State v. Meyer , 2023 Ohio 1254 ( 2023 )

[Cite as State v. Meyer, 2023-Ohio-1254.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Andrew J. King, J.
-vs- :
:
DAMON MEYER : Case No. 22-COA-035
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Municipal Court,
Case No. 20CRB00914
JUDGMENT: Affirmed
DATE OF JUDGMENT: April 23, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ANDREW N. BUSH EDWARD CLARK CORLEY
1213 E. Main Street 3 North Main Street
Ashland, OH 44805 Suite 603
Mansfield, OH 44902
Ashland County, Case No. 22-COA-035 2
King, J.
{¶ 1} Defendant-Appellant Damon Meyer appeals the September 28, 2022
judgment of the Ashland County Municipal Court finding him guilty of animals on a public
roadway, a misdemeanor of the fourth degree. Plaintiff-Appellee is the state of Ohio.
Facts and Procedural History
{¶ 2} This case arose on August 24, 2020, when Jane Doe was driving home
from work on County Road 1775. Doe went over a hill near appellant's farm and
encountered a cow and a calf in the roadway. Doe slammed on her brakes and managed
to avoid hitting the animals. Transcript of Trial, (T.) at 125.
{¶ 3} Doe got out of her car and shooed the cow and calf out of the roadway. She
also noticed other cows and calves unconfined in the grassy area in front of a barn in
close proximity to the roadway. Doe called the Sheriff's Department and went to see if
anyone was home at the farm house. T. 124. Finding no one at the home, Doe went back
to watching the unconfined cattle to ensure they didn't enter the roadway. T. 124-125.
{¶ 4} Deputy Forsthoefel was dispatched to the scene to meet Doe and observed
several cows unconfined in an open area near the road. T. 147. No cows were in the
roadway at that time, but Doe reported what she saw shortly before his arrival. Forsthoefel
had been to appellant's property on several prior occasions for similar calls. T. 151.
{¶ 5} Forsthoefel asked dispatch to find the property owner and was given
appellant's name. T. 148. He was advised that appellant lived near the rear of the
property, so the deputy proceeded a short distance down a long lane in an attempt to
make contact, without success. Eventually dispatch contacted the property owners and/or
Ashland County, Case No. 22-COA-035 3
a resident. Appellant and his mother appeared shortly thereafter. T. 149. Appellant
advised the cows were his. T. 150.
{¶ 6} Forsthoefel entered the barn and observed a gate lying flat on the ground,
over which the cattle were exiting the barn. He noted no mechanisms by which the gate
could have been attached to anything. T. 153. He further observed that the gate was
longer than the doorway opening through which the cattle escaped leading Forsthoefel to
conclude the gate had been propped up against the opening. T. 183.
{¶ 7} Appellant was charged with Animals Running at Large on Public Roads in
violation of R.C. 951.02, a misdemeanor of the fourth degree.
{¶ 8} This case has been to trial three times and this is the second time we have
been asked to review the matter. On the second occasion, appellant decided to represent
himself at trial and was convicted as charged. On appeal, appellant argued the trial court
erred in permitting him to proceed pro se without a knowing, intelligent, and voluntary
waiver of his Sixth Amendment right to counsel. This court agreed, vacated appellant's
conviction and sentence, and remanded the matter for proceedings consistent with our
opinion. State v. Meyer, 187 N.E.3d 65, 2022-Ohio-1226 (5th Dist.).
{¶ 9} On remand, appellant again elected to try the matter to a jury and again
elected to represent himself. The trial court appointed standby counsel for appellant.
{¶ 10} Appellant's second trial took place on September 28, 2022. The state again
presented evidence and testimony from Jane Doe and Deputy Forsthoefel and elicited
the above outlined testimony. Appellant presented testimony from two neighbors, a USDA
livestock processing and humane regulator, his wife, his mother, and his brother.
Ashland County, Case No. 22-COA-035 4
{¶ 11} After hearing all the evidence and deliberating, the jury convicted appellant
as charged. The trial court imposed a $150 fine and ordered appellant to complete 80
hours of community service. Appellant's sentence was stayed pending this appeal.
{¶ 12} Appellant raises three assignments of error for our review as follow:
I
{¶ 13} "DAMON MEYER'S CONVICTION FOR ANIMALS RUNNING AT LARGE
IS NOT SUPPORTED BY THE EVIDENCE SUFFICIENT TO SATISFY THE
REQUIREMENTS OF DUE PROCESS UNDER THE UNITED STATES CONSTITUTION
AMENDMENTS V AND XIV; OR ALTERNATIVELY IS AGAINST THE MANIFEST
WEIGHT OT THE EVIDENCE."
II
{¶ 14} "THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO
DISMISS, BASED UPON THE STATE'S FAILURE TO PROVIDE A WITNESS LIST TO
THE DEFENDANT FOR THE TRIAL. "
III
{¶ 15} "THE COURT EXCEEDED ITS DISCRETION WHEN IT PERMITTED AN
APPARENTLY SICK AND INATTENTIVE JUROR TO REMAIN ON THE JURY PANEL,
FOR THE DURATION OF THE TRIAL."
I
{¶ 16} In his first assignment of error, appellant argues his conviction is against the
sufficiency and manifest weight of the evidence. We disagree.
{¶ 17} On review for sufficiency, a reviewing court is to examine the evidence at
trial to determine whether such evidence, if believed, would support a conviction. State v.
Ashland County, Case No. 22-COA-035 5
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). "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."
Jenks at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99
S.Ct. 2781, 61 L.Ed.2d 560 (1979). On review for manifest weight, a reviewing court is to
examine the entire record, weigh the evidence and all reasonable inferences, consider
the credibility of witnesses 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. Martin, 20 Ohio App.3d
172, 175, 485 N.E.2d 717 (1st Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d
380, 678 N.E.2d 541 (1997). The granting of a new trial "should be exercised only in the
exceptional case in which the evidence weighs heavily against the conviction." Martin at
175.
{¶ 18} Appellant was charged with one count of permitting animal in a roadway
pursuant to R.C. 951.02. That section states:
No person, who is the owner or keeper of horses, mules, cattle,
bison, sheep, goats, swine, llamas, alpacas, or poultry, shall permit
them to run at large in the public road, highway, street, lane, or alley,
or upon unenclosed land, or cause the animals to be herded, kept,
or detained for the purpose of grazing on premises other than those
owned or lawfully occupied by the owner or keeper of the animals.
Ashland County, Case No. 22-COA-035 6
{¶ 19} R.C. 951.99 states, "[w]hoever recklessly violates section 951.02 of the
Revised Code is guilty of a misdemeanor of the fourth degree." 2901.22(C) provides:
A person acts recklessly when, with heedless indifference to the
consequences, the person disregards a substantial and unjustifiable
risk that the person's conduct is likely to cause a certain result or is
likely to be of a certain nature. A person is reckless with respect to
circumstances when, with heedless indifference to the
consequences, the person disregards a substantial and unjustifiable
risk that such circumstances are likely to exist.
{¶ 20} Here, there was no dispute that the cattle at issue belonged to appellant.
T.150. Doe testified she was driving down County Road 1775 when, as she crested a hill
in front of Appellant's property, she nearly collided with a cow and a calf which were
standing in the roadway, in her lane of travel. Doe pulled into appellant's driveway, got
out of her car and chased the cow and calf back onto appellant's property. She observed
other cows coming out of the barn and into the yard. Some came toward the roadway. T.
123-124. Until Deputy Forsthoefel arrived, Doe did her best to keep the cattle off the road
"so nobody would get hurt." T. 125.
{¶ 21} Deputy Forsthoefel testified he arrived on the scene and observed multiple
cows outside their enclosure and in the side yard of the property near the roadway. T.147.
He assisted Doe in attempting to keep the animals off the road while dispatch located the
property owners. T. 148.
Ashland County, Case No. 22-COA-035 7
{¶ 22} Appellant arrived and pulled his car up near the barn. T.150. Forsthoefel
then returned to his cruiser to check the history of calls to the property noting there had
been many previous calls for the same reason. Forsthoefel took his camera to the barn
and took photos of the doorway through which cattle were escaping. T. 151. In the
doorway, Forsthoefel noted a gate lying flat on the ground and to the outside of the
pasture the cattle had escaped from. T. 159. He further noted there appeared to be no
way to secure the gate to the doorway, and that the gate was longer than the width of the
opening. He observed no chains, ropes, or anything on the fence or the wall to which the
gate could have been attached. T. 153. Forsthoefel took photographs to document his
observations which were admitted in to evidence at trial as State's exhibits 2-6. The
photos show no hardware, rope, or chain with which to secure the fence. T. 158-159.
{¶ 23} Because the gate was longer than the opening, was situated on the side of
the barn to the outside of the pasture, and exhibited no fastening devices, Forsthoefel
believed the gate had been merely propped up against the opening. T. 173.
{¶ 24} We find this evidence sufficient to support Appellant's conviction for animals
at large on a public roadway and further find the jury did not lose its way in so convicting
him.
{¶ 25} Appellant makes several arguments to the contrary, first arguing that Jane
Doe provided no testimony regarding the adequacy of the enclosure to contain cattle, and
the fact that she never entered the barn. But it was not necessary for Doe to testify to
these things. In fact, it appears the purpose of her testimony was limited to her
observation of the cattle in the roadway.
Ashland County, Case No. 22-COA-035 8
{¶ 26} Appellant further points to the testimony of his brother who stated he built
the barn the cattle escaped from and that he included gate hangers in the post to which
the gate was allegedly attached. Appellant's brother further agreed a cow can knock a
gate down. T. 210.
{¶ 27} The jury heard the testimony from Appellant's brother and also observed
photos of the area of the barn in question. As the trier of fact, the jury was free to believe
all, part, or none of any witness's testimony. State v. Antill, 176 Ohio St. 61, 67, 197
N.E.2d 548 (1964). A jury is further in the best position to view the witnesses and to
observe witness demeanor, gestures and voice inflections, and to use those observations
to weigh credibility. State v. Kurtz, 10th Dist. No. 17AP-382, 2018-Ohio-3942, ¶ 18 "Mere
disagreement over the credibility of witnesses is not a sufficient reason to reverse a
judgment on manifest weight grounds." State v. Harris, 10th Dist. No. 13AP-770, 2014-
Ohio-2501, 2014 WL 2583023, ¶ 25. We find the jury did not lose its way in believing the
state's witness over Appellant's witness.
{¶ 28} The first assignment of error is overruled.
II
{¶ 29} In his second assignment of error, appellant argues the trial court erred in
failing to grant his motion to dismiss based on the state's failure to provide him a witness
list. We disagree.
{¶ 30} Criminal Rule 16(I) provides in relevant part that each party will provide
opposing counsel with a written list of witnesses it intends to call at trial in its case-in-
chief.
{¶ 31} Criminal Rule 16(L)(1) provides:
Ashland County, Case No. 22-COA-035 9
The trial court may make orders regulating discovery not inconsistent
with this rule. If at any time during the course of the proceedings it is
brought to the attention of the court that a party has failed to comply
with this rule or with an order issued pursuant to this rule, the court
may order such party to permit the discovery or inspection, grant a
continuance, or prohibit the party from introducing in evidence the
material not disclosed, or it may make such other order as it deems
just under the circumstances.
{¶ 32} We initially note this matter proceeded to trial on three occasions under the
same case number. On each occasion the state's witnesses, remained the same; Jane
Doe and Deputy Forsthoefel. The state filed its witness list in this matter on October 2,
2020. Docket at 12.
{¶ 33} Appellant wrote several letters to the trial court stating he believed he had
not received complete discovery in this matter, and then filed a formal demand for
discovery on September 14, 2022. The trial court held a hearing on the same day,
specifically to address appellant's discovery complaints.
{¶ 34} The state indicated appellant had been to the law director's office on August
29, 2022, had been provided with copies "of everything" and signed a receipt for the
same. Transcript of hearing (T.H) at 8. During the hearing, appellant argued he had not
received all of Deputy Forsthoefel's body camera video evidence. T.H 11-12. Appellant
further appeared to be requesting photos from an incident that had nothing to do with this
Ashland County, Case No. 22-COA-035 10
case, but rather an incident that predated this matter, and involved his neighbors. At no
time during the hearing did appellant ever state he had not been provided a witness list.
{¶ 35} On the morning of trial, immediately before voir dire, Appellant alleged for
the first time he had not received a witness list and moved to dismiss the case on that
basis. T. 7. The state responded it had provided the witness list and further, that the
witnesses had not changed from the first two trials in this matter. T. 7 and 9. 1 The trial
court overruled Appellant's motion.
{¶ 36} A trial court has discretion in determining a sanction for a discovery
violation. State v. Parson, 6 Ohio St.3d 442, 445, 453 N.E.2d 689 (1983). In order to find
an abuse of discretion, we must determine the trial court's decision was unreasonable,
arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶ 37} We find the trial court did not abuse its discretion in overruling Appellant's
motion. The state filed its discovery, including a witness list, on October 2, 2022, the
witnesses remained the same throughout the life of the case, and the state indicated it
provided Appellant with a copy of that witness list. Certainly, the state would have a
responsibility to supplement discovery and provide a new list if the original list changed,
but it did not. Further, even if we assume for the sake of argument that the state did not
provide appellant with a copy of the list, appellant does not identify what prejudice he
suffered. He merely argues he did not receive a written list. We find no error in the trial
court's ruling.
{¶ 38} The second assignment of error is overruled.
1
We note page 8 of the transcript is missing which includes part of the witness list conversation. It is Appellant's
burden to provide a complete record.
Ashland County, Case No. 22-COA-035 11
III
{¶ 39} In his final assignment of error, appellant argues the trial court exceeded its
discretion when it permitted a sick and inattentive juror to remain in the panel for the
duration of the trial. We disagree.
{¶ 40} R.C. 2945.29 permits a court to replace a juror with an alternate: "If, before
the conclusion of the trial, a juror becomes sick, or for other reason is unable to perform
his duty, the court may order him to be discharged."
{¶ 41} "A trial judge is empowered to exercise 'sound discretion to remove a juror
and replace him with an alternate juror whenever facts are presented which convince the
trial judge that the juror's ability to perform his duty is impaired.' " State v. Brown, 2d Dist.
Montgomery No. 24541, 2012-Ohio-1848, ¶ 46, quoting State v. Hopkins, 27 Ohio App.3d
196, 198, 500 N.E.2d 323 (11th Dist.1985). In order to find an abuse of discretion, we
must determine the trial court's decision was unreasonable, arbitrary or unconscionable
and not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217,
450 N.E.2d 1140 (1983).
{¶ 42} Appellant's third assignment of error pertains to a point in trial during direct
examination of Deputy Forsthoefel where the following took place:
[Counsel for the State speaking to a juror]: Are you okay? Judge, we
need to stop for a minute.
(Discussion with juror who is getting sick)
[The Court]: Let's call a recess here until we determine what the
problem is.
Ashland County, Case No. 22-COA-035 12
(THEREUPON, the Court is in recess.)
The Bailiff: Let me stop the recording. Sir, your record is on.
The Court: Thank you.
The Bailiff: All rise for the jury please.
The Court: Be seated. Okay, after a short recess, the jury is back in
the jury box and the parties are back in the courtroom and the inquiry
about what we have in Voir Dire doesn't change because we are in
the middle of the hearing (inaudible) Ms. (inaudible) are you feeling
better? Is there a reason that you cannot proceed as a juror?
Juror: No.
The Court: Can you do me a favor, if you don't feel well, just raise
your hand and we can call it a day at any time, fair?
Juror: Yes.
{¶ 43} T. 163-164.
{¶ 44} This is the extent of the record regarding any illness involving the juror.
Contrary to Appellant's argument, there is no indication in the record that the juror was
inattentive and unable to perform her duty as a juror. Moreover, Appellant never asked
that the juror be removed from the panel. We find the trial court did not abuse its discretion
by failing to sua sponte remove the juror.
Ashland County, Case No. 22-COA-035 13
{¶ 45} The final assignment of error is overruled.
{¶ 46} The judgment of the Ashland County Municipal Court is affirmed.
By King, J.,
Gwin, P.J. and
Delaney, J. concur.
AJK/rw