The jury occupied the primary position for weighing evidence, and the troopers’ credibility is best left to the jurors who observed their demeanor as they testified.

 

State v. Baker

2023 – Ohio – 2061

Seventh District Appellate Court

Columbiana County, Ohio

June 21, 2023

Mr. Baker is Indicted for Fail to Comply

On October 18, 2019, Mr. Devin Baker was indicted for various offenses. The court appointed counsel to represent him, but he retained a different attorney nearly a year later. On May 31, 2022, a jury trial commenced on the charge of Failure to Comply with an order or signal of a police officer, a third-degree felony due to the allegation the operation of the vehicle caused a substantial risk of serious physical harm to persons or property. O.R.C. §2921.331(B)(C)(5)(a)(ii). The other charges were dismissed by the state before trial. 

In-Person Witness Provides Probable Cause to Stop a Suspect’s Vehicle

The trial testimony established troopers from the Ohio State Highway Patrol were investigating a man in a car they stopped in Rogers, Ohio on Wednesday September 11, 2019 at approximately 10:30 p.m. A female approached the scene and named her former boyfriend (Mr. Devin E. Baker) and her uncle (Mr. Thomas Hughes) as participants in an altercation with the man in the stopped car. She pointed out a gray Ford pickup truck as it approached the intersection of State Routes 7 and 154.

A pursuit began here at State Routes 7 and 154 in Columbiana County, Ohio.  The vehicle crashed and the passenger was arrested.  The driver would get away and arrested two days later.  The suspect-driver would argue that it was a case of mistaken identity.

Devin Fails to Comply and Flees

As Trooper 1 entered his cruiser to detain the truck, the truck sped north on Route 7 reaching speeds in excess of 100 miles per hour before the trooper even activated his lights and sirens. In addition to severely speeding during the lengthy chase, the truck drove left of center multiple times, failed to use turn signals, and ran four stop signs. The truck passed six vehicles after the trooper activated his lights.

Note:  The Seventh District Appellate Court only identifies the Ohio State Highway Patrol Troopers as Trooper 1 and Trooper 2 and not by name.

State Trooper 2 Utilizes Stop Sticks Effectively

Trooper 2 traveled a different path to Route 170 to intercept the truck before it reached the state line. He deployed stop sticks in the road near a curve and railroad tracks, taking cover by a concrete barrier as he watched the vehicle approach his position. The headlights of his cruiser were facing the truck, the overhead lights were activated, a porch light was on at a nearby house, and there was a streetlight near the railroad tracks. The truck slowed (as evidenced by brake lights seen by Trooper 1); the driver’s side tires of the truck then made contact with the stop sticks.

Driver is Clearly Observed

Trooper 2 said he could “clearly” see the driver as the truck passed his position near the stop sticks. He also noticed the passenger was wearing a black baseball cap. Trooper 2 got back in his cruiser and caught up to the chase. Tire pieces, a hubcap, and parts of the road were flying through the air as the truck drove on the rims and swerved “all over the roadway” while trying to maintain control.

Passenger Wearing His Hat is Clearly Observed

Trooper 1 passed the truck to assume the lead, performing a “boxing in” maneuver and hoping to force the truck to stop. He passed the truck with his “alley lights” activated, which illuminated the passenger compartment of the truck. He testified this allowed him to view the driver as he passed; he also noticed the passenger was still wearing a hat, which he noticed earlier as well.

Vehicle Crashed and Tom was Wearing His Hat When He was Arrested

As Trooper 1 started braking, the truck made a hard right onto a dirt drive leading to a rock quarry. The troopers waited for the dust in the air to clear before driving further down the drive; they found an empty truck, which had crashed into a gate in the middle of the road. Trooper 2 saw a person in a baseball hat running toward a business on the property. This person was apprehended and identified as Thomas Hughes; he had a visible injury on his nose from hitting his head on the dashboard during the crash into the gate.

Mr. Baker Fled Into the Woods – Thick with Briar Bushes

Both troopers testified they identified Mr. Baker as the driver after seeing his official photograph they obtained by running the name Devin E. Baker through the law enforcement database. They believed Mr. Baker fled into the woods. Aviation support was unavailable, and the canine units could not proceed through briar bushes that were thick with thorns. When Mr. Baker was arrested two days later, Trooper 2 was not surprised to see scratches and cuts on Mr. Baker’s arms, hands, and neck. Mr. Baker also had a gunshot wound to the leg.

Mr. Baker’s Defense Witness Refutes the Trooper’s Testimony

The defense presented the testimony of a woman who lived with Hughes at the time of the police chase. She said Mr. Baker was at their house but did not drive a vehicle to get there. When Mr. Baker’s former girlfriend was dropped off in the neighborhood by a man, an argument in the driveway ensued. When this man drove away in his car, Mr. Baker and Hughes quickly left in the Ford truck with Hughes driving his father’s truck.

Jury Determines Mr. Baker is Guilty

The jury found Mr. Baker guilty as charged. The court sentenced Mr. Baker to 30 months in prison and suspended his license for 10 years. A timely appeal followed.

Mr. Baker Appeal is Based on His Alleged Misidentification

Trooper 1 acknowledged he received conflicting information during the chase as to who was driving the truck and therefore used both the names Mr. Devin Baker and Mr. Thomas Hughes when ordering the driver to stop over his bullhorn. Trooper 2 acknowledged he told Trooper 1 over the radio that Devin Baker was driving, noting this was the information he received. Mr. Baker suggests this information influenced the troopers’ later identification of Mr. Baker as the driver. Mr. Baker notes it was dark outside and claims the lighting was poor. He contends the troopers could not have viewed the driver long enough during the chase to identify him from his official photograph on file. He concludes the troopers’ identification of him as the driver was “overly assured” and unreliable. Mr. Baker points out the truck belonged to the father of Hughes and required physical keys (as opposed to the mere presence of a key fob). He emphasizes his witness’s testimony stating Hughes was driving the truck when it first left the house and concludes it was more likely Hughes was driving during the chase.

Jury had to Decide Whom to Believe

As the state points out, the testimony of the witness presented by the defense did not preclude the situation where the occupants of the truck switched positions after stopping and exiting the vehicle. There was no indication their leaving of the house occurred immediately before their arrival at the intersection where the trooper had detained a vehicle. Moreover, the determination of this witness’s credibility (as a person who formerly lived with Hughes) was the province of the jury. The troopers both said they viewed the driver clearly.

Trooper 2 Had No Doubt

Trooper 2 saw him driving past his position where he was standing by the side of the road as the truck slowed for the curve and hit the stop sticks. Trooper 2 pointed out there was a streetlight at the nearby railroad tracks and his cruiser had the overhead lights activated and the headlights pointed at the truck. He said he could “clearly” see the driver. When he saw Mr. Baker’s official photograph at the crash site, he was able to positively identify Mr. Baker “without a doubt” declaring he was “[a]bsolutely” the driver. He also saw the occupants of the truck when it approached the lighted intersection just before fleeing.

Mr. Baker was on the Receiving End of Trooper 1’s Alley Light

Trooper 1 said he saw the driver as his cruiser passed the truck, noting his overhead lights were in the highest mode (“alley lights”), which illuminated the interior of the truck from the side and allowed a clear view of the driver. He also said he had “no doubt at all” about his ability to identify Mr. Baker as the driver upon viewing his official photograph during the chase. The jury occupied the primary position for weighing evidence, and the troopers’ credibility is best left to the jurors who observed their demeanor as they testified.

Tom’s Hat

As the state additionally points out, both troopers noticed the passenger was wearing a hat. Trooper 2 noticed this fact through the passenger window at some point before his act of passing the truck and viewing the driver. The person the police apprehended running from the scene was wearing a hat and had an injury to his nose consistent with his utterance that he hit his head on the dashboard during the crash. The other occupant of the truck was believed to have entered the wooded area, which was filled with so many briar bushes that the dogs could not proceed. When Mr. Baker was arrested two days later, he predictably had scratches and cuts on his neck, arms, and hands. Circumstantial evidence inherently possesses the same probative value as direct evidence. State v. Treesh, 90 Ohio St.3d 460, 485, (2001).

Established Case Law Supports the Conclusion of the Jury

“When more than one competing interpretation of the evidence is available and the one chosen by the jury is not unbelievable, we do not choose which theory we believe is more credible and impose our view over that of the jury.” State v. Baker, 2020-Ohio-7023, citing State v. Gore, 131 Ohio App.3d 197, 201, (7th Dist.1999). A thorough review of the record does not indicate this is the “exceptional” case in which the jury “clearly lost its way” and created a manifest miscarriage of justice requiring a new trial; the evidence does not weigh “heavily” against the conviction. See State v. Lang, 129 Ohio St.3d 512.

Holding

Accordingly, the jury verdict was not contrary to the manifest weight of the evidence.  This assignment of error is overruled.

Information for this article was obtained from State v. Baker, 2023 – Ohio – 2061.

State v. Baker, 2023 – Ohio – 2061 was issued by the Seventh District Appellate Court on June 21, 2023 and is binding in the following Ohio Counties: Belmont, Carroll, Columbiana, Harrison, Jefferson, Mahoning, Monroe and Noble.

Lessons Learned:

  1. In-Person Tipster – Though not analyzed in this case the incident began “A female approached the scene and named her former boyfriend (Mr. Devin E. Baker) and her uncle (Mr. Thomas Hughes) as participants in an altercation with the man in the stopped car.”. The court does not indicate if the female was identified or not. To provide context, on June 24, 2021, the Supreme Court of Ohio issued State v. Tidwell, 2021 – Ohio – 2072.  In that case an in-person tipster provided information that Ms. Sherry Tidwell was driving while impaired.  Tidwell was stopped, arrested and convicted.  She appealed her case to Supreme Court of Ohio which held “Sergeant Illanz had reasonable suspicion to investigate whether Tidwell was driving while drunk based on the unidentified Speedway customer’s tip and the officer’s own partial corroboration of that tip.”.  Law enforcement does not have to identify in-person tipsters, though, if there is time it is always best to attempt to ascertain in-person tipsters. For more information see Can Law Enforcement Rely on an Unidentified In-Person Tipster?.
  2. ‘Normal Vision Function’ – The defense team of Mr. Baker made several feeble attempts to persuade the jury that the eyesight of the troopers was substandard. The defense alleged that the driver and passenger of the suspect vehicle could have switched positions, that a defense witness testified as to whom in the vehicle with Mr. Thomas at the time of the felony and that the troopers could not have seen inside the fleeing vehicle long enough to see what the occupants looked like.  Ultimately, the decision as to whom to believe, the defense witness who was not scene or the troopers who passed a rigorous eye exam to become a trooper, determined that troopers were more credible.  Note:  On statepatrol.ohio.gov it states in pertinent part Your vision must be correctable to 20/20 monocular vision.  Applicants must possess normal visual functions in each eye, which includes peripheral vision and depth perception.  Color vision must be normal but corrective lenses may be used to pass the color vision test.”https://statepatrol.ohio.gov/recruitment-and-training/recruitment/trooper Extracted October 15, 2023
  3. Gun Shot to the Leg – What the court glosses over that is quite interesting, is that when Mr. Baker was arrested two days after fleeing, he had sustained a gunshot wound to his leg. It seems that incredibly bad luck follows Mr. Baker.
  4. Pre-Sent Arms! Both the unidentified troopers should be highly commended for their tenacity to chase and ultimately arrest both suspects.  Well done!

Does your agency train on Vehicular Pursuits?

Contact me at https://www.objectivelyreasonable.com/contact/

Don’t fail your training.

Don’t let your training fail you!

Be safe, smart and Objectively Reasonable!

Robert H. Meader Esq.