State v. RozikovState v. Rozikov
OPINION
Appeal from Upper Sandusky Municipal Court Trial Court No. CRB 1700499 A
Judgment Affirmed
APPEARANCES:
W. Joseph Edwards for Appellant
Richard A. Grafmiller for Appellee
{1} Defendant-appellant, Normurod Rozikov (“Rozikov“), appeals the judgment entry of sentence of the Upper Sandusky Municipal Court‘s jury verdict finding Rozikov guilty of vehicular homicide. For the reasons that follow, we affirm.
{2} The facts relevant to this appeal are as follows. On July 1, 2017, Rozikov was making a U-turn of his semi-truck and trailer off of U.S. Route 23 north onto U.S. Route 23 south, a four-lane-divided highway. A 2010 Ford Edge (“SUV“) driven by Darlene Kujawa (“Kujawa“), was also traveling northbound on U.S. Route 23 at that time. During Rozikov‘s U-turn onto U.S. Route 23 south, Kujawa‘s vehicle struck the left rear side of Rozikov‘s trailer resulting in a crash and her death.
{3} As a result of the crash, Rozikov was charged with vehicular homicide in violation of
{4} On March 12, 2018, Rozikov filed a motion in limine in the trial court regarding Trooper John R. Banta‘s (“Sgt. Banta“) qualifications as an expert witness
{5} On August 21, 2019, a jury trial commenced in the trial court. On August 22, 2019, the jury found Rozikov guilty of vehicular homicide. (Doc. Nos. 35, 36); (Aug. 22, 2019 Tr., Vol. II, at 466, 468). After the verdict, the trial court ordered the preparation of a presentence investigation report and scheduled a sentencing hearing. (Doc. Nos. 38, 39, 40, 41, 42).
{6} On October 22, 2019, Rozikov was sentenced to two years of community control sanctions which included a 30-day-jail sentence; a $750.00 fine; court costs including the cost of the jury trial and interpreter fees; and a one-year-class-four-license suspension commencing October 25, 2019.2
{7} On November 20, 2019, Rozikov filed his notice to appeal.3 (Doc. No. 47). Rozikov raises two assignments of error which we will address separately.
Assignment of Error No. I
The Trial Court Abused Its Discretion By Allowing Improper Expert Testimony Regarding The Ultimate Issue Of Negligence Thereby Violating The Ohio Rules Of Evidence While Also Depriving The Defendant Of His Right To A Fair Trial Under The Ohio And Federal Constitutions (Record Reference: Vol. II, PP. 279, 298-300) [sic]
Standard of Review
{9} The admissibility of an expert‘s testimony is a matter committed to the sound discretion of the trial court, and the trial court‘s ruling will not be reversed absent an abuse of that discretion. State v. Hawkey, 3d Dist. Defiance No. 4-14-03, 2016-Ohio-1292, ¶ 76, citing Valentine v. Conrad, 110 Ohio St.3d 42, 2006-Ohio-3561, ¶ 9. A trial court has abused its discretion when its decision is contrary to law, unreasonable, not supported by the evidence, or grossly unsound. State v. Boles, 2d Dist. Montgomery No. 23037, 2010-Ohio-278, ¶ 16-18. State v. Waldock, 3d Dist. Seneca No. 13-14-22, 2015-Ohio-1079, ¶ 62, citing Boles at ¶ 16-18. An appellate court may not substitute its judgment for that of the trial court when
Analysis
{10} In deciding whether Sgt. Banta‘s testimony was admissible, we begin our analysis with a review of
A witness may testify as an expert if all of the following apply:
(A) The witness’ testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons;
(B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;
(C) The witness’ testimony is based on reliable scientific, technical, or other specialized information. To the extent that the testimony reports the result of a procedure, test, or experiment, the testimony is reliable only if all of the following apply:
(1) The theory upon which the procedure, test, or experiment is based is objectively verifiable or is validly derived from widely accepted knowledge, facts, or principles;
(2) The design of the procedure, test, or experiment reliably implements the theory;
(3) The particular procedure, test, or experiment was conducted in a way that will yield an accurate result.
{12} ”
{13} Addressing whether Sgt. Banta was qualified as an expert witness by the trial court, our review of the record reveals that the State did not ask the trial court to formally recognize Sgt. Banta as an expert witness prior to eliciting his opinion testimony.
‘While it is preferable for the trial court to explicitly find that a witness qualifies as an expert, where the testimony of a witness relates to knowledge beyond the scope of a lay person, we can infer from the record that the trial court found the witness to be an expert, and the question thus becomes whether the witness was properly qualified as an expert.’
(Emphasis added.) LaBounty v. Big 3 Automotive, 6th Dist. Ottawa No. OT-18-022, 2019-Ohio-1919, ¶ 59, quoting State v. Michalek, 5th Dist. Stark No. 2010CA00186, 2011-Ohio-1628, ¶ 34. “In order to qualify as an expert, an expert ‘must demonstrate some knowledge on the particular subject superior to that possessed by an ordinary juror.‘” Id., quoting Scott v. Yates, 71 Ohio St.3d 219, 221 (1994), citing State Auto Mut. Ins. Co. v. Chrysler Corp., 36 Ohio St.2d 151, 160 (1973). See
{14} Importantly, Rozikov never requested that Sgt. Banta be subjected to voir dire as to his qualifications, and did not request the trial court engage in a
{15} Here, Sgt. Banta testified that he is the supervisor for the Ohio State Highway Patrol District Post in Bucyrus which covers nine counties and seven posts, including Wyandot County. (Id. at 280). He testified that he oversees vehicle-crash-reconstruction investigations as a certified-crash investigator. (Id.). Sgt. Banta detailed his experience in the investigations of fatal- and serious-injury crashes. (Id.) Further, he testified that he instructs cadets, trainees, and outside-law-enforcement agencies in crash-investigation courses. (Id.).
{16} In light of Sgt. Banta‘s specialized knowledge of the reconstruction of crash investigations for which he holds a certification and his investigative experience with fatality- and serious-injury crashes, we conclude that the trial court did not err by permitting Sgt. Banta to testify as an expert under
{17} Next, we address the admissibility of Sgt. Banta‘s testimony as to the issue of the area-of-impact of the crash and impeding the right-of-way of another vehicle. To be admissible, we must determine such testimony to be both relevant and reliable.4 Miller v. Bike Athletic Co., 80 Ohio St.3d 607, 611 (1998), citing
{18} In evaluating the scientific reliability of an expert, a trial court applies the factors set forth in Daubert, 509 U.S. 579, 113 S.Ct. 2786:
The trial court should first assess whether the method or theory relied upon has been tested. [Daubert] at 593, 113 S.Ct. 2786, 125 L.Ed.2d 469. Next, it should consider whether the theory has been the subject of peer review, and then whether the method has a known or potential error rate. Id. at 593-594, 113 S.Ct. 2786, 125 L.Ed.2d 469. Finally, Daubert instructs trial courts to look at whether the theory has gained general acceptance in the scientific community. Id. at 594, 113 S.Ct. 2786, 125 L.Ed.2d 469. None of these factors, of course, is dispositive of the inquiry, and when gauging the reliability of a given expert‘s testimony, trial courts should focus “solely on principles and methodology, not on the conclusions” generated. Id. at 595, 113 S.Ct. 2786, 125 L.Ed.2d 469.
{19} Here, the assumptions made by Sgt. Banta as to the area-of-impact and to the impeding of the right-of-way were based on facts supported by the record. Sgt. Banta testified that he was not on duty on July 1, 2017, but he was called to the crash scene by Ohio State Highway Patrol Trooper, Sergeant Sean E. Carpenter (“Sgt. Carpenter“) due to the serious nature of the crash. (Aug. 22, 2019 Tr., Vol. II, at 281). Sgt. Banta testified that upon arrival at the crash scene he spoke with the first responders present.5 (Id. at 282). According to Sgt. Banta, it was brought to his attention that Rozikov was operating a semi-truck and trailer and was
{20} Sgt. Banta‘s on-the-scene investigation also included walking the scene taking pictures of the vehicles, roadway, evidence, and the area leading up to the crash. (Id. at 282-283). At trial, Sgt. Banta testified to his process for taking forensic measurements of the crash scene through the use of a Total Robotics Station (“TRS“). (Id. at 283). After obtaining the needed measurements through the use of the TRS, Sgt. Banta checked with the other law-enforcement officers at the crash scene to discover what was known about the crash at that time. (Id.). Sgt. Banta further testified that when he formulated his crash-reconstruction report, he considered the evidence he reviewed, including 215 photographs, witness statements, and the Ohio-State-Highway-Patrol-Traffic-Crash Report. (Id. at 284).
{21} After consideration of the gouge marks of Kujawa‘s vehicle, fluids discarded from the vehicles, scuff marks of Rozikov‘s vehicle, and crash debris, Sgt. Banta testified that the area-of-impact of the vehicles occurred in the right-hand-driving lane of U.S. Route 23 northbound. (Id. at 289-290).
{22} Sgt. Banta testified further that he was able to recover the front left headlight of Kujawa‘s SUV noting that the coils were evenly spaced and generally in a straight line indicating that Kujawa‘s SUV‘s lights were incandescent (i.e., illuminated) at the time of the crash. (Id. at 291-292).
{24} Notably, Rozikov offered no expert witness in opposition to Sgt. Banta‘s methodology or theories, no peer-reviewed publications dispelling Sgt. Banta‘s methodology or theories, and no witnesses to testify as to whether Sgt. Banta‘s methodology or theories had not gained general acceptance in the scientific community. See
{25} The record reveals that Sgt. Banta obtained information from his investigation and data from the computer modules of Kujawa‘s vehicle. (Aug. 22, 2019 Tr., Vol. II, at 293-300). It was from this information and data that Sgt. Banta formulated his opinions as to the area-of-impact of the crash and whether Rozikov was impeding Kujawa‘s SUV‘s right-of-way when the crash occurred. (See id. at 300). See also
{26} Accordingly, by determining Sgt. Banta to be an expert witness, we cannot conclude that the trial court deviated from some legal rule, with an obvious defect in the proceeding, that affected Rozikov‘s substantial rights. Thus, we find that no plain error exists which has caused a manifest miscarriage of justice in the case sub judice.
{27} Accordingly, we overrule Rozikov‘s first assignment of error.
Assignment of Error No. II
The Jury‘s Verdicts [sic] Were Against The Manifest Weight Of The Evidence (Judgment Entry, PP 1-4) [sic]
{28} In his second assignment of error, Rozikov argues that the jury‘s verdict as to Rozikov‘s vehicular-homicide conviction is against the manifest weight of the evidence.7 For the reasons that follow, we disagree.
Standard of Review
{29} An appellate court‘s function when reviewing the weight of the evidence is to determine whether the greater amount of credible evidence supports
Analysis
{30} In this case, Rozikov was convicted of vehicular homicide in violation of
(A) No person, while operating or participating in the operation of a motor vehicle, * * * shall cause the death of another * * * in any of the following ways:
* * *
(3) In one of the following ways:
(a) Negligently;
* * *
(C) Whoever violates division (A)(3) of this section is guilty of vehicular homicide. Except as otherwise provided in this division, vehicular homicide is a misdemeanor of the first degree. * * *
* * *
In addition to any other sanctions imposed pursuant to this division, the court shall impose upon the offender a class four suspension of the offender‘s driver‘s license, commercial driver‘s license, * * * from the range specified in division (A)(4) of section 4510.02 of the Revised Code, * * *.
{31} In order to prove that Rozikov committed the charged offenses, the State called six witnesses. The jury heard evidence from Nicholas D. Marsalek (“N. Marsalek“), an eye witness to the crash scene immediately following the impact. (Aug. 21, 2019 Tr., Vol. I, at 111). N. Marsalek testified that while preparing to pass Rozikov‘s semi-truck and trailer (because Rozikov was traveling slower than the posted-speed limited), he observed Rozikov make a left turn from the right lane of U.S. Route 23 north. (Id. at 112-114). According to N. Marsalek, after Rozikov turned left, he and his father, Daniel F. Marsalek (“D. Marsalek“) observed that a crash had taken place.8 (Id. at 114).
{32} Next the State presented the testimony of D. Marsalek, N. Marsalek‘s father. (Id. at 122). D. Marsalek testified that he was the front seat passenger in the vehicle that his son was driving. (Id.). He testified that Rozikov‘s semi-truck and trailer was “not going the speed limit” when the truck made an abrupt left turn from the right lane of U.S. Route 23 north without a turn signal. (Id. at 123-124). This
{33} The State‘s next witness was James R. Patrick, M.D. (“Dr. Patrick“). Dr. Patrick testified that he is currently retired, but was the coroner and chief-forensic pathologist of Lucas County, Ohio in July 2017 and conducted the autopsy of Kujawa. (Id. at 143). Dr. Patrick testified that Kujawa‘s manner of death was accidental and that her cause of death was multiple-blunt-force trauma. (Id. at 144-145, 148). He testified that Kujawa sustained significant chest injuries including a partial-lung collapse; a fracture of her spine; and lacerations to her liver and spleen as well as a laceration of the kidney. (Id. at 145).
{34} On cross-examination, Dr. Patrick testified that even though it is possible for someone (like Kujawa in the instant case) who has coronary-artery disease to have bouts of dizziness or unconsciousness, an autopsy is not designed to
{35} The State‘s next witness was Ohio State Highway Patrol Trooper, Ashley Keller (“Tpr. Keller“). (Id. at 149-150). Tpr. Keller was dispatched to investigate an injury crash at the intersection of U.S. Route 23 and County Road 42, in Salem Township, Wyandot County, Ohio in July 2017. (Id. at 150-151). While on scene, she took photos and completed a field sketch. (Id. at 152). After conversing with another law-enforcement officer, Tpr. Keller issued the driver of the semi-tractor and trailer (Rozikov) a citation (at the crash scene) for a violation of
{36} On cross-examination, Tpr. Keller testified that she had been a State Trooper since March 2017, and this was her first crash fatality involving a semi-truck and trailer. (Id. at 158). Importantly, Tpr. Keller testified that she believes
{37} On redirect-examination, Tpr. Keller, testified that both the semi-truck and trailer and the SUV were primarily in the passing lane. (Id. at 181). Further, Tpr. Keller testified that Rozikov told her that “he drove off the shoulder slightly onto County Road 42 in order to make the turn.” (Id. at 187).
{38} Next, the State called Sgt. Carpenter. (Id. at 189). Sgt. Carpenter testified that on July 1, 2017 he was the supervisor of Ohio State Highway Patrol Post in Bucyrus, Ohio for the afternoon shift. (Id. at 189, 194). According to Sgt. Carpenter, he was dispatched to a two-vehicle crash on U.S. Route 23 involving a commercial vehicle and another vehicle. (Id. at 190). Sgt. Carpenter arrived on the crash scene 21 minutes after being dispatched. (Id. at 190-191). Upon his arrival, Sgt. Carpenter observed Rozikov‘s semi-tractor and trailer positioned partially in the left-northbound lane of U.S. Route 23 and partially in the left-southbound lane of U.S. Route 23. (Id. at 192). Sgt. Carpenter testified that he spoke with Rozikov who told him that he had pulled off to the right shoulder of U.S. Route 23 to stop and after permitting several cars to pass by him northbound, he turned the tractor part of his semi-truck over onto County Road 42 (the road intersecting with U.S. Route 23). (Id. at 192-193, 196-197). Sgt. Carpenter further testified that Rozikov told him that he then made a U-turn across both right and left lanes of northbound
{39} On cross-examination, Sgt. Carpenter testified he was the lead-crash investigator and not the reconstructionist. (Id. at 223). He testified that his investigation supports that the semi-truck and trailer was moving at the time of impact, and that Kujawa‘s SUV was traveling at the posted speed limit and that there were no skid marks from her vehicle. (Id. at 229-230). On redirect-examination, Sgt. Carpenter testified that Kujawa had the right-of-way. (Id. at 257-262).
{40} The State‘s last witness was Sgt. Banta. (Aug. 22, 2019 Tr., Vol. II, at 279). Because we discussed the majority of Sgt. Banta‘s testimony in Rozikov‘s first assignment of error, and for the sake of brevity, we need only address evidence elicited during Sgt. Banta‘s cross- and redirect-examinations.
{41} On cross-examination, Sgt. Banta testified that his crash-reconstruction report did not consider the weight of the semi-tractor, the angle of impact, the semi-tractor and trailer‘s turning radius or Rozikov‘s reaction time to
{42} Rozikov testified as the only witness for the defense. (Id. at 355-356). Rozikov testified that he has been driving semi-trucks and trailers since 2011, and that he had never been involved in a serious accident. (Id. at 356-358). He testified that at the time of the accident he was driving a semi-truck pulling a 53-foot trailer that weighed 20,000 pounds, hauling loaded pallets that weighed approximately 9,000 pounds. (Id. at 358-359). According to Rozikov, he saw a Love‘s Truck Stop on U.S. Route 30; however, he missed the turn to the exit and was forced to merge onto U.S. Route 23. (Id. at 361). So, after missing his exit, he continued on U.S. Route 23 northbound looking for an intersection to make a U-turn onto U.S. Route 23 south. (Id.).
{43} Rozikov testified that just prior to executing his U-turn (from U.S. Route 23 north to U.S. Route 23 south) he was initially in the right lane, but pulled over onto the shoulder of the road for a short time to permit the cars behind him to pass. (Id. at 366-367). He testified that five vehicles passed him while waiting to
{44} Rozikov testified that he attempted to open the driver‘s-side door, but it would not open, so upon seeing children in Kujawa‘s vehicle, he opened their door. (Id.). After the children exited the vehicle, he was asked to step aside by passersby. (Id. at 379). Rozikov testified that he walked to the end of his trailer and called his wife to tell her there had been a crash. (Id. at 380).
{45} Rozikov testified that after law enforcement arrived, Sgt. Carpenter put him in the back of his cruiser to write a statement. (Id. at 387). Rozikov asked Sgt. Carpenter if he could take pictures, but after (his request) he observed Sgt. Carpenter and other law enforcement officers sweeping the crash debris into one
{46} On cross-examination, Rozikov testified that he never moved the semi-tractor and trailer after the crash, and that his semi-tractor was protruding into the left lane of U.S. Route 23 southbound. (Id. at 391-392). Rozikov testified that Kujawa‘s SUV and its debris was positioned by the semi-tractor and trailer, but not where they were ultimately photographed. (Id. at 404-405). However, he testified that it was his responsibility, because of the size and weight of his vehicle, to be more careful in the operation of his vehicle. (Id. at 406).
{47} On appeal, Rozikov argues that the testimony of N. Marsalek (a lay witness) contradicts Sgt. Banta‘s report (that Rozikov‘s semi-truck and trailer was moved post-crash) rendering Sgt. Banta‘s expert opinion suspect as to the area-of-impact and the impeding of the right-of-way issues. However, the record contains the following exchange (at trial) between Rozikov‘s trial counsel and N. Marsalek, which addresses this issue:
[Rozikov‘s Trial Counsel]: Okay. Isn‘t it true you did not see the truck move after the impact?
[N. Marsalek]: I cannot remember.
[Rozikov‘s Trial Counsel]: Okay. You cannot remember.
[N. Marsalek]: If it moved after the impact.
[Rozikov‘s Trial Counsel]: Okay. And if I were to play that tape for you, would you be surprised to say -- or to hear that you testified -- you told the adjustor that you did not see the truck move after the accident?
[N. Marsalek]: I don‘t think I would be surprised --.
[Rozikov‘s Trial Counsel]: Okay.
[N. Marsalek]: -- due to how long it‘s been since then.
[Rozikov‘s Trial Counsel]: Okay. So is it fair to say you could not have seen the truck move after the accident.
[N. Marsalek]: I - I can‘t say.
(Aug. 21, 2019 Tr. Vol. I, at 116). Thus, N. Marsalek‘s testimony did not contradict Sgt. Banta‘s expert testimony or the evidence submitted to the jury.
{49} After our review of the record and for these reasons, we cannot conclude that the jury lost its way by determining that Rozikov while operating a motor vehicle negligently caused the death of Kujawa and created such a manifest miscarriage of justice that Rozikov‘s vehicular-homicide conviction must be reversed and a new trial ordered.
{50} Accordingly, Rozikov‘s second assignment of error is overruled.
PRESTON and WILLAMOWSKI, J.J., concur.
/jlr
Judgment Affirmed
Notes
Because Rozikov does not challenge the admissibility of the Sgt. Banta‘s expert testimony under