[Cite as State v. Webster, 2020-Ohio-3576.]




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

                                                    :
 STATE OF OHIO                                      :
                                                    :   Appellate Case No. 2019-CA-47
         Plaintiff-Appellee                         :
                                                    :   Trial Court Case No. 2019-CR-201
 v.                                                 :
                                                    :   (Criminal Appeal from
 ERIC WEBSTER, JR.                                  :    Common Pleas Court)
                                                    :
         Defendant-Appellant                        :


                                               ...........

                                              OPINION

                              Rendered on the 2nd day of July, 2020.

                                               ...........

JOHN M. LINTZ, Atty. Reg. No. 0097715, Clark County Prosecutor’s Office, Appellate
Division, 50 East Columbia Street, Suite 449, Springfield, OH 45502
       Attorney for Plaintiff-Appellee

ADAM JAMES STOUT, Atty. Reg. No. 0080334, 5335 Far Hills Avenue, Suite 109,
Dayton, Ohio 45429
      Attorney for Defendant-Appellant

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

FROELICH, J.
                                                                                            -2-




       {¶ 1} After his first jury trial ended in a mistrial due to a hung jury, a second jury

found Eric Webster Jr. guilty of failure to comply with an order or signal of a police officer,

a third-degree felony. The trial court subsequently sentenced him to three years in

prison and suspended his driver’s license for ten years.

       {¶ 2} Webster appeals from his conviction, claiming that his retrial violated his

double jeopardy rights and his right to due process. Webster further claims that his

conviction was based on insufficient evidence and against the manifest weight of the

evidence. For the following reasons, the trial court’s judgment will be affirmed.

                             I. Facts and Procedural History

       {¶ 3} On March 23, 2019, police officers observed Webster driving southbound on

South Limestone Street in Springfield. The officers recognized Webster and were aware

that he did not have a valid driver’s license. When the officers turned on their overhead

lights to initiate a traffic stop, Webster sped up. The officers then turned on their siren,

which Webster ignored. Webster, driving 60 mph in a residential 25 mph area, ran

multiple stop stops and nearly collided with another vehicle. The officers ended their

pursuit due to the risk of harm.

       {¶ 4} On April 1, a grand jury indicted Webster for failure to comply with an order

or signal of a police officer, with the allegation that his operation of a motor vehicle caused

a substantial risk of serious physical harm to persons or property. Officers arrested

Webster on April 5.

       {¶ 5} On Monday, June 10, 2019, the trial court conducted a one-day jury trial,

during which Officers William Sanders and Tim Melvin testified for the State. Webster
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did not present any witnesses. He argued in defense, however, that he was not the

driver of the vehicle.

       {¶ 6} The jury began its deliberations around noon. At 12:48 p.m., the trial court

provided a modified Allen charge1 to the jury, apparently based on a representation that

the jury was deadlocked. The jury resumed its deliberations. At 3:33 p.m., the jury

returned to the courtroom, and the jury foreperson informed the court that there was no

possibility of the jury’s reaching a verdict with additional deliberation.     The court

discharged the jury, declared a mistrial based on a hung jury, and stated that court would

reconvene the next morning with a new jury.

       {¶ 7} A second jury trial commenced on Tuesday, June 11. Officers Sanders and

Melvin again were the only witnesses. After deliberations, the jury found Webster guilty

as charged. Three days later, after reviewing Webster’s prior criminal record, the court

orally imposed three years in prison. The court’s written judgment also included a 10-

year driver’s license suspension.

       {¶ 8} Webster appeals from his conviction, raising four assignments of error.

                         II. Double Jeopardy and Due Process

       {¶ 9} Webster’s first and second assignments of error state:

              Double Jeopardy attaches when the Defendant was denied the

       ability to Move for Acquittal by scheduling the Second Trial the day after

       Defendant’s first trial the ended in a mistrial.


1
 In Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L.Ed. 528 (1896), the U.S.
Supreme Court set forth a summary of the supplemental instruction to be given by a trial
court when jurors claimed they were deadlocked. See also State v. Howard, 42 Ohio St.3d
18, 537 N.E.2d 188 (1989); State v. Mullins, 2d Dist. Montgomery No. 27952, 2019-Ohio-
812, ¶ 62.
                                                                                       -4-


             Defendant was denied a right to due process when the Second Trial

      was scheduled the next immediate day after the first mistrial.

We will address them together.

      {¶ 10} In both assignments of error, Webster claims that the court’s decision to

schedule his retrial on the day following the mistrial deprived him of his constitutional

rights. Webster states that the court provided no explanation for scheduling the retrial

for the next day, and he was denied the opportunity to raise a Crim.R. 29(C) motion for a

judgment of acquittal.

      {¶ 11} The protections against double jeopardy provided in the Ohio and United

States Constitutions are coextensive. Clark v. Adult Parole Auth., 151 Ohio St.3d 522,

2017-Ohio-8391, 90 N.E.3d 909, ¶ 13, citing State v. Gustafson, 76 Ohio St.3d 425, 432,

668 N.E.2d 435 (1996). Under both Constitutions, the Double Jeopardy Clause protects

against three abuses: (1) a second prosecution for the same offense after acquittal, (2) a

second prosecution for the same offense after conviction, and (3) multiple punishments

for the same offense. E.g., State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d

892, ¶ 10, quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d

656 (1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201,

104 L.Ed.2d 865 (1989). None of these situations applies here.

      {¶ 12} “It is well-established that a mistrial as a result of a deadlocked jury does

not invoke double jeopardy implications.” State v. Zaragoza, 2d Dist. Montgomery No.

26706, 2016-Ohio-144, ¶ 44. As we stated in State v. Griffin, 2d Dist. Montgomery No.

21578, 2007-Ohio-2099:

      The Double Jeopardy Clause only applies “if there has been some event,
                                                                                          -5-


       such as an acquittal, which terminates original jeopardy.” Richardson v.

       U.S. (1984), 468 U.S. 317, 325, 104 S.Ct. 3081, 82 L.E.2d 242. “[A] trial

       court’s declaration of a mistrial following a hung jury is not an event that

       terminates the original jeopardy to which petitioner was subjected. The

       Government, like the defendant, is entitled to resolution of the case by

       verdict from the jury, and jeopardy does not terminate when the jury is

       discharged because it is unable to agree.” Id., at 326. In other words, a

       hung jury is not the equivalent of an acquittal. Id., at 325.

Id. at ¶ 10.

       {¶ 13} Webster does not challenge the trial court’s decision to declare a mistrial

due to a deadlocked jury. Stated differently, he does not claim that jeopardy attached

because the court improperly declared a mistrial. He was not retried after a conviction

or an acquittal, and this case does not involve multiple punishments for the same offense.

Webster’s challenge to the timing of his retrial implicates due process, not double

jeopardy. Accordingly, Webster’s first assignment of error is overruled.

       {¶ 14} Webster claims that the trial court’s scheduling of the retrial on the next day

violated his due process rights because it deprived him of the opportunity to file a motion

for a judgment of acquittal pursuant to Crim.R. 29(C). Crim.R. 29(C) provides:

       (C) Motion After Verdict or Discharge of Jury. If a jury returns a verdict

       of guilty or is discharged without having returned a verdict, a motion for

       judgment of acquittal may be made or renewed within fourteen days after

       the jury is discharged or within such further time as the court may fix during

       the fourteen day period. If a verdict of guilty is returned, the court may on
                                                                                            -6-


       such motion set aside the verdict and enter judgment of acquittal. If no

       verdict is returned, the court may enter judgment of acquittal. It shall not

       be a prerequisite to the making of such motion that a similar motion has

       been made prior to the submission of the case to the jury.

(Emphasis added.)

       {¶ 15} The right to due process is fundamentally “the opportunity to be heard ‘at a

meaningful time and in a meaningful manner.’ ” Mathews v. Eldridge, 424 U.S. 319, 333,

96 S.Ct. 893, 47 L.Ed.2d 18 (1976), quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85

S.Ct. 1187, 14 L.Ed.2d 62 (1965); Direct Plumbing Supply Co. v. Dayton, 138 Ohio St.

540, 544, 38 N.E.2d 70 (1941). Due process is a “flexible concept and calls only for such

procedural protection as a given situation demands.” Rice v. Islamic Ctr. of Peace, Inc.,

2019-Ohio-3396, 142 N.E.3d 156, ¶ 9 (2d Dist.), citing Mathews at 334 and Morrissey v.

Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

       {¶ 16} We recognize that, in certain civil contexts, courts have held that a trial court

violates a party’s right to due process when it rules on a motion without allowing the

opposing party the opportunity to respond to the motion as provided by the Ohio or local

rules of procedure. See, e.g., Hillabrand v. Drypers Corp., 87 Ohio St.3d 517, 721 N.E.2d

1029 (2000) (the trial court erred in dismissing an action without allowing the non-moving

party to respond, as allowed by procedural rules); Ohio Bell Tel. Co. v. C-5 Constr., Inc.,

2d Dist. Montgomery No. 23792, 2010-Ohio-4762, ¶ 25 (“A trial court errs in granting a

motion prior to the expiration of the time allowed by Rules of Civil Procedure or the court’s

local rules for the non-moving party to respond.”); Bank One, N.A. v. Wesley, 2d Dist.

Montgomery No. 20259, 2004-Ohio-6051 (the court denied defendants their right to due
                                                                                              -7-


process when it ruled on a motion for default judgment before defendants’ time to respond

had expired).

       {¶ 17} Although the trial court ordered Webster’s retrial to occur the day after the

mistrial, i.e., prior to the expiration of the time for filing a Crim.R. 29(C) motion, we find no

due process violation in the circumstances before us. Webster did not object when the

trial court stated that court would “reconvene tomorrow morning at 9:00 a.m. with a new

jury,” nor did Webster otherwise request that the trial court wait two weeks so that he

could consider whether to file a Crim.R. 29(C) motion. Webster again did not object on

June 11 prior to the beginning of the second trial. Webster was sentenced on June 14;

he did not file a Crim.R. 29(C) motion prior to that date or request a continuance of the

sentencing hearing so that such a motion could be filed.

       {¶ 18} While the better course may have been for the trial court to schedule the

second trial after the 14-day period had expired or to seek agreement of counsel as to

the second trial date, Webster had an opportunity to object to the June 11 trial date, but

did not. We cannot conclude that Webster’s due process rights were violated when the

June 11 retrial proceeded.

       {¶ 19} Webster further claims that his due process rights were violated, because

the State presented additional and contradictory evidence at the second trial. Webster

states that the officers added that they were part of the Safety Task Force, they identified

Webster by his street nickname, and they provided more information about how they

knew Webster. Webster further indicates that, at the second trial, the officers provided

different testimony as to the name of the owner of the vehicle that Webster allegedly was

driving.
                                                                                          -8-


         {¶ 20} Webster does not challenge the admissibility of the new evidence by the

officers. His only complaint about the new details presented at the second trial is that

they were not part of the officers’ testimony at the first trial. However, the State was not

required to present its case identically upon retrial. The State’s decision to provide

additional evidence at the second trial did not, without more, violate Webster’s due

process rights.

         {¶ 21} Moreover, defense counsel was able to address any differences or

inconsistencies in the witnesses’ testimony between the first and second trials through

cross-examination.     Here, defense counsel elicited testimony that the officers had

provided additional details at the second trial, and counsel argued in closing argument

that certain details (e.g., how Webster was arrested several days later and Melvin’s

seeing the black Kia SUV at the gym) were not “part of the sworn testimony earlier in the

case.”

         {¶ 22} We find no merit to Webster’s claim that his due process rights were

violated. Webster’s second assignment of error is overruled.

                  III. Sufficiency and Manifest Weight of the Evidence

         {¶ 23} Webster’s third and fourth assignments of error claim that his conviction

was against the manifest weight of the evidence and based on insufficient evidence.

Webster asserts that the State failed to present sufficient evidence that he was the driver

of the vehicle. He further argues that the officers’ testimony was not credible, particularly

given the differences in their testimony between the first and second trials.

         {¶ 24} “A sufficiency of the evidence argument disputes whether the State has

presented adequate evidence on each element of the offense to allow the case to go to
                                                                                          -9-


the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery

No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678

N.E.2d 541 (1997). The relevant inquiry is whether any rational finder of fact, after

viewing the evidence in a light most favorable to the State, could have found the essential

elements of the crime proven beyond a reasonable doubt. State v. Dennis, 79 Ohio St.3d

421, 430, 683 N.E.2d 1096 (1997). A guilty verdict will not be disturbed on appeal unless

“reasonable minds could not reach the conclusion reached by the trier-of-fact.” Id.

       {¶ 25} In contrast, when reviewing an argument challenging the weight of the

evidence, an appellate court may not substitute its view for that of the trier of fact, but

reviews 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 finder 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. Thompkins at 387, quoting

State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

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

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,

*4 (Aug. 22, 1997). The fact that the evidence is subject to different interpretations does

not render the conviction against the manifest weight of the evidence. Wilson at ¶ 14. A

judgment of conviction should be reversed as being against the manifest weight of the

evidence only in exceptional circumstances. Martin at 175.

       {¶ 27} In reviewing Webster’s claims, we must consider only the evidence before

the jury, which was the testimony of Officers Sanders and Melvin at the second trial on
                                                                                        -10-


June 11.

      {¶ 28} According to the State’s evidence at the second trial, on March 23, 2019,

Officers Sanders and Melvin were patrol officers with the Springfield Police Department.

Sanders testified that he previously worked for the Clark County Sheriff’s Office. Melvin

had two years of prior experience in other counties.       As patrol officers, the officers

performed traffic stops, took calls through dispatch, and investigated street-level crimes.

For a while, both Melvin and Sanders were members of the Safety Task Force, which

was brought together to combat street-level drugs crimes and violent crimes.

      {¶ 29} Officer Sanders testified that he grew up in Clark County, went to school

with Webster (who was a few years younger), and remembered Webster from school.

Sanders had several encounters with Webster while Sanders worked for the Clark County

Sheriff’s Office. Officer Sanders knew from his time on the Safety Task Force that

Webster went by the nickname “Smooth.” Sanders identified Webster at trial.

      {¶ 30} Officer Melvin testified that he first came into contact with Webster when he

(Melvin) responded to a shooting of which Webster was the victim; Melvin stated that he

tried to stop Webster’s bleeding until medics arrived. Officer Melvin testified that he had

seen Webster several other times in the community, specifically at high school basketball

games at which Melvin worked and at a Planet Fitness gym that they both patronized.

Melvin stated that he had seen Webster drive a black Kia SUV to and from the gym on

multiple occasions, including two or three days before the incident at issue. Officer

Melvin was familiar with how Webster styled his hair and the glasses he wore (gold

rimmed frame with clear lenses). Officer Melvin knew that Webster had the nickname

“Smooth.” Melvin also identified Webster at trial.
                                                                                         -11-


       {¶ 31} At 7:09 p.m. on March 23, 2019, Officers Sanders and Melvin were on

uniformed patrol in a marked cruiser when they observed a black Kia SUV traveling

southbound on South Limestone Street at approximately 35 mph (normal traffic). The

officers were stopped at the stop sign at the intersection of South Limestone and East

Liberty, facing westbound. It was still daylight, and traffic was light.

       {¶ 32} Officer Sanders testified that he had gotten a good look at the driver.

Officer Melvin testified that the driver was wearing a red shirt and gold rimmed glasses

and his hair was styled with dreadlocks braided backwards, a style Melvin recognized for

Webster. Both officers immediately recognized the driver as Webster and commented

to each other that Webster was driving. From their past experience with Webster, both

officers knew that Webster did not have a valid driver’s license.

       {¶ 33} Officer Melvin, who was driving the cruiser, turned onto South Limestone to

follow the Kia. The officers followed Webster as he turned to go westbound on West

Euclid, the street on which Webster lives. At some point, the officers ran the Kia’s license

plate; the vehicle was registered to a Springfield company. Officer Sanders testified that

the vehicle was a rental.

       {¶ 34} At the intersection with South Fountain, the officers activated the cruiser’s

overhead lights to initiate a traffic stop. Instead of stopping, however, Webster sped off

on West Euclid. As Webster approached the busy intersection of West Euclid and South

Center, the officers turned on their siren. Webster ran the stop sign at that intersection

and several other stop signs further down West Euclid. Melvin testified that Webster’s

speed was approximately 60 mph. Sanders described the pursuit, stating:

       So we continued westbound and following Mr. Webster also proceeding
                                                                                            -12-


       westbound. There was a car traveling northbound on Lowry. The car had

       to stop in order to avoid hitting Mr. Webster. At that point we stopped at

       the intersection. His vehicle [the vehicle on Lowry] was stopped directly in

       the middle of the intersection. Mr. Webster continued westbound and [at]

       that point there were vehicles parked on both sides of the road, so Mr.

       Webster actually went head on with a vehicle that was traveling eastbound

       as he was traveling westbound.

       {¶ 35} The officers indicated that, at that point, they turned off the cruiser’s lights

and sirens and terminated the pursuit due to how fast Webster was driving, his almost

causing an accident, and the presence of several people on the sidewalk.                Melvin

explained: “[W]hen there’s a pursuit and you know who the driver is, you already have

charges on him, there’s no reason to continue chasing somebody and somebody getting

hurt, so you can terminate the pursuit and file the charges.”

       {¶ 36} Officer Melvin testified that, four or five days after the pursuit, he and Officer

Sanders again encountered Webster. Melvin stated that they were watching Webster’s

home and, at that time, they saw Webster leave the residence and drive away in a silver

Dodge SUV owned by the same Springfield company as the Kia. (Sanders testified that

the officers did not see the Kia at Webster’s residence after the pursuit.) Officer Melvin

advised other officers to initiate a traffic stop due to Webster’s not having a valid license.

That time, Webster stopped and did not flee.

       {¶ 37} Defense counsel questioned the officers about their ability to identify

Webster as the driver, given the time of day and the Kia’s speed and distance from the

officers. Sanders testified that the sun was setting, but it was still daylight out. Defense
                                                                                          -13-


counsel also elicited testimony from Officer Sanders that South Limestone Street had five

lanes of traffic (two northbound, two southbound, and a turn lane), and that the Kia was

in the curb lane on the far side of the street from the officers’ stopped cruiser when it

passed the intersection with East Liberty. Officer Sanders testified that the Kia was

“approximately sixty feet away, so it wasn’t too far.” Sanders did not recall seeing the

driver look toward the officers, but Sanders emphasized that both he and Melvin were

“very familiar” with Webster and recognized him immediately.

       {¶ 38} During Melvin’s cross-examination, Melvin agreed that he had previously

testified about this case. He acknowledged that his prior testimony did not discuss

Melvin’s seeing the black SUV at the gym, nor did Melvin previously testify about seeing

Webster in the silver Dodge SUV. On further examination, Melvin acknowledged that

the vehicle Webster drove several days after the pursuit “may have been a Mazda. I

believe it was a Mazda 3, actually.”

       {¶ 39} Upon review of the evidence at trial, we cannot conclude that Webster’s

conviction was based on insufficient evidence or against the manifest weight of the

evidence. Both officers testified that they were familiar with Webster from multiple past

experiences and knew Webster on sight. Officer Melvin also had seen Webster driving

a black Kia SUV just a few days before the March 23 incident. Both officers testified that

Webster was the driver of the black Kia SUV on March 23, 2019. The State’s evidence,

if believed, was sufficient to prove that Webster was the driver of the black Kia.

       {¶ 40} In reaching its verdict, the jury was free to believe all, part, or none of the

testimony of each witness and to draw reasonable inferences from the evidence

presented. State v. Baker, 2d Dist. Montgomery No. 25828, 2014-Ohio-3163, ¶ 28. It
                                                                                          -14-


was the province of the jury, as the trier of fact, to weigh the evidence and determine

whether the State had proven, beyond a reasonable doubt, that Webster was the driver.

       {¶ 41} In this case, defense counsel elicited testimony that the officers saw the

black Kia SUV over four lanes of traffic, looking into the setting sun, while the vehicle was

traveling approximately 35 miles per hour. Officer Melvin acknowledged that he may

have been mistaken about the model of vehicle that Webster was driving on April 5, the

day he was arrested. Although the jury reasonably could have questioned whether the

officers accurately identified Webster as the driver, the jury also could have reasonably

believed the testimony of the officers, who knew Webster from multiple prior encounters.

Upon review of the evidence, we cannot conclude that the jury “lost its way” when it

determined that Webster was the driver of the black Kia and that he failed to comply with

an order or signal of a police officer.

       {¶ 42} Webster’s third and fourth assignments of error are overruled.

                                          IV. Conclusion

       {¶ 43} The trial court’s judgment will be affirmed.

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



HALL, J. and WELBAUM, J., concur.


Copies sent to:

John M. Lintz
Adam James Stout
Hon. Douglas M. Rastatter
