State v. PhelpsState v. Phelps
Brian K. Harrison, P.O. Box 80, Monroe, Ohio 45050, for defendant-appellant
RINGLAND, J.
{¶1} Defendant-appellant, Michael D. Phelps, appeals his convictions for two counts of aggravated vehicular assault, two counts of vehicular assault, and one count of operating a vehicle under the influence (“OVI“).
{¶2} Appellant‘s case arose from an automobile accident on April 25, 2008 in Hamilton. Appellant was operating a work truck at the intersection of B Street and Lagonda Avenue. As appellant attempted to turn left from B Street to Lagonda Avenue, he pulled out
{¶3} When questioned by officers from the Hamilton Police Department, the officers detected an odor of alcohol and observed glassy and bloodshot eyes and slurred speech, indicating that appellant might be under the influence of alcohol. A search warrant was obtained for appellant‘s blood that was withdrawn at the hospital. Laboratory test results indicated that appellant had 13 nanograms of marijuana metabolite per milliliter of blood, and 12 grams by weight of alcohol per 100 milliliters of plasma. Appellant admitted that he had consumed “a couple of beers,” and claimed that he had been in the presence of two employees who were smoking marijuana, prior to the collision.
{¶4} Following a jury trial, appellant was found guilty of two counts of aggravated vehicular assault, two counts of vehicular assault, and one count of operating a vehicle under the influence. Appellant‘s counsel argued that the offenses were a single animus and allied offenses of similar import. The trial court overruled appellant‘s argument and sentenced appellant on all five counts to an aggregate prison term of seven years. Appellant timely appeals, raising a single assignment of error:
{¶5} “THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT WHEN IT CONVICTED APPELLANT OF MULTIPLE ALLIED OFFENSES OF SIMILAR IMPORT”
{¶6} In his sole assignment of error, appellant presents three arguments. Appellant first argues that aggravated vehicular assault and vehicular assault are allied offenses of similar import. Appellant next argues that all counts of the indictment arose from a single course of conduct, and as a result it was improper for him to be convicted of two separate charges of aggravated vehicular assault and/or vehicular assault. Finally, appellant argues that operating a motor vehicle under the influence and aggravated vehicular assault are allied
Allied Offenses
{¶7} “Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.”
{¶8} “Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.”
{¶9} The Ohio Supreme Court has set forth a two-step analysis for determining whether offenses are of similar import under
Aggravated Vehicular Assault/Vehicular Assault
{¶10} Appellant was convicted of aggravated vehicular assault in violation of
{¶11} Vehicular assault is defined, in pertinent part, as “[n]o person, while operating * * * a motor vehicle, * * * shall cause serious physical harm to another person * * * [r]ecklessly.”
{¶12} Although some elements of aggravated vehicular assault and vehicular assault are identical, such as causing serious physical harm to a victim while operating a motor vehicle, vehicular assault requires the additional element that the defendant acted recklessly. In contrast, aggravated vehicular assault in violation of
{¶13} “As a practical matter, many different types of conduct can be reckless in connection with operation of a vehicle. Speeding is just one example. In addition, the state points out that an individual can be under the influence of alcohol without being reckless. We also agree with this statement because
{¶14} The Tenth Appellate District found similarly in State v. Griesheimer, Franklin App. No. 05AP-1039, 2007-Ohio-837: “Both
{¶15} We agree with the decisions of the Second and Tenth Appellate Districts. Since the elements do not correspond, aggravated vehicular assault based upon alcohol impaired driving, in violation of
Multiple Charges of Same Offense
{¶16} Where a defendant‘s conduct injures multiple victims, the defendant may be convicted and sentenced for each offense involving a separate victim. See State v. Jones (1985), 18 Ohio St.3d 116; State v. Caudill (1983), 11 Ohio App.3d 252; State v. Lapping (1991), 75 Ohio App.3d 354; State v. Phillips (1991), 75 Ohio App.3d 785, 789.
{¶17} Here, appellant caused serious physical harm to two separate victims, Brooklyn and Ashley. Accordingly, the trial court properly sentenced appellant to two counts of
Aggravated Vehicular Assault/OVI
{¶18} A conviction for aggravated vehicular assault pursuant to
{¶19} ”
{¶20} “(A) No person, while operating * * * a motor vehicle * * * shall cause serious physical harm to another person * * *.
{¶21} “(1)(a) As the proximate result of committing a violation of division (A) of section 4511.19 of the Revised Code * * *;
{¶22} “* * *
{¶23} “(2)(b) Recklessly.
{¶24} ”
{¶25} “Considering the statutory elements of these offenses in the abstract, without reference to appellant‘s conduct in this matter, it is apparent that an individual could drive while under the influence of alcohol or drugs in violation of
{¶26} In reviewing the offense of aggravated vehicular assault, the Eighth District attributes an element to the offense which is not an element. Specifically, the Eighth District in O‘Neil found that “recklessly” was an element of aggravated vehicular assault. It is not.
{¶27}
{¶28} Rather, we agree with the Second Appellate District‘s decision in State v. West, Montgomery App. No. 23547, 2010-Ohio-1786, ¶27-44, which correctly analyzes OVI in relation to aggravated vehicular assault. The West court stated:
{¶29} “Defendant was found guilty of aggravated vehicular assault in violation of
{¶30} “Conduct that constitutes the offense of aggravated vehicular assault,
{¶31} “Any violation of
{¶32} Like the defendant in West, appellant in this case was convicted of both
{¶33} Appellant‘s assignment of error is sustained in part and overruled in part.
{¶34} Judgment affirmed in part, reversed in part, and this cause is remanded for
POWELL, P.J., and HENDRICKSON, J., concur.