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Date: 12-03-2020
Case Style:
STATE OF OHIO v. ANGELO M. CRAVER
Case Number: . 28748
Judge: Mary E Donovan
Court: IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
Plaintiff's Attorney: LISA M. LIGHT, Atty. Reg. No. 0097348, Assistant
Prosecuting Attorney
Defendant's Attorney:
OR
Just Call 855-853-4800 for Free Help Finding a Lawyer Help You.
Description:
Dayton, OH - Criminal defense lawyer represented defendant Angelo M. Craver with appealing from his conviction for one count of failure to comply with the order or signal of a police officer.
The incident which led to Craver’s conviction occurred on May 13, 2019,
between 2:30 p.m. and 3:00 p.m., when Dayton Police Detective Sam Humphrey was
conducting surveillance in an unmarked cruiser near West Riverview Avenue and Kumler
Avenue in Dayton. Humphrey testified that he observed a gray Dodge Challenger being
driven along St. Agnes Avenue and began to follow the vehicle. At some point, the driver
of the Challenger stopped the vehicle in front of a residence on St. Agnes Avenue, exited
the vehicle, and went inside the residence. Detective Humphrey testified that the
individual driving the vehicle was a male with “a large puff of hair in the back.” Humphrey
also testified that he was using binoculars to conduct surveillance on the day in question.
{¶ 3} Detective Humphrey testified that, approximately 30 minutes later, he
observed the Challenger being driven back onto Kumler Avenue heading toward West
Riverview Avenue, where Detective Humphrey was parked. Through his binoculars,
Humphrey was able to observe the face of the driver of the Challenger and identified him
as defendant-appellant Craver. Detective Humphrey testified that he was familiar with
Craver and had had approximately five to ten interactions with him between 2017 and the
date of this incident. Humphrey specifically noted one interaction in which he helped put
a dental partial (fake teeth) back into Craver’s mouth while Craver was being arrested.
Humphrey testified that, based upon his familiarity with Craver, he knew that Craver did
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not have a valid driver’s license.1
{¶ 4} While conducting additional surveillance on Kumler Avenue, Detective
Humphrey observed Craver exit the Challenger again and enter the rear driver’s side of
a white SUV that was parked nearby. Humphrey testified that Craver appeared to be
holding something small in his hand, although he could not identify what it was. Craver
remained in the SUV for a short period of time before exiting the vehicle and reentering
the Challenger. At that point, an unidentified heavy-set male who “had been on the scene
the whole time” walked over to the driver’s side window of the Challenger and began
speaking to Craver, who was sitting inside the vehicle. Detective Humphrey testified
that, based upon his observations, he believed that he had just witnessed a drug
transaction. Thereafter, Humphrey contacted Dayton Police Officers Orick and Nagy,
who were nearby in a marked police cruiser, and requested that they initiate a traffic stop
of the Challenger driven by Craver because he did not possess a valid driver’s license.
{¶ 5} Officers Nagy and Orick, riding together, pulled onto Kumler Avenue, parked
their cruiser “nose to nose” with the Challenger driven by Craver, and activated the
cruiser’s overhead lights. Officer Nagy testified that as soon as the overhead lights were
activated, Craver put the Challenger in reverse and accelerated rapidly backward, striking
the vehicle behind him. Nagy testified that the vehicle hit by Craver moved
approximately four feet. Craver then accelerated forward and hit the unidentified heavyset male who had been speaking with Craver at the driver’s side window before Officers
Orick and Nagy arrived. The heavy-set male rolled onto the hood of the Challenger, his
1 The police later discovered that the Challenger had been rented from Enterprise Rental,
but it had not been rented under Craver’s name.
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pants fell down, and he rolled off the hood onto the ground as Craver drove away. As
he was driving away, Craver struck a silver SUV parked on the other side of the street,
then drove through a nearby vacant lot where a house had been torn down.
{¶ 6} While Officer Orick was driving the cruiser in an attempt to intercept Craver,
Officer Nagy reported to dispatch about the incidents that had just occurred and the
direction in which Craver was traveling. Officer Nagy testified that Officer Orick did not
follow Craver through the vacant lot. Orick attempted to track Craver on the main roads
but was given incorrect directions by another officer and was not able to locate him.
Nagy testified that they had called for a medic to help the man who had been hit by Craver,
but they cancelled the call when they returned to the scene of the incident and discovered
that the man had fled the area. The vehicle Craver had struck when he backed up was
also gone.
{¶ 7} Dayton Police Detective Tyler Orndorff testified that he had been listening to
the radio traffic between Detective Humphrey and Officers Orick and Nagy as they were
attempting to stop the Challenger driven by Craver. Orndorff was traveling in an
unmarked vehicle toward the scene of the incident in order to assist the other officers in
apprehending Craver. While he was waiting for a green light at the intersection of
Broadway Street and West Riverview Avenue, Detective Orndorff observed the
Challenger driven by Craver driving at a high rate of speed toward the detective’s vehicle.
In addition to speeding, Craver was weaving in and out of traffic. Orndorff testified that,
because there was a vehicle in front of him, he could not move his vehicle so as to avoid
being hit by Craver’s vehicle. When he arrived at the intersection where Orndorff was
located, Craver braked the Challenger hard and turned south onto Broadway, thereby
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avoiding a collision with Orndorff’s vehicle and eluding the police.
{¶ 8} On November 15, 2019, Craver was indicted for one count of failure to
comply with the order or signal of a police officer. At his arraignment on November 19,
2019, Craver pled not guilty to the charged offense. In January 2020, Craver filed a
waivers of his right to a speedy trial and to a jury trial.
{¶ 9} A bench trial was held on February 10, 2020, and Craver was found guilty
of failure to comply with the order or signal of a police officer. On February 28, 2020,
Craver was sentenced to 24 months in prison and his driver’s license was suspended for
ten years.
{¶ 10} It is from this judgment that Craver now appeals.
{¶ 11} Craver’s first assignment of error is as follows:
MR. CRAVER’S CONVICTION IS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE IN VIOLATION OF THE DUE PROCESS
CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED
STATES CONSTITUTION AND ARTICLES I, SECTIONS 1, 10, AND 16
OF THE [OHIO] CONSTITUTION.
{¶ 12} In his first assignment, Craver contends that his conviction for failure to
comply with the order or signal of a police officer was against the manifest weight of the
evidence. We note, however, that although he challenges his conviction as being
against the manifest weight of the evidence, Craver also argues that his conviction was
not supported by sufficient evidence. Specifically, Craver argues that there was
insufficient evidence that the vehicle driven by Craver was the proximate cause of serious
physical harm to a person or property or that Craver’s operation of the vehicle caused a
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substantial risk of serious physical harm to a person or property. We will therefore
address both arguments.
{¶ 13} This Court has previously noted:
When a conviction is challenged as being against the weight of the
evidence, an appellate court must review the entire record, weigh the
evidence and all reasonable inferences, consider witness credibility, and
determine whether, in resolving conflicts in the evidence, the trier 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.” State v.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). In a manifestweight analysis, the credibility of the witnesses and the weight to be given
to their testimony are primarily for the trier of facts to resolve. State v.
DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). “Because the
factfinder * * * has the opportunity to see and hear the witnesses, the
cautious exercise of discretionary power of a court of appeals to find that a
judgment is against the manifest weight of the evidence requires that a
substantial deference be extended to the factfinder's determinations of
credibility. The decision whether, and to what extent, to credit the
testimony of particular witnesses is within the peculiar competence of the
factfinder, who has seen and heard the witnesses.” State v. Lawson, 2d
Dist. Montgomery No. 16288, 1997 WL 477684, *5 (Aug. 22, 1997). This
court will not substitute its judgment for that of the trier of fact on the issue
of witness credibility unless it is patently apparent that the trier of fact lost
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its way. State v. Bradley, 2d Dist. Champaign No. 97-CA-03, 1997 WL
691510 (Oct. 24, 1997). * * *
State v. Nelson, 2d Dist. Greene No. 2014-CA-7, 2015-Ohio-113, ¶ 29.
{¶ 14} Regarding the sufficiency of the evidence, this Court has previously stated:
“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 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, 678 N.E.2d 541 (1997). When reviewing
whether the State has presented sufficient evidence to support a conviction,
“the relevant inquiry is whether any rational finder of fact, after viewing the
evidence in the 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), citing Jackson
v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). A
guilty verdict will not be disturbed on appeal unless, “reasonable minds
could not reach the conclusion reached by the trier-of-fact.” Id.
State v. Hill, 2d Dist. Montgomery No. 28577, 2020-Ohio-4235, ¶ 13, citing State
v. Wilson, 2d Dist. Montgomery No. 27001, 2016-Ohio-7329, ¶ 6.
{¶ 15} As previously stated, Craver was found guilty of failing to comply with the
order of a police officer in violation of R.C. 2921.331(B), which provides, “[n]o 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 the person's motor vehicle to a stop.”
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{¶ 16} Additionally, Craver was found guilty of R.C. 2921.331(C)(5)(a)(ii) which
provides, “[a] violation of division (B) of this section is a felony of the third degree if the
jury or judge as trier of fact finds any of the following by proof beyond a reasonable doubt:
(ii) [t]he operation of the motor vehicle by the offender caused a substantial risk of serious
physical harm to persons or property.” “Substantial risk” is defined as “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} As previously stated, at the close of the bench trial, Craver was found guilty
of failure to comply with the order or signal of a police officer. Specifically, the trial court
stated that the testimonies of Detective Humphrey, Officer Nagy, and Detective Orndorff
were credible. Craver did not call any witnesses. The trial court found that the evidence
established that Craver was the driver of the Challenger. The trial court also found that,
after the officers had signaled him to stop, Craver created a substantial risk of serious
physical harm to a person when he struck the heavy-set male standing next to his
(Craver’s) car, who then rolled off the hood of the Challenger and into the street. The
trial court further found that Craver created a continued substantial risk of serious physical
harm when Craver attempted to elude the police by driving between two houses and
across a vacant lot, avoiding paved roads. Lastly, the trial court found that Craver
created a substantial risk of physical harm to persons and/or property when he was
observed driving at a substantially higher rate of speed than the posted 25 mile per hour
speed limit and driving recklessly toward Detective Orndorff and other traffic at the
intersection of Broadway and West Riverview in Dayton.
{¶ 18} The evidence adduced by the State established that on May 13, 2019,
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Detective Humphrey was conducting surveillance in an unmarked cruiser and observed,
through binoculars, a gray Dodge Challenger being driven along St. Agnes Avenue;
Humphrey began to follow the vehicle. At some point, the driver of the Challenger
stopped in front of a residence on St. Agnes Avenue, exited the vehicle, and went inside
the residence. Humphrey testified that individual driving the vehicle was a male with “a
large puff of hair in the back.”
{¶ 19} Approximately 30 minutes later, Detective Humphrey observed the
Challenger being driven back onto Kumler Avenue toward West Riverview Avenue, where
Humphrey was parked. Through his binoculars, Humphrey observed the face of the
driver of the Challenger and identified him as Craver, with whom he was familiar from five
to ten prior interactions. Humphrey specifically recalled one interaction where he helped
put a dental device back in Craver’s mouth that had fallen out while Craver was being
arrested. Humphrey testified that, based upon his familiarity with Craver, he knew that
Craver did not have a valid driver’s license, even though Craver was observed driving the
Challenger. Humphrey then contacted Officers Orick and Nagy, who were in a marked
police cruiser, and requested that they initiate a traffic stop of Craver’s vehicle.
{¶ 20} Officers Nagy and Orick pulled “nose to nose” with the Challenger driven by
Craver and activated the cruiser’s overhead lights. Officer Nagy testified that, as soon
as the overhead lights were activated, Craver put the Challenger in reverse and
accelerated rapidly backward, striking the vehicle behind him. Craver then accelerated
forward and hit the heavy-set male who had been standing at Craver’s driver’s side
window before Officers Orick and Nagy arrived. The man rolled onto the hood of the
Challenger and then onto the ground as Craver drove away. Craver also struck a silver
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SUV parked on the other side of the street as he was driving away, then drove through a
vacant lot. Both Detective Humphrey and Officer Nagy testified that they observed
Craver strike the heavy-set male with the Challenger.
{¶ 21} Officer Orick attempted to track Craver on the main roads but was unable
to locate him. The officers called for a medic to help the man who had been hit by Craver,
but when they returned to the scene of the incident, they discovered that the man had
fled the area; the vehicle initially struck by Craver and pushed backward had also left the
scene.
{¶ 22} Detective Orndorff, who had been listening to the radio traffic between
Detective Humphrey and Officers Orick and Nagy, observed the Challenger as he was
traveling in an unmarked vehicle toward the scene of the incident in order to assist the
other officers in apprehending Craver. Orndorff observed the Challenger driven by
Craver driving at a high rate of speed toward the detective’s vehicle. In addition to
speeding, Craver was weaving in and out of traffic. Upon arriving at the intersection
where Detective Orndorff’s vehicle was stopped, Craver braked the Challenger hard and
turned south onto Broadway.
{¶ 23} Craver argues that, because the individual he hit had left the scene, and
because the vehicle he struck and pushed four feet backward was also gone when
officers arrived back at the scene, there was no indication of substantial risk of serious
physical harm to person and/or property. However, the fact that the heavy-set man and
the vehicle were no longer at the scene did not preclude a finding that Craver had created
a substantial risk of serious physical harm to the man, to other people in the area, or to
property. Craver drove the Challenger at a high rate of speed through a residential area
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and into oncoming traffic, almost hitting Detective Orndorff’s vehicle. See State v. Hill, 2d
Dist. Clark Nos. 2013-CA-11, 2013-CA-12, 2014-Ohio-532, ¶ 28, ¶ 34 (defendant’s
reckless, high-speed flight created a substantial risk of serious physical harm to persons
or property, even though, fortunately, no persons or property were harmed). Craver’s
actions in striking an individual with his car and traveling at a high rate of speed through
a residential neighborhood unquestionably demonstrated that he created a substantial
risk of serious physical harm to persons. Construing the evidence presented in a light
most favorable to the State, as we must, a rational trier of fact could have found all of the
essential elements of the crime for which Craver was found guilty to have been proven
beyond a reasonable doubt. Craver’s conviction for failure to comply with the order or
signal of a police officer therefore was supported by legally sufficient evidence.
{¶ 24} Having reviewed the record, we also find no merit in Craver's manifestweight challenge. It is well-settled that evaluating witness credibility is primarily for the
trier of fact. State v. Benton, 2d Dist. Miami No. 2010-CA-27, 2012-Ohio-4080, ¶ 7.
Here, the trial court reasonably credited the testimony provided by the State's witnesses,
applied said evidence and all reasonable inferences to the elements of the offense, and
found Craver guilty of failure to comply with the order or signal of a police officer. The
evidence did not weigh heavily against conviction, and no manifest miscarriage of justice
occurred.
{¶ 25} Craver’s first assignment of error is overruled.
{¶ 26} Craver’s second assignment of error is as follows:
MR. CRAVER RECEIVED INEFFECTIVE ASSISTANCE OF
COUNSEL WHEN COUNSEL FAILED TO FILE A MOTION TO
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SUPPRESS IN VIOLATION OF MR. CRAVER’S SIXTH AND
FOURTEENTH AMENDMENT RIGHTS UNDER THE OHIO AND UNITED
STATES CONSTITUTION[S].
{¶ 27} In his second assignment, Craver argues that he was denied effective of
counsel when his trial attorney failed to file a motion to suppress regarding the basis for
the initial attempted traffic stop and his identification by Detective Humphrey.
{¶ 28} To reverse a conviction based on ineffective assistance of counsel, an
appellant must demonstrate both that trial counsel's conduct fell below an objective
standard of reasonableness and that the errors were serious enough to create a
reasonable probability that, but for the errors, the result of the trial would have been
different. Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). Trial counsel is entitled to a strong presumption that his or her conduct falls
within the wide range of reasonable assistance. Strickland at 688. Deficient performance
means that claimed errors were so serious that the defense attorney was not functioning
as the “counsel” that the Sixth Amendment guarantees. State v. Cook, 65 Ohio St.3d 516,
524, 605 N.E.2d 70 (1992).
{¶ 29} “Hindsight is not permitted to distort the assessment of what was
reasonable in light of counsel's perspective at the time, and a debatable decision
concerning trial strategy cannot form the basis of a finding of ineffective assistance of
counsel.” State v. Nabors, 2d Dist. Montgomery No. 24582, 2012-Ohio-4757, ¶ 17.
“Even if unsuccessful, strategic decisions will not constitute ineffective assistance of
counsel.” State v. Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965 (1995). Generally, the
decision regarding which defense to pursue at trial is a matter of trial strategy, and trial
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strategy decisions are not a basis of a finding of ineffective assistance of counsel. State
v. Moss, 2d Dist. Montgomery No. 22496, 2008-Ohio-6969, ¶ 35, citing State v. Murphy,
91 Ohio St.3d 516, 524, 747 N.E.2d 765 (2001); State v. Dixon, 101 Ohio St.3d 328,
2004-Ohio-1585, 805 N.E.2d 1042, ¶ 52.
{¶ 30} The failure to file a suppression motion is not per se ineffective assistance
of counsel. State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000). Rather,
trial counsel's failure to file a motion to suppress constitutes ineffective assistance only if
the failure to file the motion caused prejudice because there was a reasonable probability
that, had the motion to suppress been filed, it would have been granted. State v. Wilson,
2d Dist. Clark No. 2008-CA-445, 2009-Ohio-2744, ¶ 11; see also State v. Nields, 93 Ohio
St.3d 6, 34, 752 N.E.2d 859 (2001).
{¶ 31} “Where the basis of an ineffective assistance of counsel claim is counsel's
failure to file a motion to suppress evidence, the defendant making that claim must prove
that the basis of the suggested suppression claim is meritorious.” In re D.D., 2d Dist.
Montgomery No. 22740, 2009-Ohio-808, ¶ 3, citing Kimmelman v. Morrison, 477 U.S.
365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986); State v. Pillow, 2d Dist. Greene No. 2007-
CA-95, 2008-Ohio-6046, ¶ 59.
{¶ 32} As previously stated, while conducting surveillance, Detective Humphrey
observed Craver exit the Challenger and enter the rear driver’s side of a white SUV
parked nearby. Although he could not identify what it was, Humphrey testified that
Craver appeared to be holding something small in his hand. Craver remained in the SUV
for a short period of time, then exited the vehicle and reentered the Challenger. At that
point, an unidentified heavy-set male walked up to the driver’s side window of the
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Challenger and began speaking to Craver, who was sitting inside the vehicle. Humphrey
believed that he had just witnessed a drug transaction. Most importantly, however, even
if Detective Humphrey had not in fact witnessed a drug transaction, he was aware that
Craver did not have a valid driver’s license and had been observed driving.
{¶ 33} The Fourth Amendment to the United States Constitution protects
individuals from unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 88 S.Ct.
1868, 20 L.Ed.2d 889 (1968). Under Terry, police officers may briefly stop and/or
temporarily detain individuals in order to investigate possible criminal activity if the officers
have a reasonable, articulable suspicion that criminal activity may be afoot, including a
minor traffic violation. State v. Martin, 2d Dist. Montgomery No. 20270, 2004-Ohio-2738,
¶ 10, citing Terry; State v. Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204,
¶ 7-8. The existence of reasonable suspicion is determined by evaluating the totality of
the circumstances and considering those circumstances “through the eyes of the
reasonable and prudent police officer on the scene who must react to events as they
unfold.” State v. Heard, 2d Dist. Montgomery No. 19323, 2003-Ohio-1047, ¶ 14, quoting
State v. Andrews, 57 Ohio St.3d 86, 87-88, 565 N.E.2d 1271 (1991).
{¶ 34} “ ‘Reasonable, articulable suspicion’ is a ‘less demanding standard than
probable cause and requires a showing considerably less than preponderance of the
evidence.’ ” State v. Fears, 8th Dist. Cuyahoga No. 94997, 2011-Ohio-930, ¶ 5, citing
Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000); State v.
Scott, 2d Dist. Clark No. 2013-CA-104, 2014-Ohio-4963, ¶ 12.
{¶ 35} When he asked Officers Nagy and Orick to initiate a traffic stop of the
vehicle that Craver was driving, Detective Humphrey knew that Craver did not possess a
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valid driver’s license. See State v. Sears, 2d Dist. Montgomery No. 20849, 2005-Ohio3880, ¶ 26 (when officer stopped the vehicle, he knew that the registered owner did not
have a valid driver's license and believed the person driving the vehicle might be its
owner; these circumstances justified stopping the vehicle to investigate whether the
owner was driving the vehicle without a valid license). Here, Detective Humphrey was
aware, based upon his numerous past interactions with Craver, that Craver did not
possess a valid driver’s license. Therefore, Humphrey had probable cause to order
Officers Nagy and Orick to effectuate a traffic stop of the Challenger driven by Craver.
{¶ 36} Accordingly, the decision to initiate a traffic stop of the vehicle Craver was
driving without a valid license was lawful, and there is no reasonable probability that a
motion to suppress based upon the initial attempt to initiate a traffic stop would have been
granted. Accordingly, there is no basis to conclude that a motion to suppress would have
been successful and altered the outcome of this case.
{¶ 37} Finally, Craver contends that his identification at trial could have been an
issue requiring the filing of a motion to suppress. However, we see no basis to conclude
that a motion to suppress Humphrey’s identification of Craver would have been
successful. Detective Humphrey testified that, approximately 30 minutes after he
observed the Challenger in front of a residence on St. Agnes Avenue, he observed the
Challenger driving on Kumler Avenue toward West Riverview Avenue, where Detective
Humphrey was parked. Through his binoculars, Detective Humphrey was able to
observe the face of the driver of the Challenger and identified him as Craver, with whom
he was familiar from numerous prior interactions, including one that involved putting a
dental device back in Craver’s mouth while Craver was being arrested. Clearly,
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Detective Humphrey was familiar with Craver, and there was nothing obstructing his view
of Craver on the day in question. There were no negative weather conditions, and it was
mid-afternoon and therefore light outside. Accordingly, we conclude that a motion to
suppress based upon Detective Humphrey’s identification of Craver would have been
unsuccessful. Therefore, trial counsel was not ineffective in failing to file a motion to
suppress with respect to the initial attempted stop of the vehicle Craver was driving or
Detective Humphrey’s identification of Craver as the driver of the Challenger.
{¶ 38} Craver’s second assignment of error is overruled.
Outcome: Craver’s first and second assignments of error having been overruled, the
judgment of the trial court is affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: