considering the speed of the vehicles, the traffic, and the street conditions. In State v. Gonzalez (1987), 43 Ohio App.3d 59, where the court considered the constitutionality of R.C. 4511.34, Following Too Closely, it stated at 61-62: * * * reasonable and prudent is not a hard a fast standard. * * * The purpose of the stated portion of the statue is to prevent rear-end collisions. Whether a person could stop in time to avoid a rear-end collision is thus the important issue. * * * In assessing whether one can stop in time, the factors to be considered are the person's speed, the distance at which he followed, and his reaction time. Applying that analysis to this case, there is no dispute that road conditions at the time of the incident included dry pavement, clear visibility, and moderate traffic in a business area, as reflected on the citation issued to Chebib in this case. Chebib's affidavit contains her estimate of her speed at that time to be ten to fifteen miles per hour and that the sudden, unexpected, and unsignaled left turn of the brown Buick in front of her caused her to apply her brakes suddenly and swerve to the right to avoid a rear end collision. Chebib further estimated the distance between her vehicle and the brown Buick to be twenty-five feet. No other testimony in the record before us controverts this evidence. We can further infer Chebib's reaction time to be adequate because she avoided collision with the Buick. Notably here, Chebib did not receive a citation for changing lanes without safety. -5- Hence, our review of the record in this case indicates the city failed to prove beyond a reasonable doubt that Chebib followed the Buick more closely than reasonable and prudent, having due regard to the speed, traffic, and conditions at the time. Therefore the court erred in finding her guilty of the offense of Following Too Closely. Accordingly, this assignment of error is well taken, and we reverse the judgment of conviction and discharge the appellant. Judgment reversed. Appellant discharged. -6- Judgment reversed and appellant discharged. It is, therefore, considered that appellant recover of appellee costs herein. It is ordered that a special mandate be sent to said 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, P.J., JAMES D. SWEENEY, J., CONCUR JUDGE TERRENCE O'DONNELL 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 .