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City of Brook Park v. Gannon

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 6, 2019

CITY OF BROOK PARK, Plaintiff-Appellee,
v.
DAVID GANNON, Defendant-Appellant.

          Criminal Appeal from the Berea Municipal Court Case No. 14TRC05872-3

          Peter A. Sackett, for appellee.

          Christine A Russo, for appellant

          JOURNAL ENTRY AND OPINION

          MARY J. BOYLE, J.:

         {¶ 1} Defendant-appellant, David Gannon, appeals his convictions. He raises four assignments of error for our review:

1. The trial court erred in finding the appellant guilty of operating a motor vehicle under the influence of alcohol as there was insufficient evidence to support the conviction.
2. The trial court erred in finding the appellant guilty of operating a motor vehicle under the influence of alcohol as it was against the manifest weight of the evidence.
3. The trial court erred in finding the appellant guilty of failure to control.
4. The trial court erred in denying the appellant his right of confrontation as guaranteed by the United States and Ohio Constitutions.

         {¶ 2} Finding no merit to his appeal, we affirm.

         I. Procedural History and Factual Background

         {¶ 3} In October 2014, Gannon was charged with operating a motor vehicle while under the influence of alcohol in violation of R.C. 4511.19(A)(1)(a), driving under suspension in violation of R.C. 4510.21, leaving the scene of an accident in violation of R.C. 4549.021(A), and failure to control in violation of RC. 4511.202. Gannon pleaded not guilty to the charges.

         {¶ 4} On August 24, 2015, the court issued a capias for Gannon's arrest because he failed to appear for a change of plea hearing. Gannon was not arrested on the capias until November 2017. The matter proceeded to a bench trial in March 2018. Before the trial began, Gannon stipulated that he was driving under a suspended license. The following evidence was presented to the court.

         {¶ 5} Gregory Kustra testified that he lives on Sandfield Drive in Brook Park. Kustra stated that in 2014, he worked for AT&T as a salesperson. Kustra testified that in the evening of October 5, 2014, around 5:00 or 6:00 p.m., he had just pulled into his driveway when he saw a car speeding "down a side street" near his house. The side street was Southway Drive. Kustra stated that as the car drove out of his sight, he heard tires "screech" and then heard a crash. Kustra got back into his vehicle and drove to the crash. Kustra testified that the driver of the car that he saw speeding, later identified to be Gannon, had crashed into a tree on a tree lawn in front of a house. The front of Gannon's vehicle "was against the tree."

         {¶ 6} When Kustra reached the accident, he explained:

I asked if everybody was okay. He got out of the car. The female that was in the car was out of the car already, and I asked was everybody okay, did anybody need an ambulance, and then I said I was going to call the police to report the accident. At that time, they both entered the vehicle again, Mr. Gannon in the driver's side, the young lady in the passenger side, and they left.

         {¶ 7} Kustra testified that he got into his vehicle and followed Gannon to get the license plate number of the vehicle. Once he got the license plate, which was near the "railroad tracks that go over Smith Road into Middleburg Heights," he stopped following them and called the police. "About 30, 35 minutes" later, police came to Gannon's house to pick him up and take him to a sports bar where they had found Gannon. The sports bar was less than a quarter of a mile from where Gannon hit the tree. Kustra identified Gannon at the sports bar as the man who had been speeding and then hit the tree on Southway Drive. Kustra stated that he did not smell alcohol on Gannon when he spoke to him at the accident scene.

         {¶ 8} Officer Mark Nikodym of the Brook Park Police Department testified that he was working the afternoon shift on October 5, 2014. Officer Nikodym responded to the scene of the damaged tree. Officer Nikodym saw the damaged tree and damage to the tree lawn. Officer Nikodym took a photo of the damage to the tree and tree lawn and identified it in court. There were also "parts of a vehicle in front of the tree." Officer Nikodym also identified three other photos showing damage to the vehicle that Gannon had been driving. The photos showed that the driver's, front passenger's, and one of the rear air bags had deployed.

         {¶ 9} Officer Nikodym recalled having a conversation with Gannon, but he could not remember anything that was said. He agreed that his conversation with him was "very minimal." Officers James Farrell and Brian Kelly assisted Officer Nikodym with the investigation.

         {¶ 10} Officer Farrell testified that he responded to the sports bar with Officer Nikodym. Police found Gannon in the restroom of the bar. Officer Farrell first had contact with Gannon in the parking lot of the sports bar. He stated that when Gannon was brought outside to his vehicle, Officer Farrell testified that he "could smell a strong odor of alcoholic beverage emanating from him, while he was still actually trying to maintain his balance, actually standing over by us, he was swaying." By "swaying," Officer Farrell stated that he meant, "[k]ind of like a front-back, side to side kind of swaying. At the same time he's still trying to maintain his balance." Officer Farrell further explained that Gannon "had an issue actually just walking." Officer Farrell stated that Gannon also "had red and watery, glossy eyes" and fresh wounds that were bleeding on his hands.

         {¶ 11} Officer Farrell testified that he asked Gannon if he had been drinking. Gannon told him that he had a few beers and two shots at the sports bar. Later in the conversation, Gannon told Officer Farrell that he had three "firebomb shots and some Jager, even though he did not like Jager."

         {¶ 12} Officer Farrell said that at first Gannon admitted that he had been driving the vehicle because he told the officers that he had driven his son "back to his son's mother's house." Later, Gannon told police that he had not been driving and did not know what had happened to the vehicle. Gannon was placed under arrest and transported to ...


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