State v. Covey

[Cite as State v. Covey, 2012-Ohio-4728.]

COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. Julie A. Edwards, J.
-vs-
Case No. 2011CA00268
MICHAEL BERNARD COVEY

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Massillon Municipal Court,
Case Nos. 2011CRB1477 & 2011TRD4901

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: October 9, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

ROBERT A. ZEDELL MATTHEW S. KUHN
Massillon Law Department Stark County Public Defender Office
Two James Duncan Plaza 200 West Tuscarawas Street, Suite 200
Massillon, Ohio 44646 Canton, Ohio 44702
Stark County, Case No. 2011CA00268 2

Hoffman, P.J.

{¶1} Defendant-appellant Michael B. Covey appeals his conviction entered by

the Massillon Municipal Court, following a jury trial. Plaintiff-appellee is the state of

Ohio.

STATEMENT OF THE CASE AND FACTS

{¶2} On July 5, 2011, the Ohio State Highway Patrol charged Appellant with

failure to comply with the lawful order of a police officer, in violation of R.C. 2921.331(a),

a first degree misdemeanor; and reckless operation, in violation of R.C. 4511.20, a

minor misdemeanor. The alleged violations occurred on May 28, 2011. Appellant

appeared before the trial court for arraignment on July 7, 2011, and entered pleas of not

guilty to the charges.

{¶3} The matter proceeded to jury trial on November 10, 2011. The following

evidence was adduced at trial.

{¶4} Sgt. Bradley Bishop of the Ohio State Highway Patrol was on regular

routine patrol on May 28, 2011. Shortly after 11p.m., the officer was traveling

southbound on Alabama Avenue in Tuscarawas Township, when he observed a white

pickup truck in front of him pull away. Sgt. Bishop indicated he was traveling between

50 and 55 mph, and accelerated in an attempt to obtain a pace speed of the truck.

About the time the officer reached 70 mph, he noticed the pickup cross over the center

line of the roadway.

{¶5} Sgt. Bishop illuminated his patrol lights in an attempt to stop the truck.

Rather than pull over, the driver, who was subsequently identified as Appellant,

accelerated the truck to approximately 80 mph. The officer notified dispatch of
Stark County, Case No. 2011CA00268 3

Appellant’s failure to stop, and activated the cruiser siren and spotlight. After a two mile

pursuit, Sgt. Bishop was approximately 30 feet, or two car lengths, behind the truck and

was able to obtain the license plate number. Appellant turned to the side to adjust the

rearview mirror and the officer was able to get a look at his profile.

{¶6} Appellant pulled into a church parking lot. Sgt. Bishop turned off his sirens

and advised dispatch he was initiating a stop. However, Appellant continued through

the parking lot around the back of the church and onto Stanwood Road. Appellant ran a

stop sign and proceeded onto Alabama Avenue, traveling northbound. Sgt. Bishop

continued to pursue Appellant up a gravel driveway, across a residential lawn, and

behind a storage barn. Appellant traveled onto a tractor path. Because his cruiser

began to sink, the officer terminated the pursuit. Through the various turns made during

the pursuit, Sgt. Bishop was able to get several good views of Appellant’s profile.

{¶7} Dispatch informed Sgt. Bishop the pickup was registered to a female with

an address approximately ¼ mile from where the pursuit had ended. The officer

proceeded to the residence. Other troopers arrived at the scene. The truck was

subsequently found in a recently harvested field, stuck in a ravine. Laura Kowell, the

owner of the truck, eventually arrived at the residence. Kowell advised officers she lived

with Appellant, her boyfriend. Sgt. Bishop conducted a driver’s license check and

criminal history check of Appellant, and was able to retrieve a photograph of Appellant

from a BMV image check. Sgt. Bishop immediately recognized Appellant as the driver

of the truck.

{¶8} Trooper Brandon Richardson was dispatched to Kowell’s residence as

backup. When Kowell arrived, he spoke with her regarding her truck. Kowell indicated
Stark County, Case No. 2011CA00268 4

Appellant had access to the vehicle. Kowell gave Trooper Richardson permission to

search the residence, but Appellant was not located.

{¶9} Kowell testified she and Appellant have been in relationship for six years

and they reside together. Kowell noted the couple owns two vehicles, a sedan and a

white pickup truck. Earlier in the evening on May 28, 2011, Kowell and Appellant were

at a local bar. Appellant had been driving the truck that evening. Kowell indicated other

individuals drove the truck and it would not be unusual for Appellant to loan the vehicle

to someone without asking her permission. Kowell could not be certain Appellant was

the individual driving the truck during the pursuit as she left the bar before him.

{¶10} After hearing all the evidence and deliberations, the jury found Appellant

guilty as charged. The trial court sentenced Appellant to 180 days in county jail, and

ordered him to pay $500 in fines and court costs. In addition, the trial court imposed a

lifetime suspension on Appellant’s operator’s license. The trial court memorialized the

conviction and sentence via Journal Entry and Order filed November 10, 2011.

{¶11} It is from this conviction and sentence Appellant appeals, raising as his

sole assignment of error:

{¶12} “I. THE TRIAL COURT’S FINDING OF GUILTY WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE AND WAS NOT SUPPORTED BY

SUFFICIENT EVIDENCE.”

I

{¶13} In his sole assignment of error, Appellant challenges his convictions as

against the sufficiency and manifest weight of the evidence. Specifically, Appellant
Stark County, Case No. 2011CA00268 5

contends the State failed to prove beyond a reasonable doubt he was the driver of the

pickup truck.

{¶14} When reviewing the sufficiency of the evidence, our inquiry focuses

primarily upon the adequacy of the evidence; that is, whether the evidence, if believed,

reasonably could support a finding of guilt beyond a reasonable doubt. See State v.

Thompkins, 78 Ohio St.3d 380, 386, 1997–Ohio–52, 678 N.E.2d 541, State v. Jenks, 61

Ohio St.3d 259, 273, 574 N.E.2d 492 (1991). The standard of review is whether, after

viewing the probative evidence and inferences reasonably drawn therefrom in the light

most favorable to the prosecution, any rational trier of fact could have found all the

essential elements of the offense beyond a reasonable doubt. Jenks, supra.

{¶15} 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 the

witnesses 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 judgment

must be reversed. The discretionary power to grant a new hearing should be exercised

only in the exceptional case in which the evidence weighs heavily against the

judgment.” Thompkins, supra at 387, citing State v. Martin, 20 Ohio App .3d 172, 175,

485 N.E.2d 717 (1st Dist.1983). Because the trier of fact is in a better position to

observe the witnesses' demeanor and weigh their credibility, the weight of the evidence

and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass, 10

Ohio St.2d 230, 227 N.E.2d 212, (1967), syllabus 1.

{¶16} Appellant claims there was “no way that the Trooper could have seen

enough of the driver’s face to make a positive identification in this case and he merely
Stark County, Case No. 2011CA00268 6

made the assumption that it was [Appellant] based on his relationship with the vehicle’s

owner and the proximity to their residence.” Brief of Appellant at 11. We disagree. Sgt.

Bishop testified he observed Appellant’s profile on more than one occasion during the

extended pursuit. Sgt. Bishop immediately identified Appellant as the driver when the

officer viewed the BMV image. Additionally, Laura Kowell, Appellant’s live-in girlfriend

testified Appellant had been driving the white pickup truck earlier in the evening on the

date of the incident.

{¶17} The jury, as the trier of fact, was free to accept or reject any or all of the

testimony of the witnesses. The jury obviously believed Sgt. Bishop’s identification

testimony, coupled with the circumstantial evidence concerning his permissive use of

his girlfriend’s truck on the night of the incident. We find Appellant’s conviction was not

based upon insufficient evidence and was not against the manifest weight of the

evidence.

{¶18} Appellant’s sole assignment of error is overruled.

{¶19} The judgment of the Massillon Municipal Court is affirmed.

By: Hoffman, P.J.

Farmer, J. and

Edwards, J. concur

s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN

s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER

s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS
Stark County, Case No. 2011CA00268 7

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
MICHAEL BERNARD COVEY :
:
Defendant-Appellant : Case No. 2011CA00268

For the reasons stated in our accompanying Opinion, the judgment of the

Massillon Municipal Court is affirmed. Costs to Appellant.

s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN

s/ Sheila G. Farmer___________________
HON. SHEILA G. FARMER

s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS