State v. EdwardsState v. Edwards
Dated: July 22, 2009
WHITMORE, Judge.
{¶1} Defendant-Appellant, Jason Edwards, appeals from his convictions in the Summit County Court of Common Pleas. This Court affirms.
I
{¶2} On August 24, 2008, Officer Scott Robertson observed Edwards traveling on his motorcycle in excess of the posted speed limit while heading north on Interstate 77. At a point where traffic slowed, Officer Robertson was able to approach Edwards’ motorcycle. He activated the lights and sirens on his cruiser in an attempt to stop Edwards. Edwards then changed lanes and accelerated well beyond the posted speed limit. Upon pursuing Edwards further and nearing his motorcycle for a second time, Edwards continued driving, accelerating even more. Edwards stopped approximately two miles later, near the cruiser of a back-up officer who had entered the highway to assist Officer Robertson.
{¶4} On the day of trial, Edwards pleaded guilty to misdemeanor possession of marijuana. At that same time, the State dismissed the criminal forfeiture specification without prejudice and the bench trial went forward on the remaining count. The trial court found Edwards guilty and sentenced him to one year incarceration, suspended on conditions, one of which was the mandatory loss of driving privileges for three years. Edwards now appeals from his convictions asserting three assignments of error for our review.
II
Assignment of Error Number One
“THE APPELLANT’S TRIAL COUNSEL FAILED TO PROVIDE EFFECTIVE ASSISTANCE OF COUNSEL ALL TO THE PREJUDICE OF APPELLANT.”
{¶5} In his first assignment of error, Edwards argues that his counsel was ineffective for failing to file a motion to suppress statements he made to police. Edwards further alleges that his counsel was ineffective based on: (1) his “fail[ure] to object at the introduction of wrongful expert testimony” from Officer Robertson; (2) his failure to challenge whether Officer Robertson’s lights and sirens were working properly; (3) his admission during opening statements that Edwards was “exceeding the speed limit“; and (4) his questions to Edwards on direct examination as to the speed he was traveling during Officer Robertson’s pursuit. We disagree.
“First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687.
The defendant has the burden of proof and must overcome the strong presumption that counsel’s performance was adequate or that counsel’s action might be sound trial strategy. State v. Smith (1985), 17 Ohio St.3d 98, 100. To that end, we have stated that “debatable trial tactics do not give rise to a claim for ineffective assistance of counsel.” State v. Hoehn, 9th Dist. No. 03CA0076-M, 2004-Ohio-1419, at ¶45, quoting In re Simon (June 13, 2001), 9th Dist. No. 00CA0072. In order to demonstrate prejudice, the defendant must prove that “there exists a reasonable probability that, were it not for counsel’s errors, the result of the trial would have been different.” State v. Bradley (1989), 42 Ohio St.3d 136, paragraph three of the syllabus. Further, an appellate court need not analyze both prongs of the Strickland test if it finds that Appellant failed to prove either. State v. Ray, 9th Dist. No. 22459, 2005-Ohio-4941, at ¶10.
{¶7} First, Edwards asserts, without any supporting explanation or analysis, that his counsel should have filed a motion to suppress. Edwards does not identify whether it was his alleged statements to police at the time of his arrest or the written statements he later gave at the police station which should have been suppressed. We note, however, that the “[f]ailure to file a suppression motion does not constitute per se ineffective assistance of counsel.” State v. Madrigal (2000), 87 Ohio St.3d 378, 389, quoting Kimmelman v. Morrison (1986), 477 U.S. 365, 384. “[I]n order to demonstrate deficient performance, [the defendant] must establish that a
{¶8} Next, we consider Edwards’ remaining arguments as to Officer Robertson’s testimony, the proper working order of the police cruiser’s lights and sirens, and his counsel’s statements during opening argument and direct examination. Though Edwards asserts that his counsel was ineffective in either permitting or not challenging the foregoing testimony, he does so by merely restating the testimony adduced by counsel at trial. He does not support his alleged error with any analysis of how the admission of such testimony constitutes deficient performance by counsel, nor does he direct us to any authority in support of his contentions of the same.
{¶9} Finally, it is clear from the transcript that, although Edwards conceded on direct examination that he was speeding at the time of his arrest; he likewise maintained throughout his testimony that he was not doing so in an attempt to flee from Officer Robertson. Instead, he testified that he was speeding because he had lost track of his friends, who were also driving motorcycles in the area on that same day, and that he pulled over as soon as he saw Officer Robertson’s lights and heard his sirens. Thus, its appears it was a calculated defense strategy to have Edwards admit that he was speeding, in anticipation that his perceived honesty would
Assignment of Error Number Two
“THE TRIAL COURT’S FINDING OF GUILTY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND AS (sic) NOT SUPPORTED BY SUFFICIENT EVIDENCE.”
{¶10} In his second assignment of error, Edwards argues that there was no evidence that his conduct constituted a “substantial risk of serious physical harm to persons or property.” He maintains that the journal entry also supports this conclusion because it states he is guilty of “failure to comply with order or signal of police” and omits any reference to his guilt in relation to the penalty enhancement of “substantial risk *** to persons or property” which makes his conviction a third-degree felony. Thus, Edwards argues that without such evidence at trial and statement in his sentencing entry, he should be convicted of only first degree misdemeanor for his failure to comply. We disagree.
{¶11} A review of the sufficiency of the evidence and a review of the manifest weight of the evidence are separate and legally distinct determinations. State v. Gulley (Mar. 15, 2000), 9th Dist. No. 19600, at *1. “While the test for sufficiency requires a determination of whether the state has met its burden of production at trial, a manifest weight challenge questions whether
“An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt. 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.” Id. at paragraph two of the syllabus; see, also, Thompkins, 78 Ohio St.3d at 386.
In State v. Roberts, this Court explained:
“[S]ufficiency is required to take a case to the jury[.] *** Thus, a determination that [a] conviction is supported by the weight of the evidence will also be dispositive of the issue of sufficiency.” (Emphasis omitted.) State v. Roberts (Sept. 17, 1997), 9th Dist. No. 96CA006462, at *2.
Accordingly, we address Edwards’ challenge to the weight of the evidence first, as it is dispositive of his claim of sufficiency.
{¶12} In determining whether a conviction is against the manifest weight of the evidence an appellate court:
“[M]ust 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 (1986), 33 Ohio App.3d 339, 340.
{¶13} A weight of the evidence challenge indicates that a greater amount of credible evidence supports one side of the issue than supports the other. Thompkins, 78 Ohio St.3d at 387. Further, when reversing a conviction on the basis that the conviction was against the manifest weight of the evidence, the appellate court sits as the “thirteenth juror” and disagrees with the factfinder’s resolution of the conflicting testimony. Id. Therefore, this Court’s “discretionary
{¶14} It is a violation of
“(a) Any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment;
“(b) Any physical harm that carries a substantial risk of death;
“(c) Any physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary, substantial incapacity;
“(d) Any physical harm that involves some permanent disfigurement or that involves some temporary, serious disfigurement;
“(e) Any physical harm that involves acute pain of such duration as to result in substantial suffering or that involves any degree of prolonged or intractable pain.”
R.C. 2901.01(A)(5) .
Under
{¶15} The State’s only witness at trial was Officer Robertson. He testified that at approximately 1:30 p.m. on Sunday, August 24, 2008, while he was monitoring traffic from a
{¶16} Officer Robertson testified that he was in the left-hand lane when traffic slowed and Edwards switched lanes into that same lane, positioning himself in front of the police cruiser. According to Officer Robertson, Edwards then “accelerated rapidly to well over 100 [miles per hour]. That’s when I activated my lights and siren in an attempt to stop [Edwards’] motorcycle and that’s when the pursuit began.” Edwards did not slow or stop in response to Officer Robertson’s lights and sirens. Officer Robertson radioed into his dispatcher that he had a motorcycle fleeing on the highway just south of the Route 18 exits. Though he was well behind Edwards again, Officer Robertson observed him switch lanes, slow to approximately 60 – 65 miles per hour, and “downshift the motorcycle in an attempt to either get off or travel down the [right-hand] lane again.” Edwards did not leave the highway at either of the exit ramps. Instead, when Officer Robertson switched lanes again and neared to within “probably two car lengths behind him[,]” Edwards “took off again” and “accelerated rapidly to over 100 [miles per hour] again” despite the cruiser’s lights and sirens behind him.
{¶18} Upon cross examination, Officer Robertson testified he had his lights and sirens activated for approximately 2.3 miles before successfully stopping Edwards under the bridge near the highway’s ramps. He admitted that Edwards did not run any traffic lights or stop signs, did not avert any police barrier, and was not cited for any other traffic violations other than the failure to comply which was the subject of the trial. He further testified that, at the time of the stop, Edwards admitted that he was speeding but informed the officers at the scene that he would never flee from police. Officer Robertson stated that he has been a police officer for approximately 23 years and that, although he did not activate any radar device when observing Edwards, he has been trained in such devices as well as in how to pace the speed of a car, which is how he visually estimated Edwards’ speed that day. He also testified that, though his pursuit travelled in and out of Fairlawn’s jurisdiction, he did observe Edwards travelling at approximately 100 miles per hour while within the Fairlawn city limits and noted that location on the maps introduced into evidence by the State.
{¶20} Upon cross-examination, Edwards testified that he was “trying to find [his] friends *** but be safe [] at the same time” and noted that he “was being careful *** switching lanes, using turn signals,” and “wasn’t going 100 miles an hour constantly.” Edwards did not recall pulling into the lane in front of Officer Robertson’s cruiser and repeatedly stated that he never saw the cruiser’s lights or heard its sirens until he pulled over under the Ghent Road bridge.
{¶21} Based on the foregoing, the State produced ample evidence to convict Edwards of failure to comply with a police order in a manner that posed a substantial risk of serious physical harm to persons or property. The evidence reveals that Edwards was travelling at speeds that were 10 – 20 miles per hour above the posted limit in mid-day weekend traffic, which at one
{¶22} Furthermore, though Edwards’ conduct may not have resulted in any harm to a person or property, we consider speed in excess of 100 miles per hour as adequate evidence that a substantial risk of such harm existed. State v. Garrard, 10th Dist. Nos. 06AP-653 & 06AP-685, 2007-Ohio-1244, at ¶44 (concluding that estimates of speed can support a conviction of substantial risk of serious physical harm to persons or property under
{¶23} Because we have determined that Edwards’ conviction was not against the weight of the evidence, we need not address his challenge to the sufficiency of the same. See Roberts, supra, at *2. Accordingly, Edwards’ second assignment of error lacks merit.
Assignment of Error Number Three
“THE TRIAL COURT’S FAILURE TO FIND IN ITS JOURNAL ENTRY THAT DEFENDANT IS GUILTY AS TO SPECIFIC FINDINGS AS TO HARM TO PERSONS OR PROPERTY REQUIRE THAT APPELLANT BE FOUND GUILTY AS SET FORTH IN O.R.C. 2921.331(B) AND (C)(2) OF A MISDEMEANOR OF THE FIRST DEGREE.”
{¶24} In his third assignment of error, Edwards argues that the journalization of his conviction omits a finding of guilt as to the penalty enhancement that he caused a substantial risk of serious physical harm to persons or property when he failed to comply with the police. Based on this omission, he asserts that he can only be convicted of and sentenced under the first degree misdemeanor charge.
{¶25} Edwards’ cites to no authority for the proposition that a trial court’s failure to specify in its journal entry that the defendant was found guilty of a penalty enhancement requires this Court to reverse his conviction. See
III
{¶26} Edwards’ assignments of error are overruled. The judgment of the Summit 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 Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
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.
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
DICKINSON, J.
CONCUR
APPEARANCES:
TONY DALAYANIS, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant Prosecuting Attorney, for Appellee.