2014 Ohio 4569
Ohio Ct. App.2014Background
- Mark Gerth was driving a stolen car while intoxicated, struck a taxicab, killed both occupants, and seriously injured his passenger Donald Evans; Gerth fled the scene.
- A jury convicted Gerth of two counts of murder, aggravated vehicular assault, two counts of failing to stop after an accident (R.C. 4549.02), failing to comply with an officer, and receiving stolen property.
- The trial court imposed consecutive sentences for an aggregate term of 48½ years to life. This court affirmed on direct appeal.
- Gerth moved to reopen his direct appeal under App.R. 26(B), alleging appellate counsel was ineffective for not raising three issues: (1) that the two failing-to-stop counts were allied offenses, (2) that the court failed to make required statutory findings for consecutive sentences, and (3) that admission of Evans’s medical records violated confrontation rights.
- The appellate court granted reopening, reviewed each issue, found error as to allied-offense treatment and insufficient findings for consecutive sentences, but rejected the Confrontation Clause claim; it vacated part of the sentence and remanded for resentencing on the stop-after-accident counts and to make and include the consecutive-sentence findings.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Gerth) | Held |
|---|---|---|---|
| Whether two counts of failing to stop after an accident (R.C. 4549.02) are allied offenses | The state argued separate counts were proper | Gerth argued both counts arose from the same collision and thus are allied | Court: Counts are allied; appellate counsel ineffective for not raising the claim; state may elect one count on remand |
| Whether trial court made required statutory findings for consecutive sentences under R.C. 2929.14(C)(4) | The state defended the consecutive terms as justified by record | Gerth argued the court failed to make and journal the required findings | Court: Trial court failed to make/reduce-to-writing the required findings; appellate counsel ineffective for not raising it; remand for proper findings and sentencing |
| Whether admission of Evans’s medical records violated Gerth’s Sixth Amendment Confrontation Clause rights | The state argued records were admissible under Evid.R. 803(6) and R.C. 2317.422 and trustworthy | Gerth argued admission (even if statutorily authorized) violated Confrontation Clause | Court: Records admissible and testimonial portions were redacted; no Confrontation Clause violation; assignment overruled |
Key Cases Cited
- State v. Johnson, 128 Ohio St.3d 153, 942 N.E.2d 1061 (Ohio 2010) (adopted conduct-based test for allied-offense analysis)
- State v. Spikes, 67 Ohio St.2d 405, 423 N.E.2d 1122 (Ohio 1981) (medical records admissible under R.C. 2317.422 do not inherently violate Confrontation Clause)
- Crawford v. Washington, 541 U.S. 36 (U.S. 2004) (defining "testimonial" statements under the Sixth Amendment Confrontation Clause)