State v. Fliger ( 2020 )

[Cite as State v. Fliger, 2020-Ohio-753.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. 2019 CA 0063
:
JASON E. FLIGER :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court
of Common Pleas, Case No. 2018 CR
0957
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: February 28, 2020
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
GARY BISHOP JAMES L. BLUNT, II
RICHLAND COUNTY PROSECUTOR 3954 Industrial Parkway Dr.
Shelby, OH 44875
JOSEPH C. SNYDER
38 South Park Street
Mansfield, OH 44902
Richland County, Case No. 2019 CA 0063 2
Delaney, J.
{¶1} Defendant-Appellant Jason E. Fliger appeals his conviction and sentence
by the Richland County Court of Common Pleas. Plaintiff-Appellee is the State of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} Defendant-Appellant Jason E. Fliger was arrested on October 5, 2018.
Fliger failed to post bond and was placed into the custody of the Richland County Jail.
{¶3} On November 9, 2018, Fliger was indicted by the Richland County Grand
Jury on three counts: (1) Failure to Comply with Order or Signal of Police Officer, a third-
degree felony in violation of R.C. 2921.331(B) and (C)(5)(a)(ii); (2) Receiving Stolen
Property, a fourth-degree felony in violation of R.C. 2913.51(A) and (C); and (3) Failure
to Comply with Order or Signal of Police Officer, a fourth-degree felony in violation of R.C.
2921.331(B) and (C)(4). Fliger entered a plea of not guilty and the matter was set for jury
trial on March 25, 2019.
{¶4} On March 27, 2019, the trial court filed a judgment entry continuing Fliger’s
jury trial. The judgment entry stated:
It is hereby ordered that the jury trial of this case is continued from March
25, 2019 because the case of State of Ohio v. Khairi Bond, Case No. 2018
CR 366 proceeded to trial. Time is tolled for speedy trial purposes until the
next available trial date.
The jury trial was scheduled for June 10, 2019.
{¶5} On June 6, 2019, Fliger filed a Motion to Dismiss, raising a speedy trial
argument. Fliger stated he was arrested on October 5, 2018 and had been in custody
since his arrest. When the trial court continued his trial date to June 10, 2019, Fliger
Richland County, Case No. 2019 CA 0063 3
argued his trial was beyond the 270-day requirement of R.C. 2945.71(C). The State
responded to the motion, arguing Fliger did not consider the statutory tolling of time, such
as discovery. The State further argued the speedy trial time was tolled by the continuance
of his jury trial due to the precedence of an older criminal case with more serious charges
as stated in the March 27, 2019 judgment entry.
{¶6} Prior to the start of the jury trial, the trial court heard the parties on Fliger’s
motion to dismiss. At the hearing, Fliger argued the trial court’s March 27, 2019 judgment
entry was insufficient to establish the reasonableness of the continuance because the
entry did not state a specific new trial date. (T. 5). The trial court asked defense counsel
whether the requirement was 90 or 270 days because Fliger was in custody on multiple
charges from other jurisdictions. (T. 5). Defense counsel stated he was unaware that any
other jurisdiction had a holder on Fliger. (T. 6). The State presented evidence that while
Fliger was being held on the charges in the present case, he was also being held on
multiple charges from other jurisdictions, therefore the day count was one-to-one. (T. 6,
8-9). The State also argued there were tolling events, including discovery for 52 days. (T.
6). The State argued that with the tolling events, multiple charges from different
jurisdictions, and the one-to-one count, the days were 159 out of the 270. (T. 7). The trial
court denied Fliger’s motion to dismiss and the jury trial proceeded. The following facts
were adduced at trial.
{¶7} On October 5, 2018, Sergeant Cody Baker with the Shelby Police
Department received a call at 6:23 a.m. about a vehicle parked on the street that had its
lights off but had been running for some time. When he responded to the call, Sergeant
Baker found a GMC Envoy with dealer plates. He approached the car and observed
Richland County, Case No. 2019 CA 0063 4
Defendant-Appellant Jason E. Fliger sitting on the seat. Sergeant Baker recognized Fliger
from prior interactions and knew Fliger had a tendency to flee. He also knew Fliger had
warrants on pending cases in at least one jurisdiction.
{¶8} He attempted to open the car door and Fliger woke up. Sergeant Baker
announced himself as law enforcement and Fliger sped off in the truck. Sergeant Baker
gave chase in his police cruiser, reaching speeds of 92 mph but he could not catch up to
Fliger, whom he estimated was driving about 100 mph.
{¶9} Sergeant Baker pursued Fliger when Fliger pulled off the roadway to a
plowed farm field. In the farm field, he was able to keep up with Fliger until Fliger drove
into a corn field. The officer broke off the pursuit because he could not see past the corn.
He advised dispatch of Fliger’s location.
{¶10} Fliger drove until the truck came to rest in a private culvert on the farm
property. The owner of the property saw Fliger’s vehicle in the ditch and asked Fliger how
he got there. Fliger told him he was not sure and said he had been drinking. The farm
owner offered to help him get the truck out of the ditch, returned home to call the police,
and get his shotgun. The farm owner spoke with Fliger until the police arrived. Fliger then
ran off on foot.
{¶11} The Ohio State Highway Patrol, Ontario Police, Shelby Police Department,
and Richland County Sheriff’s Department arrived on the scene to assist in locating Fliger.
Sergeant Ryan Randall of the Ohio State Highway Patrol observed Fliger walking in the
woods. Fliger saw Sergeant Randall and he turned to walk away. The police officer
ordered Fliger to stop, Fliger surrendered, and he was taken into custody.
Richland County, Case No. 2019 CA 0063 5
{¶12} Fliger testified at trial. He stated that when Sergeant Baker came to the door
of the truck, he was startled by yelling and a light in his face. He took off in the truck
because he thought someone was coming after him. He denied hearing any sirens or
seeing any lights.
{¶13} The State asked if Fliger was under the influence of drugs on that day, which
Fliger denied. As rebuttal, the State attempted to introduce the body cam video footage
of Fliger’s arrest taken by Captain Zehner of the Richland County Sheriff’s Department.
Fliger objected. During a side bar, the parties discussed the admission of the body cam
footage. Fliger objected to the use of the body cam footage because it showed Fliger and
Captain Zehner discussing other crimes allegedly committed by Fliger. During Fliger’s
testimony, he stated he did not know that he was being pursued by the police and that he
was wanted by the police. The State contended the footage demonstrated Fliger’s motive
or intent, lack of mistake, and other elements of the charges. The trial court watched the
footage outside the presence of the jury and determined it could be used as rebuttal. The
footage showed a discussion about other charges, but the trial court found the discussion
went to the issue of willfulness of the pursuit. The footage also rebutted Fliger’s testimony
that he did not know he was being pursed, which went to the element of intent. Finally,
there was discussion about whether Fliger knew the truck he was driving was stolen –
another element the State was required to prove. The trial court held the body cam
footage was not to be used pursuant to Evid.R. 404(B), but to go towards the elements
of pursuit and receiving stolen property.
{¶14} The State recalled Captain Zehner and introduced State Exhibit 12, the
body cam footage. The trial court then gave the jury a limiting instruction:
Richland County, Case No. 2019 CA 0063 6
He’s only on trial here for fleeing and eluding and receiving stolen property.
The prosecutor is allowed to put on evidence relating to knowledge and
intent, knowledge regarding the failure to comply with the order or signal
of a police office. So you’re not allowed to say someone did something bad
at one point and, therefore, they must have done something bad in this
case. However, one of the issues in this trial is Mr. Fliger’s knowledge and
Mr. Fliger’s intent, so for those reasons you’re allowed to consider this
information, but not to say, well, he did something wrong before, he must
have done something wrong this time. However, it would be germane to
what his intent was regarding the failure to comply with the order or signal
of a police officer and what his knowledge was relating to the receiving
stolen property. That’s why it’s coming in. So the limiting instruction is that
you can’t say, well, somebody did something bad one time and then they
must have done something bad this time. However, this becomes relevant
because it goes to intent and knowledge of Mr. Fliger, so that’s why I am
allowing it.
(T. 449-450).
{¶15} Ultimately, the jury found Fliger guilty of (1) Failure to Comply with Order or
Signal of Police Officer, a third-degree felony in violation of R.C. 2921.331(B) and
(C)(5)(a)(ii) and (3) Failure to Comply with Order or Signal of Police Officer, first-degree
misdemeanor in violation of R.C. 2921.331(B). The jury found Fliger not guilty of
Receiving Stolen Property.
Richland County, Case No. 2019 CA 0063 7
{¶16} The trial court merged Counts One and Three and sentenced Fliger to 30
months in prison via a sentencing entry filed on June 18, 2019. It is from this sentencing
entry Fliger now appeals.
ASSIGNMENTS OF ERROR
{¶17} Fliger raises two Assignments of Error:
{¶18} “I. WHETHER THE TRIAL COURT ERRED BY FAILING TO DISMISS THE
CASE FOR NOT AFFORDING THE DEFENDANT A TRIAL WITHIN THE STATUTORY
TIME LIMIT.
{¶19} “II. WHETHER THE TRIAL COURT ERRED BY ALLOWING THE POLICE
BODY CAMERA TO BE HEARD BY THE JURY, PURSUANT TO RULE OF EVIDENCE
404(B).”
ANALYSIS
I. Speedy Trial
{¶20} Fliger contends in his first Assignment of Error that the trial court erred when
it denied his motion to dismiss the case based on a violation of his right to a speedy trial.
We disagree.
{¶21} Fliger’s motion to dismiss was premised upon an alleged violation of his
right to a speedy trial. Speedy-trial provisions are mandatory and are encompassed within
the Sixth Amendment to the United States Constitution. The availability of a speedy trial
to a person accused of a crime is a fundamental right made obligatory on the states
through the Fourteenth Amendment. State v. Ladd, 56 Ohio St.2d 197, 200, 383 N.E.2d
579 (1978). “The statutory speedy trial provisions, R.C. 2945.71 et seq., constitute a
rational effort to enforce the constitutional right to a public speedy trial of an accused
Richland County, Case No. 2019 CA 0063 8
charged with the commission of a felony or a misdemeanor and shall be strictly enforced
by the courts of this state.” State v. Pachay, 64 Ohio St.2d 218, 416 N.E.2d 589, syllabus
(1980).
{¶22} A speedy-trial claim involves a mixed question of law and fact. State v.
Hickinbotham, 5th Dist. Stark No. 2018CA000142, 2019-Ohio-2978, 2019 WL 4780988,
¶ 26, citing State v. Jenkins, 5th Dist. Stark No. 2009-CA-00150, 2010-Ohio-2719, ¶ 31,
citing State v. Larkin, 5th Dist. Richland No. 2004-CA-103, 2005-Ohio-3122. As an
appellate court, we must accept as true any facts found by the trial court and supported
by competent, credible evidence. Id. With regard to the legal issues, however, we apply
a de novo standard of review and thus freely review the trial court's application of the law
to the facts. Id.{¶23} Pursuant to R.C. 2945.73, a person who is not brought to trial within the
proscribed time periods found in R.C. 2945.71 and R.C. 2945.72 “shall be discharged”
and further criminal proceedings based on the same conduct are barred. Fliger was
arrested on October 5, 2018 and on November 9, 2018, indicted on three felonies. R.C.
2945.71(C)(2) states that a person charged with a felony shall be brought to trial within
270 days after the person’s arrest. Fliger argues that pursuant to R.C. 2945.71(E), for the
purposes of computing time under R.C. 2945.71(C), each day Fliger was held in jail in
lieu of bail on the pending charge was to be counted as three days. The State contended
at the hearing that Fliger was in jail before trial for 159 days, inclusive of tolling events. In
his appeal, Fliger does not dispute that he was in jail for 159 days. Fliger argues that
pursuant to the triple count, Fliger was in jail for 477 days (159 days x 3) before trial, in
violation of R.C. 2945.71(C)(2).
Richland County, Case No. 2019 CA 0063 9
{¶24} Fliger cannot benefit from the “triple-count provision” under R.C. 2945.71(E)
when he was held in jail on other charges. State v. Dahms, 3rd Dist. Seneca No. 13-16-
16, 2017-Ohio-4221, ¶ 104 citing State v. Stephens, 9th Dist. Summit No. 26516, 2013–
Ohio–2223, ¶ 12, citing State v. Skorvanek, 9th Dist. Lorain No. 08CA009399, 2009–
Ohio–3924, ¶ 11, citing State v. MacDonald, 48 Ohio St.2d 66 (1976), paragraph one of
the syllabus. See also State v. Brown, 64 Ohio St.3d 476, 479–480 (1992). “Instead, the
270–day time limit contained in R.C. 2945.71(C)(2) applies.” Stephens at ¶ 12, citing State
v. Richter, 9th Dist. Summit No. C.A. NO. 11799, 1985 WL 10977 (Feb. 13, 1985) and
MacDonald, supra at 71. At the hearing on the motion to dismiss, the State presented
evidence that while Fliger was held in the Richland County Jail on the charges in the
within matter, Fliger was also being held on outstanding charges from multiple
jurisdictions, including the Shelby Municipal Court and Mansfield Municipal Court. The
trial court stated it also conducted research into Fliger’s motion to dismiss and determined
that Fliger was being held on warrants from multiple jurisdictions, at least through April
27, 2019. The trial court recited at least ten pending criminal actions from other
jurisdictions. (T. 8-9). At the hearing, defense counsel acknowledged he was not aware
that Fliger was also being held on charges from other jurisdictions when he filed the
motion to dismiss for a speedy trial violation.
{¶25} Fliger contends on appeal the State failed to establish that Fliger was being
held on multiple charges. We disagree with Fliger’s characterization of the evidence.
Upon our review of the trial court’s denial of the speedy-trial claim, we must accept as
true any facts found by the trial court and supported by competent, credible evidence. We
find there was competent, credible evidence in the record that Fliger was being held in
Richland County, Case No. 2019 CA 0063 10
jail on other charges arising out of different transactions with a different litigation history.
See State v. Madden, 10th Dist. Franklin No. 04AP–1228, 2005–Ohio–4281, ¶ 29–30,
citing State v. Parsley, 82 Ohio App.3d 567, 571, 612 N.E.2d 813 (10th Dist.1993).
{¶26} Fliger next argues the trial court’s March 27, 2019 judgment entry
continuing Fliger’s jury trial was insufficient to extend his speedy trial time. R.C. 2945.72
lists a number of factors that permissibly extend speedy-trial time relative to the general
speedy-trial statute, R.C. 2945.71. R.C. 2945.72(H) states, “[t]he time within which the
accused must be brought to trial, or, in the case of a felony, to preliminary hearing and
trial, may be extended only the following: * * * [t]he period of any continuance granted on
the accused's own motion, and the period of any reasonable continuance granted other
than upon the accused's own motion.” R.C. 2945.72 permits the trial court to extend
speedy trial time as long as the length of time is reasonable and the reason for the
continuance is indicated in the judgment entry. “[W]here the trial record affirmatively
demonstrates the necessity for a continuance and the reasonableness thereof, such a
continuance will be upheld.” State v. Myers, 97 Ohio St.3d 335, 2002-Ohio-6658, ¶ 62.
{¶27} The Fourth District Court of Appeals noted in State v. Carr, 4th Dist. Ross
No. 12CA3358, 2013-Ohio-5312, 2013 WL 6388440, ¶ 31:
“ ‘Ideally, “[w]hen sua sponte granting a continuance under R.C.
2945.72(H), the trial court must enter the order of continuance and the
reasons therefor by journal entry prior to the expiration of the time limit
prescribed in R.C. 2945.71 for bringing a defendant to trial.” ’ State v.
Ramey, 132 Ohio St.3d 309, 2012-Ohio-2904, 971 N.E.2d 937, ¶ 32,
quoting State v. Mincy, 2 Ohio St.3d 6, 441 N.E.2d 571 (1982), syllabus.
Richland County, Case No. 2019 CA 0063 11
However, the Supreme Court of Ohio has ‘recognized that an appellate
court may affirm a conviction challenged on speedy-trial grounds even if the
trial court did not expressly enumerate any reasons justifying the delay
when the reasonableness of the continuance is otherwise affirmatively
demonstrated by the record.’ Ramey at ¶ 33. For the continuance to toll
speedy trial time, ‘[t]he record must reflect that the continuance was
“reasonable in both purpose and length.” ’ State v. Martin, 56 Ohio St.2d
289, 293, 384 N.E.2d 239 (1978), quoting State v. Lee, 48 Ohio St.2d 208,
210, 357 N.E.2d 1095 (1976).”
State v. Horsley, 4th Dist. No. 16CA3787, 2018-Ohio-1591, 110 N.E.3d 624, 2018 WL
1920040, ¶ 32, appeal not allowed, 153 Ohio St.3d 1497, 2018-Ohio-4092, 108 N.E.3d
1105, 2018 WL 4927844, ¶ 32 (2018)
{¶28} At the hearing, the trial court acknowledged Fliger’s argument as to the
continuance of his trial date from March 25, 2019. (T. 9). The trial court stated that on
March 25, 2019, there were ten or eleven criminal cases set for trial, including Fliger’s,
and the oldest case with the most serious charges was State of Ohio v. Khairi Bond, Case
No. 2018 CR 366. (T. 9). The next available trial date was June 10, 2019. (T. 9). Based
on this record, we find the trial court’s continuance of Fliger’s jury trial was reasonable in
both purpose and length.
{¶29} Fliger’s first Assignment of Error is overruled.
Richland County, Case No. 2019 CA 0063 12
II. Evid.R. 404(B)
{¶30} In his second Assignment of Error, Fliger contends the trial court abused its
discretion when it permitted the State to introduce the body cam footage taken by Captain
Zehner. We disagree.
{¶31} “[A] trial court is vested with broad discretion in determining the admissibility
of evidence in any particular case, so long as such discretion is exercised in line with the
rules of procedure and evidence.” Westfield Ins. Group v. Silco Fire & Sec., 5th Dist. Stark
No. 2018CA00122, 2019-Ohio-2779, 2019 WL 2775601, ¶ 52 citing Huth v. Kus, 5th Dist.
No. 2017 AP 06 0015, 2018-Ohio-1931, 113 N.E.3d 140, 2018 WL 2230727, ¶ 30 quoting
Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d 1056 (1991). Fliger argues the
body cam footage was admitted in violation of Evid.R. 404(B). Evid. R. 404(B) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It
may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident. In criminal cases, the proponent of evidence to be
offered under this rule shall provide reasonable notice in advance of trial,
or during trial if the court excuses pretrial notice on good cause shown, of
the general nature of any such evidence it intends to introduce at trial.
{¶32} During his testimony, Fliger denied knowing he was being chased by the
police, that he had outstanding warrants for his arrest, or that he told the arresting officer
that drugs may have been the blame for his actions on October 5, 2018. In order to rebut
Fliger’s testimony, the State introduced the body cam footage taken by Captain Zehner
Richland County, Case No. 2019 CA 0063 13
during Fliger’s arrest on October 5, 2018. Fliger objected to the admission of the footage
and prior to its admission, the trial court reviewed the footage.
{¶33} Fliger was charged Failure to Comply with Order or Signal of Police Officer
in violation of R.C. 2921.331(B), (C)(4), and (C)(5(a)(ii). The statutes reads, “[n]o 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. * * * Except as provided in division (C)(5) of this section, a violation of division (B)
of this section is a felony of the fourth degree if the jury or judge as trier of fact finds by
proof beyond a reasonable doubt that, in committing the offense, the offender was fleeing
immediately after the commission of a felony. * * * 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: * * * The operation of the motor vehicle by the
offender caused a substantial risk of serious physical harm to persons or property.” Fliger
was also charged with Receiving Stolen Property, in violation of R.C. 2913.51(A) and (C).
The statute reads,
(A) No person shall receive, retain, or dispose of property of another
knowing or having reasonable cause to believe that the property has been
obtained through commission of a theft offense.
***
(C) Whoever violates this section is guilty of receiving stolen property.
Except as otherwise provided in this division or division (D) of this section,
receiving stolen property is a misdemeanor of the first degree. If the value
of the property involved is one thousand dollars or more and is less than
Richland County, Case No. 2019 CA 0063 14
seven thousand five hundred dollars, if the property involved is any of the
property listed in section 2913.71 of the Revised Code, receiving stolen
property is a felony of the fifth degree. If the property involved is a motor
vehicle, as defined in section 4501.01 of the Revised Code, if the property
involved is a dangerous drug, as defined in section 4729.01 of the Revised
Code, if the value of the property involved is seven thousand five hundred
dollars or more and is less than one hundred fifty thousand dollars, or if the
property involved is a firearm or dangerous ordnance, as defined in section
2923.11 of the Revised Code, receiving stolen property is a felony of the
fourth degree. If the value of the property involved is one hundred fifty
thousand dollars or more, receiving stolen property is a felony of the third
degree.
The trial court found the Captain’s questions and Fliger’s responses as to prior crimes
rebutted Fliger’s testimony and demonstrated the elements of motive and intent for fleeing
and eluding the police and receiving stolen property.
{¶34} The trial court acknowledged the implication of the body cam footage on the
prohibitions of Evid.R. 404(B) and gave the jury a limiting instruction as to its duty when
interpreting the body cam footage. The jury is presumed to follow the instructions of the
trial court. MCM Home Builders, LLC v. Sheehan, 5th Dist. Delaware No. 18 CAE 09
0074, 2019-Ohio-3899, 2019 WL 4724682, ¶ 48 citing Pang v. Minch, 53 Ohio St.3d 186,
187, 559 N.E.2d 1313 (1990), paragraph four of the syllabus.
{¶35} We find no abuse of the discretion to permit the admission of the body cam
footage for rebuttal purposes and to establish the elements of the charged offenses.
Richland County, Case No. 2019 CA 0063 15
Further, the trial court provided the jury with a limiting instruction which we must presume
the jury followed.
{¶36} Fliger’s second Assignment of Error is overruled.
CONCLUSION
{¶37} The judgment of the Richland County Court of Common Pleas is affirmed.
By: Delaney, J.,
Gwin, P.J. and
Baldwin, J., concur.