State v. WestState v. West
Rendered on the 23rd day of April, 2010.
. . . . . . . . .
Mathias H. Heck, Jr., Pros. Attorney; R. Lynn Nothstine, Asst. Pros. Attorney, Atty. Reg. No. 0061560, P.O. Box 972, Dayton, OH 45422
Attorneys for Plaintiff-Appellee
Jon Paul Rion, Atty. Reg. No. 0067020, P.O. Box 10126, 130 W. Second Street, Suite 2150, Dayton, OH 45402
Attorney for Defendant-Appellant
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GRADY, J.:
{¶ 1} Defendant, Madison E. West, appeals from her convictions and sentence for aggravated vehicular assault and operating a motor vehicle whilе under the influence of alcohol.
{¶ 2} At 1:30 a.m. on December 14, 2008, Oakwood police
{¶ 3} Police suspected that Defendant was intoxicated. She was talking loudly, with rambling and slurred speech, and had a strong odor of alcohol about her person. Defendant could not stand and maintain her balance. Out of concern for her safety, police decided to not perform field sobriety tests.
{¶ 4} Defendant was placed under arrest and put in the backseat of a police cruiser. After being advised of her Miranda rights, Defendant madе incriminating statements to police. Defendant was given a breathalyzer test at the Kettering police department which resulted in a reading of .214, nearly three times the legal limit.
{¶ 5} Defendant was indicted on one count of aggravated vehicular assault,
{¶ 6} Defendant timely appealed to this court from her conviction and sentеnce.
FIRST ASSIGNMENT OF ERROR
{¶ 7} “THE TRIAL COURT ERRED BY FAILING TO SUPPRESS STATEMENTS MADE BY APPELLANT WHEN SHE WAS UNABLE TO PROPERLY WAIVE HER MIRANDA RIGHTS.”
{¶ 8} Defendant argues that the trial court erred in failing to suppress her statements to police because she was unable to knowingly and voluntarily waive her Miranda rights due to her level of intoxication.
{¶ 9} The warnings identified in Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, do not apply whenever police question a person. State v. Biros, 78 Ohio St.3d 426, 1997-Ohio-204. Rather, Miranda warnings apply only when a person is subjected to custodial interrogation. Miranda at 478-479; Oregon v. Mathiason (1977), 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714. Miranda defines custodial interrogation as questioning
{¶ 10} In order to determine if a person is in custody for purposes of Miranda, the court must determine whether there was a formal arrest or a restraint of freedom of movement of the degree associated with a formal arrest. California v. Beheler (1983), 463 U.S. 1121, 103 S.Ct. 3517, 77 L.Ed.2d 1275. Roadside questioning of a motorist by police following a traffic accident is typically not considered custodial interrogation. State v. Stafford, 158 Ohio App.3d 509, 2004-Ohio-3893. Interrogation includes express questioning as well as any words or actions on the part of the policе that the police should know are reasonably likely to elicit an incriminating response from the suspect. Rhode Island v. Innis (1980), 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297.
{¶ 11} In State v. Monticue, Miami App. No. 06CA33, 2007-Ohio-4615, at ¶10, this court observed:
{¶ 12} “‘In order for a waiver of the rights required by Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, to be valid, the State bears the burden of demonstrating a knowing, intelligent, voluntary waiver based upon the totality of the facts and circumstances surrounding the interrogation. What is essential
{¶ 13} Prior to being arrested for OVI, Defendant told Officer Wilson that she had caused the collision. Defendant made these statements while she was sitting on the ground outside her damaged vehicle, after Officer Wilson initially approached and questioned her. Although Defendant‘s statement was made in response to Officer Wilson‘s questions, and thus was the product of interrogation, Miranda warnings were not required because Defendant was not in custody at that time.
{¶ 14} Defendant was in custody for purposes of Miranda when she wаs placed under arrest for OVI, handcuffed, and placed in the rear of Officer Wilson‘s cruiser. Before asking any questions, Officer Wilson advised Defendant of her Miranda rights by reading them to her from a pre-interview form. Defendant did not sign a waiver of rights form because she was handcuffed. However, the
{¶ 15} The record does not reflect that Defendant suffered any injury during the accident that impaired her ability to reason and understand her rights or the consequences of waiving them. Officer Wilson did not obsеrve any injuries on Defendant, and she did not exhibit any symptoms of a concussion. Medic crews evaluated Defendant and found no significant injuries. Defendant denied that she was injured and refused medical treatment.
{¶ 16} Defendant argues that she was so intoxicated that she could not make a knowing and intelligent waiver of her Miranda rights. In support of that claim, Defendant points out that she exhibited signs of intoxication, her physical coordination was impaired, and her breathalyzer test produced a result nearly three times the legal limit. Furthermore, Officer Wilson testified that someone that intoxicated probably has impaired decisiоn making skills.
{¶ 17} Defendant clearly exhibited behavior consistent with a person who is intoxicated. Her breathalyzer test result shows that she was highly intoxicated. Nevertheless, this record supports the conclusion that Defendant‘s ability to reason was not so impaired that she was unable to understand her Miranda rights
{¶ 18} In her conversаtion with Officer Wilson, Defendant was very talkative, open, and engaging, and did not refuse to answer any question. Defendant just kept talking, wanting to get out her side of the story. Defendant was not incoherent, disoriented, or losing consciousness or falling asleep inside the cruiser. Furthermore, the evidence does not demоnstrate that Defendant did not understand her circumstances or what was going on, or that she did not respond appropriately to questions Officer Wilson asked. Most importantly, Defendant indicated to Officer Wilson that she understood the rights he read to her and that she was willing to waive them and talk to him. On these facts, there is sufficient evidence to support a determination that Defendant‘s ability to reason was not so impaired by alcohol that she could not knowingly, intelligently and voluntarily waive her Miranda rights. State v. Ecton, Montgomery App. No. 21388, 2006-Ohio-6069; State v. Stewart (1991), 75 Ohio App.3d 141; State v. Lewis (July 21, 1998), Franklin App. No. 97APA09-1263; State v. Stanberry, Lake App. No. 2002-L-028, 2003-Ohio-5700.
{¶ 19} After taking a breathalyzer test at the Kettering Police Department, Defendant was transported back to the Oakwood police station. While completing the portion of his report involving paperwork for the “DUI packet,” Officer Wilson again advised
{¶ 20} Defendant‘s first assignment of error is overruled.
SECOND ASSIGNMENT OF ERROR
{¶ 21} “THE TRIAL COURT ERRED BY NOT DISMISSING APPELLANT‘S CASE AS SHE WAS CHARGED AND CONVICTED UNDER A FAULTY INDICTMENT WHICH FAILED TO ALLEGE AN ESSENTIAL ELEMENT OF THE OFFENSE OF AGGRAVATED VEHICULAR ASSAULT.”
{¶ 22} Relying upon State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624 (Colon I), Defendant argues that the trial court erred in failing to grant her motion to dismiss the aggravated vehicular assault charge because the indictment was fatally defective, to the extent that it failed to include an essential element of that offense, the culpable mental state of recklessness.
{¶ 23} Defendant was convicted of a violation of
{¶ 24} “No person, while operating or participating in the operation of a motor vehicle, motorcycle, snowmobile, locomotive, water craft, or aircraft, shall cause serious physical harm to another person or another‘s unborn in any of the following ways:
{¶ 25} “As the proximate result of committing a violаtion of division (A) of section 4511.19 of the Revised Code or of a substantially equivalent municipal ordinance.”
{¶ 26} We have held that
{¶ 27} Defendant‘s second assignment of error is overruled.
THIRD ASSIGNMENT OF ERROR
{¶ 28} “APPELLANT‘S CONVICTION SHOULD BE REVERSED BECAUSE SHE WAS CONVICTED OF ALLIED OFFENSES OF SIMILAR IMPORT.”
{¶ 29} Defendant argues that she cannot be convicted and
{¶ 30} for both aggravated vehicular assault under
{¶ 31} The State argues that this court is precluded from reviewing this assignment of error because Defendant failed to providе a transcript of the sentencing hearing. We disagree. The termination entry in this case that was filed on July 24, 2009, demonstrates that Defendant was convicted and sentenced for both aggravated vehicular assault and operating a motor vehicle under the influence of alcohol. Defendant‘s allied offenses argument presents an issue of law, and the grounds upon which she bases that argument are contained in the termination entry. Thus, the record before us is sufficient to permit review of the error Defendant assigns.
{¶ 32} In Ohio, the vehicle for determining application of the Double Jeopardy Clause to the issue of multiple punishments is
{¶ 33} “(A) 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.
{¶ 34} “(B) Where the defendant‘s conduct constitutes two or more оffenses 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.”
{¶ 35} “A two-step аnalysis is required to determine whether two crimes are allied offenses of similar import. E.g. State v. Blankenship (1988), 38 Ohio St.3d 116, 117, 526 N.E.2d 816; Rance, 85 Ohio St.3d at 636, 710 N.E.2d 699. Recently, in State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, we stated: ‘In determining whether offenses are allied offenses of similar import under
{¶ 36} Defendant was found guilty of aggravated vehicular assault in violation of
{¶ 37} “No person, while operating or participating in the operation of a motor vehicle, motorcycle, snowmobile, locomotive, water craft, or aircraft, shall cause serious physical harm to another person or another‘s unborn in any of the following ways:
{¶ 38} “As the proximate result of committing a violation of division (A) of sеction 4511.19 of the Revised Code or of a substantially equivalent municipal ordinance.”
{¶ 39} Defendant was also found guilty of operating a motor vehicle under the influence of alcohol in violation of
{¶ 40} “No person shall operate any vehicle, streetcar, or trackless trolley within this state, if, at the time оf the operation, any of the following apply:
{¶ 41} “The person has a concentration of seventeen-hundredths of one gram or more by weight of alcohol per two hundred ten liters of the person‘s breath.”
{¶ 42} The elements of
{¶ 43} Conduct that constitutes the offense of aggravated vehicular assault,
{¶ 44} The State argues that because the OVI statute, R.C.
{¶ 45} While
{¶ 46} The judgment from which the appeal is taken will be affirmed, in part, and reversed, in part, and the cause is remanded for further proceedings consistent with this opinion.
DONOVAN, P.J., and FAIN, J., concur.
Copies mailed to:
R. Lynn Nothstine, Esq.
Jon Paul Rion, Esq.
Hon. Mary Katherine Huffman