Opinion

Warner v. Henderson

Court
District Court, N.D. Ohio
Filed
Jul 3, 2024
Cited by
0 cases
Authority
More cited than 31.7%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

Jason D. Warner, Case No. 22-cv-01345

Petitioner,

v. ORDER

Kim Henderson,

Respondent.

This is a prisoner habeas corpus case under the Anti-Terrorism and Effective Death Penalty

Act (“AEDPA”) 28 U.S.C. § 2254. Petitioner Jason D. Warner, a former Marion County, Ohio

Common Pleas Judge, seeks relief from a twenty-four-month sentence through his habeas Petition.

Petitioner filed his Petition on July 29, 2022. (Doc. 1). He alleges three grounds for relief: 1)

there was insufficient evidence to support his convictions; 2) the verdicts were a legal

impossibility, contrary to law, and violated his rights to due process and a fair trial; and 3) the trial

court’s repeated misconduct violated his rights to due process and a fair trial. (Id.).

Respondent, Kim Henderson, Warden of the Toledo Correctional Institution, filed a Return of

Writ (Doc. 7) and Petitioner filed a Traverse (Doc. 11).1

1 Concurrently with filing the Writ, Petitioner filed a Motion for Stay of Execution of Sentence

pursuant to 28 U.S.C. § 2251. (Doc. 3). After referral to Magistrate Judge Amanda Knapp under

N.D. Ohio Loc. R. 72.2 and review of her Report and Recommendation, I denied the motion. I

remanded the matter back to Magistrate Judge Knapp for a recommendation on the merits of the

Writ.

I recently withdrew the referral to the Magistrate Judge and held a status conference with counsel.

Petitioner has completed his two-year sentence and is now on parole. Being on parole satisfies the

in-custody requirement. See DePompei v. Ohio Adult Parole Auth., 999 F.2d 138, 140 (6th Cir.

1993).

For the reasons explained below, I deny the Petition and I deny a certificate of appealability.

Background

The Ohio Court of Appeals set forth the facts, in part, as follows:

{¶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

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 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

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“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[.]

[…] 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. 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. […] At the conclusion

of the trial, the trial court 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.

State v. Warner, No. 9-21-15, 2021 WL 5563502, at *1-2 (Nov. 29, 2021) (footnotes omitted).

The Court of Appeals later set forth more details regarding the evidence presented at trial:

{¶18}[…] [O]n 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.

{¶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.

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{¶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

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 […] 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

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.

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{¶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.

{¶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

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

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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.

{¶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. One officer noted that the damage to 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

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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

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

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.)

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{¶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

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.

Id. at *5–*9.

As set forth above, a retired visiting Judge, Hon. Patricia A. Cosgrove, conducted the three-

day bench trial in March 2021. The Court convicted Petitioner of Complicity to Leaving the Scene

of an Accident in violation of O.R.C. §§ 2923.03(A)(2) and 4549.02(A)(1)/(B)(2)(b), a fourth

degree felony and Complicity to Tampering with Evidence in violation of O.R.C. §§

2923.03(A)(2) and 2921.12(A)(1), a third degree felony. The court dismissed two other charges

against Petitioner.

On April 15, 2021, Judge Cosgrove sentenced both Petitioner and Mrs. Warner to twenty-four

months incarceration on the Tampering with Evidence Count; a concurrent sentence of eighteen

months on the Leaving the Scene Count; and three years of post-release control. (Doc. 11-4,

PgID.1642–43).

Petitioner appealed his conviction to the Marion County Court of Appeals (Third District).

State v. Warner, No. 2021-Ohio-4812, 2021 WL 5563502 (Third App. Dist. Nov. 29, 2021).

8

The appellate court overruled all four assignments of error, upheld the conviction and

dismissed the appeal. Id.

The Ohio Supreme Court declined to exercise jurisdiction over a further appeal. State v.

Warner, No. 2021-1458, 184 N.E.3d 158 (Ohio 03/29/2022).

Legal Standard

The AEDPA limits the authority of a federal district court to grant habeas relief on a claim that

the state court adjudicated on the merits. See 28 U.S.C. § 2254(d). A § 2254(d) petition may only

be granted if the state court adjudication was “contrary to” or resulted in an “unreasonable

application of clearly established Federal law, as determined by the Supreme Court of the United

States.” § 2254(d)(1).

The standard’s focus “is not whether a federal court believes the state court’s determination

was incorrect but whether that determination was unreasonable—a substantially higher threshold.”

Schriro v. Landrigan, 550 U.S. 465, 473 (2007). “AEDPA thus imposes a highly deferential

standard for evaluating state-court rulings and demands that state-court decisions be given the

benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 773 (2010) (internal citations and quotation

marks omitted).

Ultimately, “[a] state court’s determination that a claim lacks merit precludes federal habeas

relief so long as ‘fairminded jurists could disagree’ on the correctness of [the state court’s]

decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541

U.S. 652, 664 (2004)). Additionally, a state court’s factual determinations are presumed correct on

federal habeas review, 28 U.S.C. § 2254(e)(1), and review is “limited to the record that was before

9

the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181

(2011).

Discussion

As noted above, Petitioner asserts three claims for habeas relief. For the reasons that follow, I

find no merit to any of them. I discuss each in turn.

1. The Evidence Sufficed to Support the Conviction

Petitioner argues that there was insufficient evidence to support his conviction. (Doc. 1, PgID.

6). He explains, “[t]hough the record reflects that Petitioner was present when the crimes were

committed, none of the testimony or evidence adduced at trial supported a finding that he was

complicit in those offenses.” (Id.).

The Due Process Clause “protects the accused against conviction except upon proof beyond a

reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re

Winship, 397 U.S. 358, 364 (1970). The relevant question is whether, after viewing the evidence

in the light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

318–19 (1979) (internal citation and footnote omitted).

The sufficiency of the evidence standard “must be applied with explicit reference to the

substantive elements of the criminal offense as defined by state law,” Id. at 324 n. 16, and through

the framework of 28 U.S.C. § 2254(d). Martin v. Mitchell, 280 F.3d 594, 617 (6th Cir. 2002).

Thus, under the AEDPA, challenges to the sufficiency of the evidence “must survive two layers

of deference to groups who might view facts differently” than a reviewing court on habeas review–

the factfinder at trial and the state court on appellate review– as long as those determinations are

reasonable. Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009).

10

The Supreme Court has explained that a district court cannot reweigh the evidence on habeas

review: “28 U.S.C. § 2254(d) gives federal habeas courts no license to redetermine credibility of

witnesses whose demeanor has been observed by the state trial court, but not by them.” Marshall

v. Lonberger, 459 U.S. 422, 435 (1983).

I apply this standard to the factual determinations that are “fairly supported by the record”

within the meaning of 28 U.S.C. § 2254(d). I find that the evidence was sufficient to convict

Petitioner of Complicity for Leaving the Scene of an Accident and Complicity for Tampering with

Evidence.

As discussed, the trial court convicted Petitioner of “Leaving the Scene of an Accident/

Complicity” under Ohio Rev. Code § 4549.02(A)(1)/(B)(2)(b) and Ohio Rev. Code §

2923.03(A)(1) – (A)(2) as well as “Tampering with Evidence/Complicity” under Ohio Rev. Code.

§ 2921.12(A)(1) and Ohio Rev. Code § 2923.03(A)(2).

The Leaving the Scene statute states:

(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 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.

***

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(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.

Ohio Rev. Code § 4549.02(A)(1).

The Tampering statute states:

(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[.]

Ohio Rev. Code. § 2921.12(A)(1).

The Complicity statute states: “(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.” Ohio Rev. Code § 2923.03(A)(2).

The Ohio Complicity statute does not define “aid or abet.” The Ohio Supreme Court has

explained its meaning:

Black’s Law Dictionary defines “aid and abet” as “[t]o assist or facilitate the

commission of a crime, or to promote its accomplishment.” Black’s Law Dictionary

(7 Ed.Rev.1999) 69.

This court has held that “the mere presence of an accused at the scene of a crime is

not sufficient to prove, in and of itself, that the accused was an aider and abettor.”

State v. Widner (1982), 69 Ohio St.2d 267, 269, 23 O.O.3d 265, 266, 431 N.E.2d

1025, 1027. This rule is to protect innocent bystanders who have no connection to

the crime other than simply being present at the time of its commission.

State v. Johnson, 93 Ohio St. 3d 240, 243 (2001).

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The Ohio Court of Appeals in this case explained that a conviction under the Complicity statute

requires that the evidence show:

the defendant supported, 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, 93 Ohio St.3d 240, 245 (2001).

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

companionship and conduct before and after the offense is committed.’” Id. quoting

State v. Pruett, 28 Ohio App.2d 29, 34, 57 O.O.2d 38, 41 (1971).

Warner, supra, 2021 WL 5563502, at * 10.

I have thoroughly reviewed the trial record. The prosecution met its burden and demonstrated

more than Petitioner’s “mere presence” at the crime scene. The prosecution demonstrated that

Petitioner aided and abetted Mrs. Warner’s crimes.

There is no dispute that Mrs. Warner was the driver at the time of the accident. Nor is there

any dispute that witnesses saw her outside the car – at one point, as set forth, a witness saw her

with her hand over her mouth as she looked into the BMW’s interior. Likewise, there is no dispute

that Petitioner got out of the vehicle. Witnesses saw him walking around the vehicle.

There is no dispute, after their apparently brief survey of the victim and his car, that Mrs.

Warner returned to the driver’s seat of their vehicle. Petitioner returned to the passenger side. They

drove home, leaving marks on the road and in their driveway where the vehicle’s rim scraped the

pavement.

Once on their street, a neighbor saw their vehicle coming up the road, pull into the Warners’

garage, and saw the garage door close behind them.

There is also no dispute that Mrs. Warner, by driving away from the scene, violated the Leaving

the Scene statute. In addition, those acts, by making first-hand investigation of the accident scene

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impossible, clearly violated the Tampering statute. Those acts sufficed to make her the principal

vis-à-vis those crimes.

There is nothing in the evidence that suggests that there was any legal impediment to Petitioner

remaining at the scene. Instead of doing so, he and his wife left.

Had Petitioner remained at the scene he could have told the responding officers what happened.

He could, as well, have decided, whether to take a breathalyzer test.

More importantly, had Petitioner remained at the scene, I believe that under the totality of the

circumstances, Mrs. Warner would likewise have remained at the scene, too.

Regardless of the consequences, had he done those things, the outcome for him and his wife

would, possibly, have been different.

In his Petition, Petitioner argues that his case is similar to one where a bystander does nothing

and therefore was not “aiding or abetting.” (See Doc. 11, PgID. 1048–50).

I disagree entirely. Petitioner did not, as he contends, do nothing. Instead, he got back into the

vehicle and accompanied his wife home during her continuing violation of Leaving the Scene and

Tampering with the Evidence.

The Petitioner points to and emphasizes the fact that none of the witnesses heard any

conversation between him and his wife before they left the scene. That that is so does not matter.

His re-entering the vehicle sufficed to make him complicit in Mrs. Warner’s crimes.

I cannot conceive of a more emphatic and forthright endorsement of Mrs. Warner’s violations.

I reject, accordingly, Petitioner’s challenge to the sufficiency of the evidence.

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2. The Verdicts Were Not a Legal Impossibility, Contrary to Law, Nor Did They

Violate Petitioner’s Rights to Due Process and a Fair Trial

Petitioner next argues that the verdicts were a legal impossibility, contrary to law, and violated

his rights to due process and a fair trial. (Doc. 1, PgID. 8). He argues:

[t]he record demonstrates that only one individual committed the offenses of

Leaving the Scene and Tampering With Evidence. It further demonstrates that this

individual must have been this Petitioner or his wife. The trial court found that both

Petitioner and his wife were complicit in those offenses, and were therefore both

principal and complicitor simultaneously.

(Id.).

In Petitioner’s Traverse, he further explains:

In the interest of clarity, Petitioner does not claim that convictions for complicity

are unlawful, unconstitutional, or otherwise inform by virtue of no principal being

identified, charged, or convicted. That is a non-issue in this case. Rather, the issue

is whether a finder of fact may determine that an individual is both guilty and not

guilty of the same indicted offense without violating a defendant’s rights to due

process, a fair trial, and to be free from double jeopardy.

(Doc. 11, PgID. 1053).

Solely for the purpose of this Opinion, I accept, without deciding, that a single act can

constitute either acting as a principal or as a complicitor.

In this case, that does not matter. The fact that the Judge, for whatever reason, gratuitously

referenced Petitioner and his wife as “aid[ing] and abett[ing] one another” is immaterial. (Tr. 538,

Doc. 11-3, PgID. 1156). It had no bearing or effect on the propriety of his conviction as a

complicitor and not as a principal.

So, I reject the Petitioner’s come-lately contention that this harmless error on the Judge’s part

somehow created a legal impossibility – namely that one can be both a principal and a complicitor.

I accordingly reject Petitioner’s second grounds for habeas relief.

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3. The Trial Court’s Conduct Did Not Violate Petitioner’s Rights to Due Process and

a Fair Trial

Lastly, Petitioner argues that the trial court’s repeated misconduct violated Petitioner’s right to

due process and a fair trial. (Doc. 1, PgID. 9).

He explains,

[d]uring Petitioner’s sentencing hearing, the trial court indicated that it had

conducted an independent investigation and utilized its findings to evaluate

Petitioner’s mental state, and thus his guilt. Moreover, the trial court acknowledged

that it was giving no weight to mitigation factors that it was required to consider

under Ohio law.

(Id.).

In his Traverse, he explains further:

In this case, the trial court directly admitted that it obtained evidence outside the

record and used it to reach determinations concerning essential elements of the

offenses. Though the trial court never directly acknowledged the specific time that

it conducted its extrajudicial investigation, the record clearly reflects that it did so

during the guilt phase of Petitioner’s trial.

(Doc. 11, PgID. 1055–56).

Habeas law is well-settled that errors during the course of sentencing are not cognizable in

these proceedings. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67–68 (1991). Accordingly, I reject

Petitioner’s third assignment of error.

So far as I can tell, there was only one instance in which the Judge alluded to having gone

outside the record: namely, when she checked Petitioner’s docket and determined that he had

handled a dozen or so drunk driving cases as a Judge.

That single instance did not taint the trial, the verdict, or the sentence.

To the extent that this confirmed Petitioner’s awareness of the six-hour point at which officers

will not administer a breathalyzer, the Court’s doing so was immaterial. Petitioner waited upwards

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of nine hours after the accident to contact the authorities. In light of that fact, whatever Petitioner

knew from his time as a Judge (or as a prosecutor) was meaningless. It had no effect on the trial,

the verdict, or the fundamental fairness of either.

Finally, there is no merit to the Petitioner’s contention that the Court failed to touch all the

statutory factors when pronouncing the sentence. While the Judge could have been more explicit,

it was not necessary for her to have been so. One must, and properly should, take her at her word

– namely, that she considered all the necessary factors.

Certificate of Appealability

Under 28 U.S.C. § 2253, “a state prisoner seeking a writ of habeas corpus has no absolute

entitlement to appeal a district court’s denial of his petition.” Miller-El v. Cockrell, 537 U.S. 322,

326 (2003). An unsuccessful habeas petitioner “must first seek and obtain a [certificate of

appealability] from a circuit justice or judge,” as a jurisdictional prerequisite.

Federal law authorizes me to issue a certificate of appealability only if the Petitioner “has made

a substantial showing of the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2).

I have carefully reviewed the record in this case, including the original pleadings, trial record,

and appellate record. I find that Petitioner does not meet the requirement that he show that he was

denied a constitutional right. I therefore deny Petitioner a certificate of appealability.

Conclusion

The trial court fairly tried and convicted Petitioner and likewise there is no error that affected

anything during his sentencing.

It is, therefore, ORDERED THAT:

1. Petitioner’s Petition (Doc. 1) be, and the same hereby is, denied; and

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2. I deny Petitioner a Certificate of Appealability.

SO ORDERED.

DATE: 7/3/2024

/s/James G. Carr

Sr. U.S. District Judge

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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