[Cite as State v. Cabrera , 2024 - Ohio - 885.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY

STATE OF OHIO, CASE NO. 8 - 23 - 12 PLAINTIFF - APPELLEE,
v. JOSE R. PUJOL CABRERA, O P I N I O N DEFENDANT - APPELLANT.
Appeal from The Bellefontaine Municipal Court

Trial Court No. 22TRD03206 Judgment Affirmed Date of Decision: March 11, 2024

APPEARANCES: William T. C

ramer for Appellant Jim R. Gudgel for AppelleeCase No. 8

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MILLER , J. {¶1} Defendant

- Appellant, Jose R. Pujol Cabrera (“ Cabrera ”), appeals the May 15 , 2023 judgment issued by the Bellefontaine Municipal Court after a jury found him guilty of vehicular manslaughter. For the reasons that follow, we affirm. I. FACTS AND PROCEDURAL HISTORY {¶2} At approximately 12:30 p.m. on April 29, 2022, Cabrera was driving a 53

- foot

- long commercial semi

- tractor with an attached trailer westbound on State Route 47. Cabrera’s girlfriend, Lianet Trujillo (“Trujillo”) , wa s a passenger in the semi

- truck, along with their dog that rode in the back of the cabin. {¶3} Cabrera approached the intersection with State Route 235 in Logan C ounty. Vehicles traveling westbound on State Route 47 (like Cabrera’s semi

truck ) are required to stop at that intersection; there is a flashing red stop light overhead, stop signs on both sides of the road, a stop line on the roadway prior to entering the intersection , signs that say “CROSS TRAFFIC DOES NOT STOP,” and yellow triangular signs about 800 feet away when approaching the intersection that indicate there is a stop sign ahead. {¶4} Vehicles traveling northbound or southbound on State Route 235 are only faced with a flashing yellow caution light at that intersection
. At the time Cabrera approached the intersection, Mary Elizabeth Pasquale

- Berenics (“Pasquale

Berenics”) was driving a four

- door Alfa Romero sport
- utility

- vehicle northboundCase No. 8

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on State Route 235 . Her SUV collided with Cabrera’s semi

- truck . Pasquale

Berenics was taken to a hospital, where she succumbed to her injuries and died. Separate compl aints charged Cabrera with (1) v ehicular m anslaughter, in violation of R.C. 2903.06(A)(4), a seco nd

- degree misdemeanor; and (2) failure to yield the
r ight of way at a s top s ign , in violation of R.C. 4511.43(A) , a minor misdemeanor. {¶5} On May 11 and 12, 2023, the case went to trial before a jury
. 1 There were no eyewitnesses to the crash other than the occupants of the semi

- truck, Cabrera and Trujillo. Photos of the crash scene admitted into evidence during the trial showed the vehicles had come to a rest almost directly west of the intersection and a considerable distance away

— approximately fifty feet, based on the length of Cabrera’s vehicle. T he tractor portion of Cabrera’s vehicle had disconnected from the trailer portion, with both parts rolled onto their side and having sustained considerable damage. T he entire front half of Pasquale

- Berenics’ vehicle was crushed and completely mangled. Additionally, t he photos show ed skid marks starting just after the stop bar on State Rou te 47 that continue through and beyond the intersection and follow in the direction of the overturned semi

- truck
. And, there were gouge marks in what would have been Pasquale

- Berenics’ lane of travel. T he photos also showed the speedometer in Pasquale

- Berenics’ vehicle was pegged at

1 The minor misdemeanor offense was tried to the court.Case No. 8

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approximately 60 miles

- per - hour and the speedometer in Cabrera’s vehicle was pegged at approximately 40 miles

- per - hour
. {¶6} Coleton Piatt, a Logan County deputy sheriff, was dispatched to the scene and testified at trial. He is a certified traffic accident reconstructionist. The trial court allowed Deputy Piatt to describe what he saw during his investigation. However, he had not been disclosed as an expert and was not allowed to provide expert testimony or expert opinions. {¶7} Deputy Piatt saw gouging, yaw marks, and skidding through the intersection , and a utility pole and a metal pole had been knocked down. According to Deputy Piatt, Pasquale

- Berenics’ vehicle struck the “front driver portion” of the semi

- truck. 2 (May 11, 2023 Tr. at 108). Deputy Piatt testified that Pasquale

Berenics had been in her lane of travel when the crash occurred, Cabrera’s semi

truck proceeded into Pasquale

- Berenics’ lane of travel, Pasquale

- Berenics’ vehicle hit the semi

- truck (and became stuck to it) and, after c ontact was made, the vehicles proceeded further westbound through the intersection. {¶8} Upon questioning about the pegged speedometers, Deputy Piatt testified : “when a vehicle encounters an immediate power failure, on an analog gauge the gauge will not have the power to cycle back down to zero, so it is an indication that at the point of impact

-- time of the impact [Pasquale

- Berenics’

2 Cabrera testified Pasquale

- Berenics’ vehicle struck his vehicle at the front part of the trailer on the driver’s side. (May 11, 2023 Tr. at 158

- 59).Case No. 8

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vehicle] was traveling approximately 60 miles per hour.” ( Id. at 74). Additionally, Cabrera’s semi

- truck’s “speedometer pegged, which occurs with immediate power failure, ” and Pasquale

- Berenics’ vehicle hit the semi

- truck where its battery boxes
were located. ( Id. at 76

- 77). {¶9} T he event data recorder recovered from Pasquale

- Berenics’ vehicle indicated the brake s had not been engaged before the crash and i t was traveling at approximately 60 miles

- per - hour (thus matching the pegged speedometer)
. ( See Defendant’s Exhibit B

- 1). For various reasons, Deputy Piatt was unsuccessful in his attempts to obtain information from the semi

- truck’s data record er and camera system s. {¶10} Deputy Piatt testified the speed limit was 55 miles

- per - hour on both State Route 235 and State Route 47
. He explained State Route 235 approaching this intersection is “completely flat” and “[y]ou can see in every direction.” (May 11, 2023 Tr. at 52). At the time of the crash, it was a clear, warm, sunny day, with no precipitation or fog. When asked if he would have cited Pasquale

- Berenics for traveling five miles

- per - hour over the speed limit , Deputy Piatt said “[a]bsolutely not . ” ( Id. at 116). {¶11} Miriam Reames, a Logan County Sheriff’s Office patrol deputy, had also been dispatched to the scene. Both Deputy Reames and Deputy Piatt testified they had traveled through the intersection at issue many times over the course of their lives (sometimes several times in a single day as a deputy ) , and they never hadCase No. 8

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issues seeing v ehicles from cross traffic while traveling through the intersection. Both deputies described it is a s flat intersection, visible from all sides with a grassy surrounding area. Importantly, Deputy Piatt explained: “When you come to a complete stop, you can look to the south for several miles.” ( Id. at 53 ) {¶12} Trujillo also testified at the trial. She said she loves Cabrera, they had lived together for seven years, they shared expenses, and they had taken a training course together in Florida to obtain their commercial driver’s licenses in order to become truck drivers . They traveled together and divided their duties while driving
. According to Trujill o, Cabrera had stopped at the intersection. S he then quickly went to the back of the trailer to check on their dog and, when she went to go back up front, Cabrera had already started driving and then she felt herself falling and spinning. {¶13} Cabrera testified through an interpreter at the trial. According to Cabrera, he came to a complete stop at the intersection. H e looked to the left as far as he could see, did not see anything, looked to the right and saw nothing, looked again to the left, “and that’s when I continue to pass through the intersection.” ( Id. at 156). He did not see Pasquale

- Berenics’ vehicle before it struck his vehicle. Cabrera testified Trujillo was on her way to sitting back down at the time of the collision. On cross

- examination, he testified that the signs that actual ly say “CROSS TRAFFIC DOES NOT STOP” sa y , “vehicles are passing.” ( Id. at 169

- 70 ).Case No. 8

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{¶14} At both the conclusion of the State’s evidence and again at the conclusion of his own case, Cabrera moved for an acquittal, pursuant to Crim.R. 29. The trial court denied those motions and allowed the case to go to the jury
. Among other things, t he trial court’s jury instructions defined right

- of

- way and included the following: A driver with the right

- of

- way has the right to operate her vehicle uninterrupted in a lawful manner and other drivers must yield to her; however, a driver can forfeit the right

- of

- way if she unlawfully operates her vehicle at an unreasonable speed or at a greater speed than will permit her to stop within the assured clear distance ahead. Operation of a vehicle in excess of posted speed limit is presumptively but not conclusively unreasonable. For purposes of determining whether a driver has forfeited her preferential right

- of

- way, you must consider whether her speed was reasonable given all of the surrounding circumstances, including the posted speed limit, the permanent physical features of the intersection, the hour of day or night, the extent of other traffic, the width and nature of the roadway, and any other circumstances existing at that time. (May 1 2 , 2023 Tr. at 227

- 28). No party objected to the jury instructions. {¶15} The jury found Cabrera guilty of vehicular manslaughter, and the trial court found C abrera guilty of failure to yield the right of way at a stop sign. ( See May 15, 2023 Journal Entry). The trial court sentenced Cabrera to a $750 fine, suspension of his driver’s license for two years, and 90 day s in jail for the vehicular
m anslaughter count. The trial court imposed no fin e, but assessed costs, for the failure to y ield the r ight of w ay at a s top s ign count. This appeal followed. II. ASSIGNMENTS OF ERROR {¶16} Cabrera raises two assignments of error for our review :Case No. 8

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- First Assignment of Error Appellant’s due process rights were violated by a conviction that was not supported by sufficient evidence .

Second Assignment of Error The weight of the evidence does not support the findings of guilt . III. DISCUSSION A. First Assignment of Error {¶17} Both parties indicate the main issue in this appeal is whether the evidence supports a finding that Cabrera failed to stop his vehicle before entering the intersection. In the first assignment of error, Cabrera contends the evidence to convict him of a stop

- sign violation was insufficient because the State did not present expert testimony explaining “the import of the evidence collected at the scene of the accident.” (Appellant’s Brief at 8). Additionally, a ccording to Cabrera, “[a]bsent expert testimony, or indeed any evidence whatsoever, relating to the acceleration capability of Cabrera’s vehicle, the jury could not possibly have found that Cabrera failed to stop.” ( Id. at 10). However, as discussed below, we need not address whether Cabrera failed to stop his vehicle bef ore entering the intersection to resolve this appeal.

1. Standard of Review {¶18} “A motion for acquittal under Crim.R. 29(A) is governed by the same standard as the one for determining whether a verdict is supported by sufficientCase No. 8

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evidence.” State v. Tenace , 109 Ohio St.3d 255, 2006

- Ohio

- 2417, ¶ 37, citing State
v. Carter , 72 Ohio St.3d 545, 553, 651 N.E.2d 965 (1995) and State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). A sufficiency challenge disputes whether a party met its burden of production at trial. State v. Messenger , 171 Ohio St.3d 227, 2022

- Ohio

- 4562, ¶ 26. “In reviewing a record for sufficiency, ‘[t]he 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.’” Tenace at ¶ 37, quoting State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. Thus, “[i]n assessing the sufficiency of the evidence, we do not resolve evidentiary conflicts or assess the credibility of witnesses.” State v. Jackson , 3d Dist. Allen No. 1

- 22

- 2 7, 2023

- Ohio

- 2193, ¶ 26; see also Jenks at 279.

2. Applicable Law {¶19} The vehicular manslaughter statute states, in relevant part: “No person, while operating or participating in the operation of a motor vehicle, * * * shall cause the death of another * * * in any of the following ways: * * * [a]s the proximate result of committing a violation of any provision of any s ection contained in Title XLV of the Revised Code that is a minor misdemeanor * * *.” R.C. 2903.06(A)(4). Thus, violating a provision of any section contained in Title XLV of the Revised Code that is a minor misdemeanor is a predicate offense to, and anCase No. 8

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element of, vehicular manslaughter
. State v. Six , 3d Dist. Marion No. 9

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- 14, 2023

- Ohio

- 4361, ¶ 8. {¶20} Here, t he charged minor misdemeanor traffic offense was failure to y ield the r ight of w ay at a s top s ign, in violation of R.C. 4511.43(A)
. See Six at ¶ 9 (generally, violating R.C. 4511.43(A) is a minor misdemeanor); R.C. 4511.43(C). That statute provides, in part: “[E] very driver of a vehicle or trackless trolley approaching a stop sign shall stop at a clearly marked stop line * * * . After having stopped, the driver shall yield the right

- of

- way to any vehicle in the intersection or approaching on another roadway so closely as to constitute an immediate hazard during the time the driver is moving across or within the intersection or j unction of roadways. R.C. 4511.43(A). In this context, “right

- of

- way” means the right of a vehicle “to proceed uninterruptedly in a lawful manner in the direction in which it” is moving, in preference to another vehicle approaching its path from a different direction. R.C. 4511.01(UU) (1) ; see also Six at ¶ 9. The duty to stop and yield the right

- of

- way “is not abrogated by the presence of a flashing yellow light directed towards oncoming traffic.” Espenschied v. Dougherty , 5th Dist. Tuscarawas No. 88AP020014, 1988 WL 83509, * 1 (Aug. 2, 1988). “Drivers approaching the yellow light may presume that the driver stopped at the stop sign will yield the right

- of

- way.” Id. {¶21} “Accordingly, a driver with the right of way has an absolute right to proceed uninterruptedly in a lawful manner, and other drivers must yield to him.” In re Neill , 3d Dist. Logan Nos. 8

- 04

- 08 and 8

- 04

- 09, 2005

- Ohio

- 1696, ¶ 10.Case No. 8

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“ Conversely, the driver with the right of way forfeits this preferential status over other drivers if he or she fails to proceed in a lawful manner. ” Id
. “ A driver proceeds in a lawful manner by complying with Ohio traffic laws. ” Six , at ¶ 10. However, “evidence of speed in excess of a posted speed limit alone is not conclusive that a vehicle is proceeding unlawfully and has forfeited its right of way.” (E mphasis sic.) In re Neill at ¶ 13. When a defendant has “initially rebutted the presumption that an opposing vehicle was proceeding lawfully because it was traveling in excess of a posted speed limit, the trial court must further determine whether the speed of the opposing vehicle was ‘re asonable given the surrounding conditions.’” Id. , quoting City of Fremont v. Tilson , 6th Dist. Sandusky No. S

- 92

- 95, 1993 WL 306564, *3 (June 30, 1993). One reason for this further determination was explained during a vehicular homicide case : “a driver s topped at a stop sign who sees a car approaching ” should not “ deliberately drive into imminent danger of a collision, upon an assumption that the driver who initially has the right

- of

- way has lost the right

- of

- way because of his excessive speed.” State v. Dailey , 5th Dist. Morrow No. 2006

- CA

- 0012, 2007

- Ohio

- 2544 , ¶ 11 (affirming jury’s verdict finding appellant guilty of vehicular homicide despite evidence decedent had been traveling above the speed limit ).

3. Analysis {¶22} Even assuming Cabrera properly stopped at the intersection, he violated the second requirement in R.C. 4511.43(A): “ After having stopped, theCase No. 8

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driver shall yield the right

- of

- way to any vehicle * * * approaching on another roadway so closely as to constitute an immediate hazard during the time the driver is moving across or within the intersection or junction of roadways.” R.C. 4511.43(A). A s the State argues, evidence presented at trial supports finding that Cabrera drove into the intersection wh ile Pasquale

- Berenics’ vehicle had the right

of

- way and constituted an “immediate hazard” during the time his semi

- truck moved across the intersection
. Despite C abrera’s testimony that he stopped, looked both ways, and then continued to pass through the intersection, other evidence (including the testimony of both deputies and the photo graph s) shows he then should have seen Pasquale

- Berenics’ vehicle and not entered the intersection, in accordance with R.C. 4511.43(A). {¶23} In his brief, Cabrera points out the speed limit on both roads is 55 miles

- per - hour and “[t]he speedometer of the Alfa Romeo was stuck at 60 mph, indicating that it was travelling at that speed when it struck the truck.” (Appellant’s Brief at 3). Yet, other evidence presented by the State demonstrated Pasquale

Berenics was properly traveling in her lane
. Further, there was testimony the driving conditions were very good

— it was a clear, warm, sunny day, with no precipitation or fog; the road was completely flat and with an unobstructed view allowing drivers to see in every direction; and Deputy Piatt would not have cited Pasquale

- Berenics for traveling five miles

- per - hour over the speed limit.Case No. 8

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{¶24} Thus, even if Cabrera stopped at the stop sign and Pasquale

- Berenics was operating her vehicle above the posted speed limit, the finder of fact was free to determine she was not proceeding unlawfully so as to forfeit her right

- of

- way. This was an issue on which the jury was specifically instructed. In other words, t he evidence supports the jury’s implicit finding that the speed of Pasquale

- Berenics’ vehicle was “reasonable given the surrounding conditions.” In re Neill , 2005

- Ohio

1696 , at ¶ 13
. {¶25} This same conclusion was reached by the Tenth District Court of Appeals , which affirmed a conviction for violating R.C. 4511.43 even t hough appellant had stopped at the stop sign and the victim admitted he was speeding. State v. Cline , 10th Dist. Franklin No. 14AP

- 610, 2015

- Ohio

- 4036, ¶ 1

- 2 . The court disagreed with appellant that the victim had forfeited the right

- of

- way by traveling 10 miles

- per - hour over the speed limit in the dark through an unlit intersection. Id. at ¶ 6. A police officer who had been at the scene testified “she did not believe that [victim’s] traveling about 70 m.p.h. in a 60 m.p.h. zone at 5 o’clock in the morning with very little traffic was unsafe for the conditions.” Id. at ¶ 20 . Thus, the victim’s speed was reasonable given the surrounding circumstances and the verdict was not against the manifest weight of the evidence. Id. at ¶ 23 ; see also City of Upper Arlington v. Streets , 10th Dist. Franklin No. 94APC04

- 534, 1994 WL 714609, * 3 (Dec. 20, 1994) (finding appellant guilty of failure to yield the right

- of

- way at a stop sign was not against the manifest weight of the evidence; the trial court could findCase No. 8

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-

victim’s speed was reasonable under the conditions , even though victim was exceeding the speed limit by five miles per hour , faced a yellow flashing light at the intersection, and was potentially driving on wet pavement )
. Therefore, we need not, and do not, decide whether the evidence adequately support ed that Cabrera failed to stop his vehicle before entering the intersection. {¶26} In support of his argument, Cabrera relies on our prior decision in State v. Jordan , 3d Dist. Seneca Nos. 13

- 01

- 25, 13

- 01

- 26, and 13

- 01

- 27, 2002 WL 479160 (Mar. 29, 2002), to support his claim that the State failed to present evidence that he failed to stop. I n Jordan , we determined the jury would have to impermissibly infer that Jordan’s vehicle was traveling at a high rate of speed and then stack the additional inference that his speed prevented him from stopping before proceeding into the intersection
. See id. at *2. The instant case differs from Jordan because , here , there was evidence of the relative speed of the vehicles based on where the speedometers were stuck after the accident. Thus, t here is not the same issue of the jury impermissibly stacking inferences. {¶27} Additionally, evidence at Cabrera’s trial showed the collision took place only a few feet away from the stop line where Cabrera was required to stop
. R.C. 4511.43(A). It seemingly would defy common sense and the knowledge of any experienced driver to believe a 53

- foot

- long semi

- truck with a trailer could accelerate to 40 miles

- per - hour within a few feet from a dead stop. We find this to be within the understanding of jurors , who may rely on their common sense andCase No. 8

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experience in making their findings. See State v. Allen , 73 Ohio St.3d 626, 636, 653 N.E.2d 675 (1995) (“[t]he jurors were free to rely on their common sense and experience ,” thus making expert testimony on a particular issue unnecessary ); Standard Oil Co. v. Van Etten , 107 U.S. 325, 334, 1 S.Ct. 178, 27 L.Ed. 319 (1882) (“[t]he very spirit of trial by jury is that the experience, practical knowledge of affairs, and common sense of jurors , may be appealed to, to mediate the inconsistencies of the evidence, and reconcile the extravagances of opposing theories of the parties”) ; Ballew v. Georgia , 435 U.S. 223, 229, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978) (the purpose of a jury trial is attained “by the participation of the community in determinations of guilt and by the application of the common sense of laymen who, as jurors, consider the case”)
. {¶28} Regardless , the evidence support ed a finding that Cabrera did not yield the right

- of

- way to Pasquale

- Berenics’ vehicle, in violation of R.C. 4511.43(A). A fter viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have found the essential elements of v ehicular m anslaughter in violation of R.C. 2903.06(A)(4), including the predicate offense of f ailure to y ield the r ight of w ay at a s top s ign in violation of 4511.43(A), proven beyond a reasonable doubt
. Cabrera ’s f irst a ssignment of e rror is overruled
. B. Second Assignment of Error {¶29} In the second assignment of error, Cabrera a rgues the jury clearly lost its way in finding him guilty of vehicular manslaughter , and weight of the evidenceCase No. 8

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did not support a such a finding, based on the evidence presented at trial. We disagree. 1. Standard of Review {¶30} The “manifest

- weight

- of

- the

- evidence standard of review applies to the state’s burden of persuasion.” Messenger , 2022

- Ohio

- 4562, at ¶ 26. “To evaluate a claim that a jury verdict is against the manifest weight of the evidence , we review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that we must reverse t he conviction and order a new trial.” State v. Wilks , 154 Ohio St.3d 359, 2018

- Ohio

- 1562, ¶ 168, citing Thompkins , 78 Ohio St.3d at 387
. Yet, “[o]nly in exceptional cases, where the evidence ‘weighs heavily against the conviction,’ should an appellate court overturn the trial court’s judgment.” State v. Haller , 3d Dist. Allen No. 1

- 11

- 34, 2012

- Ohio

- 5233, ¶ 9, quoting State v. Hunter , 131 Ohio St.3d 67, 2011

- Ohio

- 6524, ¶ 119.

2. Analysis {¶31} Cabrera’s convictions for v ehicular m anslaughter and f ailure to y ield the r ight of w ay at a s top s ign were not against the manifest weight of the evidence
. Again, Cabrera’s argument focuses on the first part of R.C. 4511.43(A) regarding a failure to stop. Yet, in line with our analysis in the first assignment of error, the evidence supports that Cabrera violated R.C. 4511.43(A)

— even assuming heCase No. 8

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properly stopped at the intersection. T he fact finder “could have found appellant’s testimony surrounding the facts of the collision not credible,” including “that [he] looked and saw no oncoming traffic.” Cline , 2015

- Ohio

- 4036, at ¶ 16. Plus , in weighing credibility, the fact finder could consider how both Cabrera and Trujillo had a clear interest in Cabrera being found not guilty. Moreover, Cabrera’s testimony indicate d he believed the intersection was a four

- way stop and he could not see what traffic signal Pasquale

- Berenics would have faced while she drove northbound on State Route 235 . ( May 11, 2023 Tr. at 156

- 57). And, his testimony
on cross - examination showed he misunderstood or could not read the sign that said “CROSS TRAFFIC DOES NOT STOP.” ( Id. at 16 9

- 70 ). {¶32} Having reviewed the record as a whole, we do not find that the trier of fact clearly lost its way or that a manifest miscarriage of justice occurred. Cline , 2015

- Ohio

- 4036, at ¶ 2 3 ( it was not against the manifest weight of the evidence to find the speed of the victim’s vehicle was reasonable given the surrounding circumstances ); City of Upper Arlington , 1994 WL 714609, at *1 (judgment finding appellant guilty of failure to yield the right

- of

- way at a stop sign was not against the manifest weight of the evidence)
. Cabrera ’s second a ssignment of e rror is overruled
.Case No. 8

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- 18

-

IV. CONCLUSION {¶33} For the foregoing reasons, Cabrera ’s assignment s of error are overruled. Having found no error prejudicial to the appellant in the particulars assigned and argued, we affirm the judgment of the Bellefontaine Municipal Court
. Judgment Affirmed

. WALDICK and ZIMMERMAN, J.J., concur. /hls