756 N.E.2d 705 | Ohio Ct. App. | 2001
On March 2, 2000, appellant was driving her four-door 1996 Ford Escort east on Main Street in Hamilton. At the time, she was talking to her son, who was sitting in the front passenger-side seat, about boy scouts and a new collectible card that he had purchased from a friend. Appellant stopped at a red traffic light and heard the revving of a vehicle's engine to her right. This other vehicle was also stopped at the traffic light, sitting in a lane of traffic that merged into appellant's lane of traffic a short distance ahead in the road. Appellant told her son that she was "tired of all the low cars just like [sic] revving their engines at that intersection." When the traffic light turned green, appellant drove ahead. The other vehicle traveled in the lane to the side of appellant and instead of merging into appellant's lane, continued to drive in the parking lane beside appellant. Shortly thereafter, appellant braked, attempting to decrease her speed to twenty-five m.p.h., the posted speed limit. *621
Appellant was stopped by a Hamilton city police officer and cited for street racing. Appellant pled not guilty and the case was set for trial. At the conclusion of a bench trial, a trial judge found appellant guilty of the offense charged. Appellant filed this appeal.
In her sole assignment of error, appellant argues that her conviction for street racing should be reversed because it is against the manifest weight of the evidence.
A reviewing court will not reverse a judgment as against the manifest weight of the evidence in a bench trial where the trial court could reasonably conclude from substantial evidence that the state has proved the offense beyond a reasonable doubt. State v. Eskridge (1988),
The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines 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. The iscretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.
State v. Thompkins (1997),
*622(a) As used in this section, "street racing" means the operation of two or more vehicles from a point side by side at accelerating speeds in a competitive attempt to out-distance each other or the operation of one or more vehicles over a common selected course, from the same point to the same point, wherein timing is made of the participating vehicles involving competitive accelerations or speeds.
*** The operation of two or more vehicles side by side either at speeds in excess of prima-facie lawful speeds established by Section
333.03 or rapidly accelerating from a common starting point to a speed in excess of such prima-facie lawful speeds shall be prima-facie evidence of speed racing.
(b) No person shall participate in street racing upon any public road, street or highway in this Municipality. (ORC
4511.251 ) (Emphasis added.)We note from the outset that section
333.07 of the Hamilton Municipal Code is substantially the same as R.C.4511.251 .1 Therefore, a review of other Ohio cases interpreting R.C.4511.251 is helpful to our determination of this case.
In State v. Goodman (1966),
In both cases, there is an intent on the part of one driver to out-distance another vehicle. However, in drag racing, there must be a mutual intent between the drivers of two vehicles to out-distance each other. In other words, a driver has an intent to compete or race with the driver of another specific vehicle, who has a similar intent as to the first driver. In a passing maneuver, the passing driver's intent is an impersonal one directed at a vehicle proceeding directly in front of him, whose speed or operation at that time is such that he wishes to pass. The driver of the overtaken vehicle must give way to the right and must not increase his speed.
Id. The failure of the prosecution to establish beyond a reasonable doubt that a defendant and another driver were accelerating their speeds in a competitive attempt to outdistance each other merits reversal of a drag racing conviction as against the manifest weight of the evidence.Id. at 176-177; State v. Barrett (1975),
When determining whether the weight of the evidence establishes the intent necessary to sustain a drag racing conviction, some courts have considered *623
whether the drivers were acquaintances. See Barrett at 23;State v. James (1974),
At trial, Officer Joseph Gabbard testified that he observed appellant's vehicle and another vehicle accelerating at a high rate of speed. Officer Gabbard testified that he did not see the vehicles while they were stopped at the traffic light. But Officer Gabbard observed that "each [vehicle] was maneuvering to get in front of the other." Officer Gabbard testified that he visually estimated that the vehicles were travelling "anywhere from 35-45" m.p.h. in a twenty-five m.p.h. speed zone. According to Officer Gabbard, this maneuvering continued as the vehicles traveled a distance of about sixty feet.
Officer Gabbard's testimony establishes a prima facie case for street racing, as it demonstrates that appellant's vehicle and another vehicle were traveling side-by-side at speeds in excess of prima-facie lawful speeds. However, the presumption of intent to compete or of drag racing by reason of defendant and the driver of another vehicle operating side-by-side at speeds in excess of prima facie lawful speeds prescribed by statute may be rebutted as a result of evidence offered by either party. Barrett,
Although Officer Gabbard testified that appellant's speed exceeded the speed limit, he estimated that she was travelling at a speed of only thirty-five to forty-five m.p.h. Appellant testified that after the traffic light turned green, she "didn't take off extremely fast" because she knew that there were railroad tracks and a twenty-five m.p.h. speed zone ahead. Appellant testified that she had been travelling at a rate of thirty-five m.p.h. (the maximum speed as posted on a sign a few blocks earlier) and that when she entered a business district, where the speed limit drops to twenty-five m.p.h., she braked immediately. Appellant admitted that she may have been speeding for a brief period of time after she passed the twenty-five m.p.h. speed limit sign and was decelerating. However, appellant testified that she was not travelling at a rate of forty-five m.p.h., stating she did not believe her car could even travel at that speed within such a short distance from a dead stop. *624
Appellant testified that she was not in competition with the other vehicle and that she was not even aware that the other vehicle had continued to drive alongside her in the parking lane after the merging point. Appellant maintained that she was not drag racing.
The weight of the evidence demonstrates that appellant was speeding for at least a brief period of time and was driving alongside another driver. However, the weight of the evidence does not show a plan or agreement between appellant and the other driver to race. Appellant did not know the driver of the other vehicle. Appellant was not aware that the other vehicle continued to drive in the parking lane instead of merging behind her. Moreover, we note that appellant, who was driving in the main lane of traffic, did not have a duty to yield to the merging vehicle. There is no indication that appellant's maneuvers increased danger to persons and property on the highway, except for the fact that she briefly exceeded the speed limit.
The prosecution failed to prove beyond a reasonable doubt that the drivers were accelerating their speeds in a competitive attempt to outdistance each other. Therefore, we hold that appellant's conviction for street racing is against manifest weight of the evidence. The assignment of error is sustained.
_______________________ VALEN, J.
YOUNG, P.J., and POWELL, J., concur.