State v. Carte

2020 Ohio 6752

• Court: Ohio Court of Appeals
• Decided: December 16, 2020
• Docket: 20CA00004
• Status: Published

Opinion

[Cite as State v. Carte, 2020-Ohio-6752.]

COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J. -vs- Case No. 20CA00004 SILAS E. CARTE

Defendant-Appellant O P I N IO N

CHARACTER OF PROCEEDINGS: Appeal from the Guernsey County Court of Common Pleas, Case No. 19CR000249

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: December 16, 2020

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOEL M. BLUE MAX HERSCH Prosecuting Attorney Assistant State Public Defender Guernsey County, Ohio 250 East Broad Street, Suite #1400 Columbus, Ohio 43215 JASON R. FARLEY Assistant Prosecuting Attorney Guernsey County, Ohio 627 Wheeling Avenue Cambridge, Ohio 43725 Guernsey County, Case No. 20CA00004 2

Hoffman, P.J. {¶1} Defendant-Appellant Silas E. Carte appeals the judgment entered by the

Guernsey County Common Pleas Court convicting him of operating a motor vehicle while

intoxicated (“OMVI”) in violation of R.C. 4511.19(A)(1)(a), a felony of the third degree,

and sentencing him to 24 months incarceration, to be served after a one year term of

incarceration imposed for violating his post-release control. Plaintiff-appellee is the state

of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On the night of June 7, 2019, Michael Freund and his wife returned from

vacation to their home on Bennett Avenue in Cambridge, Ohio. Freund called his niece,

Misty Johnson, who lived two houses away on the same street. Johnson took care of the

Freunds’ dogs while they were away. At the time, Johnson was dating Appellant, who

also lived in her residence on Bennett Avenue.

{¶3} When Freund called Johnson, she was hysterical. She told her uncle

Appellant was drunk and upset because his mother had died. Freund walked to

Johnson’s house. He saw empty cans of Twisted Tea (an alcoholic beverage)

everywhere. According to Freund, Appellant was emotional and clearly drunk, and

Johnson had a black eye. Appellant alternated between crying and becoming violent.

{¶4} Appellant apologized to Freund for drinking Freund’s beer while Freund was

on vacation. Appellant said he had more beer in his truck. Appellant walked out and

returned 15-20 minutes later with two six packs of beer.

{¶5} To separate Appellant from Johnson, Freund took Appellant to his house

where they drank beer at a picnic table. Freund’s wife went to Johnson’s house. When

the women returned to the Freund residence, Appellant again became violent, and a Guernsey County, Case No. 20CA00004 3

struggle ensued. Freund had previously hidden Appellant’s keys, but Appellant found the

keys. Appellant fired up his truck, rammed into Johnson’s car several times, backed up,

and drove toward the Freund home. Mr. Freund called 911. Police arrived almost

immediately, as Freund’s wife had called earlier when Appellant kicked their front door.

{¶6} Deputy Scott Cunningham arrived on the scene. He saw a truck parked

diagonally across the road, with a male in the driver’s seat. The deputy activated his take-

down lights to illuminate the scene, followed by his emergency red-and-blue lights. The

truck began to come toward the deputy, then backed up the street and into Johnson’s

driveway. The deputy encountered Appellant, the driver of the truck, in the driveway.

Dep. Cunningham ordered Appellant to stop and show his hands. Appellant did not

comply. The deputy handcuffed Appellant and placed him in the cruiser. Appellant went

from crying, to screaming, to quiet throughout the interaction. Upon searching Appellant,

the deputy found a traffic citation issued to Appellant earlier in the day.

{¶7} Dep. Cunningham called for a trooper with the Ohio State Highway Patrol

to administer field sobriety tests. Sgt. William Howard arrived and asked Appellant how

much he had to drink. Appellant responded he had a lot to drink. When Sgt. Howard

asked how much would be a lot to Appellant, Appellant responded three 18-packs of

Twisted Tea would be a lot. After administering the horizontal gaze nystagmus test, the

vertical gaze nystagmus test, and the lack-of-convergence test, Sgt. Howard

recommended Appellant be arrested. Appellant was taken to the police station. He

refused a breath test.

{¶8} Appellant was indicted by the Guernsey County Grand Jury with one count

of OMVI in violation of R.C. 4511.19(A)(1)(a), a felony of the third degree by virtue of a Guernsey County, Case No. 20CA00004 4

prior felony conviction of R.C. 4511.19. The case proceeded to jury trial in the Guernsey

County Common Pleas Court.

{¶9} Appellant testified at trial. He testified he had previously been convicted of

receiving stolen property, theft, breaking and entering, violation of a protection order, and

he was on post-release control at the time of the instant offense. He testified on the day

in question, he had a few beers, but never drove his truck. He testified he was changing

two flat tires on Johnson’s car when police arrived.

{¶10} The jury found Appellant guilty as charged in the indictment. The trial court

sentenced him to 24 months incarceration, to be served after a one year term of

incarceration imposed for violating his post-release control. It is from the January 27,

2020 judgment entry of the Guernsey County Common Pleas Court Appellant prosecutes

his appeal, assigning as error:

I. SILAS CARTE’S TRIAL COUNSEL RENDERED INEFFECTIVE

ASSISTANCE OF COUNSEL BY NOT OFFERING TO STIPULATE TO

MR. CARTE’S PRIOR CONVICTION.

II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY

ADMITTING THE STATE’S UNFAIRLY PREJUDICIAL AND CUMULATIVE

EXHIBIT A OVER DEFENSE COUNSEL’S OBJECTION.

III. TRIAL COUNSEL’S INEFFECTIVE ASSISTANCE COMBINED

WITH THE ADMISSION OF THE VIDEOS CUMULATIVELY DEPRIVED

MR. CARTE OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL. Guernsey County, Case No. 20CA00004 5

I.

{¶11} In his first assignment of error, Appellant argues counsel was ineffective in

failing to stipulate to his prior OMVI conviction. He argues as a result of counsel’s failure

to stipulate, a judgment entry was introduced into evidence which demonstrated he had

three additional OMVI convictions in six years, prior to the felony conviction set forth in

the judgment entry.

{¶12} A properly licensed attorney is presumed competent. State v. Hamblin, 37

Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of

ineffective assistance of counsel, Appellant must show counsel's performance fell below

an objective standard of reasonable representation and but for counsel’s error, the result

of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d

373 (1989). In other words, Appellant must show counsel’s conduct so undermined the

proper functioning of the adversarial process that the trial cannot be relied upon as having

produced a just result. Id.

{¶13} During the testimony of Dep. Cunningham, the State introduced a judgment

entry from Muskingum County. Dep. Cunningham read the conviction from the judgment

entry as “Count 1, OVI is three or more priors within six years, a felony of the fourth

degree.” Tr. 252. The judgment was admitted into evidence.

{¶14} We find Appellant has not demonstrated a reasonable probability of a

change in the outcome had counsel stipulated to a prior conviction, thereby avoiding the

jury learning he had three OMVI prior convictions in addition to the felony OMVI conviction

used to elevate the instant offense to a felony of the third degree. There was no further Guernsey County, Case No. 20CA00004 6

testimony concerning the prior convictions after Dep. Cunningham read the judgment,

and the State only briefly mentioned the prior convictions in closing argument, while going

through the evidence it presented to prove each of the elements of the offense. The State

did not argue Appellant acted in conformity with his past behavior, but rather explained to

the jury the statutory scheme which elevated the instant charge to a felony charge based

on prior convictions of OMVI. The trial court gave a limiting instruction to the jury:

Ladies and gentlemen, evidence was received that the defendant

was convicted of OVI on June 7th, 2007 in the Common Pleas Court of

Muskingum County in CR2006-0331. That evidence was received because

a prior conviction is an element of the offense charged. It was not received,

and you may not consider it, to prove the character of the defendant in order

to show that he acted in conformity or in accordance with that character.

{¶15} Tr. (II) 383.

{¶16} The evidence of guilt in the instant case was overwhelming. Michael Freund

and Misty Johnson testified Appellant was intoxicated, and both saw him operate his truck

in a state of intoxication. Dep. Cunningham also testified he saw Appellant operate his

truck, and observed Appellant to be intoxicated. Sgt. Howard testified as to Appellant’s

intoxication. We find no reasonable probability of a change in the outcome of the trial

absent admission of the judgment entry showing Appellant’s prior convictions of OMVI.

{¶17} The first assignment of error is overruled. Guernsey County, Case No. 20CA00004 7

II.

{¶18} In his second assignment of error, Appellant argues the court erred in

admitting into evidence body camera videos which showed him to be intoxicated. He

argues because he conceded he was intoxicated and the only issue disputed at trial was

whether he operated the vehicle, the prejudicial value of the video outweighs its probative

value, and the video was needlessly cumulative evidence on the issue of intoxication.

{¶19} Evid. R. 403 provides:

(A) Exclusion Mandatory. Although relevant, evidence is not

admissible if its probative value is substantially outweighed by the danger

of unfair prejudice, of confusion of the issues, or of misleading the jury.

(B) Exclusion Discretionary. Although relevant, evidence may be

excluded if its probative value is substantially outweighed by considerations

of undue delay, or needless presentation of cumulative evidence.

{¶20} “[A] trial court is vested with broad discretion in determining the admissibility

of evidence in any particular case, so long as such discretion is exercised in line with the

rules of procedure and evidence.” Rigby v. Lake Cty., 58 Ohio St. 3d 269, 271, 569 N.E.

2d 1056 (1991).

{¶21} Because Appellant stipulated to his refusal of a breath test, the trial court

excluded the videos which showed his refusal. The trial court admitted six of eight videos

the State sought to admit. Video 1 is 35 seconds long, and shows Appellant struggling

with Dep. Cunningham while he was being handcuffed. Video 2 is over 21 minutes long, Guernsey County, Case No. 20CA00004 8

and appears to cover the period of time immediately after Appellant was handcuffed.

Appellant was emotional and is seen yelling and crying at the beginning of the video.

Most of the video is of Freund recounting the events of the night. Video 4 is a short

encounter in which Dep. Cunningham checks on Appellant in the back of the cruiser, and

Appellant asks why he is in handcuffs. Video 5 is six and one-half minutes long, showing

Sgt. Howard performing field sobriety tests. In this video, Appellant admits to having beer,

denies operating a vehicle, and says three 18-packs of Twisted Tea would be a lot to

drink for him. The video also shows Appellant being arrested for OMVI, as well as for

several other potential charges related to his behavior on the evening in question. Video

6 is a short video in which Dep. Cunningham handcuffs Appellant, as Appellant swears

and yells at the deputy. Video 8 shows Appellant arriving at the jail, during which it

appears he is going to vomit, although he does not vomit. The video ends as Appellant

greets an employee of the jail whom he appears to know.

{¶22} Although Appellant may not have actively contested he was intoxicated on

the night in question, he did not stipulate to intoxication. Appellant’s failure to contest

intoxication did not obviate the necessity on the part of the State to prove intoxication as

an element of R.C. 4511.19(A)(1)(a). Because Appellant refused a breath test, the only

method of proving intoxication available to the State was through evidence, whether

testimonial or by video, of Appellant’s behavior at the scene. Although Freund, Johnson,

Dep. Cunningham and Sgt. Howard all testified Appellant was intoxicated, the best

evidence by which the jury could make a determination for themselves as to whether

Appellant was intoxicated was by watching the videos. The videos were corroborative,

rather than merely cumulative, in nature on the element of intoxication. Guernsey County, Case No. 20CA00004 9

{¶23} Further, in the video and at trial, Appellant denied operating the truck. By

viewing the video evidence of Appellant’s condition of the night in question, the jury could

evaluate whether Appellant was in a condition to recall accurately whether he had

operated the truck that night, and to assess his credibility on the issue of operability.

{¶24} We find the danger of unfair prejudice from admission of the videos did not

outweigh their probative value. Further, we find the probative value of the videos was not

outweighed by considerations of undue delay or needless presentation of cumulative

evidence. Accordingly, we find the trial court did not abuse its discretion in admitting the

videos over Appellant’s Evid. R. 403 objection.

{¶25} The second assignment of error is overruled.

III.

{¶26} In his third assignment of error, Appellant argues he was denied a fair trial

due to cumulative error as set forth in his first two assignments of error.

{¶27} In State v. Brown, 100 Ohio St.3d 51, 2003–Ohio–5059, 796 N.E.2d 506,

the Ohio Supreme Court recognized the doctrine of cumulative error. However, where we

have found the trial court did not err, cumulative error is inapplicable. State v. Carter, 5th

Dist. Stark No. 2002CA00125, 2003–Ohio 1313 at ¶ 37.

{¶28} In the instant case, we have found no ineffective assistance of counsel in

failing to stipulate to Appellant’s prior conviction, and no error in the admission of the

videos taken from Dep. Cunningham’s body camera. Therefore, the doctrine of

cumulative error is inapplicable. Guernsey County, Case No. 20CA00004 10

{¶29} The third assignment of error is overruled.

{¶30} The judgment of the Guernsey County Common Pleas Court is affirmed.

By: Hoffman, P.J. Delaney, J. and Baldwin, J. concur