State v. Avery

Opinion

[Cite as State v. Avery, 2026-Ohio-2632.]

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

STATE OF OHIO : : C.A. No. 2025-CA-51 Appellee : : Trial Court Case No. 25-CR-033 v. : : (Criminal Appeal from Common Pleas EDWIN ARTHUR AVERY : Court) : Appellant : FINAL JUDGMENT ENTRY & : OPINION

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Pursuant to the opinion of this court rendered on July 10, 2026, the judgment of the

trial court is affirmed.

Costs to be paid as stated in App.R. 24.

Pursuant to Ohio App.R. 30(A), the clerk of the court of appeals shall immediately

send a copy of the court’s ruling to each party and note that action on the docket.

Additionally, pursuant to App.R. 27, the clerk of the court of appeals shall send a certified

copy of this judgment, which constitutes a mandate, to the clerk of the trial court and note

the service on the appellate docket.

For the court,

ROBERT G. HANSEMAN, JUDGE

LEWIS, P.J., and HUFFMAN, J., concur. OPINION CLARK C.A. No. 2025-CA-51

S. ADELE SHANK, Attorney for Appellant JOHN M. LINTZ, Attorney for Appellee

HANSEMAN, J.

{¶ 1} Appellant Edwin Arthur Avery appeals from his conviction in the Clark County

Common Pleas Court after a jury found him guilty of failure to comply with an order or signal

of a police officer. In support of his appeal, Avery contends that his conviction was not

supported by sufficient evidence and was against the manifest weight of the evidence. Avery

also contends that his trial counsel provided ineffective assistance during closing argument

by conceding his guilt and focusing solely on the issue of whether a felony-enhancing

provision of the failure-to-comply offense was proven by the evidence. For the reasons

outlined below, we disagree with Avery’s claims and affirm the judgment of the trial court.

Facts and Course of Proceedings

{¶ 2} On January 21, 2025, a Clark County grand jury returned an indictment charging

Avery with one third-degree felony count of failure to comply with an order or signal of a

police officer in violation of R.C. 2921.331(B) and (C)(5)(a)(ii). Avery pleaded not guilty to

the charge, and the matter proceeded to a jury trial on July 9, 2025. Deputy Ashlie Walter of

the Champaign County Sheriff’s Office was the only witness to testify at Avery’s trial. In

addition to Walter’s testimony, the State presented video footage recorded from Walter’s

police cruiser camera and body camera. The following is a summary of the evidence that

was presented at trial.

{¶ 3} On the night of December 12, 2024, Walter was employed by the Springfield

Police Division. She was dispatched to 801 Pleasant Street, the address of a local bar, on

2 the report of an individual with multiple warrants being present in the area. Walter and two

fellow officers reviewed security video footage from the bar showing the individual in

question, Avery, entering a blue Honda Pilot. The officers exited the bar and observed the

blue Honda Pilot parked nearby on Central Avenue. Walter pulled her police cruiser behind

the blue Honda Pilot and gave several orders for Avery to roll his window down and to stick

his hands outside of the window. After approximately three minutes of Walter giving those

orders, Avery sped away. Walter activated the siren on her police cruiser and gave chase.

{¶ 4} As Walter pursued Avery in her police cruiser, Avery was traveling

approximately 51 mph in a 25-mph zone under wet, slick conditions. In addition to noting

Avery’s speeding offense, Walter saw Avery run a red light, drive in the opposite lane of

travel, and commit multiple stop-sign violations. Three minutes after fleeing from Walter’s

attempted stop, Avery lost control of his vehicle and crashed between a telephone pole and

a chain-linked fence. Avery was transported from the crash scene to the hospital and later

charged with failure to comply with an order or signal of a police officer.

{¶ 5} During closing arguments, Avery’s trial counsel conceded that Avery had

willfully fled from the police and committed fourth-degree felony failure to comply with an

order or signal of a police officer. However, Avery’s counsel argued that, in committing the

offense, Avery did not cause a substantial risk of serious physical harm so as to elevate the

offense to a third-degree felony in accordance with R.C. 2921.331(C)(5)(a)(ii). The jury

disagreed and found Avery guilty as charged. The trial court sentenced Avery to 48 months

in prison and ordered him to serve his sentence consecutively with his prison sentence in

Clark C.P. No. 24 CR 729A.

3 {¶ 6} Avery now appeals from his conviction, raising three assignments of error for

review. Because they are interrelated, we address Avery’s first and second assignments of

error together.

First and Second Assignments of Error

{¶ 7} Under his first and second assignments of error, Avery contends that his

conviction for failure to comply with an order or signal of a police officer was not supported

by sufficient evidence and was against the manifest weight of the evidence. We disagree.

Standards of Review

{¶ 8} “When a defendant challenges the sufficiency of the evidence, [he] is arguing

that the State presented inadequate evidence on an element of the offense to sustain the

verdict as a matter of law.” State v. Matthews, 2018-Ohio-2424, ¶ 7 (2d Dist.), citing State v.

Hawn, 138 Ohio App.3d 449, 471 (2d Dist. 2000). “‘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.’” Id., quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of

the syllabus. “The verdict will not be disturbed unless the appellate court finds that

reasonable minds could not reach the conclusion reached by the trier-of-fact.” State v.

Dennis, 79 Ohio St.3d 421, 430 (1997), citing Jenks at 273.

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

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

believable or persuasive.” State v. Wilson, 2009-Ohio-525, ¶ 12 (2d Dist.), citing State v.

4 Hufnagel, 1996 WL 501470 (2d Dist. Sept. 6, 1996). When evaluating whether a conviction

was against the manifest weight of the evidence, the appellate court must review the entire

record, weigh the evidence and all reasonable inferences, consider witness credibility, 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. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting State v.

Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1983). A judgment of conviction should be

reversed as being against the manifest weight of the evidence only in exceptional

circumstances. Martin at 175.

Law and Analysis

{¶ 10} Avery was convicted of failure to comply with an order or signal of a police

officer in violation of R.C. 2921.331(B), which required the State to prove that Avery was

“operat[ing] 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). Because Avery was also charged under R.C. 2921.331(C)(5)(a)(ii)—a

provision that enhances the offense to a third-degree felony—the State was also required to

prove that “[t]he operation of the motor vehicle by the offender caused a substantial risk of

serious physical harm to persons or property.”

{¶ 11} In this case, Avery claims that the State failed to present evidence establishing

that a “police officer,” as defined under R.C. 2921.331, issued a visible or audible signal for

him to stop his vehicle. Under R.C. 2921.331(F)(2), the term “police officer” has the same

meaning as in R.C. 4511.01. Under R.C. 4511.01(Z), “police officer” means “every officer

authorized to direct or regulate traffic, or to make arrests for violations of traffic regulations.”

5 {¶ 12} We stress that Avery is not claiming that the State failed to present evidence

establishing that he willfully fled from Walter and ignored Walter’s police sirens as she

pursued him in her police cruiser. Indeed, the video evidence clearly established those

events. Instead, Avery claims that Walter is not a “police officer” as that term is used in

R.C. 2921.331(B). Avery asserts that every element of the failure to comply offense depends

on proof beyond a reasonable doubt that the visible or audible signal for him to stop was

given by an officer authorized to direct or regulate traffic or to make arrests for traffic

violations. Because Walter did not specifically testify that she or any of the other officers at

the scene were authorized to carry out those functions, Walter claims that the State failed to

establish that he willfully fled or eluded a “police officer.”

{¶ 13} In State v. Schwable, 2009-Ohio-6523 (3d Dist.), the Third District Court of

Appeals addressed the exact same argument. The court first looked to R.C. 109.77, which

governs the certification requirements for all “peace officers.” The court noted that a “peace

officer” includes a “member of the organized police department of a township or municipal

corporation.” R.C. 109.71(A)(1). The court then explained that R.C. 109.77 provides the

following with regard to peace officer certification:

(B)(1) Notwithstanding any general, special, or local law or charter to

the contrary, and except as otherwise provided in this section, no person shall

receive an original appointment on a permanent basis as any of the following

unless the person previously has been awarded a certificate by the executive

director of the Ohio peace officer training commission attesting to the person’s

satisfactory completion of an approved state, county, municipal, or department

of natural resources peace officer basic training program:

6 (a) A peace officer of any county, township, municipal corporation,

regional transit authority, or metropolitan housing authority.

{¶ 14} Based on the foregoing statutory language, the court in Schwable determined

that “because a municipal police officer is a peace officer, and no peace officer can be hired

without being certified by the Ohio Peace Officer Training Commission, all police officers are

certified.” Id. at ¶ 27. With that in mind, the court concluded:

Here, Detective Robertson testified that he was employed as a detective by

the Napoleon Police Department. Although there was no evidence presented

that he was a certified police officer, or that he was authorized to regulate or

direct traffic, no such evidence was needed, as all police officers are certified,

and, therefore, authorized to direct or regulate traffic, pursuant to R.C. 109.77.

Consequently, we find that sufficient evidence was presented to establish that

Detective Robertson was a “police officer” under R.C. 2921.331 and

R.C. 4511.01(Z), and, therefore, sufficient evidence existed to support

Schwable’s conviction for failure to comply with an order or signal of a police

officer.

Id. at ¶ 28.

{¶ 15} We agree with the analysis in Schwable. Despite the absence of direct

evidence indicating that Walter was authorized to direct or regulate traffic or to make arrests

for traffic violations, we nevertheless conclude that there was sufficient evidence presented

at trial to establish that Walter was a police officer who was authorized to carry out those

functions. Walter testified that she was a deputy sheriff with the Champaign County Sheriff’s

Office who, on the night of the incident, was employed by the Springfield Police Division.

7 Because she was a municipal police officer, Walter was necessarily a certified police officer.

Schwable at ¶ 27.

{¶ 16} In addition, Walter’s testimony indicated that she engaged in typical police

work on the night in question. Walter testified that she was dispatched to a local bar in

reference to an individual with multiple outstanding warrants, reviewed security video

footage with other officers, pursued Avery for his outstanding warrants and his

noncompliance, and assisted with Avery’s transport to the hospital. Walter also testified to

pursuing Avery in a police cruiser and to wearing a body camera.

{¶ 17} The video evidence admitted at trial further established that Walter was a

police officer. Text on the bottom right corner of the cruiser camera video reads: “Springfield

PD Ashlie Walter Car 54.” State’s Ex. 1(A). The video contains audio from Walter inside the

police cruiser giving Avery several commands to roll his window down and to stick his hands

out of the window. The video also shows Walter pursuing Avery in her police cruiser after

Avery ignored her commands and drove away. The video additionally shows that after Avery

lost control of his vehicle and crashed, Walter and several other officers approached Avery’s

vehicle with their weapons drawn. Significantly, the video shows that Walter and the other

officers all wore standard police uniforms.

{¶ 18} When viewing all the foregoing evidence in a light most favorable to the State,

a rational trier of fact could have concluded beyond a reasonable doubt that Walter was a

police officer who was authorized to regulate or direct traffic or to make arrests for traffic

violations. Accordingly, Avery’s claim that the State failed to present sufficient evidence

establishing that Walter was a “police officer” under R.C. 2921.331(B) lacks merit.

{¶ 19} Also lacking merit is Avery’s claim that his failure to comply conviction is

against the manifest weight of the evidence. Avery’s manifest weight claim is based solely

8 on his allegation that the weight of the evidence did not support the jury’s finding that Walter

was a police officer. After reviewing the entire record, weighing all the evidence and

reasonable inferences, and considering witness credibility, we do not find that the jury lost

its way or created a manifest miscarriage of justice by finding that Walter was a police officer.

The weight of the evidence not only established that Walter was a police officer but also that

Avery willfully fled from Walter and the other officers who were pursuing him. Because the

weight of the evidence supported the jury’s guilty verdict, this is not a case that presents the

kind of exceptional circumstance that warrants reversing Avery’s conviction on manifest

weight grounds.

{¶ 20} Avery’s first and second assignments of error are overruled.

Third Assignment of Error

{¶ 21} Under his third assignment of error, Avery claims that his trial counsel provided

ineffective assistance while giving his closing argument. Specifically, Avery takes issue with

his trial counsel conceding that he was guilty of the failure to comply offense and simply

arguing that the State had failed to prove the felony-enhancing provision under

R.C. 2921.331(C)(5)(a)(ii). According to Avery, his trial counsel should have instead

contested his guilt by arguing that the State had failed to establish that Walter was a “police

officer” under R.C. 2921.331(B). We disagree.

Standard of Review

{¶ 22} This court reviews alleged instances of ineffective assistance of trial counsel

under the two-prong analysis set forth in Strickland v. Washington, 466 U.S. 668 (1984),

which has been adopted by the Supreme Court of Ohio in State v. Bradley, 42 Ohio St.3d

136 (1989). Pursuant to these cases, in order to prevail on an ineffective-assistance claim,

Avery must show that his trial counsel rendered deficient performance and that the deficient

9 performance prejudiced him. Strickland at 687; Bradley at paragraph two of the syllabus.

The failure to make a showing of either deficient performance or prejudice defeats a claim

of ineffective assistance of counsel. Strickland at 697.

{¶ 23} A trial counsel’s performance is deemed deficient if it falls below an objective

standard of reasonable representation. Id. at 688. When evaluating counsel’s performance,

a reviewing court “must indulge in a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance.” Id. at 689. “Debatable strategic and

tactical decisions may not form the basis of a claim for ineffective assistance of counsel,

even if, in hindsight, it looks as if a better strategy had been available.” State v. Hall, 2021-

Ohio-1894, ¶ 55 (2d Dist.), citing State v. Cook, 65 Ohio St.3d 516, 524 (1992). Accordingly,

this court will not second-guess decisions of counsel that may be considered matters of

strategy. Id., citing State v. Smith, 17 Ohio St.3d 98 (1985).

{¶ 24} To establish prejudice, the defendant must show that there is “a reasonable

probability that, but for counsel’s errors, the proceeding’s result would have been different.”

State v. Hale, 2008-Ohio-3426, ¶ 204, citing Strickland at 687-688 and Bradley at paragraph

two of the syllabus. “‘A reasonable probability is a probability sufficient to undermine

confidence in the outcome.’” Bradley at 142, quoting Strickland at 694.

{¶ 25} In this case, we do not find that trial counsel rendered deficient performance

by conceding that Avery was guilty of the failure to comply offense. “‘[C]ounsel’s concession

of a client’s guilt does not automatically constitute deficient performance.’” State v.

Ferguson, 2018-Ohio-920, ¶ 32 (4th Dist.), quoting Young v. Catoe, 205 F.3d 750, 759

(4th Cir. 2000). “When defense counsel concedes his client’s guilt to a charge in an effort to

enhance credibility by being candid and realistic with the jury, such a decision may be

10 construed as tactical or strategic and, therefore, does not constitute ineffective assistance

of counsel.” State v. Luke, 2004-Ohio-6137, ¶ 30 (5th Dist.), citing State v. Goodwin, 1999-

Ohio-356, ¶ 36. Indeed, conceding uncontroverted points is sound trial strategy. State v.

Clark, 2016-Ohio-2705, ¶ 44 (4th Dist.), citing State v. Wade, 2015-Ohio-997, ¶ 23

(4th Dist.).

{¶ 26} Given the overwhelming evidence of Avery’s guilt, trial counsel reasonably

decided to concede at closing argument that Avery had committed the failure to comply

offense, and counsel instead focused on challenging the felony-enhancement element

under R.C. 2921.331(C)(5)(a)(ii). Contrary to Avery’s claim otherwise, the State presented

sufficient evidence of the failure to comply offense, as we explained above in our analysis

rejecting Avery’s claim that the State had failed to present evidence establishing that Walter

was a “police officer” under R.C. 2921.331(B). The strategic decision of Avery’s trial counsel

to concede guilt and focus on challenging the felony-enhancement element fell within the

wide range of reasonable professional assistance and cannot form the basis of an

ineffective-assistance claim.

{¶ 27} Even if counsel’s trial strategy had been deficient, Avery cannot establish

prejudice arising from counsel’s performance because there is not a reasonable probability

that the outcome of Avery’s trial would have been different if counsel had employed a

different strategy by contesting Avery’s guilt on grounds that Walter was not a police officer

under R.C. 2921.331(B). Because the evidence overwhelmingly supports finding that Walter

was a police officer under that statute, it is highly unlikely, if not an impossibility, that the jury

would have reached a different conclusion on that issue if counsel had raised it during his

closing argument. Regardless, any such determination is speculation, and “speculation is

11 insufficient to establish ineffective assistance.” State v. Short, 2011-Ohio-3641, ¶ 119, citing

State v. Perez, 2009-Ohio-6179, ¶ 217.

{¶ 28} Because Avery cannot establish deficient performance on the part of his trial

counsel or any prejudice, his ineffective assistance claim necessarily fails.

{¶ 29} Avery’s third assignment of error is overruled.

Conclusion

{¶ 30} Having overruled all three assignments of error raised by Avery, the judgment

of the trial court is affirmed.

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LEWIS, P.J., and HUFFMAN, J., concur.