Bryan Scott Hicks, Lebanon, Ohio, for appellant.
John R. Haas, City Solicitor, and Ruth A. Buckler, Assistant City Solicitor, Portsmouth, Ohio, for appellee.
DECISION AND JUDGMENT ENTRY
William H. Harsha, Judge.
(¶1} Justin Munion appeals his conviction for street racing and argues that it is against the manifest weight of the evidence because the state failed to establish beyond a reasonable doubt that he and another driver were driving in a "competitive attempt to out-distance each other, " as required by the statute. He claims the evidence showed he was engaged in a passing maneuver rather than street racing. However, Munion's own testimony directly contradicts this assertion and we find the argument meritless.
(¶2} Munion also argues that he and the other driver offered a more credible version of events. However, credibility generally is an issue for the trier of fact to resolve. Because the state established a prima facie case of street racing and presented credible evidence upon which the trial court could have reasonably concluded that Munion was engaged in a competitive attempt to out-distance the other vehicle, we cannot say that this is an exceptional case in which the trier of fact lost its way. Thus, Munion's conviction is not against the manifest weight of the evidence and we affirm his conviction.
(¶3} In two different case numbers, the state charged Munion with one count of speeding, in violation of Portsmouth Codified Ordinance 333.03, and one count of street racing, in violation of Portsmouth Codified Ordinance 333.07 respectively. The state also charged Curtis Hall, the person allegedly racing with Munion, with the same offenses and the matter proceeded to a joint bench trial. The trial court orally found both defendants guilty of all charges and sentenced them. In Munion's case, the trial court issued an entry of sentence finding him guilty of "DRAG RACING, " in violation of Portsmouth Codified Ordinance 333.07, but failed to address his speeding charge.
(¶4} Thereafter Munion appealed his conviction for street racing, but we dismissed his appeal for lack of a final appealable order because his speeding charge remained unresolved. See State v. Munion, 4th Dist. Scioto No. 12CA3476, 2012-Ohio-4963, ¶ 6. On remand, the trial court issued a separate entry of sentence finding Munion guilty of speeding and sentenced him on that charge. This appeal followed.
II. ASSIGNMENT OF ERROR
(¶5} Munion raises one assignment of error for our review:
1. THE CONVICTION FOR STREET RACING WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
III. LAW AND ANALYSIS
(¶6} To determine whether a conviction is against the manifest weight of the evidence, we review the entire record, weigh the evidence and all reasonable inferences, and consider the credibility of witnesses to determine "whether in resolving conflicts in the evidence, the jury 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. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 193.
(¶7) The reviewing court must bear in mind however, that credibility generally is largely an issue for the trier of fact to resolve. See State v. Burke, 4th Dist. Washington No. 12CA39, 2013-Ohio-2888, ¶ 8, citing State v. Frazier, 73 Ohio St.3d 323, 339, 652 N.E.2d 1000 (1995). "'If the prosecution presented substantial evidence upon which the trier of fact reasonably could conclude, beyond a reasonable doubt, that the essential elements of the offense had been established, the judgment of conviction is not against the manifest weight of the evidence.'" State v. Tyler, 196 Ohio App.3d 443, 2011-Ohio-3937, 964 N.E.2d 12, ¶ 43 (4th Dist.), quoting State v. Puckett, 191 Ohio App.3d 747, 2010-Ohio-6597, 947 N.E.2d 730, ¶ 32 (4th Dist.). Thus, we will exercise our discretionary power to grant a new trial only in the exceptional case where the trier of fact clearly lost its way and the evidence weighs heavily against the conviction. Drummond at ¶ 193.
(¶8} The court convicted Munion of street racing in violation of Portsmouth Codified Ordinance 333.07, ...