State v. Armstrong-Carter, Appellate Case No. 28571
| Decision Date | 02 April 2021 |
| Docket Number | Appellate Case No. 28576,Appellate Case No. 28571 |
| Citation | 2021 Ohio 1110 |
| Court | Ohio Court of Appeals |
| Parties | STATE OF OHIO Plaintiff-Appellee v. JEWELL ARMSTRONG-CARTER Defendant-Appellant |
(Criminal Appeal from Municipal Court)
OPINIONLINDSAY E. BOZANICH, Atty. Reg. No. 0097356, Assistant Prosecuting Attorney, City of Dayton Prosecutor's Office, 335 West Third Street, Room 372, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee
CARLO C. MCGINNIS, Atty. Reg. No. 0019540, 55 Park Avenue, Dayton, Ohio 45419 Attorney for Defendant-Appellant
{¶ 1} Defendant-appellant, Jewell Armstrong-Carter, appeals from his conviction in the Dayton Municipal Court after a jury found him guilty of failure to comply with the order or signal of a police officer, resisting arrest, and obstruction of official business. In support of his appeal, Armstrong-Carter argues that the jury instruction given for resisting arrest provided the wrong burden of proof for the affirmative defense of excessive force. Armstrong-Carter also argues that his conviction was not supported by sufficient evidence and was against the manifest weight of the evidence. Armstrong-Carter additionally challenges the trial court's appointment of an acting judge for his trial and alleges several instances of prosecutorial misconduct. Lastly, Armstrong-Carter claims that the cumulative effect of all the errors in this case deprived him of a fair trial and warrants a reversal of his conviction. For the reasons outlined below, Armstrong-Carter's arguments lack merit, and his judgment of conviction will be affirmed.
{¶ 2} On February 27, 2019, Armstrong-Carter was charged in Case No. 2019-CRB-908 with failure to comply with the order or signal of a police officer in violation of R.C. 2921.331(A), resisting arrest in violation of R.C. 2921.33(A), and obstruction of official business in violation of R.C. 2921.31(A). In a related traffic case, Case No. 2019-TRD-1423, Armstrong-Carter was also charged with operating a vehicle without a valid license, driving while under suspension, driving while under a financial responsibility law suspension, operating a vehicle without license plates, failure to reinstate a license, and a window tint violation. The charges in both cases arose from a traffic stop of a vehicle driven by Armstrong-Carter on February 26, 2019. Although Armstrong-Carter filed notices of appeal in both cases, the issues raised on appeal only pertain to the criminal charges brought against him in Case No. 2019-CRB-908. Therefore, our discussion will be limited to those charges.
{¶ 3} Armstrong-Carter pled not guilty to the aforementioned criminal charges and the matter was scheduled for a jury trial. Due to the absence of the Dayton Municipal Court judge assigned to Armstrong-Carter's case, the presiding judge of the municipal court appointed Colette E. Moorman as an acting judge for Armstrong-Carter's trial. Armstrong-Carter objected to Moorman's appointment on grounds that there were active Dayton Municipal Court judges available to preside over his trial. However, in the entry appointing Moorman as acting judge, the presiding judge found that "the other judges of the Court are not available on the [dates of trial] due to scheduled cases or other Court business," and thus overruled Armstrong-Carter's objection. The matter then proceeded to trial before Judge Moorman.
{¶ 4} At trial, the State presented testimony from the Dayton police officers who encountered Armstrong-Carter on the day in question. The State also presented video footage taken from the officers' cruiser camera. The testimony and evidence established that on February 26, 2019, Officers Cody Hartings and Vince Carter were on patrol as a two-man crew in their police cruiser when they spotted a black Chevy Monte Carlo with dark window tint and no license plates traveling on Stewart Street in Dayton, Ohio. After observing these traffic infractions, the officers activated their lights and siren while on Danner Avenue for purposes of initiating a traffic stop of the vehicle. The officers testified, and the video evidence confirmed, that although there were several places for the vehicle to stop, the vehicle nevertheless continued to travel down Danner Avenue without slowing down. The video showed that after approximately 25 seconds, the vehicle eventually stopped after pulling into a parking lot of an apartment complex. Once the vehicle stopped, the officers blocked the vehicle with their cruiser and prevented the vehicle from reversing into a parking spot.
{¶ 5} The officers testified that they had concerns about approaching the vehicle because they could not see inside the vehicle due to its dark window tint and because they did not know why the driver did not timely stop after they activated their lights and siren. Despite these concerns, the record indicates that Off. Hartings approached the driver's side of the vehicle while Off. Carter approached the passenger's side. Off. Hartings then tapped on the driver-side window. The driver, later identified as Armstrong-Carter, did not respond to the tapping. After six seconds, Off. Hartings attempted to open the driver-side door, but it was locked. Off. Hartings then tapped on window again and said: Off. Hartings then tried to open the door again and it was still locked. Off. Hartings then tapped on the window again and said: "Give me your ID." In response, Armstrong-Carter said something indiscernible, and Off. Hartings replied: "Cause you don't have a license plate."
{¶ 6} At this point, the record indicates that Armstrong-Carter partially opened the driver-side window. Armstrong-Carter then made some undiscernible comments and told Off. Hartings to: "Talk to Todd." In response, Off. Hartings said: "Who is Todd?—Ok, you have to give me your ID." However, instead of giving Off. Hartings his identification, Armstrong-Carter made some more indiscernible comments and said: "You don't have to tap this window either." After this brief conversation, Off. Hartings testified that Armstrong-Carter rolled his window back up. In response, Off. Hartings told Armstrong-Carter: Off. Hartings then continued tapping on the driver-side window and once again said: "Give me your ID."
{¶ 7} Shortly thereafter, the video shows that Off. Hartings made a quick movement toward the vehicle and said: "Get out the car." Off. Hartings testified that in that moment, he attempted grab Armstrong-Carter through the driver-side window, but failed. After the failed attempt at grabbing Armstrong-Carter, Off. Hartings asked Off. Carter: "Do you have your window puncher on you?" Off. Hartings then continued to knock on the window and once again told Armstrong-Carter to: "Give me your ID."
{¶ 8} During this time, a man, later identified as Todd Zachary, can be seen on the video evidence emerging from a nearby vehicle. Zachary approached the officers with some papers in his hand and yelled for Armstrong-Carter to: "Open the door up man!" Zachary also shouted: "Open up the door bro!—Man we driving a car with no tags man!" Zachary, a defense witness, testified that Armstrong-Carter was like a nephew to him. Zachary testified that on the day in question, he and Armstrong-Carter were in the process of selling the Monte Carlo that Armstrong-Carter was driving. Zachary also testified that he had been driving behind Armstrong-Carter for purposes of taking the vehicle to be sold. Zachary further testified that he approached the officers to try and show them the title to the vehicle, and that he wanted to help get Armstrong-Carter out of the vehicle so that the officers would not break the vehicle's windows.
{¶ 9} Shortly after Zachary arrived at the scene, Off. Carter was able to open the vehicle's passenger-side door. Off. Carter then looked in the vehicle and said: To this, Armstrong-Carter made some more indiscernible comments and yelled: "For what?" Off. Carter then said: "Unlock the door." At this point, the record indicates that the driver-side door unlocked and Off. Hartings opened the door. Off. Hartings then immediately grabbed Armstrong-Carter from the vehicle and wrestled him toward the back of the vehicle. Off. Carter then assisted Off. Hartings and the two officers wrestled Armstrong-Carter to the ground.
{¶ 10} As the officers wrestled Armstrong-Carter to the ground, Armstrong-Carter said: "You fucked up bro." While the officers had Armstrong-Carter on the ground, one of the officers ordered Armstrong-Carter to: "Give me your hands, give me your hands." During this time, Armstrong-Carter continued to make comments to the officers. For instance, Armstrong-Carter said: "You got me fucked up," and "I didn't do a motherfucking thing," and "I didn't do shit bro." Although a lot of the comments on the video are indiscernible, both Off. Hartings and Off. Carter testified that Armstrong-Carter cursed at them and told them that they were going to have to "work for it." Trial Trans. p. 205 and 364.
{¶ 11} The officers testified that when Armstrong-Carter was on the ground, he had his arms beneath his stomach and chest area so that they could not place him in handcuffs. Both officers also testified that they tried to grab Armstrong-Carter's arms from underneath him. During the struggle, the video shows that Off. Carter made a jerking motion with his arm. Off. Carter testified that the jerking motion was him drawing out his retractable asp. Off. Carter testified that he never hit Armstrong-Carter with the asp, but simply used it as a lever in an attempt to pry Armstrong-Carter's arms out from underneath him. Off. Hartings, however, applied four to five...
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