State v. Arquilla , 2012 Ohio 3925 ( 2012 )

[Cite as State v. Arquilla, 2012-Ohio-3925.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Julie A. Edwards, J.
-vs- :
:
NINO A. ARQUILLA : Case No. 11AP110045
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the New Philadelphia
Municipal Court, Case No.
TRC1003644
JUDGMENT: Affirmed
DATE OF JUDGMENT: August 24, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DOUG JACKSON FREDERICK PITINII
150 East High Avenue Bank One Tower
Suite 113 101 Central Plaza South
New Philadelphia, OH 44663 Suite 1000
Canton, OH 44702
Tuscarawas County, Case No. 11AP110045 2
Farmer, J.
{¶1} On July 24, 2010, a vehicle driven by Kristine Himes was struck in the rear
while stopped to make a left turn. The driver who struck Ms. Himes left the scene
without stopping to speak with Ms. Himes. Another motorist, Sarah Goff, witnessed the
accident and followed the vehicle to obtain its license plate number. Ms. Goff returned
to the scene of the accident and gave the plate number to Ms. Goff and made a
statement to the investigating officer, Ohio State Highway Patrol Trooper Roy Beach.
{¶2} Trooper Beach ran the license plate number and discovered the vehicle
was owned by Kim Hunt. Trooper Beach went to Ms. Hunt's residence whereupon Ms.
Hunt stated her boyfriend, appellant, Nino Arquilla, had possession of her vehicle.
{¶3} Following an investigation, appellant was charged with operating a motor
vehicle while under the influence in violation of R.C. 4511.19, failure to maintain
assured clear distance in violation of R.C. 4511.21, leaving the scene in violation of
R.C. 4549.02, and operating a motor vehicle without a valid driver's license in violation
of R.C. 4510.12.
{¶4} A bench trial before a magistrate commenced on April 14, 2011. By
decision filed same date, the magistrate found appellant guilty as charged and
recommended a total aggregate sentence of three hundred and sixty days in jail.
Appellant filed objections. By judgment entry filed November 7, 2011, the trial court
denied the objections and approved and adopted the magistrate's decision.
{¶5} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
Tuscarawas County, Case No. 11AP110045 3
I
{¶6} "THE TRIAL COURT ERRED AS A MATTER OF LAW IN FAILING TO
COMPLY WITH THE REQUIREMENTS OF OHIO CRIMINAL RULE 5 AND ADVISING
THE APPELLANT OF HIS RIGHT TO JURY TRIAL."
II
{¶7} "THE APPELLANT WAS DENIED HIS RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL."
III
{¶8} "THE MAGISTRATE ERRED IN IMPOSING CONSECUTIVE AND
MAXIMUM SENTENCES."
IV
{¶9} "THE TRIAL COURT'S FINDING OF GUILTY WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE AND WAS NOT SUPPORTED BY
SUFFICIENT EVIDENCE."
I
{¶10} Appellant claims the trial court erred in not informing him of his right to a
jury trial. We disagree.
{¶11} Crim.R. 5(A)(5) states a trial court shall inform a defendant "[o]f his right,
where appropriate, to jury trial and the necessity to make demand therefor in petty
offense cases."
{¶12} Although a transcript of the arraignment hearing was filed, appellant
argues there is no proof that he was present at the time of the trial court's Crim.R. 5
admonitions as the magistrate addressed the defendants as a group. July 29, 2010 T.
Tuscarawas County, Case No. 11AP110045 4
at 2-3. However, there is a judgment entry signed by the trial court and filed on August
2, 2010 setting the trial date and stating, "[y]ou are also advised that if you are entitled
to and demand a jury trial, you must file a JURY DEMAND in writing at least ten (10)
days before the date set for trial."
{¶13} Upon review, we conclude the trial court informed appellant of his right to
a jury trial.
{¶14} Assignment of Error I is denied.
II
{¶15} Appellant claims he was denied the effective assistance of trial counsel as
his counsel failed to object to a hearsay statement, failed to file a motion to suppress on
probable cause to arrest, and failed to request a separation of witnesses. We disagree.
{¶16} The standard this issue must be measured against is set out in State v.
Bradley (1989), 42 Ohio St.3d 136, paragraphs two and three of the syllabus, certiorari
denied (1990), 497 U.S. 1011. Appellant must establish the following:
{¶17} "2. Counsel's performance will not be deemed ineffective unless and until
counsel's performance is proved to have fallen below an objective standard of
reasonable representation and, in addition, prejudice arises from counsel's
performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2 O.O.3d 495, 358 N.E.2d 623;
Strickland v. Washington [1984], 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674,
followed.)
{¶18} "3. To show that a defendant has been prejudiced by counsel's deficient
performance, the defendant must prove that there exists a reasonable probability that,
were it not for counsel's errors, the result of the trial would have been different."
Tuscarawas County, Case No. 11AP110045 5
{¶19} The witness, Ms. Goff, testified after she observed the accident and the
driver leave the scene, she and her fiancé followed the vehicle (a maroon Ford
Excursion) to obtain the license plate number. T. at 12, 14-15. Ms. Goff was driving so
her fiancé wrote down the number. T. at 17. They returned to the scene and Ms. Goff
gave the number to Ms. Himes who in turn read the number to the police dispatcher. T.
at 16. The plate was registered to Kim Hunt who testified appellant had possession of
the vehicle at the time of the accident. T. at 30.
{¶20} Appellant claims the license plate number information given by Ms. Goff
was not of her personal knowledge. Ms. Goff specifically testified she followed the
vehicle to obtain the plate number and because she was driving, her fiancé wrote down
the number. We fail to find that her testimony was hearsay as it was made with her
personal knowledge.
{¶21} Appellant claims his trial counsel should have filed a motion to suppress
because there was no probable cause to arrest him. From the trial record, evidence
was presented to establish that appellant consumed alcohol between 5:00 p.m. and
6:30 p.m. the evening of the accident which occurred at approximately 8:30 p.m. T. at
10, 28-29. Trooper Beach had a physical description of the driver and the license plate
number of the vehicle. T. at 45-47. When Trooper Beach found the vehicle, it had
front-end damage "very consistent with a collision to the front of the vehicle." T. at 51.
Trooper Beach noticed that appellant had a strong odor of alcoholic beverage about his
person and his eyes were bloodshot and glassy. T. at 50. Appellant refused to perform
field sobriety tests. T. at 50, 59. Trooper Beach based his arrest of appellant for
operating a motor vehicle while under the influence on the following observations:
Tuscarawas County, Case No. 11AP110045 6
{¶22} "A. The strong odor of the alcoholic beverage coming from Mr. Arquilla
when he spoke, his eyes were bloodshot and glassy, he admitted to consuming alcohol
- - he admitted to consuming alcohol but he stated he hadn't consumed anything for the
last seven hours so that told me that he had nothing after the crash according to him,
and his uncooperative nature and failure to do the field sobriety tests.
{¶23} "Q. Would the crash itself lead you to an indication of impairment?
{¶24} "A. Absolutely.
{¶25} "Q. Tell me about that.
{¶26} "A. Well, first of all, he ran into the back of somebody and then the witness
also stated that there was no braking which is consistent with somebody possibly under
the influence of alcohol failure to see the vehicle in front of them.
{¶27} "Q. No reaction.
{¶28} "A. Correct. And then leaving the scene would be consistent also with
possibly an impaired driver not wanting to stick around at the scene." T. at 53-54.
{¶29} Probable cause to arrest exists when a reasonable prudent person would
believe that the person arrested had committed a crime. State v. Timson (1974), 38
Ohio St.2d 122. A determination of probable cause is made from the totality of the
circumstances. Factors to be considered include an officer's observation of some
criminal behavior by the defendant, furtive or suspicious behavior, flight, events
escalating reasonable suspicion into probable cause, association with criminal and
locations. Katz, Ohio Arrest, Search and Seizure (2001 Ed.), 83-88, Sections. 3.12-
3.19.
Tuscarawas County, Case No. 11AP110045 7
{¶30} The testimony does not reflect that a motion to suppress to challenge
probable cause to arrest would have been successful.
{¶31} Appellant claims his counsel should have asked for a separation of
witnesses in particular, Trooper Beach. Trooper Beach was the arresting officer and it
was he who signed the complaint. A law enforcement officer is permitted to remain in
the courtroom as a representative of the state even if the officer is to be a witness.
Evid.R. 615; State v. Fuller (September 26, 1997), Hamilton App. No. C-960753. We
are unaware that this practice is a constitutional violation or that it affected the outcome
of the trial.
{¶32} Upon review, we do not find any ineffective assistance of counsel on the
complained of issues.
{¶33} Assignment of Error II is denied.
III
{¶34} Appellant claims the trial court erred in granting consecutive, maximum
sentences. We disagree.
{¶35} In sentencing appellant, the magistrate stated the following:
{¶36} "Everybody here knows what happened. Your girlfriend came up to your
house, she brought alcohol, you and she argued, she left and came home. You - -
whether you continued to drink or not I don't know, but obviously you were following up
following an argument with your girlfriend, you came down 77, you got off 212, you
turned left, you were headed to her house, your weren't paying attention, you were
impaired and you destroyed her vehicle. And then you went and you continued to your
girlfriend's house, you never told her what happened, you never called the police, you
Tuscarawas County, Case No. 11AP110045 8
parked the vehicle over on the side where nobody would see it, you got on the computer
and you were trying to figure out what you were going to do because you knew that you
were probably going to be going to prison because as the prosecutor pointed out it was
a felony situation. Why it ended up in this court is not my call. But that is what
happened that night and there's no question about any of it. So you can sit there and
think whatever you want to think and pretend whatever you want to pretend. You, as
these people learned the hard way, are a dangerous person because you're almost like
sociopathic. You have no empathy, you have no concern about anybody but you. You
didn't care if her neck was broken, you didn't care anything about her. All you cared
about was that you might get caught and get in trouble again and have to go to prison
and that was the only concern that you had that night. Those are the facts and that's
how I have to make my decision. Your driving record is atrocious. Probably one of the
worst that we've seen. Maybe not the worst but one of the worst. I don't see anything
mitigating here in any way, shape or form, not one mitigating fact in this case, nothing
that mitigates in your favor. Everything is aggravated." T. at 82-83.
{¶37} Appellant's record includes several convictions for driving under the
influence in " '87, '88, '96, '96, '96, '98 and 2001. And that one, the 2001, I believe was
a felony conviction because it was out of Stark County Common Pleas Court." T. at 77.
The trial court noted "all of those convictions are also convictions for driving under
suspension. You know, what is most notable is the fact that he hasn't had a driver's
license since 1992. He shouldn't be driving at all." Id.Tuscarawas County, Case No. 11AP110045 9
{¶38} Upon review, we fail to find the trial court erred in sentencing appellant,
considering the length of appellant's record and his attitude and indifference to the
accident he caused.
{¶39} Assignment of Error III is denied.
IV
{¶40} Appellant claims his convictions were against the sufficiency and manifest
weight of the evidence. We disagree.
{¶41} On review for sufficiency, a reviewing court is to examine the evidence at
trial to determine whether such evidence, if believed, would support a conviction. State
v. Jenks (1991), 61 Ohio St.3d 259. "The 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." Jenks at
paragraph two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307. On
review for manifest weight, a reviewing court is to examine 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 jury 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. Martin (1983), 20 Ohio App.3d 172, 175. See also, State
v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. The granting of a new trial "should be
exercised only in the exceptional case in which the evidence weighs heavily against the
conviction." Martin at 175. We note circumstantial evidence is that which can be
"inferred from reasonably and justifiably connected facts." State v. Fairbanks (1972), 32
Ohio St.2d 34, paragraph five of the syllabus. "[C]ircumstantial evidence may be more
Tuscarawas County, Case No. 11AP110045 10
certain, satisfying and persuasive than direct evidence." State v. Richey, 64 Ohio St.3d
353, 1992-Ohio-44. It is to be given the same weight and deference as direct evidence.
State v. Jenks (1991), 61 Ohio St.3d 259.
{¶42} Appellant was convicted of operating a motor vehicle while under the
influence in violation of R.C. 4511.19(A)(1)(a), failure to maintain assured clear distance
in violation of R.C. 4511.21(A), leaving the scene in violation of R.C. 4549.02, and
operating a motor vehicle without a valid driver's license in violation of R.C. 4510.12:
{¶43} "[R.C. 4511.19(A)(1)(a)] No person shall operate any vehicle, streetcar, or
trackless trolley within this state, if, at the time of the operation, any of the following
apply:
{¶44} "(a) The person is under the influence of alcohol, a drug of abuse, or a
combination of them.
{¶45} "[R.C. 4511.21(A)] No person shall operate a motor vehicle, trackless
trolley, or streetcar at a speed greater or less than is reasonable or proper, having due
regard to the traffic, surface, and width of the street or highway and any other
conditions, and no person shall drive any motor vehicle, trackless trolley, or streetcar in
and upon any street or highway at a greater speed than will permit the person to bring it
to a stop within the assured clear distance ahead.
{¶46} "[R.C. 4549.02] In case of accident to or collision with persons or property
upon any of the public roads or highways, due to the driving or operation thereon of any
motor vehicle, the person driving or operating the motor vehicle, having knowledge of
the accident or collision, immediately shall stop the driver's or operator's motor vehicle
at the scene of the accident or collision and shall remain at the scene of the accident or
Tuscarawas County, Case No. 11AP110045 11
collision until the driver or operator has given the driver's or operator's name and
address and, if the driver or operator is not the owner, the name and address of the
owner of that motor vehicle, together with the registered number of that motor vehicle,
to any person injured in the accident or collision or to the operator, occupant, owner, or
attendant of any motor vehicle damaged in the accident or collision, or to any police
officer at the scene of the accident or collision.
{¶47} "[R.C. 4510.12] No person, except those expressly exempted under
sections 4507.03, 4507.04, and 4507.05 of the Revised Code, shall operate any motor
vehicle upon a public road or highway or any public or private property used by the
public for purposes of vehicular travel or parking in this state unless the person has a
valid driver's license issued under Chapter 4507. of the Revised Code or a commercial
driver's license issued under Chapter 4506. of the Revised Code."
{¶48} Appellant argues there was insufficient proof to establish that he was the
operator of the vehicle, the maroon Ford Excursion, when it crashed into the rear of Ms.
Himes's vehicle.
{¶49} Ms. Goff testified she observed a maroon Ford Excursion strike the rear of
a vehicle and then leave the scene. T. at 12-13. She and her fiancé followed the
Excursion to obtain its license plate number. T. at 14-15. Ms. Goff testified she
observed only a driver and no passengers, and from a silhouette, the driver appeared to
be "bigger, you know, taller, huskier, long hair" and wearing "some sort of hat or
something on." T. at 15, 25. Appellant matched this description. T. at 49-50.
{¶50} The owner of the Ford Excursion, Ms. Hunt, testified she was with
appellant earlier in the evening and they drank beer together for about an hour and a
Tuscarawas County, Case No. 11AP110045 12
half around 5:00 p.m. to 6:30 p.m. T. at 28-29. The Excursion was at appellant's house
and his mother had driven it during the day. T. at 30. Ms. Hunt did not drive the
Excursion on July 24, 2010 as she drove her Jeep instead. T. at 30-31. Appellant
arrived at Ms. Hunt's residence around 10:00 p.m. T. at 31. The Excursion was parked
at Ms. Hunt's residence. T. at 48. About an hour later, Trooper Beach arrived to inquire
about the vehicle. T. at 34. Much to Ms. Hunt's surprise, the Excursion had front-end
damage. T. at 51-52. Ms. Hunt admitted to Trooper Beach that appellant had
possession of the Excursion and "it was at his mom's house the last time I saw it." T. at
34. She testified appellant had the keys to the Excursion as she assumed "the keys
were with the vehicle" and both appellant and the Excursion were at her home. T. at 34.
{¶51} Although the evidence is circumstantial, the conclusion is obvious. Direct
evidence established appellant matched the description of the driver, had possession of
the vehicle and its keys on the date in question, and appellant and the vehicle magically
arrived at Ms. Hunt's residence in Bolivar immediately following the accident.
{¶52} Upon review, we find sufficient credible evidence that appellant was the
driver of the vehicle, and no manifest miscarriage of justice.
{¶53} Assignment of Error IV is denied.
Tuscarawas County, Case No. 11AP110045 13
{¶54} The judgment of the New Philadelphia Municipal Court of Tuscarawas
County, Ohio is hereby affirmed.
By Farmer, P.J.
Wise, J. and
Edwards, J. concur.
s/ Sheila G. Farmer___________
s/ John W. Wise____________
s/ Julie A. Edwards__________
JUDGES
SGF/sg 801
[Cite as State v. Arquilla, 2012-Ohio-3925.]
IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
NINO A. ARQUILLA :
:
Defendant-Appellant : CASE NO. 11AP110045
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the New Philadelphia Municipal Court of Tuscarawas County, Ohio is
affirmed. Costs to appellant.
s/ Sheila G. Farmer___________
s/ John W. Wise____________
s/ Julie A. Edwards__________
JUDGES