[Cite as State v. Beggs, 2013-Ohio-3440.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :       JUDGES:
                                             :
                                             :       Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellee                 :       Hon. Patricia A. Delaney, J
                                             :       Hon. Craig R. Baldwin, J.
                                             :
-vs-                                         :
                                             :
DEREK BEGGS                                  :       Case No. 13 CAC 01 0004
                                             :
                                             :
        Defendant - Appellant                :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Delaware Municipal
                                                     Court, Case No. 12-CRB-01984 and
                                                     12-CRB-02227




JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    August 6, 2013




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

DANIEL J. BREYER                                     DOMINIC J. VITANTONIO
Senior Assistant Attorney General                    Argie, D'Amico & Vitantonio
1600 Carew Tower                                     6449 Wilson Mills Road
441 Vine Street                                      Mayfield Village, OH 44143
Cincinnati, OH 45202
Delaware County, Case No. 13 CAC 01 0004                                                    2



Baldwin, J.

     {¶1}     Appellant Derek Beggs appeals a judgment of the Delaware Municipal

Court convicting him of two counts of dereliction of duty in violation of R.C.

2921.44(A)(2) and fining him $500 on each count. Appellee is the State of Ohio.

                            STATEMENT OF FACTS AND CASE

     {¶2}     At approximately 9:00 p.m. on July 28, 2012, a number of travelers on

Interstate 71 in Delaware County notified local law enforcement agencies of a reckless

driver they believed to be intoxicated. The vehicle was a gray Ford F150 pickup truck.

The truck was later determined to be driven by Uriel Juarez-Popoca, but it was not

registered to Popoca.

     {¶3}     Appellant, a deputy with the Delaware County Sherriff’s Department,

arrived on the scene with his coworker, Deputy Christopher Hughes. Trooper Sean

Carpenter of the Ohio State Highway Patrol later arrived on the scene. When appellant

discovered the truck, it was lodged between the guardrail and the guardwires in the

median strip, apparently after the driver attempted a U-turn.        There were multiple

license plates in the vehicle and beer cans in the passenger compartment. The keys

were in the ignition.    Popoca was alone in the vehicle, and spoke little English.

Appellant commented to Carpenter that Popoca was so drunk that when he hit Popoca

with the light, Popoca looked at him “like, I’m so drunk, I don’t know who you are.”

     {¶4}     The deputies did not identify Popoca at the scene.        They transmitted

information to the dispatcher that the incident was a disabled vehicle, not a DUI case. A

translator had been dispatched from the highway patrol, but Carpenter called off the

translator, stating that the county deputies were handling the situation.   A corrections
Delaware County, Case No. 13 CAC 01 0004                                                     3


officer with the Sherriff’s Department who minored in Spanish in college spoke to

Popoca by telephone. He tried to communicate to Popoca that he needed to find a ride

because he was not allowed to drive.       Popoca had a friend named Christy who he

could call for a ride. Deputy Hughes then transported Popoca to a nearby Taco Bell

restaurant to await his ride. Appellant radioed that Hughes would be transporting his

“new amigo” to Taco Bell. Appellant told the officer who translated for Popoca that

Popoca still did not understand what was going on.

     {¶5}     Shortly after Popoca was dropped off at Taco Bell, dispatch received a call

from the manager that an intoxicated man was at the restaurant attempting to get

someone to give him a ride to his truck on Interstate 71. The manager could smell

alcohol on appellant. Because a teenager was working the front counter, the manager

left her position on the food line and attempted to get Popoca out of the restaurant.

Although he did not disturb people in the restaurant, the manager was concerned about

his presence in the restaurant in his intoxicated state, and locked the lobby early to

keep him outside so he would not disrupt customers.

     {¶6}     Popoca left the Taco Bell and walked across the street to a Wendy’s

restaurant.   When Deputy Hughes arrived at Taco Bell, the manager told him that

Popoca went to the Wendy’s across the street. She saw Hughes go to Wendy’s, where

he stayed for approximately fifteen minutes before leaving and driving in the direction of

the police station.

     {¶7}     Popoca was later struck and killed by a motorist on Route 36/37, after

walking a little over a mile from Wendy’s. His blood alcohol level after his death was

determined to be .23.      Appellant texted the corrections officer who provided the
Delaware County, Case No. 13 CAC 01 0004                                                     4


translation for Popoca to not talk about the situation at work because the man was later

struck and killed.

     {¶8}     Appellant was charged with two counts of dereliction of duty in violation of

R.C. 2921.44(A)(2). Deputy Hughes and Trooper Carpenter were also charged with

dereliction of duty. Hughes pled guilty prior to trial. Appellant and Carpenter were

jointly tried before a jury. Appellant was convicted of both counts and fined $500 on

each count. He assigns the following errors on appeal:

     {¶9}     “I. THE VERDICT OF GUILTY ON THE CHARGE OF DERELICTION OF

DUTY,       FOR      ALLEDGEDLY   NEGLIGENTLY       FAILING     TO    APPREHEND       AN

OFFENDER, IS NOT SUSTAINED BY SUFFICIENT EVIDENCE.

     {¶10}    “II.    THE VERDICT OF GUILTY ON THE CHARGE OF DERELICTION

OF DUTY, FOR ALLEGEDLY NEGLIGENTLY FAILING TO PREVENT OR HALT THE

COMMISSION OF THE OFFENSE OF DISORDERLY CONDUCT IS NOT SUSTAINED

BY SUFFICIENT EVIDENCE.

     {¶11}    “III.    THE VERDICT OF GUILTY ON THE CHARGE OF DERELICTION

OF DUTY, FOR ALLEGEDLY NEGLIGENTLY FAILING TO APPREHEND AN

OFFENDER, IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

     {¶12}    “IV.     THE VERDICT OF GUILTY ON THE CHARGE OF DERELICTION

OF DUTY, FOR ALLEGEDLY NEGLIGENTLY FAILING TO PREVENT OR HALT THE

COMMISSION OF THE OFFENSE OF DISORDERLY CONDUCT, IS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.

     {¶13}    “V.     THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION

IN LIMINE REGARDING (1) THE ADMISSION OF EVIDENCE CONCERNING THE
Delaware County, Case No. 13 CAC 01 0004                                                     5


DEATH OF POPOCA AND (2) THE ADMISSION OF EVIDENCE CONTAINING

CERTAIN PORTIONS OF AN AUDIO TAPED PHONE CALL DISCUSSION BETWEEN

APPELLANT AND CORRECTIONS OFFICER WILLIAMS.”

                                             I., III.

     {¶14}   In his first and third assignments of error, appellant argues that the

judgment is against the manifest weight and sufficiency of the evidence because the

evidence established that he apprehended Popoca.

     {¶15}   In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire

record, weighs the evidence and all reasonable inferences, considers the credibility of

witnesses, and determines whether in resolving conflicts in 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, 78 Ohio St. 3d 380, 387,

1997-Ohio-52, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485

N.E.2d 717 (1983).

     {¶16}   An appellate court's function when reviewing the sufficiency of the

evidence is to determine 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, 574

N.E.2d 492, paragraph two of the syllabus (1991).

     {¶17}   Appellant was convicted of violating R.C. 2921.44(A)(2):

     {¶18}   “(A) No law enforcement officer shall negligently do any of the following:
Delaware County, Case No. 13 CAC 01 0004                                                     6


     {¶19}   “(2) Fail to prevent or halt the commission of an offense or to apprehend

an offender, when it is in the law enforcement officer's power to do so alone or with

available assistance.”

     {¶20}   Appellant argues that because he removed Popoca from the truck and

handcuffed him, he apprehended Popoca within the meaning of the statute and

completed his obligation.

     {¶21}   The trial court instructed the jury that apprehend means “to take hold of

actually and bodily, and it may include seizing or arresting a person.” While appellant

temporarily apprehended Popoca, the evidence supports the jury’s finding that he then

released Popoca to Hughes knowing he was going to be dropped off at Taco Bell and

no longer under police control. Further, there was evidence that appellant was aware

that Popoca was intoxicated and that although he reported the incident as a disabled

vehicle, Popoca had been driving recklessly, callers reporting his driving believed him to

be intoxicated, and Popoca had recklessly driven the vehicle into the area of the median

where appellant found it resting.

     {¶22}   The judgment finding that appellant did not apprehend Popoca within the

meaning of the statute is not against the manifest weight or sufficiency of the evidence.

The first and third assignments of error are overruled.

                                             II., IV.

     {¶23}   In his second and fourth assignments of error, appellant argues the

judgment is against the manifest weight and sufficiency of the evidence because either

Popoca did not commit the offense of disorderly conduct in Taco Bell, or appellant did
Delaware County, Case No. 13 CAC 01 0004                                                     7


not prevent or halt the commission of the offense at Taco Bell because he was not

present at Taco Bell.

     {¶24}   In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire

record, weighs the evidence and all reasonable inferences, considers the credibility of

witnesses, and determines whether in resolving conflicts in 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, 78 Ohio St. 3d 380, 387,

1997-Ohio-52, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485

N.E.2d 717 (1983).

     {¶25}   An appellate court's function when reviewing the sufficiency of the

evidence is to determine 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, 574

N.E.2d 492, paragraph two of the syllabus (1991).

     {¶26}   Appellant was convicted of violating R.C. 2921.44(A)(2):

     {¶27}   “(A) No law enforcement officer shall negligently do any of the following:

     {¶28}   “(2) Fail to prevent or halt the commission of an offense or to apprehend

an offender, when it is in the law enforcement officer's power to do so alone or with

available assistance.”

     {¶29}   R.C. 2917.11(B)(1) defines disorderly conduct:

     {¶30}   “(B) No person, while voluntarily intoxicated, shall do either of the

following:
Delaware County, Case No. 13 CAC 01 0004                                                     8


     {¶31}     “(1) In a public place or in the presence of two or more persons, engage in

conduct likely to be offensive or to cause inconvenience, annoyance, or alarm to

persons of ordinary sensibilities, which conduct the offender, if the offender were not

intoxicated, should know is likely to have that effect on others.”

     {¶32}     To support his claim that Popoca did not commit the offense of disorderly

conduct, appellant relies on the testimony of Stevie Ray, the shift manager at Taco Bell,

that Popoca did not bother anyone in the restaurant. However, the record reflects that

at the time he came into the restaurant, there were about thirty patrons and six

employees present. He approached a sixteen-year-old girl working the front counter to

ask for a ride to his truck on Interstate 71. The shift manager was required to leave her

place on the food line to talk with Popoca, and he caused enough of a disturbance that

she called 911.      She testified that appellant smelled like alcohol and appeared

intoxicated.   She was sufficiently concerned with his behavior and presence in the

restaurant that she locked the lobby doors to keep Popoca from coming inside and

bothering patrons of the restaurant.      This evidence supports the jury’s finding that

Popoca committed the offense of disorderly conduct inside the restaurant.

     {¶33}     Appellant also argues that he could not have prevented or halted the

offense at Taco Bell because he was not there. However, appellant was a part of the

decision making process that led to Popoca being dropped off at Taco Bell. There was

evidence that appellant was aware Popoca was intoxicated and that Popoca’s ability to

converse in English was limited. Appellant told the corrections officer who provided

translation assistance for Popoca that even after the officer conversed with appellant on

the telephone in Spanish about his need to get a ride, Popoca had no idea what was
Delaware County, Case No. 13 CAC 01 0004                                                      9


going on. From all this evidence, the jury could have concluded that appellant could

have prevented the offense in Taco Bell by keeping Popoca in custody rather than

agreeing to release Popoca at Taco Bell.

     {¶34}   The judgment is not against the manifest weight or sufficiency of the

evidence. The second and fourth assignments of error are overruled.

                                              V.

     {¶35}   Appellant argues that the court erred in overruling his motion in limine

regarding evidence of Popoca’s death and statements he made to Corrections Officer

Matthew Williams in a recorded telephone call.

     {¶36}   The ruling on a motion in limine does not preserve the record on appeal

and an appellate court need not review the ruling unless the claimed error is preserved

by an objection at trial. State v. Grubb, 28 Ohio St.3d 199, 503 N.E.2d 142, paragraph

two of the syllabus (1986).     Appellant failed to object to several instances of the

introduction of evidence of Popoca’s death at trial, and in fact stipulated to evidence of

Popoca’s death. See tr. 501-506, 509-515, tr. 199-200. The stipulation, signed by

counsel for appellant, states that Popoca was pronounced dead at 10:37 p.m. on July

28, 2012, and the cause of death was blunt-force trauma to his head, neck and mid-

section resulting from a collision with a motor vehicle when Popoca was a pedestrian.

Appellant has not preserved any error in the court’s ruling on his motion in limine

concerning the death of Popoca.

     {¶37}   Appellant also argues that the court erred in failing to excise a recording of

a telephone call he placed to Corrections Officer Williams to exclude: (1) appellant’s

statement about Popoca, “That stupid idiot, he has no idea what’s going on even after
Delaware County, Case No. 13 CAC 01 0004                                                      10


you tried to talk to him,” (2) appellant saying he would tell Williams what he stopped

Popoca for “when we’re not on a recorded line,” and (3) Williams laughing when

appellant told him Hughes was taking Popoca to Taco Bell. Appellant did object at the

time the audio tape was admitted into evidence, thus preserving this error for review.

     {¶38}    Appellant argues that the evidence is irrelevant, and that its probative

value is substantially outweighed by the danger of unfair prejudice.

     {¶39}    Evid. R. 401 defines relevant evidence as “evidence having any tendency

to make the existence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the evidence.” The

admission or exclusion of relevant evidence rests within the sound discretion of the trial

court. State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343, paragraph 2 of the syllabus

(1987). Even if relevant, evidence must be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the

jury. Evid. R. 403(A).

     {¶40}    This evidence is relevant to demonstrate that appellant was aware that

Popoca was confused about his need to get a ride, yet appellant failed to take Popoca

into custody. Appellant has also not demonstrated that the court abused its discretion in

failing to exclude the evidence under Evid. R. 403(A). Appellant makes no argument as

to how this evidence was unfairly prejudicial, but summarily argues that the evidence is

“highly inflammatory.”   The evidence is relevant to show appellant’s awareness of

Popoca’s condition and his negligence in failing to take Popoca into custody rather than

having him dropped off at Taco Bell.
Delaware County, Case No. 13 CAC 01 0004                                                  11


     {¶41}   Although not specifically assigned as error, appellant also argues in his

brief that evidence of Popoca’s blood alcohol level was not relevant because appellant

had no way to know Popoca’s blood alcohol level at the time of the stop. Evidence that

Popoca’s blood alcohol was more than twice the legal limit tends to show that a trained

police officer should have been cognizant of the fact that Popoca was very intoxicated.

     {¶42}   The fifth assignment of error is overruled. The judgment of the Delaware

Municipal Court is affirmed. Costs assessed to appellant.



By: Baldwin, J.

Gwin, P.J. and

Delaney, J. concur.




                                        HON. CRAIG R. BALDWIN



                                        HON. W. SCOTT GWIN



                                        HON. PATRICIA A. DELANEY




CRB/rad
[Cite as State v. Beggs, 2013-Ohio-3440.]


                 IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :
                                               :
        Plaintiff -Appellee                    :
                                               :
-vs-                                           :       JUDGMENT ENTRY
                                               :
DEREK BEGGS                                    :
                                               :
        Defendant - Appellant                  :       CASE NO. 13 CAC 01 0004


        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Delaware Municipal Court is affirmed. Costs assessed to appellant.




                                            HON. CRAIG R. BALDWIN



                                            HON. W. SCOTT GWIN



                                            HON. PATRICIA A. DELANEY
