State v. Atwood , 2020 Ohio 3732 ( 2020 )

[Cite as State v. Atwood, 2020-Ohio-3732.]
COURT OF APPEALS
COSHOCTON COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. Patricia A. Delaney, J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 2019CA0019
DRAKE ATWOOD :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from Coshocton Municipal
Court, Case No. TRD 1901069(A)
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 15, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JAMES SKELTON ROBERT WEIR
Prosecutor 239 North 4th Street
760 Chestnut Street Coshocton, OH 43812
Coshocton, OH 43812
[Cite as State v. Atwood, 2020-Ohio-3732.]
Gwin, P.J.
{¶1} Appellant Drake Atwood appeals from the October 16, 2019 judgment entry
of the Coshocton Municipal Court. Appellee is the State of Ohio.
Facts & Procedural History
{¶2} On August 18, 2019, Deputy Alex Troyer issued a traffic citation to
appellant, charging appellant with failure to control (R.C. 4511.202) and leaving the scene
(R.C. 4549.02).
{¶3} On August 26, 2019, the trial court issued a judgment entry stating appellant
was in court where: the summons charging him with leaving the scene and failure to
control was read to him; appellant pled not guilty to the charges; and appellant requested
court-appointed counsel.
{¶4} The trial court conducted a bench trial on October 2, 2019. Jordan Reigle
(“Reigle”), an EMT, testified he witnessed a crash on August 18, 2019 at approximately
2:00 a.m. or 3:00 a.m. near the intersection of U.S. 36 and County Road 27 in Bethlehem
Township. Reigle was passed by a vehicle at a high rate of speed. The vehicle lost
control, swerving back and forth, and went into a corn/soybean field. Reigle then pulled
over, turned on his lights, and advised dispatch of a possible accident with injuries
because of the vehicle’s high rate of speed.
{¶5} Reigle testified that appellant drove out of the field closer to the road and
started to approach Reigle’s vehicle. Reigle knew appellant because he went to high
school with him. Appellant approached Reigle’s vehicle, told Reigle he was okay, and
asked Reigle if he would cancel the responding units because he was okay and because
he was not allowed to be out that late at night. Reigle told appellant he would try to cancel
Coshocton County, Case No. 2019CA0019 3
them, because Reigle did not want to cause any tension. Reigle advised appellant it
probably was not a good idea to leave the scene until the deputies got there, but appellant
got in his car and drove off.
{¶6} Reigle walked through the field and found appellant’s license plate and
advised dispatch of the license plate number. Reigle testified that appellant did not make
any attempt to leave his information with Reigle. Reigle spoke to the officer that night
and gave him a statement.
{¶7} Deputy Alex Troyer (“Troyer”), of the Coshocton County Sheriff’s Office,
was dispatched to the accident at 2:51 a.m. and met Reigle on U.S. 36. Appellant was
not at the scene of the accident. Immediately after Troyer met with Reigle, Troyer was
called to a domestic dispute out of the county, so he did not have the opportunity to
attempt to locate appellant at that time. Troyer spoke to appellant later that same day at
the station at 4:20 p.m. As far as Troyer was aware, appellant had not made any attempt
to speak to the owner of the land. Troyer took photos of the damage appellant caused to
the farm. Appellee introduced these photographs into evidence as Exhibit 1. By the time
Troyer spoke to appellant, appellant had taken his car to the body shop. As far as Troyer
was aware, appellant did not report the accident to the sheriff’s department prior to coming
to the station. Troyer issued appellant a citation for failure to control and leaving the
scene of the accident.
{¶8} On cross-examination, Troyer testified that even though appellant was not
at the scene of the accident, the license plate and rear bumper of the vehicle were there.
Coshocton County, Case No. 2019CA0019 4
{¶9} When Troyer spoke with the owner of the farm, he did not specifically ask
him if appellant contacted him. At the station, Troyer told appellant not to contact the
owner.
{¶10} At the conclusion of appellee’s case, appellant made a Rule 29 motion for
acquittal. Counsel for appellant argued there was no damage to personal property and
counsel argued appellant was told not to contact the owner of the property. The trial court
overruled appellant’s Rule 29 motion for acquittal.
{¶11} Appellee made a motion to reopen its case and amend from R.C. 4549.02
to R.C. 4549.03. Appellant objected to the motion. The trial court granted the motion to
amend, finding no prejudice to appellant. However, the trial court asked counsel for
appellant if he wanted a continuance and then granted a continuance upon appellant’s
request.
{¶12} The trial court continued the trial to October 16, 2019. Appellant renewed
his Rule 29 motion as to the amended charge, R.C. 4549.03. Counsel for appellant and
counsel for appellee made arguments to the court regarding the Rule 29 motion. The trial
court inquired of counsel for appellant as to whether he had any argument about the
failure to control charge, and counsel for appellant stated he had no argument and
appellant would plead guilty to that charge. The trial judge then said he was, “going to
find the defendant guilty of both a violation of the failure-to-control citation under 4511.202
as well as the amended charge of a violation of 4549.03.” Counsel for appellant then
stated appellant wanted to testify. After calling appellant to the stand, counsel for
appellant moved for a mistrial because the trial court found appellant guilty of a violation
of R.C. 4549.03. The trial court denied the motion and apologized, stating he misspoke
Coshocton County, Case No. 2019CA0019 5
and misunderstood appellant’s position and thought appellant was resting his case. The
trial court stated, “I can’t find him guilty if he had not, in fact, rested and wished to present
evidence.”
{¶13} Appellant testified that he was driving at approximately 3:00 a.m. because
he had a family friend who wanted some work done at her home. Since she leaves to go
to work at 4:00 a.m., appellant wanted to get to the work site so she could instruct him on
what to do. Appellant lost control of his vehicle and drove into the field while en route to
her house. Appellant stated he knew who the owner of the field was and there were no
houses in the immediate area where he went off the road. Appellant testified the owners
of the field, the Reissers, are his neighbors.
{¶14} Appellant stated he told the witness he was fine and he was not injured.
After the witness told appellant he already called dispatch, appellant said, “I’m on
probation and I probably should have notified that I was going to be out this early but I
have not done that yet, which that – it was one of them things where, once an accident
happened, then it just clicked into my mind, shoot, I forgot to make the phone call to allow
the proper people to know that I was going to do this job.” Appellant continued, “so, yes,
I did ask him if he could cancel it being that I was okay. I did not do it in an attempt to
hide evidence or to run * * * I knew who owned the property. I would tend to it whenever
I got off work.” Appellant stated he then went to work for eight hours. When he returned
at approximately noon, he took his car to the body shop, and then went to the sheriff’s
office to report the accident. Appellant testified he told the deputy he was going to notify
the owners of the property of the accident, but the officer told him not to contact them.
Appellant stated he was not intoxicated at the time of the accident and thought he did the
Coshocton County, Case No. 2019CA0019 6
right thing because he knew who the owner was and he was going to contact him later
that day.
{¶15} On cross-examination, appellant stated he is in a treatment in lieu program
for aggravated possession of Percocet. Appellant stated he planned to get to the house
between 3:10 a.m. and 3:15 a.m. to work and the person he was working for was the
person who picked him up at the body shop in Coshocton at noon.
{¶16} Appellant testified he did not know the police were coming. Rather, he knew
EMS was coming and asked Reigle to cancel because he did not need medical treatment.
Counsel for appellee asked appellant, “why would you care about telling the EMS that
you’re on probation.” Appellant, responded, “Um.” Counsel for appellee continued,
“you’d care because the cops are coming with the EMS; right?” Appellant responded
“Umm. Yeah. I’m not sure what you’re, like – no. How am I supposed to know? I’m not
an EMS. I don’t know if the police come with ---.” Appellant testified he left the scene of
the accident because he was going to work.
{¶17} Appellant renewed his Criminal Rule 29 motion. The trial court denied the
motion. The trial court found appellant guilty of R.C. 4549.03 and failure to control; also,
the trial court found appellant’s testimony “doesn’t really help his case.” The trial court
sentenced appellant to seven days in jail, stayed pending appeal. The trial court issued
a judgment entry on October 16, 2019.
{¶18} Appellant appeals the October 16, 2019 judgment entry of the Coshocton
Municipal Court and assigns the following as error:
{¶19} “I. THE TRIAL COURT ERRED BY DENYING APPELLANT’S CRIM. R. 29
MOTION FOR ACQUITTAL.
Coshocton County, Case No. 2019CA0019 7
{¶20} II. THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO
GRANT APPELLANT A MISTRIAL AT THE CLOSE OF APPELLEE’S CASE-IN-CHIEF.
{¶21} III. THE DECISION OF THE TRIAL COURT, FINDING APPELLANT
GUILTY OF VIOLATING O.R.C. 4549.03, WAS AGAINST THE SUFFICIENCY OF THE
EVIDENCE.
{¶22} IV. THE DECISION OF THE TRIAL COURT, FINDING APPELLANT
GUILTY OF VIOLATING O.R.C. 4549.03, WAS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.”
I. & III.
{¶23} In his first assignment of error, appellant argues the trial court erred by
denying his Rule 29 motion for acquittal. In his third assignment of error, appellant
contends the decision of the trial court finding appellant guilty of R.C. 4549.03 was against
the sufficiency of the evidence.
{¶24} An appellate court reviews a denial of a Crim.R. 29 motion for acquittal
using the same standard used to review a sufficiency of the evidence claim. State v.
Larry, 5th Dist. Holmes No. 15CA011, 2016-Ohio-829. We therefore consider appellant’s
first and third assignments of error together. The standard of review for a challenge to
the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d
492 (1991), in which the Ohio Supreme Court held, “an appellate court’s function when
reviewing the sufficiency of the evidence to support a criminal conviction is to examine
the evidence admitted at trial to determine whether such evidence, if believed, would
convince the average mind of the defendant’s guilt beyond a reasonable doubt. The
relevant inquiry is whether, after viewing the evidence in a light most favorable to the
Coshocton County, Case No. 2019CA0019 8
prosecution, any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.”
{¶25} Appellant was convicted of R.C. 4549.03 which provides, in pertinent, part:
(A) The driver of any vehicle involved in an accident resulting in damage to
real property, or personal property attached to real property, legally upon or
adjacent to a public road or highway immediately shall stop and take
reasonable steps to locate and notify the owner or person in charge of the
property of that fact, of the driver’s name and address, and of the
registration number of the vehicle the driver is driving * * *If the owner or
person in charge of the property cannot be located after reasonable search,
the driver of the vehicle involved in the accident resulting in damage to the
property, within twenty-four hours after the accident, shall forward to the
police department * * * the same information required to be given to the
owner * * *and give the location of the accident and a description of the
damage insofar as it is known.
(B) Whoever violates (A) of this section is guilty of failure to stop after an
accident involving the property of others, a misdemeanor of the first degree.
{¶26} Appellant argues he was not required to conduct a reasonable search for
the owner of the property since he knew who the owner was and since a reasonable
search was impossible because there were no houses in the area and it was 3:00 a.m. in
the morning. We disagree with appellant.
{¶27} It is undisputed that appellant was involved in an accident resulting in
damage to property. R.C. 4549.03 makes clear that appellant, “immediately shall stop
Coshocton County, Case No. 2019CA0019 9
and take reasonable steps to locate and notify the owner * * * of that fact.” Reigle
witnessed the crash and testified that appellant asked Reigle to cancel the responding
units because he was okay and because he was not allowed to be out that late at night.
Appellant confirmed during his testimony that he asked Reigle to cancel dispatch because
he was not injured. Appellant also confirmed he was on probation and forgot to call his
probation officer to tell him he was going to a job that morning. Reigle advised appellant
it was not a good idea to leave the scene until the deputies got there, but appellant got in
his car and drove off. Troyer testified that when he arrived on the scene, appellant was
not at the scene of the accident. Appellant testified he left the scene to go to work and
was planning to notify the owner of the accident the next day.
{¶28} The evidence establishes that appellant did not immediately stop and take
reasonable steps to notify the owner of the accident, despite the fact that he knew the
owner. Appellant took no steps at all to locate and notify the owner of the accident and
instead left the scene of the accident before the officer arrived several minutes later.
Appellant could have taken reasonable steps to locate and notify the owner by waiting for
the deputy to arrive at the scene. We agree with the First District’s analysis in Muchmore,
that, despite the late hour, appellant was in violation of the statute when he fled the scene
and did not take any steps to notify the owner of the accident. State v. Muchmore, 1st
Dist. Hamilton No. C-140056, 2014-Ohio-5096 (overruling appellant’s argument that there
were no reasonable steps he could have taken late at night to locate the owner and
overruling appellant’s argument that he complied with the statute when he told police
about the accident within the twenty-four-hour reporting period); see also State v. Cecil,
12th Dist. Brown No. CA99-06-020, 2000 WL 127076 (Jan. 31, 2000) (appellant’s
Coshocton County, Case No. 2019CA0019 10
conviction supported by ample evidence when the record shows appellant left the scene
of the accident and did not take any steps to locate and notify the owner of the accident);
State v. Lott, 5th Dist. Lickings Nos. 06CA27, 06CA28 (appellant failed to stop and take
reasonable steps to locate and notify the owner of the property); State v. Knowlton, 4th
Dist. Washington No. 10CA31, 2012-Ohio-2350 (overruling appellant’s argument that he
did not have the time or opportunity to locate the owner and affirming appellant’s
conviction because he did not stop and undertake a reasonable search to notify the
owner).
{¶29} Appellant also contends he met with Troyer twelve hours later, within the
twenty-four-hour period required by R.C. 4549.03, and Troyer told him not to contact the
landowner. However, pursuant to the plain language of R.C. 4549.03, the twenty-four-
hour time frame only becomes applicable, “if the owner or person in charge of the property
cannot be located after reasonable search.” In this case, appellant left the scene of the
accident, knowing who the owner of the property was, and did not take immediate steps
to notify the landowner of the accident. The evidence in the record is that appellant never
notified the landowner of the accident, despite the fact that he knew the owner. Thus, the
twenty-four-hour time frame is not applicable. State v. Muchmore, 1st Dist. Hamilton No.
C-140056, 2014-Ohio-5096; State v. Cecil, 12th Dist. Brown No. CA99-020, 2000 WL
127076 (Jan. 31, 2000); State v. Knowlton, 4th Dist. Washington No. 10CA31 2012-Ohio-
2350.
{¶30} Based on the testimony and evidence in this case, we find any rational trier
of fact could have found the essential elements of R.C. 4549.03 proven beyond a
reasonable doubt. We find sufficient evidence exists to support appellant’s conviction
Coshocton County, Case No. 2019CA0019 11
and the trial court properly denied appellant’s Rule 29 motion. Appellant’s first and third
assignments of error are overruled.
II.
{¶31} In his second assignment of error, appellant asserts the trial court abused
its discretion by failing to grant a mistrial after the close of appellee’s case. Appellant
contends the trial court prejudicially made a guilty finding before all the evidence was in
the record.
{¶32} “Mistrials need to be declared only when the ends of justice so require and
a fair trial is no longer possible.” State v. Franklin, 62 Ohio St.3d 118, 580 N.E.2d 1(1991). The standard of review for evaluating a trial court’s discretion to grant or deny a
mistrial is abuse of discretion. State v. Maurer, 15 Ohio St.3d 239, 473 N.E.2d 768 (1984).
In reviewing a claim that a mistrial should have been granted, the Ohio Supreme Court
has noted, “[t]his court has instead adopted an approach which grants great deference to
the trial court’s discretion in this area, in recognition of the fact that the trial judge is in the
best position to determine whether the situation in his courtroom warrants the declaration
of a mistrial.” State v. Shaffer, 5th Dist. Richland No. 2003-CA-0108, 2004-Ohio-3717,
quoting State v. Widner, 68 Ohio St.2d 188, 429 N.E.2d 1065 (1981). An abuse of
discretion connotes more than an error of law or judgment. It implies that the trial court
ruled arbitrarily, unreasonably, or unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d
217, 450 N.E.2d 1140 (1983).
{¶33} We find no abuse of discretion when the trial court denied the mistrial. After
the trial court granted appellee’s motion to amend, the trial court continued the trial. When
the trial resumed several weeks later, counsel for appellant renewed his Rule 29 motion
Coshocton County, Case No. 2019CA0019 12
for acquittal and the parties argued their respective positions. The trial court thought
appellant was resting his case and stated he was going to find appellant guilty of R.C.
4511.202 and R.C. 4549.03. After counsel for appellant moved for a mistrial, the trial
court stated he misunderstood appellant’s position and thought appellant was resting his
case. The case was tried to the trial judge, not a jury. When counsel for appellant stated
that appellant wanted to testify, the trial judge immediately realized his mistake and
stated, “I can’t find him guilty if he had not, in fact rested and wished to present evidence.”
The trial court then permitted appellant to present testimony and evidence.
{¶34} We find no abuse of discretion when the trial court denied the mistrial. A
mistrial is required when the ends of justice so require and a fair trial is no longer possible.
This case does not rise to that level. Appellant’s second assignment of error is overruled.
IV.
{¶35} In his fourth assignment of error, appellant argues the decision of the trial
court was against the manifest weight of the evidence.
{¶36} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the
entire record, weighs the evidence and all reasonable inferences, considers the credibility
of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly
lots its way and created such a manifest miscarriage of justice that the conviction must
be overturned and a new trial ordered.” State v. Thompkins, 78 Ohio St.3d 380, 678
N.E.2d 541 (1997). Reversing a conviction as being against the manifest weight of the
evidence and ordering a new trial should be reserved for only the “exceptional case in
which the evidence weighs heavily against the conviction.” Id.Coshocton County, Case No. 2019CA0019 13
{¶37} It is well-established, though, that the weight of the evidence and the
credibility of the witnesses are determined by the trier of fact. State v. Yarbrough, 95
Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216. 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. Id.{¶38} After weighing the evidence and evaluating the credibility of the witnesses,
with appropriate deference to the trier of fact’s credibility determination, we cannot say
that the trier of fact clearly lost its way and created a manifest injustice with regard to
stopping after an accident involving damage to realty or personal property attached to
real property. As detailed above, the testimony of Reigle and Troyer demonstrates that
appellant did not immediately stop and take reasonable steps to locate and notify the
owner of the accident. Rather, appellant left the scene of the accident. Appellant admits
he left the scene, but testified he planned to take care of it the next day and was not
attempting to evade the police. This is not the case where the trier of fact clearly lost its
way and created such a manifest miscarriage of justice that the conviction must be
overturned and a new trial ordered. Appellant’s fourth assignment of error is overruled.
{¶39} Based on the foregoing, appellant’s assignments of error are overruled.
Coshocton County, Case No. 2019CA0019 14
{¶40} The October 16, 2019 judgment entry of the Coshocton Municipal Court is
affirmed.
By Gwin, P.J.,
Delaney, J., and
Baldwin, J., concur