State v. Howell

[Cite as State v. Howell, 2020-Ohio-5503.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. W. Scott Gwin, J.
Hon. John W. Wise, J.
-vs-
Case No. 2019CA00165
JOSHUA W. HOWELL
Defendant-Appellant O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Massillon Municipal
Court, Case No. 2019TRD03680
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 30, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KASSEM AHMED GEORGE URBAN
Massillon City Prosecutor 116 Cleveland Avenue, North, Suite #808
2 James Duncan Plaza Canton, Ohio 44702
Massillon, Ohio 44646
Stark County, Case No. 2019CA00165 2
Hoffman, P.J.
{¶1} Defendant-appellant Joshua W. Howell appeals the judgment entered by
the Massillon Municipal Court convicting him of failure to yield the right of way (R.C.
4511.44(A)) and leaving the scene of an accident (R.C. 4549.02) and sentencing him to
180 days in jail. Appellee is the state of Ohio.1
STATEMENT OF THE FACTS AND CASE
{¶2} At around 11:30 a.m. on May 16, 2019, Walter Boney and his wife, Berdella
Boney, were traveling on Higbee Avenue, near the intersection of Holiday Street, in
Jackson Township. Walter was driving the couple’s Lexus automobile on their way to an
appointment when a box truck entered the roadway from a private drive, striking the
driver’s front side of the Lexus. The driver of the box truck backed up, then left the scene
of the accident. The Lexus was totaled as a result of the damage incurred in the accident,
and Mrs. Boney was injured.
{¶3} A license plate was found at the scene of the accident. Jackson Police
Officer Moderwell traced the license plate to a vehicle owned by American Food and
Vending Corporation. Matthew Crago, the operations manager of American Food and
Vending, traced the plate to a box truck assigned to Appellant. Crago further confirmed
Appellant was the only driver in the area at the time of the accident.
{¶4} Crago attempted to reach Appellant by telephone. When Appellant returned
Crago’s call, Crago told him to return to the scene of the accident. Appellant maintained
he did not know what Crago was talking about, and did not return to the scene. Instead,
he returned the truck to the warehouse and relinquished the keys to the warehouse
1 The State has not filed a brief in the instant appeal.
Stark County, Case No. 2019CA00165 3
manager. Officer Moderwell examined the box truck at the warehouse and determined
the damage to the truck was consistent with the accident. The officer further learned from
LEADS that on the day of the accident, Appellant’s driver’s license was suspended.
{¶5} The day after the accident, Appellant called Crago to inquire about his final
paycheck. Crago told Appellant to return all property belonging to American Food and
Vending in order to receive his check. Appellant returned his uniforms, key cards, and
other property belonging to the company, picked up his final paycheck, said, “I’m sorry,”
and left.
{¶6} Appellant was charged with failure to yield the right of way from private
property and leaving the scene of an accident. The case proceeded to jury trial in the
Massillon Municipal Court.
{¶7} At trial, Appellant testified his route for American Food and Vending did go
through the area of Higbee and Holiday, but he did not hit a vehicle on the day of the
accident. He admitted his license was suspended at the time, but claimed he was
unaware of the suspension and only learned of it at a later date. He testified the truck
was damaged at the time he began driving for American Food and Vending.
{¶8} The jury found Appellant guilty of leaving the scene of an accident. The
court found Appellant guilty of failure to yield the right of way, a minor misdemeanor. The
court sentenced Appellant to 180 days in jail for leaving the scene and fined him $500,
with $250 of the fine suspended. The court fined Appellant $25 for failure to yield the
right of way and ordered him to pay court costs.
{¶9} It is from the October 24, 2019, judgment of the Massillon Municipal Court
Appellant prosecutes this appeal, assigning as error:
Stark County, Case No. 2019CA00165 4
I. APPELLANT’S CONVICTIONS WERE AGAINST THE MANIFEST
WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
II. THE TRIAL COURT ERRED BY PERMITTING THE STATE TO
INTRODUCE EVIDENCE REGARDING APPELLANT’S LICENSE
SUSPENSION.
III. APPELLANT WAS DENIED HIS RIGHT TO THE EFFECTIVE
ASSISTANCE OF COUNSEL.
I.
{¶10} In his first assignment of error, Appellant argues his convictions are against
the manifest weight and sufficiency of the evidence.
{¶11} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,
weighs the evidence and all reasonable inferences, considers the credibility of witnesses,
and determines whether in resolving conflicts in 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, 78 Ohio St. 3d 380, 387, 1997-Ohio-52, 678
N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1983).
{¶12} An appellate court's function when reviewing the sufficiency of the evidence
is to determine 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. State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492,
paragraph two of the syllabus (1991).
Stark County, Case No. 2019CA00165 5
{¶13} Appellant was convicted of leaving the scene of an accident in violation of
R.C. 4549.02, which provides:
(A)(1) In the case of a motor vehicle accident or collision with persons
or property on a public road or highway, the operator of the motor vehicle,
having knowledge of the accident or collision, immediately shall stop the
operator's motor vehicle at the scene of the accident or collision. The
operator shall remain at the scene of the accident or collision until the
operator has given the operator's name and address and, if the operator is
not the owner, the name and address of the owner of that motor vehicle,
together with the registered number of that motor vehicle, to all of the
following:
(a) Any person injured in the accident or collision;
(b) The operator, occupant, owner, or attendant of any motor vehicle
damaged in the accident or collision;
(c) The police officer at the scene of the accident or collision.
{¶14} Appellant was also convicted of failing to yield the right of way in violation
of R.C. 4511.44, which provides:
(A) The operator of a vehicle, streetcar, or trackless trolley about to
enter or cross a highway from any place other than another roadway shall
Stark County, Case No. 2019CA00165 6
yield the right of way to all traffic approaching on the roadway to be entered
or crossed.
{¶15} Appellant argues the State presented insufficient evidence to identify him
as the driver of the box truck which entered Higbee Avenue from a private driveway,
striking the Boneys’ Lexus. Both of the Boneys described the vehicle which hit them as
a box truck. A license plate was found at the scene, registered to a box truck belonging
to American Food and Vending. Matthew Crago testified the plate was registered to a
truck assigned to Appellant. Crago further testified he confirmed Appellant was in the
area on the date and time in question, and testified no other driver would have been in
the area. Appellant admitted in his testimony his route took him through the area near
Higbee and Holiday. Police examined the truck Appellant had returned to the warehouse,
and found damage consistent with the accident. From this evidence, a rational trier of
fact could find the State proved Appellant was the driver of the truck which caused the
accident.
{¶16} Appellant further argues the State presented insufficient evidence he was
aware an accident occurred, giving rise to a duty to remain at the scene. He argues Mr.
Boney’s testimony demonstrates the accident was not severe, and in fact some of the
damage done to the Lexus was caused by the tow truck.
{¶17} Mr. Boney testified at the scene of the accident he had to work to open the
driver’s side door of the vehicle, but when he went to remove his personal effects from
the vehicle after the insurance company declared the vehicle totaled, the door worked
Stark County, Case No. 2019CA00165 7
freely. His testimony therefore suggests the tow truck operator might have repaired the
door, rather than doing further damage to the vehicle.
{¶18} The State presented evidence the Lexus was declared totaled by the
insurance company, and Mrs. Boney was treated for injuries from the accident. The
collision was of sufficient strength to cause the license plate on the box truck driven by
Appellant to detach from the vehicle. Further, both of the Boneys testified the driver of
the box truck backed up before leaving the scene. From all of this evidence, a rational
trier of fact could have found Appellant was aware of the accident.
{¶19} We find the judgment is supported by sufficient evidence.
{¶20} As to his manifest weight claim, Appellant argues the testimony of the
Boneys is inconsistent as to how the accident occurred, as Walter Boney testified the
truck struck the driver’s side front of the vehicle, while Berdella Boney testified the truck
hit the front of the vehicle, implying the collision was head-on. Berdella Boney testified
as follows:
Q: Do you remember what part of your vehicle, when I say your
vehicle, your and your husband’s vehicle, do you remember which part of it
was struck.
A: Yeah, it’d be the front part of the car.
Q: On you [sic] side or the driver’s side.
A: No, on the driver’s side.
{¶21} Tr. 58.
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{¶22} We find no material inconsistencies in the testimony of Walter and Berdella
Boney about how the accident occurred, and the judgment is not against the manifest
weight of the evidence.
{¶23} The first assignment of error is overruled.
II.
{¶24} In his second assignment of error, Appellant argues the court erred in
allowing Officer Moderwell to testify about information he obtained through LEADS that
Appellant’s driver’s license was under suspension on the date of the accident for refusing
to submit to OVI testing.
{¶25} Appellant made an oral motion in limine to exclude evidence of the status
of Appellant’s license prior to trial. Tr. 35. The trial court ruled the evidence was relevant
evidence of motive, and denied the motion.
{¶26} Appellant did not object at the time the officer testified about the status of
his driver’s license. A motion in limine is insufficient to preserve the error for appellate
review; the complaining party must object to the testimony at the time it is presented at
trial in order to preserve the error. E.g., State v. Maurer, 15 Ohio St.3d 239, 259-260,
473 N.E.2d 768, 787-788 (1984). We therefore must find plain error in order to reverse.
The Ohio Supreme Court has set forth the following standard for plain error:
Crim.R. 52(B) affords appellate courts discretion to correct “[p]lain
errors or defects affecting substantial rights” notwithstanding an accused's
failure to meet his obligation to bring those errors to the attention of the trial
court. However, the accused bears the burden to demonstrate plain error
Stark County, Case No. 2019CA00165 9
on the record, State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034,
19 N.E.3d 900, ¶ 16, and must show “an error, i.e., a deviation from a legal
rule” that constitutes “an ‘obvious' defect in the trial proceedings,” State v.
Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).
Even if the error is obvious, it must have affected substantial rights,
and “[w]e have interpreted this aspect of the rule to mean that the trial
court's error must have affected the outcome of the trial.” Id. We recently
clarified in State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d
860, that the accused is “required to demonstrate a reasonable probability
that the error resulted in prejudice—the same deferential standard for
reviewing ineffective assistance of counsel claims.” (Emphasis sic.) Id. at ¶
22, citing United States v. Dominguez Benitez, 542 U.S. 74, 81–83, 124
S.Ct. 2333, 159 L.Ed.2d 157 (2004).
If the accused shows that the trial court committed plain error
affecting the outcome of the proceeding, an appellate court is not required
to correct it; we have “admonish[ed] courts to notice plain error ‘with the
utmost caution, under exceptional circumstances and only to prevent a
manifest miscarriage of justice.’ ” (Emphasis added.) Barnes at 27, 759
N.E.2d 1240, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804(1978), paragraph three of the syllabus.
{¶27} State v. Thomas, 2017-Ohio-8011, ¶¶ 32-34.
{¶28} Evid. R. 404(B) governs the admission or evidence of other bad acts:
Stark County, Case No. 2019CA00165 10
(B) Other Crimes, Wrongs or Acts. 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.
{¶29} We agree with the trial court’s ruling on the motion in limine concerning the
fact Appellant’s license was suspended on the date of the accident. Evidence Appellant’s
license was under suspension was admissible pursuant to Evid. R. 404(B) to demonstrate
a motive for leaving the scene. While the reason for the suspension was not relevant to
demonstrate motive, we find its admission was not plain error. Abundant circumstantial
evidence was presented to demonstrate Appellant was the driver of the box truck involved
in the accident. We find the result of the proceeding would not have been different absent
evidence the reason for the license suspension was Appellant’s refusal to submit to OVI
testing.
{¶30} Appellant also argues the State failed to present documentary evidence to
support its claim Appellant’s license was suspended on May 16, 2019, and failed to prove
Appellant was aware of the suspension. Appellant’s claims go to the weight to be given
the evidence, and not to its admissibility. Appellant was not charged with driving under
Stark County, Case No. 2019CA00165 11
suspension. The officer testified he had checked the status of Appellant’s operator’s
license through LEADS, and it was suspended on May 16, 2019. Appellant testified he
was unaware of the suspension on the date of the accident, and only learned of it later.
Further, we find Appellant has not demonstrated a reasonable probability of a change in
the outcome of the trial had evidence of his license suspension been excluded.
{¶31} The second assignment of error is overruled.
III.
{¶32} In his third assignment of error, Appellant argues counsel was ineffective
for failing to object to evidence of his license suspension, failing to object to the evidentiary
value and authenticity of the evidence, and failing to ask for a limiting instruction regarding
such evidence.
{¶33} A properly licensed attorney is presumed competent. State v. Hamblin, 37
Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of
ineffective assistance of counsel, Appellant must show counsel's performance fell below
an objective standard of reasonable representation and but for counsel’s error, the result
of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d
373 (1989). In other words, Appellant must show counsel’s conduct so undermined the
proper functioning of the adversarial process that the trial cannot be relied upon as having
produced a just result. Id.{¶34} As discussed in Appellant’s second assignment of error, he has not
demonstrated a reasonable probability the outcome of the proceeding would have been
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different in the absence of the officer’s brief testimony concerning the status of Appellant’s
operator’s license on the date in question. We find counsel was not ineffective.
{¶35} The third assignment of error is overruled.
{¶36} The judgment of the Massillon Municipal Court is affirmed.
By: Hoffman, P.J.
Gwin, J. and
Wise, John, J. concur