State v. Howell

2020 Ohio 5503

Opinion

[Cite as State v. Howell, 2020-Ohio-5503.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. W. Scott Gwin, J. Hon. John W. Wise, J. -vs- Case No. 2019CA00165 JOSHUA W. HOWELL

Defendant-Appellant O P I N IO N

CHARACTER OF PROCEEDINGS: Appeal from the Massillon Municipal Court, Case No. 2019TRD03680

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: November 30, 2020

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KASSEM AHMED GEORGE URBAN Massillon City Prosecutor 116 Cleveland Avenue, North, Suite #808 2 James Duncan Plaza Canton, Ohio 44702 Massillon, Ohio 44646 Stark County, Case No. 2019CA00165 2

Hoffman, P.J. {¶1} Defendant-appellant Joshua W. Howell appeals the judgment entered by

the Massillon Municipal Court convicting him of failure to yield the right of way (R.C.

4511.44(A)) and leaving the scene of an accident (R.C. 4549.02) and sentencing him to

180 days in jail. Appellee is the state of Ohio.1

STATEMENT OF THE FACTS AND CASE

{¶2} At around 11:30 a.m. on May 16, 2019, Walter Boney and his wife, Berdella

Boney, were traveling on Higbee Avenue, near the intersection of Holiday Street, in

Jackson Township. Walter was driving the couple’s Lexus automobile on their way to an

appointment when a box truck entered the roadway from a private drive, striking the

driver’s front side of the Lexus. The driver of the box truck backed up, then left the scene

of the accident. The Lexus was totaled as a result of the damage incurred in the accident,

and Mrs. Boney was injured.

{¶3} A license plate was found at the scene of the accident. Jackson Police

Officer Moderwell traced the license plate to a vehicle owned by American Food and

Vending Corporation. Matthew Crago, the operations manager of American Food and

Vending, traced the plate to a box truck assigned to Appellant. Crago further confirmed

Appellant was the only driver in the area at the time of the accident.

{¶4} Crago attempted to reach Appellant by telephone. When Appellant returned

Crago’s call, Crago told him to return to the scene of the accident. Appellant maintained

he did not know what Crago was talking about, and did not return to the scene. Instead,

he returned the truck to the warehouse and relinquished the keys to the warehouse

1 The State has not filed a brief in the instant appeal. Stark County, Case No. 2019CA00165 3

manager. Officer Moderwell examined the box truck at the warehouse and determined

the damage to the truck was consistent with the accident. The officer further learned from

LEADS that on the day of the accident, Appellant’s driver’s license was suspended.

{¶5} The day after the accident, Appellant called Crago to inquire about his final

paycheck. Crago told Appellant to return all property belonging to American Food and

Vending in order to receive his check. Appellant returned his uniforms, key cards, and

other property belonging to the company, picked up his final paycheck, said, “I’m sorry,”

and left.

{¶6} Appellant was charged with failure to yield the right of way from private

property and leaving the scene of an accident. The case proceeded to jury trial in the

Massillon Municipal Court.

{¶7} At trial, Appellant testified his route for American Food and Vending did go

through the area of Higbee and Holiday, but he did not hit a vehicle on the day of the

accident. He admitted his license was suspended at the time, but claimed he was

unaware of the suspension and only learned of it at a later date. He testified the truck

was damaged at the time he began driving for American Food and Vending.

{¶8} The jury found Appellant guilty of leaving the scene of an accident. The

court found Appellant guilty of failure to yield the right of way, a minor misdemeanor. The

court sentenced Appellant to 180 days in jail for leaving the scene and fined him $500,

with $250 of the fine suspended. The court fined Appellant $25 for failure to yield the

right of way and ordered him to pay court costs.

{¶9} It is from the October 24, 2019, judgment of the Massillon Municipal Court

Appellant prosecutes this appeal, assigning as error: Stark County, Case No. 2019CA00165 4

I. APPELLANT’S CONVICTIONS WERE AGAINST THE MANIFEST

WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

II. THE TRIAL COURT ERRED BY PERMITTING THE STATE TO

INTRODUCE EVIDENCE REGARDING APPELLANT’S LICENSE

SUSPENSION.

III. APPELLANT WAS DENIED HIS RIGHT TO THE EFFECTIVE

ASSISTANCE OF COUNSEL.

I.

{¶10} In his first assignment of error, Appellant argues his convictions are against

the manifest weight and sufficiency of the evidence.

{¶11} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,

weighs the evidence and all reasonable inferences, considers the credibility of witnesses,

and determines whether in resolving conflicts in 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.’” State v. Thompkins, 78 Ohio St. 3d 380, 387, 1997-Ohio-52, 678

N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1983).

{¶12} An appellate court's function when reviewing the sufficiency of the evidence

is to determine 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. State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492,

paragraph two of the syllabus (1991). Stark County, Case No. 2019CA00165 5

{¶13} Appellant was convicted of leaving the scene of an accident in violation of

R.C. 4549.02, which provides:

(A)(1) In the case of a motor vehicle accident or collision with persons

or property on a public road or highway, the operator of the motor vehicle,

having knowledge of the accident or collision, immediately shall stop the

operator's motor vehicle at the scene of the accident or collision. The

operator shall remain at the scene of the accident or collision until the

operator has given the operator's name and address and, if the operator is

not the owner, the name and address of the owner of that motor vehicle,

together with the registered number of that motor vehicle, to all of the

following:

(a) Any person injured in the accident or collision;

(b) The operator, occupant, owner, or attendant of any motor vehicle

damaged in the accident or collision;

(c) The police officer at the scene of the accident or collision.

{¶14} Appellant was also convicted of failing to yield the right of way in violation

of R.C. 4511.44, which provides:

(A) The operator of a vehicle, streetcar, or trackless trolley about to

enter or cross a highway from any place other than another roadway shall Stark County, Case No. 2019CA00165 6

yield the right of way to all traffic approaching on the roadway to be entered

or crossed.

{¶15} Appellant argues the State presented insufficient evidence to identify him

as the driver of the box truck which entered Higbee Avenue from a private driveway,

striking the Boneys’ Lexus. Both of the Boneys described the vehicle which hit them as

a box truck. A license plate was found at the scene, registered to a box truck belonging

to American Food and Vending. Matthew Crago testified the plate was registered to a

truck assigned to Appellant. Crago further testified he confirmed Appellant was in the

area on the date and time in question, and testified no other driver would have been in

the area. Appellant admitted in his testimony his route took him through the area near

Higbee and Holiday. Police examined the truck Appellant had returned to the warehouse,

and found damage consistent with the accident. From this evidence, a rational trier of

fact could find the State proved Appellant was the driver of the truck which caused the

accident.

{¶16} Appellant further argues the State presented insufficient evidence he was

aware an accident occurred, giving rise to a duty to remain at the scene. He argues Mr.

Boney’s testimony demonstrates the accident was not severe, and in fact some of the

damage done to the Lexus was caused by the tow truck.

{¶17} Mr. Boney testified at the scene of the accident he had to work to open the

driver’s side door of the vehicle, but when he went to remove his personal effects from

the vehicle after the insurance company declared the vehicle totaled, the door worked Stark County, Case No. 2019CA00165 7

freely. His testimony therefore suggests the tow truck operator might have repaired the

door, rather than doing further damage to the vehicle.

{¶18} The State presented evidence the Lexus was declared totaled by the

insurance company, and Mrs. Boney was treated for injuries from the accident. The

collision was of sufficient strength to cause the license plate on the box truck driven by

Appellant to detach from the vehicle. Further, both of the Boneys testified the driver of

the box truck backed up before leaving the scene. From all of this evidence, a rational

trier of fact could have found Appellant was aware of the accident.

{¶19} We find the judgment is supported by sufficient evidence.

{¶20} As to his manifest weight claim, Appellant argues the testimony of the

Boneys is inconsistent as to how the accident occurred, as Walter Boney testified the

truck struck the driver’s side front of the vehicle, while Berdella Boney testified the truck

hit the front of the vehicle, implying the collision was head-on. Berdella Boney testified

as follows:

Q: Do you remember what part of your vehicle, when I say your

vehicle, your and your husband’s vehicle, do you remember which part of it

was struck.

A: Yeah, it’d be the front part of the car.

Q: On you [sic] side or the driver’s side.

A: No, on the driver’s side.

{¶21} Tr. 58. Stark County, Case No. 2019CA00165 8

{¶22} We find no material inconsistencies in the testimony of Walter and Berdella

Boney about how the accident occurred, and the judgment is not against the manifest

weight of the evidence.

{¶23} The first assignment of error is overruled.

II.

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

allowing Officer Moderwell to testify about information he obtained through LEADS that

Appellant’s driver’s license was under suspension on the date of the accident for refusing

to submit to OVI testing.

{¶25} Appellant made an oral motion in limine to exclude evidence of the status

of Appellant’s license prior to trial. Tr. 35. The trial court ruled the evidence was relevant

evidence of motive, and denied the motion.

{¶26} Appellant did not object at the time the officer testified about the status of

his driver’s license. A motion in limine is insufficient to preserve the error for appellate

review; the complaining party must object to the testimony at the time it is presented at

trial in order to preserve the error. E.g., State v. Maurer, 15 Ohio St.3d 239, 259-260,

473 N.E.2d 768, 787-788 (1984). We therefore must find plain error in order to reverse.

The Ohio Supreme Court has set forth the following standard for plain error:

Crim.R. 52(B) affords appellate courts discretion to correct “[p]lain

errors or defects affecting substantial rights” notwithstanding an accused's

failure to meet his obligation to bring those errors to the attention of the trial

court. However, the accused bears the burden to demonstrate plain error Stark County, Case No. 2019CA00165 9

on the record, State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034,

19 N.E.3d 900, ¶ 16, and must show “an error, i.e., a deviation from a legal

rule” that constitutes “an ‘obvious' defect in the trial proceedings,” State v.

Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).

Even if the error is obvious, it must have affected substantial rights,

and “[w]e have interpreted this aspect of the rule to mean that the trial

court's error must have affected the outcome of the trial.” Id. We recently

clarified in State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d

860, that the accused is “required to demonstrate a reasonable probability

that the error resulted in prejudice—the same deferential standard for

reviewing ineffective assistance of counsel claims.” (Emphasis sic.) Id. at ¶

22, citing United States v. Dominguez Benitez, 542 U.S. 74, 81–83, 124

S.Ct. 2333, 159 L.Ed.2d 157 (2004).

If the accused shows that the trial court committed plain error

affecting the outcome of the proceeding, an appellate court is not required

to correct it; we have “admonish[ed] courts to notice plain error ‘with the

utmost caution, under exceptional circumstances and only to prevent a

manifest miscarriage of justice.’ ” (Emphasis added.) Barnes at 27, 759

N.E.2d 1240, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804

(1978), paragraph three of the syllabus.

{¶27} State v. Thomas, 2017-Ohio-8011, ¶¶ 32-34.

{¶28} Evid. R. 404(B) governs the admission or evidence of other bad acts: Stark County, Case No. 2019CA00165 10

(B) Other Crimes, Wrongs or Acts. Evidence of other crimes,

wrongs, or acts is not admissible to prove the character of a person in order

to show action in conformity therewith. It may, however, be admissible for

other purposes, such as proof of motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident. In criminal

cases, the proponent of evidence to be offered under this rule shall provide

reasonable notice in advance of trial, or during trial if the court excuses

pretrial notice on good cause shown, of the general nature of any such

evidence it intends to introduce at trial.

{¶29} We agree with the trial court’s ruling on the motion in limine concerning the

fact Appellant’s license was suspended on the date of the accident. Evidence Appellant’s

license was under suspension was admissible pursuant to Evid. R. 404(B) to demonstrate

a motive for leaving the scene. While the reason for the suspension was not relevant to

demonstrate motive, we find its admission was not plain error. Abundant circumstantial

evidence was presented to demonstrate Appellant was the driver of the box truck involved

in the accident. We find the result of the proceeding would not have been different absent

evidence the reason for the license suspension was Appellant’s refusal to submit to OVI

testing.

{¶30} Appellant also argues the State failed to present documentary evidence to

support its claim Appellant’s license was suspended on May 16, 2019, and failed to prove

Appellant was aware of the suspension. Appellant’s claims go to the weight to be given

the evidence, and not to its admissibility. Appellant was not charged with driving under Stark County, Case No. 2019CA00165 11

suspension. The officer testified he had checked the status of Appellant’s operator’s

license through LEADS, and it was suspended on May 16, 2019. Appellant testified he

was unaware of the suspension on the date of the accident, and only learned of it later.

Further, we find Appellant has not demonstrated a reasonable probability of a change in

the outcome of the trial had evidence of his license suspension been excluded.

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

III.

{¶32} In his third assignment of error, Appellant argues counsel was ineffective

for failing to object to evidence of his license suspension, failing to object to the evidentiary

value and authenticity of the evidence, and failing to ask for a limiting instruction regarding

such evidence.

{¶33} 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.

{¶34} As discussed in Appellant’s second assignment of error, he has not

demonstrated a reasonable probability the outcome of the proceeding would have been Stark County, Case No. 2019CA00165 12

different in the absence of the officer’s brief testimony concerning the status of Appellant’s

operator’s license on the date in question. We find counsel was not ineffective.

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

{¶36} The judgment of the Massillon Municipal Court is affirmed.

By: Hoffman, P.J. Gwin, J. and Wise, John, J. concur