170 Ohio App. 3d 487 | Ohio Ct. App. | 2007
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *489
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *490 {¶ 1} Defendant-appellant, Jason L. Garrard, appeals from the judgment of the Franklin County Court of Common Pleas, whereby the trial court convicted appellant of failure to comply with an order or signal of a police officer, a third-degree felony, pursuant to a bench trial.
{¶ 2} On October 3, 2005, appellant was indicted on one count of (1) rape, a first-degree felony, in violation of R.C.
{¶ 3} Appellant pleaded not guilty to the above charges. He invoked his right to a jury trial on the rape and felonious-assault charges, but waived his right to a jury trial on the fleeing charge. Thus, the parties tried the fleeing charge before the trial court. Ultimately, the jury found appellant not guilty of rape and felonious assault, and such charges are not the subject of this appeal.
{¶ 4} As for the fleeing charge, Columbus Police Detective James Shockey testified to the following on behalf of appellee. On September 12, 2005, Detective Shockey interviewed appellant about the above-noted rape and related offenses, and the officer informed appellant that charges might be filed against him.
{¶ 5} Thereafter, on September 23, 2005, Detective Shockey sought to execute an arrest warrant on appellant and his codefendant, Christina Robinson. That day, Detective Shockey worked with Detectives William Brubaker and Timothy Elkins. The detectives were using an unmarked vehicle.
{¶ 6} Initially, Detective Shockey arrested Robinson at an apartment on Brookway. While making the arrest, Detective Shockey saw the following:
[A] vehicle that was traveling from Livingston Avenue down towards the apartment. About midway * * * it had stopped, and unknown people from the neighborhood had stopped and were talking to the driver and were pointing down towards our direction.
After that brief conversation, the car continued this way. As it continued towards Brookway, [Robinson] told us that was [appellant] coming.
* * *
As the car continued, rather than stopping here in the parking lot, it continued around this bend. As it continued, Detective Elkins got into our plain car and began to exit the parking lot and went in the direction of where the car was.
{¶ 7} Although Detective Shockey remained at the scene of Robinson's arrest, the detective did notice that a black male was driving the car that Detective Elkins followed. Later, Detective Elkins returned to the scene of Robinson's arrest, and he indicated that when he reached the car he was following, no one was in the car. Thus, the detectives decided to search for appellant at his mother's apartment. A police cruiser arrived to transport Robinson to police headquarters, and the detectives drove to appellant's mother's apartment.
{¶ 8} Upon reaching appellant's mother's apartment, Detective Shockey saw that the car they had seen driving on Brookway had passed them. The detectives, with Detective Shockey driving, followed the car. Because they were *492 in an unmarked car, the detectives sought assistance by stating over the police radio that they had a wanted felon in front of them.
{¶ 9} Two police cruisers began following appellant. The cruisers' red and blue beacons were activated, and one cruiser got behind appellant's vehicle. Appellant did not stop at first, but after driving through several streets, appellant eventually stopped, and police officers apprehended him. After the apprehension, some of appellant's family members "were coming out of a northwestern corner house. * * * It was just 25, 30 feet from there."
{¶ 10} Columbus Police Officer Michael Bruce testified to the following on appellee's behalf. On September 23, 2005, Officer Bruce was on patrol with Officer Samuel Hazlerig. Officer Bruce was driving the cruiser, and the officer responded to the detectives' request for assistance in pursuing appellant. When Officer Bruce was on Mt. Vernon Avenue, he discovered appellant driving in his car. Officer Bruce eventually activated the cruiser's emergency lights and sirens to pursue appellant. At that point, appellant went down to Garfield Avenue, continued on Garfield to Buckingham, made a westbound turn on Buckingham, crossed over Buckingham, and then pulled to the north side of Buckingham. The officers then "actually made contact with [appellant] and took him into custody." Appellant was the only person in the car.
{¶ 11} Officer Bruce also testified that it was about 8:00 p.m. when the pursuit occurred. Officer Bruce further noted that the pursuit took place in an area mixed with residences and businesses. Officer Bruce specifically noted that Buckingham was a residential street. Additionally, Officer Bruce testified that 150 seconds had lapsed between his receiving the detectives' request for assistance and appellant's apprehension.
{¶ 12} On cross-examination, appellant's trial counsel asked Officer Bruce whether appellant actually knew that Officer Bruce had had his lights on. Officer Bruce stated that he could not testify as to what appellant knew. Officer Bruce also testified on cross-examination that during the initial part of his pursuing appellant, he knew that they were attempting to catch the vehicle, and he had to use a substantial amount of acceleration to catch it while he had the lights and sirens going. Officer Bruce further stated that appellant had made a rapid deceleration on Buckingham and that once they were close enough to the vehicle, appellant "curbed it, which is not what a normal person would do when they arrive at their destination." Officer Bruce then testified on cross-examination that he did not recall whether appellant had a safe place to pull over prior to the location on Buckingham where appellant did stop.
{¶ 13} Next, Detective Elkins testified to the following on appellee's behalf. On September 23, 2005, Detective Elkins accompanied Detective Shockey during the attempts to serve warrants on appellant and Robinson. The detectives found *493 Robinson sitting in a vehicle in a parking lot, and she stated that appellant would be right back. Later, Robinson stated: "[T]here he is right now." At that time, a car came northbound on Brookway and stopped. Appellant was driving the car and looked at the detectives when he stopped. A woman walked over to the car and started speaking to appellant, and appellant drove away on Brookway.
{¶ 14} Detective Elkins attempted to follow appellant, but could not find him. Detective Elkins started looking in the parking lots around the area, and he found appellant's car near Rand Avenue. "About the same time [Detective Elkins] * * * saw a male black. [Detective Elkins] [did not] know if it was [appellant] * * *, but [Detective Elkins] saw a male black running southbound from that area." Detective Elkins tried to catch up to the man, but was unable to do so.
{¶ 15} Detective Elkins then returned to the other detectives, and they drove to appellant's grandmother's house to see whether they could find him. Upon arriving at appellant's grandmother's house, the detectives saw appellant drive right past them. Next:
[The detectives] called for patrol officers to assist. [Appellant] left at a high rate of speed, going down * * * Mt. Vernon. [Appellant was] just flying down Mt. Vernon. And the patrol officers happened to be in the area, and they got behind him and * * * they used their lights and sirens trying to get him to stop.
[Appellant] continued fleeing up some side streets over towards where the little side streets dead end.
{¶ 16} Detective Elkins indicated at trial that the first time police were behind appellant with lights and sirens was on Mt. Vernon Avenue, and the street where appellant stopped may have been Buckingham. Detective Elkins also testified that eventually, they had cruisers "all over the place" pursuing appellant. Detective Elkins then testified that appellant ultimately stopped his car, and police apprehended him. Detective Elkins reiterated that during the pursuit, appellant was driving fast and that he did not "know what the rate of speed was." He said, "I'm sure those streets are 25. It was probably double that. That's just a guess."
{¶ 17} On cross-examination, Detective Elkins confirmed that the detectives' vehicle did not have lights and sirens. Detective Elkins also testified that due to his line of vision, he could not tell how far behind appellant the police cruisers were during the pursuit.
{¶ 18} Next, Gregory Young testified to the following on appellee's behalf. Young and appellant had been previously incarcerated at the same time in the Franklin County jail. Young is serving a 240-month sentence on a federal *494 cocaine conviction. Appellant told Young about his fleeing from law enforcement. Specifically, appellant told Young that "[h]e didn't have any choice. He had a couple rocks of cocaine. A person in his car had * * * crack and a pistol. And he had some alcohol in his car."
{¶ 19} Martin Kiggans testified to the following on appellee's behalf. Kiggans and appellant had also previously been incarcerated at the same time in the Franklin County jail. Appellant told Kiggans "about the incident when he fled in * * * a car." Kiggans has a prior theft conviction, and he is currently incarcerated on felony convictions pertaining to writing false prescriptions. However, Kiggans hopes to serve the rest of his sentence by participating in a drug-treatment program. On cross-examination, Kiggans confirmed that he was asking appellee to help get him out of prison so that he could start the drug-treatment program.
{¶ 20} Subsequently, appellee rested its case, and appellant's trial counsel asked the trial court to dismiss the fleeing charge pursuant to Crim.R. 29. The trial court denied the motion and stated: "I'm still hovering with that."
{¶ 21} Officer Hazlerig testified to the following on appellee's behalf. On September 23, 2005, Officer Hazlerig was working with Officer Bruce; Officer Hazlerig was a passenger in Officer Bruce's cruiser. That day, the officers responded to the detectives' request for assistance in pursuing appellant. The officers saw appellant on Mt. Vernon Avenue, and the car turned northbound onto Garfield Avenue. The officers drove to Garfield Avenue, initiated their lights and sirens, and followed the car. Appellant proceeded northbound on Garfield to Buckingham. Once appellant got to Buckingham, he turned left and did not pull over. They continued westbound, and crossed St. Clair. Eventually, after crossing St. Clair, appellant pulled over and was apprehended.
{¶ 22} Appellant rested his case. After the jury found appellant not guilty of rape and felonious assault, the trial court stated that it had not made a decision on the fleeing charge. The trial court stated: "I need to review that and I'll tell you on Tuesday," May 30, 2006.
{¶ 23} On Tuesday, May 30, 2006, the trial court stated:
At this time the court, having listened to all of the evidence throughout the course of the trial, finds [appellant] guilty of failure to comply with an order or signal of a police officer, which is a felony three.
Before rendering its verdict on the fleeing charge, the trial court had not entertained closing argument from appellant's trial counsel, and appellant's trial counsel did not object to the trial court's failure to provide an opportunity for *495 closing argument on the fleeing charge. The trial court then sentenced appellant to three years' imprisonment.
{¶ 24} Appellant appeals, raising three assignments of error:
First Assignment of Error
The trial court erred by failing to accord defendant-appellant his constitutional right to make closing argument by summarily rendering its verdict.
Second Assignment of Error
The trial court erred in entering judgment against the defendant because there was insufficient evidence to support the conviction.
Third Assignment of Error
The trial court erred by entering judgment against defendant-appellant because such judgment is contrary to the weight of the evidence.
{¶ 25} We begin with appellant's second assignment of error. In his second assignment of error, appellant contends that his fleeing conviction is based on insufficient evidence. We disagree.
{¶ 26} Sufficiency of the evidence is a legal standard that tests whether the evidence introduced at trial is legally sufficient to support a verdict. State v.Thompkins (1997),
{¶ 27} As noted above, appellee was charged with fleeing, pursuant to R.C.
*496(B) No 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.
{¶ 28} In challenging his fleeing conviction, appellant first contends that the evidence failed to establish that he actually received a visible or audible signal to stop. A trier of fact may infer from the evidence whether a defendant was aware of a police officer's signal to stop. State v.Hill, Hamilton App. No. C-030678,
{¶ 29} Although Officers Bruce and Hazlerig did not indicate how close they were to appellant's car when Officer Bruce activated the lights and siren on the police cruiser, Officer Hazlerig testified that they had followed appellant's car, and Detective Elkins testified that a police cruiser using lights and sirens got behind appellant's car. Such testimony, in combination with Officer Bruce's testimony about seeing appellant's actions during the pursuit, establish that Officers Bruce and Hazlerig were sufficiently near appellant's vehicle during the pursuit to see appellant's car; correspondingly, this evidence established that appellant could see the police cruiser with its activated lights and siren. Accordingly, we conclude that the above circumstances established that appellant had received a police officer's visible and audible signals to stop and that appellant was thus aware of the pursuit by police.
{¶ 30} Next, appellant contends that the evidence failed to establish that appellant willfully eluded the police. Although "willfully" as used in R.C.
(A) A person acts purposely when it is his specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is his specific intention to engage in conduct of that nature.
{¶ 31} Proof of intent may be derived from circumstantial evidence, as direct evidence will seldom be available. State v. Lott (1990),
{¶ 32} Here, the testimony established that after Officer Bruce activated the lights and siren on the cruiser and after police proceeded to follow appellant, appellant did not stop but continued to speed and prolong the police pursuit until he abruptly stopped on Buckingham. We may infer that appellant willfully eluded the police from such conduct, given that "`[i]t is a fundamental principle that a person is presumed to intend the natural, reasonable and probable consequences of his voluntary acts.'" Lott,
{¶ 33} Next, appellant contends that the evidence failed to establish the fleeing as a third-degree felony. As noted above, appellee indicted the fleeing as a third-degree felony, pursuant to R.C.
{¶ 34} R.C.
(a) Results in substantial loss to the value of the property or requires a substantial amount of time, effort, or money to repair or replace;
(b) Temporarily prevents the use or enjoyment of the property or substantially interferes with its use or enjoyment for an extended period of time.
{¶ 35} Under R.C.
*498(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.
{¶ 36} In State v. Walby (Mar. 6, 1992), Sandusky App. No. S-91-1,
{¶ 37} Here, Officer Bruce testified that after initiating his lights and siren, he had to use a substantial amount of acceleration during the pursuit. Detective Elkins also reiterated that during the pursuit, appellant was driving fast and probably double the speed limit, which Detective Elkins presumed was 25 m.p.h. Officer Bruce testified that the area of the pursuit contained residences and businesses. Detective Shockey also confirmed that Buckingham, the final location of the pursuit, contained residences, given his testimony that after police apprehended appellant, some of appellant's family members came "out of a northwestern corner house" that "was just 25, 30 feet" from the apprehension location. Thus, as in Walby, appellant created a substantial risk of physical harm to persons or property by fleeing at a high rate of speed through an area mixed with residences and businesses. Indeed, we may also consider that appellant created a substantial risk of physical harm to Officers Bruce and Hazlerig, the officers involved in pursuing appellant as he sped through a mixed commercial/residential area. See State v. Barnett, Tuscarawas App. No. 2004 AP 03 0019,
{¶ 38} For these reasons, we conclude that sufficient evidence supported appellant's underlying conviction for fleeing under R.C.
{¶ 39} Next, we address appellant's third assignment of error. In his third assignment of error, appellant argues that his fleeing conviction is against the manifest weight of the evidence. We disagree.
{¶ 40} In determining whether a verdict is against the manifest of the evidence, we sit as a "`thirteenth juror.'" Tkompkins,
{¶ 41} First, appellant asserts that his "fleeing" conviction is against the manifest weight of the evidence because there "were only 150 seconds from the time of the very first call for cruisers and the actual apprehension of [appellant]" and because Officer Bruce did not activate the cruiser's lights and siren "until [appellant] was, at a maximum, 2 ½ blocks from where he stopped." However, such circumstances do not belie the above evidence that nonetheless demonstrated that after Officer Bruce activated the lights and siren, appellant did not stop but continued to speed. We further reject appellant's above arguments because the explicit language of R.C.
{¶ 42} We note Officer Bruce's testimony that he had activated his lights and siren on Mt. Vernon Avenue, while Officer Hazlerig testified that Officer Bruce had activated the lights and siren on Garfield Avenue. However, we find this discrepancy immaterial because both officers unequivocally stated that after Officer Bruce activated the lights and siren, appellant did not stop. *500
{¶ 43} We further note that testimony about appellant's admissions to fleeing came from witnesses with prior felony convictions and that under Evid.R. 609, such convictions impeach the witnesses' credibility. However, such circumstances do not make appellant's conviction against the manifest weight of the evidence, given the unequivocal testimony from the detectives and police officers that appellant failed to stop on order of Officer Brace's signals to stop.
{¶ 44} Next, appellant argues that the R.C.
{¶ 45} Last, appellant contends that the R.C.
{¶ 46} For these reasons, we conclude that appellant's conviction is not against the manifest weight of the evidence. Accordingly, we overrule appellant's third assignment of error.
{¶ 47} Finally, we address appellant's first assignment of error. In it, appellant contends that we must reverse his conviction because the trial court failed to provide appellant an opportunity for closing argument on the charge. We disagree.
{¶ 48} The United States Supreme Court has held that the Sixth Amendment "right to the assistance of counsel has * * * been given a meaning that ensures to the defense in a criminal trial the opportunity to participate fully and fairly in *501
the adversary factfinding process" and that "closing argument for the defense is a basic element of the adversary factfinding process in a criminal trial. Accordingly, it has universally been held that counsel for the defense has a right to make a closing summation to the jury, no matter how strong the case for the prosecution may appear to the presiding judge." Herringv. New York (1975),
The issue has been considered less often in the context of a so-called bench trial. But the overwhelming weight of authority, in both federal and state courts, holds that a total denial of the opportunity for final argument in a nonjury criminal trial is a denial of the basic right of the accused to make his defense.
Id. at 858-859,
{¶ 49} In holding as such, the United States Supreme Court recognized:
Some cases may appear to the trial judge to be simple — open and shut — at the close of the evidence. And surely in many such cases a closing argument will * * * be "likely to leave (a) judge just where it found him." But just as surely, there will be cases where closing argument may correct a premature misjudgment and avoid an otherwise erroneous verdict. And there is no certain way for a trial judge to identify accurately which cases these will be, until the judge has heard the closing summation of counsel.
(Footnotes omitted.) Id. at 863,
{¶ 50} Thus, in Herring, the United States Supreme Court reversed a defendant's conviction because a trial court had denied the defendant the opportunity to make a closing argument pursuant to a New York statute that conferred such power upon a judge in a nonjury criminal trial. Id. at 854, 856, 864-865,
There is no way to know whether * * * arguments in summation might have affected the ultimate judgment in this case. The credibility assessment was solely for the trier of fact. But before that determination was made, the [defendant], through counsel, had a right to be heard in summation of the evidence from the point of view most favorable to him.
(Footnote omitted.) Id. at 864,
{¶ 51} Accordingly, we have held that unless there is a relinquishment of the right to a closing argument, the trial court's failure to allow closing argument constitutes reversible error. Columbus v. Woodrick (1976),
{¶ 52} Thus, in Woodrick, we automatically reversed a defendant's conviction because the trial court had failed to provide an opportunity for closing argument. Id. at 277-278, 2 O.O.3d 232,
{¶ 53} Structural error is a type of error that is "per se cause for reversal." State v. Fisher,
{¶ 54} Here, the trial court failed to provide appellant an opportunity for closing argument on the charge of fleeing, and although neither appellant nor his trial counsel requested closing argument, the record established no express, voluntary, and intentional relinquishment of such a closing argument. See Woodrick,
{¶ 55} According to the plain-error doctrine, enunciated in Crim.R. 52(B), "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." "By its very terms, the rule places three limitations on a reviewing court's decision to correct *503
an error despite the absence of a timely objection at trial."State v. Barnes (2002),
First, there must be an error, i.e., a deviation from a legal rule. * * * United States v. Olano (1993),507 U.S. 725 ,732 ,113 S.Ct. 1770 ,1776 ,123 L.Ed.2d 508 ,518 (interpreting Crim.R. 52[B]'s identical federal counterpart, Fed.R.Crim.P.52 [b]). Second, the error must be plain. To be "plain" within the meaning of Crim.R. 52(B), an error must be an "obvious" defect in the trial proceedings. * * * [S]ee, also, Olano,507 U.S. at 734 ,113 S.Ct. at 1777 ,123 L.Ed.2d at 519 (a plain error under Fed.R.Crim.P.52 [b] is "`clear' or, equivalently, `obvious'" under current law). Third, the error must have affected "substantial rights." We have interpreted this aspect of the rule to mean that the trial court's error must have affected the outcome of the trial.
Barnes,
{¶ 56} Since Herring, Woodrick,Stennett, and Carroll, the United States Supreme Court has suggested that structural error does not preclude the application of the plain-error doctrine. See Johnson v.United States (1997),
[B]oth this court and the United States Supreme Court have cautioned against applying a structural-error analysis where * * * the case would be otherwise governed by Crim.R. 52(B) [the plain error doctrine] because the defendant did not raise the error in the trial court. * * * This caution is born of sound policy. For to hold that an error is structural even when the defendant does not bring the error to the attention of the trial court would be to encourage defendants to remain silent at trial only later to raise the error on appeal where the conviction would be automatically reversed. We believe that our holdings should foster rather than thwart judicial economy by providing incentives (and not disincentives) for the defendant to raise all errors in the trial court — where, in many cases, such errors can be easily corrected.
(Emphasis sic.)
{¶ 57} Accordingly, we have held that structural error "does not supply an automatic finding of plain error for unpreserved errors." State v. Brooks, Franklin App. No. 06AP-74, 2006-Ohio-5784,
{¶ 58} Thus, although Herring, Woodrick,Stennett, and Carroll provide that structural, and therefore reversible, error stems from a trial court's failure *504 to provide a defendant the opportunity for a closing argument, absent an express, voluntary, and intentional relinquishment of that right, we hold here that the subsequent cases ofJohnson, Perry, and Brooks establish that such structural error is nonetheless subject to the plain-error doctrine if a defendant did not object or otherwise raise the error in the trial court. Accordingly, we apply the plain-error doctrine here because appellant did not object to the trial court's failure to provide an opportunity for closing argument on the fleeing charge.
{¶ 59} In applying the plain-error doctrine, we first conclude that Herring, Woodrick, Stennett, andCarroll establish that the trial court committed error in not providing appellant an opportunity for closing argument on the fleeing charge. See Barnes,
{¶ 60} Next, we examine whether the error was "plain." See Barnes,
{¶ 61} Here, the United States Supreme Court in Herring established the precedence on the error stemming from a trial court's failure to provide a defendant an opportunity for closing argument. Id. at 858-859, 864-865,
On one side is the view illustrated by Columbus v. Woodrick (1976),48 Ohio App.2d 274 ,277-278 [2 O.O.3d 232],357 N.E.2d 58 , * * * where the court held that the failure of a court to allow defense counsel in a criminal trial to present a closing argument is reversible error, in the absence of a clear showing that there was an intentional waiver of the right. * * * Other courts of appeal have come to the same conclusion. See, e.g., State v. Hoover (May 11, 1992), Stark App. No. CA-8761,1992 WL 127070 * * *.
* * * [Conversely], [i]n State v. Erickson
(Apr. 29, 1988), Lake App. No. 12-137 [
{¶ 62} Regardless, such differing opinions among Ohio courts of appeals do not preclude us from determining that the trial court committed error that is plain by failing to provide appellant an opportunity for closing argument on the fleeing charge. The differing opinions go to the preservation on appeal of the closing argument issue and not to the error itself established by the United States Supreme Court inHerring. Thus, we conclude that the trial court's failure to provide appellant an opportunity for closing argument on the fleeing charge constitutes error that is plain, given the precedence of Herring and its progeny. SeeBarnes,
{¶ 63} We next examine the third prong of the plain-error doctrine, which is whether the error affected appellant's "substantial rights." Barnes,
{¶ 64} In short, the trial court's failure to provide appellant an opportunity for closing argument satisfies the three prongs in Barnes and, thus, constitutes recognizable plain error under Crim.R. 52(B). Our recognition of that plain error, however, is discretionary. SeeBarnes,
{¶ 65} The Ohio Supreme Court has stated:
Even if a forfeited error satisfies [the above noted] three prongs [of the plain-error doctrine], Crim.R. 52(B) does not demand that an appellate court correct it. Crim.R. 52(B) states only that a reviewing court "may" notice plain forfeited errors; a court is not obliged to correct them.
Barnes,
{¶ 66} Here, given the evidence supporting appellant's third-degree felony fleeing conviction, we find no "manifest miscarriage of justice" requiring that we notice and correct the plain error from the trial court's failure to provide appellant an opportunity for closing argument on the fleeing charge, a charge tried only before the court, not the jury. See Johnson,
{¶ 67} Again, R.C.
(B) No 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.
As noted above, Officers Bruce and Hazlerig unequivocally testified that after Officer Bruce activated the lights and siren, appellant did not stop, but continued to speed away. Detectives Shockey and Elkins confirmed the testimony that established appellant's underlying fleeing conviction.
{¶ 68} Next, we note that appellee indicted the fleeing as a third-degree felony, pursuant to R.C.
{¶ 69} To be sure, appellant has raised issues concerning the strength of the evidence supporting the third-degree felony fleeing charge. And as the dissent asserts, there were discrepancies among the police officers' testimonies. However, we rejected these challenges in our discussion and holding that appellant's third-degree felony conviction is based on sufficient evidence and is not against the manifest weight of the evidence.
{¶ 70} In the final analysis, because we have concluded that no "manifest miscarriage of injustice" exists here, we decline to exercise our discretion to recognize and correct the plain error stemming from the trial court's failure to provide appellant an opportunity for closing argument following the bench trial on the fleeing charge. SeeBarnes,
{¶ 71} In summary, although the trial court committed structural error in failing to provide appellant an opportunity to make a closing argument on the fleeing charge, the plain-error doctrine applies here because appellant's defense counsel failed to object to such error at trial. Although the trial court committed plain error in failing to provide appellant an opportunity to make a closing argument on the fleeing charge, we need not recognize that error for the reasons noted above. As such, we overrule appellant's first assignment of error.
{¶ 72} For the foregoing reasons, we overrule appellant's first, second, and third assignments of error. Thus, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN, J., concurs.
McGRATH, J., dissents.
Dissenting Opinion
{¶ 73} Being unable to concur on the final aspect of the majority's opinion, I am compelled to respectfully dissent.
{¶ 74} The majority's opinion thoroughly and correctly sets forth the law applicable to the present appeal and concludes that despite defense counsel's failure to object, the trial court, in failing to afford counsel an opportunity for final argument, committed structural error on the fleeing charge, and that the plain-error doctrine is applicable thereto. *508
{¶ 75} The majority concludes that plain error need not be corrected except to prevent a "manifest miscarriage of justice." The majority finds no such miscarriage of justice in view of overwhelming evidence.
{¶ 76} Nevertheless, I must depart company with the majority on the question of whether the defendant's inability to have even argued his view of the evidence to the trier of fact on the critical question of whether his conduct created a "substantial risk of * * * harm to persons or property." The majority opinion at ¶ 68 established cause for reversal. The risk-of-harm element makes the fleeing charge a felony of the third degree.
{¶ 77} The defendant was acquitted by a jury of the greater charges of rape and felonious assault, and the trial judge, having heard additional evidence on the fleeing charge, was "hovering" on her decision from Friday through Tuesday.
{¶ 78} The error at hand is structural and a per se cause for reversal. State v. Fisher,
{¶ 79} Moreover, argument may be made as to what specific evidence existed, or was lacking, detailing the action of defendant's vehicle coupled only with a general description of the neighborhood (as mixed business and residential).
{¶ 80} All these factors may have been argued to the trier of fact in the hope of raising a reasonable doubt in the mind of the trial court. As stated by the United States Supreme Court in Herring v. New York (1975),
There is no way to know whether * * * arguments in summation might have affected the ultimate judgment in this case.
{¶ 81} Whether or not the defendant would have been found guilty, I believe under the facts of this case that being denied the opportunity to argue presents a situation for the exercise of judicial discretion and I would, therefore, reverse and remand on the first assignment of error.
{¶ 82} Having so concluded, I would hold assignments of error two and three to be moot. *509
