STATE OF OHIO, Appellee, - vs - TERRI L. RUTH, Appellant.
CASE NO. CA2019-08-018
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO FAYETTE COUNTY
9/21/2020
2020-Ohio-4506
Jess C. Weade, Fayette County Prosecuting Attorney, Rachel S. Martin, 110 East Court Street, Washington Court House, Ohio 43160, for appellee
Harris Law Firm, LLC, Felice Harris, 6031 E. Main Street, #187, Columbus, Ohio 43213, for appellant
S. POWELL, J.
{¶ 1} Appellant, Terri L. Ruth, appeals her conviction in the Fayette County Court of Common Pleas after a jury found her guilty of one count of aggravated vehicular assault. For the reasons outlined below, we affirm Ruth‘s conviction.
{¶ 2} On October 5, 2018, the Fayette County Grand Jury returned an indictment
{¶ 3} On July 18, 2019, the matter proceeded to a one-day jury trial. At trial, R.H. testified that he and Ruth were involved in an automobile accident that caused him to suffer a serious injury to his right shoulder. Explaining this injury, R.H. testified that the accident caused him to suffer a constant, dull pain in his right shoulder for over a year, limited the range of motion in his right arm, and required him to receive physical therapy and eventually shoulder surgery. R.H. also testified that the accident resulted in pain in his chest, an injury to his leg, and soreness to his “whole body.” Following deliberations, the jury returned a verdict finding Ruth guilty as charged. The trial court then held a sentencing hearing and sentenced Ruth to 60 months in prison. Ruth now appeals her conviction, raising four assignments of error for review.
{¶ 4} Assignment of Error No. 1:
{¶ 5} THE TRIAL COURT ERRED IN ADMITTING THE TESTIMONY OF DR. BAGDASCHEWSKYI.
{¶ 6} In her first assignment of error, Ruth argues the trial court erred by allowing Dr. Bagdaschewskyi, R.H.‘s primary care physician at the time of the accident, to testify as
{¶ 7} Contrary to Ruth‘s claim, Dr. Bagdaschewskyi did not testify as an expert witness. The record instead indicates Dr. Bagdaschewskyi testified as a lay witness regarding the treatment he provided to R.H. during a routine check-up on May 1, 2018, five days prior to the accident, as well as the treatment he recommended for R.H. on May 8, 2018, two days after the accident. Dr. Bagdaschewskyi in fact specifically testified that he was not providing any opinion as to what may have caused R.H.‘s shoulder injury. Dr. Bagdaschewskyi instead testified that he was “just going by what [R.H. had] told [him]” had occurred; that R.H. was suffering from “muscular discomfort” in his neck, shoulder, right arm, and “right lower extremity” after he had reported being involved in an automobile accident two days earlier. Therefore, considering Dr. Bagdaschewskyi specifically testified that he was not offering any opinion as to what may have caused R.H.‘s shoulder injury, Dr. Bagdaschewskyi‘s testimony was admissible lay witness testimony. Accordingly, finding no error in the trial court‘s decision to allow Dr. Bagdaschewskyi to testify in the manner in which he did, Ruth‘s first assignment of error lacks merit and is overruled.
{¶ 8} Assignment of Error No. 2:
{¶ 9} THE TRIAL COURT ERRED IN ADMITTING TESTIMONY AND PHOTOGRAPHS WHICH WERE IN VIOLATION OF OHIO EVID.R. 802 AND 403(A).
{¶ 10} In her second assignment of error, Ruth argues it was plain error for the trial court to admit certain testimony and evidence offered by Deputy Travis Burden, a deputy with the Fayette County Sheriff‘s Office who was dispatched to the scene of the automobile accident between Ruth and the victim, R.H. We disagree.
{¶ 11} When properly objected to, this court reviews a trial court‘s decision to admit
{¶ 12} Ruth initially argues that it was plain error for the trial court to admit Deputy Burden‘s testimony about the statement she gave to him at the hospital shortly after the accident occurred; specifically, that “another vehicle pulled in front of her causing the accident.” Ruth claims this testimony was inadmissible hearsay under
{¶ 13} Ruth also argues that Deputy Burden‘s testimony should have been excluded under
{¶ 14} Ruth further argues that it was plain error for the trial court to admit Deputy Burden‘s testimony regarding the “scene of the accident,” the “position of the cars,” the “severe injury” sustained by a passenger in Ruth‘s vehicle, as well as five photographs of the scene of the accident taken shortly after the accident occurred. Ruth claims this evidence was not relevant, confused the issues, was unfairly prejudicial to her, and used by the state to “enflame the emotions of the jury” since she had already admitted to being under the influence of alcohol at the time of the accident. However, contrary to Ruth‘s claims, this evidence was relevant, straightforward, and not unfairly prejudicial to her. This is because, as noted by the state, this testimony and evidence was used to establish the nature and the circumstances of the crime charged in relation to the testimony offered by the victim, R.H. Therefore, finding no error, let alone plain error, in the trial court‘s decision
{¶ 15} Assignment of Error No. 3:
{¶ 16} THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT RUTH‘S CRIM.R. 29 MOTION FOR JUDGMENT OF ACQUITTAL.
{¶ 17} In her third assignment of error, Ruth argues the trial court erred by denying her
{¶ 18} The standard of review for a denial of a
{¶ 19} As noted above, Ruth was convicted of aggravated vehicular assault in violation of
(c) Any physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary, substantial incapacity;
* * *
(e) Any physical harm that involves acute pain of such duration as to result in substantial suffering or that involves any degree of prolonged or intractable pain.
Thus, as it relates to
{¶ 20} As stated previously, Ruth does not dispute that she was under the influence of alcohol at the time of the accident. Ruth instead argues that the state failed to prove she caused the victim, R.H., to suffer serious physical harm. However, after a thorough review of the record, we find the state offered extensive evidence to prove Ruth caused serious physical harm to the victim. This includes, most notably, R.H.‘s testimony that the accident had caused him to suffer pain in his chest, an injury to his leg, soreness to his “whole body,” and a serious injury to his right shoulder. R.H. testified that his shoulder injury limited his range of motion and resulted in him living with a constant, dull pain for over a year. R.H. testified that this pain, which he characterized as an eight to nine out of ten two days after the accident, would then increase “into a sharper pain” the higher he raised his arm. R.H. also testified that he received physical therapy and eventually shoulder surgery, but that nothing helped until one day his arm and shoulder returned to normal after he “felt it pop,” his arm “actually popped.”
{¶ 21} The degree of harm that rises to the level of “serious” physical harm is not an exact science. State v. Sharp, 12th Dist. Butler No. CA2009-09-236, 2010-Ohio-3470, ¶ 11. “‘[W]here injuries to the victim are serious enough to cause him or her to seek medical treatment, the finder of fact may reasonably infer that the force exerted on the victim caused serious physical harm as defined by
{¶ 22} Assignment of Error No. 4:
{¶ 23} TERRI RUTH‘S CONVICTION FOR AGGRAVATED VEHICULAR ASSAULT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 24} In her fourth assignment of error, Ruth argues her conviction was against the manifest weight of the evidence. In support, Ruth makes the same basic arguments that she advanced under her third assignment of error wherein she advanced a challenge to the sufficiency of the evidence presented at trial. “Although a verdict is supported by sufficient evidence, an appellate court may nevertheless conclude that the verdict is against the
{¶ 25} However, while the test may be broader, “[a]n appellate court will overturn a conviction due to the manifest weight of the evidence only in extraordinary circumstances when the evidence presented at trial weighs heavily in favor of acquittal.” State v. Blair, 12th Dist. Butler No. CA2014-01-023, 2015-Ohio-818, ¶ 43, citing State v. Barnes, 12th Dist. Brown No. CA2010-06-009, 2011-Ohio-5226, ¶ 81, citing State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). This is not one of those cases. Therefore, because this is not one of those extraordinary cases when the evidence presented at trial weighs heavily in favor of acquittal, but rather a case in which there exists extensive evidence to support the jury‘s guilt finding, Ruth‘s conviction was not against the manifest weight of the evidence. Accordingly, finding no merit to any of Ruth‘s arguments raised herein, Ruth‘s fourth assignment of error is overruled.
{¶ 26} Judgment affirmed.
M. POWELL, P.J., and PIPER, J., concur.