State v. Shutway, 102320 OHCA2, 2018-CA-39
| Opinion Judge | WELBAUM, J. |
| Party Name | STATE OF OHIO Plaintiff-Appellee v. JOHN ANTHONY SHUTWAY Defendant-Appellant |
| Attorney | JANE A. NAPIER, Assistant Prosecuting Attorney, Champaign County Prosecutor's Office, Attorney for Plaintiff-Appellee JOHN ANTHONY SHUTWAY, Defendant-Appellant, Pro Se |
| Judge Panel | FROELICH, J. and HALL, J., concur. |
| Case Date | October 23, 2020 |
| Court | Ohio Court of Appeals |
Criminal Appeal from Common Pleas Court Trial Court Case No. 2018-CR-77
JANE A. NAPIER, Assistant Prosecuting Attorney, Champaign County Prosecutor's Office, Attorney for Plaintiff-Appellee
JOHN ANTHONY SHUTWAY, Defendant-Appellant, Pro Se
OPINION
WELBAUM, J.
{¶ 1} Defendant-appellant, John Anthony Shutway, appeals pro se from his conviction in the Champaign County Court of Common Pleas after a jury found him guilty of one count of failure to comply with an order or signal of a police officer and one count of obstructing official business. For the reasons outlined below, Shutway's conviction will be affirmed.
Facts and Course of Proceedings
{¶ 2} On March 20, 2018, Officer Chad Duncan of the Tremont City Police Department was on duty monitoring traffic with his radar gun on Valley Pike in Clark County, Ohio, when he observed a minivan traveling 36 miles per hour in a 25 miles per hour zone. Upon observing this speeding violation, Officer Duncan activated the siren and overhead lights on his marked patrol cruiser and pulled behind the minivan to initiate a traffic stop. The driver of the minivan, Shutway, refused to pull his vehicle over and continued to drive northbound on Valley Pike toward Champaign County. As a result, Officer Duncan radioed dispatch and advised that he was pursuing a vehicle that would not pull over and that the vehicle was headed toward Champaign County.
{¶ 3} The Champaign County Dispatch Center was notified of the pursuit and called out the pursuit over the radio. In response, Champaign County Sheriffs Deputies Zac Prickett and Brandon Fenwick joined Officer Duncan in pursuit of Shutway near the intersection of State Route 560 and U.S. Route 36 in Champaign County. Deputies Prickett and Fenwick eventually took the lead in the pursuit, which went on for 12 to 13 miles at speeds of 55 to 60 miles per hour. During the pursuit, Shutway drove in a dangerous and reckless manner, as he nearly collided with Deputy Prickett's vehicle and caused Prickett to swerve off the road.
{¶ 4} The pursuit ended in a rural area on Church Road in Champaign County. The officers managed to block the roadway and force Shutway to stop his vehicle. Despite being stopped, Shutway would not comply with the verbal orders and commands of the officers. The officers ordered Shutway multiple times to exit his vehicle and he refused. Shutway also refused to roll down his window and unlock his door. In light of Shutway's resistance and failure to comply with the officers' commands, Deputy Fenwick broke the window out of the driver-side door of Shutway's vehicle.
{¶ 5} After Deputy Fenwick broke the window, Deputy Prickett reached inside Shutway's vehicle in an attempt to unlock the door and unbuckle Shutway's seatbelt. Shutway, however, still refused to comply and began to struggle with Deputy Prickett. Upon observing Deputy Prickett struggling with Shutway, Deputy Fenwick pulled out his taser and tased Shutway. Only then was Deputy Prickett able to unbuckle Shutway's seatbelt and remove him from the vehicle. Once removed from the vehicle, the officers placed Shutway into custody.
{¶ 6} Shutway was subsequently charged in the Champaign County Municipal Court for two counts of felonious assault, one count of failure to comply with an order or signal of a police officer, and one count of obstructing official business. Approximately two weeks later, a Champaign County grand jury returned an indictment charging Shutway with one count of failure to comply with an order or signal of a police officer and one count of obstructing official business. Both of these counts included a specification for the forfeiture of Shutway's minivan. The indicted charges and specifications pertained to the same conduct that Shutway was charged for in the Champaign Municipal Court.
{¶ 7} Shortly after Shutway's indictment, the State moved to dismiss the charges in municipal court. The municipal court granted the State's motion and dismissed the case against Shutway subject to the jurisdiction of the Champaign County Court of Common Pleas. With regard to the indicted charges, Shutway pled not guilty and the matter proceeded to a jury trial. Before Shutway's case was submitted to the jury, the State dismissed the two forfeiture specifications. After hearing the testimony and evidence presented by the parties, the jury found Shutway guilty of failure to comply with an order or signal of a police officer and obstructing official business. At sentencing, the trial court ordered Shutway to complete five years of community control sanctions. The trial court also suspended Shutway's driver's license for 13 years and ordered Shutway to pay a fine of $2, 750 and court costs.
{¶ 8} Shutway now appeals from his conviction, raising four assignments of error for review. Before we address Shutway's assigned errors, we note that in proceeding with his appeal, Shutway filed a reply brief with three exhibits attached thereto. The exhibits include a traffic ticket issued to Shutway on March 20, 2018; an audio recording containing various radio communications between an unidentified police officer and a dispatcher; and a copy of an e-mail correspondence between the Tremont City police chief and the 9-1-1 coordinator of the Clark County Sheriff's Office. The State filed a motion to strike these exhibits because they were not part of the record on appeal.
{¶ 9} Upon review, the State's motion to strike is granted. "[I]n reviewing the trial court's judgment, we are limited to the record before the trial court." Williams v. Pioneer Credit Recovery, Inc., 2d Dist. Montgomery No. 28524, 2020-Ohio-397, ¶ 16, citing Kahler v. Eytcheson, 2d Dist. Montgomery No. 23523, 2012-Ohio-208, ¶ 23." 'An exhibit merely appended to an appellate brief is not part of the record, and we may not consider it in determining the appeal.'" Id., quoting State v. Grant, 10th Dist. Franklin Nos. 12AP-650 and 12AP-651, 2013-Ohio-2981, ¶ 12. Accord State v. Wilson, 2d Dist. Clark No. 2018-CA-2, 2020-Ohio-2962, ¶ 29. Therefore, for purposes of determining the merits of this appeal, we will not consider the new documents that Shutway attached to his reply brief.
First Assignment of Error
{¶ 10} Under his first assignment of error, Shutway contends that the jury's verdict finding him guilty of failure to comply with an order or signal of a police officer and obstructing official business was invalid because the verdict form signed by the jurors did not include a finding that Champaign County was the correct venue. We disagree.
{¶ 11} As a preliminary matter, we note that during his trial, Shutway did not object to the verdict forms on the basis that they failed to include a finding as to venue. As a result, Shutway has waived all but plain error with regard to that issue. See State v. Ropp, 2d Dist. Champaign No. 2018-CA-44, 2020-Ohio-824, ¶ 47; State v. Shedwick, 10th Dist. Franklin No. 11AP-709, 2012-Ohio-2270, ¶ 43. To prevail under the plain error standard, Shutway "must demonstrate both that there was an obvious error in the proceedings and that but for the error, the outcome of [his] trial clearly would have been otherwise." State v. Satterfield, 2017-Ohio-5616, 94 N.E.3d 171, ¶ 31 (2d Dist.), citing State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88, ¶ 61-62.
{¶ 12} We find no obvious error with regard to the jury verdict forms at issue." '[W]hen a court submits a verdict form containing a statutory description of the offense, it commits reversible error if the description omits essential elements of that offense.'" (Emphasis added.) State v. Harwell, 2d Dist. Montgomery No. 25852, 2015-Ohio-2966, ¶ 59, quoting State v. Lampkin, 116 Ohio App.3d 771, 774, 689 N.E.2d 106 (6th Dist.1996). While venue is a fact that must be proven at trial, it "is not a material element of any offense charged." (Citation omitted.) State v. Draggo, 65 Ohio St.2d 88, 90, 418 N.E.2d 1343 (1981). Accord State v. Richardson, 2016-Ohio-8081, 75 N.E.3d 831, ¶ 25 (2d Dist.); State v. Weber, 2d Dist. Montgomery No. 25508, 2013-Ohio-3172, ¶ 32 (venue is not a material element of a charged offense). Rather, "[t]he elements of the offense charged and the venue of the matter are separate and distinct." (Citations omitted.) Draggo at 90.
{¶ 13} Even if jury verdict forms were required to mention the jury's finding as to venue, we would still not find an obvious error in the verdict forms at issue. The language used in the verdict forms sufficiently established that the jury found Shutway's offenses were committed in Champaign County, Ohio. Specifically, the first verdict form contains the heading "Count One" followed by the proper statutory definition for the offense of failure to comply with an order or signal of a police officer. The second verdict form contains the heading "Count Two" followed by the proper statutory definition for the offense of obstructing official business. While charging the jury, the trial court explained each of these counts in relation to the corresponding verdict forms by stating the following:
Count One. The Defendant is charged with Failure to Comply with an Order or Signal of a Police Officer. Before you can find the Defendant guilty, you must find beyond a reasonable doubt that on or about the 20th day of March, 2018, in Champaign County, Ohio, the Defendant operated a motor vehicle so as willfully to elude or fell a police officer after receiving a visible or audible signal from a police officer to bring his motor vehicle to a stop.
Count Two. The Defendant is...
To continue reading
Request your trial