State v. AnderaState v. Andera
JUDGMENT: AFFIRMED
BEFORE: Sweeney, J., Boyle, P.J., and Jones, J.
RELEASED: July 15, 2010
ATTORNEY FOR APPELLANT
John P. Parker
988 East 185th Street
Cleveland, Ohio 44119
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Edward G. Lentz
Brad S. Meyer
Assistant Prosecuting Attorneys
1200 Ontario Street
Cleveland, Ohio 44113
N.B. This entry is an announcement of the court‘s decision. See
{¶ 1} Defendant-appellant, Clement Andera (defendant), appeals his convictions in the trial court for aggravated vehicular homicide, aggravated vehicular assault, and operating a vehicle under the influence (OVI). He is also appealing his 15-year prison sentence. After reviewing the facts of the case and pertinent law, we affirm.
{¶ 2} On April 5, 2008, defendant was driving his pick-up truck on Madison Avenue in Lakewood when he veered off the road onto the sidewalk and hit two trees. Both trees broke off completely at the base of the trunk. As the trees fell, they struck three girls who were walking on the sidewalk, killing the youngest one, who was 22 months old. The two other victims sustained injuries. The 15 year old had a collarbone fracture, a cervical strain, and a cut on her forehead that required stitches. She returned to school approximately three months after the accident. The five year old had multiple fractures in her skull and collarbone, bleeding inside the brain, and a bruised lung. She also lost partial vision in her right eye.
{¶ 3} After the collision, defendant‘s vehicle came to a stop at the next intersection. The police arrived as defendant was pulling tree branches out of the back of his truck. Defendant told one police officer that he was eating ice cream while driving when his truck suddenly pulled to the right, and he thought he hit a couple of cars. Defendant told another police officer that he drove over a pothole in the road that caused his truck to jump up on the sidewalk. The police
{¶ 4} The police put defendant in the back of a patrol car to write a statement about what happened. Defendant passed out twice while writing this statement, and a third time after he was finished. The police then had defendant perform field sobriety tests. Defendant was unable to complete the horizontal gaze nystagmus because of a “lazy eye.” Defendant failed the one-legged stand and the walk-and-turn. Defendant told the police that he was on medication for back pain, but he does not take it while he drives. The police arrested defendant for operating a vehicle under the influence. Defendant was placed in the back of a police vehicle to be transported to the hospital for a blood test when he passed out again.
{¶ 5} The results of defendant‘s blood test showed that he had approximately ten times the therapeutic dosage of the sedative Diazepam (Valium) and five times the therapeutic dosage of the painkiller Hydrocodone (Vicodin) in his system at the time of the crash.
{¶ 6} Defendant was charged with two counts of aggravated vehicular homicide, four counts of aggravated vehicular assault, and one count of OVI. On September 24, 2008, a jury found defendant guilty of one count of aggravated vehicular homicide in violation of
{¶ 7} Defendant appeals and raises twelve assignments of error for our review.
{¶ 8} “I. The appellant was denied due process under the Fourteenth Amendment of the Federal Constitution when he was not allowed to cross examine or question the weight to be afforded the field sobriety tests and whether there was substantial compliance with the standards for administering the field sobriety tests in violation of
{¶ 9} In an OVI case, a police officer may testify about the results of the defendant‘s field sobriety tests if the prosecution shows that the tests were administered in substantial compliance with the testing standards.
{¶ 11} The court allowed defense counsel to ask Investigator Allen whether he believed that he complied with the National Highway Traffic Safety Administration‘s standards for field sobriety tests regarding defendant. Investigator Allen replied, “Yes.” Furthermore, the videotape taken from Investigator Allen‘s dash-cam of defendant performing these tests was shown to the jury twice. Investigator Allen testified that in deciding whether to arrest a suspected impaired driver, the police look at “[e]verything from the initial contact with him till the point where he completes the sobriety test. It‘s not just based solely on how they do on those tests, but it also depends on your interaction with the person and what other clues or evidence you might pick up while speaking to them.” Investigator Allen further testified that, in his opinion, defendant “was impaired and it affected his ability to operate the motor vehicle.”
{¶ 12} Accordingly, we find that defendant was given the opportunity to challenge the reliability of his field sobriety tests and his due process rights were not violated.
{¶ 13} Assignment of Error I is overruled.
{¶ 15} In State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917 (Colon I), the Ohio Supreme Court held that an indictment for robbery in violation of
{¶ 16} This defective-indictment challenge does not apply to criminal offenses “that plainly impose strict liability.” Colon I, at ¶11.
{¶ 17} In the instant case, defendant was convicted of three offenses. First, OVI in violation of
{¶ 18}
{¶ 19} Defendant‘s criminal intent is irrelevant in determining whether he was under the influence in terms of
{¶ 20} Because defendant‘s OVI conviction is a strict liability offense, his convictions for aggravated vehicular homicide and aggravated vehicular assault, which were predicated upon his violation of
{¶ 21} Accordingly, the indictment need not allege, and the State need not prove, a particular mens rea for defendant to be found guilty of these offenses.
{¶ 23} “III. The appellant‘s confidential medical records and communications with his physicians and other health care providers were admitted against him improperly in violation of state and federal law.”
{¶ 24} Specifically, defendant argues that the court erred when it allowed the State to introduce his medical records and accompanying testimony unrelated to the incident in question, such as the Ohio Automated Rx Reporting System list of prescription medications defendant filled for an approximate one-year period prior to the date of the crash. In addition, medical records and testimony was introduced regarding treatment defendant received from two physicians for back pain he experienced following a separate automobile accident. The testimony about this treatment focused mainly on the Valium and Vicodin prescriptions written for defendant, which were listed on the aforementioned Rx Report.
{¶ 25} In general, pursuant to
{¶ 27} Ultimately, this defense is futile because
{¶ 28} The results of defendant‘s blood test showed an excessive amount of drugs in his system. This evidence is admissible pursuant to
{¶ 29} Additionally, any error in allowing defendant‘s medical records at trial would have been harmless in light of the overwhelming evidence against him.
{¶ 30} Assignment of Error III is overruled.
{¶ 31} “IV. The trial court erred to the prejudice of the appellant in admitting Metro Health Medical records in violation of the appellant‘s right to confront his accuser under the Sixth and Fourteenth Amendments of the Federal Constitution.”
{¶ 32} Specifically, defendant argues that the medical records relating to the two assault victims were improperly admitted into court because the health care providers who authored these records did not testify. Defendant argues this violates his right to confront witnesses against him. See Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177.
{¶ 33} A cursory review of the transcript shows that Dr. Gerald Maloney, the emergency room physician who treated the victim‘s injuries following the crash, testified regarding the medical records in question. Defendant had the opportunity to cross-examine him, but chose not to.
{¶ 35} Specifically, defendant argues that evidence that he was involved in a traffic accident one month prior to the date of the offense in the instant case, and a traffic accident one day before the incident in the instant case, was improperly admitted.
{¶ 36} Generally, evidence of other crimes committed by a defendant is inadmissible to prove that the defendant committed the offense in question. “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
{¶ 37} Additionally,
{¶ 38} We review the admission of evidence under an abuse of discretion standard. State v. Mauer (1984), 15 Ohio St.3d 239, 473 N.E.2d 768. “The
{¶ 39} The State in the instant case argues that the other acts evidence was admissible to show the absence of an accident under
{¶ 40} “The accident referred to in [
{¶ 41} Under our analysis of defendant‘s second assignment of error, we determined that the offenses he was convicted of are strict liability offenses;
{¶ 42} It was error for the trial court to allow defendant‘s history of impaired driving into evidence because it had no purpose other than to show that defendant had a propensity to drive erratically. This is exactly the type of evidence that is generally inadmissible. State v. Mann (1985), 19 Ohio St.3d 34, 482 N.E.2d 592. However, after reviewing the record, we conclude that this error was harmless, as “the remaining, properly introduced evidence overwhelmingly establishes appellant‘s guilt.” State v. Williams (1988), 38 Ohio St.3d 346, 351, 528 N.E.2d 910.
{¶ 43} Assignment of Error V is overruled.
{¶ 44} “VI. The trial court erred to the prejudice of the appellant by excusing two jurors sua sponte over the objection of the appellant and in violation of due process under the Fourteenth Amendment of the Federal Constitution and in violation of
{¶ 45}
{¶ 46} In the instant case, the court excused one juror because she twice violated the court‘s admonition to not use cell phones. In excusing this juror, the court stated the following on the record: “I don‘t trust [juror] number 10 to follow any of my rules anymore. She‘s left the jury room and she‘s been on the phone. I believe number 10 was deliberate * * *. [A]s I told you yesterday, we have rules for a reason. And jurors have been caught on cell phones talking to people about cases. They have been caught talking about what‘s going on in the courtroom and we can‘t have any confidence in the system if people break the rules. So I‘m not trying to be arbitrary with you. There‘s really a reason behind the rules.”
{¶ 47} The court then excused a second juror right before closing arguments because the juror had an out of town business trip scheduled for the next day. The court reasoned that this juror had brought his business trip to the court‘s attention twice, “and it‘s obviously starting to become something that‘s distracting * * *.” The court added that it did not want the jury rushing through deliberations. The court replaced both excused jurors with alternate jurors.
{¶ 48} Defendant argues that this was “fundamentally unfair” and he “was entitled to the [jurors] he selected to be the 12 who would decide his fate.” However, defendant fails to support this argument with legal authority and he fails to argue how the court abused its discretion in excusing the two jurors.
{¶ 50} “VII. The trial court failed to consider the appellant‘s present and future ability to pay a fine in the amount of $26,075 in violation of
{¶ 51} Pursuant to
{¶ 52} In the instant case, the court ordered defendant to pay the following fine: “You are to pay a $15,000 fine on Count 1, and $10,000 fine combined in Counts 3 and 4. You are also to pay the full fine of $1,075 in the misdemeanor count of Count 7 for a total amount of fines of $26,075.” The court did not state anything on the record about defendant‘s present and future ability to pay this
{¶ 53} While it facilitates appellate review when a court states that it specifically considered the defendant‘s ability to pay, we cannot say that a cursory reference in the record does not meet the low threshold of
{¶ 54} Accordingly, the trial court did not err in imposing the fine and Assignment of Error VII is overruled.1
{¶ 55} “VIII. The trial court erred to the prejudice of the appellant in failing to give requested lesser included offenses [instructions] to the jury in violation of the Fourteenth Amendment of the Federal Constitution and State v. Evans.”
{¶ 56} In State v. Deem (1988), 40 Ohio St.3d 205, 533 N.E.2d 294, the Ohio Supreme Court established a three-part test to determine whether a jury instruction on a lesser included offense is appropriate. “An offense may be a
{¶ 57} Furthermore, in State v. Thomas (1988), 40 Ohio St.3d 213, 533 N.E.2d 286, the Ohio Supreme Court held that “[e]ven though an offense may be statutorily defined as a lesser included offense of another, a charge on such lesser included offense is required only where the evidence presented at trial would reasonably support both an acquittal on the crime charged and a conviction upon the lesser included offense.” Id. at paragraph two of the syllabus.
{¶ 58} In the instant case, defendant requested lesser included offense instructions for the aggravated vehicular homicide counts under
{¶ 59} A review of the evidence in the record shows that defendant operated a vehicle while under the influence of prescription drugs; it does not show that defendant acted negligently. Additionally, defendant‘s conviction
{¶ 60} Defendant also requested lesser included offense instructions for the four aggravated vehicular assault charges under
{¶ 61} Accordingly, the court did not err in denying defendant‘s request for lesser included offense instructions. Assignment of Error VIII is overruled.
{¶ 62} “IX. Prosecutorial misconduct deprived the appellant of a fair trial in violation of the Fourteenth Amendment of the Federal Constitution.”
{¶ 63} Specifically, defendant argues that the prosecutor violated his rights in three ways: first, by introducing his medical records at trial as argued in his third assignment of error; second, by introducing “other acts” evidence at trial as argued in his fifth assignment of error; and third, by making improper comments during closing arguments that “appeal[ed] to the passion of the jury.”
{¶ 65} “The test for prosecutorial misconduct is whether remarks are improper and, if so, whether they prejudicially affected substantial rights of the accused.” State v. Lott (1990), 51 Ohio St.3d 160, 165, 555 N.E.2d 293. When misconduct is alleged during closing arguments, an appellate court must examine the entire statement to determine whether the result of the proceedings would have been different had the prosecutor not made the remarks at issue. State v. Treesh, 90 Ohio St.3d 460, 2001-Ohio-4, 739 N.E.2d 749; State v. Loza (1990), 71 Ohio St.3d 61, 641 N.E.2d 1082.
{¶ 66} In the instant case, defendant argues that it was improper for the prosecutor to say the following during closing arguments: “take [defendant] off [of] the streets of our community.” We find nothing inflammatory or prejudicial about this comment. As stated earlier in this opinion, the evidence against defendant was overwhelming, and we will not conclude that his convictions were the result of an improper appeal to the jury‘s passions.
{¶ 67} Assignment of Error IX is overruled.
{¶ 68} “X. The admission of the decedent‘s autopsy photos violated
{¶ 70} In the instant case, the State introduced into evidence two autopsy photographs of the 22-month-old victim. In admitting the pictures, the court stated that “this is the most restrained set of autopsy photos I‘ve ever been asked to introduce. There are no duplicatives. Yes, they‘re horrible to look at but they do show the injuries so they‘re absolutely relevant.”
{¶ 71} Defendant did not dispute the cause of death; therefore, the probative value of the photographs was limited. However, defendant failed to argue how these photographs were prejudicial given the strength of the State‘s case against him. We reached a similar conclusion in State v. Goshay (Nov. 18, 1993), Cuyahoga App. No. 63902. “The admission of this photograph into evidence was harmless error beyond a reasonable doubt. * * * [I]t possessed no probative value upon which the jury could reasonably base any inference of guilt. Although the photograph may have been gruesome to some individuals, it was not so macabre or sensually shocking that it would inflame the jury or impair its ability to make an objective determination.” The Goshay court concluded the error harmless in light of “overwhelming evidence in support of Goshay‘s conviction.” Id.
{¶ 73} Assignment of Error X is overruled.
{¶ 74} “XI. The appellant‘s sentence is contrary to Ohio law and the trial judge abused her discretion by imposing a cumulative sentence of 15 years and a lifetime driver‘s license suspension for ‘strict liability’ offenses when no mens rea was alleged or proven.”
{¶ 75} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, the Ohio Supreme Court, in a plurality decision, addressed the standard for reviewing felony sentencing. See, also, State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. Appellate courts must apply the following two-step approach: “First, they must examine the sentencing court‘s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the trial court‘s decision in imposing the term of imprisonment is reviewed under the abuse-of-discretion standard.” Kalish, supra, at ¶26.
{¶ 76} In the instant case, defendant was sentenced to seven years in prison for the homicide, which is a second degree felony punishable by two to eight years in prison and fours years in prison for each assault, third degree felonies punishable by one to five years in prison. The court ran defendant‘s
{¶ 77} In turning to the second prong of Kalish, we review defendant‘s sentence for an abuse of discretion. Defendant argues that his sentence is not proportionate to other sentences in similar cases.
{¶ 78} Consistency in felony sentencing is ensured by the statutory factors and guidelines found in
{¶ 79} The court stated that it sentenced defendant in the instant case to “punish you for this crime, to protect the public from your selfish actions in the
{¶ 80} This case is factually different from many other vehicular homicide and assault cases because defendant denied guilt and went to trial. In many of the OVI related cases that defendant brought to the court‘s attention, the offenders pled guilty to driving under the influence, and in a sense, took responsibility for their actions.
{¶ 81} Accordingly, we find no abuse of discretion in the court‘s sentencing defendant and Assignment of Error XI is overruled.2
{¶ 82} “XII. The cumulative errors in this case deprived the appellant of a fair trial and [a] fair sentencing hearing in violation of the Fourteenth Amendment.”
{¶ 83} The Ohio Supreme Court has held that “a conviction will be reversed where the cumulative effect of errors in a trial deprives a defendant of the
{¶ 84} In the instant case, we found two instances of harmless error. First, the introduction of “other acts” evidence at trial and second, the submission to the jury of autopsy photographs. We found these two errors harmless because of the overwhelming evidence against defendant that he drove his truck while impaired and under the influence of drugs, killing one child and severely injuring two others.
{¶ 85} Accordingly, defendant‘s showing of isolated instances of harmless error are “substantially, if not completely, diluted” by the State‘s case against him. State v. Blanton, Montgomery App. No. 18923, 2002-Ohio-1794 (citing State v. Hamilton (Feb. 12, 1988), Montgomery App. No. 10007).
{¶ 86} Assignment of Error XII is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
JAMES J. SWEENEY, JUDGE
MARY J. BOYLE, P.J., and
LARRY A. JONES, J., CONCUR