[Cite as State v. Billman, 2010-Ohio-4852.]
                             STATE OF OHIO, MONROE COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT

STATE OF OHIO,                                   )
                                                 )
        PLAINTIFF-APPELLEE,                      )
                                                 )
V.                                               )          CASE NO. 09-MO-10
                                                 )
SEBASTIAN T. BILLMAN,                            )                OPINION
                                                 )
        DEFENDANT-APPELLANT.                     )

CHARACTER OF PROCEEDINGS:                        Criminal Appeal from Court of Common
                                                 Pleas of Monroe County, Ohio
                                                 Case No. 2008-293

JUDGMENT:                                        Affirmed

APPEARANCES:
For Plaintiff-Appellee                           Attorney Thomas A. Hampton
                                                 P.O. Box 430
                                                 101 N. Main Street, Room 15
                                                 Woodsfield, Ohio 43792

For Defendant-Appellant                          Attorney John A. Vavra
                                                 132 West Main Street
                                                 P.O. Box 430
                                                 St. Clairsville, Ohio 43950




JUDGES:

Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite


                                                 Dated: September 30, 2010
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DONOFRIO, J.

       {¶1}    Defendant-appellant, Sebastian Billman, appeals from a Monroe
County Common Pleas Court decision convicting him of felony failure to comply with
an order or signal of a police officer.
       {¶2}    On October 4, 2008, Ohio State Highway Patrol Trooper Brian
McFarland was traveling northbound on State Route 145 when he observed
appellant traveling southbound at an excessive rate of speed. The trooper's radar
measured appellant's oncoming speed at between 80 and 81 miles per hour. While
still about 100 to 200 feet in front of appellant, Trooper McFarland activated his
overhead lights and extended his left arm outside the window to signal appellant to
pull over. Despite seeing the flashing lights and making eye contact with the trooper,
appellant passed by Trooper McFarland without stopping. Appellant admitted he did
not stop the car because he was trying to avoid the trooper. Accelerating to 85 miles
per hour, appellant continued southbound for about another half mile before losing
control of his vehicle at an intersection and striking a stopped car causing over
$1,000 worth of damage. Appellant told the owner of the other car that an officer was
chasing him.
       {¶3}    When Trooper McFarland arrived at the accident scene, he charged
appellant with failure to comply with an order or signal of a police officer, a first-
degree misdemeanor violation of R.C. 2921.331(A).
       {¶4}    Subsequently, a grand jury indicted appellant with a violation of R.C.
2921.331(B), a third-degree felony because it alleged that appellant caused a
substantial risk of serious physical harm to persons or property while fleeing or
eluding the police.
       {¶5}    After a bench trial, the trial court found appellant guilty as charged. The
court later sentenced appellant to three years of community control, a three-year
driver's license suspension, and a $300 fine. Appellant filed a timely notice of appeal
on November 25, 2009.
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       {¶6}   Appellant raises a single assignment of error, which states:
       {¶7}   “THE TRIAL COURT AS THE TRIER OF FACT ERRED IN FINDING
THE APPELLANT GUILTY OF VIOLATING OHIO REVISED CODE §2921.331(B)
AS A FELONY OF THE THIRD DEGREE, RATHER THAN A MISDEMEANOR,
WHERE THAT FINDING IS NOT SUPPORTED BY THE WEIGHT OF THE
EVIDENCE.”
       {¶8}   Appellant admits the violation here, but contends the felony conviction
is against the manifest weight of the evidence. He argues that his misconduct did not
rise to the felony level and he should have only been convicted of a misdemeanor.
       {¶9}   In support of this position, appellant urges this court to consider the
testimony of Carol Prout, whose car appellant crashed into, who voiced her surprise
at the felony charge since there were no injuries. Appellant also relies on Trooper
McFarland's opinion that appellant's misconduct did not rise to the level of a felony.
Trooper McFarland's opinion was based on the Highway Patrol policy that officers
should not charge someone with felony fleeing and eluding unless the officer is
directly behind the vehicle in pursuit.    Appellant contends that because Highway
Patrol policy dictates that a pursuit is necessary for a felony charge and because
there was no pursuit, the trial court erred in convicting him of a felony.
       {¶10} Appellant then refers to the factors listed in R.C. 2921.331(C)(5)(b),
which are used for consideration in sentencing, and include such things as the
duration and distance of the pursuit, the offender’s rate of speed, whether the
offender failed to stop for traffic lights, and whether the offender committed a moving
violation during the pursuit.    Appellant points out that none of the pursuit-based
sentencing factors from R.C. 2921.331(C)(5)(b) were present in this case.
       {¶11} In addition, appellant points out that plaintiff-appellee, the State of Ohio,
offered no evidence to establish his speed at the time of the crash. Appellant
contends that by not providing evidence of his vehicle's speed at the time of the
crash, the State failed to prove beyond a reasonable doubt that he caused any
substantial risk of serious physical harm. Appellant also refers to the accumulation of
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gravel on the road to imply a reasonable doubt regarding whether or not the crash
was the result of any substantial risk of serious physical harm caused by appellant
fleeing from police.
       {¶12} In determining whether a verdict is against the manifest weight of the
evidence, an appellate court must review the entire record, weigh the evidence and
all reasonable inferences 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.
Thompkins (1997), 78 Ohio St.3d 380, 387. “Weight of the evidence concerns ‘the
inclination of the greater amount of credible evidence, offered in a trial, to support
one side of the issue rather than the other.’” Id. (Emphasis sic.) In making its
determination, a reviewing court is not required to view the evidence in a light most
favorable to the prosecution but may consider and weigh all of the evidence
produced at trial. Id. at 390.
       {¶13} Still, determinations of witness credibility, conflicting testimony, and
evidence weight are primarily for the trier of the facts. State v. DeHass (1967), 10
Ohio St.2d 230, paragraph one of the syllabus.
       {¶14} A reviewing court will not reverse a judgment as being against the
manifest weight of the evidence in a bench trial where the trial court could reasonably
conclude from substantial evidence that the state has proved the offense beyond a
reasonable doubt. State v. Eskridge (1988), 38 Ohio St.3d 56, 59. Unlike a manifest
weight challenge to a conviction resulting from a jury verdict, which requires a
unanimous concurrence of all three appellate judges to reverse, a manifest weight
challenge to a conviction resulting from a bench trial requires only a majority
concurrence to reverse. Struthers v. Williams, 7th Dist. No. 07-MA-55, 2008-Ohio-
6637, at ¶10.
       {¶15} The court convicted appellant of violating R.C. 2921.331(B), which
provides: “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
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the person's motor vehicle to a stop.” The offense was a third-degree felony because
the operation of the motor vehicle caused a “substantial risk of serious physical harm
to persons or property.” R.C. 2921.331(C)(5)(a)(ii).
       {¶16} A “substantial risk” is “a strong possibility, as contrasted with a remote
or significant possibility, that a certain result may occur or that certain circumstances
may exist.” R.C. 2901.01(A)(8).
       {¶17} “‘Serious physical harm to persons’ means any of the following:
       {¶18} “(a) Any mental illness or condition of such gravity as would normally
require hospitalization or prolonged psychiatric treatment;
       {¶19} “(b) Any physical harm that carries a substantial risk of death;
       {¶20} “(c) Any physical harm that involves some permanent incapacity,
whether partial or total, or that involves some temporary, substantial incapacity;
       {¶21} “(d) Any physical harm that involves some permanent disfigurement or
that involves some temporary, serious disfigurement;
       {¶22} “(e) Any physical harm that involves acute pain of such duration as to
result in substantial suffering or that involves any degree of prolonged or intractable
pain.” R.C. 2901.01(A)(5).
       {¶23} And “‘[s]erious physical harm to property’ means any physical harm to
property that does either of the following:
       {¶24} “(a) Results in substantial loss to the value of the property or requires a
substantial amount of time, effort, or money to repair or replace;
       {¶25} “(b) Temporarily prevents the use or enjoyment of the property or
substantially interferes with its use or enjoyment for an extended period of time.”
R.C. 2901.01(A)(6).
       {¶26} To determine whether appellant’s conviction was supported by the
weight of the evidence, we must examine all of the evidence presented at trial.
       {¶27} Trooper McFarland testified that while traveling northbound on State
Route 145, he clocked appellant traveling southbound at between 80 and 81 miles
per hour. (Tr. 22). He stated that this was “very excessive of the posted speed limit.”
                                                                                 -6-


(Tr. 22). Trooper McFarland immediately activated his overhead lights while still 100
to 200 feet in front of appellant. (Tr. 23-24). In addition, Trooper McFarland made
eye contact with appellant and extended his left arm out the window to signal
appellant to pull over. (Tr. 24). Instead of pulling over, appellant accelerated. (Tr.
25). Trooper McFarland's clocked appellant traveling away from him at 85 miles per
hour. (Tr. 25).
       {¶28} Trooper McFarland turned around to pursue appellant. (Tr. 25). He
testified that he traveled approximately one-half mile to the intersection of State
Route 145 and County Road 2 where he discovered the accident that had occurred
between appellant’s and Prout’s vehicles. (Tr. 25-26, 28). The speed limit on County
Road 2 is 55 miles per hour. (Tr. 41).          Trooper McFarland stated that upon
questioning, appellant admitted that he had seen the lights on the trooper’s cruiser
and kept on going. (Tr. 34). Appellant also told Trooper McFarland that when his
front tires hit some gravel his car began to slide and he could not stop to avoid hitting
Prout’s vehicle. (Tr. 34). When Trooper McFarland asked appellant why he did not
stop when he saw the flashing lights, appellant told him that he “freaked” and was an
“idiot.” (Tr. 35). Appellant also told Trooper McFarland that he was trying to avoid
him. (Tr. 36). Trooper McFarland testified that no one was physically injured and the
only damage was to the two vehicles involved.           (Tr. 36-37).   As a result of his
investigation, Trooper McFarland issued a Uniform Traffic Ticket charging appellant
with a misdemeanor violation. (Tr. 37-38).
       {¶29} On cross-examination, Trooper McFarland testified that there was no
pursuit here. (Tr. 38). He also stated that he believed that appellant’s conduct did
not rise to the felony level. (Tr. 38). This was because he was taught at the Highway
Patrol that he was not to charge someone with felony fleeing and eluding unless he
was directly behind the vehicle in pursuit. (Tr. 41).
       {¶30} Prout testified next. She stated that as she approached the intersection
of State Route 145 and County Road 2, she witnessed appellant approaching “pretty
fast.” (Tr. 46). Prout testified that she stopped her car to try to prevent a bigger
                                                                              -7-


crash. (Tr. 46). Prout watched as appellant's car started to slide sideways and then
collided with her bumper. (Tr. 46). The crash caused over $1,000 worth of damage
to Prout's vehicle. (State’s Ex. 7). When appellant exited his vehicle, he told Prout
that a police officer was chasing him. (Tr. 48). When Prout asked appellant what he
had done, he replied that he just saw the officer and fled. (Tr. 48). On cross-
examination, Prout stated that she was surprised that this matter was a felony
charge. (Tr. 50).
       {¶31} Appellant called his mother, Misty Billman, in his defense. However,
she offered no testimony as to the circumstances surrounding appellant’s speeding,
the attempted stop by Trooper McFarland, or the crash.          She only offered the
testimony that Trooper McFarland had indicated to her that he would not charge
appellant with a felony. (Tr. 56).
       {¶32} This evidence supports appellant’s conviction.            The evidence
demonstrated, beyond a reasonable doubt, that appellant failed to comply with
Trooper McFarland’s signal to pull over, that he instead chose to flee from Trooper
McFarland at a high rate of speed that was “very excessive” of the posted speed
limit, and that in doing so appellant crashed into Prout’s vehicle causing serious
physical damage to it, requiring over $1,000 in repairs.
       {¶33} In cases where an actual collision occurred, courts have considered this
fact significant in proving a substantial risk of serious physical harm. In State v.
George, 8th Dist. No. 90511, 2008-Ohio-5128, for example, while fleeing from police,
the appellant lost control of his vehicle and crashed into a fire hydrant, resulting in
$1,183.63 worth of damage to the hydrant. The court found this to be persuasive
evidence of a substantial risk of serious physical harm. And in State v. Payne, 3d
Dist. No. 5-04-21, 2004-Ohio-6487, at ¶19, the court detailed the chase the appellant
led police on and continued: “Furthermore, the chase ended when Payne wrecked
his car, causing his vehicle significant damage. Not only did Payne put his
passenger, other drivers, and himself in substantial risk of serious harm through his
reckless driving, but he actually did cause serious property damage when he crashed
                                                                              -8-


his automobile into a piece of farm equipment.”
      {¶34} And courts have found that even in cases where no collision occurred,
the defendant’s conduct rose to the level of felony fleeing and eluding based on the
substantial risk of serious physical harm. See State v. Hopkins, 5th Dist. No. 09-CA-
66, 2010-Ohio-2441, at ¶24 (“the mere fact that Appellant did not cause an actual
collision with another vehicle or serious harm is irrelevant. Here, he was convicted
under R.C. 2921.331(C)(5)(a)(ii), which deals with a “substantial risk.” Because
Appellant was fortunate enough not to actually cause harm is of no consequence.”);
State v. Hall, 8th Dist. No. 92625, 2009-Ohio-5695, at ¶19 (“the mere fact that Hall
did not cause an actual collision or serious harm is irrelevant. Here, Hall was
convicted under R.C. 2921.331(C)(5)(a)(ii), which deals with a ‘substantial risk.’”);
State v. Love, 9th Dist. No. 21654, 2004-Ohio-1422, at ¶19 (“jury could also
reasonably find that the failure of Appellant to engage in a ‘near collision’ speaks to
nothing more than Appellant's good luck and the careful driving on the part of other
motorists on the road”).
      {¶35} Furthermore, appellant's argument that the opinion of the trooper and
the victim should mitigate his charge is without merit in the law. The decision of what
charge to bring before the grand jury is at the prosecutor’s discretion.      State v.
Boddie, 170 Ohio App.3d 590, 2007-Ohio-626, at ¶9, citing United States v.
Batchelder (1979), 442 U.S. 114, 123-24, 99 S.Ct. 2198. And according to R.C.
2939.08, the grand jury shall “inquire of and present all offenses committed within the
county.”   Consequently, the grand jury is empowered to return an indictment
according to the facts in evidence, even though the indictment may differ from the
original charge.    State v. Klingenberger (1925), 113 Ohio St. 418, 425-26
(superseded by statute as stated in State v. Wilson [1995], 73 Ohio St.3d 40). The
State may properly bring charges against an individual under any statute that
proscribes the criminal behavior. State v. Miles (1983), 8 Ohio App.3d 410, 411.
Thus, the decision of what charge to bring was ultimately within the discretion of the
prosecutor and the grand jury, not Trooper McFarland or Prout.
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       {¶36} In addition, in determining whether the conviction is supported by the
manifest weight of the evidence, this court need not consider the factors listed under
R.C. 2921.331(C)(5)(b)(i-ix). Those factors are listed explicitly for use in sentencing
and not for determining guilt or innocence.
       {¶37} Finally, appellant brings up an issue regarding whether or not there is
reasonable doubt that “the operation of the motor vehicle by the offender caused a
substantial risk of serious physical harm to persons or property.”                 R.C.
2921.331(C)(5)(a)(ii).   But the evidence of the accident speaks for itself.        The
evidence shows that during appellant's flight, he lost control of his vehicle and
crashed into a stopped car causing over $1,000 worth of damage.               Because
appellant actually crashed into and damaged another car during his flight, appellant
necessarily caused a substantial risk of serious physical harm to property.
Accordingly, appellant's argument concerning the gravel on the road being a
contributing factor and the uncertainty of his speed at the time of the collision are
without merit.    The trial court was correct in concluding appellant caused a
substantial risk to property.
       {¶38} Accordingly, appellant’s sole assignment of error is without merit.
       {¶39} For the reasons stated above, appellant's conviction is hereby affirmed.

Vukovich, P.J., concurs.

Waite, J., concurs.
