This matter is before the court on a motion for judgment of acquittal made by the defendant at the close of all the testimony, purusant to Crim. R. 29. The defendant has been indicted by the Cuyahoga County Grand Jury on a one count indictmеnt specifying a violation of R. C. 2903.06, aggravated vehicular homicide. That section provides:
“No person, while operating or participating in the operation of a motor vehicle, motorcycle, snowmobile, locomotive, watercraft, or aircraft, shall recklessly cause the death of another.”
The culpable mental state of recklessly is defined in R. C. 2901.22(C) as being when a person “with heedless indifference tо the consequences***perversely disregards a known risk.”
Aggravated vehicular homicide is a felony of the fourth degree absent a previous conviction of a vehicular homicide offense.
The testimony and exhibits presented at trial showed that on July 15, 1978, the decedent and the defendant had been out drinking together before proceeding home at approximately 1:30 A.M. Enroute home both parties impulsively agreed to hаve a drag race or “pushing it” over a six-pack of
Contemporaneously therewith, the defendant’s car also went on to the grаssy island area but was able to swing back in a northeasterly direction over the entrance ramp striking a snap-away telephone pole that was on the south border about 3/4 the way up the entrance ramр. Damage to the defendant’s car was minimal, and he returned to his home immediately without stopping at the scene of this tragic occurrence.
A short time later the defendant returned to the scene and admitted to police that he was the driver of the vehicle which struck the snap-away telephone pole and further that both he and the decedent had been involved in a drag race immediately prior to the aсcident. Testimony and exhibits indicated that there never was any contact between either of the vehicles before, during or after the drag race.
The question presented herein is whether or not a charge of aggravated vehicular homicide can be sustained against a defendant who is the survivor of a drag race in which the other voluntary participant met his death, absent any contact between the vehicles.
Sinсe the question is before this court on the defendant’s motion for judgment of acquittal, this court is required to construe the evidence most strongly in favor of the state, the party against whom this motion has been directed.
The issue so framed is one of first impression in Ohio.
In Oregon, a conviction for manslaughter based upon similar facts as presented in the instant case was reversed by State v. Petersen (Ore. 1974),
In Petersen, supra, that defendant had agreed with another driver to engage in a drag race. The оther participant’s car was struck by a truck killing a passenger in his car. The appellate court’s dissenting opinion reasoned that the key issue in the case was that of legal or proximate causation. Thаt issue, the dissent contended, turned on the legislative policy behind the statute. The passenger was held to be a participant in the case because he not only knowingly and voluntarily participated but had instigatеd the contest. The dissent continued, stating that “policy considerations are against imposing responsibility for the death of a participant in a race on the surviving racer when his sole contribution to the death is the participation in the activity mutually agreed upon.”
The appellate court’s dissenting opinion reasoned that almost anyone would be surprised and alarmed if a sovereign would prosecute a survivor of an accident on аn automobile race track, even where there is contact made. This logic can be expanded to survivors of boxing matches, race horse ac
The case cited in the Oregon dissenting opinion being most nearly similar to the Oregon Supreme Court’s holding and to the case at bar is Commonwealth v. Root (1961),
In Root, supra, two persons were drag racing on a highway. The defendant’s car was in the lead, the other driver swerved to the left in an effort to overtake the defendant and struck an oncoming truck head on. As in Petersen, supra, the court in Root, supra, found difficulties with the lower court’s analysis of proximate cause аnd distinguished “causation in fact” and “legal causation”. The Supreme Court reasoned that the victim’s own actions constituted independent negligence which superseded the original conduct chargeable to the defendant thereby “insulating” the defendant’s conduct from consideration as a proximate cause of the ensuing death. Additionally, the court held that a stronger concept of proximate cause is required tо sustain a criminal conviction than would be needed to impose civil liability for an act, citing its previous decision in Commonwealth v. Redline (1958),
Indeed, this logic seems not only fair and reasonable, but highlights a fundamental difference between civil аnd criminal law.
The culpable mental state required for a conviction herein is a new concept in the state of Ohio. It has been defined or interpreted as being the reckless causing of the death of anоther as opposed to the reckless operation of a vehicle and, therefore, is, as it should be, distinguishable from the tort law concept. Responsibility for the death is different than an act which provides a causative factor. Simply stated, the tort liability concept of proximate cause carries a lesser burden in a charge of aggravated vehicular homicide thou in proving the same element in a сivil case. Persons civilly culpable for injuries to other parties are expected to pay in that arena of
This same conclusion was reached on similar facts by the Court of Appeals in Thacker v. State (1961),
“ ‘To hold a person criminally responsible for a homicide, his act must have been the proximate cause оf the death as distinguished from the cause of the condition affording an opportunity for the compassing of the death by some other unconnected agency.’ Nelson v. State,58 Ga. App. 243 , 249 (198 S. E. 305 ).”
The only case this court has found which imposed liability оn the survivor of a drag race solely on the basis of that party’s participation is the case of Commonwealth v. Peak (1957), 12 Pa. D. & C. 2d 379, 16 Lawrence L. J. 130. The Court of Appeals therein reasoned that the concerted conduct of the two surviving drаg racers proximately caused the death of the third whose own unlawful conduct did not absolve the defendants.
Notwithstanding Peak, supra, it is the conclusion of this court, that the better view, in regard to the prosecution for a homicide under the circumstances present herein, would be to not impose criminal liability for aggravated vehicular homicide on the survivor of a drag race whose only contribution to the death of the other participant was his own participation in the race. No basis appears to this court for concluding that the legislature intended criminal liability for the death of a participant as opposed to a non-partiсipant, be imposed on the survivor of a drag race as a deterent against drag racing.
Obviously, if the conduct of participants violates another statute or a non-participant was injured, there could be criminal prosecution.
Moreover, even assuming the opposite conclusion on the
Considering all the facts as adduced at the trial, this court, therefore, concludes that the decedent’s actions, not those of the defendant, proximately caused his own death.
For the foregoing reasons, it is the judgment of this court the defendant’s motion for judgment of acquittal should be and hereby is granted.
Defendant discharged.