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State v. Akers

Court of Appeals of Ohio, Third District, Logan

December 16, 2019

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
STEVEN A. AKERS, JR., DEFENDANT-APPELLANT.

          Appeal from Logan County Common Pleas Court Trial Court No. CR 18 12 0365

          Sean P. Martin for Appellant

          Sarah J. Warren for Appellee

          OPINION

          SHAW, J.

         {¶1} Defendant-appellant, Steven A. Akers ("Akers"), brings this appeal from the May 21, 2019, judgment of the Logan County Common Pleas Court sentencing him to an aggregate fifty-four month prison term after he was convicted by a jury of two counts of Failure to Comply with an Order or Signal of a Police Officer in violation of R.C. 2921.331(B)/(C)(5)(a)(ii), both felonies of the third degree. On appeal, Akers argues that the trial court erred by failing to grant a mistrial once the jury heard about Akers being incarcerated, that the trial court failed to properly investigate an instance wherein a juror potentially saw Akers in handcuffs, and that Akers' convictions were allied offenses of similar import and should have merged for the purposes of sentencing.

         Background

         {¶2} At approximately 8:24 p.m. on November 9, 2018, Jerrod Hostetler of the Bellefontaine City Police Department was on patrol in a marked cruiser when he observed a yellow Chevy truck without a working front license plate light. Officer Hostetler pulled out behind the vehicle and ran the registration, which came back to a "female who was suspended out of Franklin County." (April 18, 2019, Tr. Vol I. at 124). That female was Leah Akers, the wife of Akers. Although they were still married, Leah and Akers were separated at that time. Leah was living in Canal Winchester.

         {¶3} While following the yellow truck, Officer Hostetler observed the driver run through a red light when making a left turn. Officer Hostetler then activated his emergency lights to initiate a traffic stop. At this time he did not activate the siren, just the lights.

         {¶4} The driver of the vehicle turned onto a Walmart access road and then into a gas station. Officer Hostetler thought that the driver appeared to be a male and that the driver was alone, but the officer was not certain.

         {¶5} The driver pulled through the gas station, then continued slowly through the Walmart parking lot. As the driver continued through the parking lot without stopping despite the officer's emergency lights being activated, Officer Hostetler radioed for assistance because he did not know what the driver's "intentions [were] at that time." (April 18, 2019, Tr. Vol. I at 128). Before leaving the Walmart lot, Officer Hostetler activated his siren in addition to his overhead lights.

         {¶6} When leaving the Walmart parking lot, the driver of the yellow truck ran a stop sign. The driver then turned onto Guntown Road and accelerated to over 53 or 54 mph in a 45 mph zone.

         {¶7} The driver went through another stop sign and was moving out of the city limits onto County Road 29. Officer Hostetler radioed the officer in charge for permission to leave the city and follow the truck, but permission was denied. Officer Hostetler indicated that generally when they had pursuits that were not related to felony crimes, the pursuits were usually terminated. Officer Hostetler stated that they had the license plate of the truck and intended to work backwards in the investigation due to the traffic violations being minor. Officer Hostetler then terminated his pursuit, and the situation was relayed to the Logan County Sheriffs Department.

         {¶8} Deputy Miriam Reames of the Logan County Sheriffs Department was operating a patrol car with Deputy Adam Wood in the passenger seat and they observed the flashing lights from Officer Hostetler's cruiser when he was following the yellow truck. They were approaching from another direction and Deputy Reames drove toward the flashing lights to investigate what was happening.

         {¶9} As Deputy Reames neared an intersection she observed the Bellefontaine city police cruiser turn its overhead lights off. Around that time, Deputy Reames and Deputy Wood were notified that a Bellefontaine city police officer had been following a yellow truck that was failing to comply and that the officer following the truck had terminated his pursuit. The deputies were advised to stop the yellow truck if they located it.

         {¶10} Deputy Reames turned onto County Road 29 where the yellow truck had gone, passing the Bellefontaine city police cruiser. After driving for a mile or more the yellow truck was located. The deputies opted to follow the truck to see if they could acquire probable cause to make their own traffic stop. They observed several lane violations by the driver of the yellow truck, then they attempted to initiate a traffic stop. The lights and the siren on the cruiser were activated, but the yellow truck did not stop. In fact, the yellow truck passed multiple vehicles in a no passing zone, and then went south toward West Liberty.

         {¶11} The yellow truck also ran another stop sign at the intersection of Highway 5 and Highway 1. Around that time Deputy Wood radioed ahead to West Liberty for an officer to deploy spike strips, but the officer from West Liberty was unable to do so in time. Eventually the yellow truck approached US68 just outside of West Liberty and ran a stop sign there as well. As the truck turned onto US68, there was an oncoming vehicle that the yellow truck failed to yield to and the vehicle had to go off the right side of the road to avoid a collision. Afterward, the yellow truck went northbound on US68, returning towards Bellefontaine.

         {¶12} On the way toward Bellefontaine, the yellow truck began picking up speed, exceeding 100 mph. When the truck passed a semi, it ran an officer off the road who was traveling southbound on US68.

         {¶13} The Bellefontaine City Police Department was made aware that the yellow truck was returning to Bellefontaine, so they attempted to deploy spike strips. However, they did not get the strips set up in time before the yellow truck drove past them into town at roughly 8:40 p.m.

         {¶14} Once back in Bellefontaine, the driver of the yellow truck turned onto Guntown Road at a high rate of speed. It eventually turned left on Ludlow. At that time, the commanding officer for the deputy sheriffs advised them to terminate their pursuit. The pursuit of the yellow truck undertaken by the Logan County Sheriffs Department had covered 13 or 14 miles.

         {¶15} Sometime prior to 8:50 p.m., Sara Perdue was outside with her dog at the Red Bud Court apartment complex in Bellefontaine when she saw a yellow truck approaching. Perdue observed a man jump out of the truck while it was still moving. She saw the man wipe his hands on the grass, then the man took off running. Perdue did not get a good look at the man because it was dark. Perdue asked if the man was 'okay,' but he did not answer. Perdue went inside and called 9-1-1 because she did not know whether someone was hurt. She was also nervous because of the whole situation and did not know if someone else was in the vehicle.

         {¶16} Numerous officers from different agencies responded to the Red Bud Court apartments. The yellow truck was present, still running, with its door open. Inside the truck, on the driver's side floor, was a cell phone in a case. The case also had a compartment for cards, and this compartment contained an identification card for Akers, as well as several other cards belonging to Akers.

         {¶17} Although law enforcement did not know at the time, Akers' uncle lived at Red Bud Court apartments. Akers' uncle had not seen Akers for a few months. However, around 9:30 p.m. that evening, Akers' uncle walked into his kitchen and he saw Akers sitting at his table.

         {¶18} Akers was not located by law enforcement that night. Law enforcement did speak with Leah Akers in Canal Winchester, who advised them that Akers had the yellow truck during their separation.

         {¶19} The next morning, Akers called his sister and told her that he could not locate his phone or his truck. His sister suggested that Akers go to the police station if he thought his truck was missing, and Akers ultimately did that, getting a ride from his sister. At the police station, Akers spoke with police and stated that he had dropped his truck off with a friend who worked as a mechanic in Bellefontaine the night before to have a window fixed. Akers stated he did not know what happened to the truck after that. Akers also gave a vague timeline of his whereabouts the evening prior.

         {¶20} Officers investigated Akers' claims and found them to be untrue, particularly with regard to leaving the truck with his friend/mechanic the night before. Akers was subsequently indicted in this matter on December 11, 2018, for two counts of Failure to Comply with an Order or Signal of a Police Officer in violation of R.C. 2921.331(B)/(C)(5)(a)(ii), both felonies of the third degree. There was one count for Akers' failure to comply with the Bellefontaine City Police Department and one count for Akers' subsequent failure to comply with the Logan County Sheriffs Department.

         {¶21} Akers pled not guilty to the charges and proceeded to a jury trial, which was held April 18-19, 2019. After the testimony and evidence was presented, including dash camera video from the Bellefontaine city police cruiser and the audio from the interrogation of Akers, the jury found Akers guilty of both counts against him.

         {¶22} On May 17, 2019, the matter proceeded to sentencing. Akers' attorney argued that the two counts should merge for sentencing, but the trial court disagreed, finding that they were separate actions. The trial court then recited Akers' extremely lengthy criminal history. Afterward the trial court sentenced Akers to serve eighteen months in prison on the first Failure to Comply conviction, and thirty-six months in prison on the second Failure to Comply conviction. The trial court reasoned that the second act was far more egregious than the first. The trial court ordered the prison terms to be served consecutively for an aggregate fifty-four month prison term.[1] A judgment entry memorializing Akers' sentence was filed May 21, 2019. It is from this judgment that Akers appeals, asserting the following assignments of error for our review.

         Assignment of Error No. 1

         The Trial Court failed [to] grant a mistrial once the jury learned of the Defendant's incarceration status from the State of Ohio's witness.

         Assignment ...


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