[Cite as State v. Ross , 2013-Ohio-1488.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )

STATE OF OHIO Appellee

v. GARY A. ROSS Appellant C.A. No. 12CA0008

APPEAL FROM JUDGMENT ENTERED IN THE WAYNE COUNTY MUNICIPAL COURT COUNTY OF WAYNE, OHIO CASE No. TRC-11-05-03983

DECISION AND JOURNAL ENTRY Dated: April 15, 2013

BELFANCE, Presiding Judge. {¶1} Defendant-Appellant Gary Ross appeals from the judgment of the Wayne County Municipal Court. For the reasons set forth below, we reverse.

I. {¶2} Mr. Ross was stopped by the State Hi ghway Patrol on May 29, 2011, after Trooper Brandon Richardson believe d he observed Mr. Ross commit a marked lanes violation. Ultimately, Mr. Ross was cited for driving under the influe nce in violation of R.C. 4511.19(A)(1)(a) and 4511.19(A)(2), crossing marked-lanes in violation of R.C. 4511.33, and failing to wear his seatbelt in violation of R.C. 4513.263(B)(1). {¶3} The driving-under-the-influence charges were dismissed, and the matter proceeded to a bench trial on the remaining charges. The trial court found Mr. Ross guilty of a

marked-lanes violation and a s eatbelt violation, fined him a tota l of $80, and ordered him to pay2

court costs. Mr. Ross filed a motion for a dela yed appeal, which this Court granted. He now raises a single assignment of error for our review.

II.

ASSIGNMENT OF ERROR

DEFENDANT-APPELLANT’S CONVICTION FOR A MARKED LANES VIOLATION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. {¶4} Mr. Ross asserts in his sole assignment of error that his conviction for a markedlanes violation is against the manifest weight of the eviden ce because (1) Trooper Richardson’s testimony was not credible; (2) Mr. Ross’ testimony was credible; and (3) the DVD of the traffic stop supported Mr. Ross’ version of events. {¶5} Nonetheless, a review of the weight of the evidence necessarily involves an evaluation of the sufficiency of the evidence in that, in order for this Court to weigh the evidence, there must be evidence to weigh. See State v. Recklaw , 9th Dist. No. 24078, 2008- Ohio-5444, ¶ 14; State v. Anderson, 9th Dist. No. 26006, 2012-Ohio-3663, ¶ 5; State v. Eikleberry, 184 Ohio App.3d 219, 2009-Ohio-3648, ¶ 15 (9th Dist.); Estate of Harrold v. Collier, 9th Dist. Nos. 07CA0074, 08CA0024, 2009-Ohio-2782, ¶ 15-16; see also State v. Frum, 9th Dist. No. 12CA0039, 2013-Ohio-1096, ¶ 4. As it is clear from the face of the record before

us that Mr. Ross’ conviction is based upon insufficient evidence, we conclude we are obligated

to reverse it. We conclude that there was insuffici ent evidence to establish that, in moving either between lanes of traffic or completely out of a lane of traffic, Mr. Ross failed to ascertain the safety of such movement prio r to making the movement. See R.C. 4511.33(A)(1). Accordingly, Mr. Ross’ conviction is based upon insufficient evidence.3 {¶6} In determining whether the evidence presented was sufficient to sustain a conviction, this Court reviews the evidence in a light most favorable to the prosecution. State v. Jenks , 61 Ohio St.3d 259, 274 (1991). Furthermore, [a]n appellate court’s functi on when reviewing the sufficiency of the evidence to support a criminal conviction is to exa mine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt. The 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. Id . at paragraph two of the syllabus. {¶7} R.C. 4511.33(A)(1) provides that [w]henever any roadway has been divided into two or more clearly marked lanes for traffic, or wherever within municipal co rporations traffic is lawfully moving in two or more substantially continuous lin es in the same direction, the following rules apply: (1) A vehicle or trackless trolley shall be driven, as nearly as is practicable, entirely within a single lane or line of traffic and shall not be moved from such lane or line until the driver has first ascertained that such movement can be made with safety. {¶8} In State v. Barner, 9th Dist. No. 04CA0004-M, 2004-Ohio-5950, this Court determined that, “in order to sustain a convicti on pursuant to R.C. 4511.33(A), the State must put forth evidence that the driver of a vehicle moving either between lanes of traffic or completely

out of a lane of traffic failed to ascertain the safety of such movement prior to making the

movement.” Id. at ¶ 14. Other appellate districts are in accord with our analysis in Barner. See State v. Hernandez , 10th Dist. No. 09AP-765, 2010-Ohio-2066, ¶ 9 (listing cases from the Tenth and Eighth Districts with similar holdings). Further, the Ohio Supreme Court has not addressed the elements of the statute when determining the sufficiency of the evidence. See Hernandez at ¶

15.4 {¶9} In 2008, the Ohio Supreme Court decided State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539. In Mays , the Supreme Court of Ohio examined whether it was constitutional for an officer to stop a motorist when an officer observed “a motorist cross a right white edge line [] without any further evidence of erratic dr iving or that the crossing was done in an unsafe manner * * * [.]” (Internal quot ations and cita tions omitted.) Id. at ¶ 1. In determining that the stop was constitutional, see id. , the Court discussed R.C. 4511.33. See id. at ¶ 15-21. The Supreme Court stated th at “R.C. 4511.33 requires a driver to drive a vehicle entirely within a single lane of traffic. When an officer observes a vehicle drifting back-and-forth across an edge line, the officer has a reasonable and articulable suspicion that the driver has violated R.C.

4511.33.” Id. at ¶ 16. While Barner was decided prior to the Supreme Court’s decision in Mays , we do not believe that Mays alters our holding in Barner , given Mays’ focus on the constitutionality of the stop rather than analyzing the sufficiency of the evidence under R.C. 4511.33(A). See Hernandez , 2010-Ohio-2066, at ¶ 15. {¶10} In Mays, “[t]he court noted that R.C. 4511.33 does allow for drivers to cross a

lane line in certain circumstances without violating the statute. The court, however, construed these circumstances as ‘a possibl e defense’ to the charge and, therefore, irrelevant to the

reasonable and articulable suspicion analysis.” Hernandez at ¶ 12, quoting Mays at ¶ 17. While it is possible to conclude that the Supreme Court intended “defense” to mean an affirmative defense requiring the defendant to carry the burde n of proof on the issue, we do not think that such an interpretation is warranted. See Hernandez at ¶ 13-18. But see State v. Rochowiak , 2d Dist. No. 2008 CA 12, 2009-Ohio-2550, ¶ 51-56 (concl uding that the issue of whether it is impracticable for a driver to stay in a marked lane and whether the driver first ascertained that

movement from his lane could be made safely was an affirmative defense to a violation of R.C.5

4511.33). We agree with the reasoni ng of the Tenth District in Hernandez and conclude that our

decision in Barner is still valid. Notably, Mays was not examining the sufficiency or weight of the evidence, but was instead examining whether reasonable suspicion warranting a traffic stop

had been established. See Mays at ¶ 1. Thus, Mays did not examine the elements necessary to commit a violation of R.C. 4511.33. Further, Mays does not refer to the language at issue in the statute as an affirmative defense; instead referring to it as a defense. See Mays at ¶ 17. As noted by our colleagues in the Tenth District, defense and affirmative defensive are not coextensive. See Hernandez at ¶ 14, 16. A defendant could assert that he or she did not vi olate the statute at all, which would be a defense, whereas an affi rmative defense generally involves a justification or excuse for violating the statute. See R.C. 2901.05(D)(1) (defining an affirmative defense as “[a] defense involving an excuse or justificati on peculiarly within the knowledge of the accused, on which the accused can fairly be required to adduce supporting evidence[]”). Moreover, “[t]he impracticability and safety issues in the statute are not necessarily within the peculiar knowledge of a driver[] and, thus, outside the defi nition of an affirmative defense. Hernandez at ¶ 17. {¶11} Accordingly, we continue to hold that, in order to establish a violation of R.C. 4511.33, the State must present evidence “that the dr iver of a vehicle moving either between lanes of traffic or completely out of a lane of traffic failed to ascertain the safety of such movement prior to maki ng the movement.” Barner , 2004-Ohio-5950, at ¶ 14. In the instant matter, the State failed to present any evidence of the foregoing. {¶12} Trooper Richardson testified that, on May 29, 2011, at approximately 3:30 a.m., he was working on State Route 57 in Wayne County in a marked vehicle. He stated that he

observed a Chevy pick-up truck pass[] [him] going South, just South of Church Road. As that vehicle passed [him], [he] look[ed] in [his] rearview mirror and it appeared6

that it, [Mr. Ross’] vehicle was driving on the white fog line. So at Church Road [he] turned around in the roadway and caug ht up to the vehicle and the pick-up truck traveled outside of the marked white fog lines, by approximately a couple of feet. And at that point [he] initiated a traffic stop. {¶13} When questioned, Trooper Richardson confir med that he saw the vehicle travel over the fog line with both the front and rear tires on the passenger side. Trooper Richardson offered no testimony evidencing that Mr. Ross failed to ascertain the safety of such movement prior to making the movement. See Barner at ¶ 14. {¶14} Mr. Ross also testified in his defense. He indicated that, on the early morning in question, [he] drove from [his] home in Orrville to Rittman, picked [up a friend], drove him home to Clinton and then [] was proceedin g home. At the time the officer pulled [him] over, [he] was coming southbound on State Route 57. As [he] passed Church Road, the tracks [were] a little bit rough there * * * so [he] was running a little bit to the right but [] was not outside the white line. And as [he] proceeded on further south, [he saw] headlights coming up fast behind [him.] * * * [A]t that time of night [he] was worried about * * * some drunk come flying up behind and hit[ting] [him]. [He] always worr[ies] about other vehicles [because he] drive[s] [a] truck for a living. So [he] moved slightly to the right but [he] was not over the white line. Mr. Ross maintained that he did not cross the white line at any point. {¶15} The DVD of the stop was also made part of the record. It depicts the Trooper’s vehicle driving one direction, Mr . Ross’ vehicle passing the Trooper’s vehicle going the opposite way, and the Trooper’s vehicle crossing railroa d tracks, turning around, and pursuing Mr. Ross’ vehicle at what appears to be a fairly high rate of speed. From the video, due to the time of day, the speed the Trooper’s vehicle was traveling, and the Trooper’s distance from Mr. Ross’ vehicle for the majority of the pursuit, it is not possible to determine with any accuracy whether Mr. Ross’ vehicle crosses the white fog line. In a ddition, the video does demonstrate that, at the time Mr. Ross may have crossed the fog line, no othe r cars were on the road. Thus, even when7

viewing the video in a light most favorable to the State, it does not support the conclusion that Mr. Ross failed to ascertain the safety of leaving the lane prior to doing so. {¶16} The dissent asserts that, because there was some evidence presented that Mr. Ross was tired when he was driving, there was evidence that he failed to ascertain the safety of the

vehicle’s movement out of the la ne. It concludes that any driver who crosses a fog line solely

because he is tired violates R.C. 4511.33. {¶17} We do not agree. While it is possible that driving while tired can lead one to drive in an unsafe manner, it is equally probable that someone who is aware that he or she is tired will be more cautious in order to avoid the possibility of an accident. There was no evidence presented that Mr. Ross was so tired that he was falling asleep at the wheel or any observation by the Trooper that the vehicle appeared to jerk in and out of the lane, as might happen if someone had fallen asleep while driving. In light of all the other evidence, including the video, which does not even suggest that Mr. Ross failed to ascertain the safety of leaving the lane prior to doing so, we conclude that the State was required to inquire further in order to sustain its burden. Accordingly, we are not persuaded by the dissent’s analysis. {¶18} As the State failed to present evidence that Mr. Ross failed to ascertain the safety

of his movement outside of the marked lane prior to making the movement, it failed to present sufficient evidence to support a finding of guilty based upon a violation of R.C. 4511.33. Mr.

Ross’ conviction is reversed.

III. {¶19} In light of the foregoing, we reverse the judgment of the Wayne County Municipal Court, and the matter is remanded for the court to enter a judgment of acquittal on Mr.

Ross’ conviction for a marked-lanes violation.8

Judgment reversed, and cause remanded.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Wayne County Municipal Court, County of Wayne, State of Ohi o, to carry this judgment into execution. A certified copy of this journa l entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this docum ent shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22 (C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellee.

EVE V. BELFANCE FOR THE COURT

CARR, J. CONCURS IN JUDGMENT ONLY. WHITMORE, J. DISSENTING. {¶20} I respectfully dissent. Based upon the reco rd on appeal, I would conclude that Ross’ conviction is not against the manifest weight of the evidence and affirm the judgment of

the trial court.9 {¶21} Initially, I would note that “weight of the evidence and sufficiency of the evidence are clearly different legal concepts.” State v. Thompkins , 78 Ohio St.3d 380, 389 (1997). In constructing his argument on app eal, Ross chose to only present a weight challenge. Because he limited his argument to weight, one could infer that Ross chose to concede the sufficiency of the evidence and focus solely on seeking a reve rsal on the weight of the evidence. See id. at 388, quoting Tibbs v. Florida , 457 U.S. 31, 42-43 (1982) (“A reversal based on the weight of the evidence * ** can occur only after the State bot h has presented sufficient evidence to support conviction and has persuade d the jury to convict.”). Neverthe less, I acknowledge that this Court has overturned a R.C. 4511.33(A) conviction on suffi ciency grounds when presented solely with a manifest weight argument. See State v. Barner , 9th Dist. No. 04CA0004-M, 2004-Ohio-5950. {¶22} Several years after this Court issued Barner , the Supreme Court issued State v. Mays , 119 Ohio St.3d 406, 2008-Ohio-4539. While I agree that Mays concerned the validity of a traffic stop under R.C. 4511.33 rather than the sufficiency of a conviction under the same, Mays’ discussion of the statute is instructive. Specifically, the Court agreed with the Seventh District’s interpretation of R.C. 4511.33 and explained: “The legislature did not intend for a motorist to be punished when road debris or a parked vehicle makes it necessary to travel outside the lane. Nor, we are quite certain, did the legislature intend this st atute to punish motorists for traveling outside their lane to avoid striking a child or animal. We are equally certain the legislature did not intend the statute to give motorists the option of staying within the lane at their choosing. Common sense di ctates that the statute is designed to keep travelers, both in vehicles and pede strians, safe. The logical conclusion is that the legislature intended only special ci rcumstances to be valid reasons to leave a lane, not mere ina ttentiveness or carelessness . To believe that the statute was intended to allow motorists the option of when they will or will not abide by the lane requirement is simply not reasonable.”10

(Emphasis added.) Mays at ¶ 19, quoting State v. Hodge , 147 Ohio App.3d 550, 2002-Ohio3053, ¶ 43 (7th Dist.). Having the foregoing explan ation in mind, I would conc lude that this case is distinguishable from Barner

. {¶23} In Barner , the officer simply testified that he witnessed Barner’s truck cross the fog line three times and that he was the only motorist on the highway behind Barner when the

lane violations occurred. Barner at ¶ 10. Barner then testified and provided an explanation for his behavior. He stated that, while he did not believe he ever cro ssed the fog line, he did drift to the right at several points during his drive to a void potholes that could da mage his truck and to

determine whether the officer’s cruiser was still behind him. Id. at ¶ 12-13. There was no testimony about the officer having spoken with Barner at the scene. {¶24} Here, Trooper Richardson testified that he observed Ross commit lane violations when Ross’ truck crossed over the fog line by severa l feet. He then executed a stop and spoke to Ross. Trooper Richardson testified that when he informed Ross that he had stopped him for a

marked lane violation Ross “tol d me he was tired and he was leaving a friend’s house and just trying to get home.” When Ross testified, he of fered a different explanation for his behavior. Ross stated that he was traveling on the right side of his lane to begin with because “[a]s I passed Church Road, the tracks are a little bit rough there.” According to Ross, he then moved to the right again when he saw headlights coming up behind him because “at that time of night I was worried about * * * some drunk * * * flying up be hind and hit[ting] me.” Ross stated that he moved to the right “so that if [the other driver ] tried to pass me as fast as he was coming up on

me he would have more room to clear me.” {¶25} Ross’ statement to Trooper Richardson at th e scene was distinctly different than his testimony at trial. The only explanation Ro ss gave Trooper Richardson for his behavior was11

that he was tired. I would equate tiredness to “mere inattentiveness or carelessness.” Mays , 119 Ohio St.3d 406, 2008-Ohio-4539, at ¶ 19, quoting Hodge , 147 Ohio App.3d 550, 2002-Ohio3053, at ¶ 43. Tiredness is not a “s pecial circumstance[]” that would give rise to a “valid reason[] to leave a lane.” Mays at ¶ 19, quoting Hodge at ¶ 43. Therefore, a driver who crosses a fog line solely because he is tired violates R.C. 4511.33. {¶26} Ross did not tell Trooper Richardson that he drifted to the right because the road was rough or because he was concerned about a po ssible drunk driver. He only said he was tired and “just trying to get home.” I do not be lieve it was Trooper Richar dson’s responsibility to press Ross for additional information once Ross ga ve him the foregoing explanation. Moreover, given Ross’ explanation to Trooper Richardson, I do not believe the State was required to ask any specific questions about whether Ross ascertained the safety of his tr uck’s movement before making the movement. See R.C. 4511.33(A)(1). If Ross’ move ment was due to his tiredness, then it was wholly divorced from any purposeful movement or thought process on his part. It was simply due to “inattentiveness or carelessness.” Mays at ¶ 19, quoting Hodge at ¶ 43. I do not agree that the State failed to prove an elemen t of its case. The State presented evidence that Ross crossed the fog line on the road and only did so because he was tired. Thus, the State presented sufficient evidence that Ross violat ed R.C. 4511.33(A)(1). The issue on appeal is strictly one of weight, not of sufficiency. {¶27} The trial court here was presented with competing versions of the events. On the one hand, the court had Trooper Ri chardson’s testimony that (1) he observed Ross commit lane violations and (2) Ross’ explanati on for his behavior was that he wa s tired and “just trying to get home.” On the other hand, the court had Ross’ tes timony, in which he asserted that (1) he never crossed the fog line and (2) his behavior was du e to the rough road and his concern over a12

possible drunk driver. The trial court was in the best position to view the evidence and was free to believe Trooper Richardson’ s version of the events. State v. Cross , 9th Dist. No. 25487, 2011- Ohio-3250, ¶ 35, quoting Prince v. Jordan , 9th Dist. No. 04CA008423, 2004-Ohio-7184, ¶ 35. Ross’ conviction is not against th e manifest weight of the eviden ce. Thus, I would overrule his assignment of error and affirm th e judgment of the trial court.

APPEARANCES: BRIAN L. SUMMERS, Attorney at Law, for Appellant. DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting Attorney, for Appellee.