State v. Bailey ( 2017 )

[Cite as State v. Bailey, 2017-Ohio-771.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellant : Hon. John W. Wise, J.
:
-vs- :
: Case No. 2016 AP 0032
ARTHUR BAILEY :
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Tuscarawas
County Court of Common Pleas, Case No.
2015CR050147
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 3, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RYAN STYER GEORGE URBAN
Tuscarawas County Prosecutor’s Office 116 Cleveland Avenue N.W.,
125 East High Avenue Ste. 808
New Philadelphia, OH 44663 Canton, OH 44702
Tuscarawas County, Case No. 2016 AP 0032 2
Gwin, P.J.
{¶1} Defendant-appellant Arthur Bailey (“Bailey”) appeals from the June 2, 2016
Judgment Entry of the Tuscarawas County Court of Common Pleas convicting and
sentencing him after a jury trial on one count of Failure to Comply with an Order or Signal
of a Police Officer, a violation of R.C. 2921.331(B), elevated to a third-degree felony by
the allegation that Bailey’s operation of his motor vehicle caused a substantial risk of
serious physical harm to persons or property.
Facts and Procedural History
{¶2} Officer Joshua Newman, a patrolman with the Dennison Police Department was
on patrol on March 22, 2015, shortly after midnight. Officer Newman was patrolling South
Fifth Street along with Officer Barbie, who was driving the police cruiser. The officers
observed a green Subaru with a loud exhaust drive by them. Officer Barbie began to
follow the Subaru. The vehicle properly stopped at a stop sign at Logan and South Sixth
Streets and then turned right. After again hearing the loud exhaust, Officer Barbie
followed the Subaru onto South Sixth Street and activated the police cruiser's emergency
lights. The events were thereafter recorded by the cruiser’s dashboard camera. Officer
Barbie did not activate the sirens at this point. At the time the officers activated the overhead
lights, they observed no traffic violations other than the alleged loud exhaust.
{¶3} Officer Newman then testified that the Subaru approached a stop sign at the
corner of South Sixth and Race Streets, braked without making a complete stop, used the turn
signal, turned left onto Race Street, and then accelerated on Race Street, a two-lane street,
through the village of Dennison. No traffic was obstructed. Officer Newman testified that the
sirens were activated at this point because he knew at this time that a chase was ensuing. The
Tuscarawas County, Case No. 2016 AP 0032 3
speed limit on Race Street is thirty-five miles per hour and then changes to twenty-five miles per
hour as Race Street turns into Taylor Avenue. As the Subaru was driving down Race Street,
all four of the tires were in the wrong lane of travel. (1T. at 106-107).
{¶4} Officer Newman testified the Subaru was traveling faster than the speed limit, but
could not state the Subaru's speed. The Subaru failed to stop at a stop sign at an intersection
on Taylor Avenue, where the speed limit is twenty-five miles per hour, and proceeded through
the intersection at an estimated speed of forty miles per hour. Officer Newman testified that it
was unsafe to drive through that intersection at such a speed, noting that it was a residential
area with a school and a park located nearby. It was after midnight. The school was not in
session and the park had been closed since 10:00 p.m. There were no pedestrians in the area,
and there was no oncoming cross traffic in the intersection.
{¶5} A short time later, Bailey passed an oncoming car while exceeding the speed
limit. (1T. at 110). Less than one minute later Bailey passed another oncoming vehicle while
traveling at approximately 60 miles per hour. (1T. at 110-111). At about six minutes and twenty
seconds into the chase, the Subaru began pulling out of Officer Newman's sight. At
approximately seven minutes into the pursuit, Bailey passed a large box truck that had activated
its hazard lights. (1T. at 113). The box truck was travelling in the same lane as Bailey. Bailey
passed the box truck on the left at a rate of approximately 80 miles per hour. (1T. 112-113).
{¶6} The Subaru eventually turned onto a dirt road and although the officers went up
the road as well, they did not see the Subaru. According to the video, the pursuit terminated
after approximately nine minutes and twenty seconds.
{¶7} Officer Newman testified that it is not department policy to pursue a chase
at all costs due to the risk of physical injury to officers and other individuals. It is the policy
Tuscarawas County, Case No. 2016 AP 0032 4
of the Dennison Police Department to pursue car chases when the vehicle in question
is the subject of a felony investigation. Officer Newman admitted that this chase
ensued due to loud exhaust and there was no suspicion that it was linked to any felony
investigation.
{¶8} On cross-examination, Officer Newman admitted that the Subaru did not
drive through any yards during this pursuit. No accidents occurred. No vehicles on the
roadway had to drive erratically to avoid a collision with the Subaru. No one was walking
or standing in or near the road that needed to dive out of the way. No animals were
injured. No fences, mailboxes, or other structures were damaged.
{¶9} Neither Officer Newman nor Officer Barbie saw the driver of the Subaru on March
22, 2015. Officer Newman did obtain the license plate number of the Subaru and looked it up
to obtain information about the vehicle's owner. The vehicle was registered to B.W. (T. at 115).
After speaking to B.W., Officer Newman learned that B.W.’s ex-wife, P.W. possessed the
vehicle. (T. at 115-116).
{¶10} Another Dennison police officer saw the Subaru on March 26 and March 27,
2015 and then made contact with P.W. The officer's conversation with P.W. led him to believe
Bailey, P.W.'s boyfriend, may have been the driver in the alleged chase. (1T. at 117). Officer
Newman testified that he ultimately located Bailey on April 7, 2015, at an apartment in
Uhrichsville, Ohio. (1T. at 118 -119). Officer Newman transported Bailey to the Dennison Police
Department where Bailey had a conversation with Chief (then, Sergeant) Todd Beeman, also
of the Dennison Police Department. (1T. at 119-120). Officer Newman testified that he
witnessed Bailey signing a Miranda rights form and writing a statement that read, "I was nervous
so I fled from Dennison.” (1T. at 121; State's Exhibit B). Officer Newman further testified that
Tuscarawas County, Case No. 2016 AP 0032 5
based on Bailey’s LEADS printout, he knew Bailey was under a license suspension on March
22, 2015.
{¶11} Chief Todd Beeman testified that he was at the Dennison Police Department on
April 7, 2015, when Officer Newman brought Bailey in for questioning. (T. at 146-147). Chief
Beeman explained to Bailey that he was going to talk to Bailey about the fleeing and eluding
incident involving a green Subaru on March 22, 2015. (1T. at 148). He testified that Bailey told
him that he was nervous, so he left Denison. (1T. at 149). Bailey also allegedly wrote a
statement to that effect. (1T. at 148-149). The statement did not contain the date of the alleged
incident. (1T. at 151).
{¶12} On April 20, 2016, the jury found Bailey guilty of the charge in the indictment. The
jury made the additional finding that Bailey's operation of the motor vehicle did cause substantial
risk of serious physical harm to persons or property, which enhanced the degree of charge to a
felony of the third degree.
{¶13} Sentencing was deferred pending the completion of a presentence investigation
report. At a sentencing hearing on June 1, 2016, the Court sentenced Bailey to serve thirty-six
(36) months in prison.
I.
{¶14} In his sole assignment of error, Bailey argues that there was insufficient
evidence that his operation of a motor vehicle caused a substantial risk of physical injury.
Bailey further contends that the jury’s finding that his operation of a motor vehicle caused
a substantial risk of physical harm is against the manifest weight of the evidence.
{¶15} Our review of the constitutional sufficiency of evidence to support a criminal
conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61
Tuscarawas County, Case No. 2016 AP 0032 6
L.Ed.2d 560 (1979), which requires a court of appeals to determine 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 beyond a reasonable doubt.” Id.; see also
McDaniel v. Brown, 558 U.S. 120, 130 S.Ct. 665, 673, 175 L.Ed.2d 582(2010) (reaffirming
this standard); State v. Fry, 125 Ohio St.3d 163, 926 N.E.2d 1239, 2010–Ohio–1017, ¶
146; State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d 296, 2010–Ohio–2720, ¶ 68.
{¶16} Weight of the evidence addresses the evidence's effect of inducing belief.
State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), superseded by
constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio St.3d
89, 684 N.E.2d 668, 1997-Ohio–355. Weight of the evidence concerns “the inclination of
the greater amount of credible evidence, offered in a trial, to support one side of the issue
rather than the other. It indicates clearly to the jury that the party having the burden of
proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall
find the greater amount of credible evidence sustains the issue which is to be established
before them. Weight is not a question of mathematics, but depends on its effect in
inducing belief.” Id. at 387, 678 N.E.2d 541, quoting Black's Law Dictionary (6th Ed. 1990)
at 1594.
{¶17} When a court of appeals reverses a judgment of a trial court on the basis
that the verdict is against the weight of the evidence, the appellate court sits as a
“’thirteenth juror’” and disagrees with the fact finder’s resolution of the conflicting
testimony. Id. at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102
S.Ct. 2211, 72 L.Ed.2d 652 (1982). However, an appellate court may not merely
substitute its view for that of the jury, but must find that “‘the jury clearly lost its way and
Tuscarawas County, Case No. 2016 AP 0032 7
created such a manifest miscarriage of justice that the conviction must be reversed and
a new trial ordered.’” State v. Thompkins, supra, 78 Ohio St.3d at 387, quoting State v.
Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist. 1983). Accordingly,
reversal on manifest weight grounds is reserved for “‘the exceptional case in which the
evidence weighs heavily against the conviction.’” Id.“[I]n determining whether the judgment below is manifestly against
the weight of the evidence, every reasonable intendment and every
reasonable presumption must be made in favor of the judgment and the
finding of facts. * * *
“If the evidence is susceptible of more than one construction, the
reviewing court is bound to give it that interpretation which is consistent with
the verdict and judgment, most favorable to sustaining the verdict and
judgment.”
Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.
3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).
{¶18} R.C. 2921.331(B) provides, “No person shall operate a motor vehicle so as
willfully to elude or flee a police officer after receiving a visible or audible signal from a
police officer to bring the person's motor vehicle to a stop.” The statute further provides,
(5)(a) A violation of division (B) of this section is a felony of the third
degree if the jury or judge as trier of fact finds any of the following by proof
beyond a reasonable doubt:
(i) The operation of the motor vehicle by the offender was a
proximate cause of serious physical harm to persons or property.
Tuscarawas County, Case No. 2016 AP 0032 8
(ii) The operation of the motor vehicle by the offender caused a
substantial risk of serious physical harm to persons or property.
{¶19} “Substantial risk” means a strong possibility, as contrasted with a remote or
significant possibility, that a certain result may occur or that certain circumstances may
exist. R.C. 2901.01(A)(8).
{¶20} Under R.C. 2901.01(A)(6), “serious physical harm to property” means any
physical harm to property that does either of the following:
(a) Results in substantial loss to the value of the property or requires
a substantial amount of time, effort, or money to repair or replace;
(b) Temporarily prevents the use or enjoyment of the property or
substantially interferes with its use or enjoyment for an extended period of
time.
{¶21} Under R.C. 2901.01(A)(5), “serious physical harm to persons” means:
(a) Any mental illness or condition of such gravity as would normally
require hospitalization or prolonged psychiatric treatment;
(b) Any physical harm that carries a substantial risk of death;
(c) Any physical harm that involves some permanent incapacity,
whether partial or total, or that involves some temporary, substantial
incapacity;
(d) Any physical harm that involves some permanent disfigurement
or that involves some temporary, serious disfigurement;
Tuscarawas County, Case No. 2016 AP 0032 9
(e) Any physical harm that involves acute pain of such duration as to
result in substantial suffering or that involves any degree of prolonged or
intractable pain.
{¶22} Ample evidence exists from which a jury could find that Bailey’s driving
created a strong possibility of serious physical harm. When viewed in a light most
favorable to the prosecution, the evidence adduced at trial revealed that this pursuit
began in the Village of Dennison, a residential area. Bailey ran through a stop sign in this
area travelling approximately fifteen miles over the posted speed limit. While still in the
residential area, Bailey passed a car on the left, leaving his lane of travel, on a turn. After
Bailey left the residential area and was travelling on the state route, he passed an
oncoming car travelling above the posted speed limit of 55 miles per hour. At this point
in the pursuit, Officer Newman explained why he felt unsafe.
Q: Okay, Now, at this point, we're about three-fifty into the stop,
the chase. At this point do you recall, I mean did you, you just maneuvered
a right turn right there. Did you recall whether, you felt unsafe at this point
in terms of the chase?
A: After going around this turn, I started to feel unsafe.
Q: Okay. Tell us about that.
A: Well I know the portion of the road right there, there's been a
lot of accidents out that way in the past and as we continued gaining speed
I started to feel uneasy.
(1T. at 111). Officer Newman estimated his own speed at that point to be 70 miles per
hour and stated Bailey was pulling away from him. (1T. at 111). Officer Newman then
Tuscarawas County, Case No. 2016 AP 0032 10
momentarily slowed his speed and quit trying to keep close behind Bailey deciding that
"the risk of physical injury to not only the officers, but surrounding individuals, driver of
the vehicle, oncoming traffic" was too great. (1T. at 112). Officer Newman kept Bailey’s
taillights "in and out of sight at this point.” (1T. at 113) Officer Newman stated that over
seven and a half minutes into the pursuit Bailey came upon on a vehicle travelling in the
same lane with its hazard lights on. (1T. at 113) Officer Newman witnessed Bailey pass
what is viewed to be a box truck on the left and then turn onto a dirt road. (1T. at 113).
The pursuit ended on the road when Officer Newman lost sight of Bailey (1T. at 113).
{¶23} Viewing the evidence in the case at bar in a light most favorable to the
prosecution, we conclude that a reasonable person could have found beyond a
reasonable doubt that Bailey, while fleeing and eluding a police officer, caused a
substantial risk of serious physical harm to persons or property.
{¶24} We hold, therefore, that the state met its burden of production regarding
fleeing and eluding a police officer by causing a substantial risk of serious physical harm
to persons or property and, accordingly, there was sufficient evidence to support Bailey’s
convictions.
{¶25} Even if we were only to consider the “substantial risk” that Bailey posed to
himself, Ohio courts have held that a substantial risk to one’s self is sufficient for a
conviction under R.C. 2921.331(B) as a felony of the third degree. See State v. Hall, 8th
Dist. No. 92625, 2009–Ohio–5695 (finding that sufficient evidence of substantial risk of
physical harm existed where offender ran three to four stoplights, “nearly” collided with a
parked car, and where offender jumped from the vehicle while it was still moving, almost
running over himself); see also, State v. Moore, 8th Dist. No. 61673, 1993 WL 19604Tuscarawas County, Case No. 2016 AP 0032 11
(Jan. 28, 1993)(finding that offender put himself and passenger in danger of serious
physical harm by refusing to submit to officer’s order); State v. Payne, 3rd Dist. No. 5–
04–21, 2004–Ohio–6487 (determining that offender who ignored ten stop signs and
exceeded speeds of one hundred miles per hour and wrecked his car, causing his vehicle
significant damage, had placed himself and others at substantial risk of serious harm).
{¶26} Moreover, the mere fact that Bailey did not cause an actual collision with
another vehicle or serious harm is irrelevant. Here, he was convicted under R.C.
2921.331(C)(5)(a)(ii), which deals with a “substantial risk.” Because Bailey was fortunate
enough not to actually cause harm is of no consequence. It is only the strong possibility
that harm could occur that creates culpability under R.C. 2921.331(C)(3). State v.
Semenchuk, 122 Ohio App.3d 30, 701 N.E.2d 19(8th Dist. 1997); Accord, State v.
Garrard, 170 Ohio App.3d 487, 2007-Ohio-1244, ¶45(10th Dist.); State v. Harrison, 10th
Dist. Franklin No. 07AP-98, 2007-Ohio-5099, ¶19; State v. Love, 9th Dist. Summit No.
21654, 2004-Ohio-1422{¶27} Based on the circumstances described above, the jury could reasonably
conclude that a substantial risk of serious physical harm to persons or property existed
as a result of Bailey’s reckless driving.
{¶28} As an appellate court, we are not fact finders; we neither weigh the evidence
nor judge the credibility of witnesses. Our role is to determine whether there is relevant,
competent and credible evidence, upon which the fact finder could base his or her
judgment. Cross Truck v. Jeffries, 5th Dist. Stark No. CA–5758, 1982 WL 2911(Feb. 10,
1982). Accordingly, judgments supported by some competent, credible evidence going
to all the essential elements of the case will not be reversed as being against the manifest
Tuscarawas County, Case No. 2016 AP 0032 12
weight of the evidence. C.E. Morris Co. v. Foley Construction, 54 Ohio St.2d 279, 376
N.E.2d 578(1978). The Ohio Supreme Court has emphasized: “‘[I]n determining whether
the judgment below is manifestly against the weight of the evidence, every reasonable
intendment and every reasonable presumption must be made in favor of the judgment
and the finding of facts. * * *.’” Eastley v. Volkman, 132 Ohio St.3d 328, 334, 972 N.E.
2d 517, 2012-Ohio-2179, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77,
80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review,
Section 603, at 191–192 (1978). Furthermore, it is well established that the trial court is
in the best position to determine the credibility of witnesses. See, e.g., In re Brown, 9th
Dist. No. 21004, 2002–Ohio–3405, ¶ 9, citing State v. DeHass, 10 Ohio St.2d 230, 227
N.E.2d 212(1967).
{¶29} Ultimately, “the reviewing court must determine whether the appellant or the
appellee provided the more believable evidence, but must not completely substitute its
judgment for that of the original trier of fact ‘unless it is patently apparent that the fact
finder lost its way.’” State v. Pallai, 7th Dist. Mahoning No. 07 MA 198, 2008-Ohio-6635,
¶31, quoting State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964(2nd Dist. 2004), ¶ 81. In other words, “[w]hen there exist two fairly reasonable views of
the evidence or two conflicting versions of events, neither of which is unbelievable, it is
not our province to choose which one we believe.” State v. Dyke, 7th Dist. Mahoning No.
99 CA 149, 2002-Ohio-1152, at ¶ 13, citing State v. Gore, 131 Ohio App.3d 197, 201, 722
N.E.2d 125(7th Dist. 1999).
{¶30} The weight to be given to the evidence and the credibility of the witnesses
are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212(1967),
Tuscarawas County, Case No. 2016 AP 0032 13
paragraph one of the syllabus; State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960
N.E.2d 955, ¶118. Accord, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86
L.Ed. 680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct. 843, 74 L.Ed.2d
646 (1983).
{¶31} The jury as the trier of fact was free to accept or reject any and all of the
evidence offered by the parties and assess the witness’s credibility. "While the jury may
take note of the inconsistencies and resolve or discount them accordingly * * * such
inconsistencies do not render defendant's conviction against the manifest weight or
sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No. 99AP-739, 1999 WL
29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09-1236, 1996
WL 284714 (May 28, 1996). Indeed, the jury need not believe all of a witness' testimony,
but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin No. 02AP-
604, 2003-Ohio-958, ¶21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548(1964); State v. Burke, 10th Dist. Franklin No. 02AP-1238, 2003-Ohio-2889, citing State
v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although the
evidence may have been circumstantial, we note that circumstantial evidence has the
same probative value as direct evidence. State v. Jenks, 61 Ohio St.3d 259, 272, 574
N.E.2d 492 (1991), paragraph one of the syllabus, superseded by State constitutional
amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4,
684 N.E.2d 668 (1997).
{¶32} In the case at bar, the jury heard the witnesses, viewed the evidence and
heard Bailey’s arguments and explanations about the lack of evidence.
Tuscarawas County, Case No. 2016 AP 0032 14
{¶33} We find that this is not an “‘exceptional case in which the evidence weighs
heavily against the conviction.’” State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678
N.E.2d 541 (1997), quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The jury
neither lost his way nor created a miscarriage of justice in convicting Bailey of the charge.
{¶34} Based upon the foregoing and the entire record in this matter, we find
Bailey’s conviction is not against the sufficiency or the manifest weight of the evidence.
To the contrary, the jury appears to have fairly and impartially decided the matters before
them. The jury as a trier of fact can reach different conclusions concerning the credibility
of the testimony of the state’s witnesses and Bailey and his arguments. This court will
not disturb the jury's finding so long as competent evidence was present to support it.
State v. Walker, 55 Ohio St.2d 208, 378 N.E.2d 1049 (1978). The jury heard the
witnesses, evaluated the evidence, and was convinced of Bailey’s guilt.
{¶35} Finally, upon careful consideration of the record in its entirety, we find that
there is substantial evidence presented which if believed, proves all the elements of the
crime for which Bailey was convicted.
{¶36} Bailey’s sole assignment of error is overruled.
Tuscarawas County, Case No. 2016 AP 0032 15
{¶37} The judgment of the Tuscarawas County Court of Common Pleas,
Tuscarawas County, Ohio is affirmed.
By Gwin, P.J.,
Hoffman, J., and
Wise, John, J., concur