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State v. Moultry

Court of Appeals of Ohio, Ninth District, Summit

November 22, 2017

STATE OF OHIO Appellee
v.
KEVIN A. MOULTRY Appellant

         APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 15 12 3850

          DAVID G. LOMBARDI, Attorney at Law, for Appellant.

          SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.

          DECISION AND JOURNAL ENTRY

          HENSAL, PRESIDING JUDGE.

         {¶1} Kevin Moultry appeals his conviction for failure to comply with an order or signal of a police officer from the Summit County Court of Common Pleas. We affirm.

         I.

         {¶2} This appeal involves a police chase that occurred in a Walmart parking lot after an officer approached Kevin Moultry about a suspected theft. According to the testimony presented at trial, an asset protection associate on duty at Walmart saw Mr. Moultry place several items into a grocery cart and then exit the store without paying for them. The asset protection associate followed Mr. Moultry out of the store and flagged down a police officer, who was driving through the Walmart parking lot at the time. The asset protection manager directed the officer to a parked SUV that Mr. Moultry had entered.

         {¶3} The officer pulled his cruiser behind the parked SUV and Mr. Moultry exited the vehicle. After patting Mr. Moultry down, the officer instructed him to stand near the cruiser while the officer looked through the windows of the SUV. After observing several packages of food on the floor of the SUV, the officer instructed Mr. Moultry to "[c]ome here[, ]" at which point Mr. Moultry began to run through the Walmart parking lot. The officer chased him on foot, instructing Mr. Moultry to stop and advising him that he would tase him.

         {¶4} Mr. Moultry ignored the officer's instruction and eventually ran back to the police cruiser and got into the driver's seat while the officer tried unsuccessfully to tase him. The officer testified that as he was reaching into the driver's side of the cruiser trying to keep the gear shifter from going into drive and "still hanging in the vehicle, [Mr. Moultry] throws it in drive, hits the gas, and slams into the back end of the [SUV] * * * that he got out of." The officer managed to put the cruiser into park or neutral, but the engine continued to rev because Mr. Moultry still had his foot on the accelerator. The officer then managed to reach over Mr. Moultry and shut the engine off. While doing so, Mr. Moultry struck the officer in the face with his fist, causing a cut to the officer's lip. Mr. Moultry then climbed over the center console, exited the cruiser, and took off running again. This time, he ran back into the Walmart store. He emerged shortly thereafter, having removed his jacket and hat, presumably to avoid detection.

         {¶5} Meanwhile, other officers had responded to the scene. Despite having removed his jacket and hat, the officer recognized Mr. Moultry as he exited the store. The officer instructed Mr. Moultry to stop, and alerted the other officers. Mr. Moultry again began to run through the parking lot, and two officers followed him in their police cruisers. The chase ultimately ended when Mr. Moultry ran in front of one of the cruisers. Mr. Moultry sustained minor injuries, including lacerations to his face and a broken finger, and was transported to a nearby hospital.

         {¶6} A grand jury indicted Mr. Moultry on counts for: (1) robbery in violation of Revised Code Section 2911.02(A)(2); (2) failure to comply with an order or signal of a police officer in violation of Section 2921.331(B); (3) assault in violation of Section 2903.13(A); (4) obstructing official business in violation of Section 2921.31(B); (5) petty theft in violation of 2913.02(A)(1); and (6) resisting arrest in violation of Section 2921.33(B). The jury found Mr. Moultry guilty of each count, with the exception of the robbery count. The trial court sentenced Mr. Moultry to a total of 52 months of incarceration. Mr. Moultry now appeals his conviction for failure to comply with an order or signal of a police officer, raising two assignments of error for our review.

         II.

         ASSIGNMENT OF ERROR I

         THE TRIAL COURT ERRED AS A MATTER OF LAW BECAUSE THE STATE FAILED TO ESTABLISH ON THE RECOR[]D SUFFICIENT EVIDENCE TO SUPPORT THE CHARGES LEVIED AGAINST MR. MOULTRY IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE 14TH AMENDMENT TO THE U.S. ...


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