State v. Seibert

2024 Ohio 5257

• Court: Ohio Court of Appeals
• Decided: November 4, 2024
• Docket: 15-24-03
• Status: Published

Opinion

[Cite as State v. Seibert, 2024-Ohio-5257.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT VAN WERT COUNTY

STATE OF OHIO, CASE NO. 15-24-03 PLAINTIFF-APPELLEE,

v.

ROBERT KAURY SEIBERT, OPINION

DEFENDANT-APPELLANT.

Appeal from Van Wert County Common Pleas Court Trial Court No. 23-CR-04-047

Judgment Affirmed

Date of Decision: November 4, 2024

APPEARANCES:

Ian A. Weber for Appellant

Eva Jane Yarger and Morgan A. Jackson for Appellee Case No. 15-24-03

WALDICK, J. {¶1} Defendant-appellant, Robert K. Seibert (“Seibert”), brings this appeal

from the February 7, 2024 judgment of the Van Wert County Common Pleas Court

sentencing him to 36 months in prison after a jury found him guilty of Failure to

Comply with an Order or Signal of a Police Officer (“Failure to Comply”). On

appeal, Seibert argues that his conviction was against the manifest weight of the

evidence. For the reasons that follow, we affirm the judgment of the trial court.

Background

{¶2} On April 6, 2023, Seibert was indicted for Failure to Comply in

violation of R.C. 2921.331(B), 2921.331(C)(5)(a)(ii), a third degree felony, and

Tampering with Evidence in violation of R.C. 2921.12(A)(1), a third degree felony.

Seibert pled not guilty to the charges.

{¶3} Seibert proceeded to a jury trial wherein he was convicted of Failure to

Comply, but acquitted of Tampering with Evidence. On February 7, 2024, Seibert

was sentenced to serve 36 months in prison on the Failure to Comply charge.1 It is

from this judgment that Seibert appeals, asserting the following assignments of error

for our review.

1 Seibert was ordered to serve the prison term consecutive to a prison term imposed in another county.

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First Assignment of Error The Appellant’s conviction for failure to comply with order or signal of police officer in violation of R.C. 2921.331(B), 2921.331(C)(5)(a)(ii) is against the manifest weight of the evidence as the State of Ohio failed to prove beyond a reasonable doubt that Appellant’s operation of a motor vehicle caused a substantial risk of serious physical harm to persons or property. Second Assignment of Error The Appellant’s conviction for failure to comply with order or signal of police officer (3rd Degree felony) in violation of R.C. 2921.331(B), 2921.331(C)(5)(a)(ii) is against the manifest weight of the evidence as the State of Ohio failed to prove beyond a reasonable doubt that Appellant’s failure to comply with order or signal of police officer while operating the vehicle was willful. {¶4} As both assignments of error concern the weight of the evidence, we

will address them together.

First and Second Assignments of Error

{¶5} In his first assignment of error, Seibert argues that the evidence did not

establish that his operation of a motor vehicle while fleeing from police created a

substantial risk of serious physical harm to persons or property. In his second

assignment of error, Seibert argues that the State failed to establish that his conduct

was “willful.”

Standard of Review

{¶6} When reviewing whether a verdict was against the manifest weight of

the evidence, the appellate court sits as a “thirteenth juror” and examines the

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conflicting testimony. State v. Thompkins, 1997-Ohio-52. In doing so, an appellate

court must review 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 factfinder “clearly lost its way and created such a

manifest miscarriage of justice that the conviction must be reversed and a new trial

ordered.” Id. Nevertheless, when assessing a manifest-weight challenge, a

reviewing court must allow the trier-of-fact appropriate discretion on matters

relating to 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, 2012-Ohio-5233, ¶ 9 (3d

Dist.), quoting State v. Hunter, 2011-Ohio-6524, ¶ 119.

Controlling Authority

{¶7} Seibert was convicted of “Failure to Comply” in violation of R.C.

2921.331(B)/(C)(5)(a)(ii), which reads as follows:

(B) No 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.

***

(C)(1) Whoever violates this section is guilty of failure to comply with an order or signal of a police officer.

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(5)(a) A violation of division (B) of this section is a felony of the third degree if the jury or judge as trier of fact finds any of the following by proof beyond a reasonable doubt:

(ii) The operation of the motor vehicle by the offender caused a substantial risk of serious physical harm to persons or property.

{¶8} Revised Code 2901.01(A) defines “serious physical harm to persons”

and “serious physical harm to property” as follows:

(5) “Serious physical harm to persons” means any of the following:

(a) Any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment;

(b) Any physical harm that carries a substantial risk of death;

(c) Any physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary, substantial incapacity;

(d) Any physical harm that involves some permanent disfigurement or that involves some temporary, serious disfigurement;

(e) Any physical harm that involves acute pain of such duration as to result in substantial suffering or that involves any degree of prolonged or intractable pain.

(6) “Serious physical harm to property” means any physical harm to property that does either of the following: -5- Case No. 15-24-03

(a) Results in substantial loss to the value of the property or requires a substantial amount of time, effort, or money to repair or replace;

(b) Temporarily prevents the use or enjoyment of the property or substantially interferes with its use or enjoyment for an extended period of time.

(8) “Substantial 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.

Evidence Presented

{¶9} Around 4:30 p.m. on July 12, 2022, Seibert drove a silver Acura to

Tyler Short Stop, a carryout in Van Wert. Employees at a muffler shop across the

street noticed the Acura when it arrived at the Short Stop because the vehicle had a

loud, modified exhaust. Seibert had his friend with him, James Vibbert, and they

both went inside Short Stop. They were recorded on surveillance cameras in the

store.

{¶10} After purchasing some items, Seibert and Vibbert left the store. An

employee from the muffler shop across the street testified that while he saw two

men get out of the silver Acura and go into Short Stop, he did not see them get into

the car to leave; however, he did hear the Acura leaving, describing it as accelerating

“heavily.” (Tr. at 210).

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{¶11} Sergeant Cory Hirschy of the Van Wert City Police Department was

on patrol in a marked cruiser at approximately 4:40 p.m. when he noticed a silver

vehicle leaving Tyler Short Stop. He testified that there were two occupants in the

vehicle and that he noticed that the vehicle had an expired registration sticker.

{¶12} Sergeant Hirschy testified that he followed the vehicle and tried to

catch up to it to get the license plate number and confirm that the registration was

expired. However, as he tried to get close to the vehicle at an upcoming stop sign,

he observed the vehicle “bl[o]w through the stop sign” and take off. (Tr. at 308).

Sergeant Hirschy testified that he then activated his lights and sirens and followed

the vehicle but the vehicle did not stop.

{¶13} Sergeant Hirschy testified that the silver vehicle accelerated and he

followed. Sergeant Hirschy testified that the vehicle began to drive at high rates of

speed. Sergeant Hirschy followed the vehicle from North Race Street to East

Sycamore Street, to North Wayne Street, to Lincoln Highway, but he was not able

to catch the vehicle.

{¶14} Sergeant Hirschy’s speed was recorded while he followed the silver

vehicle. Sergeant Hirschy traveled as fast as 71 mph in a 25 mph zone, 75 mph in a

35 mph zone, and 84 mph in a 55 mph zone while following and trying to catch the

silver vehicle.

{¶15} Sergeant Hirschy testified that he witnessed the silver vehicle nearly

cause two accidents. At the intersection of North Wayne Street and Lincoln

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Highway, Sergeant Hirschy testified that he observed the silver vehicle turn left onto

Lincoln Highway, weaving between multiple cars in the area, specifically cutting

off a driver who was in the process of turning right onto Lincoln Highway from the

opposite direction. Sergeant Hirschy testified that if the driver of the vehicle that the

silver Acura cut off had not stopped, there would have been a collision. (Tr. at 314).

Sergeant Hirschy testified that he eventually deactivated his lights and sirens

because he did not want to “push” the situation further to cause the driver “to make

even more inappropriate decisions.” (Id.)

{¶16} Sergeant Hirschy testified that he tried to keep the silver Acura within

eyesight as he followed it toward US Route 30. Sergeant Hirschy testified that he

observed the silver Acura pass a vehicle on Lincoln Highway while a red car was

coming in the opposite direction. Sergeant Hirschy testified he thought there was

going to be a collision. Sergeant Hirschy testified that he lost sight of the silver

vehicle near US Route 30 and he terminated his pursuit. He testified that the pursuit

lasted approximately four minutes.

{¶17} After terminating his pursuit, Sergeant Hirschy went back to the Short

Stop and reviewed the footage of the individuals who were in the vehicle. He did

not know Seibert at the time, but when he circulated a picture from the Short Stop,

another officer recognized Seibert. Sergeant Hirschy also learned that Seibert lived

with his grandmother in the area, so over the next several days he periodically

checked the residence for Seibert.

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{¶18} On July 18, 2022, the employee from the muffler shop across from the

Short Stop saw the Acura again, though it had been painted a “baby blue” or “sky

blue.” Despite the color change, the employee was certain the vehicle was the same

because he saw that the interior “door jams” were still silver. (Tr. at 215). The

employee called the police but by the time the police arrived the vehicle was gone.

{¶19} On July 19, 2022, Sergeant Hirschy went to Seibert’s grandmother’s

residence and Seibert was in the garage. The now light-blue Acura was in the

driveway and the area smelled like paint. Sergeant Hirschy testified that Seibert was

wearing the same shorts that he was in the surveillance video from July 12, 2022,

and that Seibert appeared nervous.

{¶20} Sergeant Hirschy testified that Seibert indicated the Acura was his, but

Seibert was unwilling to open the car door so Sergeant Hirschy could look at the

door jams. Sergeant Hirschy testified that there were multiple other license plates in

the vehicle, including one with the expired tag. The vehicle was not registered to

Seibert. Seibert denied fleeing from the police.

{¶21} Seibert’s friend, James Vibbert, testified at trial that he was the

individual with Seibert at the Short Stop on the date in question. He initially testified

that he did not remember riding with Seibert while Seibert was being chased by the

police. However, on cross-examination, Vibbert was asked if Seibert was running

from police on the date in question and Vibbert testified, “I, I think so, maybe.” (Tr.

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at 344). Vibbert’s testimony was somewhat obstreperous, but he contended that he

was high at the time of the incident and he did not remember much.

{¶22} Seibert testified on his own behalf at trial. He testified that on the date

in question he was driving the silver Acura, which was owned by a friend. He

testified that he went to Short Stop and purchased some items, then left. He testified

that he noticed the police officer behind him, and that he saw the police officer’s

lights go on at one point, but Seibert testified the lights were turned off quickly and

there were no sirens.

{¶23} Seibert testified that he did not do anything abnormal while driving.

He testified that he passed some cars but he stated that they were going under the

speed limit. Further, Seibert testified that he did not nearly cause any accidents while

driving. He maintained that Sergeant Hirschy was lying and exaggerating, claiming

that the police department was specifically looking to get him.2 As to the car’s color

change, Seibert testified that the owner of the vehicle was the one who decided to

paint it a different color, not him.

{¶24} Notably, Seibert was combative during cross-examination, and at one

point he attempted to stop answering questions. He acknowledged having prior

2 Sergeant Hirschy testified that his office had received a “Read and Sign” essentially telling them to be on the lookout for Seibert in the days before July 12, 2022. Sergeant Hirschy testified that although the “Read and Sign” indicated that Seibert would be driving a sporty, two-door car with a black hood and a black front bumper, he was drawn to the car because of the noise and the expired sticker. He testified he could not even see the black hood of the car initially.

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felony convictions, but he said he pled guilty in previous cases because he was

actually guilty.

{¶25} The State entered numerous exhibits into evidence, including maps

illustrating the path that Sergeant Hirschy took to follow Seibert on the date in

question. The State also presented surveillance video from Short Stop and numerous

photographs.

Analysis

{¶26} Seibert first contends that his conviction for Failure to Comply is

against the manifest weight of the evidence because the evidence did not establish

beyond a reasonable doubt that his actions caused a substantial risk of serious

physical harm to persons or property. We disagree.

{¶27} Sergeant Hirschy testified that during his pursuit of Seibert, there were

almost two motor vehicle collisions. The first collision was at the intersection of

North Wayne Street and Lincoln Highway, where Seibert’s vehicle cut off another

vehicle that was in the process of turning. Sergeant Hirschy specifically testified

that if the other vehicle would not have stopped, he assumed there would have been

a collision.

{¶28} The second near collision was when Seibert passed a vehicle while a

red vehicle was coming in the opposite direction. Sergeant Hirschy testified that

Seibert was driving fast and reckless, and that he was a danger to the public.

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Moreover, Sergeant Hirschy terminated his pursuit of Seibert because he was

concerned for the safety of the public and he did not want Seibert to make “even

more inappropriate decisions.” (Tr. at 314).

{¶29} It is a perfectly reasonable assessment of the evidence for a jury to

conclude that Seibert’s actions created a substantial risk of serious physical harm to

persons, or serious physical harm to property. State v. Hopkins, 2010-Ohio-2441,

¶ 24 (5th Dist.) (holding that the fact that Appellant did not cause an actual collision

with another vehicle is irrelevant. “Here, he was convicted under R.C.

2921.331(C)(5)(a)(ii), which deals with a ‘substantial risk.’ Because Appellant was

fortunate enough not to actually cause harm is of no consequence.”); see also State

v. Eldridge, 2023-Ohio-3998, ¶ 51 (2d Dist.). We emphasize that the statute does

not require that actual harm occur, rather it requires that there was a substantial risk

of serious physical harm to persons or property. State v. Scott, 2012-Ohio-3811, ¶

19 (8th Dist.)

{¶30} Seibert attempts to undermine the State’s evidence by arguing that

Sergeant Hirschy was not credible, but the jury disagreed. We will not second-guess

a factfinder’s credibility determinations. See DeHaas, supra.

{¶31} Moreover, “ ‘[i]f the evidence is susceptible of more than one

construction, the reviewing court is bound to give it that interpretation which is

consistent with the verdict and judgment, most favorable to sustaining the verdict

and judgment.’ ” State v. Foster, 2024-Ohio-2924, ¶ 37 (10th Dist.), quoting Eastley

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v. Volkman, 2012-Ohio-2179, ¶ 21. After reviewing the record in its entirety, we

find that Seibert’s conviction for Failure to Comply is not against the weight of the

evidence on the issue of whether he created a substantial risk of serious physical

harm to persons or property. Therefore, his first assignment of error is overruled.

{¶32} In his second assignment of error, Seibert argues that his conviction

was against the manifest weight of the evidence because the evidence did not

support that he acted with “willful” intent.

{¶33} As we have stated previously, the term “willful” is not defined in R.C.

2901.22, which is the statutory section that defines culpable mental states for

criminal liability. State v. Cole, 2011-Ohio-409, ¶ 22 (3d Dist.). However, the 1974

committee comments to R.C. 2901.22 state the following: “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.” Generally, the intent of a person

cannot be proven by direct evidence, thus proof can be shown by circumstantial

evidence. Cole at ¶ 23.

{¶34} Here, Seibert argues that the pursuit was limited in time and Seibert

testified he did not see the officer’s lights or hear the sirens. He argues that the

evidence did not support that he was willfully eluding the police.

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{¶35} However, the jury saw and heard Seibert testify, and could readily

determine that his claims were not credible. This is particularly true given the

testimony that Seibert ran a stop sign, weaved through multiple cars, and drove at

high rates of speed while fleeing from Sergeant Hirschy. These factors constitute

significant circumstantial evidence from which a jury could conclude that Seibert

was fleeing “willfully.” Based on the evidence in the record, we do not find that

Seibert’s conviction is against the manifest weight of the evidence. Therefore,

Seibert’s second assignment of error is overruled.

Conclusion

{¶36} Having found no error prejudicial to Seibert in the particulars assigned

and argued, his assignments of error are overruled. The judgment of the Van Wert

County Common Pleas Court is affirmed.

WILLAMOWSKI, P.J. and MILLER, J., concur.

/jlm

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