[Cite as State v. Baker,
2023-Ohio-2061.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
COLUMBIANA COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
DEVIN E. BAKER,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 22 CO 0023
Criminal Appeal from the
Court of Common Pleas of Columbiana County, Ohio
Case No. 2019 CR 435
BEFORE:
Carol Ann Robb, Cheryl L. Waite, Mark A. Hanni, Judges.
JUDGMENT:
Affirmed.
Atty. Vito J. Abruzzino, Prosecuting Attorney, Atty. Shelley M. Pratt, Assistant Prosecuting
Attorney, Columbiana County Prosecutor’s Office, 135 South Market Street, Lisbon, Ohio
44432 for Plaintiff-Appellee. and
Atty. Charles C. Amato, Atty. Wyatt S. Nolker, Amato Law Office, 420 Broadway Avenue,
Wellsville, Ohio 43968 for Defendant-Appellant.
Dated: June 21, 2023
–2–
Robb, J.
{¶1} Defendant-Appellant Devin E. Baker appeals his conviction after a jury trial
in the Columbiana County Common Pleas Court. He contends the verdict was against
the manifest weight of the evidence and counsel rendered ineffective assistance through
untimely witness interviewing. For the following reasons, Appellant’s conviction is
affirmed.
STATEMENT OF THE CASE
{¶2} On October 18, 2019, Appellant was indicted for various offenses. The
court appointed counsel to represent him, but he retained a different attorney nearly a
year later. On May 31, 2022, a jury trial commenced on the charge of failure to comply
with an order or signal of a police officer, a third-degree felony due to the allegation the
operation of the vehicle caused a substantial risk of serious physical harm to persons or
property. R.C. 2921.331(B)(C)(5)(a)(ii). The other charges were dismissed by the state
before trial.
{¶3} The trial testimony established troopers from the Ohio State Highway Patrol
were investigating a man in a car they stopped in Rogers, Ohio on September 11, 2019
at approximately 10:30 p.m. (Tr. 248, 372, 388). A female approached the scene and
named her former boyfriend (Appellant Devin E. Baker) and her uncle (Thomas Hughes)
as participants in an altercation with the man in the stopped car. She pointed out a gray
Ford pickup truck as it approached the intersection of State Routes 7 and 154. (Tr. 249-
250, 374).
{¶4} As Trooper 1 entered his cruiser to detain the truck, the truck sped north on
Route 7 reaching speeds in excess of 100 miles per hour before the trooper even
activated his lights and sirens. (Tr. 375). In addition to severely speeding during the
lengthy chase, the truck drove left of center multiple times, failed to use turn signals, and
ran four stop signs. The truck passed six vehicles after the trooper activated his lights.
(Tr. 390).
{¶5} Trooper 2 traveled a different path to Route 170 to intercept the truck before
it reached the state line. (Tr. 251). He deployed stop sticks in the road near a curve and
railroad tracks, taking cover by a concrete barrier as he watched the vehicle approach his
Case No. 22 CO 0023
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position. (Tr. 252). The headlights of his cruiser were facing the truck, the overhead
lights were activated, a porch light was on at a nearby house, and there was a streetlight
near the railroad tracks. (Tr. 311); (St.Ex. 1). The truck slowed (as evidenced by brake
lights seen by Trooper 1); the driver’s side tires of the truck then made contact with the
stop sticks. (Tr. 257, 260, 398).
{¶6} Trooper 2 said he could “clearly” see the driver as the truck passed his
position near the stop sticks. (Tr. 257-258, 274, 329). He also noticed the passenger
was wearing a black baseball cap. (Tr. 258). Trooper 2 got back in his cruiser and caught
up to the chase. Tire pieces, a hubcap, and parts of the road were flying through the air
as the truck drove on the rims and swerved “all over the roadway” while trying to maintain
control. (Tr. 260, 379, 399).
{¶7} Trooper 1 passed the truck to assume the lead, performing a “boxing in”
maneuver and hoping to force the truck to stop. He passed the truck with his “alley lights”
activated, which illuminated the passenger compartment of the truck. He testified this
allowed him to view the driver as he passed; he also noticed the passenger was still
wearing a hat, which he noticed earlier as well. (Tr. 382-382, 403-405).
{¶8} As Trooper 1 started braking, the truck made a hard right onto a dirt drive
leading to a rock quarry. The troopers waited for the dust in the air to clear before driving
further down the drive; they found an empty truck, which had crashed into a gate in the
middle of the road. (Tr. 261-262). Trooper 2 saw a person in a baseball hat running
toward a business on the property. (Tr. 263-264). This person was apprehended and
identified as Thomas Hughes; he had a visible injury on his nose from hitting his head on
the dashboard during the crash into the gate. (Tr. 264-265); (St.Ex. 4, Def.Ex. F, H).
{¶9} Both troopers testified they identified Appellant as the driver after seeing his
official photograph they obtained by running the name Devin E. Baker through the law
enforcement database. (Tr. 267-268, 322, 386). They believed Appellant fled into the
woods. Aviation support was unavailable, and the K-9 units could not proceed through
briar bushes that were thick with thorns. (Tr. 265-266, 389). When Appellant was
arrested two days later, Trooper 2 was not surprised to see scratches and cuts on
Appellant’s arms, hands, and neck. (Tr. 268-270); (St.Ex. 6-9, Def.Ex. I). Appellant also
had a gunshot wound to the leg. (Tr. 268).
Case No. 22 CO 0023
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{¶10} The defense presented the testimony of a woman who lived with Hughes at
the time of the police chase. She said Appellant was at their house but did not drive a
vehicle to get there. When Appellant’s former girlfriend was dropped off in the
neighborhood by a man, an argument in the driveway ensued. When this man drove
away in his car, Appellant and Hughes quickly left in the Ford truck with Hughes driving
his father’s truck. (Tr. 465-468).
{¶11} The jury found Appellant guilty as charged. The court sentenced Appellant
to 30 months in prison and suspended his license for 10 years. (6/14/22 J.E.). A timely
appeal followed.
ASSIGNMENT OF ERROR ONE: WEIGHT
{¶12} Appellant sets forth two assignments of error, the first of which alleges:
“THE CONVICTION OF THE APPELLANT FOR THE CHARGE OF FAILURE TO
COMPLY WITH SIGNAL OR ORDER OF POLICE OFFICER IN THIS CASE IS AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE AND SHOULD BE REVERSED
BECAUSE THERE IS REASONABLE DOUBT CREATED BY WITNESS TESTIMONY.”
{¶13} Weight of the evidence concerns the effect of the evidence in inducing
belief, and this review evaluates “the inclination of the greater amount of credible
evidence, offered in a trial, to support one side of the issue rather than the other.” State
v. Thompkins, 78 Ohio St.3d 380, 387,
678 N.E.2d 541 (1997). The appellate court
considers whether the state met its burden of persuasion (as opposed to the state’s
burden of production involved in a sufficiency review).
Id. at 390 (Cook, J., concurring).
When a defendant claims the conviction is contrary to the manifest weight of the evidence,
the appellate court reviews the entire record, weighs the evidence and all reasonable
inferences, considers the credibility of witnesses, and determines 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. Lang,
129 Ohio St.3d 512,
2011-Ohio-4215,
954 N.E.2d 596, ¶ 220, citing Thompkins,
78 Ohio St.3d at 387.
{¶14} Nevertheless, “the weight to be given the evidence and the credibility of the
witnesses are primarily for the trier of the facts.” State v. Hunter, 131 Ohio St.3d 67,
2011-Ohio-6524,
960 N.E.2d 955, ¶ 118, quoting State v. DeHass,
10 Ohio St.2d 230,
Case No.
22 CO 0023
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227 N.E.2d 212 (1967), paragraph one of the syllabus. The trier of fact occupies the best
position from which to weigh the evidence and judge the witnesses’ credibility by
observing their gestures, voice inflections, and demeanor for signs of sincerity. Seasons
Coal Co. v. Cleveland,
10 Ohio St.3d 77, 80,
461 N.E.2d 1273 (1984).
{¶15} Where a case was tried by a jury, only a unanimous appellate court can
reverse on manifest weight of the evidence grounds. Ohio Constitution, Article IV, Section
3(B)(3). The power of the court of appeals to sit as the “thirteenth juror” is limited in order
to preserve the jury's primary function of weighing the evidence. Thompkins, 78 Ohio
St.3d at 389.
{¶16} Trooper 1 acknowledged he received conflicting information during the
chase as to who was driving the truck and therefore used both the names Devin Baker
and Thomas Hughes when ordering the driver to stop over his bullhorn. (Tr. 413).
Trooper 2 acknowledged he told Trooper 1 over the radio that Devin Baker was driving,
noting this was the information he received. (Tr. 291, 306-208). Appellant suggests this
information influenced the troopers’ later identification of Appellant as the driver.
Appellant notes it was dark outside and claims the lighting was poor. He contends the
troopers could not have viewed the driver long enough during the chase to identify him
from his official photograph on file. He concludes the troopers’ identification of him as the
driver was “overly assured” and unreliable. Appellant points out the truck belonged to the
father of Hughes and required physical keys (as opposed to the mere presence of a key
fob). He emphasizes his witness’s testimony stating Hughes was driving the truck when
it first left the house and concludes it was more likely Hughes was driving during the
chase.
{¶17} As the state points out, the testimony of the witness presented by the
defense did not preclude the situation where the occupants of the truck switched positions
after stopping and exiting the vehicle. There was no indication their leaving of the house
occurred immediately before their arrival at the intersection where the trooper had
detained a vehicle. Moreover, the determination of this witness’s credibility (as a person
who formerly lived with Hughes) was the province of the jury. The troopers both said they
viewed the driver clearly.
Case No. 22 CO 0023
–6–
{¶18} Trooper 2 saw him driving past his position where he was standing by the
side of the road as the truck slowed for the curve and hit the stop sticks. Trooper 2 pointed
out there was a streetlight at the nearby railroad tracks and his cruiser had the overhead
lights activated and the headlights pointed at the truck. He said he could “clearly” see the
driver. (Tr. 257-258, 274, 329). When he saw Appellant’s official photograph at the crash
site, he was able to positively identify Appellant “without a doubt” declaring he was
“[a]bsolutely” the driver. (Tr. 268, 332). He also saw the occupants of the truck when it
approached the lighted intersection just before fleeing. (Tr. 308).
{¶19} Trooper 1 said he saw the driver as his cruiser passed the truck, noting his
overhead lights were in the highest mode (“alley lights”), which illuminated the interior of
the truck from the side and allowed a clear view of the driver. (Tr. 382-383, 399). He
also said he had “no doubt at all” about his ability to identify Appellant as the driver upon
viewing his official photograph during the chase. (Tr. 386, 402, 418, 433-435). The jury
occupied the primary position for weighing evidence, and the troopers’ credibility is best
left to the jurors who observed their demeanor as they testified. See Hunter, 131 Ohio
St.3d 67 at ¶ 118.
{¶20} As the state additionally points out, both troopers noticed the passenger
was wearing a hat. Trooper 2 noticed this fact through the passenger window at some
point before his act of passing the truck and viewing the driver. (Tr. 403-405). The person
the police apprehended running from the scene was wearing a hat and had an injury to
his nose consistent with his utterance that he hit his head on the dashboard during the
crash. The other occupant of the truck was believed to have entered the wooded area,
which was filled with so many briar bushes that the dogs could not proceed. When
Appellant was arrested two days later, he predictably had scratches and cuts on his neck,
arms, and hands. (Tr. 268-269). Circumstantial evidence inherently possesses the same
probative value as direct evidence. State v. Treesh, 90 Ohio St.3d 460, 485,
739 N.E.2d
749 (2001).
{¶21} “When more than one competing interpretation of the evidence is available
and the one chosen by the jury is not unbelievable, we do not choose which theory we
believe is more credible and impose our view over that of the jury.” State v. Baker, 7th
Dist. Mahoning No. 19 MA 0080, 2020-Ohio-7023, ¶ 148, citing State v. Gore, 131 Ohio
Case No.
22 CO 0023
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App.3d 197, 201, 722 N.E.2d 125 (7th Dist.1999). A thorough review of the record does
not indicate this is the “exceptional” case in which the jury “clearly lost its way” and created
a manifest miscarriage of justice requiring a new trial; the evidence does not weigh
“heavily” against the conviction. See Lang,
129 Ohio St.3d 512 at ¶ 220. Accordingly,
the jury verdict was not contrary to the manifest weight of the evidence. This assignment
of error is overruled.
ASSIGNMENT OF ERROR TWO: COUNSEL
{¶22} Appellant’s second assignment of error contends:
“APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL UNDER
THE SIXTH AMENDMENT OF THE UNITED STATES CONSITUTION AND ARTICLE I,
§ 10 OF THE OHIO CONSTITUTION WHEN COUNSEL FAILED TO COMPLY WITH
COURT ORDERS AND TIMELY PREPARE FOR TRIAL.”
{¶23} Ineffective assistance of counsel arguments require the defendant to meet
his burden of showing both deficient performance and resulting prejudice. State v. Carter,
72 Ohio St.3d 545, 557,
651 N.E.2d 965 (1995), citing Strickland v. Washington,
466 U.S.
668, 687,
104 S.Ct. 2052,
80 L.Ed.2d 674 (1984). In evaluating the deficiency prong of
the test, the defendant must show “a substantial violation” of defense counsel's “essential
duties” to the client under an objective standard of reasonableness. State v. Bradley,
42
Ohio St.3d 136, 142,
538 N.E.2d 373 (1989). To find ineffective assistance of counsel,
the appellate court must first conclude the defendant’s trial attorney “made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by
the [constitution] without second-guessing tactical decisions or being influenced by the
‘distorting effects of hindsight.’” Strickland,
466 U.S. at 687, 689. Our review is highly
deferential to counsel's performance as there is a strong presumption counsel's conduct
falls within the wide range of reasonable professional representation. Bradley,
42 Ohio
St.3d at 142.
{¶24} On the prejudice prong, the defendant must show there is a reasonable
probability the result of the proceedings would have been different but for the deficient
performance; a reasonable probability is one “sufficient to undermine confidence in the
outcome.” Id. Lesser tests of prejudice have been rejected: “It is not enough for the
defendant to show that the errors had some conceivable effect on the outcome of the
Case No.
22 CO 0023
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proceeding.” Id. at 142, fn. 1, quoting Strickland, 466 U.S. at 693. Prejudice from
defective representation justifies reversal only where the results were unreliable or the
proceeding was fundamentally unfair due to the performance of trial counsel. Carter,
72
Ohio St.3d at 558, citing Lockhart v. Fretwell,
506 U.S. 364, 369,
113 S.Ct. 838,
122
L.Ed.2d 180 (1993).
{¶25} If there was no prejudice, then there is no need to review whether the
performance was deficient and vice versa. State v. Madrigal, 87 Ohio St.3d 378, 389,
721 N.E.2d 52 (2000). “There is no reason for a court deciding an ineffective assistance
claim … to address both components of the inquiry if the defendant makes an insufficient
showing on one.” Bradley,
42 Ohio St.3d at 143, quoting Strickland,
466 U.S. at 697.
“The object of an ineffectiveness claim is not to grade counsel's performance. If it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,
which we expect will often be so, that course should be followed.”
Id.
{¶26} Appellant argues trial counsel was prejudicially deficient by failing to
interview a witness (KP) until four days before trial. KP was Appellant’s former girlfriend
and the niece of Hughes. The testimony indicated she appeared at the scene of the initial
detention of a car, which was before the truck appeared and fled. She told Trooper 2 the
names of the two people who got in the truck when it left the residence (which is how the
troopers knew what names to run when viewing photographs). (Tr. 217-218).
{¶27} For purposes of this ineffective assistance of counsel argument, which
relates to information on a dash cam video cited by the defense below (but not introduced
at trial), we review some background facts from the video. KP’s male friend was stopped
for driving a severely damaged car; he reported he was chased and run off the road by a
Ford truck, after which the truck occupants punched him in the face. KP arrived to speak
to troopers nearly 20 minutes after they initiated the stop of her friend’s car. When a
trooper asked KP about Appellant chasing her friend, KP replied, “We all seen it.” Her
comment led Trooper 2 to name Devin Baker as the driver when asked over the radio;
this was followed by a dispatch about a female on the scene naming the driver as Thomas
Hughes (which was consistent with the defense witness’s testimony about Hughes driving
when the vehicle first left the house). We note KP also noted her parents called to tell
her Appellant and Hughes followed her when she left to meet the troopers (which
Case No. 22 CO 0023
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indicated they returned to the house after the crash and which suggested KP did not see
who was driving when they last left the neighborhood).
{¶28} The defense planned to call KP to testify to her belief on who was driving
the truck. In an interview four days before trial, the defense learned KP suffered amnesia
from an injury. Appellant complains this late discovery prompted the defense to attempt
to present substitute testimony from individuals who were not named on a witness list,
such as Trooper 3.
{¶29} On the first day of trial (Tuesday, May 31, 2022), defense counsel informed
the court he found out on Friday that KP suffered memory loss after an unrelated
motorcycle accident. (Tr. 5). Defense counsel texted the prosecutor the day before trial
about amending the witness list, but the state objected to the late notice. Due to KP’s
medical condition, defense counsel wished to call Trooper 3 to testify about whom KP
believed was driving; counsel noted after the other two troopers left the scene, radio traffic
reported Hughes was driving. (Tr. 5-7, 213, 335, 350). Defense counsel argued KP’s
statement could be admitted through the trooper as a present sense impression or an
excited utterance. (Tr. 209-211). In addition to the late notice, the state objected to the
hearsay nature of the testimony to be elicited. It was also pointed out there was no
indication KP observed who was driving after the occupants exited the truck at the site of
her male friend’s crash (or when the truck was reported to be following her later). (Tr.
335-338).
{¶30} Although the trial court criticized the late addition of Trooper 3 as a witness,
while discussing a motion in limine, the court advised the issue would be considered later
when it arose at trial. When the court thereafter considered the testimony the defense
wished to present from Trooper 3, who appeared pursuant to a subpoena, the court
opined KP’s statement to him would be inadmissible hearsay, finding it was not an excited
utterance or present sense impression. (Tr. 334-349). Contrary to Appellant’s contention,
there is no indication Trooper 3 was precluded from testifying for being untimely named
as a witness.
{¶31} Moreover, as the state points out, it appeared KP would have been called
by the defense to testify Hughes was driving when the truck left the Hughes’ residence
earlier in the night. Notably, the defense presented a witness who testified to this fact.
Case No. 22 CO 0023
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As reviewed supra, this witness previously lived with Hughes. She testified Appellant was
a passenger and Hughes was driving when the truck left their residence to chase a vehicle
containing KP’s male friend. (Tr. 466, 468). Therefore, the defense was able to present
a witness who testified Appellant was merely a passenger when the truck initially left to
follow KP’s male friend. She also disclosed the fleeing truck, owned by the father of
Hughes, required physical keys, and was previously driven by Hughes on various
occasions. We also note defense counsel suggested Trooper 3 was “not really that
consequential.” (Tr. 5).
{¶32} Furthermore, the defense ensured the jury was informed about the
conflicting radio traffic reporting the potential name of the driver. Trooper 2 testified KP
arrived at the scene and said her parents informed her Appellant and Hughes followed
her when she left the house (to meet the troopers at the car). (Tr. 250). On crossexamination, he listened to an audio clip and acknowledged he told Trooper 1 over the
radio during the chase that “Devin Baker” was driving; he noted he was told Appellant
was driving. (Tr. 291, 306-308). Trooper 1 acknowledged he received conflicting
information during the chase as to who was driving the truck. (Tr. 413). The defense
elicited from two troopers that Trooper 1 announced over his loudspeaker both: “Devin
Baker, pull over the car” and “Thomas Hughes, pull over the car.” (Tr. 316, 413). As
reviewed in the prior assignment, the jury heard this testimony and weighed the evidence
as to whether the troopers saw the person driving during the police chase and whether
they correctly identified the person they saw driving as Appellant (after viewing his official
photograph and capturing Hughes at the final crash site).
{¶33} The totality of the evidence must be considered in gauging an ineffective
assistance of counsel claim. Bradley, 42 Ohio St.3d at 142, quoting Strickland,
466 U.S.
at 695. As to the alleged deficiency, there is no allegation defense counsel failed to
interview the witness when the case was originally being prepared for trial; this case was
continued multiple times, and amnesia of a defense witness due to an intervening trauma
is not an expected situation. In any case, deficiency need not be addressed where
prejudice is lacking. Considering the entirety of the evidence on the record and in the
proffers, there is not a reasonable probability the result would have been different if
counsel learned of KP’s amnesia earlier and added an additional alternative witness such
Case No.
22 CO 0023
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as Trooper 3 (whose testimony did not appear to be excluded on untimeliness grounds in
any event). Accordingly, prejudice is lacking from the alleged deficiency in performance.
This assignment of error is overruled.
{¶34} For the foregoing reasons, Appellant’s conviction is affirmed.
Waite, J., concurs.
Hanni, J., concurs.
Case No. 22 CO 0023
[Cite as State v. Baker,
2023-Ohio-2061.]
For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Columbiana County, Ohio, is affirmed. Costs to be taxed
against the Appellant.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
