STATE OF OHIO, Appellee v. JAMIE L. BOGGS, Appellant
19CA011453
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
February 24, 2020
2020-Ohio-616
CALLAHAN, Presiding Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 18CR097844
DECISION AND JOURNAL ENTRY
Dated: February 24, 2020
CALLAHAN, Presiding Judge.
{¶1} Defendant-Appellant, Jamie Boggs, appeals from his convictions in the Lorain County Court of Common Pleas. This Court affirms.
I.
{¶2} Late one evening in January, the police received two calls, approximately one hour apart, about gunshots having been fired in a residential area. Several officers reported to the area to investigate, but were unable to locate the source of the gunshots. One of those officers, Officer James Wise, was patrolling the same area about two hours later when he glanced down a side street and saw a pick-up truck heading toward him. The truck caught his attention because the driver was operating it without headlights despite the pitch-black conditions. Officer Wise decided to turn around and wait for the truck. As soon as the truck reached the intersection, however, it turned away from his cruiser and quickly accelerated in the opposite direction. Officer Wise then activated his lights and attempted to stop the truck.
{¶3} The driver of the truck led Officer Wise on a brief chase through the neighborhood and struck a car and sign along the way. The chase ended when the truck crashed into a fire hydrant, and Officer Wise arrested the driver and his passenger, Mr. Boggs. While searching the truck at the scene, the police discovered a gun case from which the firearm appeared to be missing. Officer Wise then questioned Mr. Boggs about the gun, and he admitted that he had thrown it from the truck‘s window during the chase. The police recovered the gun after Mr. Boggs led them back to the area where he had thrown it.
{¶4} Mr. Boggs was indicted on each of the following counts: (1) tampering with evidence and an attendant firearm specification; (2) receiving stolen property and an attendant firearm specification; and (3) improperly handling a firearm in a motor vehicle. The State later dismissed the count for receiving stolen property, and Mr. Boggs went to trial on his remaining counts. At the conclusion of his trial, a jury found him guilty, and the court sentenced him to a total of one year and nine months in prison.
{¶5} Mr. Boggs now appeals from his convictions and raises three assignments of error for review. Because his first and second assignments of error concern much of the same testimony and evidence, this Court consolidates those assignments of error for ease of review.
II.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE BY FINDING JAMIE L. BOGGS GUILTY OF TAMPERING WITH EVIDENCE WITH A GUN SPECIFICATION[.]
ASSIGNMENT OF ERROR NO. 2
THE JURY IN THE TRIAL COURT ERRED AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE WHEN IT FOUND THE DEFENDANT-APPELLANT, JAMIE L. BOGGS, GUILTY OF TAMPERING
WITH EVIDENCE AND IMPROPER HANDLING OF A FIREARM IN A MOTOR VEHICLE AND WITH A GUN SPECIFICATION.
{¶6} In his first and second assignments of error, Mr. Boggs argues that his convictions for tampering with evidence and improperly handling a firearm in a motor vehicle are based on insufficient evidence and are against the manifest weight of the evidence. For the following reasons, this Court rejects his arguments.
{¶7} Initially, this Court notes that Mr. Boggs has addressed both the adequacy of the State‘s evidence and the persuasiveness of its evidence in a single analysis without attempting to distinguish between the two concepts. Yet, “sufficiency and manifest weight are two separate, legally distinct arguments.” State v. Vicente-Colon, 9th Dist. Lorain No. 09CA009705, 2010-Ohio-6242, ¶ 20. The two concepts should be analyzed separately, lest this Court misinterpret an argument or be forced to disregard it entirely for lack of analysis. See, e.g., State v. Messer, 9th Dist. Summit No. 28750, 2018-Ohio-5117, ¶ 19. With that in mind, “this Court has attempted to untangle [Mr. Boggs‘] arguments in order to [separately] address them.” State v. Taylor, 9th Dist. Summit No. 28746, 2018-Ohio-2921, ¶ 26.
Sufficiency of the Evidence
{¶8} “Whether a conviction is supported by sufficient evidence is a question of law that this Court reviews de novo.” State v. Williams, 9th Dist. Summit No. 24731, 2009-Ohio-6955, ¶ 18, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). The relevant inquiry is whether the prosecution has met its burden of production by presenting sufficient evidence to sustain a conviction. Thompkins at 390 (Cook, J., concurring). For purposes of a sufficiency analysis, this Court must view the evidence in the light most favorable to the State. Jackson v. Virginia, 443 U.S. 307, 319 (1979). We do not evaluate credibility, and we make all reasonable inferences in favor of the State. State v. Jenks, 61 Ohio St.3d 259, 273 (1991). The evidence is
{¶9} Tampering with evidence occurs when a person, “knowing that an official proceeding or investigation is in progress, or is about to be or likely to be instituted, * * * [a]lter[s], destroy[s], conceal[s], or remove[s] any * * * thing, with purpose to impair its value or availability as evidence in such proceeding or investigation * * * .”
{¶10} A person commits the offense of improperly handling a firearm in a motor vehicle if he “knowingly transport[s] or [has] a loaded firearm in a motor vehicle in such a manner that the firearm is accessible to the operator or any passenger without leaving the vehicle.”
{¶11} Officer Wise testified that his station received calls around 9:30 and 10:30 p.m. in reference to gunshots having been fired in a residential area. He and other officers patrolled the area following the 10:30 p.m. call, but did not observe any suspicious activity. Officer Wise then returned to the area around 1:50 a.m. while on patrol. At that time, he spotted the pick-up truck in which Mr. Boggs was a passenger. He passed the truck on its approach to a t-intersection and testified that it caught his attention because its headlights were off. Once he passed by the intersection, Officer Wise decided to turn around and wait for the truck to pull out. As soon as the truck arrived at the intersection, however, it turned away from his cruiser and “took off.” He then activated his overhead lights and gave chase.
{¶12} Officer Wise testified that the driver of the truck ignored his attempts to initiate a traffic stop. The truck continued to accelerate until it reached the next intersection, at which point it slowed, turned northbound, and quickly accelerated again. The street on which the truck had turned resembled a horseshoe and, as the truck approached a wooded area at the top of the horseshoe, it temporarily drove off the right side of the road. The driver then navigated the truck back onto the road, completed the bend in the horseshoe, and headed southbound “pedal to the metal.” The chase ended when the truck turned at the next intersection, struck a parked car, hit a sign, and collided head on with a fire hydrant. Officer Wise estimated that the entire chase lasted about 30 seconds and spanned the length of around five city blocks. At its conclusion, Officer Wise arrested both the driver and Mr. Boggs.
{¶13} Once backup officers arrived, Officer Wise placed Mr. Boggs in another officer‘s cruiser, Mirandized him, and asked him several questions. He testified that, the first time he questioned Mr. Boggs, he asked him what he and the driver had been doing and whether there was anything illegal in the truck. Mr. Boggs replied that they had just been “joyriding, hanging
{¶14} Officer Wise stated that, at first, Mr. Boggs claimed not to know anything about the gun. Officer Wise then decided to tell him that the driver had attributed the gun to him. According to Officer Wise, Mr. Boggs remained silent for about 20 seconds before admitting that he had thrown the gun from the truck‘s window. Mr. Boggs then agreed to show the officers where he had thrown the gun. Officer Wise testified that Mr. Boggs led them to a wooded area at the top of the horseshoe street where the truck had temporarily driven off the road. After searching for the gun without success, officers called in a K-9 unit and were able to locate it. There was testimony that the gun was a six-shot revolver and was fully loaded upon recovery. There also was testimony that both the driver and Mr. Boggs tested positive for gunshot residue.
{¶15} Mr. Boggs argues that his tampering conviction is based on insufficient evidence because the State failed to prove that he threw the gun from the truck either (1) because he knew an investigation related to the gun was forthcoming, or (2) because he purposely intended to impair its value or availability as evidence. See
{¶16} Viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could have concluded that the State proved each of the elements of Mr. Boggs’ tampering conviction beyond a reasonable doubt. See Jenks, 61 Ohio St.3d at 273. The State set forth evidence that Mr. Boggs threw a loaded revolver from the window of the truck while Officer Wise was in pursuit and attempting to execute a traffic stop. Compare Barry, 145 Ohio St.3d 354, 2015-Ohio-5449, ¶¶ 26-27 (tampering not proven where defendant concealed drugs several hours before officers stopped her vehicle and there was no evidence regarding the likelihood of a future investigation). Shots had been fired in that same area a few hours earlier, and the only explanation Mr. Boggs offered for riding around in the dark at almost 2:00 a.m. in a truck with no headlights was that he and the driver were “joyriding.” Moreover, the evidence showed that he disposed of the gun when the driver temporarily drove off the road next to a wooded area. Based on the foregoing, the jury reasonably could have inferred that (1) Mr. Boggs knew an investigation regarding the gun was likely to be instituted, and (2) he and the driver made a calculated decision to drive off the road and dispose of the gun in an area it was less likely to be found rather than simply throwing it from a moving vehicle. See
{¶17} As noted, “the intent required by
{¶18} Mr. Boggs also argues that his conviction for improperly handling a firearm in a motor vehicle is based on insufficient evidence. According to Mr. Boggs, there was no evidence that he knowingly transported the gun because both the truck and the gun belonged to the driver. Yet, a person violates
Manifest Weight of the Evidence
{¶19} When considering whether a conviction is against the manifest weight of the evidence, this Court 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). A reversal on this basis is reserved for the exceptional case in which the evidence weighs heavily against the conviction. Id., citing State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
{¶20} Mr. Boggs testified in his own defense. He testified that the driver of the truck lived in his neighborhood, but was more of an acquaintance than a friend and had a bad reputation. Earlier that day, the driver had greeted Mr. Boggs outside, and the two had ended up playing video games at Mr. Boggs’ house for about an hour. According to Mr. Boggs, the driver returned to his house sometime after midnight, when he was already asleep, and offered to take him to the store for cigarettes. The two then drove to a gas station about two miles away and purchased several items before heading back to their neighborhood.
{¶21} Mr. Boggs testified that he was sleeping with his head against the passenger window of the driver‘s pick-up truck when he heard a gunshot. The sound startled him awake and, when he looked over, he saw the driver had his arm out the window and was pulling it back inside. A gun was in the driver‘s hand, and he began reloading it as he continued to drive. Mr.
{¶22} Mr. Boggs testified that the driver began speeding away from Officer Wise and set the gun down. As the truck turned, the gun slid over the seat and hit Mr. Boggs in the leg. Mr. Boggs claimed that he became afraid for his life because he was worried the gun might go off or the driver, who had a reputation for playing with guns, might pick it up and use it to shoot him or the officer. Accordingly, “before even thinking about it * * *, [he] grabbed [the gun] and threw it out the window * * *.” Mr. Boggs denied that he was afraid of the police finding the gun or getting into trouble for having fired it earlier that evening. He stated that he was just “terrified” that “[his] life was at risk.” According to Mr. Boggs, as soon as he learned that the driver had accused him of throwing the gun from the truck‘s window, he agreed to lead the police to the gun. He claimed that he otherwise never had an opportunity to explain what happened that evening because he was never asked for an explanation.
{¶23} As noted, Officer Wise testified that Mr. Boggs failed to mention anything about a gun when they first spoke. Mr. Boggs claimed that he and the driver had just been “joyriding, hanging out, something along those lines,” and he was not aware of anything illegal in the truck. At no point did he inform Officer Wise that he was afraid of the driver, that he had told the driver to stop, that the driver had fired a gun, or that he felt he had no choice but to get rid of the gun. Indeed, Mr. Boggs initially claimed not to know anything about a gun when Officer Wise first asked him about it. Not until Officer Wise claimed that the driver had attributed the gun to Mr. Boggs did Mr. Boggs reluctantly reveal that he had thrown the gun from the truck. Further,
{¶24} Mr. Boggs argues that the jury lost its way by convicting him. He argues that the evidence presented herein did not support the conclusion that the gun belonged to him, that he knew about it before the driver fired it, or that he acted with the requisite mens rea. Rather, he asserts, the evidence tended to show that the gun belonged to the driver and he (Mr. Boggs) only threw it from the truck out of fear or a desire to save lives. Mr. Boggs notes that he cooperated with the police and readily led them to the location where he threw the gun. Accordingly, he argues that the evidence weighs heavily against the jury‘s conclusion that he acted with the requisite mens rea to commit either of the offenses with which he was convicted.
{¶25} Having reviewed the record, we cannot conclude that the jury lost its way when it found Mr. Boggs guilty of tampering with evidence and improperly handling a firearm in a motor vehicle. Though Mr. Boggs claims he made a split-second decision motivated strictly by fear and surprise, the jury heard testimony that he was less than forthcoming with Officer Wise when initially questioned. It also heard testimony that he failed to mention any of the details he provided in his testimony to the police at the time of his arrest or while being held in custody. This Court has repeatedly recognized that “[a] verdict is not against the manifest weight of the evidence because the finder of fact chose to believe the State‘s witnesses rather than the defendant‘s version of the events.” State v. Martinez, 9th Dist. Wayne No. 12CA0054, 2013-Ohio-3189, ¶ 16. As the trier of fact, the jury was in the best position to evaluate the credibility of the witnesses and was “free to believe all, part, or none of the testimony of each witness.” State v. Clark, 9th Dist. Wayne No. 14AP0002, 2015-Ohio-2978, ¶ 24, quoting Prince v. Jordan, 9th Dist. Lorain No. 04CA008423, 2004-Ohio-7184, ¶ 35. Mr. Boggs has not shown that this is
ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT ERRED BY REFUSING TO PROVIDE THE JURY WITH INSTRUCTIONS REGARDING THE DEFENSE OF DURESS.
{¶26} In his third assignment of error, Mr. Boggs argues that the trial court erred when it refused to instruct the jury on duress. This Court disagrees.
{¶27} “[A] trial court must fully and completely give the jury all instructions which are relevant and necessary for the jury to weigh the evidence and discharge its duty as the fact finder.” State v. Comen, 50 Ohio St.3d 206 (1990), paragraph two of the syllabus;
{¶28} Duress is an affirmative defense in Ohio. State v. Poole, 33 Ohio St.2d 18, 19 (1973). To prove duress,
State v. Flinders, 9th Dist. Summit No. 26024, 2012-Ohio-2882, ¶ 30. “All the conditions must be met, and the court must find as a matter of law that the evidence is sufficient to warrant an instruction on the affirmative defense of necessity or duress.” State v. Cross, 58 Ohio St.2d 482, 488 (1979). ““If the evidence generates only a mere speculation or possible doubt, such evidence is insufficient to raise the affirmative defense, and submission of the issue to the jury will be unwarranted.”” Flinders at ¶ 29, quoting State v. Getsy, 84 Ohio St.3d 180, 198-199 (1998). The defense “is strictly and extremely limited in application and will probably be effective in very rare occasions.” Cross at 488.
{¶29} The trial court refused to instruct the jury on duress because it determined that Mr. Boggs set forth insufficient evidence in support of that defense. Mr. Boggs argues that the court erred in its conclusion because the record reflects that he only threw the gun from the truck out of fear. He notes that the driver ignored his protests to stop the truck and refused to let him out. Further, he notes that the driver subjected him to the possibility of either accidentally getting shot by the gun as it was sliding around the truck‘s cabin or purposely getting shot if he (the driver) decided to use it on him. Because the evidence reflects that he acted strictly out of fear for his own safety and the safety of others, Mr. Boggs argues that he was entitled to an instruction on duress.
{¶30} Having reviewed the record, this Court cannot conclude that the trial court abused its discretion when it refused to instruct the jury on duress. See Simin, 2012-Ohio-4389, at ¶ 40,
III.
{¶31} Mr. Boggs’ assignments of error are overruled. The judgment of the Lorain County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
Costs taxed to Appellant.
LYNNE S. CALLAHAN FOR THE COURT
SCHAFER, J.
TEODOSIO, J.
CONCUR.
APPEARANCES:
MARK S. ONDREJECH, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and BRIAN P. MURPHY, Assistant Prosecuting Attorney, for Appellee.