[Cite as State v. Pushtelniak, 2019-Ohio-3416.]


STATE OF OHIO                     )                    IN THE COURT OF APPEALS
                                  )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

STATE OF OHIO                                          C.A. Nos.     19CA011457
                                                                     19CA011458
        Appellee

        v.

JOHN D. PUSTELNIAK                                     APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
        Appellant                                      COURT OF COMMON PLEAS
                                                       COUNTY OF LORAIN, OHIO
                                                       CASE Nos. 17CR097162
                                                                  17CR097249

                                 DECISION AND JOURNAL ENTRY

Dated: August 26, 2019



        HENSAL, Judge.

        {¶1}     John Pustelniak appeals his convictions from the Lorain County Court of

Common Pleas. The State of Ohio has cross-appealed his sentence. For the following reasons,

this Court affirms as to Mr. Pustelniak’s appeal and vacates his sentence in part as to the State’s

cross-appeal.

                                                  I.

        {¶2}     A North Ridgeville police officer ran the license plate of the vehicle in front of

him and discovered that its registration had expired. He initiated a traffic stop, but as he was

walking up to the vehicle, it drove away. He pursued the vehicle into the city of Avon, at which

time he was told to stop his pursuit because they were approaching the location of a parade that

was about to begin. The vehicle maneuvered around obstacles and began driving up the parade

route. One of the officers stationed along the route got the vehicle to come to a stop, but the
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driver refused to comply with other commands and, after a few moments, accelerated away.

Another officer pursued the vehicle, which diverted through the crowd when it reached a barrier

at the other end of the parade route. Once the vehicle was clear of the parade route, the Avon

police officer ended his pursuit. A little while later, however, a different North Ridgeville police

officer spotted the vehicle at a gas station. He pursued it into the city of Elyria, where it crashed

into a guardrail. By the time the officer reached the crash site, the driver had fled on foot into a

nearby neighborhood. Officers eventually discovered Mr. Pustelniak beside a nearby river and

arrested him after recognizing him as the driver of the vehicle. Officers also learned that the

vehicle had been stolen earlier in the day.

       {¶3}    The Grand Jury indicted Mr. Pustelniak on nine counts in case number

17CR097162, including four counts of failure to comply with the order or signal of a police

officer, two counts of obstructing official business, two counts of willful or wanton disregard of

the safety of persons or property, and one count of theft. It also indicted him on five counts in

case number 17CR097249, including one count of assault, one count of inducing panic, one

count of obstructing official business, one count of failure to comply, and one count of negligent

assault. That indictment was later supplemented to add a second count of failure to comply. The

State dismissed some of the charges before trial, and the trial court granted Mr. Pustelniak’s

motion for acquittal on some of the remaining counts during trial. A jury found Mr. Pustelniak

guilty of three counts of failure to comply, one count of obstructing official business, one count

of willful or wanton disregard of safety, and the count of theft in case number 17CR097162. It

found him guilty of inducing panic and one count of failure to comply in case number

17CR097249. After concluding that all of the failure-to-comply counts and the willful-and-

wanton-disregard-of-safety count merged, the trial court sentenced Mr. Pustelniak to a total of 48
                                                 3


months imprisonment. Mr. Pustelniak has appealed, assigning two errors. The State has cross-

appealed the court’s determination that all of the failure to comply counts should merge. We

will address Mr. Pustelniak’s assignments of error first.

                                                II.

                                  ASSIGNMENT OF ERROR I

       THE VERDICT IN THIS CASE IS AGAINST THE SUFFICIENCY OF THE
       EVIDENCE AND SHOULD BE REVERSED BECAUSE IT VIOLATES THE
       FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED
       STATES CONSTITUTION, AND ARTICLE I, SECTION 10 OF THE
       CONSTITUTION OF THE STATE OF OHIO.

       {¶4}    Mr. Pustelniak argues that his convictions are not supported by sufficient

evidence. Whether a conviction is supported by sufficient evidence is a question of law, which

we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In making this

determination, we must view the evidence in the light most favorable to the prosecution:

       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 to
       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), paragraph two of the syllabus.

       {¶5}    Mr. Pustelniak argues that the State failed to prove his conviction for inducing

panic because there was no evidence that he caused an evacuation of any public place. Revised

Code Section 2917.31(A)(3) provides that “[n]o person shall cause the evacuation of any public

place, or otherwise cause serious public inconvenience or alarm, by * * * [c]ommitting any

offense, with reckless disregard of the likelihood that its commission will cause serious public

inconvenience or alarm.” Notably, Section 2917.31(A)(3) does not require the evacuation of a
                                                   4


public place. Contrary to Mr. Pustelniak’s assertion, the offense may also be committed if the

defendant “otherwise cause[d] serious public inconvenience or alarm[.]” R.C. 2917.31(A).

According to one of the police officers working the parade route, when Mr. Pustelniak drove the

vehicle over the curb, she saw people moving very quickly to get out of the vehicle’s path. After

the vehicle passed through, the officer spoke to a woman who had moved her daughter and

herself out of the path of the vehicle. The woman was holding her daughter and was scared and

nervous about the situation, telling the officer that, if they had not moved, they may have been

hit by the vehicle. Viewing the evidence in a light most favorable to the State, we conclude that,

even though Mr. Pustelniak did not strike anyone along the parade route with the vehicle, there

was sufficient evidence for the jury to find that he caused serious public inconvenience or alarm.

       {¶6}    Mr. Pustelniak has also challenged his conviction for theft, arguing that he could

not be tried for the offense in Lorain County because the theft allegedly occurred in a different

county. He also alleges that, because the original reason for the traffic stop was the expiration of

the vehicle’s registration, it was not all part of a single course of conduct.

       {¶7}    Although venue is not a material element of a criminal offense, the State must

prove it beyond a reasonable doubt unless it is waived by the defendant. State v. Patterson, 9th

Dist. Lorain No. 16CA011035, 2017-Ohio-8196, ¶ 17. We note, however, that, if a defendant

does not make a specific objection to venue before the trial court, he forfeits all but plain error.

Id. at ¶ 16. Mr. Pustelniak did not object in the trial court to whether Lorain County was the

proper venue for the theft charge. He, therefore, has forfeited his argument for appellate review.

He also has not alleged that the error was plain, and we decline to develop an argument for him.

See State v. Dukes, 9th Dist. Summit No. 27966, 2019-Ohio-2893, ¶ 7.              Accordingly, we

conclude that Mr. Pustelniak’s theft conviction is supported by sufficient evidence.
                                                 5


       {¶8}    Mr. Pustelniak also argues that there is insufficient evidence to support his

conviction for willful or wanton disregard of safety. Section 4511.20(A) provides that “[n]o

person shall operate a vehicle * * * on any street or highway in willful or wanton disregard of the

safety of persons or property.” According to Mr. Pustelniak, the evidence established that he

used extreme caution while driving down the parade route, avoiding injury to the allegedly

thousands of people gathered to view the parade. The offense, however, related to his conduct

driving through North Ridgeville and Elyria. According to the North Ridgeville officer who

pursued Mr. Pustelniak into Elyria, Mr. Pustelniak was driving 20 miles per hour over the speed

limit and went through red lights at multiple major intersections while there was cross-traffic

moving through them. He also drove erratically and passed cars by driving on the wrong side of

the road. Upon review of the record, the officer’s testimony was sufficient to support Mr.

Pustelniak’s conviction for willful or wanton disregard of safety.           Mr. Pustelniak’s first

assignment of error is overruled.

                                    ASSIGNMENT OF ERROR II

       THE CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE
       EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE
       14TH AMENDMENT TO THE U.S. CONSTITUTION AND OF THE OHIO
       CONSTITUTION.

       {¶9}    Mr. Pustelniak also argues that his convictions are against the manifest weight of

the evidence. If a defendant asserts that his convictions are against the manifest weight of the

evidence,

       an appellate court must review the entire record, weigh the evidence and all
       reasonable inferences, consider the credibility of witnesses and determine
       whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way
       and created such a manifest miscarriage of justice that the conviction[s] must be
       reversed and a new trial ordered.
                                                 6


State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). Weight of the evidence pertains to the

greater amount of credible evidence produced in a trial to support one side over the other side.

Thompkins, 78 Ohio St.3d 380, at 387. An appellate court should only exercise its power to

reverse a judgment as against the manifest weight of the evidence in exceptional cases. State v.

Carson, 9th Dist. Summit No. 26900, 2013-Ohio-5785, ¶ 32, citing Otten at 340.

       {¶10} Mr. Pustelniak argues that there was considerable doubt about whether he was the

driver of the vehicle. He notes that the State did not present a single video or photograph of him

driving the vehicle despite the number of people along the parade route who likely had cameras

with them. He also notes that there was no dash camera or body camera evidence presented by

the police or surveillance video from where the vehicle was stolen. He further notes that

multiple officers admitted that they were unable to identify him as the driver of the vehicle.

       {¶11} The State argues that, although some officers were unable to identify Mr.

Pustelniak as the driver of the vehicle, multiple other officers did identify him. According to the

officer who initiated the first traffic stop, he saw Mr. Pustelniak’s face in the side mirror of the

vehicle as he was walking up to it before it drove off. An officer who tried to stop the vehicle

along the parade route testified that he was able to see the driver through a window as it slowed

down and that driver was Mr. Pustelniak. The officer who was able to stop the vehicle briefly

along the parade route also testified that he observed Mr. Pustelniak behind the wheel. The

officer who spotted the vehicle at the gas station testified that he was nose-to-nose with the

vehicle and saw Mr. Pustelniak through the windshield from about 15 feet away. Finally, when

officers discovered Mr. Pustelniak by the river, he waded into it appearing to try to evade

capture. The State also argues that the fact that private citizens may not have shared any pictures

or videos of the incident with the police, that the cruisers who pursued the vehicle did not have
                                                 7


dash cameras, and that the officers who encountered the vehicle along the parade route were

either not wearing or did not think to activate their body cameras does not undermine the

testimony of the officers who identified Mr. Pustelniak as the driver of the vehicle.

       {¶12} “[T]he weight to be given the evidence and the credibility of the witnesses are

primarily for the trier of the facts.” State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of

the syllabus. “In reaching its verdict, the jury was in the best position to evaluate the credibility

of the witnesses and it was entitled to believe all, part, or none of the testimony of each witness.”

State v. Shank, 9th Dist. Medina No. 12CA0104-M, 2013-Ohio-5368, ¶ 29. Upon review of the

record, we cannot say that the jury lost its way when it found that Mr. Pustelniak was the

operator of the vehicle. Mr. Pustelniak’s second assignment of error is overruled.

                         CROSS-APPEAL ASSIGNMENT OF ERROR

       FOLLOWING A TRIAL THAT RESULTED IN A JURY FINDING THE
       DEFENDANT, JOHN D. PUSTELNIAK, GUILTY OF THREE THIRD-
       DEGREE FELONY COUNTS OF FAILURE TO COMPLY WITH ORDER OR
       SIGNAL OF POLICE OFFICER IN VIOLATION OF R.C. 2921.331(B), THE
       TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT RULED THAT,
       BASED ON THE EVIDENCE PRESENTED DURING TRIAL, THE THREE
       FAILURE TO COMPLY COUNTS CONSTITUTED ALLIED OFFENSES OF
       SIMILAR IMPORT UNDER R.C. 2941.25(A), CONVICTED PUSTELNIAK
       OF ONLY ONE OF THE OFFENSES, AND, CONSEQUENTLY, ACTED
       CLEARLY AND CONVINCINGLY CONTRARY TO LAW WHEN IT
       FAILED TO IMPOSE A SENTENCE ON TWO OF THE CHARGES FOR
       WHICH THE JURY FOUND PUSTELNIAK GUILTY.

       {¶13} The State argues that the trial court incorrectly merged two of the failure to

comply counts at sentencing because it determined that they were allied offenses of similar

import. Section 2941.25 “is the primary indication of the General Assembly’s intent to prohibit

or allow multiple punishments for two or more offenses resulting from the same conduct” and is

“an attempt to codify the judicial doctrine of merger[.]” State v. Washington, 137 Ohio St.3d

427, 2013-Ohio-4982, ¶ 11. It provides:
                                                 8


       (A) Where the same conduct by defendant can be construed to constitute two or
       more allied offenses of similar import, the indictment or information may contain
       counts for all such offenses, but the defendant may be convicted of only one.

       (B) Where the defendant’s conduct constitutes two or more offenses of dissimilar
       import, or where his conduct results in two or more offenses of the same or
       similar kind committed separately or with a separate animus as to each, the
       indictment or information may contain counts for all such offenses, and the
       defendant may be convicted of all of them.

R.C. 2941.25. In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, the Ohio Supreme Court

interpreted Section 2941.25(B), explaining:

       Under R.C. 2941.25(B), a defendant whose conduct supports multiple offenses
       may be convicted of all the offenses if any one of the following are true: (1) the
       conduct constitutes offenses of dissimilar import, (2) the conduct shows that the
       offenses were committed separately, or (3) the conduct shows that the offenses
       were committed with separate animus.

Id. at paragraph three of the syllabus. When determining whether offenses merge under Section

2941.25, this Court applies a de novo standard of review. State v. Williams, 134 Ohio St.3d 482,

2012-Ohio-5699, ¶ 12.

       {¶14} The State argues that the trial court failed to properly apply any part of the Ruff

allied-offenses analysis. The first part, however, is dispositive. Regarding the first part, the

State argues that the court applied an incorrect standard when it addressed whether the offenses

were of dissimilar import. In Ruff, the Ohio Supreme Court clarified that offenses are of

dissimilar import under Section 2941.25(B) if they “involve[ed] separate victims or if the harm

that results from each offense is separate and identifiable.” Ruff at paragraph two of the syllabus.

In explaining the reason it did not believe the offenses were dissimilar, the trial court stated:

“[Mr. Pustelniak] fled in a motor vehicle around different routes in different communities.

That’s similar conduct without significant differences.”
                                                  9


       {¶15} The jury found Mr. Pustelniak guilty of four violations of Section 2921.331(B),

which provides that “[n]o 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.” The jury also found that, for three of those counts, Mr. Pustelniak

“caused a substantial risk of serious physical harm to persons or property[,]” which elevated the

offenses to felonies of the third degree. R.C. 2921.331(C)(5)(a)(ii). At trial, the State argued

that one of the elevated counts related to Mr. Pustelniak’s failure to comply with the instructions

of the North Ridgeville officer who conducted the initial traffic stop. The second related to his

failure to comply with the orders of the Avon officers along the parade route. The third elevated

count related to his failure to comply with the North Ridgeville officer who spotted him at the

gas station. According to the State, the people and property that Mr. Pustelniak exposed to a

substantial risk of serious physical harm for each count were different. It, therefore, argues that

the offenses were of dissimilar import under Ruff.

       {¶16} We agree that each of the three offenses involved different victims under Ruff’s

allied offenses analysis. In explaining the difference between the failure-to-comply offenses to

the jury, the State told it that the first elevated count pertained to the “chase of the Defendant on

Mills Road and Stony Ridge Road.” The second count “relate[d] to Cleveland Street * * * and

ending in Elyria.” The third count “related to Avon[.]” Each of these offenses were well-

separated in their time and location and involved distinct different groups of “persons or

property” to which Mr. Pustelniak “caused a substantial risk of serious physical harm[.]” R.C.

2921.331(C)(5)(a)(ii). We, therefore, conclude that they were offenses of dissimilar import

under Ruff.
                                                10


       {¶17} Under Section 2953.08(G)(2)(b), this Court “may increase, reduce, or otherwise

modify a sentence that is appealed under this section or may vacate the sentence and remand the

matter to the sentencing court for resentencing” if it “clearly and convincingly” concludes that

the sentence is “contrary to law.” “A sentence that contains an allied-offenses error is contrary

to law.” State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, ¶ 14; State v. Watkins, 1st Dist.

Hamilton No. C-120567, 2013-Ohio-4222, ¶ 9. We, therefore, conclude that Mr. Pustelniak’s

sentence must be vacated, and this matter remanded for resentencing on his convictions under

Section 2921.331(B) that are felonies of the third degree. The State’s assignment of error is

sustained.

                                                III.

       {¶18} Mr. Pustelniak’s assignments of error are overruled. The State’s assignment of

error is sustained. The judgment of the Lorain County Court of Common Pleas is affirmed in

part and vacated in part, and this matter is remanded for resentencing in accordance with this

decision.

                                                                          Judgment affirmed in part,
                                                                                   reversed in part,
                                                                               and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
                                                11


period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT



CALLAHAN, P. J.
SCHAFER, J.
CONCUR.


APPEARANCES:

GIOVANNA V. BREMKE, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and BRIAN P. MURPHY, Assistant Prosecuting
Attorney, for Appellee.
