IN THE MATTER OF: HANK WILLIAMS, ALLEGED DELINQUENT CHILD, [HANK WILLIAMS - APPELLANT].
CASE NO. 9-10-64
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY
August 29, 2011
2011-Ohio-4338
WILLAMOWSKI, J.
Appeal from Marion County Common Pleas Court Juvenile Division, Trial Court No. 2009 DL 0558. Judgment Affirmed.
Robert E. Wilson for Appellant
Brent W. Yager and Gregory A. Perry for Appellee
{¶1} Defendant-Appellant, Hank Williams (“Appellant” or “Hank“), appeals the judgment of the Marion County Court of Common Pleas, Juvenile Division, adjudicating him a delinquent child for having committed complicity to aggravated vehicular homicide and vehicular assault. On appeal, Appellant contends that the trial court erred in that liability cannot attach as an aider or abettor when the passengers were willing participants; that the trial court erred in failing to grant Appellant‘s motion for acquittal; and that the trial court‘s findings were against the manifest weight of the evidence. For the reasons set forth below, the judgment is affirmed.
{¶2} On February 4, 2010, a complaint was filed alleging Appellant was a delinquent child on one count of complicity to aggravated vehicular homicide and one count of complicity to aggravated vehicular assault, in violation of
{¶3} The complaint arose from an accident that occurred on November 6, 2008, when a group of teenagers/young adults were racing their cars on Holland Road, an area known by locals as a good, secluded place to race cars. The driver of one оf the cars, Hali Gibson (“Hali“), was trying to pass Appellant‘s car at a high rate of speed when she lost control of her vehicle. Her 2000 silver Mitsubishi Eclipse went off the road and hit a tree, killing her right front passenger, Brandon Nelson (“Brandon“), and seriously injuring her back seat passenger, Montana Roose (“Montana“).
{¶4} A three-day bench trial was held on February 23, 24, and 25, 2010. The State presented the testimony of fourteen witnesses, including all of the surviving youths who were riding in the vehicles; a neighbor who testified that she saw and heard the cars racing; several officers who responded or investigated the accident; and an accident reconstruction expert. Aрpellant testified on his own behalf.
{¶5} The State‘s witnesses testified that around 7:30 to 8:00 on the evening of the accident, Appellant and his friend, Raymond Worthington (“Ray“), drove to the BlueFusion, a bowling alley/game room that is a popular hangout. Appellant
{¶6} A few minutes later, a gearshift cable came loose in Appellant‘s car and he and Ray pushed it to the side of the road. The other two vehicles also pulled over and waited while Appellant repaired his shift, and then the group
{¶7} Sometime around 9:30 p.m., they arrived at Holland Road. Kyle was leading the group, followed by Hali, but then Appellant passed both vehicles. After this first pass, they all turned around and headed back towards the straightaway section of the road that is commonly used for racing.
{¶8} At this point, the three2 cars were driving single file, with Kyle in front, and Hali and Appellant following. Kyle testified that he was traveling around 60-70 miles per hour (“mph“), but that he wasn‘t involved in the race because his white Civic was not very fast and they were going to see which Eclipse, Hali‘s or Appellant‘s, was the fastest. Kyle, and several of the State‘s other witnesses testified that Appellant passed both Hali and Kyle going
{¶9} Appellant parked his car and he and Ray ran to the scene of the crash. All three of the occupants were knocked unconscious at first, but then Hali came to and Appellant and Ray helped to pull her out. Montana was in the backseat and was moving and moaning, but he was stuck and they couldn‘t extract him. Brandon was not moving and it was evident that he was seriously injured. Kyle also arrived there and dropped off Cody C. and Cody K. However, Kyle was frightened and drove away, but he returned to the crash site shortly thereafter.
{¶10} After helping Hali out of the car, Apрellant and Ray hurriedly left the scene before the first responders arrived. Appellant claimed that he was scared and that he also left because Ray was on probation and would have been in trouble for being out past his curfew. Cody K. called 9-1-1 and the EMS and police
{¶11} Appellant‘s testimony generally agreed with thе State‘s witnesses’ rendition of the events that occurred. However, he adamantly claimed that he was not in any way involved in racing and had no knowledge that anyone was planning to race. Appellant testified that he did not go to the parking lot with the other seven, but that he remained in the BlueFusion and went to the bathroom. By the time he went to the parking lot, he claimed that many of the others were already in their respective cars and ready to leave. He testified that he never heard any discussion about racing and that he never agreed to race. He did acknowledge that he was being teased about his car being slowеr than Hali‘s, but insisted that he would never agree to race her because he already knew her car was faster because it was newer and had a bigger engine. Appellant acknowledged that Hali and Brandon were always challenging him to race, but he claimed he wouldn‘t race because he believed his car was “junk” compared to her car.
{¶12} Appellant also claimed that he never intended to go to Holland Road, but that Hali had just said they were going to “ride around” when they left the BlueFusion. After his car broke down, he spoke with his father, who told him to
{¶13} Appellant testified that he wasn‘t sure what they were doing and he was not familiar with Holland Road, but that he turned around when the other cars did. Kyle and Hali were driving in front of Appellant and were driving slowly, about 40 mph (Holland Road‘s speed limit is 50 mph), so he put on his turn signal and passed Hali and then Kyle, before returning to his lane in front of Kyle. He testified that he saw Hali‘s headlights behind him passing Kyle, and then her car flew past him like he was sitting still. Appellant estimated he was traveling between 50-60 mph when she passed him, traveling at more than 100 mph. He believed that she was about five car lengths in front of him when he saw her car fishtailing and she went off the road. He was not aware that their cars had made contact until he got home and saw the paint.
{¶14} After hearing all of the testimony, the trial court took the matter under advisement. On March 24, 2010, the trial court filed its decision, adjudicating Appellant as a delinquent child for having committed complicity to aggravated vehicular homicide and vehicular assault. After a dispositional
{¶15} Appellant timely appealed but this Court dismissed the appeal on September 29, 2010, for lack of jurisdiction. The judgment entry was not a final appealable order because the issue of restitution remаined to be determined and a final amount was not specified. On November 29, 2010, the trial court ordered Appellant to pay restitution of one-half of Brandon‘s burial expenses in the amount of $2,398.81. Appellant now brings this appeal, raising the following three assignments of error for our review.
First Assignment of Error
Criminal liability cannot attach to an aider and abettor of a principal offender where the principal offender causes the death of one passenger and serious physical injury to another passenger if the passengers were willing participants in the criminal conduct.
The trial court erred in failing to grant alleged delinquent child, Hank Williаms’ motion for acquittal pursuant to Rule 29 of the Ohio Rules of Criminal Procedure.
Third Assignment of Error
The judgment of the trial court finding alleged delinquent child Hank Williams guilty of complicity to aggravated vehicular homicide and complicity to vehicular assault are contrary to the manifest weight of the evidence.
{¶16} In order to facilitate our review, we shall address the assignments of error out of order. In the second assignment of error, Appellant asserts that the trial court erred by failing to grant his Crim.R. 29(A) motion for acquittal. Specifically, Appellant alleges that the State failed to establish the elements to prove that Appellant in any way aided or abеtted Hali in causing the death of Brandon and serious injury to Montana.
{¶17} Crim.R. 29(A) requires the court to enter a judgment of acquittal if the evidence is insufficient to sustain a conviction of the offenses. In reviewing a Crim.R. 29(A) motion for acquittal, the “relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” State v. Williams, 74 Ohio St.3d 569, 1996-Ohio-91, 660 N.E.2d 724,
{¶18} Pursuant to Juvenile Rule 29(E)(4) and
(A) No person, while operating or participating in the operation of a motor vehicle * * * shall recklessly cause the death of another.
(B) Whoever violates this section is guilty of aggravated vehicular homicide, an aggravated felony of the third degree.
Similarly,
{¶19} The complicity statute,
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.
{¶20} To “aid and abet” is ““[t]o assist or facilitate the commission of a crime, or to promote its accomplishment.“” State v. Johnson, 93 Ohio St.3d 240, 243, 2001-Ohio-1336, 754 N.E.2d 796, quoting BLACK‘S LAW DICTIONARY (7th Ed.1999) 69. A conviction for complicity by aiding and abetting is shown by evidence demonstrating that a 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.” Id. at the syllabus. Evidence of aiding and abetting may be shown by either direct or circumstantial evidence, and the sharing in criminal intent may be inferred from presence, companionship, and conduct before and after the offense is сommitted. State v. Lett, 160 Ohio App.3d 46, 2005-Ohio-1308, 825 N.E.2d 1158, ¶29.
Q. If everybody‘s going there to race, they‘re going from bridge to bridge?
A. Yes.
Q. Is that what happened? Was there ever a race?
A. Yes.
Q. And who was the race between?
A. Hank and Hali.
(Tr. p. 329.) Appellant was the only person who claimed he had no idea that any racing was planned or that any racing occurred that evening.
{¶22} And, contrary to Appellant‘s testimony that he was only going 50-60 mph, all of the State‘s witnesses testified that both Hali and Appellant were traveling side-by-side at a high rate of speed, racing each other. Kyle testified that he was traveling around 60-70 mph when Appellant and then Hali passed him,
{¶23} Montana, who was riding with Hali, testified that Kyle was “going slow” (around 60 or 70), and that Appellant and Hali both passed them going around 90 to 100 when the two cars “swiped” and then wrecked. (Tr. p. 351.) It was his perception that the vehicles were racing, and he did not remember either car trying to slow down before the crash. (Tr. p. 352-54.) Hali suffered some memory loss concerning the accident, but she believed she was going 80 or 90 when she was trying to speed up and pass Appellant after he had passed her, and that they were traveling at the same speed. (Tr. p. 423.) She testified that she was next to Appellant when their cars bumped and she went off the road. (Tr. p. 452.)
{¶24} In addition to the participants’ testimony, Deborah Russell, a resident on Holland Road, testified to hearing the “racers” revving their engines, and seeing them turn around (several used her driveway) and race at a high rate of
{¶25} Contrary to Appellant‘s claim that he was merely “at the wrong place at the wrong time,” there was ample evidence in the record to show that Appellant was an active co-participant in racing with Hali. Viewing the evidence in a light most favorable to the prosecution, we find that there was sufficient evidence of all of the required elements of the charges to support the trial court‘s denial of Appellant‘s motion for acquittal. Appellant‘s second assignment of error is overruled.
{¶26} In his third assignment of error, Appellant alleges that the decision was against the manifest weight of the evidence becаuse the State‘s witnesses were not credible and admitted that they had lied to authorities during the investigation. Furthermore, he claims that none of the witnesses ever testified that Hank and Hali were going to race or that Appellant in any way aided and abetted Hali.
{¶27} When determining whether a trial court‘s delinquency adjudication is against the manifest weight of the evidence, this Court employs the same standard of review applicable to criminal convictions claimed to be against the manifest weight of the evidence. See In re Clark, 4th Dist. No. 04CA588, 2004-Ohio-3851,
{¶28} Although the appellate court acts as a “thirteenth juror” in reviewing all of the evidence, it still must give due deferencе to the findings made by the fact-finder. State v. Thompson (1998), 127 Ohio App.3d 511, 529, 713 N.E.2d 456.
The fact-finder, being the jury, occupies a superior position in determining credibility. The fact-finder can hear and see as well as observe the body language, evaluate voice inflections, observe hand gestures, perceive the interplay between the witness and the examiner, and watch the witness’ reaction to exhibits and the like. Determining credibility from a sterile transcript is a Herculean endeavor. A reviewing court must, therefore, accord due deference to the credibility determinations made by the fact-finder.
{¶29} As discussed above, all of the State‘s witnesses who were present that evеning, with the exception of one, testified that it was the group‘s intention to go to Holland Road to race and that Appellant and Hali were racing each other, side-by-side at a high rate of speed, when the accident occurred. Appellant‘s friend and passenger, Ray, was the only person (besides Appellant himself) who testified that Appellant was traveling at “only” 60-65 mph when Hali passed them like they were “sitting still.” (Tr. p. 499.) However, the State declared Ray to be a hostile witness and used his June 10, 2009 grand jury testimony to impeach him. At that time, Ray had testified that Appellant was participating in a race and he was traveling in excess of 100 milеs an hour. (Tr. p. 507-510.) The State read part of Ray‘s grand jury testimony pertaining to when he was riding with Appellant:5
Answer: Yeah, see when we come around the corner, [Appellant] chomped it down and he said he was getting in front of all them, and he chomped it down, just kept it down until we got past and when we looked back, you could see the cars and they were way back there. * * *
Question: When you heard - when you say he “chomped it down,” how fast do you think he was going?
Answer: I‘d say we was doing about 110 that night. * * *
(Tr. p. 515-516, 537.) The grand jury testimony also included Ray‘s testimony that:
[Appellant] kept saying he wasn‘t going to race, but then some - somebody else said that they would race [Hali] and we all went out there, and [Appellant] told me that we was going out there to watch, which I knew we wasn‘t going out there only to watch.
(Emphasis added.) (Tr. p. 525.)
{¶30} The trial court found that the intention to proceed to Holland Road to race was corroborated by the testimony of all of the other vehicle occupants “with only Hank Williams indicating he had no knowledge or intention to race.” (J.E., p. 3.) The evidence overwhelmingly indicated that Appellant was racing Hali when their vehicles touched or bumped, and Hali went off the road and crashed.
{¶31} Appellant asserts that the State‘s witnesses were not credible because they were “admitted liars” and all had changed their stories. Therefore, their testimony should not be given any weight or credibility.
{¶32} When the accident first occurred, Kyle and Cody C. and Cody K. originally told the officer and the 9-1-1 dispatcher that they had “just happened upon” the scene of the accident and denied that they had witnessed the crash. However, the boys testified that they only said this because they were scared and upset at the time, and were afraid of getting into trouble. When they were
{¶33} Hali testified that she provided a written statement when she was in the hospital but did not remember what she had told them. She acknowledged that if that statement claimed that she was only going 60 mph at the time of the crash, then it was not true. Montana was hospitalized with brain injuries and never spoke to the investigators.
{¶34} Upon our review of the entire record, we do not find that the trier of fact lost its way and created a manifest miscarriage of justice, nor does the evidence weigh heavily against conviction. Appellant‘s third assignment of error claiming that the decision was against the manifest weight of the evidence is overruled.
{¶35} Returning to the first assignment of error, Appellant claims he cannot be held responsible for complicity because he had never agreed to race and he had no knowledge of the principal offender‘s (Hali‘s) intention to race. Furthermore, even if Appellant did aid and abet the principal offender, he claims that no criminal liability can attach to him because the victims were voluntary and willing
{¶36} First, we find that it is irrelevant as to whether or not Appellant ever “agreed” to race beforehand; the evidence clearly supports the finding that racing had been discussed and, at some point, he made the decision to race and was actively racing Hali at the time of the accident. See In re Clark, 2004-Ohio-3851 at 43 (not necessary to show an explicit agreement to race or a violation of the street racing statute to support a complicity to aggravated vehicular homicide conviction.) Furthermore, Appellant‘s claim that he had no knowledge of Hali‘s intention to race was not supported by the testimony of the other witnesses.
{¶37} We also find Appellant‘s reliance on State v. Uhler is misplaced. This 1979 lower court case, which holds no precedential authority for this Court, is factually distinguishable from the case before this court; it has not been followed by any other Ohio jurisdictions; and, the case does not accurately reflect the current state of the law applicable to this case. The trial court in Uhler held that the survivor of a drag race cannot be charged with aggravated vehicular homicide for the death of the other voluntary participant, absent any contact between the vehicles. 61 Ohio Misc. at 41. In Uhler, the victim and defendant were each driving their own vehicles home, after spending the evening drinking
{¶38} We find that the legal reasoning in a recent appellate case, with facts almost identical to those in this case, is applicable. The Fourth District Court of Appeals held that the evidence was sufficient to find that the defendant minor driver was delinquent for committing complicity to aggravated vehicular homicide, arising out of the death of a passеnger in the vehicle that he was racing. See In re Clark, supra, 2004-Ohio-3851. In Clark, the defendant and the driver of the other vehicle in which the victim was riding, were actively participating with each other in driving their vehicles at excessive speed (over 100 mph). Id. at ¶43. When the driver of the other vehicle attempted to pass the defendant, he lost control of the vehicle, resulting in the death of his passenger. Id. at ¶15. The Fourth District Court of Appeals found that each driver should be charged with knowledge that such conduct has a high likelihood of resulting in serious injury or death, and that such conduct exhibits a heedless indifference to the consequences, showing that both drivers perversely disregardеd a known risk. Id. at ¶43; see, also,
{¶39} Similarly, the Tenth District Court of Appeals found that there was sufficient evidence to support a finding that the deaths of two victims were the proximate result of the defendant‘s actions of participating in a street race:
The direct, normal, and reasonably foreseeable consequenсes of a drag race is that contact can occur between two vehicles, which contact at such a high rate of speed can cause one of the drivers to lose control of their vehicle. It is also reasonable to conclude that there is a high likelihood that when a driver loses control of a vehicle while traveling 80 to 100 MPH, the occupants in that vehicle, as well as others in the immediate vicinity, may suffer injuries severe enough to cause death.
State v. Buterbaugh (Sept. 16, 1999), 10th Dist. No. 98AP-1093, 1999 WL 717268, 7-8.
{¶40} The facts in the Clark and Buterbaugh cases are very similar to the facts and circumstances in this case, and the findings are applicable here. Furthermore, there is nothing in the statutеs for complicity, or for aggravated vehicular homicide and assault, that exempts a person from criminal liability for the death of another willing participant. As was the case in Clark, criminal liability can be imposed for death or injury to passengers in the other driver‘s vehicle.
{¶42} Hali was criminally responsible because her reckless operation of her motor vehicle proximately resulted in the death and injuries of the victims.
{¶43} Having found no error prejudicial to the Appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ROGERS, P.J. and PRESTON, J., concur.
/jlr