2005 Ohio 2367 | Ohio Ct. App. | 2005
{¶ 2} On the evening of February 7, 2003, appellant failed to stop for a red light at the intersection of N.W. Washington Blvd. and Main Street in Hamilton, Ohio. Appellant had ten open driving suspensions at the time of the offense. She collided with the vehicle of Rodney Getz and his then-fiance and present-wife, Shiloh Lockwood. Getz, attempting to make a left turn onto N.W. Washington Blvd., entered the intersection under a green traffic signal and waited for the oncoming traffic to stop before proceeding. Appellant was traveling on Main Street heading in the direction toward Getz's car. As Getz tried to clear the intersection, appellant struck the passenger side of the car where Lockwood was seated. Lockwood suffered several serious injuries including crushed bones in her foot, lacerations to her face and scalp, and a damaged optic nerve that affected her vision.
{¶ 3} At appellant's jury trial, several witnesses testified that all of the intersection's traffic signals were red when appellant struck the victims' vehicle. One witness said that she did not see appellant's brake lights illuminate as appellant disobeyed the traffic signal.
{¶ 4} Hamilton Police Officer Doug Zeek, the lead traffic officer at the time, appeared at the scene that night. He testified that appellant explained to him that "the light was yellow and she had to get through the intersection when it changed red, so she had to punch it, accelerate to get through it safely." At a subsequent interview, appellant altered her explanation of the events that night. Officer Zeek said, "[appellant] changed her mind and said her light had been yellow, and that if her light was red then the other light was red for the other car, and therefore they were equally at fault."
{¶ 5} On April 30, 2003, appellant was indicted on one count for vehicular assault, a third-degree felony when driving under suspension pursuant to R.C.
{¶ 6} Assignment of Error No. 1:
{¶ 7} "The trial court erred to the prejudice of appellant by denying her `stipulation of driving under suspension; motion in limine' and permitting the admission of her prior driving record into evidence."
{¶ 8} Appellant argues that it was improper for her driving record to be admitted into evidence. We disagree. Vehicular assault is a third-degree felony when, at the time of the offense, the "offender was driving under a suspension imposed under Chapter 4507. or any other provision of the Revised Code." R.C.
{¶ 9} Before trial, appellant moved to exclude her driving record from evidence. Appellant attempted to stipulate that she was driving under suspension, but the court denied the motion. A stipulation is a "[v]oluntary agreement between opposing counsel concerning disposition of some relevant point so as to obviate need for proof." Burdge v. Bd. ofCty. Commrs. (1982),
{¶ 10} The admission or exclusion of evidence rests within the sound discretion of the trial court. State v. Sage (1987),
{¶ 11} In the case at bar, the state was required to prove beyond a reasonable doubt the element of the enhanced penalty for vehicular assault, namely that appellant was driving under suspension when the offense occurred. Because the state did not agree to appellant's proposed stipulation, the trial court had no stipulation to accept. Furthermore, we find that the trial court did not err in finding appellant's driving record admissible as evidence produced to demonstrate that appellant's driver's license was under suspension when she collided with the victims' automobile. Appellant's first assignment of error is overruled.
{¶ 12} Assignment of Error No. 2:
{¶ 13} "The trial court erred to the prejudice of appellant by denying her motion under criminal rule 29 to acquit her of the charge of aggravated vehicular assault [SIC] under revised code section 2903.03(a)(2)."
{¶ 14} Assignment of Error No. 4:
{¶ 15} "The state's evidence was insufficient to support the jury's verdict."
{¶ 16} Because they involve the same analysis, we now address appellant's assignments of error two and four together. Appellant alleges (1) the trial court erred when it denied her Crim.R. 29 motion and (2) the evidence was insufficient to support the jury conviction. Appellant argues that there was insufficient evidence to demonstrate that she was driving recklessly.
{¶ 17} An appellate court applies the same test in reviewing a trial court's denial of a Crim.R. 29 motion for acquittal as reviewing a challenge based on the sufficiency of the evidence. See State v.Thompkins,
{¶ 18} In reviewing the trial court's decision, an appellate court must examine the evidence presented at trial and determine whether such evidence, if believed would support a conviction. State v. Jenks (1991),
{¶ 19} R.C.
{¶ 20} "No person, while operating or participating in the operation of a motor vehicle * * * shall cause serious physical harm to another person or another's unborn child * * * [r]ecklessly."
{¶ 21} R.C.
{¶ 22} After a thorough review of the record, we find that the evidence was sufficient for a rational trier of fact to find that appellant acted recklessly. Several witnesses testified that appellant ran a red light at a busy intersection. Appellant admitted to Officer Zeek on the scene that not only did she disobey the signal to stop, but she actually accelerated through the intersection after seeing the light change from yellow to red. Such evidence supports a finding that appellant evinced a heedless indifference to the safety of others by intentionally disregarding a red traffic signal and speeding up. SeeState v. Smith (Oct. 20, 1997), Butler App. Nos. CA96-09-186, -190.
{¶ 23} Appellant cites several cases for the proposition that proof of excessive speed alone is insufficient to constitute criminal recklessness. See State v. Whitaker (1996),
{¶ 24} Assignment of Error No. 3:
{¶ 25} "The prosecutor prejudiced the jury by repeatedly stating that appellant had admitted that she `punched it' to run a read [sic] light when, in fact, the officer who referred to that statement testified that he could not remember her making that statement and that there was no evidence that defendant was, in fact, speeding."
{¶ 26} Appellant argues that she was prejudiced by the prosecutor's comments during opening and closing statements that she told Officer Zeek that she "punched it" to get through the intersection. We find appellant's argument lacks merit.
{¶ 27} To determine whether a prosecutor's remarks at trial constituted misconduct, we must determine (1) whether the remarks were improper and (2) if so, whether the remarks prejudicially affected the accused's substantial rights. State v. Smith (1984),
{¶ 28} In the case at bar, appellant argues that the jury was improperly swayed by comments during opening and closing statements when the prosecutor attributed the characterization of "punching it" to appellant herself. Officer Zeek testified during cross-examination that he could not tell if the characterization could be attributed to him or appellant. However, during redirect examination, the following exchange occurred:
{¶ 29} "Q. What exactly did the defendant say she did?
{¶ 30} "A. She stated the light was yellow and she had to get through the intersection when it changed red, so she had to punch it, accelerate to get through it safely."
{¶ 31} Despite the confusion as to whom the characterization could be attributed, we do not find the prosecutor's remarks that appellant admitted she "punched it" to be improper in light of this testimony. They were fair comments based on the evidence that appellant attempted to go through the intersection by accelerating.
{¶ 32} Moreover, the trial court instructed the jury that it must decide the case on the evidence and that opening statements and closing arguments are not evidence. We presume that the jury followed the court's instructions. State v. Loza,
{¶ 33} Assignment of Error No. 5:
{¶ 34} "Appellant's sentence of more than one year to prison for committing aggravated vehicular assault under revised code section
{¶ 35} In appellant's final assignment of error, she argues that her right to a jury trial was violated when she was sentenced to prison for four years. Appellant cites the recent United States Supreme Court decisions in Blakely v. Washington (2004), 542 U.S. ___,
{¶ 36} Appellant was convicted of vehicular assault in violation of R.C.
{¶ 37} "[T]he court shall impose the shortest prison term authorized for the offense pursuant to [R.C.
{¶ 38} "(1) The offender was serving a prison term at the time of the offense, or the offender previously had served a prison term.
{¶ 39} "(2) The court finds on the record that the shortest prison term will demean the seriousness of the offender's conduct or will not adequately protect the public from future crime by the offender or others."
{¶ 40} In State v. Berry,
{¶ 41} Furthermore, in analyzing the extent to which Blakely may apply to Ohio's sentencing guidelines, we have held that the statutory limitation contained in R.C.
{¶ 42} The judicial findings contained in R.C.
{¶ 43} Consequently, the Combs holding that the imposition of a maximum sentence within the statutory range is not violative of a defendant's Sixth and Fourteenth Amendment constitutional rights leads to the natural and necessary conclusion that the imposition of a nonminimum sentence within the statutory range is also constitutionally sound. Appellant's four-year sentence falls within the one to five year range prescribed for a third-degree felony. Accordingly, appellant's fifth assignment of error is overruled.
{¶ 44} Judgment affirmed.
Young and Valen, JJ., concur.
