[Cite as State v. Marx , 2021-Ohio-984.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY

State of Ohio Court of Appeals No. WD-20-018 Appellee Trial Court No. 2019CR0228

v. Benjamin Marx DECISION AND JUDGMENT Appellant Decided: March 26, 2021

* * * * * Paul A. Dobson, Wood County Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee. Lawrence A. Gold, for appellant.

* * * * * OSOWIK, J. {¶ 1} This is an appeal from a January 22, 2020 judgment of the Wood County Court of Common Pleas, denying appellant’s Crim.R. 29 motion fo r acquittal, and finding appellant guilty on one count of failure to comply with an order or signal of a police officer, in violation of R.C. 2921.331, a felony of the third degree, and one count2. of theft, in violation of R.C. 2913.02, a felony of the fifth d egree. Appellant was

sentenced to a 41-month total term of incarceration. For the r easons set forth below, this court affirms the judgment of the trial court. {¶ 2} Appellant, Benjamin Marx, sets forth the following two assignme nts of

error: I. The court abused its discretion and erred to the prejudice of [a]ppellant by denying his Crim.R. 29 motion. II. The jury’s verdict was against the manifest weight of the evidence []. {¶ 3} The following undisputed facts are relevant to this appeal. On the morning of May 11, 2019, a local attorney residing in the Toledo area a rrived at the Perrysburg Township Lowe’s store in order to make household purchases. {¶ 4} As he parked his vehicle in the Lowe’s parking lot, he noticed the distinct sound of the Lowe’s store security alarms going off. He simult aneously observed appellant hurriedly pushing a shopping cart full of tools away from the store with several store employees in rapid pursuit. {¶ 5} At this juncture, one of the employees pursuing appellant reque sted that the above-described witness call 9-1-1. The employee explained to the witness that appellant had just stolen merchandise from Lowe’s but store policy prohib its employees from directly calling 9-1-1 to report theft.3. {¶ 6} The witness did as he was asked, promptly called 9-1-1, reporte d the specifics of the crime, and furnished the perpetrator’s license plate number. The witness had been able to secure the license plate number given his clos e proximity to these

events. {¶ 7} Shortly thereafter, an on-duty officer from the Perrysburg Town ship Police Department received a notification call from dispatch regarding the crime that had just occurred. Dispatch provided the vehicle description and licens e plate number. {¶ 8} In response to this information, the officer drove onto I-75 in a northbound direction in order to keep an eye out for the subject vehicle. While on I-75, the officer observed appellant driving in a suspicious fashion. {¶ 9} The officer began following the suspicious vehicle. She quickl y determined that the vehicle’s license plate number was a match to the lice nse plate number provided by dispatch for the perpetrator of the Lowe’s theft. {¶ 10} Given these facts and circumstances, she activated her overhead lights and attempted to pull over appellant. Appellant fled at a reckless rate of speed, exited I-75 at Miami Street, and led her and other officers on an extended, hi gh-speed chase. {¶ 11} During the course of the ensuing police chase, appellant drove in an exceptionally dangerous fashion, reaching speeds of 120 m.p.h. and nearly causing

numerous accidents. {¶ 12} Later during the pursuit, appellant fishtailed his vehicle in t he vicinity of Owens Community College, resulting in appellant being face-to-f ace with the initial4. officer who first spotted him on I-75. Her police vehicle was now approximately five feet from appellant’s now stopped vehicle. {¶ 13} As appellant appeared to be ending his flight following his fis htail halt, the officer began to exit her vehicle. At this point, appellant gu nned his engine, resumed his flight, and again reached speeds well in excess of 100 m.p.h. {¶ 14} Given the extreme risk of harm associated with continuing this high speed pursuit in a densely travelled and populated area, the chase wa s called off. The license plate number of the subject vehicle was run through the Bureau of Motor Vehicle’s database and was found to belong to appellant. {¶ 15} Appellant was arrested later that day at a Sylvania Township su shi restaurant where appellant was employed as a cook. In a hasty attempt to evade responsibility by superficially altering his appearance, appell ant had shaved off his facial hair in his motor vehicle after the police chase. Appellant ha d placed his shaved facial hair in the glove compartment of the vehicle. In addition, app ellant had removed the rear license plate of his vehicle. {¶ 16} On June 19, 2019, appellant was indicted on one count of failur e to comply with an order or signal of a police officer, in violation of R. C. 2921.331, a felony of the third degree, and one count of theft, in violation of R.C. 2913 .02, a felony of the fifth degree based upon the determined value of the stolen items bein g $1,406.85.5. {¶ 17} On January 22, 2020, following a jury trial, appellant was foun d guilty of both offenses. On January 28, 2020, appellant was sentenced to a 41-month total term of incarceration. This appeal ensued. {¶ 18} In the first assignment of error, appellant alleges that the tr ial court abused its discretion in its denial of appellant’s Crim.R. 29 motion f or acquittal. We do not

concur. {¶ 19} It is well-established that appellate review of a disputed deni al of a Crim.R. 29 motion for acquittal is governed by the same standard as is employed in determining whether a verdict is supported by sufficient evidence. State v. Tenace , 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37. {¶ 20} In conjunction, resolving challenges to the sufficiency of the evidence requires consideration of whether, when the evidence is examine d in the light most favorable to the prosecution, a rational trier of fact could ha ve found the elements of the crime proven beyond a reasonable doubt. State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). The appellate court must assess whether the eviden ce, if believed, would support a conviction. Jenks at paragraph two of the syllabus. {¶ 21} In principle support of the first assignment, appellant maintai ns that appellee failed to establish appellant’s identity as the perpet rator at trial. The record of evidence firmly belies this claim. {¶ 22} Appellant appears to rely upon his transparent effort to superf icially modify his appearance by shaving in the car after his initial escape a s somehow operating to6. negate the validity of his positive identification by multiple eyewitnesses. We are not persuaded. {¶ 23} The above-discussed Lowe’s patron, the eyewitness in the parkin g lot, testified at trial, “I could hear the alarm going off, the secu rity alarm, as I was coming up to the building * * * The next thing I saw is a gentleman comin g out pushing a cart, kind of -- I wouldn’t say running -- but walking fast, jogging * * * [B]ehind him were two Lowe’s employees telling me to call the police, he is stealing from us.” {¶ 24} At the conclusion of his testimony, this witness was asked by t he prosecution, “[O]n a scale of 1 to 100, 1 being almost absolute ly uncertain, 100 being 100 percent confident, how certain are you that the person sitting here today was the person who pushed out that cart stealing those items from Lowe’s?” {¶ 25} The witness definitively responded, “ I am absolutely confident of that * * * We would be at the 100 [in certainty] .” (Emphasis added). {¶ 26} The Perrysburg Township police officer who originally observed appellant on I-75 driving the vehicle with a license plate number matchin g the one that had been reported to 9-1-1 by the witness, likewise furnished detailed t estimony of these events. {¶ 27} She testified, “I received a dispatch * * * reporting that some body had just stolen items from Lowe’s * * * [T]hey provided a license plate [number] Henry Sam

William 9594.” {¶ 28} The officer next explained that shortly thereafter she observed a man driving suspiciously leaving the area in a northerly direction on I-75, so she began to7. follow the vehicle. She testified, “[The vehicle] started to s peed up. And then at that point, I looked at the rear license plate, and it matched the l icense plate that dispatch provided, Henry Sam William 9594.” {¶ 29} The officer testified that she activated her overhead lights. Appellant fled at an extremely reckless rate of speed. She testified that app ellant’s speed during the chase ranged from 100 m.p.h. to 120 m.p.h. {¶ 30} At one point, appellant’s vehicle fishtailed and screeched to a halt. This enabled the officer to make direct visual contact with appellan t in extremely close proximity to appellant. {¶ 31} The officer testified, “The defendant and I -- meet face-to-fac e. It was like

slow motion in time. I remember it took about 15 seconds * * * I looked right at him, he looked right at me, it was like we locked eyes.” {¶ 32} The officer further testified regarding appellant resuming his flight at a high rate of speed and her ultimate determination to cease the pursuit due to the significant public safety risk. {¶ 33} The officer then testified that she subsequently viewed the bur eau of motor vehicle photo of appellant, which was connected to the license plate number of the vehicle that the officer had just pursued. {¶ 34} Based upon the officer’s close, direct observation of appellant during the pursuit, the officer was asked, “How certain were you that BMV photo matched the8. driver that you came face-to-face with midway through that purs uit?” The officer conclusively replied, “ 100 percent. That’s why I issued the warrant. ” (Emphasis added). {¶ 35} The record reflects that appellant’s assertion in support of th e first assignment of error, that appellee failed to successfully estab lish the identity of appellant as the culpable party, is without merit. {¶ 36} Multiple, credible eyewitnesses definitively identified appella nt as the offender. We find appellant’s first assignment of error not we ll-taken. {¶ 37} In the second assignment of error, appellant alleges that his c onvictions were against the manifest weight of the evidence. We do not co ncur. {¶ 38} It is well-established that when reviewing a manifest weight of the evidence challenge on appeal, this court must review the record of evidence, weigh the evidence and all reasonable inferences, consider witness credib ility, and determine whether, in resolving evidentiary conflicts, the jury clearly l ost its way such that a manifest miscarriage of justice resulted. State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). {¶ 39} In support of the second assignment of error, appellant summari ly speculates that the jury verdicts were not based upon the weigh t of the evidence, but were actually based upon jury concerns of, “the potentially dangerou s outcome of a high-speed police chase.”9. {¶ 40} The record contains detailed, compelling testimony provided by highly credible eyewitnesses reflecting appellant’s guilt. The record contains no contrary evidence or testimony on appellant’s behalf. {¶ 41} We find that the record reflects that ample evidence, sufficien t for a

rational trier of fact to have found the elements of the offens es proven beyond a doubt, was presented at trial. {¶ 42} Appellant has failed to establish that the jury clearly lost it s way, causing a manifest miscarriage of justice. We find appellant’s second assignment of error not

well-taken. {¶ 43} On consideration whereof, we find that substantial justice has been done in this matter. The judgment of the Wood County Court of Common P leas is hereby affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pur suant to App.R. 27. See also 6th Dist.Loc.App.R. 4.10. State v. Marx C .A. No. WD-20-018

Thomas J. Osowik, J. _______________________

________ JUDGE Christine E. Mayle, J.

_______________________________ Myron C. Duhart, J. JUDGE CONCUR.

_______________________________ JUDGE

This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.