[Cite as State v. Ross, 2013-Ohio-522.]

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. 12CA0007 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

WAYNE COUNTY MUNICIPAL COURT 

COUNTY OF WAYNE, OHIO 

CASE No. TRD-11-06-04934 

DECISION AND JOURNAL ENTRY

Dated: February 19, 2013 

 

CARR, Judge. 

{¶1} Appellant, Gary Ross, appeals the judgment of the Wayne County Municipal 

Court. This Court affirms. 

I. 

{¶2} This case stems from a traffic stop that occurred on June 17, 2011. Ross was 

charged with speeding, failing to wear a safety belt, and driving with a suspended license. After 

initially pleading not guilty to the charges, the matter proceeded to trial. The jury found Ross 

guilty of driving with a suspended license, and the trial court found Ross guilty of speeding and 

driving without a safety belt. With respect to the charge of driving with a suspended license, the 

trial court sentenced Ross to 30 days in jail, three of which were mandatory, a fine of $250, as 

well as a six-month driver’s license suspension. Ross also received a fine of $35 for speeding, 

and a fine of $30 for driving without a seatbelt. Additionally, points were assessed to Ross’ 

license as mandated by law. 
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{¶3} On appeal, Ross raises three assignments of error. 

II. 

ASSIGNMENT OF ERROR I

“THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING 

APPELLANT’S PRETRIAL MOTION TO CONSOLIDATE TRIALS.” 

{¶4} In his first assignment of error, Ross argues that the trial court abused its 

discretion by denying his pretrial motion to consolidate trials. This Court disagrees. 

{¶5} The instant appeal stems from a traffic stop that occurred on June 17, 2011. Ross 

notes in his merit brief that several weeks earlier, on May 29, 2011, he had refused to submit to a 

breathalyzer test during a traffic stop and, as a result, incurred an administrative license 

suspension. The two cases were resolved separately in the Wayne County Municipal Court, and 

it is unclear from the record when Ross moved the trial court to consolidate the cases. The 

parties appeared for a pretrial conference on November 3, 2011, and again for a hearing on 

November 9, 2011. The record contains a journal entry dated November 9, 2011, that states, in 

part, “A hearing was held today on several defense motions. The Defendant moved that the two 

above cases [TRC-11-05-03983 and TRD-11-06-04934] be consolidated for trial. That motion is 

denied.” The record neither contains a written copy of the motion to consolidate, nor does it 

contain a transcript from a pretrial hearing in which Ross moved to consolidate the two cases. 

{¶6} This Court is “constrained by the record on appeal.” Walker v. Lou Restoration, 

9th Dist. No. 26236, 2012-Ohio-4031, ¶ 8. “A reviewing court cannot add matter to the record 

before it, which was not a part of the trial court’s proceedings, and then decide the appeal on the 

basis of the new matter.” State v. Ishmail, 54 Ohio St.2d 402 (1978), paragraph one of the 

syllabus. In the absence of an adequate record, an appellate court must presume regularity in the 

trial court’s proceedings. State v. Ford, 9th Dist. No. 26260, 2012-Ohio-4028, ¶ 10. Because 
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this Court is unable to review the substantive arguments Ross made in support of his motion to 

consolidate, we must presume regularity in the trial court’s decision to deny the motion. Id. 

{¶7} The first assignment of error is overruled. 

ASSIGNMENT OF ERROR II

DEFENDANT-APPELLANT’S CONVICTION FOR DRIVING WITHOUT A 

SEAT BELT WAS AGAINST THE MANIFEST WEIGHT OF THE 

EVIDENCE. 

ASSIGNMENT OF ERROR III

DEFENDANT-APPELLANT’S CONVICTION FOR SPEEDING WAS 

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. 

{¶8} In his second and third assignments of error, Ross argues that his convictions for 

failing to wear a safety belt and speeding were against the manifest weight of the evidence. This 

Court disagrees. 

{¶9} Unlike a challenge to the sufficiency of the evidence, a determination of whether 

a conviction is against the manifest weight of the evidence does not permit this Court to view the 

evidence in the light most favorable to the State to determine whether the State has met its 

burden of persuasion. State v. Love, 9th Dist. No. 21654, 2004-Ohio-1422, ¶ 11. Rather, 

an appellate court must 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 trier of fact clearly lost its way 

and created such a manifest miscarriage of justice that the conviction must be 

reversed and a new trial ordered. State v. Otten, 33 Ohio App.3d 339, 340 (9th 

Dist.1986). 

Weight of the evidence concerns the tendency of a greater amount of credible 

evidence to support one side of the issue more than the other. State v. Thompkins, 

78 Ohio St.3d 380, 387 (1997). Further when reversing a conviction on the basis 

that it was against the manifest weight of the evidence, an appellate court sits as a 

“thirteenth juror,” and disagrees with the factfinder’s resolution of the conflicting 

testimony. Otten, at 340. 

State v. Tucker, 9th Dist. No. 06CA0035-M, 2006-Ohio-6914, ¶ 5. 
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{¶10} This discretionary power should be exercised only in exceptional cases where the 

evidence presented weighs heavily in favor of the defendant and against conviction. Thompkins, 

78 Ohio St.3d at 387. 

{¶11} This matter proceeded to trial on December 21, 2011. Michael Cannon of the 

Ohio State Highway Patrol testified on behalf of the State at trial. On June 17, 2011, Trooper 

Cannon was on patrol when he observed a truck on County Road 30A, in Wayne County, 

traveling at a rate of speed which appeared to exceed the speed limit of 45 miles per hour. After 

Trooper Cannon visually estimated that the truck was traveling 55 miles per hour, he activated 

the MPH Python II radar gun and began tracking the speed of the vehicle. Trooper Cannon 

testified that while the vehicle “initially checked in at 54 [miles per hour],” the vehicle 

maintained a speed of 55 miles per hour for approximately five seconds, and he “locked the 

speed in [] at 55 m.p.h.” Trooper Cannon further testified that, “when [Ross] was passing by me 

as I was tracking the vehicle, that he did not have his safety belt on[.]” 

{¶12} Trooper Cannon initiated a traffic stop, and Ross pulled his truck into the parking 

lot of Jordan’s Exhaust. As Trooper Cannon approached the truck, Ross “immediately got out of 

the truck” and Trooper Cannon asked Ross to go back and sit in his truck. At that time, Trooper 

Cannon had not yet had a chance to run a check on the license plate. Trooper Cannon testified 

that while the truck was equipped with seat belts, Ross was not wearing one. According to 

Trooper Cannon, Ross “admitted that he didn’t have it on.” When Trooper Cannon asked for his 

license and registration, Ross informed him that his license had been suspended. When Trooper 

Cannon ran Ross’ information through the LEADS computer system, it confirmed that Ross had 

incurred an administrative license suspension. The State introduced Ross’ driving record as an 

exhibit at trial which also evidenced the suspension. 
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{¶13} Ross testified in his own defense at trial, and asserted that Trooper Cannon was 

“mistaken” regarding whether Ross had been wearing his seat belt as he drove his truck. Ross 

admitted that he removed his seat belt when he got out of his truck after being pulled over, but 

maintained that he was wearing his seat belt when he was operating his vehicle. Ross further 

testified that he drives a truck for a living and only “[v]ery rarely” does he not wear a seat belt. 

In regard to the speeding charge, Ross testified, “The speed limit drops right before [] from 55 to 

45, I had left off the accelerator and was coasting down. He may have tagged me when I was 

still, I wasn’t speeding coming up the road. I was doing 55 in a 55 and then I let off the 

accelerator to slow down. He may have tagged me right at that moment. * * * I should [have] 

slowed down a little sooner.” When asked to estimate the distance from the point where the 

speed limit dropped from 45 miles per hour to the parking lot for Jordan’s Exhaust, Ross 

testified, “It’s a bit of a distance. * * * a quarter mile, maybe, maybe, three, four hundred yards.” 

Ross continued, “I was thinking about Jordan’s and I wasn’t thinking and then I left off the 

accelerator and then I [saw the State Trooper] and I went on up and pulled into Jordan’s and got 

out of the truck and was going in when he pulled in behind me and had his lights on.” 

{¶14} Trooper Cannon issued Ross a citation charging him with speeding in violation 

R.C. 4511.21(C), failure to wear a safety belt in violation of R.C. 4513.26[3](B)(1), and driving 

with a suspended license in violation of R.C. 4510.14. On appeal, Ross raises manifest weight 

challenges in regard to his convictions for speeding and failing to wear a safety belt. 

Failing to Wear a Safety Belt

{¶15} In support of his position that his conviction for failing to wear a safety belt was 

against the manifest weight of the evidence, Ross argues that his own testimony at trial 

demonstrated that he was wearing a seat belt when he operated his vehicle. Ross emphasizes 
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that he testified under oath that he was wearing his seat belt when he was operating his vehicle, 

and he removed his seat belt only after he came to a stop in the parking lot of a business. 

{¶16} Only two witnesses testified in this case, and they offered sharply conflicting 

testimony in regard to whether Ross was wearing his seat belt while he was driving his truck on 

County Road 30A. Trooper Cannon specifically testified that when Ross’ vehicle passed the 

spot where Trooper Cannon was sitting in his cruiser, Ross was not wearing a seat belt. Trooper 

Cannon further testified that Ross admitted during the traffic stop that he was not wearing a seat 

belt. When asked to respond to this testimony at trial, Ross stated, “I believe [Trooper Cannon] 

is mistaken.” Ross testified that he was, in fact, wearing a safety belt when he was driving his 

truck and that he did not remove it until after he had been pulled over. While there was 

conflicting testimony at trial, we note that the trier of fact was in the best position to evaluate the 

credibility of witnesses, and this Court will not overturn the trial court’s verdict on a manifest 

weight of the evidence challenge simply because the trial court chose to believe certain 

witnesses’ testimony over the testimony of others. State v. Crowe, 9th Dist. No. 04CA0098-M, 

2005-Ohio-4082, ¶ 22. In light of Trooper Cannon’s testimony at trial, we cannot conclude that 

this is the exceptional case where the evidence presented weighs heavily in favor of the 

defendant and against conviction. Thompkins, 78 Ohio St.3d at 387. 

{¶17} The second assignment of error is overruled. 

Speeding

{¶18} In support of his position that the weight of the evidence did not support his 

speeding conviction, Ross again points to his own testimony at trial. Ross argues that he was 

lawfully traveling at the posted limit of 55 miles per hour just prior to his truck entering the 45 

miles per hour zone, and that he immediately decelerated by taking his foot off the gas in order 
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to comply with the lower limit. Ross concludes that convicting him under these circumstances 

would be a miscarriage of justice. 

{¶19} When Trooper Cannon visually estimated that Ross was traveling 55 miles per 

hour in a 45 miles-per-hour zone, he began to track Ross’ truck with a radar gun. After Trooper 

Cannon tracked Ross at 55 miles per hour for approximately five seconds, he locked Ross in at 

that rate of speed. In testifying in his own defense, Ross did not directly contradict the testimony 

of Trooper Cannon. Instead, Ross explained that the trooper may have started to track him 

immediately after Ross exited a zone where the speed limit was 55 miles per hour. However, 

Ross did not dispute that he should have slowed down sooner, stating, “[Trooper Cannon] may 

have tagged me when I was still, I wasn’t speeding coming up the road. I was doing 55 in a 55 

and then I let off the accelerator to slow down. He may have tagged me right at that moment. * 

* * I should [have] slowed down a little sooner.” In light of Trooper Cannon’s testimony that he 

tracked Cannon traveling at 55 miles per hour for approximately five seconds in a 45 miles-perhour zone, and in light of overwhelming evidence to the contrary, the trial court did not clearly 

lose its way in convicting Ross of speeding. 

{¶20} The third assignment of error is overruled. 

III. 

{¶21} Ross’ assignments of error are overruled. The judgment of the Wayne County 

Municipal Court is affirmed. 

Judgment affirmed. 

 There were reasonable grounds for this appeal. 
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 We order that a special mandate issue out of this Court, directing the Wayne County 

Municipal Court, County of Wayne, State of Ohio, to carry this judgment into execution. A 

certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. 

 Immediately upon the filing hereof, this document 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 Appellant. 

 

 DONNA J. CARR 

 FOR THE COURT 

BELFANCE, P. J. 

WHITMORE, J. 

CONCUR.

APPEARANCES:

BRIAN L. SUMMERS, Attorney at Law, for Appellant. 

DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting 

Attorney, for Appellee.