State v. MendozaState v. Mendoza
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Paul A. Dobson, Wood County Prosecuting Attorney, Gwen Howe-Gebers and Jacqueline M. Kirian, Assistant Prosecuting Attorneys, for appellee.
Mollie B. Hojnicki, for appellant.
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OSOWIK, P.J.
{¶ 1} This is an appeal from a judgment of the Wood County Court of Common Pleas that found appellant guilty, after trial to a jury, of two counts of aggravated vehicular homicide, two counts of aggravated vehicular assault, one count of operation of
{¶ 2} Appellant sets forth the following assignments of error:
{¶ 3} “First Assignment of Error: The trial court erred in denying appellant‘s motion to suppress the results of the blood test where the state made no showing of substantial compliance.
{¶ 4} “Second Assignment of Error: The trial court‘s imposition of the maximum and consecutive sentences was contrary to law and constituted an abuse of discretion.
{¶ 5} “Third Assignment of Error: The trial court‘s order requiring the warden of the institution where the appellant is housed to place the appellant in solitary confinement every October 5th is contrary to law.
{¶ 6} “Fourth Assignment of Error: The evidence at appellant‘s trial was insufficient to support a conviction and appellant‘s conviction is against the manifest weight of the evidence.”
{¶ 7} The undisputed facts relevant to the issues raised on appeal are as follows. While on duty on the afternoon of October 5, 2008, Sergeant Gregory Konrad of the Wood County Sheriff‘s Office noticed a white Bonneville approaching him at a high rate of speed on Sand Ridge Road in Wood County. The car moved into Konrad‘s lane and
{¶ 8} On October 15, 2008, appellant was indicted as follows: Counts 1 and 2, aggravated vehicular homicide with specifications, in violation of
{¶ 9} Appellant entered pleas of not guilty to all counts.
{¶ 10} On December 29, 2008, appellant filed a motion to suppress statements and a motion to suppress blood test results. The state filed a motion in limine to allow the blood test results to be introduced as evidence and a motion in opposition to the motions to suppress. After hearings on the motions, the trial court granted the motion to suppress statements appellant made while sitting in the police cruiser immediately after the crash, ruled admissible appellant‘s statements made while in the hospital on October 7, 2008, denied appellant‘s motion to suppress the blood test results, and granted the state‘s motion in limine.
{¶ 11} Following a three-day trial, the jury found appellant guilty as to all counts. The trial court proceeded directly to sentencing and imposed the following prison terms, to be served consecutively: a mandatory ten years as to Count 1, a mandatory ten years as to Count 2, eight years as to Count 3, four years as to Count 4, four years as to Count 7, and three years as to Count 8. As to Count 5, the trial court ordered appellant incarcerated in the Wood County Justice Center for ten days, and for six months on Count 6, with those sentences to be served concurrently with the prison terms. Finally, the trial court ordered that appellant be placed in solitary confinement every year on October 5, the anniversary of the crash.
{¶ 12} In his first assignment of error, appellant asserts that the trial court erred in denying his motion to suppress the results of his blood alcohol test.
{¶ 13} Initially, we note that “[a]ppellate review of a motion to suppress presents a mixed question of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,
{¶ 14} Appellant relies on State v. Mayl, 106 Ohio St.3d 207, 2005-Ohio-4629, in which the Ohio Supreme Court held that upon a defendant‘s motion to suppress the results of a blood alcohol test, the state must “show substantial compliance with
{¶ 15} The results of the test in this case indicated that appellant‘s blood alcohol level was .114 percent. Appellant argues that the state failed to test his blood sample in substantial compliance with the Ohio Department of Health regulations pursuant to
{¶ 16} Two years after the Mayl decision, however, the Ohio General Assembly passed Am.Sub.H.B. No. 461, effective April 4, 2007, which enacted
{¶ 17} “In any criminal prosecution or juvenile court proceeding for a violation of division (A)(1)(a) of this section or for an equivalent offense that is vehicle-related, the result of any test of any blood or urine withdrawn and analyzed at any health care provider, as defined in
{¶ 18} The Twelfth District Court of Appeals discussed the application of
{¶ 19} Immediately after the collision, appellant was transported to the hospital, where he underwent a non-forensic, or medical, blood alcohol test. We find that
{¶ 20} For the reasons set forth above, we agree with the trial court‘s application of
{¶ 21} In his second assignment of error, appellant asserts that the trial court abused its discretion when it imposed maximum and consecutive sentences for his convictions on two counts of aggravated vehicular homicide and two counts of aggravated vehicular assault. Appellant also argues that the trial court erred by failing to reference either
{¶ 22} The Supreme Court of Ohio has established a two-step procedure for reviewing a felony sentence. State v. Kalish (2008), 120 Ohio St.3d 23, 2008-Ohio-4912, ¶ 15. The first step is to 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. Id. The second step requires the trial court‘s decision to be reviewed under an abuse of discretion standard. Id. at ¶ 19. An abuse of discretion is “more than an error of law or judgment; it implies that the trial court‘s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶ 23} Appellant‘s sentences all fell within the statutory range and thus meet the criteria of the first step. The ten-year maximum sentences for the two convictions of aggravated vehicular homicide with specifications were mandatory pursuant to
{¶ 24} This court has repeatedly held that State v. Foster (2006), 109 Ohio St.3d 1, 2006-Ohio-856, is the controlling law regarding this issue. Foster held several of Ohio‘s
{¶ 25} We note that where the trial court does not put on the record its consideration of
{¶ 26} In his third assignment of error, appellant asserts that the trial court erred by ordering him to be placed in solitary confinement on October 5 of each year. The state in this case concedes that Ohio courts have held that solitary confinement is not an acceptable penalty for a trial court to impose. We agree. The punishments set forth in
{¶ 27} In his fourth assignment of error, appellant asserts that the evidence at trial was insufficient to support a conviction and that his conviction was against the manifest weight of the evidence.
{¶ 28} A manifest weight challenge questions whether the state has met its burden of persuasion. State v. Thompkins, 78 Ohio St.3d 380, 387. In making this determination, the court of appeals sits as a “thirteenth juror” and, after “reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” Thompkins, supra, at 386, citing State v. Martin (1983), 20 Ohio App.3d 172, 175.
{¶ 29} In contrast, “sufficiency” of the evidence is a question of law as to whether the evidence is legally adequate to support a jury verdict as to all elements of the crime. Thompkins, supra, at 386. When reviewing the sufficiency of the evidence to support a criminal conviction, an appellate court must examine “the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the
{¶ 30} Appellant‘s sole argument in support of his challenges to the sufficiency of the evidence and the weight of the evidence is that the state failed to establish that he was driving the car at the time of the crash. Appellant argues that the undisputed fact that his father also fled the scene, and smelled of alcohol according to witnesses, strongly suggests that his father was the driver of the car, not appellant. Additionally, appellant challenges the credibility of the three witnesses who were passengers in the car at the time of the crash, all of whom testified that appellant was the driver. Appellant states that the witnesses all admitted to drinking prior to the crash and asserts that alcohol clouded their memories.
{¶ 31} Trinity Jay testified that on the afternoon of the crash appellant picked her up along with Jay‘s friends Roger Lambert and Alivia Baron. Appellant was driving; his young son and his father were also in the car. The group spent the next several hours driving around the area with appellant at the wheel. At one point, appellant and his father argued because appellant was driving extremely fast and swerving on the road. At the time of the crash, Jay testified, appellant was driving. Although everyone else had been
{¶ 32} Based on the foregoing, we find that appellant‘s convictions were not against the manifest weight of the evidence. The jury clearly reached the rational conclusion, based on the testimony summarized above, that appellant was driving the car at the time of the crash. Further, we find that the state presented sufficient evidence that appellant was driving the car to support the convictions. Accordingly, appellant‘s fourth assignment of error is not well-taken.
{¶ 33} Because we find that the trial court erred in ordering solitary confinement as part of its sentence, we affirm in part and reverse in part. It is ordered that a special mandate issue out of this court directing the Wood County Court of Common Pleas to carry this judgment into execution by modifying its judgment entry to delete that portion ordering solitary confinement. The judgment of the Wood County Court of Common
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J. _______________________________ JUDGE
Arlene Singer, J. _______________________________ JUDGE
Thomas J. Osowik, P.J. CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.