[Cite as State v. O'Day, 2024-Ohio-1654.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT VAN WERT COUNTY
STATE OF OHIO, CASE NO. 15-22-08 PLAINTIFF-APPELLEE,
v.
DONALD E. O'DAY, OPINION
DEFENDANT-APPELLANT.
Appeal from Van Wert County Common Pleas Court Trial Court No. CR-20-12-161
Judgment Affirmed
Date of Decision: April 29, 2024
APPEARANCES:
Clayton J. Crates for Appellant
Dillon W. Staas, IV for Appellee Case No. 15-22-08
MILLER, J.
{¶1} Defendant-appellant, Donald E. O’Day (“O’Day”), appeals the
November 29, 2022 judgment of sentence of the Van Wert County Court of
Common Pleas. For the reasons that follow, we affirm.
Background
{¶2} On January 7, 2021, the Van Wert County Grand Jury indicted O’Day
on two counts: Count One of failure to comply with an order or signal of a police
officer in violation of R.C. 2921.331(B),(C)(5)(a)(ii), a third-degree felony; and
Count Two of vandalism in violation of R.C. 2909.05(C), (E), a fifth-degree felony.
At his arraignment on January 11, 2021, O’Day entered pleas of not guilty.
{¶3} On March 14, 2022, O’Day filed a motion seeking to suppress evidence
resulting from the stop of the vehicle, his arrest, and the subsequent search of his
person and vehicle. Specifically, O’Day argued that the police had no reasonable
articulable basis to stop his vehicle. On March 31, 2022, the State filed its response
in opposition to O’Day’s motion. The parties appeared for a hearing on the motion
to suppress where they stipulated to the factual basis for the motion. In a judgment
entry filed on May 4, 2022, the trial court denied O’Day’s motion to suppress.
{¶4} The State filed a nolle prosequi with respect to Count Two on October
31, 2022. However, on November 7, 2022, the matter proceeded to a jury trial on
Count One, the fleeing charge.
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{¶5} At trial, Officer Cory Hirschy (“Officer Hirschy”), an officer with the
Van Wert City Police Department, testified that on December 22, 2020, he was
investigating potential drug activity at the Van Wert Wal-Mart. (Nov. 7, 2022 Tr.
at 163-165). Officer Hirschy stated he had reason to believe that O’Day, who
Officer Hirschy was familiar with through prior law enforcement interaction, had
been involved in drug activity and that O’Day was driving a red Ford Mustang. (Id.
at 165). As Officer Hirschy searched the area, he located a red Ford Mustang
matching the description in the drive-thru line at a McDonald’s located next to Wal-
Mart. (Id. at 166-167). When Officer Hirschy passed the Mustang, he observed the
sole occupant of the vehicle was wearing a face mask and hat. (Id. at 166-168, 170-
171). Accordingly, Officer Hirschy could only see the driver’s eyes and ascertain
the driver was male. (Id. at 168).
{¶6} Officer Hirschy testified that he ran the Mustang’s license plate through
LEADS, which identified the vehicle as being registered to a male with a name he
did not recognize. (Id. at 167). Furthermore, the Mustang was registered to an
individual with a temporary driver’s license, therefore requiring the driver to have
an eligible adult in the front passenger seat while driving. (Id.).
{¶7} Because the vehicle was further back in the drive-thru line, Officer
Hirschy left the area to search for the other vehicle involved in the drug transaction.
(Id. at 168). When Officer Hirschy returned to the McDonald’s parking lot, the red
Mustang was no longer in the drive-thru line. (Id. at 168-169).
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{¶8} Then, Officer Hirschy called Officer Brandi Dershem (“Officer
Dershem”) and relayed his observations. (Nov. 7, 2022 Tr. at 169). Specifically,
Officer Hirschy informed Officer Dershem that he ran O’Day’s information through
the LEADS database and learned that O’Day’s driver’s license was suspended.
(Id.). He also informed Officer Dershem that the vehicle was registered to an
individual with a temporary license. (Id. at 167, 169).
{¶9} Shortly thereafter, Officer Hirschy heard Officer Dershem
communicate over the radio that she had located the vehicle and it fled when she
tried to initiate a traffic stop. (Id. at 169). The pursuit ultimately led into Woodland
Cemetery. When Officer Hirschy arrived at the cemetery, he observed a red
Mustang with license plates that matched those he had observed in the McDonald’s
drive thru crashed on some headstones. (Id. at 170). As Officer Hirschy continued
into the cemetery, he observed an individual wearing a face mask and hat held at
gun point approximately fifty yards north of the disabled vehicle. (Id. at 170-171,
183). Officer Hirschy pulled the hat and mask off the subject’s head and confirmed
the identity of the individual as O’Day. (Id. at 172-173).
{¶10} After being advised of his Miranda rights, O’Day claimed he had
nearly been hit by a car. (Id. at 174). When Officer Hirschy explained that he
observed the red Mustang and a person wearing a mask in the McDonald’s drive-
thru line, O’Day became argumentative and asked Officer Hirschy the reason for
the stop. (Id. at 174-175). However, before Officer Hirschy could explain the
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reason for the stop, O’Day opined the purpose of the stop was “to harass me.” (Id.
at 175).
{¶11} Officer Hirschy testified that, to his knowledge, O’Day was the only
person in the cemetery other than law enforcement officers. (Nov. 7, 2022 Tr. at
181). When Officer Hirschy searched O’Day’s immediate possessions following
his arrest, he located O’Day’s wallet, which contained suboxone strips. (Id. at 184).
However, he did not locate the keys to the red Mustang. (Id.).
{¶12} Next, Officer Dershem testified that on December 22, 2020, she
observed a red Mustang, but she was initially unsure if it was the same vehicle
observed by Officer Hirschy. (Id. at 189). As Officer Dershem observed the
vehicle, she confirmed the red Mustang bore the same license plate Officer Hirschy
provided to her. (Id. at 190). The sole occupant of the vehicle was wearing a face
mask and hat. (Id. at 189-190). However, Officer Dershem observed the driver’s
hand on the steering wheel and ascertained the driver was a white male. (Id. at 214).
{¶13} Officer Dershem decided to conduct a traffic stop of the red Mustang
on the basis that she had reason to believe that it was involved in drug activity, the
license checks of O’Day indicated that his license was suspended, and a check of
the registered owner indicated that the owner possessed a temporary permit license.
(Id. at 192-193). Officer Dershem activated her overhead emergency lights to
initiate a traffic stop of the red Mustang. (Id. at 193-194). However, the vehicle
did not stop. Because it was 4:30 in the afternoon and still light outside, Officer
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Dershem “chirped” her emergency siren to get the driver’s attention in case the
driver did not immediately observe her overhead lights. (Id. at 194-195). Still, the
driver of the red Mustang did not stop. (Id. at 195).
{¶14} Then, Officer Dershem set her emergency siren to sound continuously.
(Nov. 7, 2022 Tr. at 195). Yet, the red Mustang did not stop. (Id.). Rather, after
initially slowing for a stop sign, the vehicle then took off at a high rate of speed in
a 25 mile-per-hour zone. (Id. at 195-196).
{¶15} As Officer Dershem continued to follow the red Mustang with her
overhead lights and emergency siren activated, she observed it proceed through a
four-way intersection at a speed of approximately 50 miles per hour in spite of a
stop sign and 25 mile-per-hour speed limit. (Id. at 197). Officer Dershem continued
the pursuit into a residential area, at which time Officer Dershem observed that she
was traveling at 75 miles per hour in a 25 mile-per-hour zone and the Mustang was
still pulling ahead of her. (Id.). Officer Dershem described the area as a “high foot
traffic area” that is nearby a park and typically has people bicycling and walking.
(Id.). However, Officer Dershem did not observe any pedestrians or vehicular
traffic in the immediate area, which Officer Dershem described as “very
uncharacteristic” given the unseasonably warm weather. (Id. at 197-198).
Accordingly, Officer Dershem felt that it was unsafe to continue traveling at the
high rate of speed through that area and deactivated her emergency lights and sirens.
(Id. at 198).
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{¶16} Officer Dershem continued to observe the red Mustang as it drove
through a posted stop sign across the street from the entrance to Woodland
Cemetery. (Id. at 199). Officer Dershem recalled she “physically cringed” as she
witnessed the Mustang continue through the stop sign without stopping because
cross-traffic does not stop at the intersection and trees and other obstructions impede
the view and render it a “really dangerous intersection.” (Id. at 199, 215). After
clearing the intersection, the Mustang drove left of center and collided with a stop
sign at the cemetery exit, snapping the sign off at the base. (Id. at 199-200, 215).
Officer Dershem assumed that the impact was going to be serious enough to render
the vehicle inoperable; however, the vehicle continued into the cemetery and out of
Officer Dershem’s sight. (Id. at 200).
{¶17} Shortly thereafter, Detective Joseph Motycka (“Det. Motycka”)
radioed that he had an individual at gunpoint in Woodland Cemetary. (Nov. 7, 2022
Tr. at 202). Upon arrival at Det. Motycka’s location, Officer Dershem handcuffed
the individual and read him his Miranda rights before Officer Hirschy removed the
suspect’s face mask and hat, revealing O’Day. (Id. at 202, 204-205).
{¶18} Officer Dershem observed the red Mustang had crashed into some
headstones approximately sixty yards from where O’Day was apprehended. (Id. at
202-203). Officer Dershem testified that, other than law enforcement officers, she
did not observe any other individuals in the cemetery. (Id. at 203-204, 216-217).
However, Woodland Cemetery, which is open to the public from dawn to dusk, was
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open at the time of the incident. (Id. at 202). Officer Dershem described the
cemetery as a “high pedestrian traffic” area where people would regularly jog, bike,
and walk. (Id.).
{¶19} On cross-examination, Officer Dershem clarified that her reasons for
initiating a traffic stop: (1) there was a reasonable expectation that the vehicle’s
registered owner, who had a temporary driver’s license, was driving the vehicle
without an eligible adult in the vehicle and (2) O’Day, whose driver’s license was
suspended, could not have legally been operating the vehicle. (Id. at 209). Officer
Dershem testified that, to her knowledge, the red Mustang’s keys were not located.
(Id. at 217-218).
{¶20} Det. Motycka testified that when he entered Woodland Cemetery he
observed a man dressed in dark clothing and a face mask not quite running but
moving “between a brisk walk and a slow jog.” (Nov. 7, 2022 Tr. at 221-222).
According to Det. Motycka, although he did not observe O’Day driving the red
Mustang, the description of the man he observed traveling by foot in the cemetery
was consistent with the description of the driver he heard over the radio. (Id. at 225-
226). Det. Motcyka ordered the man to stop and the man was subsequently arrested.
(Id. at 222-223). When the man’s face mask was removed, Det. Motcyka identified
the man as O’Day. (Id. at 224).
{¶21} Officer Staten, who documented the scene at Woodland Cemetery,
testified that several of the photographs depicted gaps of no tire tracks which
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indicate the vehicle was traveling at a high rate of speed and went off the road and
airborne at times. (Id. at 236-247). Officer Staten opined the red Mustang would
have been traveling “far in excess” of the speed limit inside the cemetery. (Id. at
253-254, 256-257). Officer Staten also assisted with an article search, which
included using a canine officer to track the path from the vehicle to the area O’Day
was apprehended. (Id. at 248-250). In his investigation, Officer Staten located a
glass pipe used for ingesting narcotics. (Id. at 251-252).
{¶22} Finally, the State offered the testimony of Isaiah Garland (“Garland”),
the registered owner of the red Mustang. (Id. at 260, 262-263). Garland stated that
in 2020 he was in a relationship with O’Day’s daughter, and he had allowed O’Day
to borrow his Mustang beginning in early December 2020. (Id. at 263-264).
Garland believed O’Day was in possession of the vehicle at the time of the accident.
(Id. at 263-265). Further, Garland denied driving the red Mustang or being in Van
Wert, Ohio on December 22, 2020. (Id. at 263, 266).
{¶23} The State rested. (Nov. 7, 2022 Tr. at 267). Then, O’Day made a
Crim.R. 29 motion for acquittal, which the trial court denied. (Id. at 268-269).
O’Day rested without presenting testimony or evidence. (Id. at 273).
{¶24} At the conclusion of the trial, the jury found O’Day guilty of failing to
comply with an order or signal of a police officer. The jury made the additional
finding that O’Day’s operation of the Mustang caused a substantial risk of serious
physical harm to persons or property.
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{¶25} O’Day appeared for sentencing on November 28, 2022 and was
sentenced to 36 months in prison. The trial court filed its judgment entry of
sentencing the following day.
{¶26} On December 5, 2022, O’Day filed his notice of appeal. He raises
four assignments of error.
First Assignment of Error
The trial court committed prejudicial error by denying Appellant’s motion to suppress.
{¶27} In his first assignment of error, O’Day argues that the trial court erred
by denying his motion to suppress evidence. Specifically, O’Day argues that law
enforcement lacked reasonable suspicion to initiate a traffic stop.
Standard of Review for a Motion to Suppress
{¶28} “Appellate review of a motion to suppress presents a mixed question
of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. At
a suppression hearing, the trial court assumes the role of trier of fact and, as such, is
in the best position to evaluate the evidence and the credibility of witnesses. Id. See
State v. Carter, 72 Ohio St.3d 545, 552 (1995). When reviewing a ruling on a
motion to suppress, “an appellate court must accept the trial court’s findings of fact
if they are supported by competent, credible evidence.” Burnside at ¶ 8, citing State
v. Fanning, 1 Ohio St.3d 19 (1982). With respect to the trial court’s conclusions of
law, however, our standard of review is de novo, and we must independently
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determine whether the facts satisfy the applicable legal standard. Id., citing State v.
McNamara, 124 Ohio App.3d 706 (4th Dist.1997).
Applicable Law and Analysis
{¶29} The Fourth Amendment to the United States Constitution guarantees
“[t]he right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures * * *.” “‘The primary purposes of the
Fourth Amendment is to impose a standard of reasonableness upon the exercise of
discretion by law enforcement officers in order to “safeguard the privacy and
security of individuals against arbitrary [governmental] invasions.”’” State v. Kerr,
3d Dist. Allen No. 1-17-01, 2017-Ohio-8516, ¶ 12, quoting State v. Carlson, 102
Ohio App.3d 585, 592 (9th Dist.1995), quoting Delaware v. Prouse, 440 U.S. 648,
99 S.Ct. 1391 (1979). “‘The Fourth Amendment does not proscribe all state-
initiated searches and seizures; it merely proscribes those which are unreasonable.’”
Id., quoting Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801 (1991), citing
Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793 (1990). “Thus, ‘[t]he touchstone
of the Fourth Amendment is reasonableness.’” Id., quoting Jimeno at 250.
{¶30} “Temporary detention of individuals during the stop of an automobile
by the police, even if only for a brief period and for a limited purpose, constitutes a
‘seizure’ of ‘persons’ within the meaning” of the Fourth Amendment.” Whren v.
United States, 517 U.S. 806, 809-810, 116 S.Ct. 1769 (1996), citing Prouse at 653,
United States v. Martinez-Fuerte, 428 U.S. 543, 556, 96 S.Ct. 3074 (1976), and
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United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574 (1975).
Accordingly, “[a]n automobile stop is * * * subject to the constitutional imperative
that it not be ‘unreasonable’ under the circumstances.” Id. at 810. An automobile
stop based on probable cause that a criminal violation, including a minor traffic
violation, has occurred or was occurring “is not unreasonable, and * * * an officer
who makes a traffic stop based on probable cause acts in an objectively reasonable
manner.” Dayton v. Erickson, 76 Ohio St.3d 3, 11-12 (1996). In this context,
“[p]robable cause ‘means less than evidence which would justify condemnation,’ so
that only the ‘probability, and not a prima facie showing of criminal activity is the
standard of probable cause.’” State v. Gonzales, 3d Dist. Seneca Nos. 13-13-31 and
13-13-32, 2014-Ohio-557, ¶ 18, quoting State v. George, 45 Ohio St.3d 325, 329
(1989).
{¶31} Here, O’Day argues that the stipulated facts do not establish
reasonable suspicion to initiate a traffic stop. At the hearing on the motion to
suppress, the parties stipulated to the following facts related to the stop of O’Day’s
vehicle. 1
[State]: [Y]our Honor, I believe * * *, and [counsel] can correct me if I’m wrong, but I believe this is a legal issue. I don’t think there’s any factual
1 Rather than proceed with an evidentiary hearing on the suppression motion, the parties agreed there was no factual dispute and the facts provided in their respective pleadings would be sufficient for the court to render a decision. Thereafter, the court summarized the stipulation for the record. Additionally, although the trial court gave the defense until April 28, 2022 and the State until May 5, 2022 to respond with further argument, neither party submitted additional replies or argument.
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determination that the Court will need to make on that. That can be handled through additional responses and replies with respect to the reasonable suspicion for the stop.
***
[Trial court]: Well we need to have a stipulation as to what the basis for the stop was. So, if I read the Motion right, the basis was that there was an informant, who was identified. And identified informant said that he saw a hand-to-hand transaction in the Walmart parking lot, identified two vehicles, the vehicle was seen shortly thereafter at the McDonald’s that, I don’t know if it’s clear in there, but the McDonald’s was right next to the Walmart. That there was a 45-minute gap between seeing the vehicle and a person matching the description at the McDonald’s, that another officer saw the vehicle that matched, and I believe the plate matched, is that right?
[State]: Yes, Your Honor.
[Trial court]: And that’s when that Officer initiated the stop. Is that right?
[Trial counsel]: Yes.
[Trial court]: So, * * * are you stipulating to that * * *?
[Trial counsel]: I am, Your Honor.
[Trial court]: Because we have some factual basis to evaluate the reasonableness for the stop.
[State]: I will add that, Your Honor, when running the plates, the owner did not return as Mr. O’Day. The owner returned to someone who had a
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temporary driver’s license and required a second adult to be in the car in order to drive legally. Um, and that both Officers, the first Officer then observed the vehicle at the McDonald’s parking lot, the second Officer initiated the stop. Those confirmed there was only one occupant of the vehicle. I do believe that’s relevant with respect to the question of reasonable suspicion to initiate a stop.
[Trial court]: Do you agree with that, [trial counsel]?
[Trial counsel]: Yes, Your Honor.
(Apr. 14, 2022 Tr. at 47-50).
{¶32} Based on the parties’ stipulation, the trial court denied O’Day’s motion
to exclude evidence. The attendant judgment entry provides as follows:
The Defendant has moved to exclude all evidence from an unlawful pursuit of him in his motor vehicle. This request is not supported by any offered legal argument. The Court was not offered nor did not find any cases that suggest the basis of the proposed stop for which the Defendant allegedly fled was deficient or if deficient that deficiency is relevant. The[re] is no offered argument that the Defendant enjoyed a privilege to ignore the signal.
The parties stipulated that the Defendant was operating a car alone that was registered to a person with a restricted license. They also stipulated an identified informant saw the vehicle at a hand-to-hand drug transaction and started a search for the vehicle. These facts give a reasonable suspicion to stop the vehicle. The [Court] Denies the motion.
(Doc. No. 71).
{¶33} O’Day asserts that the facts, as stipulated, did not give reasonable
suspicion for the traffic stop. Specifically, O’Day contends that because, at the
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suppression hearing, the trial court, in attempting to restate the parties’ stipulation,
only specified a “hand-to-hand transaction” rather than a “hand-to-hand drug
transaction” as the court found in its judgment entry, that the court was assuming
facts not in evidence. Additionally, he contends, “there is nothing in the record that
indicates that the caller thought there was anything illegal or suspicious about a
hand-to-hand transaction occurring in a Walmart parking lot.” (Appellant Brief at
10).
{¶34} However, contrary to O’Day’s argument, it is evident from the record
that although the trial court omitted the portion of the stipulated facts that the hand-
to-hand transaction at issue involved drugs, the parties were in agreement that the
transaction at issue was, in fact, a drug transaction. Notably, both parties, in their
briefing to the trial court, referenced a drug transaction. It is evident that, in crafting
the stipulation, the trial court referenced the facts presented in O’Day’s motion
which specified that the informant “called the Van Wert Police Department and
stated that he believed he witnessed a drug deal occur.” (Doc. No. 64).
Accordingly, the nature of the transaction was conceded by O’Day in his briefing
and was not a contested issue. Thus, the trial court did not err by referencing a drug
transaction.
{¶35} O’Day also challenges the reasonable suspicion for the traffic stop
because it was based, at least in part, on the basis that the registered owner of the
vehicle, who was not O’Day, possessed a temporary driver’s license requiring a
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licensed driver to be present in the vehicle. O’Day contends that because there was
some indication that he was driving the vehicle, rather than the registered owner,
the temporary nature of the owner’s driver’s license was irrelevant to establishing a
basis to initiate a traffic stop.
{¶36} Regardless, the caller had provided the license plate of the red
Mustang he observed participating in the drug transaction, which matched the
license plate of the red Mustang that Officer Dershem spotted. Additionally, the
State’s response to the motion to suppress indicated that Officer Hirshy was aware
that O’Day’s driver’s license was suspended, and as such, if he was driving the
vehicle, he was doing so in violation of the law. Accordingly, the record indicates
that Officer Dershem had reasonable articulable suspicion to believe that the vehicle
was being operated illegally –either by the registered owner who had a temporary
license or O’Day whose license was suspended.
{¶37} Therefore, the trial court did not err by determining there was lawful
cause to initiate a traffic stop of the vehicle. Accordingly, the trial court did not err
by denying O’Day’s motion to suppress.
{¶38} O’Day’s first assignment of error is overruled.
Second Assignment of Error
The Trial Court Committed Prejudicial Error by Denying Appellant’s Rule 29 Motion.
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Third Assignment of Error
Appellant’s Conviction Was Not Supported by Legally Sufficient Evidence.
Fourth Assignment of Error
Appellant’s Conviction Was Against the Manifest Weight of the Evidence.
{¶39} In his second assignment of error, O’Day argues that the trial court
erred by denying his Crim.R. 29 motion for acquittal. In this third assignment of
error, O’Day challenges the sufficiency of the evidence supporting his conviction.
In his fourth assignment of error, O’Day contends that his conviction was against
the manifest weight of the evidence, and therefore, must be reversed.
Standards for Sufficiency-of-the Evidence, Crim.R. 29, and Manifest Weight Review
{¶40} Manifest “weight of the evidence and sufficiency of the evidence are
clearly different legal concepts.” State v. Thompkins, 78 Ohio St.3d 380, 389
(1997). Accordingly, we address the sufficiency of the evidence and manifest
weight legal concepts individually.
{¶41} Pursuant to Crim.R. 29(A), “[t]he court on motion of a defendant * *
*, after the evidence on either side is closed, shall order the entry of a judgment of
acquittal of one or more offenses charged in the indictment * * *, if the evidence is
insufficient to sustain a conviction of such offense or offenses.” “Because the
purpose of a Crim.R. 29 motion for acquittal ‘is to test the sufficiency of the
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evidence presented at trial,’ we ‘review[ ] a denial of a Crim.R. 29 motion for
judgment of acquittal using the same standard that is used to review a sufficiency of
the evidence claim.’” (Bracketing in original.) State v. Brown, 3d Dist. Allen No.
1-19-61, 2020-Ohio-3614, ¶ 35, quoting State v. Willis, 12th Dist. Butler No.
CA2009-10-270, 2010-Ohio-4404, ¶ 9. Accordingly, we will address O’Day’s
challenges to the sufficiency of the evidence and the trial court’s denial of the
Crim.R. 29 motion together.
{¶42} “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.” State v. Jenks, 61 Ohio
St.3d 259 (1991), paragraph two of the syllabus, superseded by state constitutional
amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997).
Consequently, “[t]he 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. “In
deciding if the evidence was sufficient, we neither resolve evidentiary conflicts nor
assess the credibility of witnesses, as both are functions reserved for the trier of
fact.” State v. Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-
4775, ¶ 33.
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{¶43} On the other hand, in determining whether a conviction is against the
manifest weight of the evidence, a reviewing court must examine the entire record,
“‘weigh[ ] the evidence and all reasonable inferences, consider[ ] the credibility of
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 conviction must be reversed and a new trial ordered.’” Thompkins at 387,
quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing
court must, however, allow the trier of fact appropriate discretion on matters relating
to the weight of the evidence and the credibility of the witnesses. State v. DeHass,
10 Ohio St.2d 230, 231 (1967). When applying the manifest weight standard,
“[o]nly in exceptional cases, where the evidence ‘weighs heavily against the
conviction,’ should an appellate court overturn the trial court’s judgment.” State v.
Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v. Hunter,
131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.
O’Day’s Offense
{¶44} We first review the sufficiency of the evidence supporting O’Day’s
conviction.
{¶45} O’Day was convicted of failure to comply with order or signal of
police officer in violation of R.C. 2921.331(B), which provides, “[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
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to a stop.” R.C. 2921.331(B). The statute provides that “police officer” as used in
the statute, “has the same meaning as in section 4511.01 of the Revised Code” in
which “police officer” is defined as “every officer authorized to direct or regulate
traffic, or to make arrests for violations of traffic regulations.” R.C. 2921.331(F)(2);
R.C. 4511.01(Z). “Although ‘the term “willfully” is not defined in R.C. 2901.22,
which is the statutory provision that covers culpable mental states for criminal
liability,’ ‘the 1974 committee comments to R.C. 2901.22’ indicate that
‘“‘[p]urpose is defined in terms of a specific intention either to cause a certain result,
or to engage in conduct of a certain nature regardless of what the offender intends
to accomplish through that conduct. ‘Purposely’ in the new code equates with
‘purposely,’ ‘intentionally,’ ‘willfully,’ or ‘deliberately’ in the former law.”’” State
v. Kreischer, 3d Dist. Van Wert No. 15-20-09, 2021-Ohio-1235, ¶ 27, quoting State
v. Cole, 3d Dist. Seneca No. 13-10-30, 2011-Ohio-409, ¶ 22, quoting R.C. 2901.22.
{¶46} Additionally, O’Day was charged under R.C. 2921.331(C)(5)(a)(ii),
which enhances the offense to a third-degree felony if the trier of fact finds “[t]he
operation of the motor vehicle by the offender caused a substantial risk of serious
physical harm to persons or property.” A “‘[s]ubstantial risk’ means a strong
possibility, as contrasted with a remote or significant possibility, that a certain result
may occur or that certain circumstances may exist.” R.C. 2901.01(A)(8).
Analysis: Sufficiency of Evidence
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{¶47} In his second and third assignments of error, O’Day argues that the
State failed to present sufficient evidence to support his conviction. Specifically,
O’Day contends that the evidence produced at trial was not sufficient to demonstrate
that (1) his actions caused a substantial risk of serious physical harm to persons or
property and (2) that O’Day was the driver of the red Mustang. We disagree.
{¶48} In support of his argument that insufficient evidence was produced to
demonstrate that his actions caused a substantial risk of serious physical harm to
persons or property, O’Day relies on Officer Dershem’s testimony that she did not
observe any vehicular or pedestrian traffic in the area during the pursuit.
{¶49} However, Officer Dershem also described the lack of pedestrians or
vehicular traffic in the immediate area of the chase as “very uncharacteristic” given
the unseasonably warm weather. (Nov. 7, 2022 Tr. at 197-198). Indeed, Officer
Dershem perceived the risk of harm to persons to be so great that she terminated her
pursuit and deactivated her emergency lights because she believed continuing the
pursuit would be “unsafe.” (Id. at 198). Officer Dershem recalled the red Mustang
was pulling ahead of her as she traveled at a speed of 75 miles per hour in a
residential area. (Id. at 197). “While fortunately it appears no serious physical harm
to persons or property did occur, ‘[i]t is only the strong possibility that harm could
occur that creates culpability under R.C. 2921.331(C)(3). It is clear that simply
because an offender is fortunate enough not to actually cause harm is of no
consequence.’” State v. Barnhart, 4th Dist. Athens No. 21CA13, 2023-Ohio-3488,
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¶ 24, quoting State v. Gasioworowski, 8th Dist. Cuyahoga No. 80000, 2002-Ohio-
976, at *3 (Mar. 7, 2001), citing State v. Semenchuk, 122 Ohio App.3d 30 (8th
Dist.1997). Accordingly, we find O’Day’s argument to be without merit.
{¶50} O’Day also alleges that the State did not present sufficient evidence to
establish that he was the driver of the red Mustang. In support of this contention,
O’Day relies on the statements of several law enforcement officers that the keys to
the red Mustang were not located on or around O’Day’s person following his arrest.
O’Day also argues that “nobody was able to identify [him] driving the vehicle.”
(Appellant’s Brief at 14).
{¶51} “‘It is well settled that in order to support a conviction, the evidence
must establish beyond a reasonable doubt the identity of the defendant as the person
who actually committed the crime at issue.’” State v. Missler, 3d Dist. Hardin No.
6-14-06, 2015-Ohio-1076, ¶ 13, quoting State v. Johnson, 7th Dist. Jefferson No.
13 JE 5, 2014-Ohio-1226, ¶ 27, citing State v. Collins, 8th Dist. Cuyahoga No.
98350, 2013-Ohio-488, ¶ 19 and State v. Lawwill, 12th Dist. Butler No. CA2007-
01-014, 2008-Ohio-3592, ¶ 11. “‘[D]irect or circumstantial evidence is sufficient
to establish the identity of the accused as the person who committed the crime.’”
Collins at ¶ 19, quoting Lawwill at ¶ 11. Circumstantial evidence has no less
probative value than direct evidence. State v. Griesheimer, 10th Dist. Franklin No.
05AP-1039, 2007-Ohio-837, ¶ 26, citing Jenks, 61 Ohio St.3d 259, at paragraph one
of the syllabus. See also State v. Heinish, 50 Ohio St.3d 231, 238 (1990) (“This
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court has long held that circumstantial evidence is sufficient to sustain a conviction
if that evidence would convince the average mind of the defendant’s guilt beyond a
reasonable doubt.”).
{¶52} Viewing the evidence in a light most favorable to the prosecution, a
rational trier of fact could have found beyond a reasonable doubt that O’Day was
the driver of the red Mustang. The State presented evidence that two law
enforcement officers saw an individual wearing a face mask and a hat driving the
Mustang. Upon entering Woodland Cemetery, Det. Motycka observed a man
wearing a face mask and hat moving briskly through the cemetery near the location
of the disabled red Mustang. When the face mask and hat were removed, the
individual was identified as O’Day. Moreover, other than law enforcement O’Day
was the only person located in the cemetery. Additionally, Officer Staten testified
that canine officers followed O’Day’s scent from the red Mustang directly to the
location where he was apprehended.
{¶53} Although O’Day initially told law enforcement officers at the scene
that he was nearly hit by a car, he then became argumentative and asked the reason
for the stop, opining that it was to “harass” him. (Nov. 7, 2022 Tr. at 175).
Moreover, Garland, the registered owner of the vehicle testified that he loaned his
red Mustang to O’Day in early December and, to his knowledge, O’Day was in
possession of the vehicle on December 22, 2020.
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{¶54} Accordingly, we reject O’Day’s argument that the State did not
produce sufficient evidence to support his conviction.
{¶55} O’Day’s second and third assignments of error are overruled.
Analysis: Manifest Weight of Evidence
{¶56} Having determined that sufficient evidence supports O’Day’s
conviction for failure to comply with order or signal of police officer, we next turn
to his fourth assignment of error, wherein he argues that his conviction is against
the manifest weight of the evidence. However, in making this manifest-weight
argument, O’Day largely duplicates claims he made when challenging the
sufficiency of the evidence. O’Day summarily argues that “contradictory evidence”
was presented at trial suggesting that O’Day did not operate the red Ford Mustang—
namely that law enforcement officers were unable to directly identify him as the
driver, the key to the vehicle was not found on O’Day’s person, and no personal
items relating to O’Day were found in the vehicle. Additionally, O’Day attempts to
challenge the finding that his conduct posed a substantial risk of serious harm to
persons or properties on the basis that vehicular or pedestrian traffic was not present
in the immediate area of the pursuit.
{¶57} However, having conducted a review of the record and the evidence
in accordance with the standard set forth above, we do not find the jury clearly lost
its way and created such a manifest miscarriage of justice that we must reverse the
convictions and order a new trial.
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{¶58} O’Day’s fourth assignment of error is overruled.
Conclusion
{¶59} For the foregoing reasons, O’Day’s assignments of error are overruled.
Having found no error prejudicial to the appellant herein in the particulars assigned
and argued, we affirm the judgment of the Van Wert County Court of Common
Pleas.
WILLAMOWSKI, P.J. and WALDICK, J., concur.
/tmm
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