Opinion
WD-21-070
01-06-2023
State of Ohio Appellee v. Brandon Michael Johnson Appellant
Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Chief Assistant Prosecuting Attorney, for appellee. Lawrence A. Gold, for appellant.
Trial Court No. 2020CR0343
Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Chief Assistant Prosecuting Attorney, for appellee.
Lawrence A. Gold, for appellant.
DECISION AND JUDGMENT
MAYLE, J.
{¶ 1} Defendant-appellant, Brandon Johnson, appeals the September 21, 2021, judgment of the Wood County Court of Common Pleas, convicting him of willfully eluding or fleeing a police officer, tampering with evidence, possession of heroin, and aggravated possession of drugs, and sentencing him to an aggregate term of 18 months in prison. For the following reasons, we affirm the trial court's judgment.
I. Background and Facts
{¶ 2} On October 8, 2020, Johnson was indicted on four counts: willfully eluding or fleeing a police officer after receiving a visible or audible signal from a police officer to bring the person's motor vehicle to a stop, a violation of R.C. 2921.331(B) and (C)(5)(a)(ii), a felony of the third degree (Count 1); tampering with evidence, a violation of R.C. 2921.12(A)(1) and (B), a felony of the third degree (Count 2); possession of heroin, a violation of R.C. 2925.11(A) and (C)(6)(a), a felony of the fifth degree (Count 3); and aggravated possession of drugs, a violation of R.C. 2925.11(A) and (C)(1)(a), a felony of the fifth degree (Count 4). These charges arose from a highway traffic stop performed on August 7, 2020, and a subsequent search of Johnson's vehicle, whereupon heroin, fentanyl, and methamphetamines were discovered.
{¶ 3} The case was tried to a jury in April 2021. At trial, the state presented the testimony of a truck driver, John Pribik, who saw Johnson throw a box out his window while being pursued by a police vehicle, two Ohio State Highway Patrol troopers, Sergeant Nathan Henn and Officer Codi Williams, and an Ohio State Crime Laboratory criminalist, Lyndi Tedder. The following facts were established at trial.
{¶ 4} On the afternoon of August 7, 2020, Sergeant Henn was performing interdiction highway patrol on I-75 in his Ford Explorer Police Interceptor vehicle. His vehicle is the standard gray color of patrol cars, with typical state trooper emblems and detailing, and it is equipped with an overhead light bar, rear flashing lights, a siren, a dash camera, a backseat camera, and microphones. Henn also wears a microphone on his person. The audio/video recording features are activated automatically when Henn turns on his flashing lights, and they can also be activated manually.
{¶ 5} That afternoon, Henn's vehicle was sitting stationary in a crossover median on I-75, just north of State Route 582, near milepost 188 in Wood County. Henn was watching southbound traffic when he observed a gray Hyundai Elantra driving 60-65 m.p.h (under the 70 mile-per-hour limit), in the middle lane, closely following the vehicle ahead by about two car-lengths. Henn testified that following too closely is a traffic violation, and in his experience, this can be an attempt to blend in when performing criminal activity. When evaluating whether a vehicle is following too closely, Henn uses a "one car length * * * for every ten miles an hour" measurement. Although Henn admitted that many drivers do not adhere to this driving standard, he testified that following too closely is the number one cause of crashes, and I-75 has more crashes than any other highway in the state. Further, Henn believed that the Hyundai was a rental car-based on its cleanliness, newness, out-of-state license plate, and lack of license plate bracket-which raised his suspicion because he knows that "rental cars are frequently used for trafficking large amounts of narcotics," since a rental vehicle cannot be forfeited to the state, unlike someone's personal vehicle.
Henn testified that after Johnson's arrest, when the Hyundai was towed, he verified that the vehicle was registered to EAN Holdings, which is Enterprise Rent-A-Car.
{¶ 6} After Henn observed the initial traffic violation, he pulled out and began to follow the Hyundai, driven by Johnson. When Henn caught up to Johnson, he was still driving in the middle lane, but Johnson was now closely following a pickup truck by about one car length. At that point, Henn decided to manually turn on his camera system, and he started to narrate what he was observing. Henn's dash cam footage was admitted at trial. When the footage was shown at trial, Henn explained that the footage does not provide a "true view" since it is only two-dimensional, which makes things look much further away than they actually are. The following events were recorded by Henn's dash cam, and the footage is consistent with Henn's testimony.
{¶ 7} Henn is following Johnson, a couple cars back, there is moderate traffic, and Johnson makes three observable lane change violations. First, Johnson moves into the right lane without signaling, passes a truck on the right, and comes back into the middle lane without signaling, then later, he goes back into the right lane without signaling. At that point, Henn decided to initiate a traffic stop. When performing a traffic stop, Henn usually calls in the plate and his location before he turns on his lights. Typically, he also turns on his rear flashing lights before his overhead lights, to provide notice to the cars behind him that he is about to stop a car. Henn followed this procedure here.
{¶ 8} When Henn turned on his overhead lights, Johnson pulled over after a slight delay. Once they were on the shoulder of the highway, Henn exited his patrol car and started to approach the vehicle. Suddenly, Johnson accelerated his vehicle rapidly and fled southbound. Henn returned to his vehicle, activated his siren (his lights were already on), and pursued Johnson. Henn also called in that he was in hot pursuit. A short highspeed chase ensued, amongst moderate highway traffic, lasting for about 90 seconds.
{¶ 9} During the chase, Henn recalled going as fast as 117 miles an hour, and he estimated that Johnson was going "at least 120 because he was pulling away." Henn described the pursuit as "a pretty dynamic intense pursuit," even though it was short, because the driver was "weaving in and out of traffic" at a very high speed. Indeed, the footage shows Johnson weaving from the right lane across two lanes of traffic into the far left lane, passing in between other cars, and back into the right lane, in front of a semi-truck. At this time, Henn acknowledged that his view of Johnson was momentarily obscured by the semi-truck. However, in that moment, Henn believed he saw something fly out of Johnson's window.
{¶ 10} While Henn's view was obstructed, Pribik, the driver of the semi-truck, witnessed Johnson's actions during that time. Pribik testified that he saw "a gray car fly up past me. He jumped in my lane[,] [and] [h]e tapped his brakes," so Pribik had to tap his own brakes. Then Pribik saw "a black box fly out" of the passenger window and roll "into the weeds." Regarding the shape and size of the black object, Pribik recalled that it was a box because he "could see it doing cartwheels, flipping through the weeds when it landed over in the trees." Noticing the state trooper behind him, with the lights and siren going, Pribik called the sheriffs office and reported the incident.
The record indicates that Pribik demonstrated with his hands the size of the box, but no descriptive words were entered into the record.
{¶ 11} Returning to the footage, Johnson again crosses two lanes of traffic, from the far right lane to the far left lane, passing between other cars, and back into the far right lane, in front of a different semi-truck. Shortly after Johnson returns to the right lane, traffic starts to clear, and Henn catches up to Johnson. Finally, with Henn right behind, Johnson abruptly slows down and submits to the traffic stop by pulling over onto the highway shoulder.
{¶ 12} Now pulled over for the second time, Henn ordered Johnson out of the vehicle at gun point. Henn recalled that Johnson was on his phone, and Henn told him to get off the phone. In the footage, Henn is heard issuing the commands, "let me see your hands," and "hands out the window." Johnson opens his car door and steps out of the vehicle, with his hands up, but holding objects-it looks like his phone and a draw-string fabric container. Henn then orders Johnson to "put that stuff down," and again, "put that stuff in the car," and Johnson throws the container in the car, but retains his phone in his right hand, and some other object in his left hand. Henn orders Johnson to "walk towards my voice," and as Johnson steps towards him, Henn orders Johnson to "get down on the ground" and to put his "hands out to the side." Johnson walks to the rear of his vehicle and complies by lying face-down on the ground, but he continues to fiddle with his cellphone. Henn repeats "hands out to the side," they exchange words, and Henn is heard saying, "no, you're not callin' anybody." Johnson complies. Henn asks Johnson if he has any weapons on him, and he replies "no."
{¶ 13} Shortly thereafter, more sirens can be heard approaching, and another trooper, Lawson appears. While Henn covers Johnson at gunpoint, Lawson approaches Johnson, places him in handcuffs and promptly executes an arrest. As soon as Johnson is in handcuffs, Henn holsters his gun and joins Lawson. The footage shows Lawson searching Johnson's person while advising Johnson of his Miranda rights. Johnson verbally acknowledges that he understands his rights. Henn then asks Johnson, "Why'd you run?" Johnson replies, "I don't got my license." Henn testified that Johnson said he ran because his license was suspended. In the footage, the troopers then stand Johnson up, and walk him away from his vehicle, and over to Henn's police vehicle. After that, the recording viewpoint switches from the dash cam to the backseat cam.
{¶ 14} As the troopers are walking Johnson towards the police car, Henn asks, "You got dope in the car or something?" And Johnson replies, "no, I got Ecstasy that I was about to pop." Henn says, "You got what?" And Johnson repeats himself word-for-word. Henn asks, "Where's that at?" It is hard to hear Johnson's reply over the police radio. Henn continues to talk to Johnson; he asks, "You got X-pills, how many do you got?" The next thing heard is Henn saying, "You got some up there?" Then Henn repeats, "How many do you got?" Johnson replies, "Six." Henn states, "I was wondering about, what did you throw out?" Then there is some back-and-forth about how much Ecstasy Johnson possessed and how much he threw out, but it is hard to hear the exact quantity being discussed. Henn places Johnson in the police car.
{¶ 15} Henn continued to interrogate Johnson in the police car. When Henn asks again about the quantity of Ecstasy pills, Johnson claims that he originally had 14 pills, he "popped" three pills two hours prior, and he threw six single pills out the window.
{¶ 16} In his testimony, Henn confirmed that he relayed the information-that Johnson admitted to throwing Ecstasy pills out of his vehicle-to the other troopers, and that dispatch had also relayed to them that the truck driver reported seeing Johnson dispose of the black box. During and after Johnson's arrest, Henn verified that the other troopers searched the area for an "extended period of time," looking for the black box. The troopers were concerned about leaving illegal drugs in public, or alternatively, that the box may have contained a firearm, but the vegetation was too thick, and the troopers were ultimately unable to recover the box.
{¶ 17} Henn also testified that after the arrest, he approached Johnson's vehicle, and he "smelled the odor of burnt marijuana." Henn recalled that at least one window was open, and the footage confirms that the driver's window was open. Trooper Williams arrived to the scene shortly after Johnson was arrested and put into the police vehicle. When Williams arrived, he went up to Johnson's vehicle to inspect it and he also "smelled the odor of burnt marijuana." Williams glanced down into the vehicle and noticed that there were illicit substances in the driver's door. The troopers then conducted a search of Johnson's vehicle, and they found a bag of several pills, which they suspected were Ecstasy, as well as "folds," which are pieces of paper that "are commonly used" to hold powdered drugs-but this one held a small tan-like rock-and a glass smoking pipe with "a lot of residue in it that smelled strongly of marijuana." Specifically, Henn recalled that the pills were found in the driver's door, and the pipe was found under the driver's seat. The pills, the "folds," and the pipe were all seized as evidence, and submitted for testing at the Ohio State Highway Patrol crime lab.
{¶ 18} Tedder, the criminalist from the Ohio State Highway Patrol Crime Laboratory, testified that she conducted scientific analysis on the controlled substances found in Johnson's vehicle. Her analysis of the substances confirmed that they were all illegal drugs. Tedder verified that the piece of paper containing a tan rock-like substance was heroin, a Schedule 1 substance, which also contained fentanyl, a Schedule 2 substance, and tramadol, a Schedule 4 substance. Turning to the pills, Tedder explained that the knotted plastic bag of bills actually contained four different pill types, but all four pills contained methamphetamine, a Schedule 2 substance.
{¶ 19} The jury found Johnson guilty on all four counts. On September 16, 2021, the court sentenced Johnson to a prison term of nine months on Count 1, nine months on Count 2, six months on Count 3, and six months on Count 4, with Counts 1 and 2 to be served consecutively to each other and concurrently to the remaining counts, for an aggregate prison term of 18 months.
{¶ 20} Johnson timely appeals and assigns the following errors for our review:
1. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY DENYING HIS MOTION TO SUPPRESS EVIDENCE.
2. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN DENYING HER [sic] RULE 29 MOTION.
3. THE JURY'S VERDICT WAS AGAINST THE MANIFEST WEIGHT OF EVIDENCE PRESENTED AT TRIAL.
II. Law and Analysis A. Motion to Suppress Evidence Found Following a Traffic Stop
{¶ 21} On January 7, 2021, Johnson moved to suppress evidence, asserting that the initial traffic stop and the eventual search of his vehicle were "conducted without reasonable articulable suspicion or probable cause," thereby violating his Fourth Amendment right against unreasonable searches and seizures. Following a hearing, on February 26, 2021, the trial court denied Johnson's motion. In his first assignment of error, Johnson argues that the trial court erred in denying his motion.
{¶ 22} The state responds that there was probable cause to initiate the traffic stop because the sergeant witnessed Johnson commit multiple traffic violations. Regarding the search, the state points to the additional information the sergeant gained while processing the traffic stop, which gave him probable cause to believe that other crimes were afoot, justifying the search of Johnson's vehicle under the automobile exception to the Fourth Amendment warrant requirement.
{¶ 23} Appellate review of a motion to suppress presents a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. The trial court acts as the trier of fact at a suppression hearing by weighing the evidence and determining the credibility of the witnesses. Although we must accept any findings of fact that are supported by competent, credible evidence, we conduct a de novo review to determine whether the facts satisfy the applicable legal standard, and this independent review is done without deference to the trial court. State v. Codeluppi, 139 Ohio St.3d 165, 2014-Ohio-1574, 10 N.E.3d 691, ¶ 7, citing State v. McNamara, 124 Ohio App.3d 706, 710, 707 N.E.2d 539 (4th Dist.1997); State v. Jones-Bateman, 6th Dist. Wood Nos. WD-11-074 and WD-11-075, 2013-Ohio-4739, ¶ 9.
{¶ 24} All evidence submitted at the suppression hearing was consistent with that presented at trial, although an un-redacted version of Henn's dash cam footage was submitted in the hearing, as opposed to the redacted version submitted to the jury at trial. The redactions were made to protect the jury from hearing prejudicial information about Johnson's prior offense, which was the reason why his driver's license was suspended at the time of this traffic stop.
{¶ 25} At the suppression hearing, Johnson argued that the initial traffic stop was an illegal stop because the phrase "following too closely," in R.C. 4511.34, is an undefined standard that effectively allows police unlimited discretion to stop drivers. In this way, the standard does not properly put the public "on notice of just what following too closely is." Alternatively, Johnson argued that the sole purpose of the statute is to prevent rear-end collisions, and there was no objective proof that Johnson violated the statute since "[n]o accident occurred, and [Johnson] never even had to brake hard in order to avoid a collision." Therefore, Johnson contended that there was "insufficient credible evidence offered to support the existence of probable cause" for the traffic stop. Finally, Johnson asserted that because the traffic stop was unsupported, the warrantless search of Johnson's vehicle was also unsupported by probable cause, thereby making it an illegal search, and as such, all evidence resulting from the search should be suppressed.
The state recognized that Johnson's argument "could be stretched into a due process/vagueness challenge to the statute," but argued that Johnson failed to frame his argument in those terms, and, in any event, Ohio courts have already rejected such a challenge.
{¶ 26} In response, the state contended that Henn's testimony and his dash cam footage clearly demonstrate that Johnson made at least four traffic violations before Henn executed the traffic stop, including violating the "Space between moving vehicles" statute, R.C. 4511.34(A), and the "Turn and stop signals" statute, R.C. 4511.39. Thus, the state asserted that Henn had the requisite reasonable suspicion, supported by articulable facts, and even probable cause, that Johnson committed a traffic violation, justifying the traffic stop. Regarding the subsequent search of Johnson's vehicle, the state argued that Johnson fleeing the initial traffic stop and his subsequent confession that he was in-possession of Ecstasy provided sufficient probable cause that another crime was in progress, supporting the search of Johnson's vehicle, which falls within the automobile exception to the Fourth Amendment's warrant requirement for searches.
{¶ 27} In denying the motion to suppress, the trial court found the following facts credible and determinative. Trooper Henn testified that he observed Johnson driving a grey hatchback, which appeared to be a rental car, that Johnson was driving unreasonably close to the semi-truck ahead of him, only one-to-two car lengths behind, traveling at 65-70 m.p.h., and he made multiple lane changes without signaling. The submitted footage from Henn's dash cam was consistent with his testimony, and it clearly shows Johnson's vehicle change lanes three times without signaling, and Johnson following another vehicle very closely. Henn recalled his training where he learned that a vehicle should travel behind one car length per ten m.p.h., and he stated that tailgating a semi-truck is particularly dangerous for compact car drivers because of the reduced reaction time and fortified steel structure of the truck. He further testified that following too closely is the number one cause of crashes, and that I-75 has more crashes than any other highway in the state. Taken together, the trial court found that Henn had sufficient probable cause of criminal activity, since Henn had observed Johnson commit multiple traffic violations before he initiated the traffic stop; thus, the traffic stop was proper.
{¶ 28} Regarding the search of Johnson's vehicle, Henn testified that he had probable cause because Johnson told Henn that the reason he fled was because he did not have a driver's license, he was out on judicial release, and he was about to consume an illegal substance. As the court noted, Henn's dash cam footage recorded this exchange. Henn is heard asking Johnson, "Why'd you run?" Johnson replies, "I don't got my license. I'm on judicial release." Henn then specifically asks if Johnson "got dope in the car or something?" And Johnson responds, "I got Ecstasy that I was about to pop." Based on this evidence, the court concluded that independent probable cause existed to search Johnson's vehicle because he fled from the police, creating reasonable suspicion that contraband was in his vehicle, and then during the traffic stop, Johnson admitted to having illegal drugs in the vehicle.
{¶ 29} In our review under the applicable legal standard, we consider whether Henn had reasonable suspicion that Johnson violated a traffic law, justifying the traffic stop, and subsequently, whether Henn had probable cause to search Johnson's vehicle. Before beginning our analysis, we must make clear that there were two stops here: (1) the stop Henn initiated after he observed Johnson drive too slowly in the middle lane, follow too closely, and change lanes without signaling; and (2) the stop Henn initiated after Johnson sped away, led him on a chase with speeds exceeding 100 miles per hour, and discarded drugs out the window. The first stop did not result in the seizure of evidence. The second stop resulted in the seizure of drugs from Johnson's vehicle. Johnson challenges only the first stop. He then-only vaguely-challenges the search of the vehicle that followed the second stop.
{¶ 30} "The Fourth Amendment to the United States Constitution and Section 14, Article 1 of the Ohio Constitution prohibit unreasonable searches and seizures, including unreasonable automobile stops." Bowling Green v. Godwin, 110 Ohio St.3d 58, 2006-Ohio-3563, 850 N.E.2d 698, ¶ 11, citing Whren v. United States, 517 U.S. 806, 810 (1996). To help identify situations when a person's Fourth Amendment rights are implicated, the U.S. Supreme Court has created three categories of police-citizen contact: (1) consensual encounters, (2) investigative "Terry stops" [Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)], and (3) arrests. State v. Williams, 6th Dist. Lucas No. L-17-1148, 2018-Ohio-5202, ¶ 20, citing State v. Staten, 4th Dist. Athens No. 03CA1, 2003-Ohio-4592, ¶ 16. In our case, the initial traffic stop of Johnson by Sergeant Henn falls into the category of an investigative Terry stop.
{¶ 31} Since a citizen is temporarily detained during an investigative stop, and is generally not free to leave, a traffic stop is considered a "seizure" under the Constitution. State v. Jones, 187 Ohio App.3d 478, 2010-Ohio-1600, 932 N.E.2d 904, ¶ 35 (6th Dist.). As such, for a traffic stop to be constitutionally valid, an officer's decision to stop a motorist must be based on "a reasonable and articulable suspicion considering all the circumstances," that a criminal violation-including a traffic violation-has occurred. State v. Mosby, 6th Dist. Lucas No. L-20-1010, 2021-Ohio-2255, ¶ 27. As a rule, an investigative stop cannot be "based on nothing more substantial than inarticulate hunches" of an officer. Terry at 22. Indeed, the officer's suspicion must be objective, particularized, and based on the totality of the circumstances known by the officer prior to the stop. State v. Andrews, 57 Ohio St.3d 86, 87, 565 N.E.2d 1271 (1991); United States v. Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). When analyzing suppression arguments challenging the propriety of investigative stops, we view the totality of the circumstances "'through the eyes of a reasonable and cautious police officer on the scene, guided by his experience and training.'" State v. Freeman, 64 Ohio St.2d 291, 295, 414 N.E.2d 1044 (1980), quoting United States v. Hall, 525 F.2d 857, 859 (D.C. Cir.1976).
{¶ 32} Turning to the facts in our case, although the initial traffic violation that caused Henn to start following Johnson was not recorded by the dash cam footage, Henn described Johnson's traffic violations and the video footage captured several violations. Specifically, Henn testified that he observed three traffic violations: Johnson was driving too slow in the middle lane, R.C. 4511.25(B), following too closely, R.C. 4511.34, and failed to signal during several lane changes, R.C. 4511.39. On appeal, Johnson focuses on "the arbitrary nature" of Henn's decision to pull him over for driving too slowly and for following too closely, largely ignoring the fact that he also committed lane-change violations that are clearly visible in the dash cam footage and which alone permitted Henn to initiate a traffic stop. So even setting aside any subjectivity involved in assessing what may be "too slowly" for purposes of R.C. 4511.25(B) or "too closely" for purposes of R.C. 4511.34, Johnson's failure to signal when changing lanes provided Henn with sufficient facts to reasonably suspect that Johnson violated R.C. 4511.39; thus, we find that the initial traffic stop was justified.
{¶ 33} With respect to the search of Johnson's vehicle, the officers clearly conducted a warrantless search of the vehicle. Importantly, the search of Johnson's vehicle occurred after the second stop-i.e., after Johnson fled, led Henn on a high-speed chase, and threw something out the window.
{¶ 34} It is well-established that the Fourth Amendment generally requires the police to obtain a warrant before conducting a search, and that "warrantless searches are per se unreasonable," but there are several exceptions to this general rule. Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009); State v. Kessler, 53 Ohio St.2d 204, 207, 373 N.E.2d 1252 (1978). Relevant here is the automobile exception to the warrant requirement. "A warrantless search of an automobile stopped by police officers who have probable cause to believe the vehicle contains contraband is not unreasonable within the meaning of the Fourth Amendment." United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), citing Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). State v. Vega, 154 Ohio St.3d 569, 2018-Ohio-4002, 116 N.E.3d 1262, ¶ 13 (warrantless search is permissible if an officer has probable cause to believe that the vehicle contains contraband).
{¶ 35} Thus, we must determine whether the police had probable cause to believe the vehicle contained contraband. "Probable cause to search exists where 'the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found.'" State v. Moore, 6th Dist. Lucas No. L-19-1195, 2021-Ohio-1067, ¶ 27, quoting Ornelas v. U.S., 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). "Whether probable cause existed depends on the objective factors articulated by the officer." Id., citing In re L.S, 1st Dist. Hamilton No. C-150526, 2016-Ohio-5582, ¶ 16.
{¶ 36} In this case, before the troopers conducted a search of Johnson's vehicle, they knew the following information: Johnson fled from the initial traffic stop, after Johnson was arrested and Mirandized, he admitted to consuming and possessing Ecstasy pills- Johnson told Henn that he had 14 pills, he "popped" three pills two hours prior, he threw six single pills out the window, leaving about five pills in his vehicle-and dispatch had relayed to the officers that Pribik, the truck driver, reported seeing Johnson dispose of a black box during the high-speed chase. Additionally, Henn testified that he smelled the fresh odor of burnt marijuana when he approached the vehicle.
{¶ 37} Taken together, these facts certainly provide enough basis for the officers to have a reasonable belief that there was contraband in Johnson's vehicle. Therefore, we agree that based on Henn's observations and Johnson's admissions, the troopers had independent probable cause to conduct a warrantless search of Johnson's vehicle under the automobile exception.
We also note that because Johnson was being arrested and it had been determined that he was an unlicensed driver, Johnson was not going to be allowed to retrieve the vehicle and it was going to be towed. The vehicle, therefore, would be subject to an inventory search, another exception to the warrant requirement, which does not require probable cause. See State v. Mesa, 87 Ohio St.3d 105, 108-109, 717 N.E.2d 329 (1999).
{¶ 38} In sum, the trial court correctly denied the motion to suppress evidence because the trial court's factual determinations-which are supported by competent, credible evidence-demonstrate that the officers had reasonable, articulable suspicion to initiate the traffic stop and probable cause to search the vehicle. We, therefore, find Johnson's first assignment of error not well-taken.
B. Sufficiency of Evidence and Crim.R. 29(A) Motion
{¶ 39} In Johnson's second assignment of error, he argues that insufficient evidence was presented to support a conviction on Counts 1 and 2, willfully eluding or fleeing a police officer and tampering with evidence. Specifically, Johnson contends that the state only introduced evidence that his noncompliant behavior had potential for harm, not that he caused any harm, and that since the "black box" was never recovered, no evidence was submitted to verify that its contents related to criminal activity.
{¶ 40} The state responds that high-speed chases are inherently so dangerous that Ohio courts consistently find that evidence that a defendant engaged officers in a highspeed chase is sufficient to support a conviction under R.C. 2921.331(B)(C)(5)(a)(ii) (willfully eluding or fleeing a police officer), especially where the defendant weaves in and out of traffic while trying to escape law enforcement. Regarding the tampering charge, the state points out that Johnson admitted to throwing drugs out of his car while he was fleeing from police during the high-speed chase.
{¶ 41} In reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the prosecution and determine whether "any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." (Internal citations omitted.) State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997). In making that determination, we will not weigh the evidence or assess the credibility of the witnesses. State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 132. Whether there is sufficient evidence to support a conviction is a question of law, which we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).
{¶ 42} A motion for acquittal under Crim.R. 29(A) challenges the sufficiency of the evidence. State v. Brinkley, 105 Ohio St.3d 231, 2005-Ohio-1507, 824 N.E.2d 959, ¶ 39. Thus, the denial of a Crim.R. 29 motion "is governed by the same standard as the one for determining whether a verdict is supported by sufficient evidence." State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37.
{¶ 43} In relevant part, R.C. 2921.331(B) states that "[n]o 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 the person's motor vehicle to a stop." Further, section (C)(5) specifies that a division (B) violation is a third-degree felony if the trier of fact finds that "[t]he operation of the motor vehicle by the offender caused a substantial risk of serious physical harm to persons or property," by proof beyond a reasonable doubt. Id.
{¶ 44} Johnson does not challenge that sufficient evidence existed to prove that he fled the police, rather, he claims there was insufficient evidence to convict him of the enhanced felony charge, arguing that his behavior did not cause a "substantial risk" of harm since he did not cause any actual physical harm. We disagree. What is determinative for the enhanced felony charge is the risk of harm--not that actual harm occurred. See, e.g., State v. Bason, 8th Dist. Cuyahoga No. 86112, 2005-Ohio-6492, ¶ 7 ("That no serious harm occurred to persons or property does not overcome the evidence that sufficiently established a substantial risk of it."). Indeed, Ohio appellate courts have repeatedly held that high-speed chases inherently create a substantial risk of physical harm to the driver, officers, and other motorists on the road, since high speeds increase the likelihood and severity of crashes. See State v. Owens, 6th Dist. Lucas No. L-21-1148, 2022-Ohio-2908, ¶ 22-32; State v. Jefferson, 5th Dist. Richland No. 18CA2 and 18, CA3 2019-Ohio-156, ¶ 59; State v. Scott, 8th Dist. Cuyahoga No. 99524, 2013-Ohio-4599, ¶ 22; State v. Sanders, 11th Dist. Lake No. 2007-7-062, 2008-Ohio-1126, ¶ 29.
{¶ 45} The record shows that Johnson drove his vehicle at an extremely high rate of speed-in excess of 100 m.p.h.-while weaving between and around other vehicles across all three lanes on the highway. There is no question that a rational jury could find that Johnson's conduct caused substantial risk of serious physical harm to himself, Henn, and other motorists. We also note that Johnson admitted to driving under the influence of an illegal substance, and his insobriety presumably further increased the risk of harm caused by his conduct.
{¶ 46} In short, we find that sufficient evidence supported Johnson's enhanced felony conviction for willfully eluding or fleeing a police officer since his high speed flight and traffic weaving caused a substantial risk of serious physical harm to persons and property.
{¶ 47} Turning to Count 2, R.C. 2921.12(A)(1) mandates that "[n]o person, knowing that an official proceeding or investigation is in progress, or is about to be or likely to be instituted, shall… [a]lter, destroy, conceal, or remove any record, document, or thing, with purpose to impair its value or availability as evidence in such proceeding or investigation[.]" Further, section (B) stipulates that a person who violates section (A) is "guilty of tampering with evidence, a felony of the third degree." Id. Thus, to be guilty of tampering with evidence, the state must prove that Johnson: (1) knew of a current or imminent investigation; (2) removed or destroyed evidence; and (3) intended to impair the value or availability of the potential evidence.
{¶ 48} Under R.C. 2901.22, a defendant has the culpable mental state of "knowing" when he "has knowledge of circumstances when the person is aware that such circumstances probably exist." A defendant's knowledge of a fact is established as an element of an offense when the state shows that he "subjectively believes that there is a high probability of [the fact's] existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact." Id. Further, we measure the likelihood of an investigation "at the time of the alleged tampering," not at the time an officer initiates the stop. State v. Straley, 139 Ohio St.3d 339, 2014-Ohio-2139, 11 N.E.3d 1175, ¶ 19. Johnson's alleged tampering occurred during the high-speed chase, after he fled from the initial investigatory traffic stop. Surely, a rational jury could find that Johnson was aware that he would probably be apprehended and that an investigation would likely occur, since he was immediately pursued by Sergeant Henn, with his lights and siren activated, and a reasonable person would not feel the need to toss the pills-while trying to elude police-if he did not believe an investigation was imminent. See State v. Cabrera, 9th Dist. Lorain No. 13CA010434, 2014-Ohio-3372, ¶ 17 (a defendant's knowledge that illegal drugs in his possession are likely to be discovered and investigated, together with his actions in hiding the drugs, evince his intention to impair the value or availability of evidence related to that likely investigation).
{¶ 49} Johnson contends that insufficient evidence existed to prove that he possessed and discarded an illegal substance, since the "black box" was never recovered. We disagree. Regardless of whether the "black box" existed and regardless of whether the box contained contraband, Johnson admitted to throwing Ecstasy pills out the window during the high-speed chase, and his confession was recorded by Henn's dash cam. As such, the state presented sufficient that Johnson "removed or destroyed evidence" for purposes of R.C. 2921.12(A)(1).
{¶ 50} Regarding Johnson's purpose to impair the value or availability of the potential evidence, R.C. 2901.22 defines the culpable mental state of "purposely" as when the defendant has a "specific intention to cause a certain result." "[T]he intent required by R.C. 2921.12(A)(1) can be inferred by the defendant's words, actions, and demeanor after a crime has been committed." (Emphasis sic.) State v. Price, 9th Dist. Summit No. 28291, 2017-Ohio-4167, ¶ 18. There is no question that a reasonable jury could believe that Johnson acted with the purpose to impair the value or availability of the potential evidence because Johnson admitted-on camera-to throwing the drugs out his window while he was being pursued by a trooper in a high-speed chase.
{¶ 51} In short, the jury could have reasonably concluded that at the time of the alleged tampering-while fleeing from the initial traffic stop-Johnson knew an investigation into his drug possession was likely to occur, and he threw the pills from his vehicle in an effort to impair the availability of that evidence in a likely investigation. Thus, we find Johnson's second assignment of error not well-taken.
C. Manifest Weight of the Evidence
{¶ 52} In Johnson's third assignment of error, he disputes the credibility of the evidence presented against him for Counts 1 and 2, willfully eluding or fleeing a police officer and tampering with evidence, and asserts that his convictions on these counts were against the weight of the evidence. Similar to the arguments in support of his second assignment of error, Johnson claims that the jury's verdict improperly relied on his potential to cause harm not any actual harm caused in the high-speed chase, and that the absence of evidence as to what was contained in the "black box" makes it impossible for the jury to infer that the "black box" was related to any illegal activity.
{¶ 53} The state submits that extremely high speeds and weaving around traffic routinely satisfy a showing that defendant "caused a substantial risk of serious physical harm," and that throwing something out of a car while fleeing from police, including drugs, is tampering with evidence. The state points out that although Henn was unsure as to what he saw Johnson throw out of his car, another motorist, Pribik, clearly observed the act and reported it to police, and Johnson plainly admitted to throwing Ecstasy pills out his window.
{¶ 54} In criminal appeals challenging the jury's verdict on manifest-weight grounds, the issue is whether the state met its burden of persuasion. Thompkins, 78 Ohio St.3d at 390, 678 N.E.2d 541. "Weight is not a question of mathematics, but depends on its effect in inducing belief." (Emphasis added.) Id. at 387. When an appellate court reviews a claim that a verdict is against the manifest weight of the evidence, we must "examine the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether the jury 'clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.'" State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 81, quoting Thompkins at 387. We do not view the evidence in a light most favorable to the prosecution. "Instead, we sit as a 'thirteenth juror' and scrutinize 'the factfinder's resolution of the conflicting testimony.'" State v. Robinson, 6th Dist. Lucas No. L-10-1369, 2012-Ohio-6068, ¶ 15, citing Thompkins at 387.
{¶ 55} Although we consider the credibility of witnesses under a manifest-weight standard, we extend special deference to the jury's credibility determinations, given that the jury that has the benefit of seeing the witnesses testify, observing their facial expressions and body language, hearing their voice inflections, and discerning qualities such as hesitancy, equivocation, and candor. State v. Fell, 6th Dist. Lucas No. L-10-1162, 2012-Ohio-616, ¶ 14. Reversal on manifest weight grounds is reserved for "the exceptional case in which the evidence weighs heavily against the conviction." Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 56} Again, the determination for an enhanced felony charge of willfully eluding or fleeing a police officer is the risk of serious physical harm to persons and property that Johnson created, not that actual harm resulted. The record includes ample evidence showing that Johnson created a substantial risk of physical injury during the high speed chase. As Henn testified, Johnson drove his vehicle at an extreme high rate of speed-in excess of 100 m.p.h.-and amidst moderate traffic, he crossed back-and-forth between all three lanes of traffic, passing in between other cars. In fact, Henn's testimony was wholly consistent with his dash cam footage, which was submitted to the jury. Additionally, the semi-truck driver, Pribik, testified that Johnson flew up and cut over in front of him, into the right lane, and then Johnson braked so hard-to throw out the black box-that he caused Pribik to brake himself. But for Pribik's vigilance, Johnson may have caused a collision in that moment. Finally, after his arrest, Johnson admitted to Henn-and was recorded saying-that he had "popped" three Ecstasy pills two hours prior to the traffic stop, implying that he was presumably driving under the influence, which further increased the risk of harm posed by his conduct. Thus, the testimony, admissions, and dash cam footage all demonstrate that Johnson's conduct during the high-speed chase created a substantial risk of serious physical harm.
{¶ 57} The jury did not lose its way and create a manifest miscarriage of justice in finding Johnson guilty of the enhanced felony charge for willfully eluding or fleeing a police officer since his high-speed evasive driving amidst traffic caused a substantial risk of serious physical harm to persons and property.
{¶ 58} Regarding the second count, the state submitted evidence showing that Henn intended to conduct an investigatory traffic stop for minor traffic violations, but Johnson fled from that initial stop, initiated the high speed chase and Henn followed in hot pursuit with his lights and siren turned on. On a whole, this evidence is convincing that Johnson knew he could be imminently apprehended, and he tossed the drugs out of his vehicle to avoid a potential drug investigation and additional charges. While it is true that the "black box" and its contents were never recovered, Johnson confessed to throwing Ecstasy pills out his window, and that confession was recorded by Henn's dash cam and submitted to the jury.
{¶ 59} Taken together, this evidence shows that Johnson discarded the potential evidence, knowing that an investigation was likely to ensue as soon as he submitted to the traffic stop, and Johnson acted with the purpose of impeding the value or availability of the evidence. The jury did not lose its way and create a manifest miscarriage of justice in finding Johnson guilty of tampering with evidence.
{¶ 60} In sum, Johnson's case is not an exceptional case in which the evidence weighs heavily against the conviction, and the jury did not lose its way or create a manifest miscarriage of justice by convicting Johnson on the enhanced willfully eluding or fleeing a police officer and tampering with evidence charges. Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541. Thus, we find Johnson's third assignment of error not well-taken.
IV. Conclusion
{¶ 61} On the first assignment of error, Johnson's motion to suppress evidence was properly denied since Sergeant Henn initiated the traffic stop on reasonable suspicion of traffic violations, and conducted the vehicle search with probable cause of contraband inside. Further, on the second assignment of error, sufficient evidence existed to deny the Crim.R. 29(A) motion on the charge of willfully eluding or fleeing a police officer and tampering with evidence, since Johnson clearly fled the traffic stop, started a high-speed chase, and discarded drugs out his window during the chase. Finally, on the third assignment of error, Johnson's conviction on the same charges were not against the manifest weight of the evidence since credible evidence existed that the high-speed chase created a substantial risk of serious physical harm and that Johnson possessed and disposed of contraband during the chase. Therefore, we find Johnson's assignments of error not well-taken and affirm the September 21, 2021 judgment of the Wood County Court of Common Pleas. Johnson is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. Christine E. Mayle, J. CONCUR.
Gene A. Zmuda, J. CONCURS AND WRITES SEPARATELY.
ZMUDA, J.
{¶ 62} I concur in the majority's analysis, and only write separately to note the deficiency in appellant's argument relevant to the first assignment of error, challenging the denial of his motion to suppress. Appellant specifically challenges only the legality of the first stop and any evidence seized as a result. In fact, appellant failed to submit to the first stop and no evidence was seized as a result of that encounter.
{¶ 63} Fourth Amendment protections extend to a person "seized," and in the case of a traffic stop, require a show of authority by law enforcement and submission to that authority by the person stopped. (Citation omitted) State v. Harrison, 3d Dist. Logan No. 8-22-05, 2022-Ohio-2537, ¶ 15. It is undisputed that appellant brought his vehicle to a stop, but sped away as the officer exited his vehicle to approach appellant. "The failure to submit to the instructions means there is no seizure, merely an attempted seizure which is beyond the scope of the Fourth Amendment." Id., citing Brendlin v. California, 551 U.S. 249, 254, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007); see also State v. Roby, 2017-Ohio-7331, 84 N.E.3d 1102, ¶ 19 (10th Dist.), citing Brendlin at 262 ("a fleeing man is not seized until he is physically overpowered, but one sitting in a chair may submit to authority by not getting up to run away.").
{¶ 64} After appellant fled, driving in excess of 100 m.p.h., weaving through traffic, and tossing items from an open window, police pursued appellant, effectuated a second traffic stop, and placed him under arrest. While it is well-settled law that "evidence and statements obtained from the illegal stop must be excluded as fruits of the poisonous tree" as evidence obtained by exploiting the illegality, see Wong Sun v. United States, 371 U.S. 471, 487-488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), the evidence seized, in this case, resulted from the subsequent stop and detention. Appellant did not challenge this stop in the trial court, and raised no argument connecting evidence or statements obtained as part of the subsequent stop to the lawfulness of the initial stop.
{¶ 65} Because police seized neither appellant nor evidence pursuant to the initial traffic stop, the trial court did not err in denying the motion to suppress. With this noted, I respectfully concur.