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State v. Tucker

Court of Appeals of Ohio, First District

July 3, 2013

STATE OF OHIO, Plaintiff-Appellee,
v.
MICHAEL L. TUCKER, Defendant-Appellant.

Hamilton County Municipal Court TRIAL NO. 07CRB-12810A

John P. Curp, City of Cincinnati Solicitor, Charles A. Rubenstein, City Prosecutor, and Lauren M. Yanovsky, Assistant City Prosecutor, for Plaintiff-Appellee,

Robert R. Hastings, Law Office of the Hamilton County Public Defender, for Defendant-Appellant.

OPINION

PER CURIAM

{¶1} Defendant-appellant Michael L. Tucker appeals from the Hamilton County Municipal Court's judgment overruling his motion for a new trial. We affirm the court's judgment.

{¶2} On the evening of April 12, 2007, Tucker was stopped by two uniformed city police officers who were responding to a radio broadcast concerning the armed robbery of a pizza-delivery driver by three men. For his conduct during this encounter, Tucker was charged by complaint with the misdemeanors of aggravated menacing and obstructing official business and the felonies of carrying a concealed weapon and having weapons while under a disability. The municipal court transferred those charges to its suspended docket after a Hamilton County Grand Jury returned an indictment charging Tucker, for the same conduct, with three felonies: two counts of carrying concealed weapons and a single count of tampering with evidence.

{¶3} In December 2007, the Hamilton County Common Pleas Court convicted Tucker upon his guilty pleas to tampering with evidence and a single count of carrying concealed weapons. From those convictions, Tucker took no appeal.

{¶4} In August 2008, the municipal court tried and convicted Tucker on the misdemeanor charges of aggravated menacing and obstructing official business. Tucker unsuccessfully challenged his aggravated-menacing conviction in his direct appeal to this court, State v. Tucker, 1st Dist. No. C-080285 (Mar. 8, 2009), and in a Crim.R. 33 motion for a new trial, filed with the municipal court in 2012.

{¶5} In this appeal, Tucker advances a single assignment of error challenging the municipal court's judgment overruling his new-trial motion. The challenge is untenable.

The Trial

{¶6} The municipal court convicted Tucker of aggravated menacing and obstructing official business upon testimony by one of the uniformed officers who had stopped Tucker and by a police officer who had participated in an internal investigation into their encounter.

{¶7} Officer Laboy. Officer Jose Laboy testified at trial that he had observed Tucker, who matched the description of the robbers, walking in the vicinity of the robbery. Officer Laboy instructed his partner, Officer Stephanie Ball, to stop their cruiser in Tucker's path. The officers stepped out of the cruiser, and Officer Laboy drew his gun. Tucker ignored Officer Ball's orders to stop, and continued walking toward Officer Ball's side of the cruiser, until Officer Laboy ordered him to stop. Tucker also ignored Officer Ball's initial command to turn around. According to Officer Laboy, when Officer Ball repeated her command, Tucker, who was wearing a hooded sweatshirt, began "turning, " and then, with his right hand, "reached * * * in his hood, and [pulled] a gun from his hood." Officer Laboy ordered Tucker to "stop." Tucker "didn't stop"; instead, "[h]e br[ought] the gun completely to the front of his body * * * and at that time [Officer Laboy made] a decision to shoot him, to stop his threat." The officer shot toward Tucker's "center mass." And Tucker ran.

{¶8} The officers pursued Tucker on foot. Officer Laboy kept his gun out and looked for a trail of blood, "because I know he's armed, " and "I know I sh[ot]. At that time I don't know if I hit him."

{¶9} While the officers were chasing Tucker, a police sergeant broadcast an inquiry concerning the gunshot. Officer Laboy tried unsuccessfully to broadcast that he had been the shooter. The officers abandoned their pursuit of Tucker, returned to their cruiser, and, ...


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