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State v. Craig

Court of Appeals of Ohio, Fifth District, Licking

May 17, 2018

STATE OF OHIO Plaintiff-Appellee
v.
JEFFREY W. CRAIG Defendant-Appellant

          Licking County Court of Common Pleas, Case No. 17 CR 006

          For Plaintiff-Appellee NATHANIEL H. HURST Assistant Prosecuting Attorney

          For Defendant-Appellant MARK J. MILLER

          Hon. William B. Hoffman, P.J., Hon. Patricia A. Delaney, J., Hon. Craig R. Baldwin, J.

          OPINION

          HOFFMAN, P.J.

         {¶1} Appellant Jeffrey W. Craig appeals the judgment entered by the Licking County Common Pleas Court convicting him of failure to comply with the order or signal of a police officer (R.C. 2921.331(B), (C)(5)(a)(ii)), a third degree felony, and sentencing him to three years incarceration. Appellee is the state of Ohio.

         STATEMENT OF THE FACTS AND CASE

         {¶2} At 1:38 a.m. on January 11, 2017, Officer David Lemmert of the Westerville Police Department observed a silver Dodge Stratus, license plate number GZG5570, run a red light. Officer Lemmert attempted to stop the vehicle by activating his lights and "whooping" his siren a few times. The driver refused to stop. At one point the officer was able to put the beam of his spotlight on the driver's side of the vehicle to observe the side profile of the driver, and the driver's face reflected in the side view mirror. When the vehicle entered the westbound ramp to I-270, the officer terminated the pursuit.

         {¶3} Officer Lemmert discovered the vehicle was registered to Stephanie Palmer in Obetz, Ohio. Because the driver he observed was male, he checked for other persons living at the same address through the Ohio Law Enforcement Gateway Database (OHLEG) and discovered Appellant lived at the same address as Palmer. Upon viewing a photograph of Appellant in OHLEG, he identified Appellant as the driver of the Dodge Stratus. Appellant was charged with a misdemeanor count of failure to comply with the order or signal of a police officer in Franklin County, to which he entered a plea of guilty.

         {¶4} At 2:54 a.m. that same morning, January 11, 2017, Sgt. Joshua McGeorge of the Pataskala Police Department was stationary at the intersection of Headleys Mill Road and State Route 310 in Licking County, Ohio. He observed a silver Dodge Stratus, license plate number GZG5570 run a red light. The vehicle turned right on Broad Street from the left lane. Sgt. McGeorge activated his lights and siren, but the vehicle failed to stop, accelerating to 67-70 miles per hour in a 45 mile per hour zone. The pursuit continued through Licking County and into Franklin County, where Appellant turned several times before entering Interstate 70 westbound. Appellant exited the interstate and turned on to Campbell Avenue, heading west. During the pursuit Sgt. McGeorge observed the Dodge Stratus commit multiple traffic violations in addition to speeding. Road conditions were becoming icy, and Sgt. McGeorge slid through an intersection. He observed Appellant slide and strike a retaining wall. He terminated the pursuit because of road conditions.

         {¶5} Officer Michael McClellan of the Pataskala Police Department aided in the pursuit. Due to worsening road conditions he dropped back out of concern for his safety and that of his dog who was with him in the cruiser. He eventually saw Appellant come out of Campbell Road "blacked out, " meaning Appellant did not have his headlights or taillights on. Appellant nearly collided with McClellan's cruiser. McClellan was able to see the driver of the vehicle. The Pataskala officers eventually identified Appellant as the driver of the vehicle, and then discovered Appellant's license was suspended and he was wanted on an outstanding warrant.

         {¶6} Appellant was indicted by the Licking County Grand Jury with one count of failure to comply with the order or signal of a police officer in violation of R.C. 2921.331(B), (C)(5)(a)(ii), a felony of the third degree. The case proceeded to jury trial in the Licking County Common Pleas Court. Appellant was convicted as charged and sentenced to three years incarceration. He was further sentenced to one year incarceration for violating post-release control, to be served consecutively.

         {¶7} It is from the July 12, 2017 judgment of conviction and sentence Appellant prosecutes his appeal, assigning as error:

"I. THE VERDICT FORMS USED TO CONVICT THE APPELLANT OF A FELONY FAILURE TO COMPLY WERE INSUFFICIENT AS A MATTER OF LAW.
"II. THE TRIAL COURT ERRED IN DENYING THE APPELLANTS MOTION TO DISMISS THE STATE'S FELONY FAILURE TO COMPLY CHARGE AGAINST THE APPELLANT PURSUANT TO THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.
"III. THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING THE STATE TO INTRODUCE EVIDENCE OF THE APPELLANTS PRIOR CONVICTION IN FRANKLIN COUNTY OF A MISDEMEANOR FAILURE TO COMPLY.
"IV. THE TRIAL COURT ACTED UNREASONABLY BY ALLOWING THE STATE TO INTRODUCE EVIDENCE THAT THE APPELLANT HAD A SUSPENDED DRIVER'S LICENSE AND OUTSTANDING WARRANT.
"V. THE TRIAL COURTS CUMULATIVE ERRORS DEPRIVED THE APPELLANT OF A FAIR TRIAL EVEN IF ONE ERROR ALONE DID NOT RISE TO THE REQUISITE LEVEL OF REVERSIBLE ERROR.
"VI. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING THE APPELLANTS MOTION FOR LEAVE TO FILE A MOTION TO SUPPRESS OFFICER MCCLELLAN'S OUT-OF-COURT IDENTIFICATION OF THE APPELLANT AS THE SUSPECT IN QUESTION.
"VII. THE TRIAL COURT ERRED BY IMPOSING CONSECUTIVE SENTENCES ON THE APPELLANT WITHOUT MAKING CERTAIN REQUISITE FINDINGS IN ACCORDANCE WITH R.C. 2929.14."

         I.

         {¶8} In his first assignment of error, Appellant argues the verdict forms are insufficient to convict him of a third degree felony, relying on State v. McDonald, 137 Ohio St.3d 517, 1 N.E.3d 374, 2013-Ohio-5042.

         {¶9} R.C. 2921.331 sets forth a range of violations of varying degrees for failure to comply with the order or signal of a police officer, from a first degree misdemeanor to a third degree felony. The statute provides in pertinent part:

(A) No person shall fail to comply with any lawful order or direction of any police officer invested with authority to direct, control, or regulate traffic.
(B) No person shall operate a motor vehicle so as willfully to elude or ¶ee 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.
(2) A violation of division (A) of this section is a misdemeanor of the first degree.
(3) Except as provided in divisions (C)(4) and (5) of this section, a violation of division (B) of this section is a misdemeanor of the first degree.
***
(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.

         {¶10} Generally, the statutory definition of an offense need not be included on the verdict form. State v. Martin, 2nd Dist. Montgomery No. 22744, 2009-Ohio-5303, ...


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