[Cite as State v. Deal, 2012-Ohio-3903.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               PUTNAM COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 12-12-04

        v.

RICKY E. DEAL,                                            OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Putnam County Common Pleas Court
                            Trial Court No. 2011 CR 43

                                      Judgment Affirmed

                            Date of Decision: August 27, 2012




APPEARANCES:

        Joseph A. Benavidez for Appellant

        Todd C. Schroeder for Appellee
Case No. 12-12-04


SHAW, P.J.

       {¶1} Defendant-appellant Ricky Deal appeals the December 23, 2011,

judgment of the Putnam County Common Pleas Court sentencing him to a total of

six years in prison following a jury trial wherein he was found guilty of Operating

a Vehicle Under the Influence (“OVI”) in violation of R.C. 4511.19(A)(1)(a) &

(G)(1)(e), a felony of the third degree, Tampering with Evidence in violation of

R.C. 2921.12(A)(2), a felony of the third degree, and Identity Fraud in violation of

R.C. 2913.49(B)(2), a felony of the fifth degree.

       {¶2} The facts relevant to this appeal are as follows. On April 2, 2011 at

approximately 1:11 A.M., a man identifying himself as Larry Deal was pulled

over by Officer Joseph Quintero for driving 69 mph in a 55 mph zone. The man

was, in fact, Ricky Deal using the name and social security number of his brother

Larry who, unlike Ricky, had no prior OVI convictions.

       {¶3} After admitting that he had been drinking, failing two field sobriety

tests and stating he was unable to perform the walk-and-turn test, Ricky, still

identifying himself as Larry Deal, was transported to the Putnam County jail for a

blood alcohol concentration (“BAC”) test. Ultimately after being transported,

Ricky refused to do the BAC test. In refusing, Ricky signed his refusal form

under the name of “Larry Deal.”




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       {¶4} “Larry Deal” was then charged with, inter alia, OVI. Ricky was

arraigned as Larry Deal and pled not guilty to the crime. Ricky then signed an OR

bond as Larry Deal so that he could be released pending trial.

       {¶5} Subsequently it was learned that Ricky had used his brother Larry’s

name during the proceedings. Ricky was then indicted on April 29, 2011, for OVI

in violation of R.C. 4511.19(A)(1)(a) & (G)(1)(e), a felony of the third degree

based on Ricky’s prior OVI convictions. Ricky was also indicted for Tampering

with Evidence in violation of R.C. 2921.12(A)(2), a felony of the third degree, and

Identity Fraud in violation of R.C. 2913.49(B)(2), a felony of the fifth degree.

       {¶6} On August 23, 2011, Ricky entered not guilty pleas to the charges in

the indictment.

       {¶7} The case proceeded to a jury trial on November 8-9, 2011.              On

November 9, 2011 the jury found Ricky guilty of all charges.

       {¶8} A sentencing hearing was held on December 13, 2011. The court

found that the Identity Fraud and the Tampering with Evidence charges were

allied offenses of similar import and merged them for purposes of sentencing. The

State elected to proceed with sentencing on the Tampering with Evidence

conviction. (Doc. 63). Ultimately Ricky was sentenced to four years incarceration

for the OVI, and two years incarceration for Tampering with Evidence. Ricky’s

sentences were to be served consecutively for a total period of incarceration of six


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Case No. 12-12-04


years. The sentence was memorialized in a “Judgment Entry of Sentence” filed by

the court December 23, 2011.

       {¶9} It is from the December 23, 2011 “Judgment Entry of Sentence” that

Ricky appeals, asserting the following assignments of error for our review.

                          ASSIGNMENT OF ERROR 1

       THE JURY ERRED IN FINDING APPELLANT GUILTY AS
       THE VERDICT WAS AGAINST THE MANIFEST WEIGHT
       OF EVIDENCE AND THERE WAS INSUFFICIENT
       EVIDENCE TO HAVE FOUND ALL ESSENTIAL
       ELEMENTS OF THE OFFENSE BEYOND A REASONABLE
       DOUBT.

                          ASSIGNMENT OF ERROR 2

       THE PROSECUTION PREJUDICED THE OUTCOME OF
       THE CASE THROUGH IMPROPER CLOSING ARGUMENT.

                             First Assignment of Error

       {¶10} In Ricky’s first assignment of error he argues there was insufficient

evidence to convict him and that his convictions were against the manifest weight

of the evidence. Ricky specifically argues that “there was no evidence presented

that [Ricky] was under the influence of alcohol * * * at the time he was operating

the vehicle.” (Appt. Br. at 4).

       {¶11} The Supreme Court of Ohio has “carefully distinguished the terms

‘sufficiency’ and ‘weight’ in criminal cases, declaring that ‘manifest weight’ and

‘legal sufficiency’ are ‘both quantitatively and qualitatively’ different. Eastley v.


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Volkman, --- Ohio St.3d ---, 2012-Ohio-2179, ¶ 10, quoting State v. Thompkins, 78

Ohio St.3d 380 (1997), paragraph two of the syllabus.

       {¶12} The Ohio Supreme Court has set forth the sufficiency of the evidence

test as follows:

       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 and 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), at syllabus, superseded by state

constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio

St.3d 89 (1997); Eastley, supra, at ¶ 10.

       {¶13} Unlike our review of the sufficiency of the evidence, an appellate

court’s function when reviewing the weight of the evidence is to determine

whether the greater amount of credible evidence supports the verdict. Eastley,

supra, at ¶ 12; State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). In reviewing

whether the trial court’s judgment was against the weight of the evidence, the

appellate court sits as a “thirteenth juror” and examines the conflicting testimony.

Id. In doing so, this Court must review the entire record, weigh the evidence and

all of the reasonable inferences, consider the credibility of witnesses, and


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determine whether in resolving conflicts in the evidence, the factfinder “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. Andrews, 3d Dist. No. 1-05-70,

2006-Ohio-3764, ¶ 30, citing State v. Martin, 20 Ohio App.3d 172, 175 (1983);

Thompkins, 78 Ohio St.3d at 387.

       {¶14} In this case, Ricky was indicted for, and found guilty of, OVI,

Tampering with Evidence, and Identity Fraud. The statutes corresponding to these

crimes as indicted read as follows.

       OVI -- R.C. 4511.19

       (A)(1) No person shall operate any vehicle, streetcar, or trackless
       trolley within this state, if, at the time of the operation, any of
       the following apply:

       (a) The person is under the influence of alcohol, a drug of
       abuse, or a combination of them.

       ***

       (G)(1) Whoever violates any provision of divisions (A)(1)(a) to (i)
       or (A)(2) of this section is guilty of operating a vehicle under the
       influence of alcohol, a drug of abuse, or a combination of them.

       ***

       (e) An offender who previously has been convicted of or
       pleaded guilty to a violation of division (A) of this section that
       was a felony, regardless of when the violation and the conviction
       or guilty plea occurred, is guilty of a felony of the third degree.
       The court shall sentence the offender to all of the following:



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Case No. 12-12-04


      (i) If the offender is being sentenced for a violation of division
      (A)(1)(a), (b), (c), (d), (e), or (j) of this section, a mandatory
      prison term of one, two, three, four, or five years as required by
      and in accordance with division (G)(2) of section 2929.13 of the
      Revised Code if the offender also is convicted of or also pleads
      guilty to a specification of the type described in section
      2941.1413 of the Revised Code or a mandatory prison term of
      sixty consecutive days in accordance with division (G)(2) of
      section 2929.13 of the Revised Code if the offender is not
      convicted of and does not plead guilty to a specification of that
      type. The court may impose a prison term in addition to the
      mandatory prison term. The cumulative total of a sixty-day
      mandatory prison term and the additional prison term for the
      offense shall not exceed five years. In addition to the mandatory
      prison term or mandatory prison term and additional prison
      term the court imposes, the court also may sentence the offender
      to a community control sanction for the offense, but the offender
      shall serve all of the prison terms so imposed prior to serving the
      community control sanction.

      Tampering with Evidence -- R.C. 2921.12

      (A) No person, knowing that an official proceeding or
      investigation is in progress, or is about to be or likely to be
      instituted, shall do any of the following:

      ***

      (2) Make, present, or use any record, document, or thing,
      knowing it to be false and with purpose to mislead a public
      official who is or may be engaged in such proceeding or
      investigation, or with purpose to corrupt the outcome of any
      such proceeding or investigation.

      Identity fraud -- R.C. 2913.49(B)(2)

      (B) No person, without the express or implied consent of the
      other person, shall use, obtain, or possess any personal
      identifying information of another person with intent to do
      either of the following:

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Case No. 12-12-04



       ***

       (2) Represent the other person's              personal       identifying
       information as the person's own               personal       identifying
       information.

       {¶15} To prove Ricky was guilty of the crimes alleged in the indictment,

the State first called Brian Williams of the Hancock County Sherriff’s Office.

Williams identified State’s Exhibits related to Ricky’s prior OVI convictions. (Tr.

187-195). Such convictions included one from 1995, one from 1998, one from

2000, and multiple convictions in 2007. (Id.); (State’s Ex. 1-8).

       {¶16} The State then called Joseph Quintero. Quintero was the officer that

stopped Ricky for speeding. Quintero testified that when he pulled Ricky over, he

noticed Ricky had a “glaze[d]” stare. (Tr. at 205). Quintero testified that Ricky

had to repeat his name four times because Quintero could not understand the

slurred speech. (Id.) Quintero testified that Ricky identified himself as Larry Deal

providing Larry’s social security number. (Tr. at 207).

       {¶17} According to Quintero, Ricky was not walking with good balance,

his eyes were red, and Ricky had said he had been drinking.             (Tr. at 209).

Quintero also testified that there was a wet spot on the front of Ricky’s pants that

he assumed was urine. (Tr. at 211). Quintero testified that Ricky told him that

Ricky had been at a party drinking and was made to leave when he caused

problems. (Tr. at 210). Quintero testified that minutes later, when Quintero asked

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Ricky about the party, Ricky asked Quintero how Quintero knew about the party.

(Tr. at 211).

        {¶18} Quintero testified that he administered the Horizontal Gaze

Nystagmus (HGN) test on Ricky. (Tr. at 215). Quintero testified that Ricky

completed the test but Ricky failed, showing six of six clues for impairment. (Tr.

at 215-216). According to Quintero, Ricky said an injury prevented him from

performing the walk and turn test, but Ricky did undertake the one leg stand test,

which Ricky also failed. (Tr. at 217). Further, Quintero testified that when he

searched Ricky’s car, he found a half bottle of Jack Daniel’s on the right front

passenger floor board. (Tr. at 218).

        {¶19} According to Quintero, Ricky refused to do a BAC test when

Quintero took him back to the station. (Tr. at 225-26). Ricky, still identifying

himself as Larry Deal, signed his name on the refusal form as “Larry Deal,” and

signed his name on the citation Quintero wrote out as “Larry Deal.” (Tr. at 227-

229).

        {¶20} Quintero testified that it was April 6, 2011, when he learned that the

man who had identified himself as Larry Deal was, in fact, Ricky Deal as Larry

Deal had called Quintero once he was apprised of the fact that he had been

charged with a crime. (Tr. at 231). The real Larry Deal met with Quintero and




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Case No. 12-12-04


Quintero did not recognize him. (Tr. at 231). Subsequently a warrant was issued

for Ricky.

       {¶21} The next witness the State called was Abbot Carter of the Ottawa

Police Department. Carter testified that he witnessed Ricky sign Larry Deal’s

name on the 2255 refusal form for the BAC test. (Tr. at 248). Carter further

testified that the man identifying himself as Larry Deal had slurred speech, glassy

eyes and there was an odor of alcohol about him. (Tr. at 252).

       {¶22} The State then called Larry Deal. Larry Deal testified that Ricky did

not have Larry’s permission to use Larry’s identity. (Tr. at 281). Larry Deal also

testified that Ricky later apologized for using his identity. (Tr. at 282).

       {¶23} Next the State called Kim Redman, a Putnam County Municipal

Court Clerk. Redman identified the audio tape of the arraignment of “Larry Deal”

and also identified a paper that was provided to “Larry” at arraignment which was

signed by Ricky as “Larry Deal.”

       {¶24} The State then called Susan Maag, the Clerk of Courts for Putnam

County Municipal Court. Maag testified that following the arraignment of “Larry

Deal” she recalled Ricky coming to her to sign his bond to be released on his own

recognizance. (Tr. at 292-294). Maag testified she recognized Ricky as the man

that signed his name after arraignment as “Larry Deal.” (Id.)




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       {¶25} Finally, the State called Roy Sargent, a detective from the Putnam

County Sherriff’s Office. Sargent testified that he listened to phone calls made by

Ricky wherein Ricky admitted to using his brother’s identification and name on

the ticket he was given, in the courtroom at arraignment, and in signing the

documents at the court proceedings. (Tr. at 299). The State then rested its case.

       {¶26} In his defense, Ricky first called Lee Ann Ewing who testified that

she was with Ricky at a gathering earlier in the night when he was pulled over

until around 11 p.m. (Tr. at 321). Lee Ann testified she saw Ricky have one beer

but that she was not watching Ricky all night. (Tr. at 323). Lee Ann testified she

later picked Ricky up after he was charged for OVI as Larry Deal and that at that

time she thought Ricky did not sound drunk. (Tr. at 324). Lee Ann also testified

she did not notice a wet spot on his pants. (Tr. at 324).

       {¶27} Ricky then called Toby Deal, his nephew, who had hosted a

gathering Ricky attended earlier that night. Toby testified that Ricky was never

asked to leave and that Ricky had one or two beers at the gathering. (Tr. at 333).

       {¶28} Based on the foregoing testimony and the exhibits entered into

evidence, we find that there was sufficient evidence presented by the State to

satisfy all elements of the crimes Ricky was charged with, namely, OVI,

Tampering with Evidence, and Identity Fraud.




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       {¶29} Despite Ricky’s argument on appeal that his convictions were also

against the manifest weight of the evidence, there is substantial credible evidence

in the record to support the jury’s conviction. While Ricky argues on appeal that

Ricky only failed the sobriety tests administered by Officer Quintero because it

was windy and that Officer Quintero performed the sobriety tests incorrectly, there

is ample credible evidence to find that Ricky was intoxicated.

       {¶30} Testimony was provided by Patrolman Quintero that Ricky’s speech

was so slurred Quintero had to have Ricky repeat his name four times, that

Ricky’s eyes were red, that Ricky failed the two sobriety tests he was given, that

Ricky admitted to drinking, that Ricky had a wet spot on the front of his pants and

that Ricky had a half bottle of Jack Daniel’s in his car. Moreover, Officer Carter

testified that the man identifying himself as Larry had slurred speech, glassy eyes

and smelled of alcohol. Accordingly we do not find that the factfinder “clearly

lost its way in convicting Ricky of OVI.

       {¶31} As to the Tampering with Evidence and the Identity Fraud charges,

there was ample evidence to establish proof beyond a reasonable doubt of Ricky

using the identity of his brother Larry Deal throughout the stop and the early court

proceedings. Ricky signed his brother Larry’s name on the traffic ticket, presented

himself as Larry in court for arraignment, then signed official court documents at

arraignment as Larry.     Under these circumstances, we do not find that the


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factfinder “clearly lost its way” in convicting Ricky of Tampering with Evidence

and Identity Fraud.

       {¶32} Based on the foregoing we find that there was sufficient evidence to

convict Ricky, and that Ricky’s convictions were not against the manifest weight

of the evidence. Accordingly, Ricky’s first assignment of error is overruled.

                            Second Assignment of Error

       {¶33} In Ricky’s second assignment of error he argues that statements

made by the State in closing argument were improper and prejudiced the outcome

of the trial. Specifically Ricky argues that the State made comments regarding

witnesses’ credibility “and tried to establish that an officer should be held to

higher credibility than other witnesses.” (Appt. Br. at 5).

       {¶34} The test regarding prosecutorial misconduct during closing

arguments is whether the remarks were improper and, if so, whether they

prejudicially affected the substantial rights of the defendant. State v. Davis, 116

Ohio St.3d 404, 2008-Ohio-2, ¶ 231. “In making this determination, an appellate

court should consider several factors: (1) the nature of the remarks, (2) whether an

objection was made by counsel, (3) whether corrective instructions were given by

the court, and (4) the strength of the evidence against the defendant.” State v.

Braxton, 102 Ohio App.3d 28, 41 (8th Dist. 1995).             “The touchstone of the

analysis ‘is the fairness of the trial, not the culpability of the prosecutor.’” Davis,


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Case No. 12-12-04


supra, at ¶ 231 quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940 (1982).

Prosecutorial misconduct is generally not grounds for reversal unless it so taints

the proceedings as to deprive the defendant of a fair trial. State v. Johns, 3d. Dist.

No. 13-04-23, 13-04-24, 13-04-25, 2005-Ohio-1694, ¶ 25.

       {¶35} In this case, Ricky is claiming that the following portion of the

State’s rebuttal closing argument was improper:

       And in order to find the defendant not guilty on the OVI, the
       only way that could happen is for you to conclude that Officer
       Quintero lied about his observations; that Officer Carter lied
       about the odor of alcohol, the slurred speech, and the bloodshot
       eyes. That is the only way to find him not guilty. You must
       make that determination that those officers lied to you, because
       they presented to you a series of observations, any one of which
       could cause you to conclude that the defendant was under the
       influence of alcohol.

       You were also told about the conversation, the admissions to
       drinking and so forth. So, again, that’s the only way you could
       find him not guilty of that offense.

       But we know who the liar is.           It’s not the officers, it’s this
       defendant.

(Emphasis Added.) (Tr. at 369).

       {¶36} Ricky specifically objects to the italicized portion of the language

arguing that the language was improper and “extremely prejudicial” to the

defense. However, we do not find that this statement was improper, nor do we

find that it so tainted the proceedings as to deprive Ricky of a fair trial.



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       {¶37} First, the State was making a fair characterization of the evidence.

Evidence had been presented at trial that Ricky had continuously lied and misled

authorities about his identity. Second, in his own closing argument, Ricky’s

counsel questioned the credibility of the testimony of Patrolman Quintero. As a

result, the prosecutor’s statement is in line with responding to defense allegations

about Quintero. Finally, the evidence against Ricky was substantial and there is

no showing how this one statement prejudiced Ricky so seriously that a new trial

is warranted. Accordingly, Ricky’s second assignment of error is overruled.

       {¶38} For the foregoing reasons Ricky’s assignments of error are overruled

and the judgment of the Putnam County Common Pleas Court is affirmed.

                                                               Judgment Affirmed

WILLAMOWSKI and ROGERS, J.J., concur.

/jlr




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