State v. Moore , 2023 Ohio 1904 ( 2023 )

[Cite as State v. Moore, 2023-Ohio-1904.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Andrew J. King, J.
-vs-
Case No. 2022 CA 0065
JOHN E. MOORE
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No 22 CR 00010
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 7, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JENNY WELLS WILLIAM T. CRAMER
PROSECUTING ATTORNEY 470 Olde Worthington Road
KENNETH W. OSWALT Suite 200
ASSISTANT PROSECUTOR Westerville, Ohio 43082
20 South Second Street, 4th Floor
Newark, Ohio 43055
Licking County, Case No. 2022 CA 0065 2
Wise, J.
{¶1} Defendant-Appellant John E. Moore appeals his conviction on one count of
Failure to Comply with Order or Signal of Police Officer entered in the Licking County
Court of Common Pleas following a jury trial.
{¶2} Appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} On January 5, 2022, Detectives Kimble, Martens, and Mills, who were all
assigned to the CODE drug enforcement task force, were surveilling a known drug
location in Newark and observed a black Chevy pickup truck leave the location. Det.
Kimble was in plain clothes in an unmarked car, while Detectives Martens and Mills were
in uniforms and marked cars. Det. Kimble positioned himself behind the pickup truck,
followed it, and observed the driver commit a number of traffic infractions, including failure
to signal and speeding. (T. at 100-101, 105-106, 124, 187-190).
{¶4} Det. Martens was in the first marked vehicle to pull up behind the truck,
which fled before he could engage the cruiser's lights and sirens. The truck ran a stop
sign and fled at a high rate of speed. Det. Martens activated his lights and sirens and
pursued. The chase reached speeds in excess of sixty (60) miles per hour through
residential neighborhoods where the speed limit was only twenty-five (25) miles per hour.
{¶5} The truck continued to make turns and run stop signs until it circled back
around to where they started. The truck drove along the gravel median between railroad
tracks for a short time, but one of the tires blew out. The truck drove on the wrong side of
the road at times and cut through a parking lot. At one point, the passenger door opened,
but no one came out. Just before stopping, the truck drove on the sidewalks. The truck
Licking County, Case No. 2022 CA 0065 3
eventually slowed and the driver and a passenger jumped out and fled on foot while the
truck rolled into a curb. (T. at 126-129, 134-139).
{¶6} Det. Mills also joined in the pursuit of the truck but encountered traffic on
the streets in the area around the pursuit, including a UPS truck making deliveries. When
Det. Mills caught up, he tried to cut off the truck, but it went around him, over the sidewalk,
and through a yard before coming to a stop. Det. Mills saw Appellant John E. Moore jump
out of the truck and flee on foot. Det. Mills pursued until Appellant fell while trying to climb
a wall, at which time Det. Mills detained Appellant. (T. at 198-202, 208).
{¶7} Det. Kimble was unable to engage in the car chase because he was in an
unmarked car, but he maneuvered his vehicle so that he was in front of the truck. As the
truck approached him, Det. Kimble saw the truck jump up onto the sidewalk. When the
truck subsequently came to a stop, Det. Kimble observed Appellant Moore jump out of
the driver's side and try to flee on foot with officers in pursuit. Det. Kimble then observed
a female, Terri Lonzo, exit the passenger side of the truck and run away. Det. Kimble
identified himself as an officer and told her to stop, but had to chase her down. (T. at 106-
107, 109).
{¶8} After Appellant Moore was apprehended, the officers ran his information
and learned that he had outstanding warrants. Appellant was searched and officers found
a glass smoking bowl, commonly used for methamphetamine, and a small baggie of
methamphetamine. Det. Mills spoke with Appellant, who admitted that he was the one
driving the truck. Terri Lonzo was also searched, and officers found a couple of knives
and some methamphetamine in a tin container in her bra.
Licking County, Case No. 2022 CA 0065 4
{¶9} Appellant was not the registered owner of the truck. The officers ran the VIN
number for the truck and found that it did not match the plates. The owner of the plates
was tracked down in Muskingum County and claimed that he did not know they were
missing. (T. at 111, 142-143, 205-206).
{¶10} Det. Kimble submitted the drugs found on Appellant to the lab, and they
tested positive for .540 grams of methamphetamine. (T. at 114-115, 222-223).
{¶11} On January 23, 2022, Appellant was indicted on two counts: (1) Failure to
Comply with an Order or Signal of a Police Officer, in violation of R.C. §2921.331(A),
which was listed as a third-degree felony; and (2) Aggravated Drug Possession involving
Methamphetamine, in violation of R.C. §2925.11(A)/(C)(1)(a), a fifth-degree felony.
{¶12} In March 2022, the matter came before the trial court on a pro se Motion to
Dismiss based on the failure to charge a felony in the indictment. During the hearing, the
prosecution admitted that the original indictment contained an error insofar as Count One
alleged a violation of subdivision (A) of R.C. §2921.331, which would only be a
misdemeanor, while the intent was to charge a felony under subdivision (B) of R.C.
§2921.331. As a result, the prosecution was preparing a superseding indictment for the
grand jury that would change Count One to a felony violation of subdivision (B).
{¶13} Defense counsel noted that he had scheduled a plea hearing and was
hoping to enter a guilty plea and then argue that it was only a misdemeanor based on the
language in the indictment, but Appellant's pro se motion alerted the prosecution to the
oversight. The trial court agreed that that strategy might have been successful. Defense
counsel asked to enter a plea at that time, but the trial court delayed any plea until the
prosecution could obtain a superseding indictment.
Licking County, Case No. 2022 CA 0065 5
{¶14} On March 10, 2022, two days later, the prosecution filed a superseding
indictment which corrected Count One to refer to subdivision (B) and included the felony
allegation that Appellant's operation of the vehicle caused a substantial risk of serious
physical harm to persons or property.
{¶15} On April 22, 2022, a change of plea hearing was held. At that time, Appellant
indicated that he had just received his discovery and no longer thought he wanted to enter
a plea. The trial court noted that a trial was probably appropriate since Appellant claimed
in the presentence investigation report that he was not driving. The trial court then set the
matter for trial.
{¶16} Appointed counsel moved to withdraw based on an irreconcilable conflict
and inability to communicate. On May 23, 2022, the court granted the motion and
appointed new counsel.
{¶17} The case proceeded to jury trial on July 26-27, 2022.
{¶18} At trial the jury heard testimony from Det. Kimble, Det. Martens and Det.
Mills.
{¶19} Det. Kimble stated it was "unreal" that nobody got hurt when Appellant
drove on the sidewalk because it was the midday and they were in an area where there
were usually kids around during the day. Det. Kimble also testified that he was concerned
for officer safety while engaging in a chase. Det. Kimble claimed that Appellant
demonstrated blatant disregard for human safety the way he was driving and that he could
have hurt anybody. (T. at 110).
{¶20} Det. Martens also expressed concern about safety of pedestrians in the
area, although he stated that he was too focused on the truck to see if there were any
Licking County, Case No. 2022 CA 0065 6
nearby. Det. Martens noted that there were numerous cars parked on the street in the
area. (T. at 140-141). Martens admitted that he did not see any pedestrians while
reviewing the video of the chase. (T. at 162).
{¶21} The cruiser camera and body camera for Det. Martens and the cruiser
camera for Det. Mills were all played for the jury. (T. at 129, 194).
{¶22} After two days, the case went to the jury, which found Appellant guilty as
charged.
{¶23} The trial court proceeded immediately with sentencing and imposed a
prison term of two (2) years for fleeing and eluding and six (6) months for drug possession,
with the sentences ordered to run consecutively, for an aggregate sentence of two and
one-half (2 ½) years. The trial court also imposed discretionary post-release control of up
to two (2) years and a three-year driver's license suspension. The trial court granted
Moore 202 days of jail credits. (Sentencing Entry, July 27, 2022; T. at 278-280).
{¶24} Appellant now appeals, raising the following assignment of error:
ASSIGNMENT OF ERROR
{¶25} “I. THE CONVICTION FOR FELONY FLEEING AND ELUDING WAS NOT
SUPPORTED BY THE WEIGHT OF THE EVIDENCE ON THE ISSUE OF WHETHER
APPELLANT'S DRIVING CAUSED A SUBSTANTIAL RISK OF PHYSICAL HARM.”
I.
{¶26} In his sole Assignment of Error, Appellant argues his conviction for fleeing
and eluding was against the manifest weight of the evidence. We disagree.
{¶27} 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
Licking County, Case No. 2022 CA 0065 7
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
lost its way and created such a manifest miscarriage of justice that the conviction must
be overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.
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.
{¶28} Appellant herein is challenging his conviction on Fleeing and Eluding, in
violation of R.C. §2921.331(B), which provides, in relevant part:
(B) 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.
{¶29} R.C. §2921.331(C), 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.
(ii) The operation of the motor vehicle by the offender caused a
substantial risk of serious physical harm to persons or property.
(b) If a police officer pursues an offender who is violating division (B)
of this section and division (C)(5)(a) of this section applies, the sentencing
court, in determining the seriousness of an offender's conduct for purposes
Licking County, Case No. 2022 CA 0065 8
of sentencing the offender for a violation of division (B) of this section, shall
consider, along with the factors set forth in sections 2929.12 and 2929.13
of the Revised Code that are required to be considered, all of the following:
(i) The duration of the pursuit;
(ii) The distance of the pursuit;
(iii) The rate of speed at which the offender operated the motor
vehicle during the pursuit;
(iv) Whether the offender failed to stop for traffic lights or stop signs
during the pursuit;
(v) The number of traffic lights or stop signs for which the offender
failed to stop during the pursuit;
(vi) Whether the offender operated the motor vehicle during the
pursuit without lighted lights during a time when lighted lights are required;
(vii) Whether the offender committed a moving violation during the
pursuit;
(viii) The number of moving violations the offender committed during
the pursuit;
(ix) Any other relevant factors indicating that the offender's conduct
is more serious than conduct normally constituting the offense.
{¶30} Pursuant to R.C. §2901.01(A)(8), a substantial risk is defined as “a strong
possibility, as contrasted with a remote or significant possibility, that a certain result may
occur or that certain circumstances may exist.”
Licking County, Case No. 2022 CA 0065 9
{¶31} “Serious physical harm to persons” includes any of the following:
(a) ***
(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;
(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.
{¶32} R.C. §2901.01(5).
{¶33} “Serious physical harm to property” is defined as “any physical harm to
property” that:
(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.
{¶34} R.C. §2901.01(A)(6).
{¶35} Appellant herein argues that state of Ohio failed to prove that he caused a
substantial risk of serious physical harm to persons or property because “there was very
little vehicular traffic on the street … and there was no pedestrian traffic in the area.”
(Appellant’s brief at 7).
{¶36} Upon review, we find that what is determinative for the enhanced felony
charge is the risk of harm--not that actual harm occurred. See, e.g., State v. Bason, 8th
Licking County, Case No. 2022 CA 0065 10
Dist. Cuyahoga No. 86112, 2005-Ohio-6492, ¶ 7 (“That no serious harm occurred to
persons or property does not overcome the evidence that sufficiently established a
substantial risk of it.”)
{¶37} Ohio appellate courts have repeatedly held that high-speed chases
inherently create a substantial risk of physical harm to the driver, officers, and other
motorists on the road, since high speeds increase the likelihood and severity of crashes.
See State v. Owens, 6th Dist. Lucas No. L-21-1148, 2022-Ohio-2908, ¶ 22-32; State v.
Jefferson, 5th Dist. Richland No. 18CA2 and 18, CA3 2019-Ohio-156, ¶ 59; State v. Scott,
8th Dist. Cuyahoga No. 99524, 2013-Ohio-4599, ¶ 22; State v. Sanders, 11th Dist. Lake
No. 2007-7-062, 2008-Ohio-1126, ¶ 29.
{¶38} Here, we find that the State presented testimony that Appellant fled from
officers, initiating a high speed chase - traveling 60 mph in a 25 mph zone within a
residential area where he ran stop signs, drove through the gravel area between two sets
of railroad tracks, drove on the wrong side of the road, cut through parking lots, opened
the passenger door of the vehicle while the vehicle was moving and jumped out of the
vehicle without putting it in park. (T. at 127, 135-140, 199-201). This high-speed pursuit
occurred shortly before 2:00 p.m. and included areas routinely frequented by pedestrians,
including children, delivery vehicles, and parked cars. (T. at 132, 140-141, 199-200, 203).
{¶39} In addition to the public, Appellant also put the safety of the officers at risk
as well as the safety of his passenger and himself.
{¶40} Also, early on in the car chase, one of the tires of Appellant's car went flat
but he continued to drive on it. (T. at 128.) This resulted in actual damage to the vehicle
by causing the inner fender well of the right front of the vehicle to be broken and come to
Licking County, Case No. 2022 CA 0065 11
rest on the tire itself. (Tr. 153-154). Another tire was also flattened and the rim bent. (T.
at 152-153).
{¶41} Upon review of the record, we find there was competent, credible evidence
presented to establish that Appellant was the operator of the truck, that he led the police
on a high-speed chase, and that his actions created a substantial risk of serious physical
harm to persons and property. We do not find that this is the exceptional case in which
the jury lost its way in weighing the evidence. Accordingly, we find Appellant's sole
assignment of error not well-taken.
{¶42} Appellant’s assignment of error is overruled.
{¶43} For the foregoing reasons, the judgment of the Court of Common Pleas of
Licking County, Ohio, is affirmed.
By: Wise, J.
Gwin, P. J., and
King, J., concur.
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