STATE OF OHIO v. JERRY WAYNE HARNER, JR.
CASE NO. CA2019-10-012
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BROWN COUNTY
5/26/2020
[Cite as State v. Harner, 2020-Ohio-3071.]
CRIMINAL APPEAL FROM BROWN COUNTY COURT OF COMMON PLEAS Case No. CRI2018-2273
Stephenie Lape Wolfinbarger, PLLC, Stephenie Lape Wolfinbarger, 810 Sycamore Street, 6th Floor, Cincinnati, Ohio 45202, for appellant
M. POWELL, J.
{¶ 1} Appellant, Jerry Wayne Harner, Jr., appeals his conviction in the Brown County Court of Common Plеas for failure to comply with an order or signal of a police officer.
{¶ 2} In the late evening hours of July 23, 2018, Fayetteville Police Chief Chad
{¶ 3} While pursuing the Jeep, Chief Essert requested assistance from neighboring police departments. Mt. Orab Police Officer and canine handler Bradley Jones responded to Chief Essert‘s request and deployed stop sticks.1 The male driver drove the Jeep over the stop sticks, causing the tires to deflate. The driver continued to drive on the rims until the Jeep eventually came to a stop near a tall cornfield. The driver exited the Jeep and fled into the cornfield. Neither Chief Essert nor Officer Jones and his canine pursued the driver in the cornfield. The driver was not apprehended that evening. During an inventory search of the Jeep, Chief Essert discovered an Ohio Identification Card bearing the name, address, and рhotograph of appellant. The card was found on the floorboard of the Jeep on the driver‘s side. During the 25-minute high-speed chase, the driver travelled up to 105 m.p.h. and ran through one traffic light and four stop signs.
{¶ 4} Based upon those events, appellant was indicted on one count of failure to
{¶ 5} At the conclusion of the state‘s сase-in-chief, appellant moved for acquittal pursuant to
{¶ 6} Appellant now appeals, raising two assignments of error.2
{¶ 7} Assignment of Error No. 1:
{¶ 8} THE TRIAL COURT ERRED IN OVERRULING MR. HARNER‘S CRIMINAL RULE 29 MOTION FOR JUDGMENT OF ACQUITTAL BECAUSE THE EVIDENCE AT TRIAL WAS INSUFFICIENT TO SUPPORT A CONVICTION AND THE COURT FURTHER ERRED IN ENTERING A GUILTY FINDING WHERE THE JURY‘S VERDICT WAS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 9} Appellant challenges his failure to comply conviction, arguing that the trial
{¶ 10} Specifically, аppellant discounts Chief Essert‘s testimony of his initial encounter with the driver at Kiley‘s because the driver was seated in the Jeep, the police chief was 12-15 feet away from the Jeep, and it was dark. Appellant further dismisses as unreliable Chief Essert‘s identification of the driver as the latter fled into the cornfield because the police chiеf was either seated in his police cruiser or otherwise occupied with the female passenger of the Jeep. Finally, appellant dismisses the significance of the discovery of his identification card in the Jeep because there was no connection between appellant and the Jeep or its license plаte, there was no evidence as to how the identification card came to be in the Jeep or how long it had been there, and the police failed to undertake efforts which may have made the case stronger, such as requesting video footage from Kiley‘s, retrieving items that had fallen out of the Jeep during the high-speed chase, obtaining a statement from the female passenger, recovering fingerprints from the Jeep, or canvassing the neighborhood near the cornfield for witnesses.
{¶ 11} The review of a trial court‘s denial of a
{¶ 12} In determining whether a conviction is against the manifest weight of the evidence, the court, reviewing the entire record, weighs the evidence and all reasonable
{¶ 13} The sole issue in this case was the identity of the Jeep‘s male driver. It is well established that in order to warrant a conviction, “the evidence must establish beyond a reasonable doubt the identity of the accused as the person who committed the crime.” State v. Scott, 3 Ohio App.2d 239, 244 (11th Dist.1965); State v. Raleigh, 12th Dist. Clermont Nos. CA2009-08-046 and CA2009-08-047, 2010-Ohio-2966, ¶ 45. The identity of the accused as the perpetrator of the crime may be established by direct or circumstantial evidence. Raleigh at ¶ 45.
{¶ 14} Chief Essert testified that Kiley‘s parking lot was “extremely well lit.” He further testified that as he pulled in the parking lot and parked 12-15 feet away from the Jeep, he activated both the overhead light bar of his cruiser and the spotlight across the light bar. Chief Essert explained that when the spotlight is activated, it “completely light[s] up the front of the light bar [and] it‘s real blinding.” The police chief stated he then exited his cruiser and, staying behind or in the vicinity of his driver‘s door for safety purposes, ordered the male driver to turn off the Jeep. Following this testimony, the police chief positively identified appellant as the Jeep‘s male driver on the parking lot of Kiley‘s.
{¶ 15} Chief Essert next testified that his police cruiser was right behind the Jeep when it came to a stop near a cornfield. As the male driver exited the Jeep, he looked back
{¶ 16} On cross-examination, Chief Essert testified that on the day of the incident, appellant was sporting shorter hair and shorter facial hair than on the photograph of his identification card. The police chief statеd that in fact, the length of appellant‘s hair on the day of the incident was “much shorter[,] like he is today.” Despite the hair length difference between the photograph on appellant‘s identification card and the male driver, Chief Essert stated he could tell the driver of the Jeep was appellant. At the conclusion of his cross-examination, Chief Essert once again positively identified appellant as the male driver of the Jeep involved in the high-speed chase on July 23, 2018. Asked whether there could be a possibility that the driver was not appellant but “someone similar looking,” the police chief replied, “No.”
{¶ 17} Chief Essert explained that police officers and thе canine did not pursue the driver into the cornfield for safety reasons as it was dark and the corn was well above six feet tall. Moreover, the canine was not trained to apprehend suspects. Chief Essert further explained why the Fayetteville Police Department did not or could not undertake the efforts listed in appellant‘s argument.
{¶ 18} Uрon thoroughly reviewing the record, we find that the state presented ample evidence to show that appellant was the male driver of the Jeep involved in the high-speed
{¶ 19} In light of the foregoing, we find that the evidence presented at trial does not weigh heavily in favor of acquittal and that the jury did not clearly lose its way and create a manifest miscarriage of justice in finding appellant guilty of failure to comply with an order or signal of a police officer. Appellant‘s failure to comply conviction is therefore not against the manifest weight of the evidence. Our determination that aрpellant‘s conviction is supported by the weight of the evidence is also dispositive of the issue of sufficiency. Peyton, 2017-Ohio-243 at ¶ 48. The trial court, therefore, did not err in denying appellant‘s
{¶ 20} Appellant‘s first assignment of error is overruled.
{¶ 21} Assignment of Error No. 2:
{¶ 22} IT WAS PLAIN ERROR FOR THE TRIAL COURT TO ALLOW OTHERBAD ACTS TESTIMONY BY CHIEF ESSERT DEPRIVING MR. HARNER OF DUE PROCESS AND A FAIR TRIAL AND MR. HARNER WAS DEPRIVED OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHEN COUNSEL DID NOT RAISE AN OBJECTION TO THE ADMISSION OF THIS HIGHLY PREJUDICIAL EVIDENCE. (SIC)
{¶ 23} Chief Essert testified that upon running appellant‘s personal information through LEADS, he learned that appellant had a suspended driver‘s license and outstanding
{¶ 24} Appellant concedes he is limited to a review for plain error because he did not object to the challenged testimony аt trial. An error does not rise to the level of a plain error unless, but for the error, the outcome of the trial would have been different. State v. Palmer, 12th Dist. Butler Nos. CA2013-12-243 and CA2014-01-014, 2014-Ohio-5491, ¶ 21. “Notice of plain error under
{¶ 25} A trial court has broad discretion in the admission and exclusion of evidence, including evidence of other acts under
{¶ 26}
{¶ 27} “Evidence that an accused committed a crime other than the one for which he is on trial is not admissible when its solе purpose is to show the accused‘s propensity or inclination to commit crime or that he acted in conformity with bad character.” State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, ¶ 15. “[E]vidence of other acts is admissible
{¶ 28} Evidence of appellant‘s suspended driver‘s license and outstanding warrants was relevant to the failure to comply offense, was used for a legitimate purpose, and the probative value was not substantially outweighed by the danger of unfair prejudice.
{¶ 29} In order to prove a violation of
{¶ 30} Finally, the probative value of thе other-act evidence was not substantially outweighed by the danger of unfair prejudice. Chief Essert‘s testimony that appellant had a suspended driver‘s license and outstanding warrants was brief and general in nature. The testimony did not mention any particular crime and did not attempt to show appellant‘s propensity or inclination to commit crime or that he acted in conformity with bad character. Other than a single, brief reference to the evidence during the state‘s closing argument, neither party focused on the testimony. After reviewing the record, this court is not concerned that the challenged testimony affected the outcome of the case. The trial court,
{¶ 31} Under his second assignment of error, appellant further argues that his trial counsel was ineffective because she failed to object to Chief Essert‘s testimony that appellant had a suspended driver‘s license and outstanding warrants.
{¶ 32} To prevail on his ineffectivе assistance of counsel claim, appellant must show that his trial counsel‘s performance was deficient and that he was prejudiced as a result. State v. Marcum, 12th Dist. Butler No. CA2017-05-057, 2018-Ohio-1009, ¶ 43; Strickland v. Washington, 466 U.S. 668, 687-688, 104 S. Ct. 2052 (1984). Trial counsel‘s performance will not be deemed deficient unless it fell below an objective standard of reasonableness. Strickland at 688. To show prejudice, appellant must establish that, but for his trial counsel‘s errors, there is a reasonable probability that the result of his trial would have been different. Id. at 694. The failure to satisfy either prong of the Strickland test is fatal to an ineffective assistance of counsel claim. Marcum at ¶ 44.
{¶ 33} Trial counsel was not ineffective for failing to object to Chief Essert‘s testimony that appellant had a suspended driver‘s license and outstanding warrants. “Having determined that thе complained of ‘other acts’ evidence did not violate
{¶ 34} Appellant‘s second assignment of error is overruled.
HENDRICKSON, P.J., and PIPER, J., concur.