COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72894 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION MARVIN SMITH : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION : JUNE 11, 1998 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case No. CR-348,041 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS-JONES Cuyahoga County Prosecutor WILLIAM B. VODREY, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: STEPHEN L. MILES Attorney at Law 20800 Center Ridge Road, #217 Rocky River, Ohio 44116 KENNETH A. ROCCO, J.: -2- Appellant appeals his conviction for failure to comply with an order or signal of a police officer. Because we do not find that the prosecutor's comments in closing argument can be reasonably construed as an impermissible reference to appellant's failure to take the stand, we find no constitutional violation of appellant's Fifth Amendment rights. We also find that a reasonable trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt and that the evidence was sufficient to support the jury's verdict. Finally, we are unable to find that a manifest miscarriage of justice resulted such that judgment should be reversed and a new trial ordered because we do not find this to be an exceptional case in which the evidence weighs heavily against the conviction. We therefore affirm appellant's conviction by jury verdict in the Court of Common Pleas for Cuyahoga County. In the early evening of January 18, 1997, Cleveland Police Officers Joseph Butcher and Bruce Vowell responded to a radio dispatch call, which reported a couple allegedly coupling inside a Dodge pick-up truck parked on Baldwin Avenue. T. at 19, 68. When their police car arrived at the place where the truck was parked, the officers initially did not see anyone in the truck, but as their headlights illuminated the truck, they saw two heads pop up inside. The officers testified that a woman, later identified as Yolanda Jones, then jumped out of the passenger side of the truck, adjusted or fastened her pants, and got back into the truck. T. at 21-22, 68, 96. -3- The two officers got out of their car and approached the truck. They testified that they saw someone inside the truck make a movement that they interpreted as reaching beneath the seat. T. at 23, 70. In response, both officers drew their handguns as they approached the truck. Officer Butcher approached the driver's side of the truck, identified himself as a police officer, and rapped on the window, asking the driver to roll down the window. T. at 23. Meanwhile, Officer Vowell was at the passenger side, where Ms. Jones had rolled her window part way down. T. at 71, 101. Both officers were uniformed patrol officers. The driver of the truck, appellant Marvin Smith, looked at the officers on both sides of the truck, then put the keys in the ignition and attempted to start the engine. T. at 71-72, 106. Officer Vowell again identified himself as a police officer and ordered the driver to turn off the vehicle while he reached inside the truck to attempt to open the passenger side door. T. at 72, 106. Officer Butcher grabbed the driver's door handle and attempted to pull that door open. T. at 24. At this point, the engine started, and appellant sped off, with Officer Vowell hanging on to the passenger side door. T. at 24-25, 73-75, 109. Officer Vowell testified that he was in fear of his life during the period that he was being dragged along for approximately twenty to twenty-five feet. T. at 73-74, 111. As he fell loose, he fired one shot from his pistol at the truck. The shot went into -4- the lower portion of the passenger door and into the seat, injuring no one. T. at 82. Officer Butcher had been knocked down when the truck sped off but regained his balance and saw the truck dragging his partner. T. at 25. He fired one shot, which hit the truck's left rear tire. T. at 25. Officers Vowell and Butcher then got into their car and pursued the truck for about a block, where it stopped on the next street, Woodhill Avenue. T. at 78. Appellant jumped out of the truck and ran into a CMHA housing project complex. T. at 79. Officer Vowell chased appellant up a flight of stairs, yelling at him to stop, and finally caught him and placed him under arrest. T. at 79-80. When appellant was booked, he told the police that he was not married and gave an address on Parkgate. T. at 173-174. Testimony at trial established that appellant was married and lived on Woodhill, at the CMHA complex where the chase ended. T. at 153- 154, 132, 142. Appellant was indicted by a grand jury on February 27, 1997, and charged with felonious assault (R.C. 2903.11) and failure to comply with an order or signal of a police officer (R.C. 2921.331). In the event that a guilty verdict would be rendered on the second count, as it was, the jury would then have to determine whether, in committing the offense, the defendant was fleeing immediately after the commission of a felony and whether the operation of the motor vehicle caused a substantial risk of serious physical harm. T. at 252-253. The jury's findings would determine whether the violation -5- would be a misdemeanor of the first degree or a felony of the fourth degree. R.C. 2921.331(C). The case went to trial before a jury on May 19, 1997. During deliberations, the jury posed three questions to the court. First, they asked whether failure to comply with a police officer was a felony, which the court answered affirmatively. T. at 272. Second, they asked whether the word felony in the specification to the second count referred to the charge of felonious assault or whether it related to the failure to comply. The court refused to answer this question as posed and referred them back to the jury instructions. T. at 272. The third question related to an insignificant transcription error in the written jury instructions, which the court orally corrected. T. at 273. Following jury deliberations, on May 22, 1997, appellant was found guilty of the second count, failure to comply with an order or signal, and not guilty of felonious assault on a peace officer. T. at 263. The jury further found that the appellant was fleeing immediately after the commission of a felony and that his operation of the truck did not cause a substantial risk of serious physical harm. T. at 263. Appellant was subsequently sentenced to eleven months' imprisonment. T. at 284. I. FIFTH AMENDMENT CLAIM Appellant's first assignment of error is: THE PROSECUTOR COMMITTED PREJUDICIAL ERROR BY COMMENTING ON THE APPELLANT'S REFUSAL TO TESTIFY. -6- The Supreme Court of the United States has held that a prosecutor's comments on a defendant's failure to testify violate the defendant's right to remain silent, guaranteed by the Fifth Amendment to the Constitution. Griffin v. California (1965), 380 U.S. 609, 615. However, the Court later clarified that not all trial errors that violate the Constitution automatically call for reversal. Chapman v. California (1967), 386 U.S. 18, 23. The Court in Chapman stated that before a federal constitu- tional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. Id. at 24. The Court said that harmless error could not be found where there is a reasonable possibility that the error complained of might have contributed to the conviction. Id. at 23. In Chapman, the court found that the error was not harmless where: the state prosecutor's argument and the trial judge's instruction to the jury continuously and repeatedly impressed the jury that from the failure of the [defendants] to testify *** the inferences from the facts in evidence had to be drawn in favor of the State ***. Id.at 25. The Court determined that honest, fair-minded jurors in that case might have brought in a not-guilty verdict, absent the constitutionally forbidden comments. Id. at 26. The Supreme Court of Ohio has also held that if it is clear beyond a reasonable doubt that absent a prosecutor's comments, a jury would have found a defendant guilty, then the defendant's conviction need not be reversed. State v. Thompson (1987), 33 Ohio St.3d 1, 4. In Thompson, the prosecutor improperly commented on the defendant's refusal to testify in his own behalf repeatedly -7- during closing argument. Id. at 3 ( Why doesn't he tell us what happened *** ? ***[W]e know what he did. Why isn't he telling us that? ). Yet the court found that despite the clear impropriety of the prosecutor's remarks, there was no doubt that the defendant would have been convicted anyhow. Id. at 4. In this case, during defendant-appellant's opening statement, counsel stated that there are two sides to every story. T. at 15. Counsel went on to state that the evidence will show some- thing very different from the prosecution's version of events. Id. In defendant-appellant's closing argument, counsel returned to that theme. Counsel argued that the prosecution had attacked the credibility of his witnesses. T. at 220. He reviewed, in some detail, the eyewitness testimony that the defense had presented. In the course of so doing, he argued that Officer Vowell's account of how the shot came to be fired into the door was inaccurate. He stated that: Now, I'm not saying that these police officers are lying. Two people can see the exact same event and have very different perceptions of what happened, and that may be the case here, but when you examine all the evidence regard- ing how that bullet hole got there, it's just unbelievable that it could have happened the way it did. T. at 222. In the state's rebuttal, the prosecutor's main theme was that defense counsel, in his closing, had grossly misstated some evidence and ha[d] misinterpreted others ***. T. at 227. After -8- setting forth his own interpretations of certain evidence, the prosecutor then said that: The one point where I agree with Mr. Dunbar is that two people can see an event differently, but the only two people that saw the event and testified were the two officers, and the two officers gave stories which I believe hang together, which are credible, which say what happened. T. at 234-235. This statement was made after the prosecution had reviewed the testimony of Mrs. Smith, Officer Vowell, Officer Butcher and Mrs. Griffin. The prosecution's point was essentially that two people had not seen the exact same event and had very different perceptions of what happened. Clearly, the statement was made in reference to the testimony of Mrs. Smith and Mrs. Griffin, neither of whom witnessed the initial events that resulted in appellant's indictment. No reference was made to appellant's failure to testify in the prosecution's closing argument, nor was any such reference made in the prosecution's opening statement or during its case-in-chief. We do not find that the prosecutor's comment can be reasonably construed as an impermissible reference to appellant's failure to take the stand. Even if we were to take the view that the prosecutor's closing argument contained an extremely obscure reference to appellant's choice not to testify, we would find it to be harmless error in the circumstances of this case. We cannot find that there is a reasonable possibility that such a reference might have contrib- uted to the conviction. Chapman, supra, at 23. -9- Appellant's first assignment of error is without merit, and it is overruled. II. SUFFICIENCY OF THE EVIDENCE. Appellant's second assignment of error is: THE EVIDENCE WAS INSUFFICIENT TO CONVICT THE APPELLANT OF FAILURE TO COMPLY WITH [AN] ORDER OR SIGNAL OF A POLICE OFFICER. Appellant contends that there was insufficient evidence to convict him of a failure to comply with an order or signal of a police officer. The Supreme Court of Ohio provided guidance for an appellate court ruling on the sufficiency of the evidence underlying a criminal conviction in State v. Jenks (1991), 61 Ohio St.3d 259, where it held that: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jenks, supra, at 259-260 (syllabus). The Court in Jenks clarified the reviewing court's role in deferring to the determinations by the trier of fact by stating that: *** the relevant inquiry does not involve how the appellate court might interpret the evi- dence. Rather, the inquiry is, after viewing -10- the evidence in the light most favorable to the prosecution, whether any reasonable trier of fact could have found the essential ele- ments of the crime proven beyond a reasonable doubt. Jenks, supra,at 273. Jenks stresses that [t]he verdict will not be disturbed unless the appellate court finds that reasonable minds could not reach the conclusion reached by the trier of facts. Id. A deference to the findings of fact below is clearly indicated. Last year, the Ohio Supreme Court gave appellate courts further guidance in applying the Jenks standard of review in State v. Thompkins (1997), 78 Ohio St.3d 380. The main lesson of Thompkins is that it is improper to apply the same standard of review to questions involving the weight of the evidence and to those involving the sufficiency of the evidence. Id. at 390 (Cook, J., concurring). The court noted that the legal concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively different. Id., at 386. However, Thompkins does affirm the Jenks test for the sufficiency of the evidence, stating that courts are to assess not whether the state's evidence is to be believed, but whether, if believed, the evidence against a defendant would support a conviction. Id., at 390 (Cook, J., concurring). The essential elements of failure to comply with an order or signal of a police officer are set forth in R.C. 2921.331, which reads in pertinent part: (A) No person shall fail to comply with any lawful order or direction of any police offi- cer invested with authority to direct, con- trol, or regulate traffic. -11- (B) No person shall operate a motor vehicle so as willfully to elude or flee a police officer after receiving a visible or audible signal from a police officer to bring his motor vehicle to a stop. (C) Whoever violates this section is guilty of failure to comply with an order or signal of a police officer. R.C. 2921.331(A)-(C). The remainder of paragraph (C) is concerned with whether the violation is a misdemeanor of the first degree or a felony of the fourth degree. The trial court instructed the jury in the elements of R.C. 2921.331(B). T. at 250. The jury's ver- dict found the appellant guilty of a violation of R.C. 2921.331. R. 13. After viewing the evidence in the light most favorable to the prosecution, we find that a reasonable trier of fact could have found the essential elements of the crime proven beyond a reason- able doubt. Jenks, supra, at 273. Testimony at trial established that appellant turned the key ( willfully ) in the truck's ignition ( operate a motor vehicle ) in order to leave the scene ( flee ) and to get away from ( elude ) two police officers who were lawfully attempting to question him. He continued to flee after the officers, one hanging on to his passenger side door, shouted at him ( audible signals ) to bring his motor vehicle to a stop. Appellant argues in the body of his brief that the jury's Further Findings, as to whether the violation qualified as a first degree misdemeanor or as a fourth degree felony, were in error. However, this court determines an appeal on its merits on the assignments of error as set forth in the briefs under App.R. -12- 16. Appellant's second assignment of error is that the evidence was insufficient to convict the appellant of failure to comply with [an] order or signal of a police officer. It is to this error that we direct our attention. We find appellant's second assignment of error to be without merit, and it is overruled. III. MANIFEST WEIGHT OF THE EVIDENCE. Appellant's third assignment of error is: THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. Appellant argues that the testimony of the police officers, which the jury evidently found credible, was incredible, unreli- able, and uncertain. App. Brief at 14. Appellant would have us find that the jury lost its way and that the verdict rendered was against the manifest weight of the evidence. Id. As noted above, the Supreme Court of Ohio clarified the appropriate standard for appellate review of a judgment on the manifest weight of the evidence in State v. Thompkins. Thompkins, at 390 (Cook, J., concurring). The court noted that the standard set forth in State v. Martin (1983), 20 Ohio App.3d 172, was suitable for a manifest-weight inquiry. Id., at 387, 390. The test for a manifest weight claim is much broader than that testing the sufficiency of the evidence. Martin, supra, at 175. An -13- appellate court reviews the entire record, weighs the evidence and all reasonable inferences, and determines whether, resolving conflicts in the evidence, a manifest miscarriage of justice resulted such that a judgment should be reversed and a new trial ordered. Id. In essence, when an appellate court reverses a judg- ment of a trial court, it sits as a thirteenth juror and disagrees with the original factfinder's resolution of the conflicting testimony. Thompkins, supra, at 387 (quoting Florida v. Tibbs [1982], 457 U.S. 31, 42.) The extraordinary nature of a reversal on a manifest weight claim is recognized by the Constitution of the State of Ohio, which states that: No judgment resulting from a trial by jury shall be reversed on the weight of the evi- dence except by the concurrence of all three [appellate] judges hearing the case. Ohio Const. Art. IV S3(B)(3). See, State v. Baker (1993), 92 Ohio App.3d 516, 537. In light of this, the Martin court recognized that [t]he discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. Martin, supra, at 175. This court has stated that a defendant has a heavy burden in overcoming the factfinder's verdict. State v. Mays (1996), 108 Ohio App.3d 598, 622. Appellant dwells on what he contends is Officer Vowell's incredible testimony as to whether the officer's hand was in the truck when appellant sped off and whether the officer was actually clinging to the truck or not when he fired his pistol. However, -14- the jury acquitted appellant of the felonious assault charge. Appellant was convicted of failure to comply with an order of a police officer. Whether the truck's window was partially rolled down or not, and whether Officer Vowell's arm was within the truck or not when appellant fled, does not appear to us to have been the linchpin evidence for appellant's conviction. Appellant does not attack the core testimony supporting the state's case. Having reviewed the entire record, and having weighed the evidence and all reasonable inferences, we are unable to find that a manifest miscarriage of justice resulted such that judgment should be reversed and a new trial ordered. Martin, supra, at 175. We do not find this to be an exceptional case in which the evidence weighs heavily against the conviction. Id. Appellant's third assignment of error is without merit and is overruled. All of appellant's assignments of error having been overruled, we affirm the judgment of the court of common pleas. -15- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA BLACKMON, A.J. and ANN DYKE, J. CONCUR JUDGE KENNETH A. ROCCO N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .