Home/Ohio Court of Appeals/State v. Latimore

State v. Latimore

2011 Ohio 3562
Ohio Court of Appeals·Decided July 18, 2011·No. 2010CA00226·Published

Opinion

[Cite as State v. Latimore, 2011-Ohio-3562.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. W. Scott Gwin, P.J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Julie A. Edwards, J. -vs- Case No. 2010CA00226 JAMES LATIMORE

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2010CR0167

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: July 18, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN D. FERRERO ANTHONY KOUKOUTAS PROSECUTING ATTORNEY, 116 Cleveland Ave. NW STARK COUNTY, OHIO Suite 808 Canton, Ohio 44702 By: KATHLEEN O. TATARSKY Assistant Prosecuting Attorney Appellate Section 110 Central Plaza, South – Suite 510 Canton, Ohio 44702-1413 Stark County, Case No. 2010CA00226 2

Hoffman, J.

{¶1} Defendant-appellant James Latimore appeals his conviction and sentence

entered by the Stark County Court of Common Pleas. Plaintiff-appellee is the State of

Ohio.

STATEMENT OF THE FACTS1 AND CASE

{¶2} On January 24, 2010, Appellant was involved in a high speed pursuit

involving members of the Canton Police Department. In the early morning hours,

Officer Thomas Hastings of the Canton Police Department testified he responded to a

call of “shots fired” at 1547 Robin Court S.E. Canton. When he saw the headlights of a

vehicle coming towards him, he decided to pursue that vehicle and get the license plate

number. Officer Hastings initiated a traffic stop, activating the sirens and lights of his

vehicle, at which point the suspect vehicle “took off.” Officer Hastings then became the

lead vehicle in pursuit of the suspect vehicle.

{¶3} Officer Brandon Shackle testified he and his partner were the second

vehicle in pursuit of the suspect vehicle. Officer Gary Premier joined the pursuit of the

suspect vehicle. Hastings testified the suspect vehicle went off the roadway, and he

then attempted to box in the vehicle. The suspect vehicle rammed his cruiser and tried

to drive away on foot. Appellant ultimately exited the suspect vehicle, and tried to run

away on foot. Officer Premier gave Appellant audible commands to stop, but Appellant

continued. Officer Premier proceeded to taser Appellant and then placed him under

arrest.

1 A more complete recitation of the facts will be set forth as necessary in the disposition of Appellant’s individual assigned errors. Stark County, Case No. 2010CA00226 3

{¶4} James Nosic testified at trial he and Appellant had been together

consuming alcohol during the early morning hours of January 24, 2010, and Appellant

was driving the vehicle they occupied the night in question. He testified he was drunk

on the night in question.

{¶5} Appellant was indicted on four counts of felonious assault, in violation of

R.C. 2903.11(A)(2), with four repeat violent offender specifications under 2941.149; one

count of failure to comply with an order or signal of a police officer, in violation of R.C.

2921.331B)(C)(5)(A)(II); one count of resisting arrest, in violation of R.C. 2921.33(C)(1),

and one count of domestic violence, in violation of R.C. 2919.25(A).

{¶6} A jury trial commenced on July 1, 2010. Appellant was found guilty on

three counts of felonious assault, one count of failure to comply with an order or signal

of a police officer, and one count of resisting arrest. The trial court then found Appellant

guilty of the three repeat violent offender specifications.

{¶7} The trial court proceeded to sentence Appellant to five years on each

count of felonious assault, two years for the failure to comply charge, to be served

consecutive to the terms for felonious assault, and sixty days for the resisting arrest

charge, to be served concurrent to the other sentences, for a total prison term of

seventeen years.

{¶8} Appellant now appeals, assigning as error:

{¶9} “I. APPELLANT’S CONVICTION WAS AGAINST THE MANIFEST

WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

{¶10} “II. APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF

COUNSEL. Stark County, Case No. 2010CA00226 4

{¶11} “III. THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING

APPELLANT TO CONSECUTIVE SENTENCES.”

I.

{¶12} In the first assignment of error, Appellant maintains his convictions for

felonious assault and resisting arrest are against the manifest weight and sufficiency of

the evidence.

{¶13} Our standard of reviewing a claim a verdict was not supported by sufficient

evidence is to examine the evidence presented at trial to determine whether the

evidence, if believed, would convince the average mind of the accused's guilt beyond a

reasonable doubt. The relevant inquiry is whether, after viewing the evidence in the 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

(1991), 61 Ohio St.3d 259, 574 N.E.2d 492, superseded by State constitutional

amendment on other grounds as stated in State v. Smith (1997), 80 Ohio St.3d 89, 684

N.E.2d 668.

{¶14} The Supreme Court has explained the distinction between claims of

sufficiency of the evidence and manifest weight. Sufficiency of the evidence is a

question for the trial court to determine whether the State has met its burden to produce

evidence on each element of the crime charged, sufficient for the matter to be submitted

to the jury.

{¶15} Manifest weight of the evidence claims concern the amount of evidence

offered in support of one side of the case, and is a jury question. We must determine

whether the jury, in interpreting the facts, so lost its way that its verdict results in a Stark County, Case No. 2010CA00226 5

manifest miscarriage of justice, State v. Thompkins (1997), 78 Ohio St.3d 387, 678

N.E.2d 541, 1997–Ohio–52, superseded by constitutional amendment on other grounds

as stated by State v. Smith, 80 Ohio St.3d 89, 1997–Ohio–355, 684 N.E.2d 668. On

review for manifest weight, a reviewing court is “to examine the entire record, weigh the

evidence and all reasonable inferences, consider the credibility of the witnesses 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 judgment must be

reversed. The discretionary power to grant a new hearing should be exercised only in

the exceptional case in which the evidence weighs heavily against the judgment.” State

v. Thompkins, supra, 78 Ohio St.3d at 387, citing State v. Martin (1983), 20 Ohio

App.3d 172, 175. Because the trier of fact is in a better position to observe the

witnesses' demeanor and weigh their credibility, the weight of the evidence and the

credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10

Ohio St.2d 230, 227 N.E.2d 212, syllabus 1.

{¶16} Appellant was convicted of felonious assault in violation of R.C.

2903.11(A)(2), which reads:

{¶17} “(A) No person shall knowingly do either of the following:

{¶18} “(1) Cause serious physical harm to another or to another's unborn;

{¶19} “(2) Cause or attempt to cause physical harm to another or to another's

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