[Cite as State v. Deal, 2012-Ohio-3903.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
PUTNAM COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 12-12-04
v.
RICKY E. DEAL, OPINION
DEFENDANT-APPELLANT.
Appeal from Putnam County Common Pleas Court
Trial Court No. 2011 CR 43
Judgment Affirmed
Date of Decision: August 27, 2012
APPEARANCES:
Joseph A. Benavidez for Appellant
Todd C. Schroeder for Appellee
Case No. 12-12-04
SHAW, P.J.
{¶1} Defendant-appellant Ricky Deal appeals the December 23, 2011,
judgment of the Putnam County Common Pleas Court sentencing him to a total of
six years in prison following a jury trial wherein he was found guilty of Operating
a Vehicle Under the Influence (“OVI”) in violation of R.C. 4511.19(A)(1)(a) &
(G)(1)(e), a felony of the third degree, Tampering with Evidence in violation of
R.C. 2921.12(A)(2), a felony of the third degree, and Identity Fraud in violation of
R.C. 2913.49(B)(2), a felony of the fifth degree.
{¶2} The facts relevant to this appeal are as follows. On April 2, 2011 at
approximately 1:11 A.M., a man identifying himself as Larry Deal was pulled
over by Officer Joseph Quintero for driving 69 mph in a 55 mph zone. The man
was, in fact, Ricky Deal using the name and social security number of his brother
Larry who, unlike Ricky, had no prior OVI convictions.
{¶3} After admitting that he had been drinking, failing two field sobriety
tests and stating he was unable to perform the walk-and-turn test, Ricky, still
identifying himself as Larry Deal, was transported to the Putnam County jail for a
blood alcohol concentration (“BAC”) test. Ultimately after being transported,
Ricky refused to do the BAC test. In refusing, Ricky signed his refusal form
under the name of “Larry Deal.”
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{¶4} “Larry Deal” was then charged with, inter alia, OVI. Ricky was
arraigned as Larry Deal and pled not guilty to the crime. Ricky then signed an OR
bond as Larry Deal so that he could be released pending trial.
{¶5} Subsequently it was learned that Ricky had used his brother Larry’s
name during the proceedings. Ricky was then indicted on April 29, 2011, for OVI
in violation of R.C. 4511.19(A)(1)(a) & (G)(1)(e), a felony of the third degree
based on Ricky’s prior OVI convictions. Ricky was also indicted for Tampering
with Evidence in violation of R.C. 2921.12(A)(2), a felony of the third degree, and
Identity Fraud in violation of R.C. 2913.49(B)(2), a felony of the fifth degree.
{¶6} On August 23, 2011, Ricky entered not guilty pleas to the charges in
the indictment.
{¶7} The case proceeded to a jury trial on November 8-9, 2011. On
November 9, 2011 the jury found Ricky guilty of all charges.
{¶8} A sentencing hearing was held on December 13, 2011. The court
found that the Identity Fraud and the Tampering with Evidence charges were
allied offenses of similar import and merged them for purposes of sentencing. The
State elected to proceed with sentencing on the Tampering with Evidence
conviction. (Doc. 63). Ultimately Ricky was sentenced to four years incarceration
for the OVI, and two years incarceration for Tampering with Evidence. Ricky’s
sentences were to be served consecutively for a total period of incarceration of six
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years. The sentence was memorialized in a “Judgment Entry of Sentence” filed by
the court December 23, 2011.
{¶9} It is from the December 23, 2011 “Judgment Entry of Sentence” that
Ricky appeals, asserting the following assignments of error for our review.
ASSIGNMENT OF ERROR 1
THE JURY ERRED IN FINDING APPELLANT GUILTY AS
THE VERDICT WAS AGAINST THE MANIFEST WEIGHT
OF EVIDENCE AND THERE WAS INSUFFICIENT
EVIDENCE TO HAVE FOUND ALL ESSENTIAL
ELEMENTS OF THE OFFENSE BEYOND A REASONABLE
DOUBT.
ASSIGNMENT OF ERROR 2
THE PROSECUTION PREJUDICED THE OUTCOME OF
THE CASE THROUGH IMPROPER CLOSING ARGUMENT.
First Assignment of Error
{¶10} In Ricky’s first assignment of error he argues there was insufficient
evidence to convict him and that his convictions were against the manifest weight
of the evidence. Ricky specifically argues that “there was no evidence presented
that [Ricky] was under the influence of alcohol * * * at the time he was operating
the vehicle.” (Appt. Br. at 4).
{¶11} The Supreme Court of Ohio has “carefully distinguished the terms
‘sufficiency’ and ‘weight’ in criminal cases, declaring that ‘manifest weight’ and
‘legal sufficiency’ are ‘both quantitatively and qualitatively’ different. Eastley v.
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Volkman, --- Ohio St.3d ---, 2012-Ohio-2179, ¶ 10, quoting State v. Thompkins, 78
Ohio St.3d 380 (1997), paragraph two of the syllabus.
{¶12} The Ohio Supreme Court has set forth the sufficiency of the evidence
test as follows:
An appellate court’s function when reviewing the sufficiency of
the evidence to support a criminal conviction is to examine the
evidence admitted at trial and determine whether such evidence,
if believed, would convince the average mind of the defendant’s
guilt beyond a reasonable doubt. 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.
State v. Jenks, 61 Ohio St.3d 259 (1991), at syllabus, superseded by state
constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio
St.3d 89 (1997); Eastley, supra, at ¶ 10.
{¶13} Unlike our review of the sufficiency of the evidence, an appellate
court’s function when reviewing the weight of the evidence is to determine
whether the greater amount of credible evidence supports the verdict. Eastley,
supra, at ¶ 12; State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). In reviewing
whether the trial court’s judgment was against the weight of the evidence, the
appellate court sits as a “thirteenth juror” and examines the conflicting testimony.
Id. In doing so, this Court must review the entire record, weigh the evidence and
all of the reasonable inferences, consider the credibility of witnesses, and
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determine whether in resolving conflicts in the evidence, the factfinder “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. Andrews, 3d Dist. No. 1-05-70,
2006-Ohio-3764, ¶ 30, citing State v. Martin, 20 Ohio App.3d 172, 175 (1983);
Thompkins, 78 Ohio St.3d at 387.
{¶14} In this case, Ricky was indicted for, and found guilty of, OVI,
Tampering with Evidence, and Identity Fraud. The statutes corresponding to these
crimes as indicted read as follows.
OVI -- R.C. 4511.19
(A)(1) No person shall operate any vehicle, streetcar, or trackless
trolley within this state, if, at the time of the operation, any of
the following apply:
(a) The person is under the influence of alcohol, a drug of
abuse, or a combination of them.
***
(G)(1) Whoever violates any provision of divisions (A)(1)(a) to (i)
or (A)(2) of this section is guilty of operating a vehicle under the
influence of alcohol, a drug of abuse, or a combination of them.
***
(e) An offender who previously has been convicted of or
pleaded guilty to a violation of division (A) of this section that
was a felony, regardless of when the violation and the conviction
or guilty plea occurred, is guilty of a felony of the third degree.
The court shall sentence the offender to all of the following:
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(i) If the offender is being sentenced for a violation of division
(A)(1)(a), (b), (c), (d), (e), or (j) of this section, a mandatory
prison term of one, two, three, four, or five years as required by
and in accordance with division (G)(2) of section 2929.13 of the
Revised Code if the offender also is convicted of or also pleads
guilty to a specification of the type described in section
2941.1413 of the Revised Code or a mandatory prison term of
sixty consecutive days in accordance with division (G)(2) of
section 2929.13 of the Revised Code if the offender is not
convicted of and does not plead guilty to a specification of that
type. The court may impose a prison term in addition to the
mandatory prison term. The cumulative total of a sixty-day
mandatory prison term and the additional prison term for the
offense shall not exceed five years. In addition to the mandatory
prison term or mandatory prison term and additional prison
term the court imposes, the court also may sentence the offender
to a community control sanction for the offense, but the offender
shall serve all of the prison terms so imposed prior to serving the
community control sanction.
Tampering with Evidence -- R.C. 2921.12
(A) No person, knowing that an official proceeding or
investigation is in progress, or is about to be or likely to be
instituted, shall do any of the following:
***
(2) Make, present, or use any record, document, or thing,
knowing it to be false and with purpose to mislead a public
official who is or may be engaged in such proceeding or
investigation, or with purpose to corrupt the outcome of any
such proceeding or investigation.
Identity fraud -- R.C. 2913.49(B)(2)
(B) No person, without the express or implied consent of the
other person, shall use, obtain, or possess any personal
identifying information of another person with intent to do
either of the following:
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***
(2) Represent the other person's personal identifying
information as the person's own personal identifying
information.
{¶15} To prove Ricky was guilty of the crimes alleged in the indictment,
the State first called Brian Williams of the Hancock County Sherriff’s Office.
Williams identified State’s Exhibits related to Ricky’s prior OVI convictions. (Tr.
187-195). Such convictions included one from 1995, one from 1998, one from
2000, and multiple convictions in 2007. (Id.); (State’s Ex. 1-8).
{¶16} The State then called Joseph Quintero. Quintero was the officer that
stopped Ricky for speeding. Quintero testified that when he pulled Ricky over, he
noticed Ricky had a “glaze[d]” stare. (Tr. at 205). Quintero testified that Ricky
had to repeat his name four times because Quintero could not understand the
slurred speech. (Id.) Quintero testified that Ricky identified himself as Larry Deal
providing Larry’s social security number. (Tr. at 207).
{¶17} According to Quintero, Ricky was not walking with good balance,
his eyes were red, and Ricky had said he had been drinking. (Tr. at 209).
Quintero also testified that there was a wet spot on the front of Ricky’s pants that
he assumed was urine. (Tr. at 211). Quintero testified that Ricky told him that
Ricky had been at a party drinking and was made to leave when he caused
problems. (Tr. at 210). Quintero testified that minutes later, when Quintero asked
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Ricky about the party, Ricky asked Quintero how Quintero knew about the party.
(Tr. at 211).
{¶18} Quintero testified that he administered the Horizontal Gaze
Nystagmus (HGN) test on Ricky. (Tr. at 215). Quintero testified that Ricky
completed the test but Ricky failed, showing six of six clues for impairment. (Tr.
at 215-216). According to Quintero, Ricky said an injury prevented him from
performing the walk and turn test, but Ricky did undertake the one leg stand test,
which Ricky also failed. (Tr. at 217). Further, Quintero testified that when he
searched Ricky’s car, he found a half bottle of Jack Daniel’s on the right front
passenger floor board. (Tr. at 218).
{¶19} According to Quintero, Ricky refused to do a BAC test when
Quintero took him back to the station. (Tr. at 225-26). Ricky, still identifying
himself as Larry Deal, signed his name on the refusal form as “Larry Deal,” and
signed his name on the citation Quintero wrote out as “Larry Deal.” (Tr. at 227-
229).
{¶20} Quintero testified that it was April 6, 2011, when he learned that the
man who had identified himself as Larry Deal was, in fact, Ricky Deal as Larry
Deal had called Quintero once he was apprised of the fact that he had been
charged with a crime. (Tr. at 231). The real Larry Deal met with Quintero and
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Quintero did not recognize him. (Tr. at 231). Subsequently a warrant was issued
for Ricky.
{¶21} The next witness the State called was Abbot Carter of the Ottawa
Police Department. Carter testified that he witnessed Ricky sign Larry Deal’s
name on the 2255 refusal form for the BAC test. (Tr. at 248). Carter further
testified that the man identifying himself as Larry Deal had slurred speech, glassy
eyes and there was an odor of alcohol about him. (Tr. at 252).
{¶22} The State then called Larry Deal. Larry Deal testified that Ricky did
not have Larry’s permission to use Larry’s identity. (Tr. at 281). Larry Deal also
testified that Ricky later apologized for using his identity. (Tr. at 282).
{¶23} Next the State called Kim Redman, a Putnam County Municipal
Court Clerk. Redman identified the audio tape of the arraignment of “Larry Deal”
and also identified a paper that was provided to “Larry” at arraignment which was
signed by Ricky as “Larry Deal.”
{¶24} The State then called Susan Maag, the Clerk of Courts for Putnam
County Municipal Court. Maag testified that following the arraignment of “Larry
Deal” she recalled Ricky coming to her to sign his bond to be released on his own
recognizance. (Tr. at 292-294). Maag testified she recognized Ricky as the man
that signed his name after arraignment as “Larry Deal.” (Id.)
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{¶25} Finally, the State called Roy Sargent, a detective from the Putnam
County Sherriff’s Office. Sargent testified that he listened to phone calls made by
Ricky wherein Ricky admitted to using his brother’s identification and name on
the ticket he was given, in the courtroom at arraignment, and in signing the
documents at the court proceedings. (Tr. at 299). The State then rested its case.
{¶26} In his defense, Ricky first called Lee Ann Ewing who testified that
she was with Ricky at a gathering earlier in the night when he was pulled over
until around 11 p.m. (Tr. at 321). Lee Ann testified she saw Ricky have one beer
but that she was not watching Ricky all night. (Tr. at 323). Lee Ann testified she
later picked Ricky up after he was charged for OVI as Larry Deal and that at that
time she thought Ricky did not sound drunk. (Tr. at 324). Lee Ann also testified
she did not notice a wet spot on his pants. (Tr. at 324).
{¶27} Ricky then called Toby Deal, his nephew, who had hosted a
gathering Ricky attended earlier that night. Toby testified that Ricky was never
asked to leave and that Ricky had one or two beers at the gathering. (Tr. at 333).
{¶28} Based on the foregoing testimony and the exhibits entered into
evidence, we find that there was sufficient evidence presented by the State to
satisfy all elements of the crimes Ricky was charged with, namely, OVI,
Tampering with Evidence, and Identity Fraud.
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{¶29} Despite Ricky’s argument on appeal that his convictions were also
against the manifest weight of the evidence, there is substantial credible evidence
in the record to support the jury’s conviction. While Ricky argues on appeal that
Ricky only failed the sobriety tests administered by Officer Quintero because it
was windy and that Officer Quintero performed the sobriety tests incorrectly, there
is ample credible evidence to find that Ricky was intoxicated.
{¶30} Testimony was provided by Patrolman Quintero that Ricky’s speech
was so slurred Quintero had to have Ricky repeat his name four times, that
Ricky’s eyes were red, that Ricky failed the two sobriety tests he was given, that
Ricky admitted to drinking, that Ricky had a wet spot on the front of his pants and
that Ricky had a half bottle of Jack Daniel’s in his car. Moreover, Officer Carter
testified that the man identifying himself as Larry had slurred speech, glassy eyes
and smelled of alcohol. Accordingly we do not find that the factfinder “clearly
lost its way in convicting Ricky of OVI.
{¶31} As to the Tampering with Evidence and the Identity Fraud charges,
there was ample evidence to establish proof beyond a reasonable doubt of Ricky
using the identity of his brother Larry Deal throughout the stop and the early court
proceedings. Ricky signed his brother Larry’s name on the traffic ticket, presented
himself as Larry in court for arraignment, then signed official court documents at
arraignment as Larry. Under these circumstances, we do not find that the
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factfinder “clearly lost its way” in convicting Ricky of Tampering with Evidence
and Identity Fraud.
{¶32} Based on the foregoing we find that there was sufficient evidence to
convict Ricky, and that Ricky’s convictions were not against the manifest weight
of the evidence. Accordingly, Ricky’s first assignment of error is overruled.
Second Assignment of Error
{¶33} In Ricky’s second assignment of error he argues that statements
made by the State in closing argument were improper and prejudiced the outcome
of the trial. Specifically Ricky argues that the State made comments regarding
witnesses’ credibility “and tried to establish that an officer should be held to
higher credibility than other witnesses.” (Appt. Br. at 5).
{¶34} The test regarding prosecutorial misconduct during closing
arguments is whether the remarks were improper and, if so, whether they
prejudicially affected the substantial rights of the defendant. State v. Davis, 116
Ohio St.3d 404, 2008-Ohio-2, ¶ 231. “In making this determination, an appellate
court should consider several factors: (1) the nature of the remarks, (2) whether an
objection was made by counsel, (3) whether corrective instructions were given by
the court, and (4) the strength of the evidence against the defendant.” State v.
Braxton, 102 Ohio App.3d 28, 41 (8th Dist. 1995). “The touchstone of the
analysis ‘is the fairness of the trial, not the culpability of the prosecutor.’” Davis,
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supra, at ¶ 231 quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940 (1982).
Prosecutorial misconduct is generally not grounds for reversal unless it so taints
the proceedings as to deprive the defendant of a fair trial. State v. Johns, 3d. Dist.
No. 13-04-23, 13-04-24, 13-04-25, 2005-Ohio-1694, ¶ 25.
{¶35} In this case, Ricky is claiming that the following portion of the
State’s rebuttal closing argument was improper:
And in order to find the defendant not guilty on the OVI, the
only way that could happen is for you to conclude that Officer
Quintero lied about his observations; that Officer Carter lied
about the odor of alcohol, the slurred speech, and the bloodshot
eyes. That is the only way to find him not guilty. You must
make that determination that those officers lied to you, because
they presented to you a series of observations, any one of which
could cause you to conclude that the defendant was under the
influence of alcohol.
You were also told about the conversation, the admissions to
drinking and so forth. So, again, that’s the only way you could
find him not guilty of that offense.
But we know who the liar is. It’s not the officers, it’s this
defendant.
(Emphasis Added.) (Tr. at 369).
{¶36} Ricky specifically objects to the italicized portion of the language
arguing that the language was improper and “extremely prejudicial” to the
defense. However, we do not find that this statement was improper, nor do we
find that it so tainted the proceedings as to deprive Ricky of a fair trial.
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{¶37} First, the State was making a fair characterization of the evidence.
Evidence had been presented at trial that Ricky had continuously lied and misled
authorities about his identity. Second, in his own closing argument, Ricky’s
counsel questioned the credibility of the testimony of Patrolman Quintero. As a
result, the prosecutor’s statement is in line with responding to defense allegations
about Quintero. Finally, the evidence against Ricky was substantial and there is
no showing how this one statement prejudiced Ricky so seriously that a new trial
is warranted. Accordingly, Ricky’s second assignment of error is overruled.
{¶38} For the foregoing reasons Ricky’s assignments of error are overruled
and the judgment of the Putnam County Common Pleas Court is affirmed.
Judgment Affirmed
WILLAMOWSKI and ROGERS, J.J., concur.
/jlr
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