Opinion
C. A. 22CA0080-M
07-31-2023
STATE OF OHIO Appellee v. CLYDE R. WEBSTER Appellant
APPEARANCES: COLE F. OBERLI, Attorney at Law, for Appellant. S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant Prosecuting Attorney, for Appellee.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO CASE No. 19CR0171
APPEARANCES: COLE F. OBERLI, Attorney at Law, for Appellant.
S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
HENSAL, JUDGE.
{¶1} Clyde Webster appeals his convictions and sentence from the Medina County Court of Common Pleas. For the following reasons, this Court affirms.
I.
{¶2} According to a retail store's loss-prevention employee, she watched a man leave the store with a television in his cart without paying for it. When she approached the man, he abandoned the cart, got into a red Monte Carlo car, and drove away. A police officer who was responding saw the car exiting the parking lot and attempted to conduct a traffic stop, but the driver refused to stop. The officer pursued the car for a short while but called off his pursuit because traffic volume and poor road conditions created a heightened safety risk. A second officer saw the car a little while later, but it again refused to stop.
{¶3} When police contacted the registered owner of the red Monte Carlo, he said that he had sold the car to his aunt but had not had the opportunity to transfer the title to her yet. The aunt said that she had let her boyfriend, Mr. Webster, borrow the car one day for what she thought was a brief errand, but he never returned it. Her nephew, therefore, reported the car stolen. The owner's aunt, Mr. Webster's girlfriend, saw Mr. Webster still driving the car one evening, but he refused to stop for her. Comparing Mr. Webster's Bureau of Motor Vehicles photograph to the store's surveillance camera footage, officers determined that Mr. Webster was the individual who attempted to steal the television.
{¶4} The Grand Jury indicted Mr. Webster on one count of receiving stolen property and one count of failure to comply with an order or signal of a police officer. He was eventually arrested in Pennsylvania, where he served a sentence in a different case before being extradited to Ohio. A jury found Mr. Webster guilty of both offenses, and the trial court sentenced him to a total of 36 months imprisonment. Mr. Webster has appealed, assigning six errors.
II.
ASSIGNMENT OF ERROR I
APPELLANT'S CONVICTIONS FOR FAILURE TO COMPLY WITH AN ORDER OR SIGNAL OF A POLICE OFFICER AND RECEIVING STOLEN PROPERTY ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. THE IDENTIFICATION OF APPELLANT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
{¶5} In his first assignment of error, Mr. Webster argues that his convictions are against the manifest weight of the evidence. When considering a challenge to the manifest weight of the evidence, this Court is required to consider the entire record, "weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). "A reversal on this basis is reserved for the exceptional case in which the evidence weighs heavily against the conviction." State v. Croghan, 9th Dist. Summit No. 29290, 2019-Ohio-3970, ¶ 26.
{¶6} Mr. Webster argues that the eyewitness and video identifications of him are not credible. He notes that the loss-prevention employee did not identify him as the person who attempted to steal the television until the day of trial, which was four years after the incident. He also notes that neither of the officers who pursued the red Monte Carlo were able to view its driver. He further notes that one of the witnesses who identified him was not even an eyewitness to the events.
{¶7} The witness who was not an eyewitness to the events was Mr. Webster's former girlfriend, who testified that she had allowed Mr. Webster to borrow the red Monte Carlo and that he had not brought it back. She testified that she was dating Mr. Webster at the time of the incident and continued dating him after the car was recovered. She identified Mr. Webster as the person in the store surveillance video from his face, the way he carried himself, and his mannerisms. Together with the loss-prevention employee's identification of Mr. Webster as the person who attempted to steal the television, we cannot say that the jury lost its way when it found that Mr. Webster was the person involved in the alleged offenses. Mr. Webster's first assignment of error is overruled.
ASSIGNMENT OF ERROR II
APPELLANT'S CONVICTION FOR FAILURE TO COMPLY WITH AN ORDER OR SIGNAL OF A POLICE OFFICER IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. NO EVIDENCE WAS PRESENTED TO SHOW APPELLANT WAS THE DRIVER.
{¶8} In his second assignment of error, Mr. Webster argues that his failure-to-comply conviction is against the manifest weight of the evidence because no one identified him as the driver of the red Monte Carlo. According to Mr. Webster, even though the store employee saw him depart in the car, she did not say he was driving it. In addition, neither of the officers who pursued the car testified that there was only one person in it or that they saw him driving the vehicle.
{¶9} The loss-prevention employee testified that she saw Mr. Webster get into a red Monte Carlo and she told a police dispatcher the way he was going. The fact that Mr. Webster was the person driving the car was implicit in her answer about the way he was going. Mr. Webster's girlfriend also testified that she had seen Mr. Webster driving the car in Akron after he failed to return it to her. Upon review of the record, we cannot say that the jury lost its way when it determined that Mr. Webster was the person driving the red Monte Carlo who failed to comply with the signal or order of a police officer. Mr. Webster's second assignment of error is overruled.
ASSIGNMENT OF ERROR III
APPELLANT'S FELONY CONVICTION FOR FAILURE TO COMPLY WITH AN ORDER OR SIGNAL OF A POLICE OFFICER IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. THE EVIDENCE DOES NOT SHOW THAT APPELLANT CREATED A SUBSTANTIAL RISK OF SERIOUS PHYSICAL HARM AS REQUIRED UNDER THE STATUTE.
{¶10} In his third assignment of error, Mr. Webster argues that his failure-to-comply conviction is against the manifest eight of the evidence because, assuming he was the operator of the red Monte Carlo, he did not create a substantial risk of physical harm to persons or property while driving it. Under Section 2921.331(B), "[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." A violation of that section is a felony of the third degree 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." R.C. 2921.331(C)(5)(a)(ii). A "'[substantial risk' means a strong possibility, as contrasted with a remote or significant possibility, that a certain result may occur or that certain circumstances may exist." R.C. 2901.01(A)(8).
{¶11} The officer who saw the car exiting the parking lot testified that it was snowing and there was an accumulation of snow on the roads. He followed the car out of the parking lot and came up behind it at an intersection. After going through the intersection, he activated his lights and siren, but the car took off, travelling faster than the other cars on the road. He estimated that the car was going 50 miles per hour on a road that had a speed limit of 35. As they approached the next intersection, he watched the car go into a turn lane then cut back, cutting off and almost hitting another vehicle. The officer testified that, because the intersection had three or four lanes in each direction, which created a heightened safety concern, and because the alleged offense was only one of attempting to steal a television, the officer decided to end the pursuit.
{¶12} Another officer testified that she was on her way to help the first officer when that officer called off the pursuit. She, therefore, resumed her normal patrol. A little while later, however, she spotted the red Monte Carlo a few cars ahead of her in an interstate exit lane. After turning at the intersection, she was able to read the license plate of the car and initiated a traffic stop with emergency lights and siren. The car turned back onto the interstate, however, and took off. She could see a number of semi-trucks ahead of them and watched the car pass one of them on the berm. Because of the heavy traffic conditions and unsafe driving by the red Monte Carlo, she ended her pursuit.
{¶13} Upon review of the record, we conclude that the jury did not lose its way when it determined that Mr. Webster created a substantial risk of serious physical harm to persons or property when he failed to comply with the signal of a police officer. According to the officers, after they initiated traffic stops by activating their lights and siren, Mr. Webster accelerated the red Monte Carlo well above the posted speed limit, changed lanes erratically, cut off and almost struck another vehicle, and passed a semi-truck on the interstate by going outside the lanes of traffic. He did this on roads that were experiencing heavy traffic conditions, while it was snowing, and when there was an accumulation of snow on the ground. Mr. Webster's third assignment of error is overruled.
ASSIGNMENT OF ERROR IV
APPELLANT RECEIVED CONSTITUTIONALLY INEFFECTIVE ASSISTANCE OF COUNSEL WHERE SHE DID NOT OBJECT TO HIGHLY PREJUDICAL AND IRRELEVANT TESTIMONY REGARDING APPELLANT WITH THE RED MONTE CARLO IN AKRON. FURTHER, SHE WAS INEFFECTIVE FOR NOT OBJECTING TO THE TESTIMONY ON 404(B) GROUNDS.
{¶14} In his fourth assignment of error, Mr. Webster argues that his counsel was ineffective for not objecting to his girlfriend's testimony about the evening when she saw Mr. Webster driving the red Monte Carlo in Akron. To prevail on his claim, Mr. Webster must establish (1) that his counsel's performance was deficient to the extent that "counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment" and (2) that but for his counsel's deficient performance the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984). A deficient performance is one that falls below "an objective standard of reasonable representation[.]" State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the syllabus. A court, however, "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Strickland at 689, quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955). To establish prejudice, Mr. Webster must show that there existed "a reasonable probability that, but for his counsel's errors, the outcome of the proceeding would have been different." State v. Sow ell, 148 Ohio St.3d 554, 2016-Ohio-8025, ¶ 138.
{¶15} Mr. Webster's former girlfriend testified that, one evening, after Mr. Webster failed to return the red Monte Carlo to her, she went looking for him in Akron and saw him driving the car. She pursued Mr. Webster, attempting to get him to stop, but he kept going. At one point, he went down a dead-end street, so she blocked the entrance of it, knowing he would have to turn around. When Mr. Webster came back, he drove over a grassy median to avoid having to stop for her.
{¶16} According to Mr. Webster, his attorney should have objected to the testimony because it was irrelevant and any probative value of the story was outweighed by the danger of unfair prejudice. He argues that the story was prejudicial because it suggested to the jurors that he was someone who would flee from a pursuer and commit traffic violations to do so, just as he was alleged to have done while committing the failure-to-comply offense. Mr. Webster argues that, if his former girlfriend had not been allowed to tell the story, he would not have been convicted.
{¶17} The State argues that the girlfriend's testimony was a relevant and important part of proving the receiving-stolen-property count. That offense required the State to establish that Mr. Webster received, retained, or disposed "of property of another knowing or having reasonable cause to believe that the property has been obtained through commission of a theft offense." R.C. 2913.51(A). The State also argues that her testimony helped prove Mr. Webster's identity as the driver of the red Monte Carlo who failed to comply with the signals of the police officers.
{¶18} Upon review of the record, we believe that the girlfriend's testimony was not merely character evidence under Evidence Rule 404(A) or evidence of another wrongful act under Rule 404(B). Instead, we agree that her testimony was probative as to whether Mr. Webster received and retained stolen property, in violation of Section 2913.51(A). Accordingly, Mr. Webster's counsel's failure to object to the testimony did not render her performance deficient. We, therefore, conclude that Mr. Webster has not established that he received ineffective assistance of counsel. Mr. Webster's fourth assignment of error is overruled.
ASSIGNMENT OF ERROR V
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DID NOT CONSIDER THE FACTORS LISTED IN R.C. 2921.331(C)(5)(b) WHEN SENTENCING APPELLANT.
{¶19} In his fifth assignment of error, Mr. Webster argues that the trial court did not consider the factors it was required to consider before sentencing him for the failure-to-comply offense. Under Section 2921.331(C)(5)(b), when determining the seriousness of the offender's conduct in committing a violation of Section 2921.331(B), the court "shall consider" the duration of the pursuit, the distance of the pursuit, the rate of speed of the offender, whether the offender failed to stop for any traffic lights or stop signs, the number of traffic lights or stop signs for which the offender failed to stop, whether the offender drove without lights during a time lights are required, the number of moving violations the offender committed during the pursuit, and any other relevant factors. Mr. Webster notes that the court did not mention any specifics of the chase at the sentencing hearing and only stated that it had considered the principles of Section 2929.11 in its judgment entry.
{¶20} A sentencing court is not required to state its consideration of the factors under Section 2921.331(C)(5)(b) on the record. State v. Standifer, 2d Dist. Clark No. 2022-CA-2, 2022-Ohio-2426, ¶ 19. It also is not required to make any specific findings regarding those factors. State v. Wingate, 3d Dist. Hardin No. 6-20-07, 2020-Ohio-6796, ¶ 12. We also note that Mr. Webster did not discuss any of the factors when arguing for a shorter sentence than what the State proposed.
{¶21} Regarding the sentencing factors a court is required to consider under Section 2929.11 and 2929.12, this Court presumes that a trial court has properly considered the statutes even if it does not put its consideration of them on the record. State v. Fernandez, 9th Dist. Medina No. 13CA0054-M, 2014-Ohio-3651, ¶ 8. We have held that, "[u]nless the record shows that the court failed to consider the factors, or that the sentence is 'strikingly inconsistent' with the factors, the court is presumed to have considered the statutory factors if the sentence is within the statutory range." Id., quoting State v. Boysel, 2d Dist. Clark No. 2013-CA-78, 2014-Ohio-1272, ¶ 13. We conclude that the same presumption should apply to the sentencing factors under Section 2921.331(C)(5)(b). State v. Yarbrough, 2d Dist. Clark No. 2014-CA-67, 2015-Ohio-1672, ¶ 17.
{¶22} The record does not contain any indication that the trial court failed to consider the factors under Section 29291.331(C)(5)(b) and the trial court imposed a sentence that was a year less than the State requested. Mr. Webster's fifth assignment of error is overruled.
ASSIGNMENT OF ERROR VI
THE TRIAL COURT ERRED IN NOT GRANTING APPELLANT MORE JAIL-TIME CREDIT FOR TIME HE SAT IN PENNSYLVANIA ON THE OHIO FELONY WARRANT. TRIAL COUNSEL WAS INEFFECTIVE FOR NOT PRESENTING MORE EVIDENCE OF APPELLANT'S JAIL TIME AT SENTENCING.
{¶23} In his sixth assignment of error, Mr. Webster argues that he should have received jail time credit for the time he spent in jail in Pennsylvania on an Ohio warrant. Although Mr. Webster acknowledges that he was serving a sentence in Pennsylvania, he argues that he spent at least one day in jail there on the Ohio warrant alone. According to Mr. Webster, his trial counsel should have provided the court with documentation that would have allowed it to make an informed decision instead of denying him any credit for the Pennsylvania time.
{¶24} On direct appeal, this Court's review is limited to the record on appeal. State v. Hendon, 9th Dist. Summit No. 28284, 2018-Ohio-1284, ¶ 13. The trial court gave Mr. Webster jail-time credit from the day he arrived in Ohio. There is nothing in the record that indicates how much time may have passed between when Mr. Webster completed his sentence in Pennsylvania and when he was extradited to Ohio. We, therefore, conclude that Mr. Webster has not established that the trial court did not award him sufficient jail-time credit.
{¶25} Regarding Mr. Webster's allegation of ineffective assistance of counsel, "a defendant who claims ineffective assistance of trial counsel * * * must show from the record that the elements of the claim exist." State v. Lawson, 165 Ohio St.3d 445, 2021-Ohio-3566, ¶ 101. In a direct appeal, it is "impossible to determine whether [an] attorney was ineffective in his representation * * * where the allegations of ineffectiveness are based on facts not appearing in the record." State v. Cooperrider, 4 Ohio St.3d 226, 228 (1983). Consequently, a claim of ineffective assistance that necessarily relies on proof outside the record is not appropriately raised in a direct appeal. State v. Madrigal, 87 Ohio St.3d 378, 390-391 (2000).
{¶26} Mr. Webster's argument requires evidence detailing his jail-time in Pennsylvania, which is not in the record. Because we cannot presume such evidence exists, we cannot say that Mr. Webster's counsel's performance was deficient. Mr. Webster's sixth assignment of error is overruled.
III.
{¶27} Mr. Webster's assignments of error are overruled. The judgment of the Medina County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
SUTTON, P. J. CARR, J. CONCUR.