Opinion
No. 109194
07-16-2020
CITY OF LAKEWOOD, Plaintiff-Appellee, v. Nicole C. MITCHELL, Defendant-Appellant.
Brian T. Corrigan, City of Lakewood Director of Law, and Andrew N. Fleck, Assistant Prosecuting Attorney, for appellee. The Goldberg Law Firm and John J. Dowell, Cleveland, for appellant.
Brian T. Corrigan, City of Lakewood Director of Law, and Andrew N. Fleck, Assistant Prosecuting Attorney, for appellee.
The Goldberg Law Firm and John J. Dowell, Cleveland, for appellant.
JOURNAL ENTRY AND OPINION
SEAN C. GALLAGHER, P.J.:
{¶1} Nicole Mitchell appeals the guilty verdict entered upon a bench trial, for her violation of Lakewood Codified Ordinances ("LCO") 331.34(c), the full-time-and-attention ordinance. The conviction resulted in the imposition of a $100 fine, court costs, and two points assessed against her driver's license. Mitchell appeals the verdict, claiming that it is based on insufficient evidence or, in the alternative, is against the weight of the evidence introduced at trial. For the following reasons, we affirm.
{¶2} Mitchell was driving southbound on W. Clifton Boulevard in the city of Lakewood with her sister, who was in the front passenger seat. A police officer, in a marked cruiser, pulled up behind Mitchell while she was stopped at a red light at the intersection of W. Clifton Boulevard and Sloane Avenue. The red light cycled to green, but Mitchell remained stopped for a brief period of time. The officer honked his vehicle's horn to refocus Mitchell's attention to the green light, and Mitchell proceeded through the intersection.
{¶3} At the next intersection, W. Clifton Boulevard and Detroit Avenue, the light was also red for the southbound traffic. Mitchell stopped in the through lane. The officer proceeded into the left-turn lane with the intent to turn east onto Detroit Avenue. At the time, the officer's vehicle was parallel with Mitchell's. The officer noticed that Mitchell was looking down at her cell phone. It appeared that Mitchell was manipulating the device with both hands. Mitchell claims her phone was in her lap and that she merely looked down to get directions from the GPS application, in order to find the intersection of Sloane and W. Clifton she had just passed — Mitchell did not see a parking lot for a pizza restaurant located at the corner of Detroit Avenue and W. Clifton Boulevard that would have allowed her to review the map while out of traffic. According to Mitchell's trial testimony, she never holds her cell phone in her hand while driving because it is distracting. Mitchell's sister, who was not in the courtroom during Mitchell's trial testimony, testified that Mitchell's cell phone was in her left hand, which was simultaneously holding the steering wheel while the vehicle was stopped at the intersection of W. Clifton and Detroit.
{¶4} After the southbound light on W. Clifton Boulevard cycled from red to green, Mitchell again remained stopped. This time, unaided by the officer's horn, Mitchell waited a full 12 seconds before proceeding through the intersection. During that time, the oncoming, northbound traffic was waiting to turn left onto Detroit Avenue. The officer noticed the oncoming traffic appeared to be confused by Mitchell's conduct, but after a few seconds of inaction by Mitchell, the oncoming traffic proceeded to make a left turn across Mitchell's path of travel. After Mitchell finally cleared the intersection, the officer conducted a traffic stop and cited Mitchell for violating the full-time-and-attention ordinance based on his observations.
{¶5} In the first assignment of error, Mitchell claims that there is insufficient evidence that she violated the full-time-and-attention ordinance, which criminalizes the failure to operate a vehicle without giving full time and attention to the operation of a vehicle. LCO 331.34(c). According to Mitchell, she can be convicted of the violation only if she "gave insufficient attention to the operation of the vehicle and drove the vehicle in an unreasonable, unsafe manner" according to Cleveland v. Ismail , 8th Dist. Cuyahoga No. 100179, 2014-Ohio-1080, 2014 WL 1344459, ¶ 12, and in addition, that the mere use of a cell phone is insufficient to rise to this level. Although that argument is based on a true statement of the holding from Ismail , the facts do not support Mitchell's legal argument.
{¶6} A claim of insufficient evidence raises the question whether the evidence is legally sufficient to support the verdict as a matter of law. State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). In reviewing a sufficiency challenge, "[t]he relevant inquiry is whether, after viewing the evidence in a 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." State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶7} In Ismail , it was concluded that under Cleveland Codified Ordinances ("CCO") 431.34(c), which is legally indistinguishable from the Lakewood ordinance at issue in this case, the failure to give full time and attention to driving cannot be presumed by the driver's use of a cell phone in and of itself, but must, instead, be proven by some evidence that the driver's cell phone use was distracting the driver from safely operating the vehicle. Id. According to Ismail , "[a] violation of CCO 431.34(c) ‘may be established by proof that the offender's "driving behavior" was either erratic or posed a danger to persons or property.’ " Id. at ¶ 11, quoting Cleveland v. English , 8th Dist. Cuyahoga No. 92591, 2009-Ohio-5011, 2009 WL 3043572, ¶ 15.
{¶8} In this case, the officer testified that he pulled Mitchell over for the full-time-and-attention violation because not only did a cell phone shift Mitchell's attention from the traffic control device, but also because Mitchell's erratic behavior caused confusion with other drivers, who at the time were left to guess Mitchell's next move. There is "some evidence" that Mitchell's preoccupation with her phone, regardless of whether it was texting or operating the GPS application, distracted her from driving safely and resulted in erratic driving behavior that caused confusion to other motorists on the roadway. See English at ¶ 18 (evidence of defendant's failure to follow traffic control laws while using a cell phone is sufficient to sustain conviction for a violation of a full-time-and-attention ordinance); Cleveland v. Isaacs, 91 Ohio App.3d 360, 363, 632 N.E.2d 928 (8th Dist.1993). Thus, the state presented evidence that Mitchell's driving behavior was negatively affected by her use of a cell phone. Importantly, the conviction was not based on a presumption that the cell phone use was distracting per se, and therefore, the first assignment of error is overruled.
{¶9} In the second and final assignment of error, Mitchell claims that her conviction is against the weight of the evidence because her and her sister's testimony conflicted with the officer's testimony.
{¶10} When reviewing a claim challenging the manifest weight of the evidence, the court, reviewing the entire record, must weigh the evidence and all reasonable inferences, consider the credibility of the 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. Thompkins , 78 Ohio St.3d 380, 678 N.E.2d 541. As part of this review, appellate courts sit as the thirteenth juror with the ability to disagree with the factfinder's resolution of the conflicting testimony. Thompkins at 387, 678 N.E.2d 541, citing Tibbs v. Florida , 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). "The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction." State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶11} This is not the exceptional case warranting appellate intervention. According to Mitchell's testimony, she was looking at a GPS application on her cell phone to resolve her confusion about her path of travel. Mitchell's sister testified that Mitchell's phone was in her left hand, which was on the steering wheel along with Mitchell's right hand. The officer testified that he observed Mitchell using her cell phone with neither hand on the steering wheel and Mitchell admitted that she was using her cell phone's GPS application to get directions. Although the officer's account was accepted by the trial court, Mitchell does not present any compelling argument that his testimony is incredible. Thus, we cannot conclude that her conviction is against the weight of the evidence. The second and final assignment of error is overruled.
{¶12} We affirm the conviction.
MICHELLE J. SHEEHAN, J., and RAYMOND C. HEADEN, J., CONCUR