In Re Vermaaten ( 1996 )

Being unable to agree with the majority, I respectfully dissent.

The majority concludes that defendant's conviction of vehicular homicide is not supported by sufficient evidence and is against the manifest weight of the evidence.

R.C. 2903.07(A) defines the offense of "vehicular homicide" as follows:

"No person, while operating or participating in the operation of a motor vehicle, motorcycle, snowmobile, locomotive, watercraft, or aircraft, shall negligently cause the death of another or the unlawful termination of another's pregnancy."

Under R.C. 2901.22, "criminal negligence" is defined as follows:

"(D) A person acts negligently when, because of asubstantial lapse from due care, he fails to perceive or avoid a risk that his conduct may cause a certain result or may be of a certain nature. A person is negligent with respect to circumstances when, because of a substantial lapse from due care, he fails to perceive or avoid a risk that such circumstances may exist." (Emphasis added.)

In this case, the prosecution presented evidence that defendant's vehicle struck the rear portion of the stump grinder while traveling north on Buenos Aires Boulevard. The investigating officer testified that Buenos Aires Boulevard has a width of thirty-five feet from curb to curb in the area where this accident occurred. Other testimony in the record indicates that the victim's pickup truck was legally parked near the curb on the right side of the road; there were no obstructions to defendant's view of the road or of the truck and stump grinder; there was no oncoming traffic; and the weather conditions that day were "perfect," "sunny," and "clear." The evidence establishes that defendant's vehicle could have safely passed the victim's truck without crossing or even touching the double yellow line.

Scott Field, the passenger in defendant's automobile at the time of the accident, testified that he went to sleep around 1:00 or 2:00 a.m., but he could not say whether defendant fell asleep at that time. Field stated that he slept in the front passenger seat of defendant's Pontiac Grand Am and defendant slept in the front driver's seat. Field awoke at approximately 7:30 a.m. on the morning of the accident. Moments later, defendant started his vehicle and headed towards the home of a friend. Field testified that he went back to sleep at that time and was still asleep when the accident occurred.

In State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, the Supreme Court of Ohio held:

"An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The 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. (Jackson v. Virginia [1979], 443 U.S. 307,99 S.Ct. 2781, 61 L.Ed.2d 560, followed.)" Id. at paragraph two of the syllabus.

Defendant elected not to testify in this case, his passenger was asleep at the time of the accident, and the victim was killed. Consequently, there is no direct evidence of what defendant was doing in the moments before the accident. However, the absence of direct evidence does not necessarily preclude the prosecution from proving its case. Indeed, in Jenks, supra, the Supreme Court of Ohio made the following observations regarding the value of circumstantial evidence in a criminal case:

"Circumstantial evidence and direct evidence inherently possess the same probative value and therefore should be subjected to the same standard of proof. When the state relies on circumstantial evidence to prove an essential element of the offense charged, there is no need for such evidence to be irreconcilable with any reasonable theory of innocence in order to support a conviction. Therefore, where the jury is properly and adequately instructed as to the standards for reasonable doubt a special instruction as to circumstantial evidence is not required. (Holland v. United States [1954], 348 U.S. 121,75 S.Ct. 127, 99 L.Ed. 150, followed; State v. Kulig [1974],37 Ohio St.2d 157, 66 O.O.2d 351, 309 N.E.2d 897, overruled.)"Id. at paragraph one of the syllabus.

In light of the Jenks standard, I find that the evidence in the record permits the following inferences: (1) defendant fell asleep at the wheel and lost control of the vehicle, or (2) through carelessness or inattentiveness, defendant inexplicable allowed his vehicle to strike a clearly visible, legally parked vehicle.

Even the majority is willing to concede that falling asleep at the wheel is a substantial lapse of due care. Moreover, defendant admits that the evidence supports a finding that the victim's death was a direct and proximate result of his lapse from due care. Under R.C. 2903.07(A), "the determination of whether or not a lapse of due care is substantial is a question for the trier of facts." State v. Ovens (1974), 44 Ohio App.2d 428,432, 73 O.O.2d 540, 542, 339 N.E.2d 853, 856. Consequently, even if the evidence of defendant's lack of sleep be disregarded, defendant's admitted lapse from due care raises a factual issue regarding the degree of defendant's culpability. Given the lack of any evidence of circumstances which would justify or excuse defendant's failure to maintain control of his vehicle, it is my determination that a trier of fact could find, beyond a reasonable doubt, that defendant departed substantially from due care.

With regard to the manifest weight of the evidence, appellate courts' function in reviewing a claim that a conviction is against the manifest weight of the evidence is to 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 overturned. State v. Banks (1992), 78 Ohio App.3d 206,604 N.E.2d 219; State v. Stith (June 11, 1996), Franklin App. No. 95APA07-934, unreported, 1996 WL 325473.

The issue is whether the trial court lost its way in determining that defendant was criminally negligent. As stated above, the evidence presented by the prosecution of the conditions which existed at the time of this accident and the circumstances under which this accident occurred is sufficient to support a finding of criminal negligence beyond a reasonable doubt. This evidence is not in dispute. Thus, the verdict in this case should not be set aside as being against the manifest weight of the evidence. Jenks, supra. I would overrule defendant's first assignment of error.

Given my decision with respect to defendant's first assignment of error, I must now address the remaining two assignments of error.

In defendant's second assignment of error, defendant contends that the trial court erred in permitting the investigating officer to testify as to the point of impact. However, defendant's counsel did not timely object to this testimony and has waived this error. Moreover, the Supreme Court of Ohio has stated, in dicta, that a police officer trained in accident investigation may render an expert opinion on the point of impact in a case involving an automobile accident. Scott v.Yates (1994), 71 Ohio St.3d 219, 643 N.E.2d 105. Thus, I would overrule defendant's second assignment of error.

In defendant's third assignment of error, defendant contends that the trial court erred in admitting a statement made by defendant to the investigating officer shortly after the accident occurred. Although the trial court admitted defendant's statement over defendant's objection, the trial court expressly stated that it did not rely on that statement in support of its decision. Consequently, I perceive no prejudice to defendant arising from the admission of that statement. I would, therefore, overrule defendant's third assignment of error.

In short, I would overrule each of defendant's assignments of error and affirm the judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch.