State v. Adams

2023 Ohio 854

Opinion

[Cite as State v. Adams, 2023-Ohio-854.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO : : Appellee : C.A. No. 2022-CA-21 : v. : Trial Court Case No. 21-CR-0777 : LUKE ADAMS : (Criminal Appeal from Common Pleas : Court) Appellant : :

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OPINION

Rendered on March 17, 2023

IAN A. RICHARDSON, Attorney for Appellee

LUCAS W. WILDER, Attorney for Appellant

.............

TUCKER, J.

{¶ 1} Defendant-appellant Luke Adams appeals from his convictions for failure to

comply and receiving stolen property. For the reasons set forth below, we affirm. -2-

I. Facts and Procedural Background

{¶ 2} On the morning of August 6, 2020, Ashlee Drugmand made a police report

regarding a vehicle stolen from her residence. The vehicle, a Ford F-150 pickup truck,

was a company vehicle which Drugmand used for her job as a sales representative.

{¶ 3} That same morning, Springfield Police Department Officer Marcus Lykins

was on routine patrol when he spotted a vehicle matching the description of the stolen

truck. The truck was in the drive-through lane of a fast-food restaurant. Lykins noted

the truck was being driven by a white male wearing a black and white baseball cap.

Lykins ran the license plate of the truck and confirmed it was the stolen vehicle. The

driver looked directly at Lykins and then proceeded to pull through the pickup lane without

obtaining any food. The truck then pulled out of the restaurant lot and onto Main Street.

{¶ 4} Lykins followed and activated his overhead lights and siren. The truck drove

away at a high rate of speed and traveled through an area consisting of both businesses

and residences. When the truck failed to stop at a stop sign, Lykins discontinued the

pursuit because he felt it was unsafe to proceed. Lykins then lost sight of the truck.

{¶ 5} After an alert was issued indicating the truck was being tracked by GPS,

Lykins was able to locate it at a stop light. Lykins pulled his cruiser into the intersection

in front of the truck. At that point, the truck maneuvered around the cruiser and took off

at a high rate of speed. Lykins followed, but even after attaining a speed of 65 miles per

hour, the truck kept pulling away from him.

{¶ 6} A few moments later, when the truck attempted to turn onto a different road,

he lost control; the truck struck a stop sign and then crashed into a building’s raised patio. -3-

The truck stopped with one tire resting on the patio. A portion of the fencing around the

patio was destroyed and attached to the front bumper of the truck. The driver of the truck

exited the vehicle and ran away on foot. Lykins lost sight of the driver when he entered

an area with vegetation.

{¶ 7} Following the collision, police noted that the truck’s airbag had deployed.

They also found a black and white baseball cap in the truck’s cabin. Lykins stated that

the hat matched the baseball cap he had observed on the driver when he first

encountered the truck at the fast-food restaurant. Both the airbag and the hat were sent

for DNA testing. After the testing was concluded, Adams was identified as the major

contributor for the DNA on the airbag and the sole contributor for the DNA on the baseball

cap.

{¶ 8} Adams was indicted on one count of receiving stolen property in violation of

R.C. 2913.51(A) and one count of failure to comply in violation of R.C. 2921.333(B) and

(C)(5). A jury trial was conducted in February 2022, and Adams was convicted on both

counts. The trial court sentenced Adams to prison terms of 36 months for the failure to

comply and 12 months for receiving stolen property. Both sentences were ordered to

run consecutively and consecutive to a 681-day prison term for violation of post-release

control in an unrelated case.

{¶ 9} Adams appeals.

II. Sufficiency and Manifest Weight of the Evidence

{¶ 10} The first assignment of error asserted by Adams states: -4-

THE JURY’S VERDICTS WERE NOT SUPPORTED BY SUFFICIENT

EVIDENCE AND WERE AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE.

{¶ 11} Adams contends the State did not provide evidence establishing that he

was the driver of the stolen vehicle. He further claims that, even assuming he had been

the driver of the vehicle, the State failed to prove he had caused a substantial risk of

serious physical harm to persons or property.

{¶ 12} “A sufficiency of the evidence argument disputes whether the State has

presented adequate evidence on each element of the offense to allow the case to go to

the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery

No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 678

N.E.2d 541 (1997). In such situations, we apply the test from State v. Jenks, 61 Ohio

St.3d 259, 574 N.E.2d 492 (1991), which states:

An appellate court's function when reviewing the sufficiency of the evidence

to support a criminal conviction is to examine the evidence admitted at trial

to determine whether such evidence, if believed, would convince the

average mind of the defendant's guilt beyond a reasonable doubt. The

relevant inquiry is whether, after viewing the evidence in a light most

favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime proven beyond a reasonable doubt.

(Citation omitted.) Id. at paragraph two of the syllabus.

{¶ 13} In contrast, “[a] weight of the evidence argument challenges the believability -5-

of the evidence and asks which of the competing inferences suggested by the evidence

is more believable or persuasive.” (Citation omitted.) Wilson at ¶ 12. In this situation, the

“ ‘court reviewing the entire record, weighs the evidence and all reasonable inferences,

considers the credibility of witnesses and determines whether in resolving conflicts in the

evidence, the jury clearly lost its way and created such a manifest miscarriage of justice

that the conviction must be reversed and a new trial ordered. 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.’ ” Thompkins at 387, quoting State v. Martin, 20

Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

{¶ 14} “Although sufficiency and manifest weight are different legal concepts,

manifest weight may subsume sufficiency in conducting the analysis; that is, a finding that

a conviction is supported by the manifest weight of the evidence necessarily includes a

finding of sufficiency.” (Citations omitted.) State v. McCrary, 10th Dist. Franklin No. 10AP-

881, 2011-Ohio-3161, ¶ 11. Accord State v. Winbush, 2017-Ohio-696, 85 N.E.3d 501,

¶ 58 (2d Dist.); State v. Putman-Albright, 2d Dist. Montgomery Nos. 26679, 2016-Ohio-

319, ¶ 19. As a result, “a determination that a conviction is supported by the weight of

the evidence will also be dispositive of the issue of sufficiency.” (Citations omitted.) State

v. Braxton, 10th Dist. Franklin No. 04AP-725, 2005-Ohio-2198, ¶ 15.

{¶ 15} “Because the factfinder * * * has the opportunity to see and hear the

witnesses, the cautious exercise of the discretionary power of a court of appeals to find

that a judgment is against the manifest weight of the evidence requires that substantial

deference be extended to the factfinder's determinations of credibility. The decision -6-

whether, and to what extent, to credit the testimony of particular witnesses is within the

peculiar competence of the factfinder, who has seen and heard the witness.” State v.

Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997).

{¶ 16} Adams was convicted of violating R.C. 2913.51(A), which states that “[n]o

person shall receive, retain, or dispose of property of another knowing or having

reasonable cause to believe that the property has been obtained through commission of

a theft offense.” He was also convicted of failure to comply in violation of R.C. 2921.331.

That statute states, in pertinent part, that “[n]o 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.” R.C. 2921.331(B). A

violation of the statute constitutes a felony of the third degree when “[t]he operation of the

motor vehicle by the offender was a proximate cause of serious physical harm to persons

or property [or] [t]he operation of the motor vehicle by the offender caused a substantial

risk of serious physical harm to persons or property.” R.C. 2921.331(C)(5)(a)(i) and (ii).

{¶ 17} “Serious physical harm to persons” includes any of the following:

(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 -7-

intractable pain.

R.C. 2901.01(5).

{¶ 18} “Serious physical harm to property” is defined as “any physical harm to

property” that:

(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.

R.C. 2901.01(A)(6)

{¶ 19} In this case, the evidence demonstrated that Adams matched Lykins’

description of the person driving the stolen vehicle during the pursuits. Significantly,

Adams’ DNA was on the truck’s airbag and the black and white baseball cap found inside

the truck cab. The evidence demonstrated the truck did not belong to Adams and that

he had no legitimate connection to, or reason for being in, that vehicle.

{¶ 20} The evidence also demonstrated that Lykins had activated both his

overhead lights and siren when he initially pulled his cruiser behind the truck. The driver

of the truck looked directly at Lykins before driving off at a high rate of speed. The driver

did not stop despite being pursued. During the pursuit, the truck was traveling in an area

Lykins described as a mix of residential and business. Lykins stated that there was other

traffic on the road. Lykins terminated the pursuit after the truck ran a stop sign and he

determined the truck driver posed a danger to the public. -8-

{¶ 21} At the onset of the second pursuit, Lykins pulled his cruiser into the

intersection where the truck was stopped at a red light. Lykins activated his overhead

lights, but the truck drove around him and began to drive away at speeds exceeding 65

miles per hour. The second pursuit continued until the driver of the truck lost control,

collided with a stop sign, and ultimately ran onto an elevated fenced patio. The evidence

demonstrated that a substantial portion of the fencing surrounding the patio was

destroyed and that the patio contained seating for people.

{¶ 22} Based upon the evidence in this record, we cannot say the jury lost its way

in concluding Adams had committed the charged offenses. There was competent,

credible evidence presented to establish that the truck was stolen, that Adams was the

operator of the truck, and that his actions created a substantial risk of serious physical

harm to persons and property. Thus, we conclude his claim that the convictions were

against the weight of the evidence lacks merit. As a result, there was necessarily

sufficient evidence to support the convictions. Accordingly, the first assignment of error

is overruled.

III. Expert Testimony

{¶ 23} The second assignment of error is as follows:

ADAMS WAS DENIED HIS RIGHTS OF DUE PROCESS AND

CONFRONTATION WHEN THE TRIAL COURT ALLOWED AN EXPERT

WITNESS TO TESTIFY ABOUT DNA TESTS NOT PERFORMED BY HER.

{¶ 24} Relevant to this assignment of error, the State presented the testimony of -9-

forensic scientist Allison Mansius. Mansius testified that she was employed by the Ohio

Bureau of Criminal Investigation (BCI) and that she had compared DNA samples drawn

from the airbag and baseball cap against a DNA sample drawn from a buccal swab

performed upon Adams. She then produced a report stating that Adams’ DNA was a

match to the DNA found on the two pieces of evidence recovered from the stolen truck.

However, Mansius also testified that the DNA sample from the airbag and the baseball

cap had been prepared by a different BCI forensic scientist. The State did not present

the testimony of the scientist who prepared the DNA samples, and there was no indication

the scientist had been unavailable to testify.

{¶ 25} Adams claims his constitutional right to confront witnesses against him was

violated when the trial court permitted the State to introduce Mansius’ testimony without

presenting the in-court testimony of the lab employee who had prepared the DNA

samples drawn from the airbag and baseball cap. In support, he cites Bullcoming v. New

Mexico, 564 U.S. 647, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011), which he asserts

prohibits an expert from testifying about test results created by another expert’s testing

and analysis.

{¶ 26} In Bullcoming, a report on the blood alcohol concentration of a defendant

accused of driving while intoxicated was prepared by a forensic analyst. The prosecutor

presented the report through the testimony of another analyst who was familiar with the

lab's testing procedures, but who had not personally performed or observed the test of

the defendant's blood sample. The Supreme Court held that Bullcoming had a right to

confront the forensic laboratory analyst who had certified a lab report indicating that his -10-

blood-alcohol concentration exceeded the legal limit. Thus, the court concluded that the

testimony of the surrogate analyst violated the confrontation clause.

{¶ 27} However, in a more recent case, the United States Supreme Court held that

the Confrontation Clause had not been violated when a forensic specialist testified she

had matched a DNA profile that she had not prepared to a sample obtained from the

defendant. See Williams v. Illinois, 567 U.S. 50, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012).

In State v. Barnett, 2d Dist. Montgomery No. 27660, 2018-Ohio-4133, this court discussed

Williams, stating:

The Sixth Amendment's Confrontation Clause provides that “[i]n all

criminal prosecutions, the accused shall enjoy the right * * * to be confronted

with the witnesses against him[.]” The United States Supreme Court has

interpreted this to mean that the admission of an out-of-court statement of

a witness who does not appear at trial is prohibited by the Confrontation

Clause if the statement is testimonial, unless the witness is unavailable and

the defendant had a prior opportunity to cross-examine the witness.

Crawford v. Washington, 541 U.S. 36, 53-54, 68, 124 S.Ct. 1354, 158

L.Ed.2d 177 (2004); State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019,

9 N.E.3d 930, ¶ 34. However, “the Confrontation Clause ‘does not bar the

use of testimonial statements for purposes other than establishing the truth

of the matter asserted.’ ” State v. Ali, 2d Dist. Clark No. 2014 CA 59, 2015-

Ohio-1472, ¶ 17, quoting Crawford at 60. “[T]he core class of testimonial

statements includes statements ‘that were made under circumstances -11-

which would lead an objective witness reasonably to believe that the

statement would be available for use at a later trial.’ ” State v. Syx, 190 Ohio

App.3d 845, 2010-Ohio-5880, 944 N.E.2d 722, ¶ 23 (2d Dist.), quoting

Crawford at 52.

* * * In Williams, a forensic expert testified that a DNA profile was

obtained from semen on a rape victim's vaginal swabs and that the DNA

profile from the vaginal swabs matched a state-police-lab DNA profile that

was generated from a sample of the defendant's blood. Id. at 62. The

expert further testified that the DNA profile from the vaginal swabs was

prepared by an outside laboratory. Id. On cross-examination, the expert

confirmed that she did not conduct or observe any of the DNA testing on

the vaginal swabs and that her testimony relied on the DNA profile produced

by the outside laboratory. Id. In light of that fact, the defendant argued

his confrontation rights were violated when the expert testified about a DNA

profile that the expert had not prepared. Id. at 62-63. The report from the

outside laboratory was not admitted into evidence, read during trial, or

shown to the factfinder. Id. at 62.

The Court in Williams held that the expert's testimony did not violate

the Confrontation Clause “because that provision has no application to out-

of-court statements that are not offered to prove the truth of the matter

asserted.” Id. at 57-58; State v. Keck, 137 Ohio St.3d 550, 2013-Ohio-

5160, 1 N.E.3d 403, ¶ 13. The Court explained that “[w]hen an expert -12-

testifies for the prosecution in a criminal case, the defendant has the

opportunity to cross-examine the expert about any statements that are

offered for their truth. Out-of-court statements that are related by the

expert solely for the purpose of explaining the assumptions on which that

opinion rests are not offered for their truth and thus fall outside the scope of

the Confrontation Clause.” Williams at 58; Keck at ¶ 13.

Id. at ¶ 54-56.

{¶ 28} We conclude that this case is closer to the facts in Williams than it is to the

facts in Bullcoming. Like the expert testimony in Williams, Mansius provided the

testimony and report linking the sample DNA evidence from the airbag and cap to the

known DNA profile of Adams. As in Williams, the DNA profiles pulled from the airbag

and cap were not admitted into evidence but were used by Mansius as an assumption

upon which her conclusions were based. And like the State’s expert who performed the

DNA comparison in Williams, Mansius' opinion was subject to cross-examination

concerning the underlying assumptions for her opinions and conclusions. Finally, like

the outside laboratory technicians in Williams, the BCI analyst who performed the DNA

profile of the airbag and cap swabs here would not have necessarily known what the

consequences of the work would be—whether it would lead to incriminating or

exonerating evidence.

{¶ 29} Under these circumstances, we find Mansius’ testimony was not offered for

the truth of the scientific conclusions reached by another analyst in the forensic

laboratory. She provided no testimony during her direct examination regarding the results -13-

of the DNA profiles created by the other analyst, nor did she offer an opinion regarding

the scientific accuracy of those results. In addition, there is nothing in the record to

suggest any report generated by the other BCI analyst was published to the jury during

Mansius’ testimony.

{¶ 30} We conclude that the trial court did not violate Adams' constitutional right to

confrontation by permitting the State to present Mansius’ testimony. Therefore, we

overrule the second assignment of error.

IV. Jury Instruction

{¶ 31} Adams’ third assignment of error states:

THE TRIAL COURT ERRED IN GIVING A JURY INSTRUCTION WHICH

INFRINGED ON ADAMS’ 5TH AMENDMENT RIGHT NOT TO TESTIFY.

{¶ 32} Adams contends the trial court erred in instructing the jury. Specifically, he

claims the court violated his constitutional rights when it provided the following instruction

to the jury:

The unexplained possession by the defendant of the recently stolen

property may give rise to a permissive inference from which you may

conclude, beyond a reasonable doubt, that the defendant is guilty of

receiving stolen property.

{¶ 33} Adams asserts that this instruction improperly infringed upon his Fifth

Amendment right not to testify because it “required him to give a credible explanation of

his possession of the property and if he did not, the jury could infer his guilt.” Both parties -14-

note Adams did not object to the instruction; thus, we are limited to a plain error review.

{¶ 34} Both the Supreme Court of the United States and the Ohio Supreme Court

have held that an inference of guilty knowledge may be drawn from the fact of unexplained

possession of recently stolen property. State v. Arthur, 42 Ohio St.2d 67, 325 N.E.2d

888 (1975), citing Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380

(1973). Further, the Barnes court rejected the claim that such a jury instruction infringes

upon the privilege against self-incrimination noting that, as in this case, the trial court

specifically instructed the jury that the defendant had a constitutional right not to take the

witness stand. That court further rejected the claim that the jury instruction violated due

process.

{¶ 35} Because the above-cited instruction comports with the instruction approved

in Barnes, we find no error, plain or otherwise. Accordingly, the third assignment of error

V. Conclusion

{¶ 36} All of Adams’ assignments of error being overruled, the judgment of the trial

court is affirmed.

WELBAUM, P.J. and HUFFMAN, J., concur.