State v. David Young
| Decision Date | 08 April 1982 |
| Docket Number | 43881,82-LW-2220 |
| Parties | State of Ohio PLAINTIFF-APPELLEE, v. David Young DEFENDANT-APPELLANT. |
| Court | Ohio Court of Appeals |
For plaintiff-appellee: John T. Corrigan.
For defendant-appellant: Christopher D. Stanley.
JOURNAL ENTRY AND OPINION
This cause came on to be heard upon the pleadings and the transcript of the evidence and the record in the Common Pleas Court, and upon consideration, the court finds no error prejudicial to the appellant and therefore the judgment of the Common Pleas Court is affirmed. Each assignment of error was reviewed and upon review the following disposition made:
Defendant, David Young, along with one Gerald Ambler, aka Gerald James, aka James Ambler,®1¯ was indicted by the Cuyahoga County Grand Jury on February 24, 1981, for the offenses of Receiving Stolen Property (R.C. 2913.51) and Possessing Criminal Tools (R.C. 2923.24). Specifically, the grand jury charged that the defendant did "receive retain or dispose of a 1980 Automobile the property of Thomas Freeman knowing or having reasonable cause to believe that it had been obtained through the commission of a theft offense" and that defendant "possessed or had under (his) control a substance, device, instrument, or article with purpose to use it criminally, to-wit: screwdrivers." Defendant was assigned counsel and entered a plea of not guilty to the indictment.
Footnote 1 Gerald Ambler pled guilty to the indictment on April 19, 1981, and his case was passed for sentencing until after the instant trial.
In a trial commencing Monday, April 20, 1981, the defendant's case was heard by a jury and the following evidence adduced. On Sunday, January 11, 1981, Thomas Freeman, who is employed by the Halsey Stewart Brokerage Firm situated in the National City Bank Building and located at East 6th Street and Euclid Avenue (in Cleveland) drove from his home in Moreland Hills to work. He arrived at approximately 11:00 a.m. and parked his car on 6th Street near Euclid within view of his office window. At approximately 1:30 p.m. he looked out the window and saw that his car, a silver 1980 Oldsmobile Cutlass, was missing. Freeman immediately notified the police (Tr. 5-7).
At approximately 1:00 p.m.®2¯ Patrolman William Emerick along with his partner, Patrolman Mark Lillie, drove past Rawlings Junior High School (which is situated between Holton Avenue and Rawlings Avenue off East 75th Street in the City of Cleveland). At that particular time, Patrolman Emerick noticed a silver gray 1980 Oldsmobile Cutlass parked in the school yard. This car had never been seen in the area before. Additionally, it was observed that the trunk lock had been punched out. The police officers consequently drove to the car, got out and inspected it. During this examination of the vehicle, it was further observed that the steering column had been "peeled" and that the driver's door lock had been punched out. The officers thereupon radioed for assistance from other zone cars in the district. Two cars, 411 and 414, responded.®3¯ (Tr. 91-92).
Footnote 2 Although most of the testimony as to time placed this activity "in the early afternoon hours." Two of the officers who testified gave an earlier time. Specifically, Patrolman Hageman testified that a call as per this incident at Rawlings Junior High School was received at approximately 11:30 whereas his partner, Patrolman Putnam stated such a call was received at approximately 12:45. Patrolman Coyne placed the time at 1:25 p.m. (Tr. 15, 43, 105).
Footnote 3 One of the officers in Car 411, Patrolman Hageman, who observed the car, noted that the driver's side door had been "jimmied" and that it had been pried open that way (Tr. 25).
Patrolman Hageman and his partner, Patrolman Putnam in car 411, as well as Patrolmen Milligan and Coyne in car 414 responded to the call. (Tr. 92). The officers in these vehicles then "sat and watched" the silver Cutlass for approximately a "half an hour." At about this time, the officers in Car 411 (Hageman and Putnam) who were positioned closest to the Cutlass®4¯ received a radio assignment and began to leave the scene. As they drove past Rawlings School, Patrolman Hageman (who was not driving) noticed that the Cutlass had begun to back up, but since the lot was covered with snow, got stuck. At that point, the defendant got out of the auto, went to the front of it, and began pushing it in a reverse motion. (Tr. 14-18).
Footnote 4 By virtue of their location, only Officers Hageman and Putnam were able to clearly view the Cutlass. (Tr. 98, 108).
The officers in Car 411 thereupon moved in on the appellant and attempted to arrest the car's two occupants.®5¯ Upon noticing the appearance of police on the scene, the defendant began to run away at a high rate of speed (Tr. 20). Patrolman Putnam consequently apprehended only Gerald Ambler who meanwhile had begun to exit the car (Tr. 20-22, 47). The defendant was eventually apprehended by the other officers in the area who had responded to the broadcast by Patrolman Putnam to the other zone cars on the scene (regarding the Cutlass) that "a male fleeing from the auto was going in a northbound direction through the playground of the junior high heading towards Rawlings Avenue." (Tr. 48). Specifically, Officers Emerick, Lillie and an officer from the third car (414), Milligan, drove to the designated area of Rawlings where they spotted the defendant. The three then exited their cars and chased the defendant who continued to run in disregard of their orders to halt®6¯ before they eventually succeeded in apprehending him. (Tr. 95-97, 105-108). Defendant was subsequently transported back to the junior high school parking lot where he and Ambler were given their constitutional rights, transported to the district station and booked. (Tr. 22). A large screwdriver was found on the seat of the Cutlass at the scene and subsequently a smaller screw driver was found on Ambler's person after he was conveyed to the district station. (Tr. 24, 25). The Cutlass was also conveyed to the district station where its owner, Thomas Freeman, identified the car as his.®7¯
Footnote 5 Once Patrolman Hageman noticed the car moving with two occupants in it, he immediately radioed the other two cars in the vicinity as to this observation. Further, although only Patrolman Hageman actually saw the car with the defendant in it, his partner, Patrolman Putnam, testified that he too observed that the Cutlass had been backed up from its original position. Putnam further testified that his partner stated at this time that there was someone in the Cutlass and that it was moving. In response, Putnam dropped off his partner and blocked the entrance to the school's parking lot with his car prior to assisting his partner ?? effectuating Ambler's arrest.
Footnote 6 Officer Emerick testified that when they drove to Rawlings Avenue (the locati?? broadcasted by Officer Putnam), they exited their car and proceeded to give chase. The defendant at that particular time, stopped for a moment, turned around, saw the officers and then continued to run in the direction he originally ran in (Tr. 95).
Footnote 7 Mr. Freeman noted in his testimony that in contrast to the condition in which it was left by him that morning, the car's trunk and driver door locks had been punched open and the steering column was ripped open. (Tr. 8).
Defendant's accomplice, Gerald Ambler, who testified on behalf of the state characterized himself as an associate of the defendant. He stated that on January 11, 1981, he stole Freeman's Oldsmobile Cutlass and started it by using a screw driver. Thereupon he drove to the defendant's apartment where he parked the car in the Rawlings Junior High School parking lot. He proceeded to defendant's apartment where he found defendant to be alone. He asked the defendant if he wanted to help him strip a car. Defendant complied by following Ambler outside. However, when Ambler attempted to drive off in the Cutlass, he experienced difficulty due to the snow so the defendant got out and pushed the car to free it. At this point police emerged on the scene and arrested first Ambler and then the defendant. On cross-examination, Ambler freely admitted that he had been indicted five times in the past year for stealing cars, and that he stole in order to support his drug habit which cost some $300 a week to maintain. He denied any special motive other than "civic duty" in offering his testimony (Tr. 65-76).
At the close of the state's evidence, counsel for defendant moved for a judgment of acquittal. The trial court overruled this motion. Thereupon the defense adduced evidence in the form of testimony by the defendant corroborated in large part by one Denise Gardner, who is defendant's live-in girlfriend.®8¯ The two asserted that on January 11, 1981, Ambler stopped by defendant's apartment sometime around noon. As defendant and Gardner had "not yet gotten up", Ambler (who at this time purportedly stopped by merely to make a social call) left as both defendant and Gardner were indisposed to receiving visitors. However, a few minutes later, Ambler returned claiming that his car was stuck in the snow. The defendant therefore changed and went outdoors to help him. As he was pushing the car, police emerged on the scene and defendant ran out of fright, claiming he did not trust the police.®9¯ (Tr. 115-122, 146-148).
Footnote 8 In much of his testimony, defendant refers to Denise Gardner also as his future wife.
Footnote 9 Defendant traced this fear and mistrust in part to a prior conviction for aggravated burglary for which he served twenty-five months.
At the close of the...
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