State v. Thieshen ( 2016 )

[Cite as State v. Thieshen, 2016-Ohio-3148.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 27897
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
WALTER THIESHEN BARBERTON MUNICIPAL COURT
COUNTY OF SUMMIT, OHIO
Appellant CASE No. 14 TRC 6282
DECISION AND JOURNAL ENTRY
Dated: May 25, 2016
HENSAL, Judge.
{¶1} Walter Thieshen appeals a judgment of the Barberton Municipal Court that
convicted and sentenced him for operating a vehicle under the influence of alcohol. For the
following reasons, this Court affirms.
I.
{¶2} Diana Loy testified that, on the evening of October 31, 2014, she was on her front
porch letting her dogs out when a truck suddenly struck the curb in front of her house then
careened across the road and up the embankment on the other side, where it stopped. Ms. Loy
was on her cell phone at the time, talking to her daughter Christina Rossiter, but hung up to call
the police. By the time she finished telling the police what had happened, her daughter had
arrived home and they went across the street together to see if anyone was injured. According to
Ms. Loy, there was only one man in the truck, Mr. Thieshen, who climbed out of the driver’s
side door just after they reached the truck, almost falling on to her daughter. Mr. Thieshen began
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speaking with her daughter, and Ms. Loy overheard him say that his “buddy” had been driving
the truck. He also wondered where his buddy had gone. According to Ms. Loy, she was in view
of the truck from the time of the crash to the time police arrived and never saw anyone other than
Mr. Thieshen exit or walk away from the truck.
{¶3} Ms. Rossiter testified that she was driving to her mother’s house at the time of the
crash and could hear it happen over the phone. She arrived at her mother’s house 30 seconds
later and saw the truck up on the embankment. According to Ms. Rossiter, when Mr. Thieshen
got out of the truck, he smelled strongly of alcohol and began asking about his friend. She did
not see anyone else in the truck or in the vicinity, but did see a pile of stuff on the front seat on
the passenger’s side of the truck.
{¶4} Sergeant Jeff Hagen testified that he arrived at the crash site about five or six
minutes after Ms. Loy reported it. When he arrived, he saw Mr. Thieshen, Ms. Loy, and Ms.
Rossiter near the truck. He spoke to Mr. Thieshen to make sure he was not injured. Mr.
Thieshen told him that someone named Dave had been driving the truck, but had headed away
from the crash going west. Sergeant Hagen had Mr. Thieshen perform field sobriety tests, and
then arrested him for operating under the influence. He also cited him for failure to control.
Sergeant Hagen corroborated Ms. Rossiter’s report that there was a lot of stuff in the passenger
side of the truck. After another officer and a tow truck arrived, Sergeant Hagen took Mr.
Thieshen to the police station. At the station, the Sergeant tested the alcohol content of Mr.
Thieshen’s urine, which exceeded the statutory limit.
{¶5} At trial, Mr. Thieshen called his brother-in-law, LD Smith, who testified that he
was the one driving the truck at the time of the crash. Mr. Smith testified that Mr. Thieshen’s
fiancée asked him to bring Mr. Thieshen home from a bar. When Mr. Smith arrived at the bar,
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Mr. Thieshen agreed to go home, but wanted Mr. Smith to drive his truck because he had a
bunch of supplies in its bed. Mr. Smith agreed, thinking he could have Mr. Thieshen’s fiancée
bring him back out to the bar to pick up his car later that evening. A short distance from the bar,
however, one of the rear tires of the truck blew out, causing the crash. Mr. Smith testified that he
left Mr. Thieshen at the truck and walked east back to the bar so that he could use his car to
retrieve a new tire for the truck and to borrow a truck from a friend that would be capable of
pulling Mr. Thieshen’s truck out of the ditch it was in. Because of the distances involved, it took
him three hours to return to the crash site. By that time, the truck and Mr. Thieshen were gone,
so he called Mr. Thieshen’s fiancée. After learning that Mr. Thieshen had been arrested, Mr.
Smith returned home.
{¶6} Mr. Thieshen testified that he was pretty inebriated at the time of the crash, but he
affirmed that Mr. Smith was driving. He explained that the reason he told the sergeant that
“David” had been driving the truck is because the letters in Mr. Smith’s first name do not stand
for anything, so he had taken to calling Mr. Smith “Larry David” or just David. He explained
that his truck has a bench seat in the front, and so when he heard the women approaching his
truck to check on him, he slid over to the driver’s side and exited out of that side of the truck.
{¶7} A jury found Mr. Thieshen guilty of operating a vehicle under the influence of
alcohol, operating a vehicle with a prohibited blood alcohol concentration, and failure to control.
The municipal court sentenced him to spend 180 days in a multiple offender program. Mr.
Thieshen has appealed, assigning as error that his convictions are against the manifest weight of
the evidence.
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II.
ASSIGNMENT OF ERROR
THIESHEN’S CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE, MERITING REVERSAL.
{¶8} Mr. Thieshen argues that his convictions are against the manifest weight of the
evidence. Specifically, he argues that the State failed to meet its burden of persuasion beyond a
reasonable doubt because it failed to prove that he was driving his truck at the time of the crash.
If a defendant asserts that his convictions are 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 pertains to the
greater amount of credible evidence produced in a trial to support one side over the other side.
State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). An appellate court should only exercise its
power to reverse a judgment as against the manifest weight of the evidence in exceptional cases.
State v. Carson, 9th Dist. Summit No. 26900, 2013-Ohio-5785, ¶ 32, citing Otten at 340.
{¶9} Mr. Thieshen notes that the State only presented one witness who saw the
accident. He notes that it was dark and rainy at the time, which could explain why Ms. Loy did
not see Mr. Smith walk away from the truck. He also argues that there were inconsistencies in
Ms. Loy’s description of how the crash occurred, casting doubt on her credibility. Mr. Thieshen
further argues that the damage to his tire and truck were consistent with Mr. Smith and his
testimony.
{¶10} The inconsistencies in Ms. Loy’s testimony were, at best, minor. Mr. Smith, on
the other hand, testified the truck ended up nose down in a ditch, while the other witnesses and
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the photographic evidence established that it was pointed nose up on an embankment. Following
the crash, Mr. Thieshen told Sergeant Hagen that Mr. Smith walked west from the crash site, but
Mr. Smith testified that he went back east to the bar where they had started. Mr. Smith also did
not come forward at any point before trial to indicate that he was the driver of the truck. The tow
truck driver who recovered Mr. Thieshen’s truck testified that, a few days before trial, Mr.
Thieshen called him to ask him to testify that the crash happened because his rear tire blew out.
In addition, Ms. Rossiter’s and Sergeant Hagen’s testimony that there was a bunch of stuff piled
where the front passenger would sit is inconsistent with Mr. Thieshen’s claim that he had been
sitting there before the crash. Furthermore, although Mr. Thieshen claimed that the reason he
asked Sergeant Hagen where David was is because that is how he refers to Mr. Smith, Mr.
Thieshen actually called Mr. Smith “Skip” several times during his testimony, which is the
nickname most people use for Mr. Smith.
{¶11} The jury was in the best position to view the witnesses and assess their credibility.
State v. Bulls, 9th Dist. Summit No. 27029, 2015-Ohio-276, ¶ 24. It was also free to believe all,
part, or none of their testimony. Id. Upon review of the record, we cannot say that the jury lost
its way when it found that Mr. Thieshen was the person operating his truck at the time of the
crash. Mr. Thieshen’s assignment of error is overruled.
III.
{¶12} Mr. Thieshen’s convictions are not against the manifest weight of the evidence.
The judgment of the Barberton Municipal Court is affirmed.
Judgment affirmed.
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There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Barberton
Municipal Court, County of Summit, State of Ohio, to carry this judgment into execution. A
certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
CARR, P. J.
SCHAFER, J.
CONCUR.
APPEARANCES:
KRISTEN KOWALSKI, Attorney at Law, for Appellant.
HOLLY REESE, Assistant Prosecuting Attorney, for Appellee.