[Cite as State v. Warner,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 9-21-15

v.

JASON D. WARNER, OPINION

DEFENDANT-APPELLANT.

Appeal from Marion County Common Pleas Court Trial Court No. 2020CR0346

Judgment Affirmed

Date of Decision: November 29, 2021

APPEARANCES:

Samuel H. Shamansky for Appellant

Andrea K. Boyd for Appellee Case No. 9-21-15

PER CURIAM.

{¶1} Defendant-appellant, Jason Warner (“Jason”), brings this appeal from

the April 16, 2021, judgment of the Marion County Common Pleas Court sentencing

him to twenty-four months in prison after he was convicted in a bench trial of

“Leaving the Scene of an Accident/Complicity” in violation of R.C. 2923.03(A)(2)

and R.C. 4549.02(A)(1)/(B)(2)(b),1 a fourth degree felony, and “Tampering with

Evidence/Complicity” in violation of R.C. 2923.03(A)(2) and R.C. 2921.12(A)(1),

a third degree felony. On appeal, Warner argues that there was insufficient evidence

presented to convict him, that his convictions were against the manifest weight of

the evidence, that the trial court’s general findings of guilt constituted a legal

impossibility, that the trial court committed repeated misconduct depriving him of

a fair trial, and that if no single error was prejudicial, the cumulative effect of the

trial court’s errors was prejudicial.

Background

{¶2} On June 4, 2020, just after midnight, the record indicates that Jason’s

wife, Julia Warner (“Julia”), was driving a black Jeep Wrangler southbound on SR

203 with Jason in the passenger seat. At the same time, Colton G. was driving

1 Pursuant to R.C. 4549.02(B)(1), a person who violates R.C. 4549.02(A) is guilty of “failure to stop after an accident.” However, in the indictment the State titled the crime “Complicity to Leaving the Scene of an Accident.” In addition, the trial court used the terminology “Leaving the Scene of an Accident/Complicity” in its final judgment entry. Notably, the Supreme Court of Ohio has colloquially called a violation of R.C. 4549.02 “leaving the scene of an accident.” State v. Bryant,

,

. We will use the terms interchangeably in this opinion.

-2- Case No. 9-21-15

northbound on SR 203 in a BMW X3. As both vehicles approached CR 106, also

known as Somerlot Hoffman Road, Julia attempted to make a left turn onto CR 106

without yielding to Colton’s vehicle. The Warners’ Jeep Wrangler struck the left

front of Colton’s BMW, causing the BMW to travel off the right side of the road

and strike a utility pole. The wreck resulted in serious damage to Colton’s vehicle

and trapped him, semi-conscious, inside.

{¶3} Some nearby residents in the rural area heard the crash and saw a male

and female—the Warners, who were not known to the witnesses—walking around

the crash site and looking into the damaged BMW. Julia was observed to have her

hand over her mouth by one witness. Shortly thereafter, the witnesses saw the black

Jeep Wrangler drive away from the scene of the accident prior to the arrival of law

enforcement.

{¶4} One of the nearby witnesses approached the scene after the Jeep

Wrangler left and saw that Colton’s vehicle was smoking and noisy. Colton himself

was trapped in his vehicle, bloody, and semi-conscious. One witness called 911 and

emergency services responded. Colton had to be extracted from his vehicle with a

“hydraulic spreader,” also known as the “jaws of life,” before being taken to the

hospital.

{¶5} Meanwhile, the Warners went home, leaving marks in the roadway and

their driveway where the vehicle’s rim was scraping the pavement through a

-3- Case No. 9-21-15

deflated tire. A neighbor of the Warners was out walking and heard their vehicle

making a lot of noise coming up the street. He saw the Warners’ Jeep pull into their

garage and close the door, though the neighbor did not see who was driving.

{¶6} The Warners did not contact anyone regarding the accident until

approximately nine hours later, when they approached law enforcement together to

accept responsibility for the accident. At that time, and over the ensuing weeks,

Julia made multiple statements indicating that she was driving during the accident,

that she thought there was a stop sign in the other direction, and that she misjudged

the turn in the dark and the rain. When law enforcement investigated the matter,

virtually all of the evidence pointed to Julia driving at the time of the crash, such as

the bruising on her body consistent with the driver’s-side seatbelt, her DNA on the

driver’s-side airbag, and Jason’s DNA on the passenger’s-side airbag. As for his

part, Jason initially told a coworker that he had basically been “passed out” or

“asleep” through the whole incident, though he later acknowledged to the same

coworker that he had gotten out of the Jeep Wrangler at the scene, as other witnesses

had claimed.

{¶7} On September 9, 2020, a joint indictment was filed against Jason and

Julia alleging that they had each individually committed Complicity to Vehicular

Assault in violation of R.C. 2923.03(A)(2) and R.C. 2903.08(A)(2)(b), a felony of

the fourth degree (Count 1); Complicity to Vehicular Assault in violation of R.C.

-4- Case No. 9-21-15

2923.03(A)(2), R.C. 2903.08(A)(2)/(b), and R.C. 4549.02(A)(1), a felony of the

third degree (Count 2); Complicity to “Leaving the Scene of an Accident” in

violation of R.C. 2923.03(A)(2) and R.C. 4549.02(A)(1), a felony of the fourth

degree (Count 3); and Complicity to Tampering with Evidence in violation of R.C.

2923.03(A)(2) and R.C. 2921.12(A)(1), a felony of the third degree (Count 4).2

Jason and Julia pled not guilty to the charges. They also waived a jury trial and

elected to proceed to a bench trial, with a visiting judge assigned to preside over the

matter.

{¶8} Prior to trial, the parties entered into a number of stipulations, which

included the authenticity of various lab reports, photographs, medical records,

phone records, etc.3 In addition, the Warners also agreed to stipulate that Colton

suffered serious physical harm as a result of the accident, obviating the need for

testimony from a significant number of medical professionals.

{¶9} The Warners’ bench trial was held March 8-10, 2021. Importantly, the

two charges for Complicity to Vehicular Assault against Jason were dismissed,

though Vehicular Assault charges remained pending against Julia as the driver of

the vehicle at the time of the accident.4 At the conclusion of the trial, the trial court

2 The indictment was amended to correct typos and incorrect numbers in portions of code sections. 3 The Warners also waived any objections to proceeding to trial together after the issue was raised by the State. 4 The State requested the dismissal of Complicity to Vehicular Assault charges against Jason after a review of the evidence and after speaking with the witnesses in preparation for trial. The State was satisfied that Julia was driving at the time of the crash, thus the State also requested the removal of “Complicity” language from her Vehicular Assault charges. The State’s requests were not opposed and they were granted.

-5- Case No. 9-21-15

noted that it did not have to provide any reasoning to support its general findings;

nevertheless, the trial court made some statements regarding the evidence on the

record. Ultimately, the trial court found Julia and Jason guilty of Count 3 of the

indictment, “Leaving the Scene of an Accident/Complicity” in violation of R.C.

2923.03(A)(2) and R.C. 4549.02(A)(1)/(B)(2)(b), a fourth degree felony, and Count

4 of the indictment, “Tampering with Evidence/Complicity” in violation of R.C.

2923.03(A)(2) and R.C. 2921.12(A)(1), a third degree felony.

{¶10} As for the remaining charges pending against Julia, the trial court

found Julia not guilty of both counts of Vehicular Assault, reasoning that while she

may have been negligent in causing the accident, she was not reckless, as exhibited

by her speed at the time of the crash (roughly 12 or 13 mph). Nevertheless, the trial

court initially stated that Julia was guilty of the “lesser-included offense” of

Negligent Assault, despite no requests for any lesser-included offenses to be

considered by either party. Although the trial court made this initial “finding”

regarding lesser-included offenses, at sentencing the trial court subsequently

withdrew the findings of guilt regarding-lesser included offenses and did not convict

Julia of Negligent Assault, reasoning that an additional element was actually

required to establish Negligent Assault. Thus Julia was entirely acquitted of the

Vehicular Assault charges and no convictions were ever journalized regarding any

purported lesser-included offenses.

-6- Case No. 9-21-15

{¶11} Following the findings of guilt against the Warners, but prior to

sentencing, the Warners filed written, renewed motions for acquittal. They had

previously made motions for acquittal during the trial. The Warners took issue with

many of the trial court’s factual “findings” and legal conclusions that led to the

general findings of guilt.

{¶12} On April 14, 2021, the matter proceeded to sentencing; however, prior

to sentencing the Warners, the trial court addressed the Warners’ renewed motions

for acquittal finding that defense counsel was mischaracterizing the evidence and/or

the trial court’s statements related to the evidence. The trial court further analyzed

the evidence, explained its general findings, and overruled the Warners’ motions for

acquittal. The trial court also filed a written entry denying the renewed motions for

acquittal for the reasons stated on the record.

{¶13} The trial court then proceeded to sentencing solely on Counts 3 and 4

of the indictment, ordering Jason and Julia to both serve eighteen months in prison

for “Leaving the Scene of an Accident/Complicity,” and twenty-four months in

prison for “Tampering with Evidence/Complicity.” Those prison terms were

ordered to be served concurrently, so Jason and Julia Warner each received a

twenty-four-month prison term. A judgment entry memorializing Jason’s sentence

was filed April 16, 2021. It is from this judgment that Jason now appeals, asserting

the following assignments of error for our review.

-7- Case No. 9-21-15

Assignment of Error No. 1 Appellant was convicted in the absence of evidence sufficient to support findings of guilty in violation of his rights as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and comparable provisions of the Ohio Constitution.

Assignment of Error No. 2 Appellant’s convictions were against the manifest weight of the evidence in violation of his right to due process as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and comparable provisions of the Ohio Constitution.

Assignment of Error No. 3 The trial court’s guilty verdicts constituted a legal impossibility, were contrary to law, and violated Appellant’s rights to due process and a fair trial as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitutions and comparable provisions of the Ohio Constitution.

Assignment of Error No. 4 The trial court’s repeated misconduct throughout its deliberations and Appellant’s sentencing violated his rights to due process and a fair trial as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and comparable provisions of the Ohio Constitution.

Assignment of Error No. 5 Appellant was deprived of a fair trial by the cumulative errors of the trial court in violation of his right to due process as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and comparable provisions of the Ohio Constitution.

First Assignment of Error

{¶14} In his first assignment of error, Jason argues that there was insufficient

evidence presented to convict him of “Leaving the Scene of an

Accident/Complicity” and “Tampering with Evidence/Complicity.”

-8- Case No. 9-21-15

Standard of Review

{¶15} “Whether the evidence is legally sufficient to sustain a verdict is a

question of law.” State v. Thompkins,

(1997); State v. Groce,

,

. Therefore, our review is de novo. In re

J.V.,

,

. In a sufficiency-of-the-evidence

inquiry, the question is whether the evidence presented, when viewed in a light most

favorable to the prosecution, would allow any rational trier of fact to find the

essential elements of the crime beyond a reasonable doubt. State v. Jenks,

(1991), paragraph two of the syllabus (superseded by constitutional

amendment on other grounds as stated in State v. Smith,

,

(1997), fn. 4) following Jackson v. Virginia,

,

(1979).

“In essence, sufficiency is a test of adequacy.”

.

Controlling Statutes

{¶16} In this case, Jason was convicted of a violation of R.C.

4549.02(A)(1)/(B)(2)(b), and a violation of R.C. 2921.12(A)(1), both by means of

being Complicit pursuant to R.C. 2923.03(A)(2).

{¶17} Revised Code 4549.02(A)(1)/(B)(2)(b) (Failure to Stop After an

Accident or, as styled here, “Leaving the Scene of an Accident”) reads as follows:

(A)(1) In the case of a motor vehicle accident or collision with persons or property on a public road or highway, the operator of the motor vehicle, having knowledge of the accident or collision, immediately shall stop the operator's motor vehicle at the scene

-9- Case No. 9-21-15

of the accident or collision. The operator shall remain at the scene of the accident or collision until the operator has given the operator's name and address and, if the operator is not the owner, the name and address of the owner of that motor vehicle, together with the registered number of that motor vehicle, to all of the following:

(a) Any person injured in the accident or collision;

(b) The operator, occupant, owner, or attendant of any motor vehicle damaged in the accident or collision;

(c) The police officer at the scene of the accident or collision.

***

(B)(1) Whoever violates division (A) of this section is guilty of failure to stop after an accident. Except as otherwise provided in division (B)(2) or (3) of this section, failure to stop after an accident is a misdemeanor of the first degree.

(2) If the accident or collision results in serious physical harm to a person, failure to stop after an accident is whichever of the following is applicable:

***

(b) If the offender knew that the accident or collision resulted in serious physical harm to a person, a felony of the fourth degree.

Revised Code 2921.12(A)(1) (Tampering with Evidence) reads as follows:

(A) No person, knowing that an official proceeding or investigation is in progress, or is about to be or likely to be instituted, shall do any of the following:

(1) Alter, destroy, conceal, or remove any record, document, or thing, with purpose to impair its value or availability as evidence in such proceeding or investigation[.]

-10- Case No. 9-21-15

Jason was alleged to commit the above crimes via Complicity, which as charged in

this case is codified in R.C. 2923.03(A)(2). This provision, and other relevant

provisions of the statute read:

(A) No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following:

***

(2) Aid or abet another in committing the offense[.]

***

(B) It is no defense to a charge under this section that no person with whom the accused was in complicity has been convicted as a principal offender.

***

(F) Whoever violates this section is guilty of complicity in the commission of an offense, and shall be prosecuted and punished as if he were a principal offender. A charge of complicity may be stated in terms of this section, or in terms of the principal offense.

Evidence Presented

{¶18} The record indicates that on the evening of June 3, 2020, Jason and his

wife, Julia, went to the residence of Todd and Kimberly Anderson for a social

gathering. The Warners and the Andersons were very close friends, and had been

for years. Kimberly Anderson was having a female friend visit from out-of-town,

so she was hosting a gathering that Julia was attending. Jason was planning on

attending a separate social gathering with Todd that evening.

-11- Case No. 9-21-15

{¶19} The Warners arrived at the Andersons’ residence around 6:00 p.m. At

that time, Todd Anderson was not home. However, shortly after Todd arrived home

around 6:30 p.m., Todd and Jason left the Andersons’ residence and went to their

own social gathering at the home of Rob Lust. Todd, Jason, Robb, and others were

part of a group planning a “cigar smoker,” a cigar-related event. (Tr. at 223). While

at Rob Lust’s home, Todd had a few drinks and he thought Jason might have had a

drink but Todd was unsure. Regardless, Todd and Jason returned to the Andersons’

residence between 11:30 and 11:45 p.m.

{¶20} Meanwhile, at the Andersons’ residence, Julia and Kimberly were

drinking wine and snacking. Julia admitted to having three drinks throughout the

evening, claiming that her last drink was at 9:30 or 10 p.m. Kimberly’s guests at

the social gathering, other than Julia, left around 10-10:30 p.m. Julia stayed at the

Andersons’ residence until Jason returned with Todd. At that time, the Warners left

together, with Julia driving the black Jeep Wrangler they owned. The Warners’

home was approximately a 15-20 minute drive.

{¶21} On the ride home, Julia was driving south on SR 203 approaching an

intersection with CR 106, also known as Somerlot Hoffman Road. The area was

relatively rural. Julia slowed down to make the turn onto Somerlot Hoffman Road

from 25 mph to 12 or 13 mph. However, she failed to yield to a driver coming north

on SR 203 before she made her turn. Julia would later claim that she thought there

-12- Case No. 9-21-15

was a stop sign in the opposite direction, and, alternatively, that she misjudged the

turn. Regardless of the reason, the Warners’ vehicle struck a BMW X3 being driven

by Colton G. The collision caused Colton to veer off the road into a telephone pole.

Colton’s vehicle was seriously damaged to the point that the engine compartment

on the left side was shifted toward the passenger compartment. (State’s Ex. 23).

Colton was trapped inside the vehicle.

{¶22} Jennifer Mehaffey resided at 2815 Larue Prospect Road South

approximately 185 yards south of the crash intersection. At the time of the crash,

Jennifer’s daughter, Ashtan, and her boyfriend, Marquis, were on the front porch of

the residence. Marquis saw Colton’s silver vehicle drive past the residence, then he

heard the crash at the intersection. Marquis stated he did not have a clear view of

the intersection from the porch due to the angle.

{¶23} When he heard the crash, Marquis stepped off the porch and moved

toward the intersection. As he did, he saw two people outside of the damaged

vehicles: a woman who had her hands to her face looking into the silver crashed

vehicle, and a man. Ashtan testified that she also saw a male and a female outside

of the crashed vehicles.

{¶24} Ashtan notified her mother Jennifer of the incident, who was upstairs

when it happened, and Ashtan called 911. Jennifer came outside and saw someone

-13- Case No. 9-21-15

circling the damaged vehicle, although she thought she saw a male get out of the

driver’s side of the Jeep and get into the passenger side of the Jeep Wrangler.

{¶25} Seeing the male and female together at the crash site from a distance,

Marquis thought that the two must be exchanging information from the accident,

and that they had the situation handled, so he changed direction and began walking

back toward the porch. However, shortly thereafter, the Jeep Wrangler left the scene

of the accident and the individuals were gone. When Marquis realized that both

individuals from the scene were gone, yet one vehicle was still present, he ran to the

damaged vehicle.

{¶26} Another individual, Keith Bentley, lived slightly closer to the rural

intersection where the accident occurred, but to the north of it, and he also heard the

crash. At the time of the crash, Keith was sitting in his living room watching

television when he heard a “loud pop.” (Tr. at 64). He went to his door and saw

two vehicles, one of which had struck the pole on his property. The pole was

approximately 85 yards away from Keith at that time.

{¶27} Keith walked out of his house to the southern portion of his driveway

and he saw a male figure walking around the crashed vehicle. Keith went back into

his house to get flashlights and a raincoat, but as he did, the Jeep Wrangler left the

scene. Keith did not see a second person at the crash site, and he did not see who

was driving when the Jeep Wrangler departed.

-14- Case No. 9-21-15

{¶28} After the Jeep Wrangler left the scene of the accident, Marquis,

Jennifer and Keith went to the area of the crash to check on the other vehicle. When

Marquis arrived, he saw the driver of the crashed vehicle bleeding, with the airbags

deployed. Marquis indicated that the vehicle was noisy and smoking from the front.

Marquis and Keith both asked the driver some questions, but according to them, the

driver was not making sense. Keith described Colton as “very disoriented.” (Tr. at

70).

{¶29} Jennifer was a nurse, so she got into Colton’s vehicle and helped

stabilize Colton’s head/neck until emergency services responded. Upon arrival,

emergency services noted that Colton was trapped in the vehicle, that he was semi-

conscious, had a large “goose egg” on his head, and that Colton did not know the

place and time. (Tr. at 123). Firefighters employed a “hydraulic spreader” to

extricate Colton from the vehicle. He was taken to Marion General Hospital, but he

had to be transferred to another hospital because Marion General was not a trauma

hospital.

{¶30} Shortly after the crash, after midnight on June 4, 2020, David Bailey

was walking around his cul-de-sac to deal with medical issues. He lived near the

Warners. Despite the fact that he was wearing headphones and listening to music,

he heard a very loud noise approaching and saw a black Jeep Wrangler coming up

his road. According to him, the vehicle was making “all kinds of noise.” (Tr. at

-15- Case No. 9-21-15

126). He stressed that it was “[r]eal loud[.]” (Id.) David watched the Jeep Wrangler

pull into the Warners’ garage and the garage door closed behind it. David did not

see who was driving the vehicle.

{¶31} According to testimony, the Warners’ residence was approximately

5.5 miles from the crash site. The Warners made no calls and sent no text messages

regarding the accident over the next 8 hours.

{¶32} At 8:06 a.m. on June 4, 2020, Jason sent a text message to an employee

at the Marion County Common Pleas Court stating that he had a personal issue that

he had to deal with and that he would not be at work. Jason was an elected common

pleas court judge. He asked if another judge could cover his docket for the day.

{¶33} Around 9:30 a.m. on June 4, 2020, Jason and Julia willingly went to

the police to report the accident and were transferred to the Ohio State Highway

Patrol, which was handling the crash investigation. Jason and Julia met with Marion

Post Commander Troy Sexton of the State Highway Patrol. At that time, Julia

admitted she was driving the vehicle during the crash. She filled out a written

statement indicating that she thought there was a stop sign in the other direction and

that after the crash she panicked and drove away. When questioned by Commander

Sexton, Julia denied being impaired at the time of the crash, though she admitted to

having three drinks that night, ending as late as 10 p.m.

-16- Case No. 9-21-15

{¶34} Commander Sexton testified that he did not give Julia a field sobriety

test during the interview because he did not feel she was impaired at the time of the

interview. He also did not administer a blood test because there was a time

restriction on law enforcement wherein they were expected to get any alcohol or

drug results after a crash and they were past the time limit. (Tr. at 198). However,

the Warners gave law enforcement permission to go to their residence and inspect

the Jeep, collect evidence, and take DNA samples.

{¶35} At 12:47 p.m. that same day, Jason sent a text message to the other

elected judge of the Marion County Common Pleas Court, and to some of the staff

members of the court. The text stated that Jason and Julia had been in a “pretty

serious car accident.” (State’s Ex. 46). Jason stated that Julia failed to yield and hit

another vehicle, and that, “in a hysterical panic, [she] drove away from the scene of

the accident. After a long discussion that went on throughout the night, we agreed

that we needed to go in and report it, which we did this morning.” (Id.)

{¶36} On the same day that the Warners reported the accident, law

enforcement officers went to the Warners’ residence to take pictures of their

damaged Jeep Wrangler. The Jeep was in the garage when officers arrived, and

after they took initial photographs, they asked Jason to back the Jeep out of the

garage. Jason did so, with some difficulty.5 One officer noted that the damage to

5 Officers on the scene did not notice if Jason moved the seat or not prior to backing the vehicle out of the garage.

-17- Case No. 9-21-15

the driver’s-side front tire would have made the vehicle extremely difficult to drive.

Testimony indicated that the “rim ha[d] been separated from the tie rod end

underneath the fender well.” (Tr. at 205). Photographs of the Warners’ Jeep showed

extensive damage to the left front wheel, including a deflated tire. There was also

“buckling * * * on the left front fender above the wheel well.” (State’s Ex. 23).

Due to the deflated tire, there were marks in the road and in the driveway leading to

the Warners’ garage from where the rim had scraped the asphalt. There were

additional marks made when the vehicle was pulled out of the garage.

{¶37} With the Warners’ permission, law enforcement officers collected the

airbags that had deployed from the vehicle. DNA samples were taken from each

airbag. DNA consistent with Julia’s was found on the driver’s-side airbag, and

DNA consistent with Jason’s was found on the passenger’s-side airbag. Julia also

had bruising consistent with the driver’s-side seatbelt. Once officers were done with

the vehicle, it was towed to Buckeye Collision.

{¶38} The next day, June 5, 2020, Jason returned to work. That day, he had

a meeting scheduled with the other Marion County Common Pleas Court Judge,

Judge Edwards, about court matters unrelated to the crash. Following the meeting,

Judge Edwards asked to speak with Jason privately about the accident, because the

local chief of police had indicated that Jason might have been the driver of the

-18- Case No. 9-21-15

vehicle in the crash, which was contrary to what Jason had said in his text message

to Judge Edwards.

{¶39} Jason denied being the driver, and told Judge Edwards that he was

“passed out” when the collision occurred. (Tr. at 433). According to Judge

Edwards, after Jason said the words “passed out,” it “was almost like his tongue

came out of his mouth and tried to grab the words and pull them back in. And

[Jason] said instead that he was asleep. [Jason] said: Well, you know, asleep.” (Id.)

{¶40} Jason told Judge Edwards that he was awakened by the impact, that he

recalled looking up and seeing his wife bleeding from her nose, and that he then

remembered the sound of the Jeep Wrangler pulling off. Judge Edwards indicated

that it left him with the impression that Jason was sleeping through most of the

incident. Further, Judge Edwards testified that he felt that was the impression Jason

wanted him to have from the conversation.

{¶41} Later that same day, Judge Edwards went to Buckeye Collision to

check on a vehicle he was having restored there. While there, he saw the Warners’

Jeep Wrangler in the parking lot, which he was familiar with. Judge Edwards was

“shocked” at the damage, especially to the driver’s side front wheel. (Tr. at 437).

It caused him to question how Jason could have been asleep. He also noticed the

airbags had been removed from the vehicle, and he sent Jason a text message to ask

-19- Case No. 9-21-15

who had removed them, thinking that it could be tampering with evidence if Jason

had done it, but the airbags had been removed by law enforcement.

{¶42} In the week following the accident, Colton was released from the

hospital. However, he was having significant memory issues that required him to

stay with his family. While Colton was staying with his family, and not present at

the apartment he rented, a letter was dropped off that was written by Julia

apologizing for the accident. She stated she was very sorry, that she did not want

Colton to think she was “crazy, or drunk, or insensitive.” (State’s Ex. 41). She

stated that it was not like her to misjudge a turn in the dark and the rain, and that it

was not like her to “freak out” and “panic and leave[.]” (Id.)

{¶43} From June 9, 2020, to June 17, 2020, Julia and Jason went on a pre-

scheduled vacation with the Andersons to Texas. According to the Andersons, the

accident was never discussed.

{¶44} On June 19, 2020, just over two weeks after the accident, a televised

news story aired about the crash. The story contained information that witnesses in

the area of the accident saw a man exit the Jeep Wrangler at the crash site. Judge

Edwards saw the news story and sent a text message to Jason about it because Jason

had not indicated he had gotten out of the Jeep at the scene previously. Rather,

Jason had left Judge Edwards with the impression that he had been sleeping. When

asked by Judge Edwards, Jason acknowledged getting out of the Jeep. Judge

-20- Case No. 9-21-15

Edwards asked Jason if Jason had informed disciplinary counsel about the incident,

and Jason responded that he did not think he had done anything wrong.

{¶45} Over the ensuing months, Colton went through physical therapy and

had various medical issues including memory problems, a concussion, a kidney tear,

cellulitis, knee/walking problems, and bell’s palsy. The parties stipulated at trial

that he suffered serious physical harm as a result of the accident.

Analysis

{¶46} At the outset of our review of sufficiency of the evidence, we note that

many of Jason’s arguments in his brief related to sufficiency of the evidence

challenge specific statements the trial court made on the record explaining its

“reasoning” before entering its general finding that Jason and Julia were guilty of

Counts 3 and 4 and the indictment. Importantly, and as the trial court noted before

making those statements, there is no obligation whatsoever for the trial court to

make factual findings or to express its reasoning that led to the general finding.

State v. Ham, 3d Dist. Wyandot No. 16-09-01,

.

{¶47} Rather, pursuant to Crim.R. 23(C), in a trial without a jury, the court

“shall make a general finding.” This Court has repeatedly expressed, in varying

circumstances, that anything stated beyond the required “general finding” of guilt

or innocence in a criminal bench trial is “ ‘mere surplusage without legal

significance.’ ” State v. Ham,

, citing State v. Crawford,

-21- Case No. 9-21-15

10th Dist. Franklin No. 85AP-324,

at *7 (“Therefore, sub judice, the

trial court should only have entered findings of guilty based upon the evidence.

Separate findings of fact and conclusions of law are neither countenanced nor

permitted. Therefore, we find the trial court’s reasoning as mere surplusage without

legal significance sufficient to impeach the general findings of guilt.”); see also

State v. Fisher, 3d Dist. Auglaize No. 2-10-09,

(“We note

that the trial court issued written findings of fact in this case, which is contrary to

the directive contained in Crim.R. 23. When a bench trial is held, the court is to

make a general finding; i.e. guilty or not guilty.”); State v. Kalonji, 3d Dist. Paulding

No. 11-15-07,

(“Because the trial court’s purported findings

of fact are mere surplusage, the trial court’s use of an erroneous date—August 26,

2015 rather than July 4, 2015—has no bearing on our disposition of this appeal.”).

{¶48} Other Ohio Appellate Courts have also indicated that anything beyond

a trial court’s general finding in a criminal bench trial constitutes “surplusage”

without legal significance. See State v. Brown, 9th Dist. Summit No. 25287, 2011-

Ohio-1041, ¶¶ 41-42; Crawford, supra; State v. Cattledge, 10th Dist. Franklin No.

10AP-105,

, ¶ 26; State v. Singleton, 2d Dist. Montgomery No.

27916,

; but see State v. Ndiaye, 10th Dist. Franklin No.

19AP-10,

, appeal not allowed,

, 2020-

Ohio-3634 (indicating that a trial court’s comments made after a general finding of

-22- Case No. 9-21-15

guilt were surplusage, but if the comments or statements were made before a general

finding of guilt the comments may not be surplusage).

{¶49} Thus based on the authority cited, we could overrule Jason’s

challenges to the trial court’s statements as those challenges are mere surplusage

without legal significance whatsoever. However, notwithstanding this point, we

review the sufficiency of the evidence on appeal in the light most favorable to the

prosecution to examine whether the evidence would allow any rational trier of fact

to find the essential elements of the crime beyond a reasonable doubt. State v. Jenks,

(1991), paragraph two of the syllabus (superseded by

constitutional amendment on other grounds as stated in State v. Smith,

, (1997), fn. 4) following Jackson v. Virginia,

,

(1979). We are not tasked with reviewing any specific statements of the trial court

in a sufficiency review, regardless of whether the statements are categorized as

“findings” or “surplusage.” Rather, we must look at the evidence.

{¶50} Thus, turning to the evidence presented in this matter, we must

determine whether the evidence supports Jason’s convictions for Complicity to

Failure to Stop After an Accident and Complicity to Tampering with Evidence.

{¶51} Importantly, Jason was convicted of Complicity through “aiding and

abetting.” “To support a conviction for Complicity by aiding and abetting pursuant

to R.C. 2923.03(A)(2), the evidence must show that the defendant supported,

-23- Case No. 9-21-15

assisted, encouraged, cooperated with, advised, or incited the principal in the

commission of the crime, and that the defendant shared the criminal intent of the

principal. Such intent may be inferred from the circumstances surrounding the

crime.” State v. Johnson,

(2001). Furthermore,

“‘[p]articipation in criminal intent may be inferred from presence, companionship

and conduct before and after the offense is committed.’”

quoting State v. Pruett,

,

(1971).

{¶52} Regarding his convictions for Complicity to Failure to Stop After an

Accident and Complicity to Tampering with Evidence, Jason contends that the

evidence never established that he was a principal actor in this case, and that he did

nothing that would constitute aiding and abetting Julia. Essentially, he contends

that he was simply present for the incident that occurred, and he argues that, legally,

presence or acquiescence alone is not enough to support aiding and abetting. State

v. Law, 1st Dist. Hamilton No. C-950651,

.

{¶53} However, Jason’s argument that he was merely “present” for the

incident ignores several key facts. First, and most importantly, once the crash

occurred, Jason got out of the vehicle and was observed walking around the accident

scene. He was observed looking into Colton’s vehicle, wherein Colton was, at best,

semi-conscious, trapped, bleeding, and had his airbags deployed.

-24- Case No. 9-21-15

{¶54} After seeing the significant damage to Colton’s vehicle, and

presumably to the driver himself, Jason got back into his own damaged vehicle with

his wife and left the scene. Their own vehicle was extremely noisy, by all accounts

likely difficult to control, and riding on a rim that was scraping the road. Still they

did not stop. Then, when the Warners got home, Jason and Julia, by Jason’s own

statement, talked about the matter throughout the night for over 8 hours before

deciding to come forward and admit that they had been in the vehicle that caused

Colton serious physical harm.

{¶55} While Jason’s decision to get back into the vehicle after seeing the

damage that had been caused from the crash might not alone have been

overwhelming evidence to show that he was aiding and abetting, there is also

evidence of his conduct after-the-fact to consider. When asked about the incident,

Jason initially told Judge Edwards that he was “passed out” or asleep when

everything occurred. It was only when confronted with statements from other

witnesses that Jason admitted to getting out of his vehicle. This is evidence that a

factfinder could utilize to determine that Jason was aware he was aiding and abetting

his wife by leaving the scene of the accident.

{¶56} Based on our review of the record in its entirety, we find that a rational

trier-of-fact could determine from all the evidence presented that the elements of

Complicity to Failure to Stop After an Accident were established here. In sum, it is

-25- Case No. 9-21-15

essentially undisputed that the accident was caused by Julia, that Jason and Julia got

out of their vehicle, looked into Colton’s vehicle, that Colton suffered serious

physical harm, and that the Warners drove off anyway after viewing the scene. The

primary issue is simply whether there was sufficient evidence to find that Jason

aided and abetted his wife, and under the facts and circumstances of this case, we

find that a rational trier of fact could determine as much beyond a reasonable doubt.

Thus Jason’s arguments related to Complicity to Failure to Stop After an Accident

are not well-taken.

{¶57} Turning to the conviction for Complicity to Tampering with Evidence,

it was undisputed that the Warners left the scene and it is a readily permissible

inference that they knew an investigation of the crash was likely to begin. Despite

this, even after viewing Colton trapped in his vehicle, they left the scene making

what would have been a difficult 5 mile drive in their damaged jeep in order to place

it in their enclosed garage. Law enforcement testified that this hindered their

investigation.

{¶58} Again, based on Jason’s own statements and actions, and his decision

to get back into the vehicle after viewing the scene, we cannot find that there was

insufficient evidence presented to convict him of Complicity to Tampering with

Evidence.6 A rational trier-of-fact could find beyond a reasonable doubt that this

6 In his brief, Jason challenges numerous statements made by the trial court, arguing that the trial court was “confused” as to what crimes were indicted in this matter due to the way the trial court worded or phrased

-26- Case No. 9-21-15

was not a situation where Jason was merely “present” for the incident. For all of

these reasons, Jason’s first assignment of error is overruled.

Second Assignment of Error

{¶59} In his second assignment of error, Jason argues that even if there was

sufficient evidence presented to convict him, his convictions were against the

manifest weight of the evidence.

Standard of Review

{¶60} In determining whether a conviction is against the manifest weight of

the evidence, a reviewing court must examine the entire record, “ ‘weigh[ ] the

evidence and all reasonable inferences, consider[ ] the credibility of witnesses 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,

(1997), quoting State v. Martin,

(1st Dist. 1983). A

reviewing court must, however, allow the trier-of-fact appropriate discretion on

matters relating to the weight of the evidence and the credibility of the

witnesses. State v. DeHass,

(1967). When applying the

the crimes at times. At best, Jason’s arguments are not persuasive given that the trial court found the Warners guilty of “Count 3 and Count 4” at the trial, then referenced the counts in the indictment at the sentencing hearing and in the final judgment entry. There is no confusion expressed by the trial court and Jason never objected to how the trial court worded matters at the time they were spoken. The Warners were ultimately convicted of the specific counts they were charged with in Counts 3 and 4 of the indictment.

-27- Case No. 9-21-15

manifest-weight standard, “[o]nly in exceptional cases, where the evidence ‘weighs

heavily against the conviction,’ should an appellate court overturn the trial court’s

judgment.” State v. Haller, 3d Dist. Allen No. 1-11-34,

,

quoting State v. Hunter,

,

.

Analysis

{¶61} In his second assignment of error, Jason contends that even if there

was sufficient evidence to convict him, his convictions were against the manifest

weight of the evidence. He summarily refers to arguments he made in his first

assignment of error and then contends that the greater weight of the credible

evidence demonstrated that Jason did not aid or abet Julia in any manner. Further,

he claims that none of the witnesses observed Jason speaking with Julia, providing

advice, guiding her to the Jeep, or assisting with its operation. He again maintains

he was merely present for what happened.

{¶62} However, as we stated in the previous assignment of error, Jason was

not merely in the Jeep as a passenger while this event occurred. He got out of the

Jeep, viewed the wreckage, then decided to get back into the vehicle. Then, in the

days after the incident, he lied about the fact that he was asleep during the crash,

minimizing his conduct, and he only admitted to getting out of the vehicle when

confronted with statements of witnesses at the scene. Jason further acknowledged

in his text messages that he and his wife went home and discussed the matter for

-28- Case No. 9-21-15

hours before deciding to report the accident to law enforcement. As noted

previously, “ ‘[p]articipation in criminal intent may be inferred from presence,

companionship and conduct before and after the offense is committed.’ ” State v.

Johnson,

(2001). A factfinder could find that these incidents

were circumstantial evidence of Jason’s Complicity in this matter to Failure to Stop

After an Accident and Tampering with Evidence.

{¶63} We note that we are aware of Jason’s repeated challenges in his brief

to the trial court’s statements made prior to announcing the general finding of guilt.

Initially, we again refer to the “surplusage” law of the previous assignment of error.

Completely notwithstanding the surplusage point, however, we note that Jason’s

arguments often cherry-pick statements of the trial court or read them out of context

to suit his claims. For example, Jason strongly challenges the trial court’s statement

that “there was conflicting testimony – and I think perhaps maybe this is the State’s

theory, I don’t know, in charging aiding and abetting. There is evidence that Jason

warner was driving [after the accident].” (Tr. at 529). The trial court also later

stated, “I think it’s more likely that Jason Warner drove away” because the vehicle

would be “extremely difficult for a woman to control the operation of that [damaged

Jeep.]” (Tr. at 532).

{¶64} Jason argues that these statements are unsupported by the evidence,

and that the latter is simply sexist. However, taking these statements alone and out-

-29- Case No. 9-21-15

of-context ignores other more definite statements wherein the trial court states:

“Now, whether – whichever one drove it, it doesn’t matter for aiding and abetting

purposes, because you can be charged as the principal offender, or as an aider and

abettor.” (Tr. at 530). Further, the trial court found, after discussing who may have

driven the vehicle, “In any event, the Court finds beyond a reasonable doubt that

they aided or abetted in the commission of the offense of leaving the scene of the

accident.” (Tr. at 533). Finally, the trial court stated, “For all these reasons, and all

of the other reasons in the record, the Court finds both Defendants guilty of Count

3 and Count 4.”7 (Tr. at 538).

{¶65} Notably, because of the Warners’ challenges to the trial court’s

statements made prior to the general findings of guilt, and because of the Warners’

renewed motions for acquittal prior to sentencing in this matter, the trial court again

addressed its statements from the trial at the sentencing hearing. At that time, the

trial court said, inter alia, “The Court does not know – and as I said – for sure, who

was driving [after the accident]. All the Court can say is that based on the law and

the evidence, they acted in concert with one another.” (Sent. Tr. at 28). Thus Jason’s

references in his brief to isolated statements such as the one that it was “more likely”

that Jason was driving ignore the fact that the trial court stated it was ultimately

7 Notably, the State did argue in closing that reasonable minds could differ as to who drove the Jeep from the crash site. The State questioned whether Julia was strong enough, noted that Jason quickly volunteered to move the Jeep when law enforcement asked, and law enforcement testified the vehicle would be very difficult to move/direct.

-30- Case No. 9-21-15

irrelevant who was driving based on the finding the trial court made.8 Further

explanations like this establish that Jason’s attempt to randomly pick statements

made by the trial court, without viewing everything in its entirety, is problematic.

Thus even if the comments were not “surplusage”, the trial court clarified its

findings and we see no prejudicial error here because the appropriate general

findings were made and they were supported by the evidence.

{¶66} After reviewing the record, giving deference to credibility findings of

the trial court, we cannot find that the trial court clearly lost its way by convicting

Jason of Complicity to Failure to Stop After an Accident and Complicity to

Tampering with Evidence. Therefore, Jason’s second assignment of error is

overruled.

Third Assignment of Error

{¶67} In Jason’s third assignment of error, he contends that the trial court’s

determination that both of the Warners were guilty of Failure to Stop After an

Accident and Tampering with Evidence via Complicity constituted a legal

impossibility. He argues that there were only two individuals who could have been

the principal offenders and that by convicting each defendant of Complicity, the

trial court effectively found that both individuals were principal actors and both

8 Jason states that “more than likely” is a preponderance finding and does not equate to beyond a reasonable doubt. While this may have been true if the trial court rested solely on this point, as we have stated, the trial court made numerous statements that, if we were to consider them anything other than surplusage, must be viewed in their entirety.

-31- Case No. 9-21-15

were aiders and abettors. Jason argues that this leads to the impossibility of Jason

being guilty of Complicity in his indicted crimes, and effectively “guilty” as the

“primary offender” in Julia’s indicted crimes. In his brief, he argues: “No single

person is capable of being two separate people at the same time. Similarly, no

person can simultaneously be guilty and not guilty of the same offense as asserted

in a single count of an indictment.” (Appt.’s Br. at 22).

{¶68} First, we note that Jason’s argument hinges largely on challenging not

only his conviction, but also Julia’s conviction. It is unclear, at best, to what extent

he would have standing to do so. “The issue at trial was not the absent principal’s

guilt, but rather the appellant’s guilt.” State v. Graven,

(1977).

{¶69} Second, and notwithstanding the first point, the Complicity statute

itself directly addresses the situation where there is no convicted principal. As

noted earlier, pursuant to R.C. 2923.03(B), “It is no defense to a charge under this

section that no person with whom the accused was in complicity has been convicted

as a principal offender.”

{¶70} Essentially Jason is arguing that he cannot be convicted of Complicity

if his wife is not the principal offender. However, the trial court could have found

that she was the principal offender or that she was not; regardless, the trial court

could readily have found that Jason aided and abetted her in committing those

-32- Case No. 9-21-15

offenses. Julia’s status as principal or not a principal does not create a defense in

this matter per the Complicity statute itself. In fact, even if Julia had been acquitted

of either being a principal or being complicit, Jason still could have been convicted

of Complicity. See

{¶71} Given the plain statement in the Complicity statute, and Jason’s failure

to cite any legal authority that would compel us otherwise, we cannot find that his

convictions constituted a legal impossibility. Therefore, Jason’s third assignment

of error is overruled.

Fourth Assignment of Error

{¶72} In his fourth assignment of error, Jason argues that the trial court

committed “repeated misconduct” during its “deliberations” and at Jason’s

sentencing hearing. Jason argues that the same standard that would apply to juror

misconduct should apply in a bench trial.

{¶73} As support for his statement that the trial court committed misconduct,

Jason cites the trial court’s statements in what he characterizes as the trial court’s

“findings.” He argues that the trial court made “findings” to support the convictions

that were directly contradicted by the record “and or consisted of impermissible,

baseless, and sexist stereotypes.” (Appt.’s Br. at 23). Further, Jason brings up the

fact that the trial court initially stated Julia was guilty of the lesser-included offenses

of Negligent Assault, before concluding that Negligent Assault actually contained

-33- Case No. 9-21-15

an additional element and thus was not actually a lesser-included offense. In

addition, Jason takes issues with the trial court’s statement at sentencing that it had

pulled out his docket, and [in] 2019 and 2020, he handled at least eight cases or more involving drunk driving. So he knows exactly what the time frame is. You have three hours, three hours to take a breath test from the time of the accident. There is even case law saying that because the test has substantial compliance, it can be even later, up to six hours.

(Sent. Tr. at 24-25). Jason contends that this constituted improper judicial

investigation into the matter. Finally, Jason argues that the trial court’s statement

that it was not unusual for an elected official to have a nonexistent criminal history,

and thus a low “ORAS” score, showed that the trial court failed to conduct a

meaningful review of Ohio’s sentencing factors.

{¶74} Dealing first with Jason’s arguments regarding the trial court’s

statements prior to its general finding of guilt, again these could be viewed as

surplusage, but even if they were not, the trial court further explained its findings.

Thus while the trial court might have found it hard to believe that Julia could have

driven the severely damaged vehicle after the accident, the trial court also stated that

it was irrelevant who was driving because the Warners aided and abetted each other.

Thus any of the trial court’s comments regarding Julia or gender are really irrelevant

to the final determination. Similarly, we find that the trial court’s over-arching

finding was that the evidence supported the crimes.

-34- Case No. 9-21-15

{¶75} Next, as to Jason’s claims regarding the lesser-included offenses, the

lesser-included offenses were not charges even levied against him, thus he has no

standing to contest them. They do not impact his case. Moreover, there are no

convictions for Negligent Assault against anyone in this case for us to actually

review. Thus even if there was any improper comment by the trial court, the trial

court corrected the matter itself and there is no resulting prejudice. This argument

is not well-taken.

{¶76} Regarding the trial court’s statement at the sentencing hearing that it

had pulled Jason’s docket related to drunk-driving offenses, there was actual

testimony from law enforcement in this case about how the time for alcohol testing

had passed, juxtaposed with Jason’s admitted decision to wait approximately eight

hours after the accident to report it, so it carried some relevance. Regardless, the

rules of evidence do not even apply at sentencing hearings. Evid.R. 101.

Furthermore, the trial court’s statement only emphasized what was already

presumed—that Jason was familiar with drinking and driving-related cases. In fact,

the State argued in its closing argument that as a Judge, Jason would be aware that

the Warners needed to stop after the accident and that there was a limited amount

of time that the Warners could be tested for alcohol or drugs. Given that the rules

of evidence do not apply in sentencing hearings, and given that the handling of any

cases would likely be a matter of public record, we can find no error here.

-35- Case No. 9-21-15

{¶77} Finally, as to Jason’s claim that the trial court erred at sentencing and

failed to conduct a meaningful review of the sentencing factors by stating it was not

unusual that Jason had no criminal history as a public official, the trial court did

what it was supposed to do and considered the fact that Jason had led a law-abiding

life, and balanced that against him being a public official along with the nature of

the crimes committed. Moreover, the trial court explicitly stated it had considered

the factors in R.C. 2929.11 and R.C. 2929.12 and it did not have to do any more

than that. State v. Osting, 3d Dist. Defiance No. 4-18-09,

.

Furthermore, in State v. Jones,

,

, the Supreme

Court of Ohio conclusively held that there is no basis for an appellate court to

modify or vacate a sentence even if the appellate court concludes that the record

does not support the sentence under R.C. 2929.11 and R.C. 2929.12.

{¶78} In sum, we cannot find under the facts and circumstances of this case

that the trial court failed to conduct a meaningful review of the sentencing factors

where the trial court explicitly stated it had reviewed the sentencing factors.

Moreover, under Jones we could also find no basis for reversal. For all of these

reasons, Jason’s fourth assignment of error is overruled.

Fifth Assignment of Error

{¶79} In his fifth assignment of error, Jason argues that even if there was no

single error prejudicial enough to reverse his convictions, the cumulative errors in

-36- Case No. 9-21-15

this case combined were prejudicial. As support for his argument, he reasserts

numerous claims referenced in the previous assignments of error.

Standard of Review

{¶80} “Under [the] doctrine of cumulative error, a conviction will be

reversed when the cumulative effect of errors in a trial deprives a defendant of a fair

trial even though each of the numerous instances of trial court error does not

individually constitute cause for reversal.” State v. Spencer, 3d Dist. Marion No. 9-

13-50,

, citing State v. Powell,

, 2012-Ohio-

2577, ¶¶ 222-224 and State v. Garner,

(1995). “ ‘To find

cumulative error, a court must first find multiple errors committed at trial and

determine that there is a reasonable probability that the outcome below would have

been different but for the combination of the harmless errors.’ ” State v. Stober, 3d

Dist. Putnam No. 12-13-13,

, quoting In re J.M., 3d Dist.

Putnam No. 12-11-06,

.

Analysis

{¶81} Because we have not found multiple errors in this matter, the doctrine

of cumulative error does not apply. State v. Carpenter, 3d Dist. Seneca No. 13-18-

16,

, citing State v. Bertuzzi, 3d Dist. Marion No. 9-13-12,

. Therefore, Jason’s fifth assignment of error is overruled.

-37- Case No. 9-21-15

Conclusion

{¶82} For the foregoing reasons, Jason’s assignments of error are overruled

and the judgment and sentence of the Marion County Common Pleas Court is

affirmed.

Judgment Affirmed

ZIMMERMAN, J., MILLER, J., and SHAW, J., concur.

/jlr

-38-