State v. Wilson

2020 Ohio 1217

STATE OF OHIO Plaintiff-Appellee v. WILLIAM R. WILSON Defendant-Appellant

Case No. CT 2019-0039

Case No. CT 2019-0040

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

March 25, 2020

JUDGES: Hon. W. Scott Gwin, P.J. Hon. John W. Wise, J. Hon. Craig R. Baldwin, J.

OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Muskingum Court of Common Pleas, Case No. CR2019-0739 and CR2019-0044

JUDGMENT: Affirmed

APPEARANCES:

For Plaintiff-Appellee

D. MICHAEL HADDOX

Prosecuting Attorney

BY: TAYLOR BENNINGTON

27 North Fifth Street

2^nd Floor

Zanesville, OH 43701

For Defendant-Appellant

JAMES ANZELMO

446 Howland Drive

Gahanna, OH 43230

Gwin, P.J.

{¶1} Defendant-appellant William R. Wilson ["Wilson"] appeals his conviction and sentence after a jury trial in the Muskingum County Court of Common Pleas.

Facts and Procedural History

{¶2} In the early morning hours of December 8, 2018, Deputy Wade Kanavel was on patrol in Zanesville, Ohio, when he observed a vehicle ahead of him pull into a driveway. The vehicle stopped halfway down the driveway. No one exited the vehicle. After passing this location, Kanavel turned his cruiser around and drove by the driveway a second time. He observed the vehicle still running in the drive, no one was leaving the vehicle, and the lights were off in the house. Kanavel then noticed the vehicle backing out of the driveway. Deputy Kanavel ran the vehicle information and was advised that the Frazeyburg Police Department had been notified that the vehicle owner reported that the individual whom he let use the vehicle refused to return the vehicle to the owner. T., Feb 26, 2019 at 165.Therefore, the Frazeyburg Police were requested to stop the vehicle.

{¶3} Deputy Kanaval followed the car. When he observed the vehicle make a right turn without using a turn signal, Deputy Kanaval attempt to make a traffic stop. After activating his cruiser's overhead lights, Deputy Kanaval notice the vehicle accelerate. A chase ensued. The vehicle was traveling up to 70 miles per hour, was driving in the middle of the road, and running through stop signs. The car passed through a residential area, eventually stopping in the yard in front of a house. Three male occupants exited the car and began to run. A fourth person, a female, remained in the vehicle. The driver was fleeing into the woods with another occupant of the vehicle.

{¶4} Deputy Kanavel was able to catch up with the driver and place him under arrest. Deputy Kanavel identified the driver of the car as Wilson. Upon a search of Wilson's person, a baggie with a white crystal-like substance was located. This substance was sent for testing and found to be 1.38 grams of methamphetamine.

{¶5} Stacy Nutter is the mother of Wilson's girlfriend, and she testified for the defense. Nutter was out with her dog during the early morning hours of December 8, 2018. Ms. Nutter testified she saw a vehicle stop nearby, and she saw the driver exit the vehicle. Ms. Nutter did not recognize the driver. Ms. Nutter further testified she saw Wilson in the backseat of the vehicle, and she saw Wilson climb into the front driver's seat and exit the vehicle.

{¶6} On December 13, 2018, Wilson was indicted on one count of Failure to Comply (risk of harm), a felony of the third degree, in violation of R.C. 2921.331(B) and one count of Obstructing Official Business, a misdemeanor of the second degree, in violation of R.C. 2921.31(A). (Case No. CR2018-0739).

{¶7} On January 23, 2019, after lab results confirmed the substance removed from Wilson's pocket to be methamphetamine, Wilson was indicted on one count of Possession of Drugs (Methamphetamine), a felony of the fifth degree, in violation of R.C. 2925.11(A). (Case No. CR2019-0044).

{¶8} On February 1, 2019, the state filed a motion to consolidate the two cases for purposes of trial, noting that Wilson was in agreement with the motion. On February 5, 2019, the trial court granted the motion.

{¶9} On February 26, 2019, a jury trial began on the two felony counts. Wilson was found guilty by the jury of Failure to Comply (risk of harm) and Possession of Drugs (methamphetamine)¹.

{¶10} On April 15, 2019, the trial court sentenced Wilson to 36 months in prison on the Failure to Comply charge and 12 months on the Possession of Drugs charge, to be served consecutively for an aggregate prison sentence of 48 months.

Assignments of Error

{¶11} Wilson raises six Assignments of Error,

{¶12} "I. THE TRIAL COURT ERRED BY NOT HOLDING SEPARATE TRIALS ON WILSON'S CHARGES OF POSSESSION OF DRUGS AND FAILURE TO COMPLY, IN VIOLATION OF HIS RIGHT TO A FAIR TRIAL AS GUARANTEED BY THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION."

{¶13} "II. WILSON'S CONVICTIONS ARE BASED ON INSUFFICIENT EVIDENCE, IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 10 & 16, ARTICLE I OF THE OHIO CONSTITUTION.

{¶14} "III. WILSON'S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS IO & 16, ARTICLE I OF THE OHIO CONSTITUTION.

{¶15} "IV. THE TRIAL COURT UNLAWFULLY ORDERED WILSON TO SERVE CONSECUTIVE SENTENCES, IN VIOLATION OF HIS RIGHTS TO DUE PROCESS, GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

{¶16} "V. THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING WILSON'S MOTION TO WAIVE COURT COSTS, IN VIOLATION OF HIS RIGHTS UNDER THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION."

{¶17} "VI. WILSON RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION."

I.

{¶18} In his First Assignment of Error, Wilson argues it was error for the trial court to grant the state's motion to consolidate his cases for trial.

{¶19} In the motion to consolidate filed by the state on February 1, 2019, the state represented to the trial court that, "The State and defense have discussed these issues and are in agreement that the cases should be consolidated under the original case number." Nothing in the record before this Court suggests that Wilson's trial counsel did not join in the motion to consolidate the case.

{¶20} In State v. Ford, the appellant argued on appeal that the trial judge erred by excusing a certain juror from his trial. 158 Ohio St.3d 139, 2019-Ohio-4539, ¶ 269. In rejecting the appellant's arguments, the Ohio State Supreme Court held,

Furthermore, Ford requested that juror No. 19 be removed from the panel. The doctrine of invited error specifies that a litigant may not "take advantage of an error which he himself invited or induced." Hal Artz Lincoln-Mercury, Inc. v. Ford Motor Co., Lincoln-Mercury Div., 28 Ohio St.3d 20, 502 N.E.2d 590 (1986), paragraph one of the syllabus. "This court has found invited error when a party has asked the court to take some action later claimed to be erroneous, or affirmatively consented to a procedure the trial judge proposed." State v. Campbell, 90 Ohio St.3d 320, 324, 738 N.E.2d 1178 (2000). Here, defense counsel requested that juror No. 19 be removed from the panel, and Ford is not entitled to complain of an error that counsel requested. Accordingly, we reject this claim.

158 Ohio St.3d 139, 2019-Ohio-4539, ¶ 270. Accord, State v. Rohrbaugh, 126 Ohio St.3d 421, 2010-Ohio-3286, 934 N.E.2d 920, ¶10. "The doctrine of invited error precludes a defendant from making an affirmative and apparent strategic decision at trial and then complaining on appeal that the result of that decision constitutes reversible error. State v. Doss, 8th Dist. Cuyahoga No. 84433, 2005-Ohio-775, ¶7, quoting United States v. Jernigan, 341 F.3d 1273, 1290 (11th Cir.2003). Judicial scrutiny of counsel's performance is to be highly deferential, and reviewing courts must refrain from second-guessing the strategic decisions of trial counsel. State v. Carter, 72 Ohio St.3d 545, 558 (1995)." State v. Thompson, 11th Dist. Portage No. 2018-P-0099, 2020-Ohio-67, ¶39.

{¶21} Wilson's trial counsel made a tactical decision to join in the motion to consolidate the cases for trial.

{¶22} Therefore, he is not entitled to complain of error that he requested.

II. & III.

{¶23} In his Second Assignment of Error, Wilson argues that there was insufficient evidence to prove beyond a reasonable doubt that 1). He was the driver of the car that Deputy Kanaval stopped and /or to prove that he caused a risk of harm to person or property if he had driven the car, and 2). To prove that he possessed the drugs. In his Third Assignment of Error, Wilson contends that the jury's findings are against the manifest weight of the evidence.

STANDARD OF APPELLATE REVIEW.

Sufficiency of the Evidence.

{¶24} The Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury...." This right, in conjunction with the Due Process Clause, requires that each of the material elements of a crime be proved to a jury beyond a reasonable doubt. Alleyne v. United States, 570 U.S. ___, 133 S.Ct. 2151, 2156, 186 L.Ed.2d 314 (2013); Hurst v. Florida, 136 S.Ct. 616, 621, 193 L.Ed.2d 504 (2016). The test for the sufficiency of the evidence involves a question of law for resolution by the appellate court. State v. Walker, 150 Ohio St.3d 409, 2016-Ohio-8295, 82 N.E.3d 1124, ¶30. "This naturally entails a review of the elements of the charged offense and a review of the state's evidence." State v. Richardson, 150 Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶13.

{¶25} When reviewing the sufficiency of the evidence, an appellate court does not ask whether the evidence should be believed. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the...