State v. HughesState v. Hughes
COUNSEL FOR APPELLANT: Michael D. Miller, 19½ South Court Street, Athens, Ohio 457011
COUNSEL FOR APPELLEE: C. David Warren, Athens County Prosecuting Attorney, and George Reitmeier, Athens County Assistant Prosecuting Attorney, 1 South Court Street, Athens, Ohio 45701
ABELE, J.
{¶ 1} This is an appeal from an Athens County Common Pleas Court judgment of conviction and sentence. A jury found Andrew Hughes, defendant below and appellant herein, guilty of failing to comply with the order or direction of a police officer in violation of
{¶ 2} Appellant does not assign errors for review pursuant to
FIRST ASSIGNMENT OF ERROR:
“WAS THE DEFENDANT DENIED HIS RIGHT TO A SPEEDY TRIAL UNDER
SECOND ASSIGNMENT OF ERROR:
“WAS THE VERDICT AGAINST APPELLANT SUPPORTED BY INSUFFICIENT EVIDENCE[?]”
THIRD ASSIGNMENT OF ERROR:
“WAS THE GUILTY VERDICT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE[?]”
FOURTH ASSIGNMENT OF ERROR:
“WAS THE DEFENDANT DENIED DUE PROCESS OF LAW WHEN THE COURT ALLOWED A LATE AMENDMENT OF THE CHARGE PRIOR TO TRIAL[?]”
FIFTH ASSIGNMENT OF ERROR:
“WAS THE DEFENDANT DENIED EFFECTIVE ASSISTANCE OF COUNSEL AS GAURANTEED [sic] BY THE
{¶ 3} In the early morning hours of April 18, 2008 someone broke intо the premises at 226 West Washington Street in Athens and attacked the resident, who fought the assailant and called the police. Shortly thereafter, the Athens Police Department notified Lieutenant Ralph Harvey about the incident and provided a description of the assailant‘s vehicle. When Lt. Harvey passed a vehiclе that matched the description, he turned to follow the vehicle and activated his pursuit lights. The
{¶ 4} The Athens County Grand Jury returned an indictment that charged appellant with aggravated burglary and the failure to comply with a police officer‘s order. At the jury trial, the prosecution dismissed the aggravated burglary charge becausе two witnesses did not appear at the trial. After Lt. Harvey testified concerning his version of events in question, the jury returned a guilty verdict on the charge of the failure to comply with the officer‘s order. The trial court sentenced appellant to serve four years in prison. This appeal followed.
I
{¶ 5} In his first assignment of error, aрpellant asserts that he was not brought to trial within the
{¶ 6} Generally, speedy trial rights are not self-executing. Thus, a defendant must raise the issue in the trial court or the issue will be deemed to be waived. See State v. Huber, Clarke App. No. 07-CA-122, 2009-Ohio-1637, at ¶17; State v. Bishop, Vinton App. No. 02CA573, 2003-Ohio-1385, at ¶16. In the case sub judice, because appellant did not raise this issue in the trial court, the issue has been waived. However, becausе appellant also raises this issue in his fifth assignment of error
{¶ 7}
{¶ 8} The prosecution concedes that appellant was incarcerated awaiting trial. Thus, appellant‘s confinеment triggered the triple-count mechanism. Consequently, because appellant was first in police custody on April 18, 2008, he had to be brought to trial by July 17, 2008. The trial court originally scheduled appellant‘s trial on June 26, 2008, well within this time frame. However, a review of the record reveals that several continuances intervened. First, the prоsecution requested a continuance of both the pre-trial and the trial date. The trial court rescheduled the trial for August 26, 2008 and noted in its entry that the speedy trial deadline would be tolled during the continuance.3 The court issued a later continuance due to a conflict with a trial in a different criminal case.
{¶ 9}
{¶ 10} In any event, we believe that even if the second continuance was not charged to appellant, thе speedy trial time would not have expired. We count sixty-nine (69) days from the time of appellant‘s arrest to the first trial date. After tolling
{¶ 11} For these reasons, appellant‘s statutory speedy trial time had not expired and, consequently, trial counsel‘s failure to raise this issue did not prejudice appellant.
{¶ 12} Accordingly, based upon the foregoing reasons we hereby overrule appellant‘s first assignment of error.
II
{¶ 13} In his second “assignment of errоr,” appellant asserts that insufficient evidence supports his conviction. Again, we disagree with appellant.
{¶ 14} When appellate courts review claims regarding the sufficiency of the evidence, the court must look to adequacy of the evidence and whether that evidence, if believed, supports a finding of guilt bеyond a reasonable doubt. State v. Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541; State v. Jenks (1991), 61 Ohio St.3d 259, 273, 574 N.E.2d 492. In other words, after viewing all the evidence, and each inference reasonably drawn therefrom, in a light most favorable to the prosecution, would any rational trier of fact have found all essential elements of the offense beyond a reasonable doubt? State v. Were, 118 Ohio St.3d 448, 890 N.E.2d 263, 2008-Ohio-2762; at ¶132; State v. Hancock, 108 Ohio St.3d 57, 840 N.E.2d 1032, 2006-Ohio-160, at ¶34.
{¶ 15} The failure to comply with a police officer‘s order offense occurs if one operates a motor vehicle to willfully elude or flee a police officer after having received a
{¶ 16} Appellant‘s argues that neither Lt. Harvey nor any other prosecution witness could affirmatively identify appellant as vehicle‘s driver. Although Lt. Harvey was in hot pursuit and arrived at the scеne moments after the accident, and although Lt. Harvey found appellant slumped over in the vehicle, the defense raised the possibility that another person could have been driving the vehicle, was thrown from the vehicle during the crash and thereafter fled the scene. However, in light of the fact that only a few secоnds elapsed before Lt. Harvey arrived at the scene, and in light of the fact that appellant was slumped in the vehicle, we believe that the trier of fact could reasonably infer that appellant was the vehicle‘s driver. Additionally, Athens Police Investigator David Olexa testified that no footprints or other evidencе suggested that any other person was at the scene. Once again, the evidence adduced at trial, if believed, provided a sufficient basis for the trier of fact to conclude that appellant was the vehicle‘s driver.
{¶ 17} Accordingly, based upon the foregoing reasons, we hereby overrule appellant‘s second assignment of error.
III
{¶ 18} In his third assignment of error, appellant asserts that even if sufficient evidence supports his conviction, the verdict is nevertheless against the manifest weight of the evidence. Again, we disagree with appellant.
{¶ 19} When determining whether a criminal conviction is against the manifest weight of the evidence, we “will nоt reverse a conviction where there is substantial evidence upon which the [trier of fact] could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt.” State v. Eskridge (1988), 38 Ohio St.3d 56, 526 N.E.2d 304, paragraph two of the syllabus. “The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.” Martin at 175, 485 N.E.2d 717 (citations omitted). Generally, an appellate court will not reverse a conviction on the grounds that it is against the manifest weight of the evidence unless it is obvious that the trier of fact clearly lost its way and created a manifest miscarriage of justice that requires reversal and a new trial. See State v. Earle (1997), 120 Ohio App.3d 457, 473, 698 N.E.2d 440; State v. Garrow (1995), 103 Ohio App.3d 368, 370-371, 659 N.E.2d 814. Manifest weight arguments typically arise when “competing theories of the case” are presented to a jury, and the jury must choose which argument is more persuasive. See e.g. State v. Cooper, 170 Ohio App.3d 418, 867 N.E.2d 493, 2007-Ohio-1186, at ¶3.
{¶ 20} In the case sub judice, our review of thе record reveals that not only was Lt. Harvey‘s testimony unrebutted, but the testimony of other Athens and Ohio University police officers corroborated Lt. Harvey‘s version of the events, either by recounting a radio transmission from Lt. Harvey that he was in pursuit or, in the case of Officer Johnson, actually witnessing the pursuit. Thus, we are not persuaded that the jury lost its way. Rather, we believe that the record contains substantial competent, credible evidence upon which the trier of fact could reasonably conclude that all of the
{¶ 21} Accordingly, based upon the foregoing reasons, we hereby overrule appellant‘s third assignment of error.
IV
{¶ 22} Appellant‘s fourth assignment of error involves the prosecution‘s amendment of the indictment. Appellant asserts that the amendment of the charge of failing to obey the police officer‘s order from a fourth degree felony to a third degree felony deprived him of due process. Appellee, however, points out that the Grand Jury‘s indictment actually specified that the
{¶ 23} Initially, we note that our review of the transcript reveals that appellant did not object to the indictment‘s amendment. Therefore, appellant waived any alleged error concerning this issue. Second, this amendment did not prejudice the appellant in any manner. Appellant had ample notice concerning the crime charged in the indictment. The language in the body of the indictment correctly set forth the elements of the offense and the degree of the offense. The amendment to the indictment simply corrected a typographical error in the caption. Once again, appellant suffered no
{¶ 24} Accordingly, based upon the foregoing reasons, we hereby overrule appellant‘s fourth assignment of error.
V
{¶ 25} In his fifth assignment of error, appellant asserts that he received ineffective assistance of counsel.
{¶ 26} Our analysis begins with the premise that a criminal defendant has a constitutional right to counsel, including the right to the effective assistance from counsel. McCann v. Richardson (1970), 397 U.S. 759, 770, 25 L.Ed.2d 763, 90 S.Ct. 1441; State v. Lytle (Mar. 10, 1997), Ross App. No. 96CA2182. To establish constitutionally ineffective assistance of counsel, a defendant must show that (1) his counsel‘s performance was deficient, and (2) such deficient performance prejudiced thе defense and deprived the defendant of a fair trial. See Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L.Ed.2d 674, 104 S.Ct. 2052; also, see, State v. Issa (2001), 93 Ohio St.3d 49, 67, 752 N.E.2d 904. It is important to recognize that both prongs of the Strickland test need not be analyzed if the claim can be resolved under just one. See State v. Madrigal (2000), 87 Ohio St.3d 378, 389, 721 N.E.2d 52. Accordingly, if nothing appears in the record to establish prejudice, courts need not address the question of deficient performance. With this standard in mind, we turn to the prejudice рrong of the Strickland test.
{¶ 27} To establish prejudice, a defendant must demonstrate that a reasonable probability exists that, but for counsel‘s errors, the result of the trial would have been
{¶ 28} In the case sub judice, appellant‘s claim of constitutionally ineffective assistance includes a series of arguments that raise many issues that he claims should have been handled differently. We have already considered the speedy trial issue in appellant‘s first assignment of error and the failure to object to the indictment‘s amendment in the fourth assignment of error, and found no merit in those arguments. The remainder of appellant‘s arguments involve various evidentiary issues (e.g. failure to file motions in limine or to make objections), and we likewise find no merit in these arguments. Furthermore, even assuming, arguendo, that trial counsel‘s performаnce was deficient, in light of Lt. Harvey‘s uncontradicted testimony that appellant refused to stop his vehicle when signaled to do so, we cannot conclude that had these various issues been pursued, the outcome of the trial would have been different.
{¶ 29} Accordingly, based on the foregoing reasons, we hereby overrule appellant‘s fifth assignment of error.
{¶ 30} Having considered all of the errors assigned and argued in the appellate brief, we hereby affirm the trial court‘s judgment.
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
The Court finds there were reasonable grounds fоr this appeal.
It is ordered that a special mandate issue out of this Court directing the Athens County Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted, it is continued for a period of sixty days upon the bail previously posted. Thе purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the sixty day period.
The stay will also terminate if appellant fails to file a notiсe of appeal with the Ohio Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to the expiration of said sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to
Harsha, J. & McFarland, J.: Concur in Judgment & Opinion
For the Court
BY:
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.