FROM JUDGMENT ENTERED IN THE OBERLIN MUNICIPAL COURT COUNTY
OF LORAIN, OHIO CASE No. 16TRC03035
BUDWAY, Attorney at Law, for Appellant.
CARLSON, Attorney at Law, for Appellee.
DECISION AND JOURNAL ENTRY
Appellant, Khashayar Zaree, appeals from his conviction in
the Oberlin Municipal Court. This Court affirms.
Mr. Zaree was charged with multiple offenses as a result of a
traffic stop that occurred on July 9, 2016. The matter
proceeded to jury trial and Adam Shaw, the arresting officer,
testified for the State. Mr. Zaree testified in his own
defense. The jury found Mr. Zaree guilty of an OVI offense,
in violation of R.C. 4511.19(A)(2), but acquitted him of the
remaining charges. The court found Mr. Zaree guilty of the
minor misdemeanor traffic control device offense, in
violation of R.C. 4511.12. Mr. Zaree was sentenced
accordingly and now appeals his OVI conviction raising a
single assignment of error.
CONVICTION OF [MR. ZAREE] OF A VIOLATION OF R.C.
4511.19(A)(2) WAS CONTRARY TO THE MANIFEST WEIGHT OF THE
In his sole assignment of error, Mr. Zaree argues that his
OVI conviction is against the manifest weight of the evidence
because the evidence was contradictory and the testifying
officer was not credible. This Court disagrees.
"In determining whether a criminal conviction is against
the manifest weight of the evidence, an appellate court must
review the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of witnesses
and determine 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." State v.
Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). Weight
of the evidence concerns whether a greater amount of credible
evidence supports one side of the issue than supports the
other. State v. Thompkins, 78 Ohio St.3d 380, 387
(1997). Further, when reversing a conviction on the basis
that the conviction was against the manifest weight of the
evidence, "the appellate court sits as a 'thirteenth
juror' and disagrees with the factfinder's resolution
of the conflicting testimony." Id., quoting
Tibbs v. Florida, 457 U.S. 31, 42 (1982). An
appellate court should only exercise its power to reverse a
judgment as against the manifest weight of the evidence in
exceptional cases in which the evidence weighs heavily
against the conviction. Otten at 340.
"A conviction is not against the manifest weight of the
evidence merely because there is conflicting evidence before
the trier of fact." State v. Haydon, 9th Dist.
Summit No. 19094, 1999 Ohio App. LEXIS 6174, *19 (Dec. 22,
1999). An appellate court will not overturn a judgment on
this basis alone, and may not merely substitute its judgment
for that of the factfinder. State v. Serva, 9th
Dist. Summit No. 23323, 2007-Ohio-3060, ¶ 8.
Mr. Zaree was convicted under R.C. 4511.19(A)(2). As it
pertains to Mr. Zaree, R.C. 4511.19(A)(2) prohibits the
operation of a vehicle within Ohio while under the influence
of alcohol if, at the time of the operation, the person has
previously been convicted of or pleaded guilty to a violation
under R.C. 4511.19 within twenty years and, subsequent to
being arrested for the OVI, the person refuses to submit to a
chemical test after being asked to do so by a law enforcement
officer and advised of the consequences of refusal.
Therefore, the jury had to find that Mr. Zaree 1) was
operating a vehicle in Ohio, 2) was under the ...