[Cite as State v. Moore,
2019-Ohio-1804.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28094
:
v. : Trial Court Case No. 2018-CR-1524
:
TYRONE MOORE : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 10th day of May, 2019.
...........
MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee
ANDREW C. SCHLUETER, Atty. Reg. No. 0086701, P.O. Box 96, Xenia, Ohio 45385
Attorney for Defendant-Appellant
.............
DONOVAN, J.
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{¶ 1} Defendant-appellant Tyrone Moore appeals his conviction for one count of
failure to comply with the order or signal of a police officer (serious physical
harm/substantial risk), in violation of R.C. 2921.331(B) and (C)(5), a felony of the third
degree; and one count of obstructing official business, in violation of R.C. 2921.31(A), a
misdemeanor of the second degree. Moore filed a timely notice of appeal with this Court
on August 19, 2018.
{¶ 2} The incident which forms the basis for the Moore’s conviction occurred on
April 17, 2018, at approximately 5:45 p.m. when Dayton Police Department Detectives
Melissa Boyes and Elizabeth Whitney observed a tall heavyset black male with
dreadlocks exit a residence located near North Cherrywood and Radio Roads in Dayton,
Ohio. After leaving the residence, the unidentified male got into a black Chevy Tahoe
that was parked nearby and drove away. Detective Whitney testified that as the Tahoe
passed her vehicle, she was able to observe that the driver was the same tall heavyset
black male that she had just observed leave the residence and enter the Tahoe.
{¶ 3} Detective Boyes and Whitney were acting in an undercover capacity on the
day in question. Therefore, the detectives were driving an unmarked police vehicle and
wearing civilian dress. Detective Boyes observed that the Tahoe’s windows were tinted
very dark so as to constitute a traffic violation. In order to maintain her and Detective
Whitney’s undercover status, Detective Boyes contacted Dayton Police Officers Eric
Miller and Kevin Johnson who were patrolling nearby in a marked police cruiser, informed
them of the Tahoe’s probable window tint violation, and advised the officers to initiate a
traffic stop of the vehicle.
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{¶ 4} Officers Miller and Johnson observed the Tahoe being driven near 261 North
Garland Street. Officer Miller pulled his cruiser behind the Tahoe and activated his
overhead lights. Officer Johnson exited the cruiser and approached the Tahoe on the
passenger side. Before Officer Johnson could reach the vehicle and speak with its
occupants, the driver fled south on North Garland Street at a high rate of speed.
Pursuant to department policy regarding densely populated residential areas, Officers
Miller and Johnson did not pursue the fleeing vehicle. Neither Officer Miller nor Officer
Johnson were able to identify the driver of the vehicle.
{¶ 5} Thereafter, at the intersection of North Garland Street and East Third Street,
the Tahoe collided with a truck driven by Michael Newbauer. Detective Boyes witnessed
the accident from her unmarked police vehicle. As a result of the collision, Newbauer
sustained facial injuries, a fractured sternum, spinal injuries, and a broken rib. Newbauer
was unable to identify the driver of the vehicle.
{¶ 6} Detective Boyes testified that immediately after the accident, she observed
an individual exit the vehicle from the front passenger side and run away. Detective
Boyes testified that the individual was black, of medium build, had braided hair, wearing
dark clothing and a tan jacket with rhinestones on the back. Detective Boyes testified
that she quickly apprehended the individual, who was later identified as Ebony Owensby.
Detective Boyes testified that Owensby appeared dazed and confused and stated that
she “did not know what was going on and … that she was just riding in the car.”
{¶ 7} Detective Whitney testified that she observed a heavier-set black male with
dreadlocks exit from the driver’s door of the Tahoe and run away. Detective Whitney
further described the individual as tall, wearing dark clothes, a hat, and a tan jacket.
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Detective Whitney testified that individual was the same man she observed earlier who
walked out of the residence located near North Cherrywood and Radio Roads, entered
the Tahoe, and drove past her and Detective Boyes. Shortly thereafter, an individual,
later identified as Moore and matching this description, was apprehended nearby by
Detective Lucas Rose. Detective Rose testified that Moore was wearing dark clothing,
a hat, was approximately six feet tall, and had a heavy build. Owensby and Moore were
arrested and taken into custody.
{¶ 8} On May 15, 2018, Moore was indicted for one count of failure to comply with
the order or signal of a police officer and one count of obstructing official business. At
his arraignment on May 17, 2018, Moore stood mute, and the trial court entered a plea of
not guilty on his behalf.
{¶ 9} After a three-day jury trial that ended on July 19, 2018, Moore was found
guilty of both counts in the indictment. On August 7, 2018, Moore was sentenced to 30
months in prison for failure to comply with the order or signal of a police officer and to 90
days in jail for obstructing official business. The trial court ordered that the sentences be
served concurrently.
{¶ 10} It is from this judgment that Moore now appeals.
{¶ 11} Moore’s first assignment of error is as follows:
APPELLANT’S CONVICTION FOR FAILURE TO COMPLY WITH THE
ORDER OR SIGNAL OF A POLICE OFFICER WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 12} In his first assignment, Moore contends that his conviction for failure to
comply with the order or signal of a police officer was against the manifest weight of the
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evidence. Specifically, Moore argues that his conviction was not supported by the weight
of the evidence because Detective Whitney’s testimony identifying him as the driver of
the Tahoe was not credible.
{¶ 13} “The manifest-weight-of-the-evidence standard of appellate review set forth
in State v. Thompkins, 78 Ohio St.3d 380,
678 N.E.2d 541 (1997), applies in both criminal
and civil cases. Eastley v. Volkman,
132 Ohio St.3d 328,
2012-Ohio-2179,
972 N.E.2d
517, ¶ 17-23.” Mathews v. Mathews, 2d Dist. Clark No. 2012-CA-79,
2013-Ohio-2471,
¶ 9.
{¶ 14} This court has stated that “a weight of the evidence argument challenges
the believability of the evidence and asks which of the competing inferences suggested
by the evidence is more believable or persuasive.” (Citations omitted). State v. Jones, 2d
Dist. Montgomery No. 25724, 2014-Ohio-2309, ¶ 8. “When evaluating whether a
[judgment] is against the manifest weight of the evidence, the appellate court must review
the entire record, weigh the evidence and all reasonable inferences, consider witness
credibility, 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.’ ”
Id., quoting
Thompkins at 387.
{¶ 15} Because the trier of fact sees and hears the witnesses at trial, we must
extend deference to the factfinder's decisions whether, and to what extent, to credit the
testimony of particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997
WL 476684 (Aug. 22, 1997). However, we extend less deference in weighing competing
inferences suggested by the evidence.
Id. The fact that the evidence is subject to
differing interpretations does not render the judgment against the manifest weight of the
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evidence. State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 14. A
judgment should be reversed as being against the manifest weight of the evidence only
in exceptional circumstances. State v. Martin,
20 Ohio App.3d 172, 175,
485 N.E.2d 717
(1st Dist.1983).
{¶ 16} As previously stated, Detective Whitney testified that, as the Tahoe passed
her unmarked vehicle, she was able to observe that the driver was the same tall heavyset
black male that she had just observed leave the residence and enter the Tahoe. After
the car accident with the Tahoe and Newbauer’s truck, she observed the same individual,
later identified as Moore, exit from the driver’s door of the Tahoe and run away.
Detective Whitney further described Moore as being tall, wearing dark clothes, a hat, and
a tan jacket. Shortly thereafter, an individual matching this description was apprehended
nearby by Detective Lucas Rose. Corroborating Detective’s Whitney’s testimony,
Detective Rose testified that Moore was wearing dark clothing, a hat, was approximately
six feet tall, and had a heavy build.
{¶ 17} Thus, having reviewed the record, we find no merit in Moore's manifest
weight challenge. It is well settled that evaluating witness credibility is primarily for the
trier of fact. State v. Brown, 2d Dist. Montgomery No. 27571, 2018-Ohio-3294; see also
State v. Benton, 2d Dist. Miami No. 2010-CA-27,
2012-Ohio-4080, ¶ 7. A trier of fact
does not lose its way and create a manifest miscarriage of justice if its resolution of
conflicting testimony is reasonable.
Id. Here, the jury quite reasonably could have
credited the State's evidence, which established that Moore was guilty of the offenses for
which he was convicted. Accordingly, the jury did not lose its way and create a manifest
miscarriage of justice in reaching a guilty verdict for failure to comply with the order or
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signal of a police officer.
{¶ 18} Moore’s first assignment of error is overruled.
{¶ 19} Moore’s second and final assignment of error is as follows:
THE TRIAL COURT DENIED APPELLANT DUE PROCESS OF LAW
WHEN IT INTERFERED WITH HIS FUNDAMENTAL AND PERSONAL
RIGHT TO TESTIFY IN HIS OWN DEFENSE.
{¶ 20} In his second assignment, Moore argues that the trial court violated his due
process rights by interfering with his right to testify in his own defense when it conducted
an inquiry regarding whether he intended to testify at trial.
{¶ 21} After the State rested its case, defense counsel stated that he had spoken
to Moore regarding whether he wanted to testify on his own behalf. Defense counsel
indicated that Moore had decided not to testify. Thereafter, the following exchange
occurred:
Defense Counsel: For the record – … For the record, I would note
that I conversed with my client about him testifying and he’s made the
decision not to offer testimony in this case.
…
Trial Court: One thing I do with every person in front of me for a trial
is I directly inquire upon him or her whether or not it is your wish to testify or
not testify, as that right is yours and yours alone. And so, with that, you’ve
heard the statements of your attorney. You have heard my statements
throughout the course of the trial and throughout different dockets in which
I delineated your right to testify, to take the stand or not take the stand, as
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our choice is. Either way, no matter what that choice is, that choice can
never be used against you. Do you understand that?
Moore: Yes, sir.
Q: Is it your wish to take the stand or not to take the stand today?
A: I mean, well – yeah, I’ll testify.
Q: Mr. Moore, what I’m asking is not – I’m not trying to convince you
to testify in any way.
A: No, I want to prove my innocence. I want to prove that I’m
innocent. That’s why I want to testify.
Q: Mr. Moore, when I make these comments, it’s to determine that
it’s your free will and voluntary choice not to testify. You may wish to take
advice or counsel from [defense counsel] and I will note for the record that
that if you elect to testify, then your testimony will not only be subject to the
direct examination by your attorney, but also to any cross-examination by
the State’s attorneys. Do you understand?
A: Yes.
Q: All right. Why don’t you take a moment to discuss with your
counsel and we’ll return to the matter.
A: Yes, sir.
…
Q: All right. Mr. Moore, you’ve had an opportunity to converse with
your counsel?
A: Yes, sir.
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Q: At this time, I’ll ask you again. Is it your wish to testify or not to
testify?
A: No, I do not want to testify.
Q: I’m sorry.
A: I do not want to testify.
Q: All right, sir. Has anyone forced or threatened you to get you to
make that opinion?
A: No, sir.
Q: Is that your free and voluntary choice?
A: Yes, sir.
Tr. pp. 418-419, 425.
{¶ 22} Moore argues that when he informed the trial court that he wanted to testify
in order to prove his innocence, the trial court should have immediately ceased any further
inquiries and allowed him to testify. By directing Moore to confer with his counsel about
whether to testify, Moore argues that the trial court unconstitutionally “hinder[ed] [his]
ability to present an affirmative case of innocence,” thereby denying him due process of
law.
{¶ 23} In support of his argument that the trial court should not have conducted an
inquiry, Moore cites to State v. Bey, 85 Ohio St.3d 487,
709 N.E.2d 484 (1999). In Bey,
the Ohio Supreme Court rejected the claim that a trial court must inform a defendant of
his right to testify at trial.
Id. at 499. Bey further held that a trial court is not required to
inquire whether the defendant's waiver of that right was done knowingly and intelligently.
Id. Bey added that such an inquiry might be harmful because it “ ‘places the judge
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between the lawyer and his client and can produce confusion as well as delay.’ ” Id.,
quoting People v. Curtis,
681 P.2d 504, 519 (Colo.1984) (Erickson, C.J., concurring).
Bey also stated that such “questioning can lead into the judge's evaluation of the wisdom
of the defendant's decision, the substance of the testimony, or simply evoke a dramatic
change in a previously carefully considered trial strategy.”
Id. However, “Bey does not
prohibit the court's questioning of a defendant.” State v. Powell,
132 Ohio St.3d 233,
971
N.E.2d 865,
2012-Ohio-2577, ¶ 100. Accordingly, Moore’s reliance on Bey is misplaced.
{¶ 24} In the instant case, defense counsel had just informed the trial court that
Moore was not going to testify. Thereafter, when Moore indicated that he had changed
his mind and wanted to testify, it was not unreasonable for the trial court to ascertain
whether Moore was waiving his right not to testify in a knowing, voluntary, and intelligent
fashion. Furthermore, given Moore’s apparent last-minute change of heart regarding his
decision to testify on his own behalf, the trial court reasonably provided Moore with
additional time to confer with his counsel before proceeding. Other than informing Moore
that he would be subject to direct and cross-examination if he chose to testify, the trial
court avoided any attempt to counsel Moore or his attorney on how he should proceed.
Upon review, we conclude that the trial court did not violate Moore’s due process rights
when it conducted an inquiry regarding whether he intended to testify at trial.
{¶ 25} Moore’s second assignment of error is overruled.
{¶ 26} Both of Moore’s assignments of error having been overruled, the judgment
of the trial court is affirmed.
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WELBAUM, P.J. and HALL, J., concur.
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Copies sent to:
Mathias H. Heck, Jr.
Sarah E. Hutnik
Andrew C. Schlueter
Hon. Gerald Parker
