State v. DumasState v. Dumas
D E C I S I O N
Rendered on September 22, 2020
On brief: Ron O‘Brien, Prosecuting Attorney, and Michael P. Walton, for appellee. Argued: Michael P. Walton.
On brief: Yeura R. Venters, Public Defender, and Ian J. Jones, for appellant. Argued: Ian J. Jones.
APPEAL from the Franklin County Court of Common Pleas
{1} Defendant-appellant, Neshon C. Dumas, appeals from a judgment of conviction and sentence entered by the Franklin
I. Facts and Procedural History
{2} The conviction at issue in this appeal arises from a traffic collision that occurred on October 7, 2017 near the intersection of Lockbourne Road and Watkins Road, in Franklin County, Ohio. Dumas was driving a car southbound on Lockbourne Road and initiated a left turn onto Watkins Road. At the same time, Soungoutoumba Macalou was driving a motorcycle northbound on Lockbourne Road. As Dumas turned toward Watkins Road, she traversed the northbound lane of Lockbourne Road, crossing the path of Macalou. Macalou‘s motorcycle struck the front passenger side of Dumas‘s car, ejecting him from the motorcycle. Dumas continued onto Watkins Road and fled the scene. Macalou died as a result of the injuries he suffered in the collision. Based on statements made by a witness at the scene of the collision and an anonymous tip called into police, Dumas was identified as the driver of the car involved in the collision. At the time of the collision, Dumas was driving under the authority of a temporary instruction permit, issued under
{3} Dumas was indicted on one count of vehicular homicide, a fourth-degree felony in violation of
{4} Dumas subsequently entered a no contest plea to the charges as set forth in the indictment. The trial court conducted a sentencing hearing and imposed a sentence of 18 months imprisonment on the vehicular homicide conviction, to be served concurrently with 3 years imprisonment on the failure to stop after an accident conviction.
II. Assignments of Error
{5} Dumas appeals and assigns the following four assignments of error for our review:
[I.] The trial court erred by finding Ms. Dumas guilty of Vehicular Homicide as a fourth degree felony, as the State presented a statement of facts at the no contest plea hearing which positively contradicted the felony charged in the indictment by negating an element essential to the enhancement of Vehicular Homicide from a first degree misdemeanor to a fourth degree felony carrying mandatory prison time.
[II.] The evidence was legally insufficient to support the convictions for Vehicular Homicide as a fourth degree felony and to support the imposition of mandatory prison time, as the State presented a statement of facts at the no contest plea hearing which positively contradicted the felony charged in the indictment by negating an element essential
to the enhancement of Vehicular Homicide from a first degree misdemeanor to a fourth degree felony carrying mandatory prison time. [III.] The trial court erred by overruling Appellant‘s motion to amend the indictment.
[IV.] The trial court erred by imposing a mandatory prison term for Vehicular Homicide as a felony of the fourth degree, as the State acknowledged Appellant had a temporary instruction permit, thus negating the element under
R.C. 2903.06(E)(2)(b) required to make the prison term mandatory.
The same legal issue forms the basis for each of Dumas‘s four assignments of error, therefore we will address them together.
III. Analysis
{6} Dumas was charged in the first count of the indictment with vehicular homicide, a fourth-degree felony offense in violation of
{7} The statute defining vehicular homicide provides that negligently causing the death of a person while operating a motor vehicle is a first-degree misdemeanor unless one of several specified conditions is met, including when “at the time of the offense, the offender * * * did not have a valid driver‘s license, commercial driver‘s license, temporary instruction permit, probationary license, or nonresident operating privilege.”
{8} At the time of the collision, Dumas was driving under the authority of a temporary instruction permit issued pursuant to
(a) The permit and identification card are in the holder‘s immediate possession;
(b) The holder is accompanied by a licensed operator who is at least twenty-one years of age, is actually occupying a seat beside the driver, and does not have a prohibited concentration of alcohol in the whole blood, blood serum or plasma, breath, or urine as provided in division (A) of section
4511.19 of the Revised Code;
(c) The total number of occupants of the vehicle does not exceed the total number of occupant restraining devices originally installed in the motor vehicle by its manufacturer, and each occupant of the vehicle is wearing all of the available elements of a properly adjusted occupant restraining device.
{9} There was not a licensed driver in the passenger seat beside Dumas while she was driving on October 7, 2017 as required under
{10} Resolving the question before us requires determining the meaning of the term “valid” under
{11} When construing the language of a statute, a court must “ascertain and give effect to the intention of the General Assembly.” Dodd v. Croskey, 143 Ohio St.3d 293, 2015-Ohio-2362, ¶ 24, citing Henry v. Cent. Natl. Bank, 16 Ohio St.2d 16 (1968), paragraph two of the syllabus. We look to the language of the statute to determine legislative intent. Id., citing Boley v. Goodyear Tire & Rubber Co., 125 Ohio St.3d 510, 2010-Ohio-2550, ¶ 20. When a statute is clear and unambiguous, it may not be enlarged, narrowed, or abridged through statutory construction. Taber v. Ohio Dept. of Human Servs., 125 Ohio App.3d 742, 747 (10th Dist.1998).
{12} We are unaware of any appellate court decision in Ohio that has addressed the validity of a temporary instruction permit when the driver fails to comply with the conditions of that permit in the context of enhancing the level of a criminal offense, as is presented in this appeal. However, two decisions from other appellate courts have touched on whether a temporary instruction permit is rendered invalid due to failure to comply with the applicable restrictions.
{13} The Eleventh District Court of Appeals concluded in a 1988 decision that operating a motorcycle in violation of the
{14} The state argues Neuvirth should not be considered persuasive authority on this court because the law was amended in 1997 to impose a prohibition on operating a motor vehicle in violation of the conditions imposed on a permit. The state is correct that
{15} In contrast to Neuvirth, dicta from a 1994 decision by the Ninth District Court of Appeals might be construed to implicitly suggest that violating the conditions imposed on a temporary instruction permit invalidated the permit. State v. Rooker, 93 Ohio App.3d 154 (9th Dist.1994). The defendant in Rooker was convicted of violating a statute prohibiting permitting the operation of a motor vehicle “knowing the operator does not have a valid driver‘s license.” Id. at 155. When stopped by police, the defendant, whose driver‘s license had been suspended, was in the passenger seat of a car driven by her son, who had a temporary instruction permit. On appeal, the court determined that because the defendant‘s driver‘s license had been suspended, she did not qualify as a “licensed operator” for purposes of compliance with the restrictions on her son‘s temporary instruction permit, which required that a licensed operator actually occupy the seat beside him while driving. Id. at 156. Based on this reasoning, the Ninth District Court of Appeals affirmed the conviction. The court did not squarely address the question of whether driving without a licensed driver in the passenger seat invalidated the temporary
{16} Notwithstanding the Ninth District‘s implicit suggestion in Rooker, based on our review of the relevant statutes, we conclude that operating a motor vehicle in violation of the restrictions imposed on a temporary instruction permit does not render the temporary instruction permit invalid.
{17} We find our construction of the statute to be more consistent with the general statutory scheme governing driver‘s licenses, which recognizes the offense of driving without a valid license separately from the offense of driving in violation of restrictions imposed on a driver‘s license. See
{18} Having concluded that failure to comply with the restrictions imposed on a temporary instruction permit under
{19} Dumas argues in her third assignment of error that the trial court erred by denying her motion to amend the indictment. Generally, we review a trial court‘s decision regarding amendment of an indictment for abuse of discretion. See State v. Abdullah, 10th Dist. No. 07AP-427, 2007-Ohio-7010, ¶ 9 (holding that if an amendment to an indictment does not change the name or identity of the offense charged, the decision to allow the amendment is reviewed for abuse of discretion); State v. Williams, 53 Ohio App.3d 1, 5 (10th Dist.1988) (“A trial court‘s authority to allow an amendment is discretionary. However, the trial court can abuse its discretion by refusing to amend an indictment.“). As explained above, we conclude that driving in violation of the restrictions on her temporary instruction permit did not render Dumas‘s permit invalid; therefore, the trial court abused its
{20} Dumas argues in her first assignment of error that the trial court erred by finding her guilty of fourth-degree felony vehicular homicide because the prosecutor‘s statement of facts negated an element essential to the enhancement of the offense. Generally, when an indictment contains sufficient allegations to state a felony offense and the defendant pleads no contest, the trial court must find the defendant guilty. State v. Geiger, 10th Dist. No. 15AP-1120, 2016-Ohio-7571, ¶ 17, citing State v. Bird, 81 Ohio St.3d 582, 584 (1998). However, when a prosecutor presents a statement of facts that positively contradict the felony charged in the indictment by negating an essential element to the commission of the offense, the court may not find the defendant guilty based on the charges alleged in the indictment. Id. at ¶ 18. At the plea hearing, the prosecutor made the following statement regarding the validity of Dumas‘s temporary instruction permit at the time of the collision:
Ms. Dumas did not have a valid operator‘s license at the time. She did have a temporary instructor‘s [sic] permit and she did not have anyone else in the car with her at the time.
(May 16, 2019 Tr. at 8.) As explained above, we conclude Dumas‘s failure to comply with the requirement under
{21} Accordingly, we sustain Dumas‘s first and third assignments of error. Our disposition of these assignments of error renders moot her second and fourth assignments of error.
IV. Conclusion
{22} For the foregoing reasons, Dumas‘s first and third assignments of error are sustained, and her second and fourth assignments of error are rendered moot. We reverse the portion of the judgment of the Franklin County Court of Common Pleas finding Dumas guilty of Count 1 of the indictment and imposing sentence on that conviction; we affirm the portion of the judgment finding Dumas guilty of Count 2 of the indictment pursuant to her no contest plea and imposing sentence on that conviction. We remand this matter to that court to vacate the portion of its judgment convicting Dumas on Count 1 of the indictment and imposing sentence on that conviction, and for further proceedings in accordance with law and this decision.
Judgment affirmed in part and reversed in part; cause remanded with instructions.
BROWN & KLATT, JJ., concur.