CITY OF TWINSBURG v. QUIANA WESBY
C.A. No. 25813
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT, OHIO
February 15, 2012
[Cite as Twinsburg v. Wesby, 2012-Ohio-569.]
MOORE, Judge.
APPEAL FROM JUDGMENT ENTERED IN THE STOW MUNICIPAL COURT CASE No. 10 TRC 9680
MOORE, Judge.
{¶1} Appellant, Quiana Wesby, appeals from her convictions in the Stow Municipal Court. This Court affirms.
I.
{¶2} In the early morning hours of October 24, 2010, Quiana Wesby felt ill and left the home of her friend. While she was driving on State Route 82, Officer Dan Fidoe of the City of Twinsburg Police Department observed Wesby swerve over the lane markings. After initiating a traffic stop and performing certain sobriety tests, Officer Fidoe cited Wesby for operating a vehicle while impaired and for weaving, in violation of
{¶3} At trial, Wesby argued that her poor performance on the sobriety tests was not the result of alcohol consumption, but instead resulted from hyperglycemia due to her diabetes, from which she has suffered for twenty-four years. The trial court found Wesby guilty on both
{¶4} Wesby timely filed a notice of appeal and presents one assignment of error for our review. Wesby filed a motion asking this Court to take judicial notice of certain medical articles pertaining to diabetes.
II.
{¶5} As a preliminary matter, we will address Wesby‘s motion for judicial notice of certain articles that she purports were published by the National Institutes of Health pertaining to diabetes. Generally, an appellate court may take judicial notice of any fact of which the trial court could have taken notice, even where the trial court failed to do so. See, e.g., Day v. Day, 40 Ohio App.3d 155, 160 (10th Dist.1988), fn. 4.
{¶6} In support of her request for this Court to take judicial notice of the facts within the articles that she has supplied, Wesby cites
(A) Scope of rule
This rule governs only judicial notice of adjudicative facts; i.e., the facts of the case.
(B) Kinds of facts
A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
(C) When discretionary
A court may take judicial notice, whether requested or not.
(D) When mandatory
A court shall take judicial notice if requested by a party and supplied with the necessary information. (E) Opportunity to be heard
A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.
(F) Time of taking notice
Judicial notice may be taken at any stage of the proceeding.
{¶7} The Staff Notes to
{¶8} Within her request, Wesby essentially urges this Court to take judicial notice of the following “facts“: (1) that goal blood glucose levels range between 80 and 120; (2) diabetic ketoacidosis is associated with blood glucose levels over 300 “and causes fruity breath, decreased consciousness and mental stupor,” and (3) fruity breath caused by the presence of acetones is present in people suffering from diabetic ketoacidosis, which occurs when an individual is hyperglycemic.”
{¶9} In support of these factual propositions, Wesby has provided three articles. The first article “If You Have Diabetes...Know Your Blood Sugar Numbers!” displays a publication number by the National Institutes of Health. This article provides advice regarding the monitoring of blood sugar levels by diabetics. Wesby contends that this article evidences that “goal blood-glucose levels [are] between 80 and 120.” A review of the article demonstrates that this “fact” is not “capable of accurate and ready determination.” See
{¶11} Based upon the foregoing, this is not a case where this Court deems it mandated or prudent to take judicial notice as requested by Wesby, and, accordingly, her motion is denied. Therefore, we will confine our review of Wesby‘s assignment of error to the record.
ASSIGNMENT OF ERROR
[]WESBY‘S CONVICTIONS FOR OPERATING A VEHICLE UNDER THE INFLUENCE AND WEAVING WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF SECTION 3, ARTICLE IV, OHIO CONSTITUTION AS THE GREATER WEIGHT OF THE EVIDENCE AT TRIAL DEMONSTRATED HER POOR DRIVING WAS DUE TO HYPERGLYCEMIA FROM DIABETES.
{¶12} In her sole assignment of error, Wesby argues that her convictions for operating a vehicle under the influence and weaving were against the manifest weight of the evidence. We do not agree.
{¶13} When a defendant asserts that her conviction is against the manifest weight of the evidence,
{¶14} In making this determination, this Court is mindful that “[e]valuating evidence and assessing credibility are primarily for the trier of fact.” State v. Shue, 97 Ohio App.3d 459, 466 (9th Dist.1994), citing Ostendorf-Morris Co. v. Slyman, 6 Ohio App.3d 46, 47 (8th Dist.1982) and Crull v. Maple Park Body Shop, 36 Ohio App.3d 153, 154 (12th Dist.1987).
{¶15} Here, Wesby was convicted of operating a vehicle under the influence, in violation of
{¶16} Officer Fidoe then asked Wesby if she needed to retrieve anything from her car, and she retrieved her insulin, which alerted the officer to her diabetic condition. The officer requested a medical squad meet them at the police station to check Wesby for any medical problems. When they arrived at the police station, Wesby‘s blood sugar was 390. Wesby administered a shot of insulin to herself. The officer then read her the “2255 form,” and waited
{¶17} In response, the defense argued that Wesby‘s behavior and impaired driving exhibited on October 24, 2010 were due to her diabetes. Wesby testified at trial on her own behalf. She has been diabetic for twenty-four years, and she explained that her blood sugar levels are typically not well-controlled. She stated that her diabetes often causes her an inability to carry on conversations, irritability, stubbornness, poor coordination, nausea, frequent urination, dry mouth, and shakiness. Although she had two beers at 9:00 p.m. the night prior, she was not stopped by the officer until 4:00 a.m. on October 24, 2010. Wesby stated that when a person‘s blood sugar levels are high, this causes diabetic ketoacidosis, which produces acetones
{¶18} We note that although Wesby alleges that her diabetic hyperglycemia symptoms include poor coordination, which, if accurate, may account for her poor performance on the “walk and turn” and “one leg stand” tests, she provides no explanation for her poor showing on the Horizontal Gaze Nsytagmus test, from which the parties stipulated that Officer Fidoe had noted four of six clues.
{¶19} After reviewing the entire record, weighing the inferences and examining the credibility of witnesses, we cannot say that the trial court‘s resolution of the testimony was unreasonable. Consequently, this is not the exceptional case where the trial court clearly lost its way and created a manifest miscarriage of justice in finding Wesby guilty. Where the evidence indicates that the finder of fact could reasonably choose between the State‘s or the defendant‘s version of the events, “[a] conviction is not against the manifest weight because the [finder of fact] chose to credit the State‘s version of events.” State v. Peasley, 9th Dist. No. 25062, 2010-Ohio-4333, ¶ 18, citing State v. Morgan, 9th Dist. No. 22848, 2006-Ohio-3921, ¶ 35. Accordingly, Wesby‘s assignment of error is overruled.
{¶20} Wesby‘s assignment of error is overruled. The judgment of the Stow Municipal Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Stow Municipal Court, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
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.
Costs taxed to Appellant.
CARLA MOORE
FOR THE COURT
WHITMORE, J. CONCURS
BELLFANCE, P. J. CONCURS IN JUDGMENT ONLY
J. DEAN CARRO, Appellate Review Office, School of Law, The University of Akron, for Appellant.
DAVID M. MAISTROS, Attorney at Law, for Appellee.