STATE OF OHIO v. DEWAYNE SMITH
No. 104553
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
February 16, 2017
[Cite as State v. Smith, 2017-Ohio-537.]
BEFORE: S. Gallagher, J., E.T. Gallagher, P.J., and Celebrezze, J.
JOURNAL ENTRY AND OPINION
AFFIRMED IN PART; REVERSED IN PART;
REMANDED FOR RESENTENCING
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-16-602362-A
RELEASED AND JOURNALIZED: February 16, 2017
Allison S. Breneman
1220 West 6th Street
Suite 303
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O‘Malley
Cuyahoga County Prosecutor
By: Brett Hammond
Assistant Prosecuting Attorney
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{1} Dewayne Smith disagrees with his convictions upon two counts of aggravated vehicular assault and operating a vehicle while intoxicated. We affirm in part and reverse in part and remand for resentencing.
{2} In September 2014, Smith drove while under the influence of alcohol. Smith‘s blood alcohol level was almost three times the legal limit. Accident investigators determined that Smith drove his car through a four-way stop at 54 m.p.h. on a street with a posted speed limit of 25 m.p.h. Smith broadsided the victim‘s vehicle as she drove through the intersection. The impact was so violent it pushed the victim‘s car through the front yard of the adjacent, corner house. The victim spent a month in a coma in addition to other serious medical issues.
{3} The jury found Smith guilty of two counts of aggravated vehicular assault, for causing serious physical harm to the victim as a proximate result (1) of operating a vehicle while intoxicated in violation of
{5} Smith contends that his convictions for aggravated vehicular assault are against the sufficiency or the manifest weight of the evidence because the victim may have rolled through the stop sign or may have had a trace amount of alcohol in her system. According to Smith, his conduct in (1) driving while impaired at nearly three times the state limit, (2) driving over twice the posted speed limit of 25 m.p.h. in a residential neighborhood, and (3) failing to stop, yield, or even recognize the four-way
{6} A claim of insufficient evidence raises the question whether the evidence is legally sufficient to support the verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. In reviewing a sufficiency challenge, “[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. When reviewing a claim challenging the manifest weight of the evidence, the court, reviewing the entire record, must weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. Thompkins.
{7} Generally in Ohio, another‘s potential contribution to the death or injury of a victim is not a valid defense to criminal conduct unless that contribution was the sole proximate cause of injury or death. State v. Galvin, 8th Dist. Cuyahoga No. 103266, 2016-Ohio-5404, 20. If the defendant‘s criminal action contributes to, in other words, is the proximate cause of, the death or injury, another‘s conduct is irrelevant. Id. There is no contributory negligence analog in criminal law. This alone dooms Smith‘s argument.
{9} Regardless, even if relevant to Smith‘s conviction for causing serious physical harm to another as a proximate result of Smith‘s driving under the influence of alcohol or reckless driving, we note that the only evidence substantiating Smith‘s claim that the victim caused the accident by running the stop sign and by having a trace amount of alcohol detected upon being admitted to the hospital is merely based on conjecture.
{10} One witness, Smith‘s friend who was driving ahead of Smith and was approaching the victim as she drove toward the stop sign from the intersecting direction, claimed that the victim was driving at a reasonable speed as she arrived at the intersection, about 30 m.p.h. in the 25 m.p.h. posted zone, and it “looked like [the victim]
{11} Further, the only evidence of the victim‘s supposed intoxication came after all of her testimony had been completed. Only then were the victim‘s personal and confidential hospital records entered into the public record — 1,200 pages in total, of which only one page was relevant to the defense‘s argument. In those 1,200-some pages, it was noted that the victim‘s serum ethanol level was “notable.” The admission of the victim‘s hospital records in such a fashion was wholly improper. The victim‘s personal and confidential medical records were introduced solely to impeach the victim after she testified to not having any alcohol before the collision, and the records indicated she had a trace amount detected. Evid.R. 616(C) prohibits impeachment proved by extrinsic
{12} Finally, Smith asks us to review his sentences on the aggravated vehicular assault charges as being allied offenses of similar import under the analysis set forth in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. Smith claims that the two counts are of similar import because both were committed with the same conduct. It is true that the conclusion in the lead Johnson opinion was accepted as the black-letter law for a period of time. State v. Miranda, 138 Ohio St.3d 184, 2014-Ohio-451, 5 N.E.3d 603, 8 (noting the Johnson test, which applied
{13} Under
(1) Were the offenses dissimilar in import or significance? (2) Were they committed separately? and (3) Were they committed with separate animus or motivation? An affirmative answer to any of the above will permit separate convictions. The conduct, the animus, and the import must all be considered.
Id. at 31. In addition, “a defendant‘s conduct that constitutes two or more offenses against a single victim can support multiple convictions if the harm that results from each offense is separate and identifiable from the harm of the other offense.” Id. at 26.
{14} Smith was convicted of two counts of aggravated vehicular assault in violation of
{15} All too often there is a knee-jerk reaction to resort to the pendulum of decisions construing
{16} When an offender‘s conduct satisfies alternative means of committing a single offense, the offender can be convicted of only one offense. State v. Brown, 8th Dist. Cuyahoga No. 87651, 2006-Ohio-6267, 50-52. In Brown, the indictment contained two separate counts of aggravated assault: one charged appellant with knowingly causing serious physical harm, and the second charged appellant with knowingly causing or attempting to cause physical harm by means of a deadly weapon or ordnance. Id., citing
{17} The Ohio Supreme Court affirmed. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, at 44. Although the judicial interpretation of
{18} Under
{19} We acknowledge that the aggravated vehicular assault statute punishes the offender for the harm caused to a victim as a proximate result of operating a vehicle while under the influence more severely than simply operating the vehicle recklessly, unlike situations involving the aggravated assault analog for which the commission of the alternative methods does not affect the severity of the punishment. See
{20} In response, the state presented the same argument rejected by the Ohio Supreme Court in Brown. The state claims that the elements of the alternative methods of committing an aggravated vehicular assault could be committed independently of each other because committing one would not necessarily result in the commission of the other. One could drive under the influence of alcohol without being reckless or vice versa. We agree, but as with aggravated vehicular assault, an offender could commit aggravated assault either by causing serious physical harm to another or by causing any physical harm by means of a deadly weapon. Brown at 34. The commission of one would not necessarily result in the commission of the other — serious physical harm could be caused without a deadly weapon. Id. We reject the state‘s argument that the commission of an alternative method of committing the offense can be punished separately if the alternative can independently occur. Ruff did not alter the holding from Brown.
{21} It should be noted our conclusion does not impact situations involving multiple offenses. “When the conduct supports more than one offense * * * a court must conduct the analysis of allied offenses of similar import to determine whether the offenses merge or whether the defendant may be convicted of separate offenses” under
{22} In this case, there was only one victim. See, e.g., State v. O‘Neill, 6th Dist. Wood No. WD-10-029, 2011-Ohio-5688, 35 (separate punishments were permissible for each victim); State v. Watkins, 1st Dist. Hamilton No. C-120567, 2013-Ohio-4222 (driving a vehicle into a single collision, which resulted in the death of one person and in serious physical harm to two others, is separately punishable because it involves separate victims). There also was only a single underlying incident: the collision Smith caused.
{23} The legislature unambiguously manifested its intent to punish Smith for one offense by providing alternative means of commission in the definition of the crime for which he was found guilty. Accordingly, the judicial interpretation of
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s convictions having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for resentencing.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
EILEEN T. GALLAGHER, P.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR