2005 Ohio 2569 | Ohio Ct. App. | 2005
{¶ 3} The Jimmy proceeded down Route 93, driving in the middle of the roadway. Cars had to veer off the road to avoid getting hit by the vehicle. The Jimmy approached the intersection of Route 93 and Route 619/Turkeyfoot Lake Road, and ran another red traffic light proceeding northbound on Route 93, almost hitting another driver, Joseph DeLauder, who had to drive off the curb and into a ditch to avoid collision. DeLauder later filed a report of this incident with the police.
{¶ 4} The Jimmy then drove through another red light at the intersection with State Street. Officer Tirbovich followed the Jimmy for approximately another one-quarter mile, and then decided to end the pursuit because it was getting too dangerous; cars were being driven off the roadway by the Jimmy, which was weaving in and out of traffic and at times driving at a speed of 90 miles per hour.
{¶ 5} Officer Tirbovich recorded the license plate number located on the back plate of the Jimmy. The number was traced back to an address in Akron, Ohio, and specifically that of Mary Wood. Detective Sergeant Michael Korach assumed the investigation and went out to this address, where he was informed by a neighbor that Mary had gone fishing for the day. Detective Korach did not see a gray Jimmy in the immediate vicinity.
{¶ 6} At that point, Detective Korach received a dispatched phone call from James Lucas, who called in connection with the car chase and gave the detective the home address of the appellant. The information relayed to Detective Korach indicated that the Jimmy belonged to Lucas at one point in time.
{¶ 7} Detective Korach visited appellant's residence. However, no one answered the door, and the gray Jimmy was nowhere to be seen. Neighbors did confirm that appellant in fact lived at that residence and that he did own a gray Jimmy.
{¶ 8} Detective Korach spoke to Mary later, who informed him that her son, Terry Wood, was keeping the truck to which the license plate belonged at his apartment complex; she explained that the truck, a Ford 150 pickup, was inoperable and in the process of being dismantled. Detective Korach also spoke to Terry, who explained that the garage in which he stored the truck did not have doors, so anyone could access the interior. Terry also testified at trial that appellant used to live in that apartment complex, and used to park his motorcycle right next to the truck.
{¶ 9} After obtaining an arrest warrant, the police apprehended appellant and arrested him on July 12, 2004. On July 15, 2004, appellant was charged in the Barberton Municipal Court with one count of failure to comply with order or signal of a police officer, in violation of R.C.
{¶ 10} On July 23, 2004, the Summit County Grand Jury indicted appellant on one count of failure to comply with order or signal of police officer, in violation of R.C.
{¶ 11} The matter proceeded to a jury trial. A jury found appellant guilty of failure to comply, reckless operation, and speeding. The trial court sentenced appellant accordingly. This appeal followed.
{¶ 12} Appellant timely appealed, asserting four assignments of error for review.
{¶ 13} In his first assignment of error, appellant challenges his conviction as being against the manifest weight of the evidence and not being supported by sufficient evidence. This Court disagrees.
{¶ 14} As an initial matter, we observe that sufficiency of the evidence and weight of the evidence are legally distinctive issues. Statev. Thompkins (1997),
{¶ 15} Crim.R. 29(A) provides that a trial court "shall order the entry of a judgment of acquittal * * * if the evidence is insufficient to sustain a conviction of such offense or offenses." A trial court may not grant an acquittal by authority of Crim.R. 29(A) if the record demonstrates that reasonable minds can reach different conclusions as to whether each material element of a crime has been proven beyond a reasonable doubt. State v. Wolfe (1988),
{¶ 16} "While the test for sufficiency requires a determination of whether the [S]tate has met its burden of production at trial, a manifest weight challenge questions whether the [S]tate has met its burden of persuasion." State v. Gulley (Mar. 15, 2000), 9th Dist. No. 19600, citingThompkins,
"an appellate 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 (1986),
This discretionary power should be invoked only in extraordinary circumstances when the evidence presented weighs heavily in favor of the defendant. Id.
{¶ 17} Sufficiency of the evidence is required to take a case to the jury; therefore, a finding that a conviction is supported by the weight of the evidence necessarily includes a finding of sufficiency. State v.Roberts (Sept. 17, 1997), 9th Dist. No. 96CA006462. "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.) Id.
{¶ 18} The fact that the driver of the Jimmy failed to comply with the police officer's orders is not at issue; rather, appellant's arguments go primarily to the issue of identity. Both direct and circumstantial evidence may be employed to establish the identity of a perpetrator.State v. Gorgan (Jan. 10, 1990), 9th Dist. No. 1824, at *3, citing Statev. Scott (1965),
{¶ 19} Several witnesses identified appellant as the driver of the vehicle. At trial, Officer Tirbovich identified appellant, with certainty, as the driver of the Jimmy. Detective Korach noted during cross-examination by defense counsel that he had received information from a former owner of the Jimmy, Lucas, and also testified that Lucas provided him with appellant's address in connection with the speed chase that occurred earlier that day. Detective Korach also testified during cross-examination that when questioned regarding a "fleeing" incident at the time of his arrest, appellant asked the officers whether they had a vehicle in their possession.
{¶ 20} In addition, DeLauder testified that he had cause to believe that appellant was the driver. Appellant's ex-girlfriend, Jamie Jessmer, also testified that appellant had told her sometime in early July that he had outrun police officers and went to Guersney County to escape them, in order to avoid another arrest warrant from Wayne County in an unrelated incident. Jessmer's testimony was corroborated by the fact that appellant was lured from Guersney County and arrested during this investigation. Finally, Terry testified that appellant had access to the license plate stolen from his mother's vehicle, which had been affixed to the chased vehicle.
{¶ 21} From all of this testimony, the jury as the finder of fact was entitled to find that appellant was the driver of the chased vehicle. SeeState v. DeHass (1967),
{¶ 22} Having found that appellant's conviction in not against the manifest weight of the evidence, we also conclude that there was sufficient evidence to support the conviction. See Roberts.
{¶ 23} Appellant's first assignment of error is overruled.
{¶ 24} In his second assignment of error, appellant asserts that the trial court improperly sentenced him. Specifically, appellant complains that the circumstances in this case do not support the imposition of a non-minimum prison term on his failure to comply charge.
{¶ 25} An appellant has the duty to provide a reviewing court with the portions of the record necessary to support his assignment of error. Statev. Johnson, 9th Dist. No. 02CA008193, 2003-Ohio-6814, at ¶ 8; App.R. 9(B). When an appellant fails to provide a complete and proper transcript, a reviewing court will presume the regularity of the proceedings in the trial court. Id. at ¶ 9.
{¶ 26} The docketing statement in this case indicates that the record on appeal would include a full or partial transcript of proceedings. However, the record on appeal does not contain a transcript of the sentencing hearing; nor does it contain an App.R. 9(C) statement. SeeJohnson at ¶ 10. As appellant has failed to provide this Court with the relevant portions of the record to review the trial court's imposition of the sentence, we must presume the regularity of the trial court proceedings and affirm the sentence. See id.
{¶ 27} Appellant's second assignment of error is overruled.
{¶ 28} In his fourth assignment of error, appellant contends that the direct indictment entered by the Summit County Grand Jury should have been dismissed, asserting that the direct indictment program effectively deprived appellant of a preliminary hearing on the charges and thus violated his rights to due process of law and equal protection under the United States and Ohio Constitutions.
{¶ 29} We observe that appellant failed to file a motion to dismiss the charges against him. This Court has previously concluded, "while Crim.R. 5(B) and R.C.
{¶ 30} If an indictment is handed down before a defendant timely and properly takes such action to secure a dismissal, the right to a preliminary hearing is extinguished. Zaffino at ¶ 12, citing State v.Wood (1976),
{¶ 31} Therefore, we find that appellant was properly indicted by the grand jury before any steps were taken by him to secure a dismissal of the charges against him. Consequently, his right to a preliminary hearing was extinguished. See Zaffino at ¶ 17.
{¶ 32} Accordingly, appellant's fourth assignment of error is overruled.
{¶ 33} In his third assignment of error, appellant contends that he was denied effective assistance of counsel, asserting that his trial counsel failed to properly cross-examine two witnesses, and that counsel failed to file a motion to dismiss the charges based on the court's failure to provide him with a preliminary hearing. Appellant's assertions lack merit.
{¶ 34} A criminal defendant is guaranteed a right to the effective assistance of counsel by the
"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
{¶ 35} In demonstrating 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),
{¶ 36} The defendant has the burden of proof, and must overcome the strong presumption that counsel's performance was adequate and that counsel's action might be sound trial strategy. State v. Smith (1985),
{¶ 37} With respect to trial counsel's cross-examination, we observe that trial counsel's decision to cross-examine and the extent of the examination are matters of trial strategy. State v. Likosar, 9th Dist. No. 03CA0063-M, 2004-Ohio-114, at ¶ 26, citing State v. Flors (1987),
{¶ 38} Next, appellant asserts that his counsel was ineffective for not filing a motion to dismiss the indictment based on the failure to provide appellant with a preliminary hearing. First, we note that appellant fails to provide this Court with any applicable legal authority to support his assertions. An appellant bears the burden of affirmatively demonstrating error on appeal, which includes providing citations to applicable authorities in support of arguments presented. App.R. 16(A)(7); Loc.R. 7(A)(7).
{¶ 39} Second, appellant has failed to demonstrate that there would have been a reasonable probability, that, had his counsel filed a motion to dismiss the charges, the charges would have in fact been dismissed. See Bradley, 42 Ohio St.3d at paragraph three of the syllabus. Appellant was arrested on July 12, 2004, and he did not make bond. The first day that appellant could have filed a motion to dismiss the charges for failure to hold a preliminary hearing, pursuant to R.C.
{¶ 40} Thus, we fail to see how appellant was prejudiced by his counsel's failure to file a motion to dismiss the charges for failing to hold a preliminary hearing. Appellant's third assignment of error is overruled.
Judgment affirmed.
The Court finds that 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 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(E). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to appellant.
Exceptions.
Slaby, P.J., Whitmore, J., concur.
