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State v. Zaree

Court of Appeals of Ohio, Ninth District, Lorain

December 18, 2017

STATE OF OHIO Appellee
v.
KHASHAYAR ZAREE Appellant

         APPEAL FROM JUDGMENT ENTERED IN THE OBERLIN MUNICIPAL COURT COUNTY OF LORAIN, OHIO CASE No. 16TRC03035

          R.J. BUDWAY, Attorney at Law, for Appellant.

          FRANK CARLSON, Attorney at Law, for Appellee.

          DECISION AND JOURNAL ENTRY

          CALLAHAN, Judge

         {¶1} Appellant, Khashayar Zaree, appeals from his conviction in the Oberlin Municipal Court. This Court affirms.

         I.

         {¶2} 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.

          II.

         ASSIGNMENT OF ERROR

         THE CONVICTION OF [MR. ZAREE] OF A VIOLATION OF R.C. []4511.19(A)(2) WAS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE.

         {¶3} 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.

         {¶4} "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.

         {¶5} "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.

         {¶6} 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 ...


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