State v. Barr , 158 Ohio App. 3d 86 ( 2004 )

{¶ 52} I respectfully dissent from the decision reached by my colleagues. Although I agree with their disposition of Barr's first assignments of error, I must respectfully differ from their conclusion that the second assignment of error, raising a claim of ineffective assistance of trial counsel, is meritorious. I agree with the majority that counsel's performance was deficient; however, I do not agree that the deficient performance amounted to prejudice. Thus, I would affirm the trial court's decision.

{¶ 53} In paragraph 45, the majority states that the only other evidence admitted against Barr to show that he willfully eluded the officer is Officer Cresanto's testimony that Barr looked over his left hand shoulder in Officer Cresanto's direction and then accelerated at a higher rate of speed. The majority claims this creates an insubstantial case that Barr willfully eluded officers and, as such, prejudice is established. I disagree with this conclusion.

{¶ 54} To establish prejudice, a defendant must show there is a reasonable possibility that, but for counsel's error, the result of the proceeding would have been different. Strickland v.Washington (1984), 466 U.S. 668, 694. A reasonable possibility must be a probability sufficient to undermine confidence in the outcome of the case. State v. Bradley (1989),42 Ohio St. 3d 136, paragraph three of the syllabus. In other words, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would "reasonably likely have been different absent the errors." Id. at 143, citingStrickland, 466 U.S. 694.

{¶ 55} Contrary to the majority's implication, Barr did not need to make a statement to Officer Cresanto or anyone else that "he saw the officer and then sped off" in order to establish that he willfully eluded the officer. The culpability of an accused dwells in his mind and is difficult to prove by the direct testimony of a third person; however, it can be proven by surrounding facts and circumstances (circumstantial evidence).State v. Treesh (2001), 90 Ohio St. 3d 460, 484-485. Circumstantial evidence and direct evidence inherently possess the same probative value. State v. Jenks (1991),61 Ohio St. 3d 259, paragraph one of the syllabus.

{¶ 56} Here, there is circumstantial evidence that is sufficient to prove Barr willfully (i.e. voluntarily and intentionally) eluded the police officer. Cresanto testified that he was on Washington Street approaching Route 344 when he saw Barr traveling west on Route 344. (Tr. 121). Upon approaching the Washington Street Route 344 intersection, Cresanto saw Barr accelerate and lift his front wheel off the ground. (Tr. 116). Cresanto then activated his lights and siren and pursued Barr. (Tr. 121). Cresanto testified that while he was in pursuit of Barr, with his lights and siren activated, Barr looked over his left shoulder in Cresanto's direction. (Tr. 122). Cresanto stated that at the point when Barr looked over his shoulder there were no cars in between the cruiser and Barr. (Tr. 122). He then testified that after Barr looked over his shoulder, Barr accelerated to a higher rate of speed. (Tr. 122).

{57} This testimony leads to the conclusion that Barr willfully eluded the police. He heard the sirens, looked over his shoulder to see where the sirens were coming from, saw the police cruiser since it was the first car behind him, and then he accelerated to elude the cruiser. Thus, the prejudice element of the ineffective assistance of counsel has not been met. Given the above evidence, I cannot conclude that the decision reached would reasonably likely have been different absent trial counsel's error. This evidence alone is sufficient to prove that Barr willfully eluded the officer. Consequently, I find no merit with Barr's second assignment of error.

{58} Having found no merit with this assignment of error, I will now address Barr's third and remaining assignment of error. The third assignment error asserts that the conviction was against the manifest weight of the evidence.

{59} 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. State v. Thompkins (1997), 78 Ohio St. 3d 380. "Weight of the evidence concerns ' the inclination of the greater amountof 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. However, determinations of witness credibility, conflicting testimony, and evidence weight are primarily for the trier of the facts. State v. DeHass (1967), 10 Ohio St. 2d 230, paragraph one of the syllabus.

{60} Barr testified that he never saw a "cop" and that he never looked back because it would be too dangerous. However, this testimony contradicts Cresanto's testimony. As explained above, Cresanto testified that Barr looked over his left shoulder towards Cresanto and then accelerated to a higher rate of speed. The jury was free to believe all, part, or none of the testimony of each witness who appeared before it. State v. Caldwell (1992), 79 Ohio App. 3d 667, 607 N.E.2d 1096. It was up to the jury to make a determination about which conflicting testimony to accept as true. DeHass, 10 Ohio St. 2d 230, paragraph one of the syllabus. Considering all testimony and evidence, it cannot be stated that the jury clearly lost its way in finding Barr guilty of eluding an officer. Thus, the third assignment of error also lacks merit.

{61} For the reasons stated above, I would affirm the trial court's decision.