STATE OF OHIO, Plaintiff-Appellee, vs. SCOTTY R. MCDONALD, Defendant-Appellant.
Case No. 11CA1
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTY
DATE JOURNALIZED: 3-29-12
2012-Ohio-1528
APPEARANCES:
COUNSEL FOR APPELLANT: James D. Owen and Todd A. Long, 5354 North High Street, Columbus, Ohio 43214
COUNSEL FOR APPELLEE: J.B. Collier, Jr., Lawrence County Prosecuting Attorney, and Brigham M. Anderson, Lawrence County Assistant Prosecuting Attorney, Lawrence County Courthouse, 111 South Fourth Street, Ironton, Ohio 45638-1521
CRIMINAL APPEAL FROM COMMON PLEAS COURT
ABELE, P.J.
{¶ 1} This is an appeal from a Lawrence County Common Pleas Court judgment of conviction and sentence. A jury found Scotty R. McDonald, defendant below and appellant herein, guilty of failure to comply with the order of a police officer and, in doing so, causing a substantial risk of harm to persons or property, in violation of
{¶ 2} Appellant assigns the following errors for review:
“THE VERDICT FORM AND THE RESULTING JUDGMENT ENTRY WERE INSUFFICIENT UNDER
OHIO REVISED CODE SECTION 2945.75 TO SUPPORT MCDONALD’S CONVICTION AND SENTENCE FOR FAILURE TO COMPLY WITH AN ORDER OR SIGNAL OF A POLICE OFFICER, AS A FELONY OF THE THIRD DEGREE.”
SECOND ASSIGNMENT OF ERROR:
“THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT INSTRUCTED THE JURY ON RECKLESSNESS, WHICH RESULTED IN A SUBSTANTIAL AND INJURIOUS AFFECT ON MCDONALD’S RIGHTS.”
THIRD ASSIGNMENT OF ERROR:
“THE TRIAL COURT COMMITTED PLAIN ERROR IN PERMITTING THE STATE TO ELICIT TESTIMONY ABOUT MCDONALD’S POST-ARREST SILENCE IN VIOLATION OF HIS FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION AND BY ALLOWING THE STATE TO COMMENT ON THE SILENCE IN CLOSING.”
FOURTH ASSIGNMENT OF ERROR:
“THE PROSECUTOR COMMITTED PROSECUTORIAL MISCONDUCT WHEN HE APPEALED TO THE JURY TO ACT AS THE COMMUNITY CONSCIENCE IN VIOLATION OF MCDONALD’S RIGHT TO A FAIR TRIAL.”
FIFTH ASSIGNMENT OF ERROR:
“MCDONALD WAS DEPRIVED OF HIS RIGHT TO A FAIR TRIAL BY INEFFECTIVE ASSISTANCE OF COUNSEL.”
SIXTH ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED IN OVERRULING DEFENDANT’S MOTION FOR A JUDGMENT OF ACQUITTAL BECAUSE THE ELEMENTS OF THE OFFENSE HAD NOT BEEN PROVEN.”
{¶ 4} Eventually, Sgt. Runyon caught up to the vehicle at the Coal Grove off-ramp, but the vehicle did not stop. Instead, the driver ran a stop sign, as well as several red lights. Sgt. Runyon continued pursuit, at approximately 85 miles per hour, into Ironton. At some point, the vehicle blew a tire and came tо a stop. Sgt. Runyon arrested appellant and transported him to the Ironton Police Department. A breath test revealed a 0.163 alcohol content.
{¶ 5} On October 25, 2010, the Lawrence County Grand Jury returned an indictment that charged appellant with the aforementioned offense. At the jury trial, Sgt. Runyon testified to chasing appellant through Ironton at a speed of 85 miles per hоur. He told the jury that the chase gave him reason for “alarm” as appellant was approaching an establishment named “Shenanigans,” where there “appeared to be five or six people standing out on the sidewalk.” Sgt. Runyon stated that he activated another siren on his cruiser to warn those people.
{¶ 6} At the conclusion of the trial, the jury returned a guilty verdict and the trial court sentenced appellant to serve four years in prison. This appeal followed.
I
{¶ 7} In his first assignment of error, appellant asserts that the verdict against him is
{¶ 8} Appellant cites State v. Schwable, 2009-Ohio-6523, Henry App. No. 7-09-03, 2009-Ohio-6523, at ¶¶20-22, wherein the Third District held that a verdict that contained the “substantial risk” language of
{¶ 9} In short, it is not the element of “willfully” fleeing or eluding that elevates the crime from a first degree misdemeanor to a third degree felony but, rather, the fact that the defendant is causing a substantial risk of physical harm to person/property. Because that language from the statute was included in the jury verdict, we conclude that verdict complied with
{¶ 10} Accordingly, we hereby overrule appellant’s first assignment of error.
II
{¶ 11} Appellant’s second assignment of error involves the jury instructions. In particular, appellant cites the trial court’s definition for a reckless mental state when, as noted above, willfulness is the mens rea required for commissiоn of this particular offense. Appellant concedes, however, that no objection was lodged to the instruction, but asserts that we should find plain error.
{¶ 13} Although it is unclear why a definition for recklessness was included in the jury instructions, we conclude that it did not affect a substantial right or inflict a miscarriage of justice. The trial court gave the definition for recklessness, but did not instruct the jury that it should apply that definition and determine whether appellant behaved recklessly. The court did, in fact, correctly define “willfully” for the jury and, as the following portion of the transcript reveals, instructed the jury to apply that particular mens rea in reaching its verdict:
“The defendant is charged in Count One with failing to comply with an order or signal of a police officer. Before you can find the defendant guilty, you must find beyond a reasonable dоubt that Scotty R. McDonald . . . did operate a motor vehicle so to willfully elude or flee a police officer after receiving a visible or audible signal from a police officer to bring his motor vehicle to a stop and the operation of said motor vehicle caused a substantial risk of serious physical harm to persons or property.” (Emphasis added.)
{¶ 14} In sum, аlthough the trial court did define recklessness for the trier of fact, the court actually instructed the jury to determine if appellant had acted willfully. The court did not ask the jury to determine if appellant behaved recklessly. Thus, any negative impact from the
{¶ 15} Accordingly we hereby overrule appellant’s second assignment of error.
III
{¶ 16} Appellant’s third assignment of error involves Officer Runyon’s testimony, as well as comments from the assistant prosecutor during closing argument, that appellant claims violated his Fifth Amendment rights. The first such instance involves the colloquy between Sgt. Runyon and the prosecution:
“Q. * * * Did you arrest him right away?
A. Yes I did.
Q. Okay, did you notice anything else about him when you arrested him?
A. Yes, I did. I smelt the odor of what seemed to be an alcoholic beverage coming off his person and asked him if he had been drinking which he just kind of shrugged his shoulders and mumbled, didn’t want to comply or answer any questions for me.” (Emphasis added.)
{¶ 17} Appellant argues that this answer constitutes an impermissible comment on appellant’s exercise of the constitutional right to remain silent and this constitutes plаin error. The prosecution counters that it is unclear when appellant was arrested and whether Sgt. Runyon actually referred to appellant’s post-arrest silence.
{¶ 18} We believe that the transcript reveals that appellant was arrested “right away” after he exited his vehicle. Nevertheless, the precise timing of appellant’s arrest is largely irrelevant as the Ohio Supreme Court has held that evidence of pre-arrest silence is generally
{¶ 19} We also find no merit to appellant’s arguments concerning alleged impropеr comments made during the prosecution’s closing argument. During cross-examination, Sgt. Runyon was asked how he could be sure that appellant saw his “signal” to stop. When he was asked if he was one hundred percent sure appellant had seen the signal, Sgt. Runyon demurred. During closing argument, the prosecution alluded to this testimony with the following comment:
“Now you heard [defense counsel] ask Offiсer Runyon, were you a hundred percent sure that [appellant] saw and heard your siren? The Officers said well, I’m not a hundred percent sure, I can’t tell for sure, he never said that he did it, that he heard it.” (Emphasis added.)
{¶ 20} To begin, we are unsure whether this is a comment on appellant’s silence or a mischaracterization of the testimony altogether. Although we located that pоrtion of the cross-examination when Sgt. Runyon admitted to not being one hundred percent sure that appellant heard the siren, we cannot find any testimony where Runyon said appellant never said that he heard it. Indeed, the actual testimony of Sgt. Runyon is that he simply “assume[d] appellant heard the signal.” We also believe that common sense does appear to support Runyon’s view of the matters.
{¶ 21} Moreover, appellant has not persuaded us that any of this caused appellant prejudice.
{¶ 22} For these reasons, we hereby overrule appellant’s third assignment of error.
IV
{¶ 23} In his fourth assignment of error, appellant argues that a prosecution comment in its closing argument constitutes prosecutorial misconduct. Once again because appellant did not object to the comment he has waived all but plain error.
{¶ 24} The standard generally aрplied to evaluate a prosecutorial misconduct claim is whether the remarks were improper, and, if so, whether they prejudicially affected the accused’s substantial rights. State v. Lang, 129 Ohio St.3d 512, 954 N.E.2d 596, 2011-Ohio-4215, at ¶155; State v. Smith (1984), 14 Ohio St.3d 13, 14, 470 N.E.2d 883. The touchstone of analysis is the fairness of the trial, not culpability of the prosecutor. Lang, supra at ¶155; State v. Trimble, 122 Ohio St.3d 297, 911 N.E.2d 242, 2009-Ohio-2961, at ¶200.
{¶ 25} In the case sub judice, the alleged improper remark is as follows:
“And we ask when you retire to that Jury Room that you take that jury form and you tell the defendant that you can’t do this in our county. You can’t drive in excess of eighty miles per hour and run through stop signs and run through red lights in order to get away from a police officer because you’re drunk.”
Appellant argues that this is the sort of “send a message” argument that this Court has previously looked askance. See e.g. State v. Smith, Highland No. 09CA29, 2010-Ohio-4507, at ¶68; State v. Turner, Scioto App. No. 08CA3234, 2009-Ohio-3114, at ¶47. As we noted in Smith, these sorts of arguments “typically rely on community outrage and invite the jury to render a verdict based
{¶ 26} Further, claims of prosecutorial misconduct must also be examined in the context of the entire trial. State v. Burns, Stark App. No. 2010CA279, 2011-Ohio-815, at ¶21; State v. Dyer, Scioto App. No. 07CA3163, 2008-Ohio-2711, at ¶34.
{¶ 27} Thus, in the case sub judice, appellant has not persuaded us that the prosecution’s remarks were impermissible, let alone reach the level of plain error.
{¶ 28} For all these reasons, we hereby overrule appellant’s fоurth assignment of error.
V
{¶ 29} Appellant’s fifth assignment of error asserts that his conviction must be reversed because he received constitutionally ineffective assistance from trial counsel.
{¶ 30} Our analysis begins with the settled premise that a criminal defendant has a constitutional right to counsel, and this right includes the right to effective assistance from counsel. McMann v. Richardson (1970), 397 U.S. 759, 771, 25 L.Ed.2d 763, 90 S.Ct. 1441; also see State v. Pierce, Meigs App. No. 10CA10, 2011-Ohio-5353, at ¶18. To establish a claim of ineffective assistance of counsel, a defendant must show that (1) his counsel’s performance was deficient, and (2) such deficient performance prejudiced the defense and deprived him of a fair trial. See e.g. Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L.Ed.2d 674, 104 S.Ct. 2052; also see State v. Perez, 124 Ohio St.3d 122, 920 N.E.2d 104, 2009–Ohio–6179, at ¶200. However, both prongs of the Strickland test need not be analyzed if a claim can be resolved
{¶ 31} Appellant offers two arguments to support his claim that trial counsel’s representation was constitutionally ineffective. First, he argues that counsel should have objected to a number of the issues that we previously reviewed under the plain error standard. As we noted in our review of those issues, however, appellant has not persuaded us that any error in fact occurred, let alone plain error. Appellant also claims that counsel should have objected when the prosecution argued that appellant should have heard the signal to stop. He does not, however, explain why that argument was objectionable and its impropriety is not obvious to this Court.
{¶ 32} Appellant’s other argument is that trial counsel did not present any evidence in appellant’s defense. Appellant, however, offers nothing to prove the existence of any relevant evidence to offer in his defense. Prejudice, for purposes of the second prong of the Strickland test, must be affirmatively shown and will not be presumed. See e.g. Saultz; State v. Clark, Pike App. No. 02CA684, 2003–Ohio–1707, at ¶ 22; State v. Tucker (Apr. 2, 2002), Ross App. No. 01 CA2592. Here, appellant must make some showing that relevant and probative evidence
{¶ 33} For these reasons, we are not persuaded trial cоunsel erred in his representation, nor are we persuaded that any such error, even if it arguably existed, prejudiced the defense.
{¶ 34} Accordingly, for these reasons, we hereby overrule appellant’s fifth assignment of error.
VI
{¶ 35} Appellant asserts in his sixth assignment of error that the trial court erred by denying a
{¶ 36} Generally, the standard used to review a
{¶ 38} Appellant also cites Sgt. Runyon’s testimony that he could not be one hundred percent certain that appellant heard the signals to stop his vehicle and cites that as proof that he should not have been convicted. However, Sgt. Runyon testified he activated his lights and siren during the entire pursuit. The pursuit also occurred “in the middle of the night” which again, common sense would tell us that it would be exceedingly difficult for appellant not to have seen the lights behind him. This is particularly true in view of the fact that Sgt. Runyon testified that he caught up with appellant at the Coal Grove “on-ramp” on Route 52. In any case, we believe that sufficient evidence did exist to give the case to the jury and that the trial court did not err when it overruled appellant’s
{¶ 39} Having considered all of the errors assigned and argued we hereby affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and appellee to recover of appellant the costs herein taxed.
It is ordered that a special mandate issue out of this Court directing the Lawrence 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 previоusly posted. The 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 notice 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 Rule 27 of the Rules of Appellate Procedurе.
Kline, J. & McFarland, J.: Concur in Judgment & Opinion
For the Court
BY:
Peter B. Abele
Presiding 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.