State v. Ferguson

[Cite as State v. Ferguson, 2013-Ohio-4798.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, : No. 12AP-1003
(C.P.C. No. 12CR-05-2222)
v. :
(REGULAR CALENDAR)
Jared T. Ferguson, :

Defendant-Appellant. :

D E C I S I O N

Rendered on October 31, 2013

Ron O'Brien, Prosecuting Attorney, and Sheryl L. Prichard,
for appellee.

Yavitch & Palmer Co., L.P.A., and Jeffery A. Linn, II, for
appellant.

APPEAL from the Franklin County Court of Common Pleas

DORRIAN, J.
{¶ 1} Defendant-appellant, Jared T. Ferguson ("appellant"), appeals from a
judgment of the Franklin County Court of Common Pleas convicting him of the crimes of
failure to comply with an order or signal of a police officer by operating a motor vehicle to
elude or flee the officer in violation of R.C. 2921.331 ("failure to comply"). The jury further
found that appellant had operated the vehicle in a manner causing a substantial risk of
serious physical harm to persons or property, a third-degree felony. The court also
convicted appellant of receiving stolen property, in violation of R.C. 2913.51. The court
sentenced appellant to serve three years for the failure to comply offense and six months
for the receiving stolen property offense, a fourth-degree felony; the sentences to run
consecutively. For the following reasons, we affirm.
No. 12AP-1003 2

I. Facts and Case History
{¶ 2} The appellant's alleged crimes occurred following an attempted robbery of a
Cracker Barrel restaurant in Grove City, Ohio, by appellant's acquaintance, Tyson Teague.
Teague testified that he had purchased heroin from appellant in the five- to six-week
period prior to the attempted robbery and that he owed appellant money at that time. He
stated that he attempted to rob the restaurant to get cash that he could pay to appellant
and that appellant was aware of his intent to commit the robbery. Teague testified,
however, that another individual—not appellant—transported Teague to the Cracker
Barrel.
{¶ 3} The robbery was unsuccessful due to the presence of an off-duty policer
officer in the restaurant, who intervened and pursued Teague on foot to a nearby gas
station. Appellant was in a red Chevrolet Tahoe sports utility vehicle (the "SUV") in the
parking lot of the gas station. Teague entered the backseat of the SUV on the passenger's
side after first approaching another vehicle, whose driver did not allow Teague to enter it.
{¶ 4} The pursuing police officer approached the SUV and told appellant to get
out. Instead, appellant exited the gas station at a high rate of speed. Grove City police
officers arrived at the gas station, observed appellant leaving the station, and followed
appellant with lights and sirens deployed until the SUV began sputtering and eventually
crashed, apparently having run out of gas. During the chase, appellant drove the SUV at
speeds of approximately 80 miles per hour on streets with 35-mile-per-hour limits,
through moderately heavy traffic, and through the parking lots of a shopping district in
which numerous pedestrians were present. Police observed appellant nearly strike two
other vehicles, hit a curb, roll over bushes and trees, and eventually come to a stop against
a pine tree. One officer testified that the high-speed chase posed a substantial risk of
physical harm both to him and to others who were either driving or walking in the area of
the chase.
{¶ 5} Appellant's estranged wife owned the SUV. She testified at appellant's trial
that appellant had taken the keys to the SUV from her purse and driven the car away from
her residence without her permission. She further testified that she had reported the SUV
as stolen to the Columbus police and had informed them that she suspected appellant had
taken the SUV.
No. 12AP-1003 3

{¶ 6} Teague and appellant were both indicted in a single indictment and charged
with multiple criminal counts. Appellant's case was tried separately to a jury, and Teague
testified against appellant at trial. The jury returned guilty verdicts on the two criminal
counts described above but found appellant not guilty on two counts of robbery and on
one count of failure to comply while fleeing after the commission of a robbery or
attempted robbery.
II. Assignments of Error
{¶ 7} Appellant timely appealed from his conviction, raising five assignments of
error, as follows:
ASSIGNMENT OF ERROR NO. 1:

THE TRIAL COURT VIOLATED APPELLANT'S RIGHT TO
CONFRONTATION AND RIGHT TO PRESENT A FULL
AND COMPLETE DEFENSE AS GUARANTEED BY THE
SIXTH AMENDMENT AND FOURTEENTH AMENDMENT
TO THE U.S. CONSTITUTION BY PRECLUDING QUES-
TIONS OF DETECTIVE MATT RYAN REGARDING THE
STAR WITNESS'S PRIOR INCONSISTENT STATEMENTS
AND CONDUCT.

ASSIGNMENT OF ERROR NO. 2:

THE TRIAL COURT DEPRIVED APPELLANT OF THE
RIGHT TO PRESENT A FULL AND COMPLETE DEFENSE
AND A TRIAL BY JURY AS GUARANTEED BY THE SIXTH
AMENDMENT AND FOURTEENTH AMENDMENT TO
THE U.S. CONSTITUTION BY REFUSING TO INSTRUCT
THE JURY ON THE AFFIRMATIVE DEFENSE OF DURESS
AND/OR NECESSITY.

ASSIGNMENT OF ERROR NO. 3:

THE TRIAL COURT ERRED BY MODIFYING THE STATU-
TORILY REQUIRED LANGUAGE IN THE JURY INSTRUC-
TIONS REGARDING ACCOMPLICE TESTIMONY BY RE-
MOVING THE LANGUAGE "GRAVE SUSPICION."

ASSIGNMENT OF ERROR NO. 4:

THE TRIAL COURT ERRED BY OVERRULING APPEL-
LANT'S CRIM. R. 29 MOTION FOR JUDGMENT OF
No. 12AP-1003 4

ACQUITTAL, AND THEREBY DEPRIVED APPELLANT OF
DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH
AND FOURTEENTH AMENDMENT TO THE UNITED
STATES CONSTITUTION AND COMPARABLE PROVI-
SIONS OF THE OHIO CONSTITUTION.

ASSIGNMENT OF ERROR NO. 5:

THE TRIAL COURT ERRED BY FINDING APPELLANT
GUILTY AND THEREBY DEPRIVED APPELLANT OF DUE
PROCESS OF LAW AS GUARANTEED BY PROVISIONS OF
THE OHIO CONSTITUTION BECAUSE THE VERDICT OF
GUILTY WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.

III. Analysis
A. Alleged Error of Precluding Testimony—Evid.R. 613(B)
{¶ 8} In his first assignment of error, appellant alleges that the trial court erred in
limiting examination of Grove City police detective Matt Ryan ("Detective Ryan"), who
appellant had called as a defense witness. Detective Ryan had interviewed both Teague
and appellant on the night of their arrest. Appellant argues that the trial court failed to
correctly apply Evid.R. 613(B), which allows extrinsic evidence of prior inconsistent
statements under certain circumstances. He further contends that the court denied him
his constitutional right to confront witnesses against him and his right to present a full
defense.
{¶ 9} Appellant supports his first assignment of error by positing that Teague
made several statements and allegations during the police interview on the night of the
arrest that were false or later contradicted by Teague's own statements. Appellant
contends that he should have been permitted to inquire into those contradictions and
inconsistent statements through questioning of Detective Ryan as to what Teague had
said in the interview and that the trial court erred by refusing that inquiry.
{¶ 10} The court did not, however, disallow any specific questions asked of
Detective Ryan. That is, appellant has not identified any questions asked of Detective
Ryan that the court refused to allow him to answer. Nor did appellant proffer any specific
questions that defense counsel would have asked had she been permitted.
No. 12AP-1003 5

{¶ 11} Appellant does, however, reference the following discussion that occurred
out of the presence of the jury after a break in Detective Ryan's testimony:
THE COURT: At sidebar during Detective Ryan's testimony,
we had a discussion about how much contradiction of
Teague's testimony was going to be permitted using the
police officer or his records, and I felt that it was collateral
impeachment and was improper. * * * [T]here [were] a lot of
additional oral questions that [Detective Ryan] answered
about, well, wasn't Teague contradictory about this or did he
change his story about that. * * *

I did allow questions about his pitch to law enforcement for a
chance to testify about drugs, and I think that was over [the
state's] objection, if I remember correctly. * * *

So those are my rulings. If either side wants to put anything
more on the record to protect the record.

[DEFENSE COUNSEL]: I believe that I should have been
allowed to explore the contradictions about Mr. Teague—
statements he made. Mr Teague had already testified. I was
able to cross-examine him, and when I cross-examined him,
I confronted him with prior inconsistent statements. * * *

* * * I should have * * * either been able to * * * ask this
officer, since he was the one who talked to [Teague] and had
the personal knowledge, or actually put on Teague's
statement to show the prior inconsistent statements, and I
was denied that opportunity.

***

[THE STATE'S COUNSEL]: Judge, quite honestly, I'm not
sure which statement she's talking about since Mr. Teague
was on the stand for the better part of maybe 45 minutes to
an hour.

***

THE COURT: * * * I think the principal inconsistency, as I
understood it, was explored with Teague here in court in
front of the jury, and that was this question about who the
No. 12AP-1003 6

driver was that he entrusted his black SUV to or to his wife's
black SUV.1

(Tr. Vol. II, 64-67.)
{¶ 12} Following this exchange, the jury returned, and the court asked defense
counsel if appellant wished to introduce additional defense evidence. Defense counsel
responded "no," and the defense rested.
{¶ 13} The record thus demonstrates that the court ruled generally that further
inquiry of Detective Ryan concerning Teague's statements after arrest would, if made, be
deemed inadmissible collateral impeachment. Appellant did not, however, ask Detective
Ryan any specific questions concerning Teague's allegedly prior inconsistent statements
that the court disallowed, nor did defense counsel proffer any specific questions that she
wanted Detective Ryan to answer. Appellant has, in a strict sense, therefore failed to
demonstrate that the trial court excluded testimony that it should have allowed. Accord
State v. Adams, 10th Dist. No. 12AP-83, 2012-Ohio-5088, ¶ 40 (failure to actually
attempt impeachment of witnesses through extrinsic evidence of prior inconsistent
statements, i.e., prior videotaped statements of witnesses, precluded a finding that the
trial court had abused its discretion in applying Evid.R. 613(B)).
{¶ 14} Moreover, even if we generously construe the record in favor of appellant, it
is apparent that questioning of Detective Ryan to demonstrate an inconsistency between
Teague's trial testimony and his statements made on the night of the arrest does not fall
within the scope of Evid.R. 613(B). That rule provides:
Extrinsic evidence of a prior inconsistent statement by a
witness is admissible if both of the following apply:

(1) If the statement is offered solely for the purpose of
impeaching the witness, the witness is afforded a prior
opportunity to explain or deny the statement and the
opposite party is afforded an opportunity to interrogate the

1
Defense counsel asked Detective Ryan to identify the individual Teague had initially said dropped him off at
the Cracker Barrel. Detective Ryan said Teague had said on the night of the arrest that appellant dropped
him off. Detective Ryan further testified that he was surprised when he first saw a surveillance video from
the Cracker Barrel that Teague appeared to first run to a black SUV upon exiting the restaurant but that the
black vehicle left before Teague could get in. Detective Ryan had expected to see video of Teague running to
a red vehicle, consistent with the SUV involved in the police chase. Detective Ryan testified that Teague later
changed his story and abandoned his contention that appellant had dropped him off at the Cracker Barrel.
No. 12AP-1003 7

witness on the statement or the interests of justice otherwise
require;

(2) The subject matter of the statement is one of the
following:

(a) A fact that is of consequence to the determination of the
action other than the credibility of a witness;

(b) A fact that may be shown by extrinsic evidence
under Evid.R. 608(A), 609, 616(A), or 616(B);

(c) A fact that may be shown by extrinsic evidence under the
common law of impeachment if not in conflict with the Rules
of Evidence.

(Emphasis added.)
{¶ 15} Evid.R. 613(B), thus, allows introduction of extrinsic evidence of a prior
statement only after a proper foundation has been laid through direct or cross-
examination in which: " ' "(1) the witness [here Teague] is presented with the former
statement; (2) the witness is asked whether he made the statement; (3) the witness is
given an opportunity to admit, deny or explain the statement; and (4) the opposing
party is given an opportunity to interrogate the witness on the inconsistent
statement." ' " State v. Kulasa, 10th Dist. No. 11AP-826, 2012-Ohio-6021, ¶ 12, quoting
State v. Mack, 73 Ohio St.3d 502, 514-15 (1995), quoting State v. Theuring, 46 Ohio
App.3d 152, 155 (1st Dist.1988). If a witness denies making a prior inconsistent
statement, a proper foundation has been laid, and if, in addition, the prior inconsistent
statement does not relate to a collateral matter, extrinsic evidence is admissible. Kulasa
at ¶ 19. If a witness admits having made the contradictory statements, however, then
extrinsic evidence of the prior inconsistent statement is not admissible. In re M.E.G., 10th
Dist. No. 06AP-1256, 2007-Ohio-4308; State v. Hill, 2d Dist. No. 20028, 2004-Ohio-
2048, ¶ 40. A trial court's ruling on an Evid.R. 613(B) issue, like other evidentiary
rulings, is reviewed for an abuse of discretion. Kulasa at ¶ 13, citing, inter alia, State v.
Reiner, 89 Ohio St.3d 342, 357-58 (2000).
{¶ 16} In order to determine whether appellant established a foundation under
Evid.R. 613(B)(1), we first look to the record to determine what prior statements Teague
No. 12AP-1003 8

was "afforded a prior opportunity to explain or deny." Teague testified that he was taken
to the Cracker Barrel in a black SUV being driven by an individual whose street name was
"Drac." He acknowledged that he had stated in his initial police interview that appellant
had dropped him off at the Cracker Barrel and that his prior statement "was not true." (Tr.
Vol. I, 148.) Accordingly, Teague himself acknowledged that he had made a statement on
the night of his arrest that was inconsistent with his trial testimony, thereby himself
admitting facts that impugned his credibility.
{¶ 17} In their briefs in this court, the parties have presented contrasting
arguments concerning the legal effect in this Evid.R. 613(B)(1) analysis of Teague's
inability at trial to remember whether he had made certain other statements to Detective
Ryan after his arrest. Teague did not remember whether he had told the detective that
appellant "was one of the biggest [drug] dealers in Columbus" (Tr. Vol. I, 156), but did
remember telling the detective that appellant was a "big dealer." Teague did not
remember whether he had referred to appellant as "Jared," or whether he had told the
officer that he did not know appellant's last name. Moreover, Teague did not remember
whether he had told the detective that he was being honest with the detective during the
interview.
{¶ 18} The parties have addressed Teague's memory issues in the context of the
question of whether appellant laid a proper foundation for admission of extrinsic
evidence. Appellant contends that a witness's profession that he "can't remember"
making allegedly inconsistent prior statements satisfies the foundational requirement of
Evid.R. 613(B)(1) that a proper foundation must be established in order to allow extrinsic
evidence. Indeed, the Courts of Appeals for the Second and Fifth Districts have held that
the required foundation is established where a witness denies an ability to remember
whether he or she previously made a prior statement. State v. Reed, 155 Ohio App.3d
435, 2003-Ohio-6536 (2d Dist.), ¶ 30 ("if the witness says he cannot remember the prior
statement, 'a lack of recollection is treated the same as a denial, and use of extrinsic
impeachment evidence is then permitted.' "). Accord State v. Allen, 5th Dist. No.
2012CA00196, 2013-Ohio-3715, ¶ 6-12. See also State v. Prysock, 10th Dist. No. 86AP-
492 (July 16, 1987) (testimony that witness could not remember if he made a prior
statement established foundation for impeachment through extrinsic evidence). Compare
No. 12AP-1003 9

State v. Crawford, 10th Dist. No. 85AP-324 (Feb. 6, 1986) (foundation for introduction of
audiotape not laid where, inter alia, witness did not remember what she had told officer,
or chose to ignore what she said). But, in any event satisfying the foundation requirement
of Evid.R. 613(B)(1) does not address the second requirement of the rule contained in
Evid.R. 613(B)(2).
{¶ 19} Evid.R. 613(B) is explicit that extrinsic evidence is admissible to impeach
credibility only if a foundation is laid and also that the subject matter of an alleged prior
inconsistent statement falls within the scope of either Evid.R. 613(B)(2)(a), (b) or (c)
("[e]xtrinsic evidence of a prior inconsistent statement by a witness is admissible if
both" Evid. R. 613(B)(1) and B(2) apply. (Emphasis sic.)). Accord, Kulasa, ¶ 11
(observing that extrinsic evidence of a witness's prior inconsistent statements is
admissible for purposes of impeaching if both Evid. R. 613(B)(1) and (2) are present);
Reed. Even assuming, arguendo, that Teague made statements on the night of his arrest
that were inconsistent with his testimony at trial, that circumstance does not require a
conclusion that the court had an obligation to allow the defense to question Detective
Ryan to illustrate those inconsistencies. This is because, even where the required
foundation has been laid, extrinsic evidence is admissible to impugn a witness's
credibility through demonstration of prior inconsistent statements only when at least
one of the additional conditions established by Evid.R. 613(B)(2) is met.
{¶ 20} Accordingly, extrinsic evidence of Teague's statements on the night of his
arrest was admissible under Evid.R. 613 only if the subject matter of Teague's alleged
inconsistent statements on that night concerned either (1) a "fact that is of consequence to
the determination of the action other than the credibility of a witness," (Evid.R.
613(B)(2)(a)); (2) a fact described in Evid.R. 608(A), 609, 616(A), or 616(B) (Evid.R.
613(B)(2)(b)); or (3) "[a] fact that may be shown by extrinsic evidence under the common
law of impeachment if not in conflict with the Rules of Evidence." (Evid.R. 613(B)(2)(c).)
{¶ 21} In this case, none of Teague's prior statements for which defense counsel
laid a foundation pursuant to Evid.R. 613(B)(1) falls into a category listed in 613(B)(2).
1. Evid.R. 613(B)(2)(a)
{¶ 22} None of the questions asked by defense counsel that Teague failed to answer
due to his professed inability to remember related to a fact that was of consequence to the
No. 12AP-1003 10

determination of the action as opposed to a fact that only impugned Teague's credibility.
The questions did not concern a fact of consequence as to the criminal counts of which
appellant was found guilty, i.e., whether appellant was guilty of failure to comply and
receiving stolen property. It is of no consequence, except as to Teague's credibility,
whether Teague told Detective Ryan that appellant was one of the biggest drug dealers in
Columbus as opposed to simply being a drug dealer, or whether he had told the detective
both appellant's first and last names.
{¶ 23} Accordingly, the prior statements for which defense counsel in this case laid
a foundation for admission of possible contradictory extrinsic evidence do not fall within
Evid.R. 613(B)(2)(b).
2. Evid.R. 613(B)(2)(b)
{¶ 24} Nor do any of Teague's prior statements for which appellant laid a
foundation for introduction of contradictory extrinsic evidence fall into any of the
categories listed in Evid.R. 613(B)(2)(b), i.e., Evid.R. 608(A) (involving opinion or
reputation evidence concerning the witness's character or reputation), Evid.R. 609
(evidence of conviction of a crime), Evid.R. 616(A) (bias, prejudice, interest or motive to
misrepresent); or Evid.R. 616(B) (sensory or mental defects impairing capacity, ability, or
opportunity to remember).
{¶ 25} As to the latter category, Evid.R. 616(B), i.e., extrinsic evidence to
demonstrate sensory or mental defects, appellant asserts that Teague repeatedly indicated
during his cross-examination that the reason why he could not remember whether he had
made these statements or answer other questions concerning what he had said during the
initial police interview was because he was "dope sick" on the night of the arrest as a result
of drug withdrawal. But Teague never denied that his mental capacity was impaired on
the night of his arrest—he readily admitted it. Accordingly, Teague's acknowledgement
that he was suffering from drug withdrawal does not implicate Evid.R. 613(B). Teague did
not tell Detective Ryan on the night of his arrest that he was, at that time, fully competent.
Instead, appellant's statements that night and later at trial were entirely consistent. Both
times he stated that, on the day of the robbery, he was suffering the effects of drug
withdrawal.
3. Evid.R. 613(B)(2)(c)
No. 12AP-1003 11

Appellant additionally argues the common law permitted impeachment when
there was "specific contradiction," within the purview of Evid.R. 613(B)(2)(c), citing State
v. Forbes, 12th Dist. No. CA2007-01-001, 2007-Ohio-6412. But appellant has not
demonstrated, nor proffered, the existence of a specific contradiction between Teague's
testimony at trial and his prior statements made to Detective Ryan.
{¶ 26} Appellant further argues that he should have been permitted to question
Detective Ryan concerning Teague's statements on the night of the arrest in order to
impeach Teague's testimony at trial that he did not remember everything he said on the
night of his arrest. But whether Teague was untruthful in denying an ability to remember
his earlier statements could not have been established by eliciting testimony from
Detective Ryan as to Teague's statements made on the night of the arrest. Nothing he said
that night (which is the evidence that defense counsel argues the court erroneously
excluded) would have tended to either prove or disprove whether Teague actually
remembered those statements at the time of trial.
B. Alleged Error in Precluding Testimony—Constitutional Violations
{¶ 27} Appellant further argues in his first assignment of error that appellant was
deprived of his right to present relevant evidence as guaranteed by the Sixth and
Fourteenth Amendments to the U.S. Constitution, and Ohio C0nstitution, Article I,
Section 10. Appellant contends that the trial court's ruling precluding the admission of
extrinsic evidence violated appellant's constitutional right to confront witnesses and
present a full and complete defense. But appellant also acknowledges that the Sixth
Amendment right to present relevant testimony does not preclude the exclusion of
testimony that is " 'incompetent, privileged, or otherwise inadmissible under the standard
rules of evidence.' " (Appellant's brief, 6, quoting Taylor v. Illinois, 484 U.S. 400 (1988).
{¶ 28} As discussed, supra, the trial court did not err in applying Evid.R. 613 in this
case to limit introduction of questioning of Detective Ryan concerning Teague's
statements on the night of the arrest. Accordingly, no constitutional violation occurred, as
the testimony appellant was precluded from eliciting was "inadmissible under the
standard rules of evidence." Appellant's counsel was not limited in his cross-examination
of Teague in a manner inconsistent with the Ohio Rules of Evidence. Nor was appellant
deprived of the right to physically face and cross-examine Teague, who was a witness
No. 12AP-1003 12

against him. Appellant's arguments that he was deprived of constitutional rights lacks
merit.
{¶ 29} We therefore overrule appellant's first assignment of error.
C. Alleged Error in Jury Instructions―Duress and Necessity
{¶ 30} In his second assignment of error, appellant argues that the evidence
supported an instruction on the affirmative defense of duress and necessity. Appellant
suggests that the evidence supported the theory that the reason appellant did not stop his
vehicle after attempting to escape from police pursuit, and instead engaged in a high-
speed escape attempt, was that he was under duress from Teague.
{¶ 31} We note that trial counsel did not object to the instruction and thereby
waived any objection he may have had relative to the court's determination not to instruct
on duress and necessity absent demonstration of plain error. "Plain error does not exist
unless it can be said that but for the error, the outcome of the proceedings would clearly
have been otherwise." See State v. Todd, 10th Dist. No. 06AP-1208, 2007-Ohio-4307,
¶ 22.
{¶ 32} Further, even had appellant timely objected to the instruction, appellant's
substantive arguments lack merit. The legal principles underlying the defense of duress
are, as follows:
The defense of duress is an affirmative defense. * * * A trial
court should give a requested jury instruction on an
affirmative defense when the defendant has introduced
sufficient evidence, which, if believed, would raise a question
in the minds of reasonable men concerning the existence of
such a defense. * * * A trial court may only instruct the jury on
issues raised by the indictment and evidence. * * *

When determining whether a trial court erred in its jury
instructions, an appellate court reviews the instruction as a
whole. * * * A trial court has broad discretion in instructing
the jury. * * * An abuse of discretion connotes more than an
error of law or judgment; it implies that the court's attitude is
unreasonable, arbitrary or unconscionable. * * *

"Duress consists of any conduct which overpowers a person's
will and coerces or constrains his performance of an act which
he otherwise would not have performed. Consequently, one
who, under the pressure of a threat from another person,
No. 12AP-1003 13

commits what would otherwise be a crime may, under certain
circumstances, be justified in committing the act and not be
guilty of the crime." * * * The defense of duress requires a
sense of immediate, imminent death or serious bodily injury if
the actor does not commit the act as instructed. * * * The force
that is used to compel the defendant's conduct must remain
constant, controlling the will of the unwilling actor during the
entire time he commits the act, and must be of such a nature
that the actor cannot safely withdraw. * * *

***

* * * [T]he affirmative defense of duress is available only in
rare circumstances * * *."

(Citations omitted.) State v. Thompson, 10th Dist. No. 08AP-956, 2009-Ohio-3552, ¶ 26-
28, 31,
{¶ 33} The evidence presented at trial does not support appellant's position that
the trial court should have instructed the jury on duress or necessity. No evidence existed
that appellant was threatened by Teague or that appellant's own will was overpowered.
There was no evidence that Teague possessed a gun or other weapon or otherwise felt
threatened by Teague. To the contrary, Teague was physically separated from appellant
as he had entered the backseat of appellant's vehicle on the passenger's side, and
appellant was in the driver's seat and no weapon was found in appellant's vehicle at the
end of the chase. Moreover, the state introduced uncontradicted evidence that appellant
initially began to exit from the SUV at the gas station but, instead, reentered it, thereby
disregarding the instruction of a police officer to stop and get on the ground. The
evidence does not support an inference that appellant attempted to escape in the car
because he was coerced to do so by a threat of personal harm made by Teague. The trial
court did not err in refusing to instruct the jury on the defense of duress.
{¶ 34} Ohio law recognizes a necessity defense where the following elements are
present:
"* * * (1) [T]he harm must be committed under the pressure
of physical or natural force, rather than human force; (2) the
harm sought to be avoided is greater than, or at least equal to
that sought to be prevented by the law defining the offense
charged; (3) the actor reasonably believes at the moment that
No. 12AP-1003 14

his act is necessary and is designed to avoid the greater harm;
(4) the actor must be without fault in bringing about the
situation; and (5) the harm threatened must be imminent,
leaving no alternative by which to avoid the greater harm.
* * *"

Columbus v. Spingola, 144 Ohio App.3d 76, 83 (10th Dist.2001), quoting State v. Prince,
71 Ohio App.3d 694 (4th Dist.1991).
{¶ 35} No physical or natural force pressured appellant to engage in the conduct he
did following the Cracker Barrel robbery, nor did any evidence exist to support the
remaining elements of a necessity defense.
{¶ 36} Accordingly, the trial court did not err at all in refusing to instruct the jury
on the affirmative defenses of duress and necessity as the evidence did not support either
of those defenses. Thus, the court did not commit plain error. We, therefore, overrule
appellant's second assignment of error.
D. Alleged Error in Jury Instructions―Accomplice Testimony
{¶ 37} In his third assignment of error, appellant contends that the trial court
erred in instructing the jury on complicity.
{¶ 38} R.C. 2923.03(D) provides:
If an alleged accomplice of the defendant testifies against the
defendant in a case in which the defendant is charged with
complicity in the commission of or an attempt to commit an
offense, an attempt to commit an offense, or an offense, the
court, when it charges the jury, shall state substantially the
following:

"The testimony of an accomplice does not become
inadmissible because of his complicity, moral turpitude, or
self-interest, but the admitted or claimed complicity of a
witness may affect his credibility and make his testimony
subject to grave suspicion, and require that it be weighed
with great caution.

It is for you, as jurors, in the light of all the facts presented to
you from the witness stand, to evaluate such testimony and
to determine its quality and worth or its lack of quality and
worth."

(Emphasis added.)
No. 12AP-1003 15

{¶ 39} The trial court instructed the jury in this case as follows:
You've heard testimony from Tyson Teague, who pleaded
guilty to the same robbery of the Cracker Barrel that is
charged in this case. Teague claims that Mr. Ferguson was
an accomplice. An "accomplice" is one who purposely or
knowingly assists or joins another person in the commission
of a crime or an attempted crime.

* * * In evaluating the evidence from Mr. Teague, you decide
what weight to give Mr. Teague's testimony having in mind
all of the facts you learned in the trial.

Those facts include evidence of his prior felony convictions,
and any evidence of Teague's hope for leniency at his own
sentencing, or in regard to his other pending charges from
April 2012 which are yet to be resolved.

Testimony by someone claiming a person is an accomplice
in crime should, in short, be weighed with great caution.

(Emphasis added.) (Tr. Vol. III, 88-89.)
{¶ 40} The trial court clearly did not recite verbatim the text included in R.C.
2923.03(D). It did advise the jury that Teague's testimony should be weighed "with great
caution," but it did not advise the jury that Teague's alleged complicity "may affect his
credibility and make his testimony subject to grave suspicion," as the statute requires.
{¶ 41} The record reflects that appellant requested a jury instruction that
"testimony of a person who you find to be an accomplice should be viewed with grave
suspicion and weighed with great caution." Prior to giving the jury instructions, the trial
court informed counsel that he would not instruct the jury to view Teague's testimony
"with grave suspicion" but would only charge the jury to weigh Teague's testimony "with
great caution." The court stated its belief that use of "the words 'grave suspicion,' puts the
court's thumb on the evidence and it goes too far." (Tr. Vol. III, 12.) Defense counsel
objected to the omission of the "grave suspicion" language, observing that Ohio Jury
Instructions ("OJI") recommended use of both phrases, and that OJI referenced R.C.
2923.01(H) and 2923.03(D) as the basis for such an instruction.
{¶ 42} We have previously considered R.C. 2923.03(D) and observed that " 'R.C.
2923.03(D) explicitly permits substantial compliance with the accomplice testimony
No. 12AP-1003 16

instruction." State v. Sutton, 10th Dist. No. 06AP-708, 2007-Ohio-3792, ¶ 61, quoting
State v. Fitzgerald, 11th Dist. No. 2003-L-084, 2004-Ohio-6173, ¶ 31. We further
observed that "a trial court does not commit error solely because it does not literally
comply with R.C. 2923.03(D)," and that "a trial court substantially complies with R.C.
2923.03(D) by alerting the jury that accomplice testimony should be viewed with 'grave
suspicion' and 'weighed with great caution.' " Id. We described as "key phrases" in the
instruction that the jury should view accomplice testimony with "grave suspicion" and
weigh that testimony "with great caution." Id. at ¶ 62. The "legislative purpose of R.C.
2923.03(D) is to alert juries of the potentially self-serving motivation behind an
accomplices' testimony in a strong and uniform manner." State v. Woodson, 10th Dist.
No. 03AP-736, 2004-Ohio-5713, ¶ 17. "In order to implement this purpose, trial courts
must comply with R.C. 2923.03(D) and 'are not in a position to ignore [the statutory]
directive." Id., quoting State v. Crawford, 10th Dist. No. 01AP-1428, 2003-Ohio-1447.
{¶ 43} In this case, the state had charged appellant with robbery by having aided
and abetted Teague; i.e., it charged appellant with being Teague's accomplice.
Accordingly, the provisions of R.C. 2923.03(D) relative to accomplice testimony applied,
and that statute mandated that the trial court include the "grave suspicion" advisory stated
in the statute. The court lacked authority to omit that phrase.
{¶ 44} We, therefore, find that the trial court erred by not substantially complying
with R.C. 2923.03(D). That error, however, is not cause for summary reversal of the
conviction. Rather, we find the error to be harmless pursuant to Crim.R. 52(A).
Appellant's argument arguably might have had merit had the jury returned verdicts
finding appellant guilty of robbery based on appellant having been Teague's accomplice.
But it returned guilty verdicts only as to the counts charging appellant with failure to
comply and receiving stolen property. The prosecution's evidence elicited through the
testimony of other state witnesses, notably police officers involved in the chase and
appellant's wife concerning the theft of her SUV, overwhelmingly supported appellant's
guilt of those counts independently of Teague's testimony.
{¶ 45} Accordingly, we overrule appellant's third assignment of error.
No. 12AP-1003 17

E. Denial of Crim.R. 29 Motion for Acquittal
{¶ 46} In his fourth assignment of error, appellant contends the trial court erred in
denying his Crim.R. 29 motion for acquittal.
{¶ 47} A Crim.R. 29(A) motion for acquittal tests the sufficiency of the evidence.
State v. Reddy, 10th Dist. No. 09AP-868, 2010-Ohio-3892, ¶ 12, citing State v. Knipp, 4th
Dist. No. 06CA641, 2006-Ohio-4704, ¶ 11. In determining whether the trial court erred in
denying appellant's Crim.R. 29 motion for acquittal, we apply the same standard
applicable to a sufficiency-of-the-evidence review. Id., citing State v. Darrington, 10th
Dist. No. 06AP-160, 2006-Ohio-5042, ¶ 15.
{¶ 48} Our analysis is governed by well-developed law:
Sufficiency of the evidence is a legal standard that tests
whether the evidence is legally adequate to support a
verdict. * * * Whether the evidence is legally sufficient to
support a verdict is a question of law, not fact. * * * In
determining whether the evidence is legally sufficient to
support a conviction, "[t]he 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." * * * "A verdict will not be disturbed unless, after
viewing the evidence in a light most favorable to the
prosecution, it is apparent that reasonable minds could not
reach the conclusion reached by the trier of fact." * * *

(Citations omitted.) State v. Ingram, 10th Dist. No. 11AP-1124, 2012-Ohio-4075, ¶ 18-19.
{¶ 49} In reviewing the sufficiency of the evidence, a court must not evaluate the
credibility of witnesses but, rather, must assume that the state's witnesses testified
truthfully and determine if that testimony satisfies each element of the crime. Id.,
citing State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, ¶ 79-80, and State v.
Bankston, 10th Dist. No. 08AP-668, 2009-Ohio-754, ¶ 4.
{¶ 50} We turn to examination of the testimony offered by the state's witnesses to
determine whether the state produced sufficient evidence to support a jury's finding of the
existence of the elements of failure to comply with an order or signal of a police officer, in
violation of R.C. 2921.331, and receiving stolen property, in violation of R.C. 2913.51.
{¶ 51} R.C. 2921.331 provides:
No. 12AP-1003 18

(B) No person shall operate a motor vehicle so as willfully to
elude or flee a police officer after receiving a visible or
audible signal from a police officer to bring the person's
motor vehicle to a stop.

***

[C](5)(a) A violation of division (B) of this section is a felony
of the third degree if the jury or judge as trier of fact finds any
of the following by proof beyond a reasonable doubt:

***

(ii) The operation of the motor vehicle by the offender caused
a substantial risk of serious physical harm to persons or
property.

{¶ 52} This court has recognized that a police officer makes a visible or audible
signal to stop by activating his flashing lights and sirens when following a vehicle for
purposes of R.C. 2921.331(B). State v. Garrard, 170 Ohio App.3d 487, 2007-Ohio-1244,
¶ 29 (10th Dist.). In Garrard, we recognized that violation of R.C. 2921.331(B) was
established by proof that an individual failed to stop his vehicle after a police officer
behind him engaged his lights and sirens and, instead, continued to speed through a
commercial/residential area at a speed well in excess of the speed limit. That evidence,
moreover, satisfied the element of "willfully" eluding a police officer.
{¶ 53} In the case before us, the state introduced evidence from Grove City police
officers that mirrors that presented in Garrard. In contrast, the defense presented no
evidence to support the conclusion that appellant did not trigger a high-speed police chase
putting numerous people at risk of harm or that he was unaware that the officers were
signaling him to stop.
{¶ 54} We, therefore, find that, viewing the evidence described above in a light
most favorable to the prosecution, the jury could rationally have found that the state
proved beyond a reasonable doubt the essential elements of failure to comply.
{¶ 55} The elements of the crime of receiving stolen property are stated in R.C.
2913.51(A):
No person shall receive, retain, or dispose of property of
another knowing or having reasonable cause to believe that
No. 12AP-1003 19

the property has been obtained through commission of a
theft offense.
{¶ 56} The law is established that, "[a]lthough receiving [stolen property] is
technically not an included offense of theft, it is, under R.C. 2941.25, an 'allied offense of
similar import.' An accused may be tried for both but may be convicted and sentenced for
only one." Maumee v. Geiger, 45 Ohio St.2d 238, 244 (1976). Moreover, this court has
recognized that an accused may be charged with both robbery of an automobile and
receiving stolen property based on retaining that same automobile, although conviction of
one of these crimes precludes later prosecution of the other. State v. DeLong, 70 Ohio
App.3d 402 (10th Dist.1990). Where the state is able to establish by substantial proof that
the theft of a vehicle was committed by the same individual charged with receiving stolen
property, it follows that the individual possessed the requisite "knowledge" that the
vehicle in which he was arrested had been obtained through the commission of a theft
offense. State v. Black, 181 Ohio App.3d 821, 2009-Ohio-1629, ¶ 18 (2d Dist.).
{¶ 57} The testimony of appellant's estranged wife was sufficient to support a jury
finding that appellant received her SUV through theft by taking the keys to the SUV from
her purse without her permission and driving it away. " '[O]ne who commits a theft
necessarily receives the property he steals * * *.' " Id. at ¶ 18, quoting State v.
Stevenson, 181 Ohio App.3d 292, 2009-Ohio-901, ¶ 22 (2d Dist.). There is no evidence to
suggest that appellant did not have reasonable cause to believe that he had received the
SUV through commission of a theft offense.
{¶ 58} We therefore find that, viewing the evidence described above in a light most
favorable to the prosecution, the jury could rationally have found that the state proved
beyond a reasonable doubt the essential elements of the crime of receiving stolen
property.
{¶ 59} We overrule appellant's fourth assignment of error.
F. Manifest Weight of the Evidence
{¶ 60} In his fifth assignment of error, appellant contends that his convictions were
against the manifest weight of the evidence. We begin by considering the governing legal
standards for a manifest-weight challenge:
No. 12AP-1003 20

"While sufficiency of the evidence is a test of adequacy
regarding whether the evidence is legally sufficient to
support the verdict as a matter of law, the criminal manifest
weight of the evidence standard addresses the evidence's
effect of inducing belief." * * * "When a court of appeals
reverses a judgment of a trial court on the basis that the
verdict is against the weight of the evidence, the appellate
court sits as a 'thirteenth juror' and disagrees with the
factfinder's resolution of the conflicting testimony." * * *
" 'The court, reviewing 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 jury clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.' " * * * This discretionary
authority " 'should be exercised only in the exceptional case
in which the evidence weighs heavily against the
conviction.' " * * *

(Citations omitted.) State v. McClendon, 10th Dist. No. 11AP-354, 2011-Ohio-6235, ¶ 7.
{¶ 61} In light of the evidence discussed above, as well as the record in its entirety,
and applying the standard stated above, we do not find that the jury clearly lost its way in
resolving conflicts and assessing the credibility of witnesses and created a manifest
miscarriage of justice in convicting appellant of both failure to comply and receiving
stolen property. Nor do we find that the jury lost its way or created a manifest
miscarriage of justice in finding appellant guilty of these offenses.
{¶ 62} We therefore overrule appellant's fifth assignment of error positing that
appellant's conviction should be reversed as being against the manifest weight of the
evidence.
IV. Conclusion
{¶ 63} For the foregoing reasons, we overrule all five of appellant's assignments of
error and affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN and CONNOR, JJ., concur.
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