[Cite as State v. Moore, 2019-Ohio-1804.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :   Appellate Case No. 28094
                                                  :
 v.                                               :   Trial Court Case No. 2018-CR-1524
                                                  :
 TYRONE MOORE                                     :   (Criminal Appeal from
                                                  :   Common Pleas Court)
         Defendant-Appellant                      :
                                                  :

                                             ...........

                                            OPINION

                             Rendered on the 10th day of May, 2019.

                                             ...........

MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
      Attorney for Plaintiff-Appellee

ANDREW C. SCHLUETER, Atty. Reg. No. 0086701, P.O. Box 96, Xenia, Ohio 45385
    Attorney for Defendant-Appellant

                                            .............



DONOVAN, J.
                                                                                       -2-




       {¶ 1} Defendant-appellant Tyrone Moore appeals his conviction for one count of

failure to comply with the order or signal of a police officer (serious physical

harm/substantial risk), in violation of R.C. 2921.331(B) and (C)(5), a felony of the third

degree; and one count of obstructing official business, in violation of R.C. 2921.31(A), a

misdemeanor of the second degree. Moore filed a timely notice of appeal with this Court

on August 19, 2018.

       {¶ 2} The incident which forms the basis for the Moore’s conviction occurred on

April 17, 2018, at approximately 5:45 p.m. when Dayton Police Department Detectives

Melissa Boyes and Elizabeth Whitney observed a tall heavyset black male with

dreadlocks exit a residence located near North Cherrywood and Radio Roads in Dayton,

Ohio. After leaving the residence, the unidentified male got into a black Chevy Tahoe

that was parked nearby and drove away. Detective Whitney testified that as the Tahoe

passed her vehicle, she was able to observe that the driver was the same tall heavyset

black male that she had just observed leave the residence and enter the Tahoe.

       {¶ 3} Detective Boyes and Whitney were acting in an undercover capacity on the

day in question. Therefore, the detectives were driving an unmarked police vehicle and

wearing civilian dress. Detective Boyes observed that the Tahoe’s windows were tinted

very dark so as to constitute a traffic violation. In order to maintain her and Detective

Whitney’s undercover status, Detective Boyes contacted Dayton Police Officers Eric

Miller and Kevin Johnson who were patrolling nearby in a marked police cruiser, informed

them of the Tahoe’s probable window tint violation, and advised the officers to initiate a

traffic stop of the vehicle.
                                                                                        -3-


       {¶ 4} Officers Miller and Johnson observed the Tahoe being driven near 261 North

Garland Street. Officer Miller pulled his cruiser behind the Tahoe and activated his

overhead lights. Officer Johnson exited the cruiser and approached the Tahoe on the

passenger side. Before Officer Johnson could reach the vehicle and speak with its

occupants, the driver fled south on North Garland Street at a high rate of speed.

Pursuant to department policy regarding densely populated residential areas, Officers

Miller and Johnson did not pursue the fleeing vehicle. Neither Officer Miller nor Officer

Johnson were able to identify the driver of the vehicle.

       {¶ 5} Thereafter, at the intersection of North Garland Street and East Third Street,

the Tahoe collided with a truck driven by Michael Newbauer. Detective Boyes witnessed

the accident from her unmarked police vehicle. As a result of the collision, Newbauer

sustained facial injuries, a fractured sternum, spinal injuries, and a broken rib. Newbauer

was unable to identify the driver of the vehicle.

       {¶ 6} Detective Boyes testified that immediately after the accident, she observed

an individual exit the vehicle from the front passenger side and run away. Detective

Boyes testified that the individual was black, of medium build, had braided hair, wearing

dark clothing and a tan jacket with rhinestones on the back. Detective Boyes testified

that she quickly apprehended the individual, who was later identified as Ebony Owensby.

Detective Boyes testified that Owensby appeared dazed and confused and stated that

she “did not know what was going on and * * * that she was just riding in the car.”

       {¶ 7} Detective Whitney testified that she observed a heavier-set black male with

dreadlocks exit from the driver’s door of the Tahoe and run away. Detective Whitney

further described the individual as tall, wearing dark clothes, a hat, and a tan jacket.
                                                                                          -4-


Detective Whitney testified that individual was the same man she observed earlier who

walked out of the residence located near North Cherrywood and Radio Roads, entered

the Tahoe, and drove past her and Detective Boyes. Shortly thereafter, an individual,

later identified as Moore and matching this description, was apprehended nearby by

Detective Lucas Rose. Detective Rose testified that Moore was wearing dark clothing,

a hat, was approximately six feet tall, and had a heavy build. Owensby and Moore were

arrested and taken into custody.

       {¶ 8} On May 15, 2018, Moore was indicted for one count of failure to comply with

the order or signal of a police officer and one count of obstructing official business. At

his arraignment on May 17, 2018, Moore stood mute, and the trial court entered a plea of

not guilty on his behalf.

       {¶ 9} After a three-day jury trial that ended on July 19, 2018, Moore was found

guilty of both counts in the indictment. On August 7, 2018, Moore was sentenced to 30

months in prison for failure to comply with the order or signal of a police officer and to 90

days in jail for obstructing official business. The trial court ordered that the sentences be

served concurrently.

       {¶ 10} It is from this judgment that Moore now appeals.

       {¶ 11} Moore’s first assignment of error is as follows:

       APPELLANT’S CONVICTION FOR FAILURE TO COMPLY WITH THE

       ORDER OR SIGNAL OF A POLICE OFFICER WAS AGAINST THE

       MANIFEST WEIGHT OF THE EVIDENCE.

       {¶ 12} In his first assignment, Moore contends that his conviction for failure to

comply with the order or signal of a police officer was against the manifest weight of the
                                                                                          -5-


evidence. Specifically, Moore argues that his conviction was not supported by the weight

of the evidence because Detective Whitney’s testimony identifying him as the driver of

the Tahoe was not credible.

       {¶ 13} “The manifest-weight-of-the-evidence standard of appellate review set forth

in State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997), applies in both criminal

and civil cases. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d

517, ¶ 17-23.” Mathews v. Mathews, 2d Dist. Clark No. 2012-CA-79, 2013-Ohio-2471,

¶ 9.

       {¶ 14} This court has stated that “a weight of the evidence argument challenges

the believability of the evidence and asks which of the competing inferences suggested

by the evidence is more believable or persuasive.” (Citations omitted). State v. Jones, 2d

Dist. Montgomery No. 25724, 2014-Ohio-2309, ¶ 8.             “When evaluating whether a

[judgment] is against the manifest weight of the evidence, the appellate court must review

the entire record, weigh the evidence and all reasonable inferences, consider witness

credibility, 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 conviction

must be reversed and a new trial ordered.’ ” Id., quoting Thompkins at 387.

       {¶ 15} Because the trier of fact sees and hears the witnesses at trial, we must

extend deference to the factfinder's decisions whether, and to what extent, to credit the

testimony of particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997

WL 476684 (Aug. 22, 1997). However, we extend less deference in weighing competing

inferences suggested by the evidence. Id.       The fact that the evidence is subject to

differing interpretations does not render the judgment against the manifest weight of the
                                                                                          -6-

evidence. State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 14. A

judgment should be reversed as being against the manifest weight of the evidence only

in exceptional circumstances. State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717

(1st Dist.1983).

       {¶ 16} As previously stated, Detective Whitney testified that, as the Tahoe passed

her unmarked vehicle, she was able to observe that the driver was the same tall heavyset

black male that she had just observed leave the residence and enter the Tahoe. After

the car accident with the Tahoe and Newbauer’s truck, she observed the same individual,

later identified as Moore, exit from the driver’s door of the Tahoe and run away.

Detective Whitney further described Moore as being tall, wearing dark clothes, a hat, and

a tan jacket. Shortly thereafter, an individual matching this description was apprehended

nearby by Detective Lucas Rose.          Corroborating Detective’s Whitney’s testimony,

Detective Rose testified that Moore was wearing dark clothing, a hat, was approximately

six feet tall, and had a heavy build.

       {¶ 17} Thus, having reviewed the record, we find no merit in Moore's manifest

weight challenge. It is well settled that evaluating witness credibility is primarily for the

trier of fact. State v. Brown, 2d Dist. Montgomery No. 27571, 2018-Ohio-3294; see also

State v. Benton, 2d Dist. Miami No. 2010-CA-27, 2012-Ohio-4080, ¶ 7. A trier of fact

does not lose its way and create a manifest miscarriage of justice if its resolution of

conflicting testimony is reasonable. Id.     Here, the jury quite reasonably could have

credited the State's evidence, which established that Moore was guilty of the offenses for

which he was convicted. Accordingly, the jury did not lose its way and create a manifest

miscarriage of justice in reaching a guilty verdict for failure to comply with the order or
                                                                                            -7-


signal of a police officer.

       {¶ 18} Moore’s first assignment of error is overruled.

       {¶ 19} Moore’s second and final assignment of error is as follows:

       THE TRIAL COURT DENIED APPELLANT DUE PROCESS OF LAW

       WHEN IT INTERFERED WITH HIS FUNDAMENTAL AND PERSONAL

       RIGHT TO TESTIFY IN HIS OWN DEFENSE.

       {¶ 20} In his second assignment, Moore argues that the trial court violated his due

process rights by interfering with his right to testify in his own defense when it conducted

an inquiry regarding whether he intended to testify at trial.

       {¶ 21} After the State rested its case, defense counsel stated that he had spoken

to Moore regarding whether he wanted to testify on his own behalf. Defense counsel

indicated that Moore had decided not to testify. Thereafter, the following exchange

occurred:

               Defense Counsel: For the record – * * * For the record, I would note

       that I conversed with my client about him testifying and he’s made the

       decision not to offer testimony in this case.

       ***

               Trial Court: One thing I do with every person in front of me for a trial

       is I directly inquire upon him or her whether or not it is your wish to testify or

       not testify, as that right is yours and yours alone. And so, with that, you’ve

       heard the statements of your attorney. You have heard my statements

       throughout the course of the trial and throughout different dockets in which

       I delineated your right to testify, to take the stand or not take the stand, as
                                                                                    -8-


our choice is. Either way, no matter what that choice is, that choice can

never be used against you. Do you understand that?

       Moore: Yes, sir.

       Q: Is it your wish to take the stand or not to take the stand today?

       A: I mean, well – yeah, I’ll testify.

       Q: Mr. Moore, what I’m asking is not – I’m not trying to convince you

to testify in any way.

       A: No, I want to prove my innocence.          I want to prove that I’m

innocent. That’s why I want to testify.

       Q: Mr. Moore, when I make these comments, it’s to determine that

it’s your free will and voluntary choice not to testify. You may wish to take

advice or counsel from [defense counsel] and I will note for the record that

that if you elect to testify, then your testimony will not only be subject to the

direct examination by your attorney, but also to any cross-examination by

the State’s attorneys. Do you understand?

       A: Yes.

       Q: All right. Why don’t you take a moment to discuss with your

counsel and we’ll return to the matter.

       A: Yes, sir.

***

       Q: All right. Mr. Moore, you’ve had an opportunity to converse with

your counsel?

       A: Yes, sir.
                                                                                              -9-


              Q: At this time, I’ll ask you again. Is it your wish to testify or not to

       testify?

              A: No, I do not want to testify.

              Q: I’m sorry.

              A: I do not want to testify.

              Q: All right, sir. Has anyone forced or threatened you to get you to

       make that opinion?

              A: No, sir.

              Q: Is that your free and voluntary choice?

              A: Yes, sir.

Tr. pp. 418-419, 425.

       {¶ 22} Moore argues that when he informed the trial court that he wanted to testify

in order to prove his innocence, the trial court should have immediately ceased any further

inquiries and allowed him to testify. By directing Moore to confer with his counsel about

whether to testify, Moore argues that the trial court unconstitutionally “hinder[ed] [his]

ability to present an affirmative case of innocence,” thereby denying him due process of

law.

       {¶ 23} In support of his argument that the trial court should not have conducted an

inquiry, Moore cites to State v. Bey, 85 Ohio St.3d 487, 709 N.E.2d 484 (1999). In Bey,

the Ohio Supreme Court rejected the claim that a trial court must inform a defendant of

his right to testify at trial. Id. at 499. Bey further held that a trial court is not required to

inquire whether the defendant's waiver of that right was done knowingly and intelligently.

Id. Bey added that such an inquiry might be harmful because it “ ‘places the judge
                                                                                        -10-

between the lawyer and his client and can produce confusion as well as delay.’ ” Id.,

quoting People v. Curtis, 681 P.2d 504, 519 (Colo.1984) (Erickson, C.J., concurring).

Bey also stated that such “questioning can lead into the judge's evaluation of the wisdom

of the defendant's decision, the substance of the testimony, or simply evoke a dramatic

change in a previously carefully considered trial strategy.” Id. However, “Bey does not

prohibit the court's questioning of a defendant.” State v. Powell, 132 Ohio St.3d 233, 971

N.E.2d 865, 2012-Ohio-2577, ¶ 100. Accordingly, Moore’s reliance on Bey is misplaced.

       {¶ 24} In the instant case, defense counsel had just informed the trial court that

Moore was not going to testify. Thereafter, when Moore indicated that he had changed

his mind and wanted to testify, it was not unreasonable for the trial court to ascertain

whether Moore was waiving his right not to testify in a knowing, voluntary, and intelligent

fashion. Furthermore, given Moore’s apparent last-minute change of heart regarding his

decision to testify on his own behalf, the trial court reasonably provided Moore with

additional time to confer with his counsel before proceeding. Other than informing Moore

that he would be subject to direct and cross-examination if he chose to testify, the trial

court avoided any attempt to counsel Moore or his attorney on how he should proceed.

Upon review, we conclude that the trial court did not violate Moore’s due process rights

when it conducted an inquiry regarding whether he intended to testify at trial.

       {¶ 25} Moore’s second assignment of error is overruled.

       {¶ 26} Both of Moore’s assignments of error having been overruled, the judgment

of the trial court is affirmed.

                                     .............

WELBAUM, P.J. and HALL, J., concur.
                       -11-




Copies sent to:

Mathias H. Heck, Jr.
Sarah E. Hutnik
Andrew C. Schlueter
Hon. Gerald Parker
