State v. Diggs

[Cite as State v. Diggs, 2014-Ohio-3340.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 14AP-18
(C.P.C. No. 13CR-4963)
v. :
(REGULAR CALENDAR)
Fred Diggs, IV, :
Defendant-Appellant. :
D E C I S I O N
Rendered on July 31, 2014
Ron O'Brien, Prosecuting Attorney, and Megan Jewett, for
appellee.
Wolfe Van Wey & Associates, LLC, and Stephen T. Wolfe, for
appellant.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{¶ 1} Defendant-appellant, Fred Diggs, IV, appeals from a judgment entry of the
Franklin County Court of Common Pleas finding him guilty, pursuant to jury verdict, of
one count of aggravated burglary, one count of aggravated robbery, two counts of robbery,
all with firearm specifications, and one count of failure to comply with an order or signal
of a police officer. Because the sufficiency of the evidence and the manifest weight of the
evidence support appellant's convictions and the trial court did not err in overruling
appellant's Crim.R. 29 motion for acquittal, we affirm.
I. Facts and Procedural History
{¶ 2} Through an indictment filed September 18, 2013, the state charged
appellant with (1) one count of aggravated burglary, a felony of the first degree, in
No. 14AP-18 2
violation of R.C. 2911.11, (2) one count of kidnapping, a felony of the first degree, in
violation of R.C. 2905.01, (3) one count of aggravated robbery, a felony of the first degree,
in violation of R.C. 2911.01, (4) one count of robbery, a felony of the second degree, in
violation of R.C. 2911.02, (5) one count of robbery, a felony of the third degree, in
violation of R.C. 2911.02, and (6) one count of failure to comply with an order or signal of
a police officer, a felony of the third degree, in violation of R.C. 2921.331. Counts 1
through 5 all included accompanying firearm specifications. Additionally, the first five
counts were indicted under a complicity theory along with two co-defendants. The
indicted offenses all related to the events of April 29, 2013 involving a home invasion
robbery and the subsequent high-speed car chase. Appellant entered a plea of not guilty
to all six counts.
{¶ 3} At a jury trial commencing October 7, 2013, the victim, Markesha Gravely,
testified that on the day of April 29, 2013, she was home with her two young children
when a man forced his way into her home and demanded she give him money at
gunpoint. The man told her "your husband, GY, is the one who sent me." (Tr. Vol. I, 72.)
Markesha gave the man two water jugs being used as her children's piggy banks, and the
man also demanded her cell phone. Before exiting her home, Markesha testified the man
said "I should kill your daughter," and he fired his revolver into the floor near where
Markesha's three-year-old daughter was standing. (Tr. Vol. I, 75.) Markesha immediately
dialed 911 from her house phone and attempted to chase the man down the street. The
state played a recording of Markesha's 911 call in court during which Markesha gave a
description of the man to the 911 operator. When she hung up with the 911 operator,
Markesha called her husband and described what had just happened and told her
husband where the man was running. After the police informed Markesha they had made
an arrest that day, Markesha identified the man who forced his way into her home and
robbed her at gunpoint as Josias Smith.
{¶ 4} Markesha's husband, Demetris Gravely, also testified. Demetris stated he
had spent time in prison and, during that time, he earned the nickname "Graveyard,"
which was eventually shortened to "GY." (Tr. Vol. I, 109.) Demetris testified that on the
day of April 29, 2013, he was driving back to his house when his wife called him to tell him
they had just been robbed and that the man who held her at gunpoint was running away
No. 14AP-18 3
toward Tamarack Boulevard. Markesha gave Demetris a description of the man, and
Demetris stated he started driving in that direction "looking for anybody with a gray shirt
or a gray hoodie." (Tr. Vol. I, 112.) He eventually spotted a man who matched the
description and saw him toss a bag into a waiting vehicle and then jump in through the
rear driver's side door of the vehicle before it sped off. Demetris testified the car took off
instantly after the man jumped in without any delay, as though the vehicle "was waiting
for him." (Tr. Vol. I, 116.) Demetris followed the vehicle and called 911 for assistance in
his pursuit. The vehicle was traveling faster than the posted speed limits and was running
through red lights, and Demetris continued to follow it until police arrived.
{¶ 5} After police pursued and arrested the three occupants of the vehicle,
Demetris identified appellant as the driver of the vehicle. Demetris also identified the
man he saw running and who jumped into the waiting vehicle as Smith. Though Demetris
stated he had never seen Smith prior to the day of the robbery, he testified he knew
relatives of appellant and that those relatives knew he went by the nickname "GY."
{¶ 6} Officer Delner Twitty of the Columbus Police Department testified he was
on duty on April 29, 2013 when he heard about the vehicle from Demetris' 911 call on his
police cruiser radio. There were several cruisers responding to this incident, and Officer
Twitty eventually saw the suspect vehicle driving southbound on Ambleside Drive near
East Dublin-Granville Road. Officer Twitty turned on his lights and siren and pursued the
vehicle. The vehicle did not attempt to stop but instead increased its speed and
attempted to evade Officer Twitty's cruiser. The high-speed chase continued until Officer
Twitty turned right to attempt to cut off the vehicle's path, and another police cruiser
continued in direct pursuit of the vehicle. Officer Twitty received word that the suspects
had bailed out of the car and were running away on foot.
{¶ 7} The state then played the police cruiser video recording from the cruiser
that stopped directly behind the suspect vehicle when the vehicle stopped and the
occupants got out and fled on foot. Officer David Weisgerber testified that after pursuing
the suspect vehicle, he saw two individuals running in between houses, so he got out of his
cruiser and pursued them on foot. Officer Adam Worthington testified he detained Smith
as soon as Smith exited the suspect vehicle. Officer Worthington did not find a firearm on
Smith's person or in the vehicle after he was arrested.
No. 14AP-18 4
{¶ 8} Officer Allen Troutman testified that after setting up a perimeter to search
for the two suspects who had fled on foot, one of the men eventually reemerged between
the houses, running and covered in mud. Officer Troutman arrested the man, and he
subsequently identified that man as appellant. Several hours later, another officer
apprehended the third occupant of the vehicle, Jazzjuan Moore. Police recovered from
the suspect vehicle the plastic bottles with money and the cell phone taken from
Markesha. No firearm was ever recovered.
{¶ 9} Appellant also testified at trial and stated he had no involvement in Smith's
criminal activities on April 29, 2013. While appellant testified he has known Moore for
over ten years, he stated he only knew of Smith and did not converse with him often.
According to appellant's testimony, on the day of the home invasion, appellant was sitting
in his car with Moore rolling marijuana cigarettes when they unexpectedly saw Smith
running down the street carrying a gun and a trash bag. Appellant stated Smith jumped
in his car without permission and demanded that appellant drive while threatening him
with a gun. Appellant did not deny that he drove the vehicle with Smith in the car or that
he disobeyed signals from the police to pull over; rather, he testified he only did those
things because Smith was threatening him with a gun and he feared for his life.
{¶ 10} After deliberations, the jury returned guilty verdicts for the charges of
aggravated burglary, aggravated robbery, second-degree felony robbery, third-degree
felony robbery, all with the accompanying firearm specification, as well as a guilty verdict
for the charge of failure to comply with an order or signal of a police officer. The jury
found appellant not guilty as to the kidnapping charge. Following a December 13, 2013
sentencing hearing, the trial court sentenced appellant to a total of 21 years in prison. The
trial court journalized appellant's convictions and sentence in a January 6, 2014 amended
judgment entry. Appellant timely appeals.
II. Assignments of Error
{¶ 11} Appellant assigns three assignments of error for our review:
[1.] The evidence presented at trial was insufficient to support
the convictions.
[2.] The trial court erred when it overruled appellant's motion
for acquittal pursuant to Criminal Rule 29.
No. 14AP-18 5
[3.] The jury's verdicts were against the manifest weight of the
evidence.
III. First Assignment of Error – Sufficiency of the Evidence
{¶ 12} In his first assignment of error, appellant argues there was insufficient
evidence to convict him of aggravated burglary, aggravated robbery, and the two robbery
counts. Appellant does not challenge the sufficiency of the evidence as it relates to Count
5 of the indictment, failure to comply with the order or signal of a police officer.
{¶ 13} Whether there is legally sufficient evidence to sustain a verdict is a question
of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). Sufficiency is a test of
adequacy. Id. The relevant inquiry for an appellate court is whether the evidence
presented, when viewed in a light most favorable to the prosecution, would allow any
rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.
State v. Mahone, 10th Dist. No. 12AP-545, 2014-Ohio-1251, ¶ 38, citing State v. Tenace,
109 Ohio St.3d 255, 2006-Ohio-2417, ¶ 37.
{¶ 14} Appellant was indicted as an accomplice of the principal offender, Smith,
for the charges of aggravated burglary, aggravated robbery, and the two robbery charges.
Appellant does not argue that the state failed to prove the elements of those offenses as to
Smith; rather, appellant argues the state failed to prove the elements of appellant's
involvement in those offenses under a complicity theory. All of the offenses relate to the
same home-invasion robbery of the Gravelys' home on April 29, 2013.
{¶ 15} R.C. 2923.03, Ohio's complicity statute, provides, in pertinent part:
(A) No person, acting with the kind of culpability required for
the commission of an offense, shall do any of the following:
(1) Solicit or procure another to commit the offense;
(2) Aid or abet another in committing the offense;
(3) Conspire with another to commit the offense in violation
of [R.C. 2923.01];
(4) Cause an innocent or irresponsible person to commit the
offense.
***
No. 14AP-18 6
(F) Whoever violates this section is guilty of complicity in the
commission of an offense, and shall be prosecuted and
punished as if he were a principal offender. A charge of
complicity may be stated in terms of this section, or in terms
of the principal offense.
Appellant asserts there was insufficient evidence that would allow any rational trier of fact
to come to the conclusion that appellant aided or abetted Smith in the commission of the
offenses.
{¶ 16} "To support a conviction for complicity by aiding and abetting pursuant to
R.C. 2923.03(A)(2), the evidence must show that the defendant supported, assisted,
encouraged, cooperated with, advised, or incited the principal in the commission of the
crime." State v. Johnson, 93 Ohio St.3d 240 (2001), syllabus. "An aider or abettor must
also 'share[ ] the criminal intent of the principal,' but '[s]uch intent may be inferred from
the circumstances surrounding the crime' such as 'presence, companionship and conduct
before and after the offense is committed.' " State v. Kendricks, 10th Dist. No. 10AP-114,
2010-Ohio-6041, ¶ 16, quoting Johnson at syllabus, and State v. Pruett, 28 Ohio App.2d
29, 34 (4th Dist.1971).
A. Aggravated Burglary
{¶ 17} Pursuant to R.C. 2911.11(A)(1) and (2), "[n]o person, by force, stealth, or
deception, shall trespass in an occupied structure * * * when another person other than an
accomplice of the offender is present, with purpose to commit in the structure * * * any
criminal offense" if either "[t]he offender inflicts, or attempts or threatens to inflict
physical harm on another," or "[t]he offender has a deadly weapon or dangerous ordnance
on or about the offender's person or under the offender's control." The culpable mental
state for aggravated burglary is "purposeful." State v. Fry, 125 Ohio St.3d 163, 2010-
Ohio-1017, ¶ 44, citing State v. Conley, 4th Dist. No. 08CA784, 2009-Ohio-1848, ¶ 40.
{¶ 18} Markesha testified that Smith pointed his gun at her as he forced his way
into her home, and appellant does not dispute that Smith brandished a weapon during the
burglary. The sole issue, then, is whether there was sufficient evidence to show appellant
purposely aided or abetted Smith in the commission of the aggravated burglary.
{¶ 19} Appellant argues there was little evidence suggesting he had any connection
to Smith prior to the burglary, let alone that he aided and abetted Smith in the
No. 14AP-18 7
commission of the aggravated burglary. However, direct evidence of their relationship
prior to the commission of the crimes is not necessary, as " ' "[p]articipation in criminal
intent may be inferred from presence, companionship and conduct before and after the
offense is committed." ' " (Emphasis added.) State v. Phipps, 10th Dist. No. 03AP-533,
2004-Ohio-3226, ¶ 14, quoting Johnson at 245, quoting Pruett at 34. Nonetheless,
appellant admitted to knowing Smith, and he testified that both he and Moore, the other
co-defendant and the man who was in the car with him that day, lived near the Gravelys.
Appellant also admitted to knowing someone who spent time in prison with Demetris
Gravely. Further, when Smith ran from the Gravelys' home, he went immediately to the
nearby idling vehicle in which appellant was the driver. As the driver, appellant then led
police on a high-speed chase to elude capture.
{¶ 20} The only conflicting evidence was appellant's self-serving testimony that it
was sheer coincidence that he was sitting in his idling car near the crime scene and that he
was forced to drive away at gunpoint, which the jury was free to disbelieve. Appellant also
argues it was too great of a leap to make that the only way Smith could have learned
Demetris Gravely's prison nickname, GY, was for appellant to have told Smith because
there was no direct evidence that appellant conspired with Smith before the home
invasion or provided Smith with information about their target. However, "[u]nder Ohio
law, * * * circumstantial evidence can have the same probative value as direct evidence,
and '[a] conviction can be sustained on circumstantial evidence alone.' " State v.
Fausnaugh, 10th Dist. No. 11AP-842, 2012-Ohio-4414, ¶ 26, quoting State v. Franklin, 62
Ohio St.3d 118, 124 (1991).
{¶ 21} We conclude that, when construing the evidence in a light most favorable to
the prosecution, appellant's presence very near the crime scene combined with his
conduct after the commission of the offenses was sufficient evidence allowing a rational
trier of fact to find, beyond a reasonable doubt, that appellant purposely supported and
assisted Smith and shared Smith's criminal intent in his effort to forcibly enter the
Gravelys' home and deprive Markesha Gravely of her property without her consent when
he drove the getaway car after Smith fled from the Gravelys' home.
No. 14AP-18 8
B. Aggravated Robbery
{¶ 22} Under R.C. 2911.01(A)(1), aggravated robbery where the offender has a
deadly weapon on or about their person while committing a theft offense is a strict
liability offense. Kendricks at ¶ 17, citing State v. Lester, 123 Ohio St.3d 396, 2009-Ohio-
4225, ¶ 32. Further, aggravated robbery under R.C. 2911.01(A)(3), where an offender
inflicts or attempts to inflict serious physical harm on another while committing a theft
offense, is also a strict liability offense. Id., citing State v. Horner, 126 Ohio St.3d 466,
2010-Ohio-3830, ¶ 53. As to the theft aspect of the offense of aggravated robbery, the
culpable mental state is "knowingly." Id., citing Horner at ¶ 49. A person acts knowingly
when he is "aware that his conduct will probably cause a certain result or will probably be
of a certain nature," while a person "has knowledge of circumstances when he is aware
that such circumstances probably exist." R.C. 2901.22(B).
{¶ 23} Markesha testified that Smith, the principal offender, brandished a weapon
during the robbery and that he discharged that weapon into the floor. Appellant does not
dispute that Smith brandished a weapon during the theft offense. Similar to his argument
as to the aggravated burglary charge, appellant argues there was insufficient evidence to
permit a finding that he knowingly aided and abetted Smith in the commission of the
aggravated robbery.
{¶ 24} "When knowledge suffices to establish an element of an offense, then
purpose is also sufficient culpability." R.C. 2901.22(E). Thus, where there is sufficient
evidence to conclude that a defendant acted purposely, there is also sufficient evidence to
establish that he acted knowingly. State v. Overton, 10th Dist. No. 09AP-858, 2011-Ohio-
4204, ¶ 9, citing R.C. 2901.22(E). As we have already determined the evidence was
sufficient to allow a rational trier of fact to find appellant acted purposefully in aiding and
abetting the aggravated burglary, it follows that the evidence is also sufficient to find
appellant acted knowingly in aiding and abetting the aggravated robbery as both offenses
stem from the common scheme of the home-invasion robbery.
C. Robbery
{¶ 25} R.C. 2911.02 (A)(1) to (3), Ohio's robbery statute, provides "[n]o person, in
attempting or committing a theft offense or in fleeing immediately after" shall "[h]ave a
deadly weapon on or about the offender's person," "[i]nflict, attempt to inflict, or threaten
No. 14AP-18 9
to inflict physical harm on another," or "[u]se or threaten the immediate use of force
against another." The culpable mental state for robbery is "recklessly." State v. Easley,
10th Dist. No. 08AP-755, 2009-Ohio-2984, ¶ 27.
{¶ 26} In demonstrating appellant purposely aided and abetted the commission of
the aggravated burglary and knowingly aided and abetted the aggravated robbery, the
state necessarily met its burden of demonstrating appellant recklessly aided and abetted
the commission of the two robbery counts as all of these charges stemmed from the
home-invasion robbery of the Gravelys' residence. State v. Blackburn, 10th Dist. No.
12AP-217, 2012-Ohio-6229, ¶ 13, citing R.C. 2901.22(E).
{¶ 27} Accordingly, because there was sufficient evidence to sustain appellant's
convictions for aggravated burglary, aggravated robbery, and the two robbery counts, we
overrule appellant's first assignment of error.
IV. Second Assignment of Error – Crim.R. 29 Motion
{¶ 28} In his second assignment of error, appellant asserts the trial court erred in
overruling his Crim.R. 29 motion for acquittal. Similar to his first assignment of error,
this assignment of error relates only to the aggravated burglary, aggravated robbery, and
two robbery convictions and does not address the failure to comply with an order or signal
of a police officer.
{¶ 29} Crim.R. 29(A) provides that the court, "on motion of a defendant or on its
own motion, after the evidence on either side is closed, shall order the entry of a judgment
of acquittal of one or more offenses * * * if the evidence is insufficient to sustain a
conviction of such offense or offenses." Review of the denial of a Crim.R. 29 motion and
of the sufficiency of the evidence apply the same standard. State v. Fugate, 10th Dist. No.
12AP-194, 2013-Ohio-79, ¶ 5, citing State v. Turner, 10th Dist. No. 04AP-364, 2004-
Ohio-6609, ¶ 8, citing State v. Ready, 143 Ohio App.3d 748 (11th Dist.2001).
{¶ 30} As we stated above in our resolution of appellant's first assignment of error,
there was sufficient evidence to support appellant's convictions for aggravated burglary,
aggravated robbery, and the two counts of robbery. Thus, because appellant's Crim.R. 29
motion depends on the same standard as his sufficiency of the evidence argument, we
similarly overrule appellant's second assignment of error.
No. 14AP-18 10
V. Third Assignment of Error – Manifest Weight of the Evidence
{¶ 31} In his third assignment of error, appellant argues that, even if there was
sufficient evidence to support his convictions, his convictions were nonetheless against
the manifest weight of the evidence. Unlike his first two assignments of error, this
assignment of error applies to all five of appellant's convictions. As to the aggravated
burglary, aggravated robbery, and two robbery convictions, appellant raises the same
arguments as he advanced in his first and second assignments of error. As to the failure
to comply with an order or signal of a police officer, appellant argues the jury clearly lost
its way when it did not find that appellant was acting under duress.
{¶ 32} When presented with a manifest weight argument, an appellate court
engages in a limited weighing of the evidence to determine whether sufficient competent,
credible evidence supports the jury's verdict. State v. Salinas, 10th Dist. No. 09AP-1201,
2010-Ohio-4738, ¶ 32, citing Thompkins at 387. "When a court of appeals reverses a
judgment of a trial court on the basis that the verdict is against the weight of the evidence,
the appellate court sits as a ' "thirteenth juror" ' and disagrees with the factfinder's
resolution of the conflicting testimony." Thompkins at 387, quoting Tibbs v. Florida, 457
U.S. 31, 42 (1982). Determinations of credibility and weight of the testimony are
primarily for the trier of fact. State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one
of the syllabus. Thus, the jury may take note of the inconsistencies and resolve them
accordingly, "believ[ing] all, part, or none of a witness's testimony." State v. Raver, 10th
Dist. No. 02AP-604, 2003-Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67 (1964).
{¶ 33} An appellate court considering a manifest weight challenge "may not merely
substitute its view for that of the trier of fact, but must review 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 trier of fact 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. Harris, 10th Dist. No. 13AP-770, 2014-Ohio-
2501, ¶ 22, citing Thompkins at 387. Appellate courts should reverse a conviction as
being against the manifest weight of the evidence in only the most " 'exceptional case in
which the evidence weighs heavily against the conviction.' " Thompkins at 387, quoting
State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
No. 14AP-18 11
A. Aggravated Burglary, Aggravated Robbery, and Two Robbery Convictions
{¶ 34} For the aggravated burglary, aggravated robbery, and both robbery
convictions, appellant argues the jury clearly lost its way in determining that appellant
was complicit in these offenses because there was little or no evidence suggesting
appellant had a connection to, or a relationship with, Smith prior to the commission of the
offenses. To be criminally liable under a complicity theory, however, the state need not
prove such a relationship prior to the commission of the offenses. Instead, it is enough
that the state show a common purpose to commit the offenses, which, as we have already
explained, can be inferred from the defendant's conduct before, during, and after the
commission of the offenses. Kendricks at ¶ 16.
{¶ 35} In light of the evidence discussed above, as well as the record in its entirety,
we do not find the jury clearly lost its way in concluding appellant acted to aid and abet
Smith in the commission of these offenses when he acted as the getaway driver. Appellant
was waiting in an idling car near the victim's house and subsequently led police on a high-
speed chase to elude capture. The only evidence to the contrary was appellant's self-
serving testimony, and we agree with the jury's decision to discount that testimony in
favor of the other evidence at trial. Thus, we do not find appellant's convictions for
aggravated burglary, aggravated robbery, and two counts of robbery are against the
manifest weight of the evidence.
B. Failure to Comply with an Order or Signal of a Police Officer
{¶ 36} Finally, appellant argues the jury clearly lost its way when it did not find
appellant was acting under duress when he led police on a high-speed chase and
disobeyed their signals to pull over.
{¶ 37} Pursuant to R.C. 2921.331(B), "[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." Appellant does not dispute
that he drove the vehicle at high rates of speed and ignored visible and audible signals
from police to pull over. Instead, he argues that he only operated the vehicle in that
manner because he was under duress from Smith pointing a gun at him and commanding
him to drive away.
No. 14AP-18 12
{¶ 38} Duress is an affirmative defense. State v. Thompson, 10th Dist. No. 08AP-
956, 2009-Ohio-3552, ¶ 26, citing State v. Sappienza, 84 Ohio St. 63, 73 (1911), and State
v. Getsy, 84 Ohio St.3d 180, 198 (1998). Affirmative defenses " 'must be proved by a
preponderance of the evidence.' " State v. Mallory, 10th Dist. No. 08AP-942, 2009-Ohio-
2401, ¶ 26, quoting State v. Poole, 33 Ohio St.2d 18, 19 (1973). " 'Duress consists of any
conduct which overpowers a person's will and coerces or constrains his performance of an
act which he otherwise would not have performed. Consequently, one who, under the
pressure of a threat from another person, commits what would otherwise be a crime may,
under certain circumstances, be justified in committing the act and not be guilty of the
crime.' " Thompson at ¶ 28, quoting State v. Grinnell, 112 Ohio App.3d 124, 144-45 (10th
Dist.1996). The defense of duress requires the defendant to prove a sense of immediate,
imminent death or serious bodily injury if he does not commit the act as instructed. Id.,citing State v. Cross, 58 Ohio St.2d 482 (1979). The force used to compel the defendant's
conduct must remain constant, controlling the will of the otherwise unwilling actor during
the entire time he commits the act, and it must be of such a nature that the defendant
cannot safely withdraw. Id., citing State v. Good, 110 Ohio App. 415, 419 (10th Dist.1960).
{¶ 39} Here, appellant argues he proved by a preponderance of the evidence that
he drove the getaway vehicle under duress and that the jury clearly lost its way in
concluding otherwise. The only evidence in support of appellant's affirmative defense of
duress was his own testimony, in which he stated Smith pointed a gun at him and told
him to flee. However, the jury was free to believe "all, part, or none of a witness's
testimony." Raver at ¶ 21, citing Antill at 67. Moreover, other evidence weighed heavily
against appellant's testimony, including the fact that the gun was never recovered even
though police apprehended Smith directly from the vehicle. Additionally, appellant
testified he and Moore were rolling marijuana cigarettes in the car before Smith
unexpectedly jumped in and forced him to drive, but police never found any marijuana in
the vehicle. Also, appellant eventually jumped out of the vehicle and continued to elude
police on foot even though Smith remained in the vehicle. Appellant could not explain
why he continued to run from police once the vehicle was stopped if he were truly acting
under duress.
No. 14AP-18 13
{¶ 40} Accordingly, we do not find the jury clearly lost its way when it did not
conclude appellant acted under duress. Thus, appellant's conviction for failure to comply
with an order or signal of a police officer is not against the manifest weight of the
evidence. We overrule appellant's third assignment of error.
VI. Disposition
{¶ 41} Based on the foregoing reasons, the sufficiency of the evidence and the
manifest weight of the evidence support appellant's convictions, and the trial court did not
err in overruling appellant's Crim.R. 29 motion for acquittal. Having overruled
appellant's three assignments of error, we affirm the judgment of the Franklin County
Court of Common Pleas.
Judgment affirmed.
SADLER, P.J., and KLATT, J., concur.