Opinion
No. 108600
04-02-2020
CITY OF CLEVELAND, Plaintiff-Appellee, v. Tito COLON, Defendant-Appellant.
Barbara A. Langhenry, Cleveland Director of Law, Karrie Howard, Chief Prosecutor, and Alisa Boles, Assistant Prosecuting Attorney, for appellee. Mark A. Stanton, Cuyahoga County Public Defender, and Francis Cavallo, Assistant Public Defender, for appellant.
Barbara A. Langhenry, Cleveland Director of Law, Karrie Howard, Chief Prosecutor, and Alisa Boles, Assistant Prosecuting Attorney, for appellee.
Mark A. Stanton, Cuyahoga County Public Defender, and Francis Cavallo, Assistant Public Defender, for appellant.
JOURNAL ENTRY AND OPINION
RAYMOND C. HEADEN, J.:
{¶1} Defendant-appellant Tito Colon ("Colon") appeals his conviction for unsafe operation upon approaching a public safety vehicle in violation of R.C. 4511.213. We reverse and vacate the trial court's conviction.
I. Factual and Procedural History
{¶2} On January 16, 2019, Cleveland Police Officer Gregory Rodes ("Rodes") cited Colon for two traffic violations: (1) failure to comply with a lawful order of a police officer, a violation of Cleveland Codified Ordinances ("C.C.O.") 403.02, and (2) unsafe operation upon approaching a stationary public safety vehicle, a violation of R.C. 4511.213.
{¶3} On the day in question, Rodes stopped a driver for speeding ("first offender"). The first offender and Rodes parked their vehicles ("parked vehicles") westbound on Sackett Avenue, at the intersection of Sackett Avenue and Fulton Road. Rodes parked his cruiser behind the first offender's vehicle, exited his vehicle — leaving the overhead lights engaged — and approached the first offender's car.
The record shows, via Rodes's body camera footage, that Rodes's vehicle was not stopped flush with the curb but was positioned further from the curb than the first offender's vehicle, making the lane of travel narrower.
{¶4} Body camera footage exists of the first offender's traffic stop and the subsequent events that occurred between Colon and Rodes. Colon and Rodes presented at trial different versions of the events that led to the issued citation.
{¶5} According to Colon, he traveled north on Fulton Road and stopped for a red light at the intersection of Sackett Avenue. Colon waited for the light to turn green so that he could turn left on to Sackett Avenue, travel past a few houses, and turn right, or northbound, onto West 38th Street. Prior to his turn on to Sackett Avenue, Colon observed (1) the westbound parked vehicles, (2) Rodes standing outside the vehicles, and (3) a car turning onto Sackett Avenue from West 38th Street that would travel eastbound — the opposite direction of Colon and the parked vehicles.
At trial, Colon maintained a vehicle turned from West 38th Street onto Sackett Avenue and proceeded eastbound, in the opposite direction from Colon. Colon argued that he had to drive closer to Rodes and the parked vehicles because of the oncoming traffic. Rodes testified he did not observe any eastbound traffic and the city of Cleveland argued the body camera video did not reflect the presence of any eastbound traffic. However, a careful review of the body camera video — specifically the images reflected off the first offender's vehicle — depicts a car traveling eastbound on Sackett Avenue and passing the first offender's vehicle just prior to Colon's van approaching Rodes.
{¶6} Colon anticipated he would pass the parked vehicles and Rodes simultaneously with the car traveling eastbound on Sackett Avenue. When the light turned green, Colon turned left on to Sackett Avenue. Colon moved to the right of his lane of travel and "slowed down to practically crawling speed." (Tr. 39.) The oncoming vehicle passed Colon without incident. (Tr. 53.)
{¶7} As Colon proceeded on Sackett Avenue, Rodes turned to his right and observed Colon's vehicle — a large, white cargo van — directly behind him. Rodes knocked on the passenger window of Colon's vehicle, and Colon came to an immediate stop. Colon and Rodes exchanged words and Rodes instructed Colon, three times, to pull over. Colon did not pull over in front of the stopped vehicles, but continued westbound on Sackett Avenue, past a few houses, and turned right on to West 38th Street where he came to a stop. Colon's failure to stop directly in front of the stopped vehicles resulted in a traffic citation for failure to comply with a lawful order of a police officer, a violation of C.C.O. 403.02.
{¶8} Rodes, conversely, testified that he observed no eastbound traffic on Sackett Avenue during the time he conducted the traffic stop of the first offender and spoke with Colon. Rodes testified that Colon passed too closely to Rodes and such actions threatened the officer's safety. As a result, Rodes issued a traffic citation for unsafe operation upon approaching a stationary public safety vehicle, a violation of R.C. 4511.213.
{¶9} Colon contested the traffic violations and entered not guilty pleas to both charges. A Cleveland Municipal Court magistrate conducted a bench trial on April 24, 2019. Following the witness testimony of Rodes and Colon and introduction of Rodes's body camera footage, the magistrate found Colon not guilty of failing to comply with a lawful order of a police officer but guilty of unsafe operation upon approaching a stationary public safety vehicle. The magistrate sentenced Colon on that same date.
{¶10} On May 23, 2019, Colon filed a timely notice of appeal, presenting verbatim the following assignments of error for our review:
Assignment of Error I: There was insufficient evidence produced at trial to support a finding of guilty on all counts.
Assignment of Error II: The trial court erred by finding the defendant guilty against the manifest weight of the evidence.
II. Law and Analysis
A. Sufficiency of the Evidence
{¶11} Where a party challenges the sufficiency of the evidence supporting a conviction, a determination of whether the state has met its burden of production at trial is conducted. State v. Hunter , 8th Dist. Cuyahoga No. 86048, 2006-Ohio-20, 2006 WL 23252, ¶ 41, citing State v. Thompkins , 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997). An appellate court reviewing sufficiency of the evidence must determine " ‘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.’ " State v. Leonard , 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. With a sufficiency inquiry, an appellate court does not review whether the state's evidence is to be believed but whether, if believed, the evidence admitted at trial supported the conviction. State v. Starks , 8th Dist. Cuyahoga No. 91682, 2009-Ohio-3375, 2009 WL 1965296, ¶ 25, citing Thompkins at 387, 678 N.E.2d 541 ; Jenks at paragraph two of the syllabus. {¶12} In his first assignment of error, Colon challenges the sufficiency of the evidence introduced at trial.
{¶13} The court convicted Colon under R.C. 4511.213 — duties upon approaching stationary public safety, emergency, or road service vehicle displaying flashing lights. R.C. 4511.213 reads in pertinent part:
(A) The driver of a motor vehicle, upon approaching a stationary public safety vehicle, emergency vehicle, road service vehicle, waste collection vehicle, vehicle used by the public utilities commission to conduct motor vehicle inspections in accordance with sections 4923.04 and 4923.06 of the Revised Code, or a highway maintenance vehicle that is displaying the appropriate visual signals by means of flashing, oscillating, or rotating lights, as prescribed in section 4513.17 of the Revised Code, shall do either of the following:
* * *
(2) If the driver is not traveling on a highway of a type described in division (A)(1) of this section, or if the driver is traveling on a highway of that type but it is not possible to change lanes or if to do so would be unsafe, the driver shall proceed with due caution, reduce the speed of the motor vehicle, and maintain a safe speed for the road, weather, and traffic conditions .
(Emphasis added.)
{¶14} R.C. 4511.213 does not define "due caution." In the absence of a statutory definition, we apply the standard of due care as exercised by a reasonably prudent person under the circumstances of the case. Eisenhuth v. Moneyhon , 161 Ohio St. 367, 374, 119 N.E.2d 440 (1954) ; Collier v. Libations Lounge, L.L.C. , 8th Dist. Cuyahoga No. 97504, 2012-Ohio-2390, 2012 WL 1952262, ¶ 27. In other words, language that requires a driver to exercise due regard, or due caution, means a driver must " ‘operate his motor vehicle in the same manner as would a reasonably prudent person under similar circumstances.’ " State v. Jacobs , 2013-Ohio-3797, 995 N.E.2d 1247, ¶ 14 (9th Dist.), quoting State v. Martin , 164 Ohio St. 54, 59, 128 N.E.2d 7 (1955).
{¶15} R.C. 4511.213(A)(2) has been described as follows:
Under these circumstances, when changing lanes is not an option, a driver is required to exercise caution by reducing his or her speed to a reasonable rate while remaining mindful of the road, weather, and traffic conditions. In essence, the statutory scheme requires drivers approaching stationary public safety vehicles to change lanes when possible, and when changing lanes is not possible, to reduce the vehicle's rate of speed. When taking either action, drivers must to [sic] remain vigilant of road, weather, and traffic conditions in order to ensure public safety.
Jacobs at ¶ 15.
{¶16} At trial, therefore, the prosecution had to demonstrate Colon violated R.C. 4511.213 by showing that he failed to exercise due caution — or did not drive as a reasonably prudent person would have driven under similar circumstances — "by reducing his * * * speed to a reasonable rate while remaining mindful of the road, weather, and traffic conditions." Id.
{¶17} There is no question that Colon drove a "huge, large van" — the largest of the Dodge cargo vans — that was "very long" with large mirrors. (Tr. 38, 40, 51, 52.) Colon was familiar with Sackett Avenue, which he traversed daily. (Tr. 38.) Sackett Avenue is a narrow side street that does not easily facilitate the passing of two vehicles in opposite directions when a parked car is present. (Tr. 37-38.) {¶18} The record demonstrates that after stopping for a red light at the intersection of Fulton Road and Sackett Avenue, Colon made a left-hand turn on to Sackett Avenue. (Tr. 36-37.) While making the turn, Colon observed the first offender's vehicle, Rodes standing outside the first offender's vehicle, and Rodes's marked cruiser with its lights engaged. (Tr. 45.) Colon also saw an oncoming vehicle driving eastbound on Sackett Avenue that he would have to pass in front of the parked vehicles. (Tr. 39.)
{¶19} To avoid contact with the oncoming vehicle, Colon pulled over to the far right to provide the oncoming car sufficient space to pass. (Tr. 39.) Due to the presence of Rodes and the parked vehicles, which Colon clearly saw, he "slowed down to practically crawling speed." (Tr. 39.) Colon felt he was traveling "slow enough where [the oncoming vehicle] could pull over all the way to the curb to get by." (Tr. 53.) Although Colon drove partially into the oncoming traffic's lane (the westbound lane of Sackett Avenue) to avoid contact with Rodes and the parked vehicles, he also slowed his speed — to approximately 3 m.p.h. — and was cautious of the traffic on his right:
Conflicting testimony was provided regarding whether Colon pulled over and waited for the oncoming traffic to pass before proceeding past Rodes and the stopped vehicles. (Compare tr. 39, 42, and 53.) The body camera footage does not capture Colon turning left from Fulton Road on to Sackett Avenue and his initial movement on Sackett Avenue. All images of Colon's van show the vehicle moving rather than the van coming to a complete stop, although he could have stopped prior to the start of the body camera footage. Whether Colon stopped and waited for the oncoming vehicle is not dispositive.
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Colon: First of all, it's a left turn lane after complete stop, so I was going very slow to begin with. Bus as soon as I saw the other vehicle come, I came to a crawl, which in my mind is as I told him less than three miles per hour if I was — I'm not saying that I was, but even if I was where I thought was too close, I would have totally [come] to a stop after seeing him maneuver and then gone by when I could safely. But there was a car to my immediate left in the opposite direction, so I couldn't go any farther left. And I thought I was going slow enough where he could see me, and obviously, I did, cause he did see me and he approached me and there was room there. That camera is very misleading. There's plenty, a lot more space than what it seems like. I would say there's over three feet [of] space.
(Tr. 42.)
{¶20} According to Colon, there was over three feet of space between Rodes and Colon's vehicle. (Tr. 42-43.) In contrast, Rodes testified that Colon's van was approximately 18-24 inches from the first offender's stopped vehicle. (Tr. 21.) The magistrate found Colon's estimation more accurate. (Tr. 73.)
{¶21} While Rodes testified he was uncertain whether Colon reduced his vehicle's speed, Colon stated he slowed down to a crawl. (Tr. 24, 42.) Further, the body camera footage demonstrates Colon proceeded so slowly past Rodes that as Rodes turned around from facing the first offender's vehicle and knocked on the van's passenger window, and Colon immediately came to a complete stop.
{¶22} Even the magistrate stated Colon operated his vehicle with due caution although he still found Colon acted in violation of R.C. 4511.213 : "And in here I believe that you actually operated in the safest manner, and I'll make a finding of guilty on unsafe operations." (Tr. 74.)
{¶23} The record demonstrates that due to the presence of Rodes and the parked vehicles on his right and the oncoming traffic in the eastbound lane of Sackett Avenue, Colon slowed to three m.p.h. and carefully drove past the oncoming vehicle, Rodes, and the parked vehicles. Colon's van did not come into contact with Rodes, the parked vehicles, or the oncoming traffic and no one was injured. Colon acted with due caution — as a reasonably prudent person in the same circumstances — when he reduced the speed of his van and proceeded at a reasonable rate while being mindful of the road and traffic conditions. Viewed in a light most favorable to the prosecution, the evidence does not support a failure to comply with R.C. 4511.213. Accordingly, Colon's first assignment of error is sustained.
B. Manifest Weight of the Evidence
{¶24} A manifest weight challenge questions the credibility of the evidence presented and examines whether the state met its burden of persuasion at trial. State v. Whitsett , 8th Dist. Cuyahoga No. 101182, 2014-Ohio-4933, 2014 WL 5762874, ¶ 26, citing Thompkins , 78 Ohio St.3d at 387, 678 N.E.2d 541 ; State v. Bowden , 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, 2009 WL 2186608, ¶ 13, citing Thompkins at 390, 678 N.E.2d 541. When considering an appellant's claim that a conviction is against the manifest weight of the evidence, the court of appeals sits as a "thirteenth juror" and may disagree with the factfinder's resolution of the conflicting testimony. Id. at 387, 678 N.E.2d 541, citing Tibbs v. Florida , 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).
{¶25} In his second assignment of error, Colon challenges that his conviction was against the manifest weight of the evidence introduced at trial. Colon's reasoning for his manifest weight argument is identical to that presented in support of his sufficiency of the evidence claim. We found in response to Colon's first assignment of error — sufficiency of the evidence — that no evidence existed finding Colon violated R.C. 4511.213. Because we found insufficient evidence to support Colon's conviction, his manifest weight of the evidence argument is moot. See App.R. 12(A)(1)(c) ; Rocky River v. Zorc , 2018-Ohio-389, 105 N.E. 3d 579, ¶ 27 (8th Dist.).
{¶26} Colon's conviction for unsafe operation upon approaching a stationary public safety vehicle, a violation of R.C. 4511.213, is reversed and upon remand, the conviction shall be vacated and the trial court shall notify the Ohio Bureau of Motor Vehicles of the vacated conviction.
{¶27} Judgment reversed and remanded for the trial court to vacate Colon's conviction.
MARY J. BOYLE, P.J., and KATHLEEN ANN KEOUGH, J., CONCUR