State v. Scott

2013 Ohio 4599

Opinion

[Cite as State v. Scott, 2013-Ohio-4599.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 99524

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

CHARLES SCOTT, III DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-564740

BEFORE: McCormack, J., E.A. Gallagher, P.J., and Kilbane, J.

RELEASED AND JOURNALIZED: October 17, 2013 ATTORNEYS FOR APPELLANT

Robert Tobik Cuyahoga County Public Defender

By: Michael V. Heffernan Assistant Public Defender 310 West Lakeside Avenue Suite 200 Cleveland, OH 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor

By: Denise J. Salerno Assistant County Prosecutor 8th Floor, Justice Center 1200 Ontario Street Cleveland, OH 44113 TIM McCORMACK, J.:

{¶1} Defendant-appellant, Charles Scott, III (“Scott”), appeals his conviction for

two counts of failure to comply. He argues: (1) there was insufficient evidence from

which to convict him; (2) the trial court erred in failing to give the requested lesser

included jury instructions and in failing to separately instruct the jury on the two counts of

failure to comply; and (3) the verdict is inconsistent. After a thorough review of the

record, we affirm Scott’s convictions.

Procedural History and Substantive Facts

{¶2} On July 24, 2012, Scott was indicted as follows: (1) Counts 1 and 2 —

felonious assault in violation of R.C. 2903.11(A)(2); (2) Count 3 — failure to comply in

violation of R.C. 2921.331(B), with a furthermore specification that the operation of the

motor vehicle caused a substantial risk of serious physical harm to persons or property;

(3) Count 4 — failure to comply in violation of R.C. 2921.331(B), with a furthermore

specification that he was fleeing immediately after the commission of a felony; (4) Count

5 — criminal damaging or endangering in violation of R.C. 2909.06(A)(1); and (5) Count

6 — criminal trespass in violation of R.C. 2911.21(A)(1).

{¶3} A jury trial commenced on September 24, 2012. The jury found Scott not

guilty of the two counts of felonious assault and the criminal trespass in Counts 1, 2, and

6, respectively. It found Scott guilty of the criminal damaging in Count 5, failure to comply in Counts 3 and 4, and the furthermore specification in Count 3 of causing a

substantial risk of serious physical harm. The jury, however, found Scott not guilty of

the furthermore specification of fleeing immediately after the commission of a felony in

Count 4. The court imposed a sentence of 12 months imprisonment. Scott’s appeal

follows.

{¶4} Scott’s convictions stem from an incident that occurred on the evening of

July 15, 2012. Michael Sullivan, Brittney Bond, and Lori Kastak testified as to events

that occurred at Kastak’s residence on Southwood Drive in Brooklyn, Ohio on the

evening in question. Scott was visiting with his girlfriend, Brittney Bond, at her

mother’s home, when an alleged altercation took place between Scott and Michael

Sullivan, the alleged victim of the felonious assault charges. Sullivan, who is the

boyfriend of Lori Kastak, the owner of the home, resides with Kastak.

{¶5} Sullivan testified that after he arrived home, Scott began to jump on

Sullivan’s car, which was parked in the driveway, while saying “he was going to kill me.”

Sullivan then called 911 to report what Scott was doing. The jury convicted Scott of

criminal damaging or endangering for damage done to Sullivan’s vehicle. Sullivan also

testified that Scott threw beer bottles at him and then attempted to run him over with his

car. Scott was charged with two counts of felonious assault stemming from this incident,

of which the jury found Scott not guilty. According to Sullivan, after he dove under a

vehicle to get out of the way, Scott “took off [and] * * * we could hear a [police] chase

going on in the neighborhood.” {¶6} This appeal concerns the events that transpired once Scott left Kastak’s

property, for which Scott was charged with the failure to comply in Counts 3 and 4.

Officers Adam McQuaid, Joseph Bugaj, and Joe Traska testified at trial concerning

Scott’s failure to comply.

{¶7} Officer McQuaid testified that he was on Memphis Avenue when he got a

call from dispatch to head to a house on Southwood Drive for a disturbance. Dispatch

advised Officer McQuaid that the disturbance concerned a fight between two individuals,

and one person, Scott, was in a car and was potentially fleeing the scene. Believing Scott

was heading toward the highway, Officer McQuaid decided to drive toward Tiedeman

Road. Thereafter, another call came from dispatch that indicated Scott was still on

Southwood Drive, so Officer McQuaid headed in that direction.

{¶8} When Officer McQuaid arrived at the intersection of Biddulph Road and

Southwood Drive, he received a call from another officer, Officer Traska. Officer

Traska testified that he was on Southwood Drive and saw Scott pass him at a high rate of

speed. Officer McQuaid then stopped at the intersection and waited for Scott’s vehicle.

He testified that he saw Scott “coming from my right to head north” at a high rate of

speed. He activated his overhead lights before Scott reached the intersection. Officer

McQuaid stated that Scott came northbound from Southwood Drive and went through the

red light at Biddulph Road, which was in front of the officer, making no attempt to stop.

At that time, he attempted to initiate a traffic stop. He continued to attempt to initiate a

traffic stop after Scott passed through the intersection. {¶9} Officer McQuaid could not testify as to the exact speed with which Scott

was traveling on Southwood Drive; however, he testified that his own “top speed” while

traveling behind Scott was approximately 65 miles per hour. The speed limit on

Southwood Drive is 25 miles per hour. Officer McQuaid followed Scott for

approximately one-quarter of a mile until, ultimately, Scott could not navigate a right

turn. Officer McQuaid testified that he believed Scott was trying to get away from the

police and he didn’t know the road turned right. Once Scott became aware that he could

not navigate the turn, Officer McQuaid states that Scott hit his brakes and struck a road

sign. He then exited the vehicle and ran westbound on foot. Officer McQuaid

proceeded to chase Scott on foot through a residential neighborhood. Officer McQuaid

testified that his lights and siren were on during the entire chase.

{¶10} Officer McQuaid’s police cruiser is equipped with a dash cam, which

recorded the chase. The dash cam supported Officer McQuaid’s testimony that he turned

his lights on before Scott approached the intersection of Biddulph Road and Southwood

Drive. Officer McQuaid explained that the volume on the dash cam does not come on

unless and until his lights are activated. As the video played for the jury, the volume

came on, reflecting that, before Scott approached the intersection, his lights were on.

Officer McQuaid also noted that Officer Bugaj’s sirens were audible on the video as

Officer Bugaj headed in the direction of Officer McQuaid’s pursuit. The dash cam

recorded Scott braking, leaving tire marks, exiting the vehicle, and running from the

scene. {¶11} Officer Bugaj also answered the disturbance call on July 15. He testified

that he was traveling southbound on Southwood Drive and was about ten houses away

from Biddulph Road when he saw Scott’s vehicle heading in the opposite direction. He

immediately turned around and turned his lights on. Officer Bugaj stated that Scott was

traveling at a high rate of speed as he passed through the red light in the intersection. As

Officer Bugaj traveled northbound on Southwood Drive, Officer McQuaid called out that

Scott was running and he was engaged in a foot chase. Officer Bugaj was not far from

the scene when he received Officer McQuaid’s call. He stated that it was difficult to see

what was transpiring due to Officer McQuaid’s lights; however, when he arrived on the

scene, he could see that Scott’s door was open, the vehicle was running, and the vehicle

was rested at the curb. Officer Bugaj proceeded to give chase as well.

{¶12} Officers McQuaid and Bugaj both testified that Scott was combative and

verbally abusive during his arrest. Officer Bugaj inventoried the vehicle and took

photographs. He testified that the car that was rested at the curb was the same vehicle

that had passed him earlier at a high rate of speed.

Assignments of Error

I. The evidence presented in Counts 3 and 4 is insufficient to prove Scott guilty beyond a reasonable doubt, where Scott was acquitted of the underlying felony charges, where the furthermore specification in Count 4 was not met and where the crimes charged in Counts 3 and 4 were felony charges themselves.

II. The trial court erred in failing to give the requested lesser included instruction and failing to separately instruct the jury on Counts 3 and 4 to the jury. III. The inconsistent verdict requires reversal.

Sufficiency of the Evidence

{¶13} Under his first assignment of error, Scott claims that his conviction for

failure to comply in Counts 3 and 4 and the furthermore specification of causing

substantial risk of physical harm in Count 4 is not supported by sufficient evidence. We

disagree.

{¶14} When reviewing a challenge of the sufficiency of the evidence, a reviewing

court examines the evidence admitted at trial and determines 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, 574 N.E.2d 492 (1991), paragraph two of the

syllabus. “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.

{¶15} A sufficiency challenge requires us to review the record to determine

whether the state presented evidence on each of the elements of the offense. State v.

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). A reviewing court is

not to assess “whether the state’s evidence is to be believed, but whether, if believed, the

evidence against a defendant would support a conviction.” State v. Thompkins, 78 Ohio

St.3d 380, 390, 1997-Ohio-52, 678 N.E.2d 541.

{¶16} The failure to comply offense of which Scott was found guilty provides that

“[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 to a stop.” R.C. 2921.331(B). The term “willfully” is synonymous with

“purposely” or “intentionally”:

The term “willfully” is not defined in R.C. 2901.22, which is the statute that covers culpable mental states for criminal liability. However, the 1974 committee comments to R.C. 2901.22 state as follows: “Purpose 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. Roberts, 8th Dist. Cuyahoga No. 91086, 2009-Ohio-5750, ¶ 8; State v. Cole, 3d

Dist. Seneca No. 13-10-30, 2011-Ohio-409, ¶ 22. Generally, the intent of a person

cannot be proven by direct evidence; therefore, proof of intent may be demonstrated

through circumstantial evidence. Cole at ¶ 23, citing State v. Lott, 51 Ohio St.3d 160,

168, 555 N.E.2d 293 (1990).

{¶17} Scott was also found guilty of the furthermore clause specifying that through

the operation of his motor vehicle, Scott “caused a substantial risk of serious physical

harm to persons or property.” See R.C. 2921.331(C)(5)(a)(ii).

{¶18} R.C. 2901.01(A)(8) defines “substantial risk” as “a strong possibility, as

contrasted with a remote or significant possibility, that a certain result may occur or that

certain circumstances may exist.”

{¶19} In this case, Officer McQuaid testified that he saw Scott approaching the

intersection at a high rate of speed. He then activated his lights and siren before Scott

reached the intersection. Scott went through the red light at Biddulph Road, which was in front of the officer, making no attempt to stop. Officer McQuaid testified that his own

speed while traveling behind Scott was approximately 65 miles per hour in a

25-mile-per-hour zone. He followed Scott for approximately one-quarter of a mile until

Scott could not navigate a right turn. Scott hit his brakes, struck a road sign, and stopped

the vehicle. He then exited the vehicle and fled on foot through a residential

neighborhood, where Officer McQuaid resumed the chase on foot. Officer McQuaid

testified that his lights and siren were on during the entire chase.

{¶20} Officer Bugaj also testified that he observed Scott traveling at a high rate of

speed as he ran the red light in the intersection. Officer Bugaj immediately turned

around and turned his lights on and joined the pursuit. He testified that he observed

Officer McQuaid’s lights on when he discovered Scott’s vehicle resting at the curb, with

the engine running and the door open.

{¶21} Finally, Officer McQuaid’s dash cam video supports his testimony that his

lights were on before Scott approached the intersection. The video also captured Officer

Bugaj’s sirens, as Officer Bugaj headed in the direction of Officer McQuaid’s pursuit.

The dash cam further recorded Scott braking, leaving tire marks, exiting the vehicle, and

running from the scene.

{¶22} After reviewing this evidence in a light most favorable to the state, we find

that the state presented sufficient evidence to establish that Scott operated his car so as to

willfully elude or flee a police officer after receiving a visible or audible signal to stop.

Where the officers giving chase activated lights and sirens and began to follow Scott, who traveled through a red light at a high rate of speed until abruptly stopping where he could

not navigate the turn, we can infer that Scott acted willfully with respect to the charge of

failure to comply. “‘It is a fundamental principle that a person is presumed to intend the

natural, reasonable and probable consequences of his voluntary acts.’” Lott, 51 Ohio

St.3d at 168, 555 N.E.2d 293 (1990), quoting State v. Johnson, 56 Ohio St.2d 35, 39,

381 N.E.2d 637 (1978); State v. Garrard, 170 Ohio App.3d 487, 2007-Ohio-1244, 867

N.E.2d 887 (10th Dist.) (holding that it could be inferred that the defendant acted

willfully concerning a failure to comply charge where the police activated lights and siren

and began to follow the defendant in his vehicle, the defendant continued to speed, and

prolonged the police pursuit); Roberts, 8th Dist. Cuyahoga No. 91086, 2009-Ohio-5750

(holding that where defendant drove 50 m.p.h. in a 25 m.p.h. zone and drove through

two stop signs and a red light, defendant’s conviction for failure to comply was supported

by sufficient evidence).

{¶23} Furthermore, we find that the evidence presented by the state, as outlined

above, is sufficient to establish that Scott’s operation of his motor vehicle while fleeing

the police caused a substantial risk of serious physical harm to persons or property. By

leading police on a chase, Scott created a strong possibility of injuring himself, the police

chasing him, and other pedestrians or drivers on the road.

{¶24} Accordingly, we find sufficient evidence to support Scott’s conviction, and

his first assignment of error is overruled.

Jury Instructions {¶25} In his second assignment of error, Scott contends that the trial court erred in

not separately instructing the jury with respect to Counts 3 and 4 and in failing to give the

requested lesser included instruction. Scott’s proposed jury instruction is outlined in

court’s exhibit A and states as follows:

GUILTY OF LESSER INCLUDED OFFENSE. * * * If you find that the state failed to prove beyond a reasonable doubt all the essential elements stated in the furthermore elements of Failure to Comply, then your verdict must be not guilty of that offense; and in that event, you will continue your deliberations to decide whether the state has proved beyond a reasonable doubt all the essential elements of the lesser included offense of Failure to Comply.

EXPLAIN LESSER OFFENSE. The offense of Failure to Comply with visible or audible order of police officer is distinguished from the charges outline[d] in Counts 3 and 4 by the absence or failure to prove the furthermore specifications of (1) the defendant[’s] operation of the motor vehicle caused a substantial risk of serious physical harm to persons or property, and (2) that defendant was fleeing immediately after commission of a felony.

{¶26} It is unclear from Scott’s proposed jury instruction or his brief exactly what

lesser included jury instruction he sought to have included. Indeed, when defense

counsel proposed the instruction as outlined above, the trial court stated, “I am not

following you one bit.” We cannot fault the trial court for not understanding what jury

instruction Scott proposed.

{¶27} In this case, the trial court instructed the jury on failure to comply in Counts

3 and 4. The court then instructed the jury on the furthermore specifications contained in

those counts:

So this is count 3, further finding. If your verdict is guilty you must decide * * * whether the defendant’s operation of a motor vehicle did or did not cause a substantial risk of serious physical harm to person or property. If your verdict is not guilty, you will not make any further determination regarding this further finding.

***

So that was count 3’s further finding. Now, this is count 4’s.

If your verdict is guilty you must decide * * * whether the defendant was fleeing immediately after the commission of a felony. Felonious assault is a felony.

If your verdict is not guilty you will not make any further determination regarding this further finding.

{¶28} The court’s instructions are appropriate and clear. If the jury determined

that Scott was guilty of failure to comply, in either count, it could then decide whether

Scott was guilty of the respective furthermore specification. If, however, the jury

determined that Scott was not guilty of failure to comply, then it would not reach the

respective issue presented in the furthermore specification. We find no error in these

instructions.

{¶29} Furthermore, we do not find that the trial court failed to separately instruct

the jury on failure to comply in Counts 3 and 4 or on the respective furthermore

specifications. On the contrary, our review of the transcript revealed that the court

repeatedly informed the jury that Counts 3 and 4 were separate offenses:

The defendant * * * is charged separately in count 3 and count 4 with failure to comply in violation of 2921.331(B). Before you can find the defendant guilty you must find * * * the defendant operated 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. ***

If you find the state failed to prove beyond a reasonable doubt any one or more of the essential elements of the offense of failure to comply as charged separately in count 3 and/or count 4 of the indictment, your verdict must be not guilty according to your findings.

Count 3. Now, remember, failure to comply is in count 3 and 4. They are the same base charge but there’s a different furthermore for each count. And so I’m now going to read to you the further findings that you may or may not have to deliberate on. So they are different for count 3 and count 4. I just want to point that out to you.

So that was count 3’s further finding. Now, this is count 4’s.

* * *.

(Emphasis added.)

{¶30} Accordingly, the record reflects that the trial court did, in fact, charge the

jury separately as indicted. We, therefore, find no error in the court’s jury instructions

with respect to addressing the charges separately. Moreover, Scott has failed to provide

any evidence that he was prejudiced by the court’s instructions as charged.

{¶31} Scott’s second assignment of error is overruled.

Inconsistent Verdict

{¶32} In his third assignment of error, Scott claims that the verdict is inconsistent.

We find no merit to this argument.

{¶33} The jury found Scott not guilty of the felonious assault charges in Counts 1

and 2. The jury also found Scott not guilty of the furthermore specification in Count 4 of

fleeing immediately after the commission of a felony. R.C. 2921.331(C)(4). This specification requires proof that an offender was fleeing after the commission of a felony.

Because Scott was found not guilty of the felonious assault charges, the jury’s verdict is

consistent.

{¶34} Scott’s third assignment of error is, therefore, overruled.

{¶35} Judgment is affirmed.

It is ordered that appellee recover of appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

______________________________________________ TIM McCORMACK, JUDGE

EILEEN A. GALLAGHER, P.J., and MARY EILEEN KILBANE, J., CONCUR