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State v. Tulk

Court of Appeals of Ohio, Ninth District

September 30, 2013

STATE OF OHIO Appellee
v.
SHERRY A. TULK Appellant

APPEAL FROM JUDGMENT ENTERED IN THE AVON LAKE MUNICIPAL COURT COUNTY OF LORAIN, OHIO CASE No. TRD 1200400

SHERRY A. TULK, pro se, Appellant.

RICK KRAY, Attorney at Law, for Appellee.

DECISION AND JOURNAL ENTRY

CARR, Judge.

(¶1} Appellant Sherry Tulk appeals her conviction in the Avon Lake Municipal Court. This Court reverses.

I.

(¶2} Tulk was cited by Avon police for improper passing to the right of a vehicle. After Tulk pleaded not guilty, the matter was heard to the bench. The trial court found Tulk guilty, imposed a $50.00 fine, and assessed two points to her driving record. Tulk filed a timely appeal, raising one assignment of error for review.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN ITS DETERMINATION THAT SHERRY A. TULK WAS GUILTY OF IMPROPER PASSING FROM THE RIGHT, VIOLATING THE CITY OF AVON ORDINANCE, SECTION 432.04.

(¶3} Tulk argues that her conviction was against the manifest weight of the evidence. Nevertheless, "a review of the weight of the evidence necessarily involves an evaluation of the sufficiency of the evidence in that, in order for this Court to weigh the evidence, there must be evidence to weigh." State v. Frum, 9th Dist. Wayne No. 12CA0039, 2013-Ohio-1096, 4; see also State v. Anderson, 9th Dist. Summit No. 26006, 2012-Ohio-3663, ¶ 5. In reviewing the face of the record, it is apparent that Tulk's conviction was based on insufficient evidence.

(¶4} "[T]he question of whether the evidence is legally sufficient to support the jury verdict as a matter of law invokes a due process concern." State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, ¶ 113, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In reviewing a challenge to the sufficiency of the evidence, "the relevant inquiry is whether, after viewing the evidence in the 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." Diar, 120 Ohio St.3d at ¶ 113, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307 (1979).

(¶5} Tulk was cited for improper passing to the right of a vehicle in violation of Avon Ordinance 432.04, which provides in pertinent part: "The driver of a vehicle may overtake and pass on the right of another vehicle only under the following conditions: [w]hen the vehicle overtaken is making or about to make a left turn; or [u]pon a roadway with unobstructed pavement of sufficient width for two or more lines of vehicles moving lawfully in the direction being traveled by the overtaking vehicle. The ...


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