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State v. Kern

Court of Appeals of Ohio, Sixth District, Sandusky

May 19, 2017

State of Ohio Appellee
James A. Kern Appellant

         Trial Court Nos. 14TRD3216 14CRB218

          Timothy F. Braun, Sandusky County Prosecuting Attorney, for appellee.

          Mark D. Tolles, for appellant.


          PIETRYKOWSKI, J.

         {¶ 1} Appellant, James Kern, appeals the judgment of the Sandusky County Court, District No. 2, convicting him following a bench trial of one count of speeding in violation of R.C. 4511.21(D)(1), a minor misdemeanor, one count of reckless operation in violation of R.C. 4511.20(A), a minor misdemeanor, one count of failure to control in violation of R.C. 4511.202(A), a minor misdemeanor, and one count of fleeing and eluding in violation of R.C. 2921.331(B), a misdemeanor of the first degree. For the reasons that follow, we affirm.

         I. Facts and Procedural Background

         {¶ 2} The testimony at trial was largely undisputed, and revealed the following. On May 10, 2014, at approximately 10:30 p.m., Trooper Anthony Scherley with the Ohio State Highway Patrol was heading westbound on U.S. 6 in Sandusky County when he observed a motorcycle approaching him from the opposite direction travelling eastbound. Scherley testified that he checked the motorcycle's speed with his radar and found that the motorcycle was travelling 68 m.p.h. in a 55 m.p.h. zone. As Scherley began to turn his vehicle around, he heard the motorcycle rapidly accelerate. Scherley activated his lights and siren and a high speed chase ensued, during which Scherley approached speeds of 140 m.p.h. in an attempt to catch up with the motorcycle. Scherley observed the motorcycle turn southbound on County Road 26, run through a stop sign, and then turn left to head eastbound on County Road 33. In the distance, Scherley could barely see the motorcycle's taillight when he saw a quick brake light and then it disappeared.

         {¶ 3} As Scherley approached the scene on County Road 33, he found the motorcycle laying in the ditch on the edge of the roadway. No one was in the area at that time. Scherley testified that he observed a few drops of blood on the roadway and some riding glasses that also had blood on them. Scherley ran the plates on the motorcycle, and it came back being registered to appellant, who lives on County Road 33, approximately one quarter of a mile from where the motorcycle was found. Scherley also testified that he found a ticket for a Toledo Mud Hens baseball game for that night with appellant's name printed on it.

         {¶ 4} On cross-examination, Scherley testified that he did not see who was driving the motorcycle that night, and could not identify the driver. He further testified that no samples of the blood were taken to be analyzed.

         {¶ 5} Captain Michael Meggitt of the Sandusky County Sheriffs Office testified that he responded to the scene with the K-9 unit. Meggitt testified that the dog tracked from the scene north approximately 200 yards into a wooded area where there were some travel trailers. The dog then went west through a path for another several hundred yards, ending up at the back of appellant's residence. Meggitt testified that there was blood on the concrete pad near appellant's garage, as well as a blood smear on the screen door handle into the house. Meggitt knocked on every door, but there was no answer. No further action was taken that night.

         {¶ 6} On May 20, 2014, Deputy Eric Arquette of the Sandusky County Sheriff's Office responded to appellant's residence, after appellant called to file a theft report regarding his motorcycle. Arquette testified that when he arrived, he observed an injury to appellant's forehead that "was in various stages of healing." Arquette could not remember whether the injury was consistent with other "road rashes" that he has observed, but that it "could be consistent" with someone who was wearing glasses at the time the injury occurred. Arquette testified that he felt that appellant was filing a false report, and reminded appellant to be truthful. Appellant, however, continued to maintain that he was not involved in the accident, and that the motorcycle was indeed stolen. Appellant told Arquette that he rode his motorcycle to Toledo to attend the Mud Hens game, left early because it was getting colder, and upon arriving home he parked his motorcycle in the garage.

         {¶ 7} After Arquette's testimony, the state rested. Appellant moved for a judgment of acquittal under Crim.R. 29, which the trial court denied. Appellant then called his mother, Linda Kern, as a witness.

         {¶ 8} Linda testified on direct examination that on May 10, 2014, appellant came to visit her around 8:30 p.m. She said that she remembered the day because it was Mother's Day weekend and her husband was out of town and she asked appellant to come over because she was lonely. Linda testified that appellant arrived in his pickup truck, not on his motorcycle. The two of them watched a movie and ate tacos, then appellant spent the night. Linda testified that appellant was at her house the entire night.

         {¶ 9} The next time Linda saw appellant was on May 20, 2014, when he reported the motorcycle missing. Linda explained that she had been taking care of appellant's house while he was out of town for work, and that while she was mowing his yard on May 20, she noticed that his motorcycle was missing. She testified that appellant told her to contact the police and report the motorcycle stolen. When she called the police, however, she ...

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