State v. Meyer , 2023 Ohio 1254 ( 2023 )


Menu:
  • [Cite as State v. Meyer, 
    2023-Ohio-1254
    .]
    COURT OF APPEALS
    ASHLAND COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    STATE OF OHIO                                :       JUDGES:
    :       Hon. W. Scott Gwin, P.J.
    Plaintiff-Appellee                   :       Hon. Patricia A. Delaney, J.
    :       Hon. Andrew J. King, J.
    -vs-                                         :
    :
    DAMON MEYER                                  :       Case No. 22-COA-035
    :
    Defendant-Appellant                  :       OPINION
    CHARACTER OF PROCEEDING:                             Appeal from the Municipal Court,
    Case No. 20CRB00914
    JUDGMENT:                                            Affirmed
    DATE OF JUDGMENT:                                    April 23, 2023
    APPEARANCES:
    For Plaintiff-Appellee                               For Defendant-Appellant
    ANDREW N. BUSH                                       EDWARD CLARK CORLEY
    1213 E. Main Street                                  3 North Main Street
    Ashland, OH 44805                                    Suite 603
    Mansfield, OH 44902
    Ashland County, Case No. 22-COA-035                                                      2
    King, J.
    {¶ 1} Defendant-Appellant Damon Meyer appeals the September 28, 2022
    judgment of the Ashland County Municipal Court finding him guilty of animals on a public
    roadway, a misdemeanor of the fourth degree. Plaintiff-Appellee is the state of Ohio.
    Facts and Procedural History
    {¶ 2} This case arose on August 24, 2020, when Jane Doe was driving home
    from work on County Road 1775. Doe went over a hill near appellant's farm and
    encountered a cow and a calf in the roadway. Doe slammed on her brakes and managed
    to avoid hitting the animals. Transcript of Trial, (T.) at 125.
    {¶ 3} Doe got out of her car and shooed the cow and calf out of the roadway. She
    also noticed other cows and calves unconfined in the grassy area in front of a barn in
    close proximity to the roadway. Doe called the Sheriff's Department and went to see if
    anyone was home at the farm house. T. 124. Finding no one at the home, Doe went back
    to watching the unconfined cattle to ensure they didn't enter the roadway. T. 124-125.
    {¶ 4} Deputy Forsthoefel was dispatched to the scene to meet Doe and observed
    several cows unconfined in an open area near the road. T. 147. No cows were in the
    roadway at that time, but Doe reported what she saw shortly before his arrival. Forsthoefel
    had been to appellant's property on several prior occasions for similar calls. T. 151.
    {¶ 5} Forsthoefel asked dispatch to find the property owner and was given
    appellant's name. T. 148. He was advised that appellant lived near the rear of the
    property, so the deputy proceeded a short distance down a long lane in an attempt to
    make contact, without success. Eventually dispatch contacted the property owners and/or
    Ashland County, Case No. 22-COA-035                                                      3
    a resident. Appellant and his mother appeared shortly thereafter. T. 149. Appellant
    advised the cows were his. T. 150.
    {¶ 6} Forsthoefel entered the barn and observed a gate lying flat on the ground,
    over which the cattle were exiting the barn. He noted no mechanisms by which the gate
    could have been attached to anything. T. 153. He further observed that the gate was
    longer than the doorway opening through which the cattle escaped leading Forsthoefel to
    conclude the gate had been propped up against the opening. T. 183.
    {¶ 7} Appellant was charged with Animals Running at Large on Public Roads in
    violation of R.C. 951.02, a misdemeanor of the fourth degree.
    {¶ 8} This case has been to trial three times and this is the second time we have
    been asked to review the matter. On the second occasion, appellant decided to represent
    himself at trial and was convicted as charged. On appeal, appellant argued the trial court
    erred in permitting him to proceed pro se without a knowing, intelligent, and voluntary
    waiver of his Sixth Amendment right to counsel. This court agreed, vacated appellant's
    conviction and sentence, and remanded the matter for proceedings consistent with our
    opinion. State v. Meyer, 
    187 N.E.3d 65
    , 
    2022-Ohio-1226
     (5th Dist.).
    {¶ 9} On remand, appellant again elected to try the matter to a jury and again
    elected to represent himself. The trial court appointed standby counsel for appellant.
    {¶ 10} Appellant's second trial took place on September 28, 2022. The state again
    presented evidence and testimony from Jane Doe and Deputy Forsthoefel and elicited
    the above outlined testimony. Appellant presented testimony from two neighbors, a USDA
    livestock processing and humane regulator, his wife, his mother, and his brother.
    Ashland County, Case No. 22-COA-035                                                        4
    {¶ 11} After hearing all the evidence and deliberating, the jury convicted appellant
    as charged. The trial court imposed a $150 fine and ordered appellant to complete 80
    hours of community service. Appellant's sentence was stayed pending this appeal.
    {¶ 12} Appellant raises three assignments of error for our review as follow:
    I
    {¶ 13} "DAMON MEYER'S CONVICTION FOR ANIMALS RUNNING AT LARGE
    IS NOT SUPPORTED BY THE EVIDENCE SUFFICIENT TO SATISFY THE
    REQUIREMENTS OF DUE PROCESS UNDER THE UNITED STATES CONSTITUTION
    AMENDMENTS V AND XIV; OR ALTERNATIVELY IS AGAINST THE MANIFEST
    WEIGHT OT THE EVIDENCE."
    II
    {¶ 14} "THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO
    DISMISS, BASED UPON THE STATE'S FAILURE TO PROVIDE A WITNESS LIST TO
    THE DEFENDANT FOR THE TRIAL. "
    III
    {¶ 15} "THE COURT EXCEEDED ITS DISCRETION WHEN IT PERMITTED AN
    APPARENTLY SICK AND INATTENTIVE JUROR TO REMAIN ON THE JURY PANEL,
    FOR THE DURATION OF THE TRIAL."
    I
    {¶ 16} In his first assignment of error, appellant argues his conviction is against the
    sufficiency and manifest weight of the evidence. We disagree.
    {¶ 17} On review for sufficiency, a reviewing court is to examine the evidence at
    trial to determine whether such evidence, if believed, would support a conviction. State v.
    Ashland County, Case No. 22-COA-035                                                        5
    Jenks, 
    61 Ohio St.3d 259
    , 
    574 N.E.2d 492
     (1991). "The relevant inquiry is whether, after
    viewing the evidence in a light most favorable to the prosecution, any rational trier of fact
    could have found the essential elements of the crime proven beyond a reasonable doubt."
    Jenks at paragraph two of the syllabus, following Jackson v. Virginia, 
    443 U.S. 307
    , 
    99 S.Ct. 2781
    , 
    61 L.Ed.2d 560
     (1979). On review for manifest weight, a reviewing court is to
    examine 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 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. Martin, 
    20 Ohio App.3d 172
    , 175, 
    485 N.E.2d 717
     (1st Dist.1983). See also, State v. Thompkins, 
    78 Ohio St.3d 380
    , 
    678 N.E.2d 541
     (1997). The granting of a new trial "should be exercised only in the
    exceptional case in which the evidence weighs heavily against the conviction." Martin at
    175.
    {¶ 18} Appellant was charged with one count of permitting animal in a roadway
    pursuant to R.C. 951.02. That section states:
    No person, who is the owner or keeper of horses, mules, cattle,
    bison, sheep, goats, swine, llamas, alpacas, or poultry, shall permit
    them to run at large in the public road, highway, street, lane, or alley,
    or upon unenclosed land, or cause the animals to be herded, kept,
    or detained for the purpose of grazing on premises other than those
    owned or lawfully occupied by the owner or keeper of the animals.
    Ashland County, Case No. 22-COA-035                                                      6
    {¶ 19} R.C. 951.99 states, "[w]hoever recklessly violates section 951.02 of the
    Revised Code is guilty of a misdemeanor of the fourth degree." 2901.22(C) provides:
    A person acts recklessly when, with heedless indifference to the
    consequences, the person disregards a substantial and unjustifiable
    risk that the person's conduct is likely to cause a certain result or is
    likely to be of a certain nature. A person is reckless with respect to
    circumstances     when,     with   heedless     indifference   to   the
    consequences, the person disregards a substantial and unjustifiable
    risk that such circumstances are likely to exist.
    {¶ 20} Here, there was no dispute that the cattle at issue belonged to appellant.
    T.150. Doe testified she was driving down County Road 1775 when, as she crested a hill
    in front of Appellant's property, she nearly collided with a cow and a calf which were
    standing in the roadway, in her lane of travel. Doe pulled into appellant's driveway, got
    out of her car and chased the cow and calf back onto appellant's property. She observed
    other cows coming out of the barn and into the yard. Some came toward the roadway. T.
    123-124. Until Deputy Forsthoefel arrived, Doe did her best to keep the cattle off the road
    "so nobody would get hurt." T. 125.
    {¶ 21} Deputy Forsthoefel testified he arrived on the scene and observed multiple
    cows outside their enclosure and in the side yard of the property near the roadway. T.147.
    He assisted Doe in attempting to keep the animals off the road while dispatch located the
    property owners. T. 148.
    Ashland County, Case No. 22-COA-035                                                       7
    {¶ 22} Appellant arrived and pulled his car up near the barn. T.150. Forsthoefel
    then returned to his cruiser to check the history of calls to the property noting there had
    been many previous calls for the same reason. Forsthoefel took his camera to the barn
    and took photos of the doorway through which cattle were escaping. T. 151. In the
    doorway, Forsthoefel noted a gate lying flat on the ground and to the outside of the
    pasture the cattle had escaped from. T. 159. He further noted there appeared to be no
    way to secure the gate to the doorway, and that the gate was longer than the width of the
    opening. He observed no chains, ropes, or anything on the fence or the wall to which the
    gate could have been attached. T. 153. Forsthoefel took photographs to document his
    observations which were admitted in to evidence at trial as State's exhibits 2-6. The
    photos show no hardware, rope, or chain with which to secure the fence. T. 158-159.
    {¶ 23} Because the gate was longer than the opening, was situated on the side of
    the barn to the outside of the pasture, and exhibited no fastening devices, Forsthoefel
    believed the gate had been merely propped up against the opening. T. 173.
    {¶ 24} We find this evidence sufficient to support Appellant's conviction for animals
    at large on a public roadway and further find the jury did not lose its way in so convicting
    him.
    {¶ 25} Appellant makes several arguments to the contrary, first arguing that Jane
    Doe provided no testimony regarding the adequacy of the enclosure to contain cattle, and
    the fact that she never entered the barn. But it was not necessary for Doe to testify to
    these things. In fact, it appears the purpose of her testimony was limited to her
    observation of the cattle in the roadway.
    Ashland County, Case No. 22-COA-035                                                         8
    {¶ 26} Appellant further points to the testimony of his brother who stated he built
    the barn the cattle escaped from and that he included gate hangers in the post to which
    the gate was allegedly attached. Appellant's brother further agreed a cow can knock a
    gate down. T. 210.
    {¶ 27} The jury heard the testimony from Appellant's brother and also observed
    photos of the area of the barn in question. As the trier of fact, the jury was free to believe
    all, part, or none of any witness's testimony. State v. Antill, 
    176 Ohio St. 61
    , 67, 
    197 N.E.2d 548
     (1964). A jury is further in the best position to view the witnesses and to
    observe witness demeanor, gestures and voice inflections, and to use those observations
    to weigh credibility. State v. Kurtz, 10th Dist. No. 17AP-382, 
    2018-Ohio-3942
    , ¶ 18 "Mere
    disagreement over the credibility of witnesses is not a sufficient reason to reverse a
    judgment on manifest weight grounds." State v. Harris, 10th Dist. No. 13AP-770, 2014-
    Ohio-2501, 
    2014 WL 2583023
    , ¶ 25. We find the jury did not lose its way in believing the
    state's witness over Appellant's witness.
    {¶ 28} The first assignment of error is overruled.
    II
    {¶ 29} In his second assignment of error, appellant argues the trial court erred in
    failing to grant his motion to dismiss based on the state's failure to provide him a witness
    list. We disagree.
    {¶ 30} Criminal Rule 16(I) provides in relevant part that each party will provide
    opposing counsel with a written list of witnesses it intends to call at trial in its case-in-
    chief.
    {¶ 31} Criminal Rule 16(L)(1) provides:
    Ashland County, Case No. 22-COA-035                                                      9
    The trial court may make orders regulating discovery not inconsistent
    with this rule. If at any time during the course of the proceedings it is
    brought to the attention of the court that a party has failed to comply
    with this rule or with an order issued pursuant to this rule, the court
    may order such party to permit the discovery or inspection, grant a
    continuance, or prohibit the party from introducing in evidence the
    material not disclosed, or it may make such other order as it deems
    just under the circumstances.
    {¶ 32} We initially note this matter proceeded to trial on three occasions under the
    same case number. On each occasion the state's witnesses, remained the same; Jane
    Doe and Deputy Forsthoefel. The state filed its witness list in this matter on October 2,
    2020. Docket at 12.
    {¶ 33} Appellant wrote several letters to the trial court stating he believed he had
    not received complete discovery in this matter, and then filed a formal demand for
    discovery on September 14, 2022. The trial court held a hearing on the same day,
    specifically to address appellant's discovery complaints.
    {¶ 34} The state indicated appellant had been to the law director's office on August
    29, 2022, had been provided with copies "of everything" and signed a receipt for the
    same. Transcript of hearing (T.H) at 8. During the hearing, appellant argued he had not
    received all of Deputy Forsthoefel's body camera video evidence. T.H 11-12. Appellant
    further appeared to be requesting photos from an incident that had nothing to do with this
    Ashland County, Case No. 22-COA-035                                                                                10
    case, but rather an incident that predated this matter, and involved his neighbors. At no
    time during the hearing did appellant ever state he had not been provided a witness list.
    {¶ 35} On the morning of trial, immediately before voir dire, Appellant alleged for
    the first time he had not received a witness list and moved to dismiss the case on that
    basis. T. 7. The state responded it had provided the witness list and further, that the
    witnesses had not changed from the first two trials in this matter. T. 7 and 9. 1 The trial
    court overruled Appellant's motion.
    {¶ 36} A trial court has discretion in determining a sanction for a discovery
    violation. State v. Parson, 
    6 Ohio St.3d 442
    , 445, 
    453 N.E.2d 689
     (1983). In order to find
    an abuse of discretion, we must determine the trial court's decision was unreasonable,
    arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v.
    Blakemore, 
    5 Ohio St.3d 217
    , 
    450 N.E.2d 1140
     (1983).
    {¶ 37} We find the trial court did not abuse its discretion in overruling Appellant's
    motion. The state filed its discovery, including a witness list, on October 2, 2022, the
    witnesses remained the same throughout the life of the case, and the state indicated it
    provided Appellant with a copy of that witness list. Certainly, the state would have a
    responsibility to supplement discovery and provide a new list if the original list changed,
    but it did not. Further, even if we assume for the sake of argument that the state did not
    provide appellant with a copy of the list, appellant does not identify what prejudice he
    suffered. He merely argues he did not receive a written list. We find no error in the trial
    court's ruling.
    {¶ 38} The second assignment of error is overruled.
    1
    We note page 8 of the transcript is missing which includes part of the witness list conversation. It is Appellant's
    burden to provide a complete record.
    Ashland County, Case No. 22-COA-035                                                           11
    III
    {¶ 39} In his final assignment of error, appellant argues the trial court exceeded its
    discretion when it permitted a sick and inattentive juror to remain in the panel for the
    duration of the trial. We disagree.
    {¶ 40} R.C. 2945.29 permits a court to replace a juror with an alternate: "If, before
    the conclusion of the trial, a juror becomes sick, or for other reason is unable to perform
    his duty, the court may order him to be discharged."
    {¶ 41} "A trial judge is empowered to exercise 'sound discretion to remove a juror
    and replace him with an alternate juror whenever facts are presented which convince the
    trial judge that the juror's ability to perform his duty is impaired.' " State v. Brown, 2d Dist.
    Montgomery No. 24541, 
    2012-Ohio-1848
    , ¶ 46, quoting State v. Hopkins, 
    27 Ohio App.3d 196
    , 198, 
    500 N.E.2d 323
     (11th Dist.1985). In order to find an abuse of discretion, we
    must determine the trial court's decision was unreasonable, arbitrary or unconscionable
    and not merely an error of law or judgment. Blakemore v. Blakemore, 
    5 Ohio St.3d 217
    ,
    
    450 N.E.2d 1140
     (1983).
    {¶ 42} Appellant's third assignment of error pertains to a point in trial during direct
    examination of Deputy Forsthoefel where the following took place:
    [Counsel for the State speaking to a juror]: Are you okay? Judge, we
    need to stop for a minute.
    (Discussion with juror who is getting sick)
    [The Court]: Let's call a recess here until we determine what the
    problem is.
    Ashland County, Case No. 22-COA-035                                                        12
    (THEREUPON, the Court is in recess.)
    The Bailiff: Let me stop the recording. Sir, your record is on.
    The Court: Thank you.
    The Bailiff: All rise for the jury please.
    The Court: Be seated. Okay, after a short recess, the jury is back in
    the jury box and the parties are back in the courtroom and the inquiry
    about what we have in Voir Dire doesn't change because we are in
    the middle of the hearing (inaudible) Ms. (inaudible) are you feeling
    better? Is there a reason that you cannot proceed as a juror?
    Juror: No.
    The Court: Can you do me a favor, if you don't feel well, just raise
    your hand and we can call it a day at any time, fair?
    Juror: Yes.
    {¶ 43} T. 163-164.
    {¶ 44} This is the extent of the record regarding any illness involving the juror.
    Contrary to Appellant's argument, there is no indication in the record that the juror was
    inattentive and unable to perform her duty as a juror. Moreover, Appellant never asked
    that the juror be removed from the panel. We find the trial court did not abuse its discretion
    by failing to sua sponte remove the juror.
    Ashland County, Case No. 22-COA-035                                             13
    {¶ 45} The final assignment of error is overruled.
    {¶ 46} The judgment of the Ashland County Municipal Court is affirmed.
    By King, J.,
    Gwin, P.J. and
    Delaney, J. concur.
    AJK/rw
    

Document Info

Docket Number: 22-COA-035

Citation Numbers: 2023 Ohio 1254

Judges: King

Filed Date: 4/18/2023

Precedential Status: Precedential

Modified Date: 4/18/2023