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State v. Nick

Court of Appeals of Ohio, Tenth District

August 8, 2013

State of Ohio, Plaintiff-Appellee,
v.
Phillip Donley Nick, Defendant-Appellant.

Appeal from the Franklin County Municipal Court M.C. No. 2012 TRD 152481.

Ronald J. O'Brien, Prosecuting Attorney, and David M. Kennedy, for appellee.

Dennis C. Belli, for appellant.

DECISION

McCORMAC, J.

{¶ 1} Phillip Donley Nick, defendant-appellant, appeals from the judgment of the Franklin County Municipal Court in which, during a bench trial, the court found him guilty of reckless operation of a motor vehicle, a minor misdemeanor in violation of R.C. 4511.20. The trial court imposed a sentence of a $30 fine and court costs.

{¶ 2} Appellant asserts the following two assignments of error: Assignment of Error No. 1:

The municipal court erred in denying Defendant-Appellant's motion for a judgment of acquittal where the prosecution failed to offer any eyewitness testimony from which a reasonable fact-finder could find that his responsive actions to the tailgating and aggressive conduct of another driver rose to the level a willful or wanton disregard for the safety of persons or property.
Assignment of Error No. 2:
The municipal court's use of an incorrect culpability standard for determining Defendant-Appellant's guilt of reckless operation of a vehicle resulted in a judgment of conviction that is against the manifest weight of the evidence and is contrary to law.

{¶ 3} This case involves a series of interactions between the appellant, 49 years of age, and Charles Peugh, 68 years of age, that occurred between 3:30 and 4:00 p.m. on June 4, 2012. Those interactions commenced while the parties were negotiating a roundabout at the intersection of Morse Road and State Route 62 and ended approximately ten minutes later, resulting in a rather severe collision between the vehicles. Each party was charged with reckless operation, a minor misdemeanor. Peugh was also charged with failure of assured clear distance ahead. This case, however, involved only the issue of appellant's guilt or innocence of the reckless operation charge brought against him.

{¶ 4} At the conclusion of the testimony of four witnesses, three for the state and one by appellant on his own behalf, the trial court found appellant guilty, as follows:

Having considered all of the evidence and exhibits and the testimony, I've gone back and forth a little bit as this trial went on, but ultimately I can boil it down to a couple of things. And based upon that, Mr. Nick, I am going [to] find you guilty of reckless operation of a motor vehicle. I think the bottom line is this crash, and whatever happened out there that day was avoidable by one of you or both of you or either of you. And I think if you don't engage in a situation like this, it never happens. So I probably would have found Mr. Peugh guilty of the same charge, because I think looking at the impact here, it was not a minor impact. The fact that I am thinking maybe there was a pretty good hit on the brakes before the crash because of the way that the Hyundai is underneath the Audi and they do appear to be stuck together. And even to the point of lifting up the car that I can see from the pictures and the front dip that happens when brakes are applied. And it's not just that one thing. It's the distance I'm seeing on the road where this all happened. If you don't engage, it doesn't happen. So I just say two wrongs don't make a right. This was avoidable, but I am going to find you guilty.

(Tr. 145.)

{¶ 5} The first witness for the state was Charles Peugh, age 68, who was returning from a medical appointment in Columbus to his home in Mt. Vernon, Ohio. To do so, he entered a roundabout at the intersection of Johnstown and Morse Roads to head north on U.S. Route 62 to Mt. Vernon. As he entered the roundabout, he stayed in the right-hand lane because he thought it would lead to his exit on U.S. Route 62. He admitted that he later discovered that he should have been in the left-hand lane. Approaching from behind, appellant passed him in the left-hand lane, also headed for U.S. Route 62. Peugh stated that he was visibly upset ...


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