Opinion
No. 105968
04-05-2018
STATE OF OHIO PLAINTIFF-APPELLEE v. DEREK C. JACKSON DEFENDANT-APPELLANT
ATTORNEY FOR APPELLANT Patrick S. Lavelle Van Sweringen Arcade, Suite 250 123 West Prospect Avenue Cleveland, Ohio 44115 ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Jillian Eckart Assistant County Prosecutor Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113
JOURNAL ENTRY AND OPINION JUDGMENT: AFFIRMED Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-16-605250-A BEFORE: Boyle, J., E.A. Gallagher, A.J., and Keough, J.
ATTORNEY FOR APPELLANT
Patrick S. Lavelle
Van Sweringen Arcade, Suite 250
123 West Prospect Avenue
Cleveland, Ohio 44115
ATTORNEYS FOR APPELLEE
Michael C. O'Malley
Cuyahoga County Prosecutor
BY: Jillian Eckart
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113 MARY J. BOYLE, J.:
{¶1} Defendant-appellant, Derek Jackson, appeals his convictions for obstructing official business and failure to stop after accident. He raises one assignment of error for our review:
The jury determination in lower court was against the manifest weight of the evidence.
{¶2} Finding no merit to his assignment of error, we affirm.
Procedural History and Factual Background
{¶3} On April 29, 2016, a Cuyahoga County Grand Jury indicted Jackson on one count of aggravated burglary, in violation of R.C. 2911.11(A)(2); one count of tampering with evidence, in violation of R.C. 2921.12(A)(1); one count of obstructing official business, in violation of R.C. 2921.31(A); one count of failure to stop after accident, in violation of R.C. 4549.03(A); and one count of intimidation of crime victim or witness, in violation of R.C. 2921.04(B)(1).
{¶4} The case proceeded to a trial by jury where the following evidence was presented in relation to the counts for obstructing official business and failure to stop after accident.
{¶5} On December 5, 2015, at around 3:00 a.m., Detectives Hathaway and Janusczak were patrolling the streets when their marked patrol car was struck by another vehicle as they crossed through the intersection of Payne Avenue and East 40th Street. Detective Hathaway testified he was the driver and Detective Janusczak was the passenger. He stated that their patrol car was "T-boned on the rear passenger side," the passenger-side air bag deployed, and that after being struck by the vehicle, they "spun around, and maybe about twelve to eighteen feet spun backwards toward the railroad tracks." He testified that he did not recall anything about the vehicle that struck them and that after hitting them, the vehicle did not stop. On cross-examination, both detectives stated that they did not see who was driving the vehicle.
{¶6} Both officers testified that they sustained injuries as a result of the motor vehicle accident. After being hit, Detective Janusczak testified that he broadcast the incident over the police radio, stating that they were struck by a "blue or black Dodge Ram." Detective Janusczak testified that they had to call a tow truck to transport the patrol car off the scene because two of the vehicle's wheels were caved in and many of the vehicle's parts were knocked off and were lying in the surrounding area.
{¶7} After examining both detectives, the state called Officer Dotson, who responded to the scene of the accident. Officer Dotson testified that she discovered a license plate and part of a vehicle's bumper in the road. She stated that she believed it to be from the vehicle that came into contact with the detectives' patrol car and radioed in the license plate's information to obtain the related registration information. Officer Dotson testified that the dispatcher informed her that the license plate was registered to a pickup truck, that the owner of the truck lived in the Fourth District, and that she would have to forward the information to that district. She also went in search of the vehicle, following a trail of fluids that led down Payne Avenue; however, she did not find anything.
Officer Larkin testified that the Fourth District encompasses the southeast side of Cleveland "in the area of Kinsman."
{¶8} The state then called Officer Ziegler, who testified that he was also on duty that night. Officer Ziegler stated that after he arrived on the scene and received a run-down of what occurred, he and his partner went in search of the vehicle, but did not find anything. Officer Ziegler testified that he returned to the scene and completed the OH-1 accident report as well as the accompanying "hit/skip card." Officer Ziegler stated that he was not provided with a description of the other vehicle's driver.
Officer Ziegler explained that the "hit/skip card" refers to when a vehicle involved in a motor vehicle accident does not stay at the scene after the accident occurs. The "hit/skip card" contains all of the information the victims and relevant parties can remember about the vehicle and the card is then forwarded to the hit/skip unit.
{¶9} Next, the state called Officer Larkin, who testified that he was an officer in the Fourth District. Officer Larkin testified that on December 6, 2015, one day after the accident, he was working in the lobby of the Fourth District when Jackson arrived and requested assistance in filing a report of a stolen vehicle. Officer Larkin testified that his body camera was on and recording during his interaction with Jackson, which the state played and offered as an exhibit. Officer Larkin testified that Jackson told him that his vehicle was stolen from his residence on December 4, 2015, but later returned. Officer Larkin stated that Jackson also informed him that shortly after the vehicle's return, officers showed up at his residence and arrested him. Officer Larkin testified that when he asked Jackson why he did not inform officers that his truck was stolen the night it was returned, Jackson stated that he panicked and decided to flee from the officers instead. Officer Larkin stated that, after relaying Jackson's information, his supervisor instructed him not to complete a stolen vehicle report.
{¶10} The state then called Arthur Wembley, who testified that he has known Jackson for over 20 years. Wembley testified that two years ago, he began renting an apartment from Jackson above Jackson's barber shop. Wembley testified that there were multiple units in the building and that Jackson lived in a first-floor unit behind the barbershop with his wife. Wembley stated that on December 5, 2015, he was awake in his apartment around 3:00 a.m. when he realized that Jackson had entered his apartment. Wembley testified that when he confronted Jackson, he thought Jackson said "he killed a cop or whatever and he had his keys and his pistol." Wembley testified that Jackson "was reeking of alcohol, very scared and nervous." Wembley testified that Jackson had keys and a pistol and asked Wembley to take and hide the items. Wembley stated that at that point, a number of police cars showed up in front of the building and that Jackson ran to the back of the building and jumped out the second-story window. When the officers arrived at Wembley's apartment, Wembley stated that he told officers that he did not own the truck parked in the back of the building and that the truck belonged to Jackson, who was the landlord. Wembley testified that the officers realized that Jackson escaped through the back of the building and chased him, eventually arresting him.
{¶11} Next, the state called Officer Przybylski, an officer in the Fourth District, who testified that she and her partner received a call to respond to Jackson's address to look for a vehicle involved in a motor vehicle accident after a search of the license plate information came back as registered to that address. She testified that upon their arrival, they observed a black Dodge truck that had front-end damage parked behind Jackson's building. She stated that the vehicle came back registered to Jackson, and that she and other officers then entered the building to locate the owner. Officers knocked on both of the doors to the upstairs apartments in Jackson's building, speaking to Wembley, who informed officers that Jackson did not live in the apartments upstairs. During their discussion with Wembley, officers observed a male jump from the second story and run away from the building. Officer Przybylski testified that officers pursued the male and took him into custody. She stated that when she asked Jackson what happened to his vehicle, he testified that he lent his truck to a friend, "Jeff," but could not provide any further information about his friend. She testified that based on her observations, Jackson was intoxicated. Officer Przybylski also testified that Jackson told her to call his wife from his cell phone, giving her his passcode to unlock it. She testified that when she opened the phone, she observed a text-message conversation between Jackson and someone named "Bae," during which Jackson stated, "Bae, I think I hit a police car."
{¶12} Finally, the state called Detective Kitchen, who testified that subsequent to Jackson's arrest, he had a followup conversation with Jackson about the events on December 4 and 5. According to Detective Kitchen, Jackson told him that he had been drinking at his barber shop, which was also at the same address where Jackson's and Wembley's apartments were located, with a number of people, not all of whom Jackson knew. Jackson told Detective Kitchen that during this time, he noticed "two dudes" leave and then subsequently heard his truck start. Jackson told him that when he looked outside, he saw his truck sitting in the back parking lot with front-end damage. Detective Kitchen testified that when he confronted Jackson with his previous story about loaning the car to a friend named "Jeff," Jackson stated that he "probably did give it to Jeff but he couldn't remember" and, again, could not provide any more information about Jeff.
{¶13} The state then rested its case and admitted its exhibits, which included photographs of the scene of the accident and Jackson's building, the radio calls made concerning the accident, body cam footage, a photo lineup, and the license plate recovered from the scene of the accident.
{¶14} Jackson subsequently moved for a directed verdict, which the trial court denied. Jackson then took the stand in his defense and testified that on December 4, 2015, he was cutting people's hair in his barbershop until about midnight and then stayed to have a few beers with friends until about 1:00 a.m. According to Jackson, he saw Wembley earlier that evening in his barbershop and spoke to him about the rent he owed Jackson. Jackson testified that he later went to his apartment, which was behind the barbershop and on the building's first floor, and fell asleep. Jackson testified that he awoke to the sound of his truck starting and subsequently heard someone running up the steps to the apartments upstairs. Jackson stated that when he went outside, he noticed that his truck was damaged and the lock to the parking lot's back gate was shut. Jackson testified that prior to going to sleep, the gate's lock was open. He stated that he did not know where his keys to his truck were. He testified that when he went inside of his truck he noticed that the truck's column was not "peeled." Jackson testified that when he went back inside and debated whether to call police, a number of police cars showed up outside his building. He testified that he heard officers talking to one another about how one of their vehicles was struck by his truck, became scared, and ran upstairs to the second story of the building and jumped out a window in an attempt to remove himself from the situation. On cross-examination, Jackson admitted that he lied when he told officers that he lent his truck to his friend, "Jeff." Jackson testified that he now knew that it was Wembley who took his truck on December 4-5, 2015. Jackson admitted four exhibits of photographs of his building and then rested his case. He renewed his motion for a directed verdict, which the trial court denied.
When asked to explain what it means to have a vehicle's column "peeled," Jackson explained that "it's like if your car is stolen, they will either stick a key in there or they just peel the column. I mean that's how you get access to start the vehicle."
{¶15} On June 13, 2017, the jury found Jackson guilty of obstructing official business, a misdemeanor of the second degree, in violation of R.C. 2921.31(A) and failure to stop after accident, a misdemeanor of the first degree, in violation of R.C. 4549.02(A). The jury found Jackson not guilty of intimidation of crime victim or witness and was unable to reach a verdict as to the aggravated burglary and tampering with evidence counts.
{¶16} The court sentenced Jackson to 180 days of incarceration and a $1,000 fine.
On July 20, 2017, however, the trial court granted Jackson's motion to mitigate his sentence, suspending his sentence and placing him on a six-month term of probation. See In re Estate of Staib, 7th Dist. Columbiana No. 02 CO 59, 2003-Ohio-80, ¶ 8, quoting State ex rel. Special Prosecutors v. Judges, 55 Ohio St.2d 94, 378 N.E.2d 162 (1978) ("[While] a trial court generally loses jurisdiction to take action in a case after an appeal has been filed[,]" it does retain jurisdiction "'over issues not inconsistent with that of the appellate court to review, affirm, modify, or reverse the appealed judgment[.]'"); State v. Lett, 58 Ohio App.2d 45, 47 (1st Dist.1978) ("The suspension of a sentence previously imposed and the placing of a convicted person on probation is not inconsistent with an appeal of the underlying judgment."). --------
{¶17} It is from this judgment that Jackson now appeals.
Law and Analysis
A. Manifest Weight of the Evidence
{¶18} In his sole assignment of error, Jackson argues that the jury's verdict finding him guilty of obstructing official business and failure to stop after accident was against the manifest weight of the evidence because there was no evidence identifying him as the driver of the car that struck the officers.
{¶19} Unlike sufficiency of the evidence, a challenge to the manifest weight of the evidence attacks the credibility of the evidence presented. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). Because it is a broader review, a reviewing court may determine that a judgment of a trial court is sustained by sufficient evidence, but nevertheless conclude that the judgment is against the weight of the evidence. Id., citing State v. Robinson, 162 Ohio St. 486, 124 N.E.2d 148 (1955).
{¶20} When reviewing a manifest weight challenge, an appellate court sits as the "thirteenth juror" and requires us to review the entire record, weigh all of the evidence and all of the reasonable inferences, consider the credibility of the witnesses, and determine whether, in resolving conflicts in evidence, the factfinder clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Thompkins at 387, citing State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983). We are required to give "due deference" to the factfinder's conclusions because "the demeanor of witnesses, the manner of their responses, and many other factors observable by [the factfinder] * * * simply are not available to an appellate court on review." State v. Miller, 8th Dist. Cuyahoga No. 100461, 2014-Ohio-3907, ¶ 58, citing Thompkins; State v. Bailey, 8th Dist. Cuyahoga No. 97754, 2012-Ohio-3955, ¶ 11, quoting State v. Bierbaum, 3d Dist. Seneca No. 13-88-18, 1990 Ohio App. LEXIS 1204 (Mar. 4, 1990). "Further, * * * [we] must keep in mind that questions of weight and credibility are primarily for the trier of fact to determine." State v. Irby, 7th Dist. Mahoning No. 03 MA 54, 2004-Ohio-5929, ¶ 39, citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). Accordingly, reversing a previous conviction and ordering a new trial under a manifest weight of the evidence claim should be saved for the "exceptional case in which the evidence weighs heavily against the conviction." State v. Bridges, 8th Dist. Cuyahoga No. 100805, 2014-Ohio-4570, ¶ 67, citing Thompkins.
{¶21} "[W]hen considering a manifest weight challenge, the trier of fact is in the best position to take into account inconsistencies, along with the witnesses' manner, demeanor, gestures, and voice inflections, in determining whether the proffered testimony is credible." State v. McNamara, 8th Dist. Cuyahoga No. 104168, 2016-Ohio-8050, ¶ 36, citing State v. Kurtz, 8th Dist. Cuyahoga No. 99103, 2013-Ohio-2999. "Therefore, we afford great deference to the factfinder's determination of witness credibility." Id.
{¶22} Here, the jury — which was free to believe all, part, or none of any witness's testimony — believed the officers and Wembley, who testified on behalf of the state and set forth evidence of Jackson's guilt as to his charges for obstructing official business and failure to stop after an accident. Officer Janusczak testified that a black Dodge truck hit his patrol car on December 5, 2015. Wembley testified that Jackson entered his apartment intoxicated and asked him to take his keys and gun because he just killed a police officer. Officer Przybylski testified that the license plate and registration information came back to Jackson, that Jackson's vehicle matched the suspect vehicle's description, and that she saw a text message that Jackson sent to his wife that stated he hit a police car. Finally, Detective Kitchen outlined the numerous conflicting stories that Jackson told him about the person responsible for hitting the officers' patrol car. Further, the jury was free to disbelieve Jackson's testimony, during which he admitted to lying to police officers about his friend, "Jeff," who he initially alleged had his truck.
{¶23} In light of this evidence, we cannot say that the jury clearly lost its way and that this case constitutes such a manifest miscarriage of justice that the conviction must be reversed. Accordingly, we overrule Jackson's sole assignment of error.
{¶24} Judgment affirmed.
It is ordered that appellee recover from appellant the 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 common pleas court 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. /s/_________
MARY J. BOYLE, JUDGE EILEEN A. GALLAGHER, A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR