State v. Christian , 2014 Ohio 2590 ( 2014 )

[Cite as State v. Christian, 2014-Ohio-2590.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
)
PLAINTIFF-APPELLEE, )
) CASE NO. 12 MA 164
V. )
) OPINION
DUNIEK CHRISTIAN, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common
Pleas of Mahoning County, Ohio
Case No. 10CR1361
JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellee Paul Gains
Prosecutor
Ralph M. Rivera
Assistant Prosecutor
21 W. Boardman St. 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant Attorney Douglas A. King
91 West Taggart Street, P.O. Box 85
East Palestine, Ohio 44413
JUDGES:
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
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Dated: June 13, 2014
[Cite as State v. Christian, 2014-Ohio-2590.]
DONOFRIO, J.
{¶1} Defendant-appellant, Duniek Christian, appeals from a Mahoning
County Common Pleas Court judgment convicting him of failure to comply with an
order or signal of a police officer.
{¶2} On November 10, 2010, a team comprised of Youngstown Police
Officers, SWAT Team members, and the FBI Violent Crimes Task Force set out to
apprehend appellant on an outstanding felony warrant. The officers set up a
perimeter around a house on Northwood Avenue on Youngstown’s east side where
they believed appellant would be. When the officers arrived, appellant was seated in
the driver seat of a Chrysler Sebring that was parked in the driveway. Two other men
were in the car with appellant, one in the front passenger seat and one in the back
seat. The SWAT Team van pulled up behind the Sebring in the driveway. Officers
got out of the van and ordered appellant to exit the car. Instead of exiting the car,
appellant drove forward, through a fence and through the yard. He continued driving
away through the neighborhood and onto Jacobs Road. Appellant drove to a dead-
end street where he and his passengers fled from the car on foot. Appellant was
soon apprehended hiding under a pile of brush.
{¶3} On January 6, 2011, a Mahoning County Grand Jury indicted appellant
on one count of failure to comply with an order or signal of a police officer in violation
of R.C. 2921.331(B)(C)(5)(a)(ii). Because the indictment alleged that appellant’s
actions in failing to comply caused a substantial risk of serious physical harm to
persons or property, the offense was a third-degree felony.
{¶4} The matter proceeded to a jury trial where the jury found appellant
guilty as charged. The trial court subsequently sentenced appellant to three years in
prison. It also imposed a $10,000 fine, which it suspended, and suspended
appellant’s driving privileges for eight years.
{¶5} Appellant filed a timely notice of appeal on September 7, 2012.
{¶6} Appellant raises six assignments of error. His first assignment of error
states:
DEFENDANT/APPELLANT’S CONVICTION MUST BE
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VACATED AND THE CHARGES DISMISSED AS THE
DEFENDANT/APPELLANT’S STATUTORY AND CONSTITUTIONAL
RIGHTS TO A SPEEDY TRIAL WERE VIOLATED.
{¶7} Appellant contends he was not brought to trial within his speedy trial
time. But he does not set out how his speedy trial time should have been calculated
and does not set out how many days he asserts passed on his speedy trial clock
before he was tried. He also contends he objected in the trial court to his lack of
speedy trial. Specifically, he points to a December 13, 2011 judgment entry where
his objection was noted by the court.
{¶8} Pursuant to R.C. 2945.71(C)(2), the state must bring a person charged
with a felony to trial within 270 days after his arrest. If the accused is held in jail in
lieu of bail on the pending charge, then each day he is held in jail counts as three
days. R.C. 2945.71(E). This is known as the “triple-count” provision.
{¶9} Appellant was in jail the entire time waiting for trial because, in its
judgment entry of sentence, the trial court gave appellant credit towards his sentence
of 653 days. However, because appellant’s charge in this case stemmed from an
outstanding felony warrant, it cannot be said that he was being held solely on the
charge pending in this case. The triple-count provision only applies to those
defendants held in jail in lieu of bail solely on those pending charges. State v.
Dunkins, 10 Ohio App.3d 72, 74-75, 460 N.E.2d 688 (9th Dist.1983). The record,
however, is not clear on this point. But even if the state had to bring appellant to trial
within 90 speedy trial days, the state met its burden.
{¶10} The time for speedy trial begins to run when an accused is arrested.
State v. Canty, 7th Dist. No. 08-MA-156, 2009-Ohio-6161, ¶80. But the actual day of
the arrest is not counted. Id. Appellant was arrested on November 10, 2010. Thus,
his speedy trial time began to run on November 11, 2010.
{¶11} On January 28, 2011, the case was called for trial but was continued
because defense counsel moved to withdraw due to a conflict. The period of any
reasonable continuance granted other than upon the accused's own motion tolls the
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speedy trial clock. R.C. 2945.72(H). Reasonableness depends on the facts and
circumstances of each particular case. State v. Saffell, 35 Ohio St.3d 90, 91, 518
N.E.2d 934 (1988). The need for new counsel due to a conflict with the current
defense counsel is a reasonable basis to continue a trial. The court appointed new
counsel. Because defense counsel withdrew due to a conflict and appellant needed
a reasonable continuance in order for new counsel to become familiar with the case,
the time from the January 28, 2011 request to withdraw and the April 1, 2011 pretrial
was tolled. At this time, 78 days had elapsed on appellant’s speedy trial clock.
{¶12} On April 1, 2011, the court held a pretrial. Appellant requested that the
court remove his counsel and appoint new counsel. The court granted appellant’s
request. This delay was attributable to appellant. R.C. 2945.72(H) provides that the
speedy trial period may be tolled for the period of any continuance granted on the
accused's own motion. State v. Brown, 7th Dist. No. 03-MA-32, 2005-Ohio-2939,
¶41. Thus, the time from the April 1, 2011 motion for new counsel and the next
pretrial date of May 13, 2011, was tolled because the delay was attributable to
appellant.
{¶13} On May 13, 2011, the court held the next pretrial. Defense counsel
stated it needed more time to prepare. By agreement of the parties, the case was
reset for a pretrial on June 16, 2011. Joint motions for continuance toll a defendant's
speedy trial time because they can be attributed to both parties. Brown, 7th Dist. No.
03-MA32, at ¶44. Thus, appellant’s speedy trial clock remained at 78 days.
{¶14} On June 16, 2011, at the pretrial the parties agreed to an August 3,
2011 pretrial and a September 27, 2011 trial. Appellant’s speedy trial clock
continued to toll.
{¶15} On September 22, 2011, appellant filed a motion to continue the trial.
The trial court granted appellant’s motion and stated that the parties agreed to a
December 14, 2011 trial date. Thus, appellant’s speedy trial clock continued to toll.
{¶16} The trial court held a status conference on December 6, 2011. The
court found that appellant and his counsel were unable to communicate and work
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together. Therefore, the court permitted counsel to withdraw and appointed new
counsel the next day. The court continued the trial to give the new counsel time to
prepare. “It is well-established that defense counsel may request a continuance in
order to obtain more time to prepare for the case without the defendant's agreement,
and the defendant is bound thereby.” State v. Smith, 2d Dist. No.2003 CA 93, 2004-
Ohio-6062, ¶19, citing State v. McBreen, 54 Ohio St.2d 315, 376, N.E.2d 593 (1978),
syllabus. Therefore, appellant’s speedy trial clock continued to toll at 78 days.
{¶17} The court next set the trial for April 16, 2012. On that day, appellant
filed a motion to continue. The court granted appellant’s motion and set the trial for
May 21, 2012. Once again, this continuance was charged to appellant.
{¶18} On May 17, 2012, the state filed a motion to continue because one of
its key witnesses would be unavailable from May 21 to May 25. The court granted
the continuance. The unavailability of a state’s witness is a reasonable basis for a
continuance. State v. Sedlak, 11th Dist. No. 2010-P-0036, 2011-Ohio-870, ¶14.
Thus, the speedy trial time kept tolling.
{¶19} Trial was then set for July 23, 2012. On that day, the court sua sponte
continued the trial because it was engaged in another criminal jury trial. The clock
was tolled during this period because a continuance issued by the trial court due to
involvement in another criminal trial tolls the running of the speedy trial time. State v.
McCall, 152 Ohio App.3d 377, 2003-Ohio-1603, 787 N.E.2d 1241, ¶23 (7th Dist.).
The court set the trial for July 30, 2012.
{¶20} On July 30, 2012, the court called the case for trial but continued it due
to appellant’s lack of civilian clothing.
{¶21} The case was finally tried on July 31, 2012.
{¶22} As can be seen from this long timeline of events, almost every
continuance was either requested by or agreed to by appellant. Only 78 days ran on
appellant’s speedy trial clock. Thus, there is no speedy trial error.
{¶23} Accordingly, appellant’s first assignment of error is without merit.
{¶24} Appellant’s second assignment of error states:
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THE TRIAL COURT COMMITTED REVERSIBLE ERROR
WHEN IT GRANTED THE STATE’S CHALLENGE FOR CAUSE AS TO
PROSPECTIVE JUROR ODEM.
{¶25} Here appellant asserts the trial court erred in dismissing Juror Odem for
cause. Appellant argues that Juror Odem stated he could be fair and impartial,
agreed to keep an open mind, harbored no hard feelings against Youngstown Police
who had previously arrested him, and did not recall being a defendant in the same
court where the trial was currently taking place. Appellant contends Juror Odem
demonstrated that he could be fair and impartial, so the trial court should not have
dismissed him for cause. Additionally, he claims the grounds for the state’s
challenge do not appear on the record.
{¶26} We will not disturb a trial’s court's ruling on a challenge for cause
“unless it is manifestly arbitrary and unsupported by substantial testimony, so as to
constitute an abuse of discretion.” State v. Jones, 7th Dist. Nos. 08 JE 20, 08 JE 29,
2010-Ohio-2704, ¶68, quoting State v. Williams, 79 Ohio St.3d 1, 8, 679 N.E.2d 646(1997).
{¶27} A prospective juror may be challenged for cause if he or she
demonstrates bias toward the defendant or the state. R.C. 2945.25(B); Crim.R.
24(C)(9). A prospective juror may also be challenged for cause if the juror is
unsuitable for any other cause to serve as a juror. R.C. 2945.25(O); Crim.R.
24(C)(14).
{¶28} Juror Odem stated that he has a brother currently in CCA on drug-
related charges. (Tr. 120-121). He also stated that he personally served two months
in jail on a child endangering charge out of Youngstown Municipal Court. (Tr. 122-
123). Juror Odem stated that the Youngstown Police did their job in that case and
stated, “They wanted to charge me with it, so I guess I was guilty.” (Tr. 124). When
asked by the prosecutor if he remembered being in Judge Evans’ courtroom (where
the trial was being held), Juror Odem stated, “I’ve never been to this court.” (Tr.
123). He further stated that he did not recall being in front of Judge Evans. (Tr. 123).
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{¶29} Additionally, when asked by the prosecutor if he understood that the
concept of proof beyond a reasonable doubt was not proof beyond all doubt, Juror
Odem replied, “I can’t say that’s true.” (Tr. 125). He went on to state that he could
listen to evidence and judge the witnesses’ credibility. (Tr. 127). Juror Odem stated
that he could be a fair and impartial juror. (Tr. 130).
{¶30} The state asked that the court dismiss Juror Odem for cause. (Tr. 133).
Before ruling on the state’s challenge for cause, the court and counsel questioned
Juror Odem further out of the presence of the other potential jurors.
{¶31} Judge Evans informed appellant that he was, in fact, before the judge
on a felony charge that was amended to a misdemeanor in 2003. (Tr. 134). When
Judge Evans informed him of such, Juror Odem stated he was still unable to recall
being in front of the judge. (Tr. 134-136). Judge Evans then stated, “Well, I believe
you that you don’t remember, but my problem is that you were here.” (Tr. 136).
Juror Odem stated that he could still be a fair and impartial juror. (Tr. 138).
{¶32} After the questions by the court and counsel and Juror Odem’s inability
to remember his criminal case before Judge Evans, the court excused Juror Odem
for cause. (Tr. 138). In so doing, the court stated, “I appreciate your being candid
with us, but we have a situation here where we just can’t - - I don’t understand the
recollection, but I do understand you. * * * I don’t think you’re doing anything
intentional, but I can’t disprove it either.” (Tr. 139). Appellant’s counsel noted his
objection. (Tr. 139).
{¶33} The trial court did not abuse its discretion in excusing Juror Odem for
cause. Juror Odem had been a criminal defendant in the same court, before the
same judge as appellant in this case. And oddly he had no recollection at all of this.
That left the trial court with two possibilities: either Juror Odem lied about not
remembering being before Judge Evans or his memory was so poor that he could not
recall a felony charge he faced in common pleas court. Clearly, the trial court was
not comfortable with either possibility. The court was in the best position to view the
demeanor, gestures, and voice inflection of Juror Odem and to judge his level of bias
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and his certainty and credibility as to his expression of bias. Jones, 7th Dist. Nos. 08
JE 20, 08 JE 29, at ¶70. We will not second-guess the trial court on this matter.
{¶34} Furthermore, when the court excused Juror Odem for cause, the state
had not yet used any of its peremptory challenges. In fact, during the entire voir dire,
the state only exercised one of its four peremptory challenges. (Tr. 157). Thus, had
the court not excused Juror Odem for cause, the state would have likely used one of
its peremptory challenges to excuse him.
{¶35} Accordingly, appellant’s second assignment of error is without merit.
{¶36} Appellant’s third assignment of error states:
DEFENDANT/APPELLANT’S CONVICTION MUST BE
REVERSED DO [sic.] TO PROSECUTORIAL MISCONDUCT.
{¶37} In this assignment of error, appellant argues some of the prosecutor’s
questions to Officer Mark Gillette and several comments during closing arguments
were unduly prejudicial to him.
{¶38} The test for prosecutorial misconduct is whether the conduct
complained of deprived the defendant of a fair trial. State v. Fears, 86 Ohio St.3d
329, 332, 715 N.E.2d 136 (1999). In reviewing a prosecutor's alleged misconduct, a
court should look at whether the prosecutor's remarks were improper and whether
the prosecutor's remarks affected the appellant's substantial rights. State v. Smith,
14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). “[T]he touchstone of analysis ‘is the
fairness of the trial, not the culpability of the prosecutor.’” State v. Hanna, 95 Ohio
St.3d 285, 2002-Ohio-2221, ¶61, quoting Smith v. Phillips, 455 U.S. 209, 219, 102
S.Ct. 940 (1982). An appellate court should not deem a trial unfair if, in the context of
the entire trial, it appears clear beyond a reasonable doubt that the jury would have
found the defendant guilty even without the improper comments. State v. LaMar, 95
Ohio St.3d 181, 2002-Ohio-2128, ¶121.
{¶39} Appellant first takes issue with certain questions posed to Officer
Gillette on re-direct examination as follows:
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Q Do you know whether or not this was a secret indictment?
A I don’t believe this was a secret indictment. I do not know for
sure, but I don’t believe it was a secret indictment.
***
Q Do you suit up like this and bring a SWAT Team on every
warrant you serve?
A No.
Q And why did you do that in this case?
MR. MADISON: Objection.
THE COURT: Overruled.
A Mr. Christian was involved in a situation years - -
MR. MADISON: Objection.
THE COURT: Sustained.
Q You had to suit up in this situation because it was Mr. Christian’s
warrant?
A Yes.
Q You don’t do that in every warrant?
A No.
Q You don’t bring the SWAT Team at every warrant; do you?
A No.
(Tr. 348-349).
{¶40} On cross examination, defense counsel asked Officer Gillette numerous
questions regarding the Task Force. He solicited testimony from Officer Gillette that
if a person has a warrant out for his arrest that stemmed from a secret indictment,
that person would not know he was wanted by the law and the Task Force would be
assigned to apprehend him. (Tr. 335). Defense counsel also solicited testimony that
the Task Force executes warrants, in part, so that local police departments are able
to do other work. (Tr. 337).
{¶41} The prosecutor’s above questions were reasonable rebuttal questions
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in light of defense counsel’s cross examination. The testimony solicited by the
defense implied that appellant may have been secretly indicted and may not have
known there was a warrant for his arrest. It also implied that the procedures used to
arrest appellant in this case were common to all of those with outstanding warrants.
Thus, there was no misconduct in the prosecutor’s line of questioning.
{¶42} Appellant next takes issue with several comments by the prosecutor
during closing arguments. First, he argues the prosecutor should not have
commented:
This was a warrant that was served - - trying to be served on Duniek
Christian. And I asked Officer Gillette, do you always bring the SWAT
Team? No. Do you always have all of this gear and everybody? No.
Because this is a warrant for Duniek Christian, that’s how they have to
respond to this warrant. All right? That’s how they have to be ready.
(Tr. 373).
{¶43} These comments were not improper or prejudicial. They simply refer to
the same evidence discussed above. And that evidence was in direct response to
testimony solicited by the defense.
{¶44} Second, appellant argues the prosecutor should not have commented
on his record during its rebuttal as follows: “Officer Marciano testified. He said he is
familiar with Duniek, they have warrants for his arrest. If Mr. Madison wanted to
know why he’s familiar with him, he could have asked that. He didn’t, because he
doesn’t want you to know.” (Tr. 390).
{¶45} In his closing argument, in discussing Officer Michael Marciano’s
identification of appellant, defense counsel told the jury: “And he said he saw Duniek
Christian’s face. You didn’t hear how or why or how he knows his face.” (Tr. 380).
The state objected to this comment, but the trial court overruled the objection.
{¶46} When the prosecutor made the above quoted comment, it was likely in
direct response to defense counsel’s comment that suggested Officer Marciano’s
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identification of appellant may not have been accurate because Officer Marciano’s
testimony did not tell the jury how he was familiar with appellant. The state even
objected to this statement by defense counsel, but the court overruled the objection.
The prosecutor’s only recourse was to respond to the comment in rebuttal.
{¶47} In sum, the above quoted questions and comments did not amount to
prosecutorial misconduct. Accordingly, appellant’s third assignment of error is
without merit.
{¶48} Appellant’s fourth assignment of error states:
THE TRIAL COURT ERRED BY FAILING TO GRANT THE
DEFENDANT/APPELLANT’S MOTION FOR JUDGMENT OF
ACQUITTAL PURSUANT TO OHIO CRIMINAL RULE 29 MADE AT
THE CLOSE OF THE STATE’S CASE-IN-CHIEF.
{¶49} Appellant asserts here the trial court should have granted his Crim.R.
29 motion for acquittal. He claims the state failed to present evidence that he created
a substantial risk of serious physical harm to persons or property as was statutorily
required. He points out that the chase occurred in an abandoned neighborhood
where no people were out at the time. Appellant alleges the state’s only evidence of
damage was a single fence panel lying on the ground and there was no evidence
that the fence did not belong to appellant.
{¶50} Appellant asserts the court should have granted his Crim.R. 29 motion
for acquittal based on insufficient evidence. Thus, his claim here is one of sufficiency
of the evidence.
{¶51} Sufficiency of the evidence is the legal standard applied to determine
whether the case may go to the jury or whether the evidence is legally sufficient as a
matter of law to support the verdict. State v. Smith, 80 Ohio St.3d 89, 113, 684
N.E.2d 668 (1997). In essence, sufficiency is a test of adequacy. State v.
Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). Whether the evidence
is legally sufficient to sustain a verdict is a question of law. Id. In reviewing the
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record for sufficiency, 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. Smith, 80 Ohio
St.3d at 113.
{¶52} The jury convicted appellant of violating R.C. 2921.331(B)(C)(5)(a)(ii),
which states:
(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.
(C)(1) Whoever violates this section is guilty of failure to comply
with an order or signal of a police officer.
(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:
***
(ii) The operation of the motor vehicle by the offender caused a
substantial risk of serious physical harm to persons or property.
{¶53} Appellant does not take issue with the finding that he operated a motor
vehicle so as to willfully flee from a police officer. He only takes issue with the
additional finding in section (C)(5)(a)(ii) that the operation of the vehicle caused a
substantial risk of serious physical harm to persons or property. This additional
finding elevates fleeing and eluding from a first-degree misdemeanor to a third-
degree felony.
{¶54} A “substantial risk” is “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). “Serious physical harm to property” is “any physical
harm to property” that either “results in substantial loss to the value of the property or
requires a substantial amount of time, effort, or money to repair or replace” or
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“[t]emporarily prevents the use or enjoyment of the property.” R.C. 29091.01(A)(6).
“Serious physical harm to persons” includes such things as physical harm that carries
a substantial risk of death, that involves permanent incapacity or substantial
temporary incapacity, that involves permanent disfigurement or temporary serious
disfigurement, or involves acute pain resulting in substantial suffering. R.C.
2901.01(A)(5).
{¶55} We must examine the relevant evidence in order to determine if the
state met its burden.
{¶56} Officer Marciano testified first. He stated that on the day in question he
was part of the team assigned to arrest appellant on outstanding felony warrants.
(Tr. 207-208). The team was informed appellant was at an address on Northwood
Avenue. (Tr. 208). Officer Marciano stated that numerous police cruisers, unmarked
police vehicles, and the SWAT Team van went to the address. (Tr. 209-210). He
was riding in the van. (Tr. 210). The van pulled into the driveway on Northwood
almost to the bumper of a car parked in the driveway. (Tr. 210). Officer Marciano
looked into the rear window of the car and saw appellant and two other men sitting in
the car. (Tr. 210-211). Appellant was in the driver’s seat. (Tr. 211). Officers exited
the van and ordered the occupants to put their hands up and exit the car. (Tr. 211-
212). Instead, appellant started the car and drove “directly through” a large six- to
seven-foot stockade fence and through the backyard. (Tr. 212). In doing so,
appellant knocked the fence down. (Tr. 222).
{¶57} The next time Officer Marciano saw the car, it was at a dead-end street
by a wooded area. (Tr. 218). Officer Marciano then located appellant 250 to 300
yards from the car hiding under a pile of brush. (Tr. 219).
{¶58} Officer Marciano described the neighborhood where the incident took
place as residential, but without a lot of people. (Tr. 221). He stated there were
“quite a few” abandoned homes. (Tr. 221). He did not see any people out at the
time. (Tr. 221).
{¶59} Officer Brian Voitus was the next witness. On the day in question,
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Officer Voitus, along with Officer Richard Geraci, were in an unmarked police vehicle.
(Tr. 254). They were stationed one street north of Northwood. (Tr. 255). The two
officers were listening to the police radio when the SWAT Team ordered appellant
and the other occupants out of the car on Northwood. (Tr. 256). He then saw the car
come through the yards onto the street “in a hurry.” (Tr. 256). Because the car he
was in did not have lights or sirens, Officer Voitus was only able to follow the car
appellant was driving until a marked police car arrived to pursue it. (Tr. 257). The
car appellant was driving was in Officer Voitus’s sight the entire time. (Tr. 257). He
stated that it drove to Jacobs Road where it was passing cars “in and out.” (Tr. 257-
258). Officer Voitus stated the car then drove to Myron, a dead-end street, where it
stopped and the occupants got out and started running. (Tr. 258). Officers Voitus
and Geraci then apprehended one of the men who had bailed from the car. (Tr.
260). When asked how fast the car was driving down Jacobs Road, Officer Voitus
stated that it was going “fast.” (Tr. 260).
{¶60} Officer Geraci testified next. He corroborated Officer Voitus’s
testimony. He also testified that the car appellant was driving went through a stop
sign at the corner of Karl and Jacobs Road and when it turned onto Myron “they were
flying.” (Tr. 282-283). In describing the car as it was driving on Jacobs Road, Officer
Geraci stated that it was swerving around cars trying to pass them and travelling “at a
high rate of speed.” (Tr. 283-284). Officer Geraci also testified that he observed the
fence that appellant drove through and he described the loss in value to the fence as
“substantial.” (Tr. 293). However, he was unsure as to what the value of the fence
might be. (Tr. 293-294).
{¶61} Officer Russell Davis also testified regarding numerous photographs he
took of the scene. The state offered several photographs of a section of the fence
lying flat on the ground. (Exs. 5, 7, 8, 10).
{¶62} There is no question that appellant willfully fled from the police after
being ordered to exit the car he was sitting in. Officer Marciano identified appellant
and testified that numerous police officers ordered appellant and the other occupants
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of the car to exit the car with their hands up. Officer Marciano further testified that
instead of complying with the officers’ orders, appellant drove the car through a fence
and through backyards in an attempt to flee from the police.
{¶63} Moreover, in construing the evidence in the light most favorable to the
state as we are required to do in a sufficiency of the evidence challenge, the
evidence also demonstrated that in fleeing from the police, appellant caused a
substantial risk of serious physical harm to persons or property. First, Officer
Marciano testified that appellant drove right through a fence. And the photographs
depicted a section of a fence lying flat on the ground with the next section pushed
away at an angle. “Serious physical harm to property” includes physical harm that
temporarily prevents the use of the property. The fence could not be used, at least
temporarily, after it had been run over and laid flat on the ground. Second, while
appellant was fleeing the police, Officer Geraci stated that appellant drove through a
stop sign without stopping, was swerving in and out of traffic at a high rate of speed,
and was “flying” down the road. It is reasonable to infer that this type of erratic
driving would cause a substantial risk of serious physical harm to other motorists
travelling on Jacobs Road and a substantial risk of serious physical harm to their
vehicles. Fleeing at a high rate of speed through mixed residential/commercial areas
is sufficient evidence to prove a substantial risk of serious physical harm to persons
or property. State v. Garrard, 170 Ohio App.3d 487, 2007-Ohio-1244, 867 N.E.2d
887, ¶37 (10th Dist.); State v. Walby, 6th Dist. No. S-91-1, 1992 WL 42939 (March 6,
1992).
{¶64} Thus, there was sufficient evidence to support appellant’s conviction
and, therefore, the trial court did not err in overruling his Crim.R. 29 motion for
acquittal. Accordingly, appellant’s fourth assignment of error is without merit.
{¶65} Appellant’s fifth assignment of error states:
DEFENDANT/APPELLANT’S CONVICTION IS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
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{¶66} In this assignment of error, appellant argues his conviction was against
the manifest weight of the evidence. He makes the identical argument here as he did
in his fourth assignment of error.
{¶67} In determining whether a verdict is against the manifest weight of the
evidence, an appellate court must review the entire record, weigh the evidence and
all reasonable inferences 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. Thompkins, 78
Ohio St.3d at 387. “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.’” Id. (Emphasis sic.) In making its determination, a reviewing court is
not required to view the evidence in a light most favorable to the prosecution but may
consider and weigh all of the evidence produced at trial. Id. at 390.
{¶68} Yet granting a new trial is only appropriate in extraordinary cases where
the evidence weighs heavily against the conviction. State v. Martin, 20 Ohio App.3d
172, 175, 485 N.E.2d 717 (1st Dist.1983). This is because determinations of witness
credibility, conflicting testimony, and evidence weight are primarily for the trier of the
facts who sits in the best position to judge the weight of the evidence and the
witnesses' credibility by observing their gestures, voice inflections, and demeanor.
State v. Rouse, 7th Dist. No. 04-BE-53, 2005-Ohio-6328, ¶49, citing State v. Hill, 75
Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. DeHass, 10 Ohio St.2d 230,
227 N.E.2d 212 (1967), paragraph one of the syllabus. Thus, “[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. No. 99-CA-149, 2002-Ohio-1152.
{¶69} As discussed in appellant’s fourth assignment of error, the state put
forth evidence going to all of the elements of felony fleeing and eluding. There was
no evidence to contradict that appellant was the driver of the car that fled from police
or that police apprehended appellant after he bailed from the car. Moreover, the
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evidence was uncontroverted that police ordered appellant from his vehicle and
instead of complying appellant drove through a fence and through the yards, drove
through a stop sign, travelled at an excessive rate of speed, and swerved through
traffic in an effort to elude the police. Given this evidence, we cannot conclude that
the jury clearly lost its way and created a manifest injustice in finding appellant guilty.
{¶70} Accordingly, appellant’s fifth assignment of error is without merit.
{¶71} Appellant’s sixth assignment of error states:
DEFENDANT/APPELLANT WAS DENIED HIS RIGHT TO A
FAIR TRIAL PURSUANT TO THE DOCTRINE OF CUMULATIVE
ERROR.
{¶72} Appellant argues that due to the cumulative effect of the errors he
alleged in his first five assignments of error, he was denied a fair trial.
{¶73} An appellate court may reverse a defendant's conviction based on the
doctrine of cumulative error. Cumulative error occurs when errors deemed separately
harmless deny the defendant a fair trial. State v. DeMarco, 31 Ohio St.3d 191, 509
N.E.2d 1256 (1987), paragraph two of the syllabus.
{¶74} As discussed in this opinion, none of appellant’s assignments of error
have merit or have raised a harmless error. There is no evidence that appellant was
denied a fair trial. Thus, there was no cumulative error.
{¶75} Accordingly, appellant’s sixth assignment of error is without merit.
{¶76} For the reasons stated above, the trial court’s judgment is hereby
affirmed.
Vukovich, J., concurs.
DeGenaro, P.J., concurs.