[Cite as State v. Hightower, 2012-Ohio-1959.]


                                       COURT OF APPEALS
                                   DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                         Hon. William B. Hoffman, J.
                                                   Hon. Sheila G. Farmer, J.
-vs-
                                                   Case No. 11CAA080071
BRANDON M. HIGHTOWER

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                        Appeal from the Delaware County Court of
                                                Common Pleas, Case No. 11CRI030146A


JUDGMENT:                                       Affirmed


DATE OF JUDGMENT ENTRY:                         April 18, 2012


APPEARANCES:


For Plaintiff-Appellee                          For Defendant-Appellant


CAROL HAMILTON O'BRIEN                          WILLIAM T. CRAMER
Prosecuting Attorney                            470 Olde Worthington Road, Suite 200
ERIC C. PENKAL                                  Westerville, Ohio 43082
Assistant Prosecuting Attorney
140 N. Sandusky Street 3rd Floor
Delaware, Ohio 43015
Delaware County, Case No. 11CAA080071                                                     2

Hoffman, J.


        {¶1}   Defendant-appellant Brandon M. Hightower appeals his conviction entered

by the Delaware County Court of Common Pleas. Plaintiff-appellee is the state of Ohio.

                           STATEMENT OF THE FACTS AND CASE

        {¶2}   On March 7, 2011, Appellant and Anthony McClain were travelling in a

vehicle on Interstate 71.    Deputy Paul Simpson of the Delaware County Sheriff’s

Department observed the vehicle travelling over the speed limit, and the rear license

plate covered by a tinted plastic covering. As a result, Deputy Simpson initiated a traffic

stop.

        {¶3}   Upon approaching the vehicle, Deputy Simpson noticed a smell of raw

marijuana emanating from the vehicle. Sergeant Larry Dore of the Delaware County

Sheriff’s Office who had responded to the scene to assist Deputy Simpson, had his K-9

unit conduct a walk-around of the vehicle. The dog indicated on the vehicle for drugs.

Deputy Simpson then asked Appellant and McClain to exit the vehicle.               Instead,

Appellant fled the scene of the traffic stop at a high rate of speed leading the officers on

a high speed chase.

        {¶4}   During the chase, a weapon and drugs were thrown from the passenger

side of the vehicle. While Appellant or McClain were disposing the evidence, Deputy

Simpson and Sergeant Dore witnessed Appellant run through several red lights, swerve

in and out of traffic, go left of the roadway, and travel in excess of 90 mph in a high

traffic commercial area. Further testimony established Appellant traveled in excess of

60 mph in a 35 mph zone.
Delaware County, Case No. 11CAA080071                                                    3


       {¶5}   As a result, Appellant was charged with failing to comply with an order or

signal of a police officer, thereby causing a substantial risk of serious physical harm to

persons or property, in violation of R.C. 2921.331(B) and (C)(5)(a)(ii); tampering with

evidence, in violation of R.C. 2921.12; having a firearm while under disability, in

violation of R.C. 2923.13; and trafficking in marijuana, in violation of R.C. 2925.03.

       {¶6}   During trial, the court dismissed the having a firearm under disability

charge for lack of evidence pursuant to Criminal Rule 29. The jury subsequently found

Appellant not guilty of trafficking in marijuana, but guilty of the failure to comply and

tampering with evidence charges. The trial court sentenced Appellant to two years for

failure to comply and one year for tampering with evidence, to be served consecutively.

The trial court also imposed a fine of $3,500 and a six year driver’s license suspension.

       {¶7}   Appellant now appeals, assigning as error:

       {¶8}   “I. APPELLANT WAS DEPRIVED OF HIS RIGHTS TO DUE PROCESS

AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION AND SECTION 16, ARTICLE I OF THE OHIO

CONSTITUTION        BECAUSE        THE     PROSECUTION         FAILED     TO     PRESENT

SUFFICIENT EVIDENCE THAT APPELLANT’S OPERATION OF A MOTOR VEHICLE

CAUSED A SUBSTANTIAL RISK OF SERIOUS PHYSICAL HARM TO PERSONS OR

PROPERTY.

       {¶9}   “II. THE JURY’S FINDING THAT APPELLANT’S OPERATION OF THE

MOTOR VEHICLE CAUSED A SUBSTANTIAL RISK OF SERIOUS PHYSICAL HARM

TO PERSONS OR PROPERTY WAS NOT SUPPORTED BY THE WEIGHT OF

EVIDENCE.”
Delaware County, Case No. 11CAA080071                                                     4


                                               I, II.

       {¶10} Appellant’s first and second assignments of error raise common and

interrelated issues; therefore, we will address the arguments together.

       {¶11} On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State

v. Jenks (1991), 61 Ohio St.3d 259. “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.” Jenks at

paragraph two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307. 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 witnesses and

determine “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.” State v. Martin (1983), 20 Ohio App.3d 172, 175. See also, State v.

Thompkins, 78 Ohio St.3d 380, 1997–Ohio–52. The granting of a new trial “should be

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

conviction.” Martin at 175.

       {¶12} We note the weight to be given to the evidence and the credibility of the

witnesses are issues for the trier of fact. State v. Jamison (1990), 49 Ohio St.3d 182,

certiorari denied (1990), 498 U.S. 881. The trier of fact “has the best opportunity to view

the demeanor, attitude, and credibility of each witness, something that does not

translate well on the written page.” Davis v. Flickinger, 77 Ohio St.3d 415, 418, 1997–

Ohio–260.
Delaware County, Case No. 11CAA080071                                                        5


         {¶13} Appellant was convicted of violating R.C. 2921.331(B)(C)(5)(a)(ii), which

reads:

         {¶14} “(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.

         {¶15} “(C)(1) Whoever violates this section is guilty of failure to comply with an

order or signal of a police officer.

         {¶16} “***

         {¶17} “(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:

         {¶18} “***

         {¶19} “(ii) The operation of the motor vehicle by the offender caused a

substantial risk of serious physical harm to persons or property.***”

         {¶20} At the trial in this matter, Deputy Paul Simpson testified:

         {¶21} “Q. Did you ever lose sight of Mr. Hightower throughout this car chase?

         {¶22} “A. No.

         {¶23} “Q. Where did Mr. Hightower go?

         {¶24} “A. As we approached the off-ramp, at that point you got your left lane is

going to be headed eastbound on 36/37, your right lane is going to be headed

westbound on 36/37 and that’s all there is, there’s no straight lane, just left and right.

There was probably maybe eight or ten cars in each lane. Eastbound and westbound

pretty much they were sitting stuck at the light. And at that point Mr. Hightower then
Delaware County, Case No. 11CAA080071                                                      6


went to the left and between the far left lane as well as the guardrail. And at that point

he proceeded up to the ramp. The light was still red, he rounded the corner, cut in front

of both the lanes sitting there and proceeded westbound on 37.

         {¶25} “* * *

         {¶26} “Q. How fast do you recall the defendant get up to speed-wise as he

approached 36/37 exit?

         {¶27} “A. I would say by the time he hit the top of the off-ramp, I would say

probably 60, 70 miles an hour.

         {¶28} “Q. You said that there’s two lanes of travel for the exit for 36/37 right

there?

         {¶29} “A. Yes.

         {¶30} “Q. Was there vehicles stopped at the stop light in both lanes of travel?

         {¶31} “A. Yes, sir.

         {¶32} “The Court: He already testified to that. He also said how many vehicles

there were in each lane.

         {¶33} “By Mr. Penkal:

         {¶34} “Q. Did you - - were you right behind the defendant?

         {¶35} “A. Yes, sir.

         {¶36} “Q. How far away from you - - how far were you from the vehicles parked

in the eastbound lane as you were traveling up the off-ramp?

         {¶37} “A. It was a very tight fit, I would say darn near rubbing beards, I don’t

know it was pretty tight.

         {¶38} “Q. Did you see the vehicle, the defendant’s vehicle turn on 36/37?
Delaware County, Case No. 11CAA080071                                                     7


           {¶39} “A. Yes.

           {¶40} “Q. Did he cause any sort of disturbance there?

           {¶41} “A. I just noticed there was vehicles trying to make the right-hand turn on

the red and I saw them locking up their brakes and hearing the tire screeches and

locking up.

           {¶42} “Q. What is the speed limit on 71?

           {¶43} “A. It’s 65.

           {¶44} “Q. After he turned onto 36/37, did you continue your pursuit?

           {¶45} “A. Yes.

           {¶46} “Q. Can you describe for the jury what the defendant did?

           {¶47} “A. At that point we’re now westbound on 36/37 headed towards Delaware

City and again there’s - - it’s heavy traffic in between there with the stop lights and

everything. Everyone is pretty much bumper to bumper. At that point he went around

to the right on the BP side, I guess, would be the north side of 36/37, cutting in and out

of the traffic there, blew through the red light at the intersection, the commercial

intersection, I guess, still proceeding westbound, leaving the roadway and going off on

the driveways and everything coming back onto 36/37, again, cutting in and out of

traffic.    As you come to Four Winds or you might look at it as the Cracker Barrel

intersection, again blowing through that light. There was cars coming off of Four Winds

having to jam up their brakes, trying to avoid being hit or hitting anybody else. And,

again, proceeding westbound on 36/37.

           {¶48} “Q. And that commercial area you described, how was the traffic there that

day?
Delaware County, Case No. 11CAA080071                                                      8


        {¶49} “A. It was heavy.

        {¶50} “Q. Who was following the defendant at this point in time in the

commercial area?

        {¶51} “A. I stuck to left of the defendant, instead of going to the right of all the

traffic, I proceeded to the left. Sergeant Larry Dore was directly behind and taking the

same route.

        {¶52} “Q. After they got past Four Winds, describe for the jury what happened

next.

        {¶53} “A. At that point obviously it jumps from 35 to 55 so you get a little bit more

distance between cars. At that point that’s when, I guess, we reached our top speed of

the whole incident around 90 miles an hour still weaving in and out of what traffic was

on that road. Weaving through them, they kind of parting out of the way.

        {¶54} “Q. The vehicles that parted, did they leave the roadway?

        {¶55} “A. Yes.

        {¶56} “Q. Did you see anything leave the vehicle at this point in time?

        {¶57} “A. I saw - - as we were coming across - - it seemed like right as we’re

approaching the Alum Creek area, I saw like green particles or like a - - almost like a fog

of just, like, green flakes, I guess, coming back in myself and Sergeant Dore’s direction.

It was obviously being tossed from the vehicle.”

        {¶58} Tr. at 121-122; 123-126.

        {¶59} Michael Strawbridge, a truck driver who observed the incident at issue,

testified:

        {¶60} “Q. Do you remember an incident on March 7th, 2011?
Delaware County, Case No. 11CAA080071                                                    9


       {¶61} “A. Yes, I do.

       {¶62} “Q. Where were you that day?

       {¶63} “A. I was coming down 71 and I come up off the exit to get on 36 to go

around Columbus so I didn’t have to go through the city. And stopped at the end of the

ramp, there was a red light there. I was wanting to turn right on red, but it was just

turning red and I didn’t want to take a chance and the light turned green and I started to

go out and when I did, a car come flying up around my left side and cut in front of me. I

hit my brakes so I wouldn’t hit it and I seen something fly from the right front door. And

then I seen a sheriff car come behind it and another sheriff car. And the car went to the

right around a car and the sheriff cars chased it.       And I thought maybe that was

something being thrown out the window.

       {¶64} “Q. What did you do?

       {¶65} “A. I pulled over to the side of the road. I thought I’d go back and look and

I walked about 50 feet back and there right where the ramp hits 36, there was a gun.

       {¶66} “And my car ran over the gun just as I was coming up on it. And I thought,

don’t get involved, you’re going to end up down here testifying. And I thought, well, right

is right. So I went over and I grabbed my handkerchief and picked the gun up by the

barrel and put it in my truck and drove on down the road hoping that they caught them

somewhere down the road.”

       {¶67} Tr. at 137-158.

       {¶68} Sergeant Dore then testified:

       {¶69} “Q. So you guys both go to your vehicles, what do you [sic] at that time?
Delaware County, Case No. 11CAA080071                                                       10


       {¶70} “A. We both obviously take off after him. I aired that he was running. I

aired that the dog had indicated on the vehicle. Deputy Simpson is actually the lead car

in the lead car so I think at one point in there I said I’ll call it.

       {¶71} “We tried to - - we were in the process of trying to catch up with them, they

exited off the ramp to 36/71. We’re in the left side or the berm area going around the

traffic that was stopped. I remember seeing traffic going back and forth on the bridge

and thinking to myself this is not going to be good.

       {¶72} “He made a right turn, front right turn in front of - - I think there was a car, I

know there was a semi, like, a red semi, I think it was a dump truck or one of those

container trucks. He turned, lost sight of him briefly. We had slowed down for traffic to

make sure we didn’t hit anybody, and went westbound on 36/37.

       {¶73} “Q. Deputy Simpson’s vehicle still had his flashers on at that point?

       {¶74} “A. Yes.

       {¶75} “Q. Any audible warning systems?

       {¶76} “A. Well, I know I had my siren on so - - I couldn’t hear his.

       {¶77} “Q. Your flashers on your cruisers are on as well too?

       {¶78} “A. Yes.

       {¶79} “Q. What was traffic like on that exit ramp?

       {¶80} “A. It’s busy. It’s an area where you have a couple truck stops to the east,

three hotels to the west and north of that exit, restaurants, gas stations, there’s a

Starbucks there. A lot of truck drivers will park their rigs over in the truck stops and walk

across the bridge to get something to eat because there’s no truck parking there. It’s a

pretty busy, it’s a 35 miles an hour zone.
Delaware County, Case No. 11CAA080071                                                     11


       {¶81} “Q. How fast was the defendant traveling up the exit ramp?

       {¶82} “A. If I had to guess, 60ish.

       {¶83} “Q. As you’re going up there, who has the red light for that intersection?

       {¶84} “A. As I recall we had a red light because there was cars - - traffic crossing

in front of us.

       {¶85} “Q. Did the defendant stop at that red light?

       {¶86} “A. No, he did not.

       {¶87} “Q. What did he do at that turn?

       {¶88} “A. I mean, he obviously had to slow down and he just turned right, turned

in front of all the cars that were getting at the off-ramp.

       {¶89} “Q. What lane was he in?

       {¶90} “A. He was in the left berm so he had two lanes of travel and he came up

around them.

       {¶91} “Q. Turn signal there again?

       {¶92} “A. I don’t remember seeing a turn signal.

       {¶93} “Q. Did he yield for traffic?

       {¶94} “A. No.

       {¶95} “Q. Where did you guys go as the defendant is traveling up the left berm

of the exit ramp?

       {¶96} “A. We have to follow-up the left berm because the traffic stopped.

       {¶97} “Q. How much room do you guys have?

       {¶98} “A. Ten feet, 15 feet, somewhere in there.

       {¶99} “Q. Where did the chase go from there?
Delaware County, Case No. 11CAA080071                                                 12


     {¶100} “A. Like I said, the vehicle turns right, which is westbound and I can’t see

him now. We get up, as soon as we make our turn, then I can see the vehicle going in

and out of cars.

     {¶101} “I, you know, we’re speeding up at this point obviously giving the location,

trying to get spikes set up ahead of us so we can stop this.

     {¶102} “The vehicle went through another traffic light there at the BP Gas Station,

which was red. The vehicle drove into the berm on the right side of the road, I followed

behind him and Deputy Simpson actually, I believe, went to the left into the middle of

the intersection and then came in - - he was still the primary vehicle.

     {¶103} “Q. First of all, you said weaving in and out of traffic: which direction was

this traffic going?

     {¶104} “A. The traffic he was weaving in and out of was going westbound, same

direction.

     {¶105} “Q. What’s the speed limit there?

     {¶106} “A. Thirty-five.

     {¶107} “Q. Thirty-five. You said there’s a light by BP?

     {¶108} “A. Yes.

     {¶109} “Q. Was there traffic going essentially north or southbound through that

intersection, perpendicular to where you were traveling?

     {¶110} “A. Yes.

     {¶111} “Q. What was that - - what happened to that traffic at that light?
Delaware County, Case No. 11CAA080071                                                     13


     {¶112} “A. I mean, they didn’t hit anybody going through the intersection. Of

course, I know we yielded - - I yielded enough so they heard us and saw us before I

proceeded through the red light.

     {¶113} “Q. From there, after that red light, where did he go?

     {¶114} “A. He continued westbound. I think it was at this point I saw something

come out of the vehicle. I aired on the radio a gun or a scale, but it hit the pavement

and shattered into pieces.

     {¶115} “Q. Where did this happen at?

     {¶116} “A. West of that light, but before 3B’s and K Road.

     {¶117} “Q. What side of the vehicle did it come out of?

     {¶118} “A. Passenger window.

     {¶119} “Q. How fast are you traveling at that point?

     {¶120} “A. I think we’re going about 70, 70 to 80, somewhere in there.

     {¶121} “Q. Is still 35 at that time?

     {¶122} “A. Yes.

     {¶123} “Q. What’s traffic like right, I guess, in that area around 3B’s and K?

     {¶124} “A. It’s busy - - I mean it’s almost rush hour traffic so it’s always busy.

     {¶125} “Q. Busy that day as well?

     {¶126} “A. Yes.

     {¶127} “Q. What happened after you see that first time thrown out?

     {¶128} “A. As I said, I aired it. We continue westbound, I think around 3B’s and a

K I actually got on the radio and told Deputy Simpson to back off a little. We were again

trying to get spikes set up. And we were approaching Alum Creek and just before going
Delaware County, Case No. 11CAA080071                                                         14


onto the bridge I saw a baggie come out of the window and it looked, you know, from

my view, it looked like he was crumbling something. And then I was just seeing - - just

actually described on the radio a green cloud, which I believed to be marijuana come

out it, a blue bag, like a Kroger, one of the Walmart or Kroger bags and then the bag

came out.

      {¶129} “Q. What side did that come out?

      {¶130} “A. Passenger.

      {¶131} “Q. And you could see hands?

      {¶132} “A. Yeah, I mean, I could see - - I mean, I could see the hands, I could see

the bag in the wind and I could see just the cloud coming, coming, coming and the bag

go.

      {¶133} “Q. And you said you thought you saw marijuana?

      {¶134} “A. Yeah, I’m pretty sure it was marijuana.

      {¶135} “Q. What was the size and diameter of the marijuana?

      {¶136} “A. You know it’s a - - just it looks like a small volley ball, I guess, like - - it

looks like somebody was crumbling a brick, if I had to take a guess. Both his hands are

out going like this. (Indicating) So it’s kind of hard to tell.

      {¶137} “Q. How long did this go on for?

      {¶138} “A. Probably 30 seconds. I mean, it was pretty quick because it happened

three times altogether, three different rounds of marijuana coming out of the car.

      {¶139} “Q. How fast were you guys going?

      {¶140} “A. I think 90 - - 90 to 100, somewhere around there.

      {¶141} “Q. Speed limit in this area is?
Delaware County, Case No. 11CAA080071                                                  15


     {¶142} “A. It transfers over to 55 just at 3B’s and a K, so 35 to 55. I mean we

were 80 in a 35 and, of course, we’re speeding up the whole way through intersection. I

mean, it’s 55 speed limit at 3B’s and K.

     {¶143} “Q. What’s traffic like at that area by Alum Creek?

     {¶144} “A. It kind of thinned out a little bit, because you don’t have all the people

going in and out of Cracker Barrel and businesses.

     {¶145} “Q. Are there roads intersecting with 36/37 there?

     {¶146} “A. Yes.

     {¶147} “Q. What are those roads in there?

     {¶148} “A. Three B’s and a K south, that comes in to 36/37 there by the ODOT

garage and just beyond that is 3B’s and a K north and then down is half of a road with

an automobile dealership, used to, and then after that you have the long bridge.

     {¶149} “Q. What about the other side?

     {¶150} “A. You have what we call 10A, Duncan Run Road, I think, then North Old

State Road, then it would be Big Run Road, and then there’s the Humane Society, then

there’s Old State Road, which is where they actually went past that to Plunkett and were

slowing down at that point.

     {¶151} “Q. Was there any traffic on 36/37 other than the officers and the

defendant?

     {¶152} “A. Yes.

     {¶153} “Q. What was that traffic?
Delaware County, Case No. 11CAA080071                                                  16


     {¶154} “A. It started to yield to them. We had one driver was screaming and

yelling at the defendants. When we finally got them stopped, they were mad. But there

was, I mean, there was moderate traffic.”

     {¶155} Tr. at 182-189.

     {¶156} Based upon the testimony cited above, we find there was competent,

credible evidence supporting all of the elements of Appellant’s conviction, and the jury

did not lost its weigh in convicting Appellant of the charges.     The evidence clearly

demonstrates Appellant operated his vehicle causing a substantial risk of serious

physical harm to persons or property, while failing to comply with an order or signal of a

police officer.

     {¶157} The judgment of the Delaware County Court of Common Pleas is affirmed.

By: Hoffman, J.

Delaney, P.J. and

Farmer, J. concur

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


                                            s/ Patricia A. Delaney _________________
                                            HON. PATRICIA A. DELANEY


                                            s/ Sheila G. Farmer___________________
                                            HON. SHEILA G. FARMER
Delaware County, Case No. 11CAA080071                                          17


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


STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :        JUDGMENT ENTRY
                                          :
BRANDON M. HIGHTOWER                      :
                                          :
       Defendant-Appellant                :        Case No. 11CAA080071


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

Delaware County Court of Common Pleas is affirmed. Costs to Appellant.




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


                                          s/ Patricia A. Delaney_________________
                                          HON. PATRICIA A. DELANEY


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