State v. Godfrey ( 2014 )

[Cite as State v. Godfrey, 2014-Ohio-5392.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
WYANDOT COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 16-14-03
v.
YUL T. GODFREY,
OPINION
DEFENDANT-APPELLANT.
Appeal from Upper Sandusky Municipal Court
Trial Court No. CRB 10-00454 B
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
Date of Decision: December 8, 2014
APPEARANCES:
Jerome Phillips for Appellant
Richard A. Grafmiller for Appellee
Case No. 16-14-03
SHAW, J.
{¶1} Defendant-appellant Yul T. Godfrey (“Godfrey”) appeals the March
11, 2014, judgment of the Upper Sandusky Municipal Court finding Godfrey
guilty of Vehicular Manslaughter in violation of R.C. 2903.06, a second degree
misdemeanor, and sentencing Godfrey to pay a fine and serve 90 days in jail with
all 90 days suspended.
{¶2} The facts relevant to this appeal are as follows. On November 19,
2010, Godfrey was turning his semi-truck and trailer left onto State Route 15, a
four lane divided highway. A 2004 Chevrolet Tahoe driven by Juliana Karmann
(“Karmann”) was traveling northwest on State Route 15 at that time. While
traveling through the crossover to make his left turn onto State Route 15,
Godfrey’s trailer did not fully clear the lane Karmann was driving in and
Karmann’s vehicle struck Godfrey’s trailer behind the rear wheels. Karmann’s
vehicle then traveled through the median and struck another vehicle and some
trees before stopping. As a result of the accident, Karmann was killed and her
three passengers were injured.
{¶3} On November 22, 2010, Godfrey was charged with Vehicular
Homicide, a first degree misdemeanor in violation of R.C. 2903.06, Vehicular
Manslaughter, a second degree misdemeanor in violation of R.C. 2903.06, and
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Failure to Yield, a minor misdemeanor in violation of R.C. 4511.43. Godfrey
entered pleas of not guilty to all charges.
{¶4} On January 5, 2012, a bench trial was held before the Upper Sandusky
Municipal Court. At trial the State presented the testimony of the coroner,
witnesses to various parts of the accident, and the investigating officer. Godfrey
then presented the testimony of multiple experts, specifically accident
reconstructionists, challenging whether Karmann’s vehicle was in the lawful use
of the roadway at the time of the accident.
{¶5} Ultimately, after the parties presented their evidence, Godfrey was
acquitted of the Vehicular Homicide charge; however, he was found guilty of the
remaining two charges, Failure to Yield and Vehicular Manslaughter. Sentencing
was set for a later date.
{¶6} On January 18, 2012, Godfrey filed a motion for a new trial. A
hearing was held on the motion on March 26, 2012, and the trial court ultimately
overruled the motion.
{¶7} On May 2, 2012, the trial court sentenced Godfrey to ninety days in
jail, with all 90 days suspended, a $750 fine, and court costs of $219 for the
Vehicular Manslaughter and a $75 fine and court costs of $551.97 for the
conviction on the Failure to Yield charge.
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{¶8} Godfrey subsequently appealed his convictions to this court arguing,
inter alia, that the trial court erred by not applying the correct legal standard to
determine if Karmann’s vehicle was traveling at a reasonable rate of speed, and
that the trial court erred by allowing private attorneys to participate on behalf of
the prosecution during criminal proceedings. See State v. Godfrey, 3d Dist.
Wyandot Nos. 16-12-06, 16-12-07, 2013-Ohio-3396. A majority opinion from
this court reversed and remanded Godfrey’s convictions, holding that the trial
court had to separately determine “whether Karmann was operating her vehicle in
a lawful manner so that she maintained the right of way at the time of the
accident” and then make a separate and specific finding on this issue.1 Godfrey at
¶ 11 (Shaw, J. dissenting).
{¶9} On January 9, 2014, following this Court’s remand, the trial court
issued a journal entry entering findings of fact and conclusions of law in
accordance with the direction of this Court. (Doc. No. 41). In that entry, the trial
court analyzed the testimony related to decedent Karmann’s speed, weighed the
credibility of the evidence and determined beyond a reasonable doubt that she was
“operating her vehicle at a speed within the average range [of] accepted travel on a
divided four lane highway.” (Id.) The Court thus found “beyond a reasonable
doubt that [Godfrey] failed to yield to oncoming traffic of Decedent in violation of
1
The majority also found error in allowing the participation of a civil attorney in the criminal proceedings.
The remaining three assignments of error were found to be moot.
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ORC 4511.43A * * * resulting in the death of * * * Karman in violation of ORC
2903.06 Vehicular Manslaughter.” (Id.)
{¶10} On January 24, 2014, Godfrey filed a “Motion for Reconsideration”
arguing that the trial court’s entry “was made without providing the defendant
with an opportunity to be heard or present evidence on the issue.” (Doc. No. 42).
{¶11} On January 24, 2014, the trial court denied Godfrey’s “Motion for
Reconsideration” stating that “extensive evidence was heard during the
defendant’s trial,” and “[f]urther, the Court heard additional arguments on
defendant’s request for new trial March 26, 2012.” (Doc. No. 43).
{¶12} After the court denied his Motion for Reconsideration, Godfrey
appealed the judgment against him to this Court. On March 4, 2014, this Court
dismissed Godfrey’s appeal as the trial court’s January 9, 2014 entry did not
contain both a finding of guilt and a sentence, rendering the entry not a final
appealable order.
{¶13} On March 11, 2014, the trial court filed a judgment entry finding that
Godfrey Failed to Yield to Oncoming Traffic in violation of R.C. 4511.43(A),
resulting in the death of Karmann in violation of R.C. 2903.06, Vehicular
Manslaughter. (Doc. 48). The trial court’s entry also reimposed its previously
ordered sentence from May 12, 2012. (Id.)
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{¶14} It is from this judgment that Godfrey appeals, asserting the following
assignments of error for our review.
ASSIGNMENT OF ERROR 1
THE TRIAL COURT ERRED IN DENYING APPELLANT’S
MOTION FOR A NEW TRIAL.
ASSIGNMENT OF ERROR 2
APPELLANT’S CONVICTION WAS BASED UPON
INSUFFICIENT EVIDENCE AND WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
ASSIGNMENT OF ERROR 3
THE TRIAL COURT ERRED BY NOT HOLDING AN
EVIDENTIARY HEARING AS IT IGNORED STIPULATED
EVIDENCE IN MAKING ITS FINDINGS OF FACTS UPON
REMAND.
{¶15} For the sake of clarity, we elect to address the assignments of error
out of the order in which they were raised.
Second Assignment of Error
{¶16} In his second assignment of error, Godfrey contends that there was
insufficient evidence to convict him, and that his convictions were against the
manifest weight of the evidence. Specifically, Godfrey argues that the Electronic
Data Recorder, or “black box,” indicated Karmann was traveling at 95 mph five
seconds prior to the accident, that this speed was unreasonable, and that Karmann
therefore was not in lawful use of the roadway and lost her right-of-way.
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{¶17} When an appellate court reviews a record for sufficiency, 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. State v. Monroe, 105 Ohio St. 3d
384, 2005–Ohio–2282, ¶ 47, citing State v. Jenks, 61 Ohio St. 3d 259 (1991),
superseded by state constitutional amendment on other grounds as stated in State
v. Smith, 80 Ohio St. 3d 89 (1997). Sufficiency is a test of adequacy, and the
question of whether evidence is sufficient to sustain a verdict is one of law. State
v. Thompkins, 78 Ohio St. 3d 380, 386 (1997).
{¶18} The Ohio Supreme Court has “carefully distinguished the terms
‘sufficiency’ and ‘weight’ in criminal cases, declaring that ‘manifest weight’ and
‘legal sufficiency’ are ‘both quantitatively and qualitatively different.’” Eastley v.
Volkman, 132 Ohio St. 3d 328, 2012–Ohio–2179, ¶ 10, quoting State v. Thompkins,
78 Ohio St. 3d 380 (1997), paragraph two of the syllabus.
{¶19} Unlike our review of the sufficiency of the evidence, an appellate
court's function when reviewing the weight of the evidence is to determine
whether the greater amount of credible evidence supports the verdict. Volkman,
supra, at ¶ 12; Thompkins, supra, at 387. In doing so, this Court must review the
entire record, weigh the evidence and all of the reasonable inferences, consider the
credibility of witnesses, and determine whether in resolving conflicts in the
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evidence, the factfinder “clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial
ordered.” Thompkins, 78 Ohio St. 3d at 387.
{¶20} In this case, Godfrey was convicted of Failure to Yield in violation of
R.C. 4511.44(A), which reads
(A) The operator of a vehicle * * * about to enter or cross a
highway from any place other than another roadway shall yield
the right of way to all traffic approaching on the roadway to be
entered or crossed.
Godfrey was also convicted of Vehicular Manslaughter in violation of R.C.
2903.06(A)(4), which reads
(A) No person, while operating * * * a motor vehicle * * *
shall cause the death of another * * * in any of the following
ways:
***
(4) As the proximate result of committing a violation of any
provision of any section contained in Title XLV of the Revised
Code that is a minor misdemeanor * * * [.]
{¶21} In order to prove that Godfrey committed the charged offenses, the
State called four witnesses at trial. The first witness the State called was Dr.
Joseph Sberna. Dr. Sberna testified that he was called to the scene of the accident
and determined that the victim, Karmann, had died of blunt force trauma from a
vehicular accident. (Tr. at 16).
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{¶22} The State next called Larry Neuenschwander who testified that at the
time of the accident he was driving with his wife toward Columbus (the opposite
direction of Karmann) in the right-most lane when he saw an SUV coming at him
from across the grassy area separating the four lane highway. Neuenschwander
testified that he saw something protruding from the SUV, and tried to swerve to
his right to avoid it, but his vehicle was struck. (Tr. at 28-29). Neuenschwander
testified that after his vehicle was struck, he got out of his vehicle and talked to
one of the girls that had been in the SUV, who informed Neuenschwander that the
driver of the SUV was not responding. (Tr. at 30). Neuenschwander testified that
he then had his wife call 9-1-1. (Id.)
{¶23} The State next called Bennett Clark Osantowski who was a student at
Denison University along with Karmann. Osantowski testified that Karmann was
driving him and two other classmates, Ashley Maiorana and Maddie Sanders, back
home for Thanksgiving break. (Tr. at 33). Osantowski testified that Karmann was
driving and he was behind her in the backseat, that Ashley was in the front seat
and Maddie was behind her, to Osantowski’s right. (Id.) Osantowski testified that
he was familiar with Karmann’s SUV because he drove one himself and his
parents had owned one all his life. (Tr. at 33-34). Osantowski also testified that
he had made the trip with Karman two or three times previously and that on their
previous trips he had no concern with her driving or speeding. (Tr. at 39-41).
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{¶24} Osantowski testified that about ten minutes before the accident he
had started to watch a movie on his laptop. (Tr. at 34). Osantowski testified that
he remembered the girls screaming, and he looked up and saw the trailer of a
semi-truck in front of them. (Id.) Osantowski testified that they were in the left
lane of travel at the time. (Id. at 35). Osantowski testified that they had been in
the left lane for a while and that the roads were “quite empty.” (Id.) Osantowski
testified that after he saw the truck trailer, he believed he was knocked out, and he
did not remember anything for about 15 or 20 minutes. (Tr. at 35-36).
{¶25} As to Karmann’s speed, Osantowski testified that “nothing seemed
unusual. I think I would have recognized if we were speeding. And everything
felt normal.” (Tr. at 36). When asked to clarify as to why he would have
recognized a change in Karmann’s speed Osantowski testified: “Because I have
been in a bigger truck and I know what the speed feels like, and I know what the
speed feels like, and I know if we were going in excess of 80 or 90 miles an hour.”
(Tr. at 36).
{¶26} Osantowski did testify, however, that he never looked at the
speedometer. (Id.) He testified he didn’t remember hearing brakes but he did
remember swerving to the right when he saw the semi-truck. (Tr .at 38). He
testified that he did not notice them passing any other vehicles on the highway
prior to the accident. (Id.)
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{¶27} The State next called Trooper Gary L. Griffeth of the State Highway
Patrol. Trooper Griffeth testified that he was called to the scene of the accident
and investigated the crash scene. (Tr. at 48). Trooper Griffeth testified to
interviewing multiple witnesses and to compiling a report containing the
witnesses’ statements, which was stipulated by the parties as admissible. Trooper
Griffith testified that he interviewed Karmann’s passenger Madison Sanders by
phone. Madison Sanders indicated that Karmann’s vehicle was traveling at
“highways speeds it didn’t seem too slow or too fast.” (Tr. at 58); (State’s Ex. E).
Sanders also told Trooper Griffeth that she saw the semi as it was crossing in front
of them to make its left turn. (Id.); (Id.). Sanders stated that the semi “sped up in
a hurry to get across when we hit him.” (Id. at 59) (Id.). Sanders also stated that
they had not stopped anywhere as they were traveling. (Id.); (Id.).
{¶28} Trooper Griffeth testified that he also obtained the statement of Kyle
Loomis who was driving westbound on State Route 15 in the same direction as
Karmann’s vehicle. Loomis wrote a statement stating in part that he was traveling
about 66 mph roughly a quarter of a mile away when he first saw the semi, and
that it was “moving into the crossover” when he saw the semi “bounce” indicative
of the collision. (Tr. at 60-61); (State’s Ex. E). Loomis stated that prior to the
collision he was not passed by any vehicles going at a high rate of speed. (Tr. at
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61); (Id.). Loomis stated that he was driving in the left lane, similar to Karmann,
and that no one passed him even on the right side. (Tr. at 62); (Id.).
{¶29} Trooper Griffeth testified that he checked MapQuest to determine
“the movement of [Karmann’s] vehicle from * * * Denison University to [the
location of the crash].” (Tr. at 70-71). Trooper Griffeth testified that he used
MapQuest and determined that based on the phone call Karmann made to her
parents when she left Denison, “the crash took place exactly when it should have,”
indicating that Karmann had perhaps not been speeding as indicated by the EDR.
(Tr. at 71).
{¶30} In addition, Trooper Griffeth testified that the “crossover” Godfrey
was using to turn left onto State Route 15 was 50 feet at its widest, and that
Godfrey’s vehicle was between 61 to 65 feet in length from front bumper to rear
door. (Tr. at 65). Trooper Griffeth testified that ultimately Godfrey “failed to
yield the right-of-way, entering roadway without sufficient time to complete the
maneuver without causing another vehicle to slow, stop, or otherwise adjust its
speed to avoid [Godfrey]’s actions crossing the westbound lanes of State Route
15.” (Tr .at 72).
{¶31} On cross-examination Trooper Griffeth testified that Godfrey was
charged the night of the accident, before Trooper Griffeth had done all of his tests
and before he had the results of the “black box” for Karmann’s SUV. (Tr. at 75-
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76). Trooper Griffeth testified that Sergeant Kinn downloaded the “black box”
information and that according to the black box Karmann was traveling 95 mph
five seconds prior to impact. (Tr. at 78-79). Trooper Griffeth testified that the
speed limit on State Route 15 was 65 mph and that 95 mph would not be a
reasonable speed at night at that intersection. (Tr. at 79). Trooper Griffeth further
testified that he would have cited Karmann for speeding if he had clocked her
driving 95 mph, but that he would not have charged her for reckless operation.
(Tr. at 79).
{¶32} Trooper Griffeth testified that when he had the “black box” data he
reconsidered filing charges against Godfrey, and that he would not have filed them
the night of the incident if he had all of the information. (Tr. at 88). However,
Trooper Griffeth testified on re-direct that he ultimately still would have filed
charges against Godfrey for Failure to Yield even after having the black box data.
(Tr. at 113-114). Trooper Griffeth testified that it was Godfrey’s burden to yield,
that it was his responsibility to decide when to move, and to decide the speed of
the Karmann vehicle before attempting to turn left. (Tr. at 112). Trooper Griffeth
testified that Godfrey did not consider all of those things. (Tr. at 113).
{¶33} After Trooper Griffeth completed his testimony, the State rested its
case and Godfrey made a Criminal Rule 29 motion for acquittal. The trial court
overruled this motion.
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{¶34} Godfrey then presented his case-in-chief, first calling Richard Ruth,
an engineer/accident reconstructionist who specialized in Event Data Recorders or
the “black box.” Ruth testified that
[t]he event data recorder is part of the airbag control module
typically and in this vehicle, it is. The idea is that if there is a
severe accident that someone may want to understand how did
that accident occur. [sic] * * * It * * * has a small memory chip.
Within that memory, it writes down before a crash happens. It
writes down how fast you were going, whether you’re on the
accelerator pedal or the brake, and the RPM’s of the engine for
five seconds at one-second intervals prior to the crash.
(Tr. at 125-26).
{¶35} Ruth testified that Sergeant Christopher Kinn read the data and that
Ruth obtained a copy of Sergeant Kinn’s report. Ruth testified that five seconds
prior to impact the EDR indicated Karmann’s vehicle was traveling at 95 mph, at
four seconds still 95 mph, at three seconds the brake had been applied and the
vehicle was traveling 83 mph, at two seconds 83 mph, and at the second prior to
impact Karmann’s vehicle was traveling 66 mph. (Tr. at 127-128). Ruth testified
that in his opinion if Karmann had been traveling 65 mph she would have been
able to avoid the collision. (Tr. at 131).
{¶36} Ruth also testified that the EDR recorded two events, “one when the
airbag deployed and another one about a second later. It reported a second time,
presumably we don’t know exactly what triggered that second event * * *. We
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ended up getting two sets of data which overlap. And basically other than the fact
they were one second apart, they agreed and supposed [sic] one another? [sic]”
(Tr. at 133-134).
{¶37} On cross-examination Ruth testified that in his opinion, if Godfrey
had started sooner his truck may have been clear of the roadway and the collision
may not have occurred. (Tr. at 136).
{¶38} Godfrey next called Sergeant Kinn to testify. Sergeant Kinn testified
that he was called to the scene of the accident as an accident reconstructionist and
that he took measurements at the scene. (Tr. at 150). Sergeant Kinn testified that
he downloaded the information contained in the black box a few days after the
incident. (Tr. at 151). Sergeant Kinn testified that the black box “showed the
speed to be 95 miles per hour on the Tahoe” and that he considered that speed
excessive and unreasonable under the conditions. (Tr. at 151-152). Sergeant Kinn
also testified he would have not filed charges against Godfrey, that instead he
would have referred the incident to the prosecutor’s office. (Tr. at 156). On cross-
examination, Sergeant Kinn clarified, stating “in situations that aren’t clear-cut,
we rely on the guidance of the local prosecutor to determine if charges would be
filed or not.” (Id.)
{¶39} Further on cross-examination, Sergeant Kinn testified that very few
people go 65 mph on the highway. (Tr. at 161). He also testified that the average
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vehicle’s speed in a 65 mph zone is between 70 and 75 mph. (Id.). In addition,
Sergeant Kinn testified that due to the size of the semi-truck and trailer Godfrey
could not get into the paved crossover without blocking some of the traffic on the
roadway. (Tr. at 169).
{¶40} Godfrey next called Fredrick Greive, a traffic reconstructionist and
former member of the highway patrol. Greive testified that he considered the
crash report generated by the highway patrol, the accident reports, and the EDR
download and concluded that the speed of Karmann’s vehicle caused the accident.
(Tr. at 176).
{¶41} On cross-examination Greive testified that at the time of the accident
the rear portion of Godfrey’s trailer was “in the vicinity of the center line, maybe
slightly across the center line” of the side of the divided highway Karmann was
driving on. (Tr. at 184). Greive also testified that both Godfrey and Karmann had
a responsibility to make sure there was no accident in that Godfrey had to “make
sure he can clear the intersection” and Karmann had to “be driving within the
speed limit.” (Tr. at 189)
{¶42} Godfrey took the stand himself as the last witness at trial. Godfrey
testified that he looked both ways and saw a vehicle “way down the street” and
decided “[t]here’s enough time to make it across.” (Tr. at 194). Godfrey testified
that he “looked to [his] left twice” before he proceeded to cross, and on the second
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look he still thought he had enough time to make it. (Tr. at 203). He testified that
once he started moving he never stopped his vehicle as he was moving across the
lanes of traffic, but that he was possibly blocking the northbound lanes of State
Route 15 at the time of the collision. (Tr. at 196).
{¶43} After Godfrey testified he rested his case. Godfrey then renewed his
Criminal Rule 29 motion for acquittal and that motion was denied. The parties
then gave closing arguments. Following closing arguments, the court conducted
the following analysis:
[W]here I see some fault here, the accident on the other side of
the road with the van that got clipped by the victim’s vehicle or
parts thereof, immediately happened, and it happened within a
split second when she careened across the median and hit the
van. That, plus the one statement in the report, is that the
defendant clearly misjudged the fact he could clear the
northbound lane and safely get on the southbound lane. He was
seen by the motorists substantially a quarter-of-a-mile or so
behind the victim’s car, saw the truck and saw it bounce. So
what he saw of the truck was when it was still in the roadway.
And even in the reconstructionist’s testimony indicates that the
back of the trailer was still in the driving northbound lane in
part. * * *
You got hung up, couldn’t finish making your turn. * * * I
understand the difficulty of an 18-wheeler when you have to
wait, and wait, and wait for both lanes. * * *
So it is the opinion of the Court that you did fail to yield the
right-of-way and I so will find you guilty. It is also the opinion
of this Court based on the testimony and evidence that you are
guilty of vehicular manslaughter and I will so find.
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(Tr. at 222-223).
{¶44} As noted earlier, this Court subsequently held that these findings
were incomplete, and that the trial court was required to separately determine
whether Karmann was operating her vehicle in a lawful manner so that she
maintained the right of way at the time of the accident. On remand the trial court
then issued new findings of fact, reasoning as follows with regard to Karmann’s
speed.
Exhibit 2 was presented and prepared by Richard Ruth and
stated his method of evaluation as to whether the ED[R] was in
proper working order. This was accomplished primarily by
checking if any vehicle modification such as tires, equipment
modifications were made to the vehicle and using published test
data. The decedent’s vehicle was a 2004 Chevy Tahoe. It is
noteworthy that during Ruth’s in court testimony the EDR
recorded two events at the time of the crash; (1) when the air
bag in the Tahoe deployed and (2) another one second later for
which he did not have an explanation for. It is further
noteworthy that given the electronic and mechanical design of
the EDR there is no way to periodically verify its accuracy as
there is with alcohol breath testing devices, radar and laser
speed measuring devices. Defendant’s expert testimony and
exhibits as well as Frederick Greives accident reconstruction
report, places most of their opinions on the EDR speed readings.
Sgt. Kinn’s testimony again trusted the EDR. Courts regularly
require calibration checks of radar, laser, BAC verification be
accomplished regularly and are required before being
acceptable as evidence. This Court is not convinced that the
decedent was traveling at the speed so indicated as there is
evidence indicating otherwise.
Trooper Griffeth interviewed Kyle Loomis * * * [who] was
traveling at 66 m.p.h. behind the decedent’s vehicle. Mr. Loomis
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had been traveling the same route as decedent from Delaware,
Ohio along State Route 23 to US Route 15 where the accident
happened without any stops en route. The decedent’s vehicle
had not passed Mr. Loomis.
Tpr. Gary Griffeth used map quest to verify travel time using
the time of occupants phone call to a parent when leaving
Dennison [sic] University to the location and time of the
accident. The trooper indicated decedent was traveling at
normal traffic speed according to map quest.
Catherine Maiorana was a front seat passenger in decedent’s
vehicle. She stated that while she did not see the speedometer,
she believed the decedent was traveling 65-70 m.p.h. * * * She
further testified that it was the decedent’s habit to drive in the
left lane on 4 lane roads. Sgt. Kinn stated that at impact, the
defendant’s trailer completely blocked the left northbound lane
and may have blocked part of the right northbound lane as
being slightly to the right of the lane center line.
* * * This Court finds beyond a reasonable doubt that Decedent
[Karmann] was operating her vehicle at a speed within the
average range accepted travel on a divided four lane roadway.
(Doc. 41). The court thus found Godfrey guilty of Failure to Yield and Vehicular
Manslaughter.
{¶45} On appeal, Godfrey challenges the trial court’s finding regarding
Karmann’s speed. Godfrey argues that the EDR/black box conclusively
established Karmann was going 95 mph five seconds prior to the accident and that
such speed was unreasonable. Although Godfrey first argues that there was
insufficient evidence to convict him, his argument seems to be focused more on
the trial court’s decision being against the weight of the evidence, as there was
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clearly testimony and information contained in the exhibits indicating that
Karmann’s vehicle was not traveling 95 mph as indicated by the EDR. There was
also certainly testimony that Godfrey did not clear the roadway in time, that his
semi-truck trailer partially blocked Karmann’s lane of travel at the time of the
accident, and that he sped up at the last second. Godfrey’s own expert testified
that Godfrey had a duty to make sure he could clear the space in time. Therefore,
Godfrey’s argument that there was insufficient evidence to convict him is not
well-taken.
{¶46} Turning to Godfrey’s argument that his convictions were against the
weight of the evidence, Godfrey relies on the EDR indicating Karmann’s speed to
be 95 mph.2 The trial court specifically addressed the testimony countering the
EDR’s reading, and specifically addressed the reasons the trial court decided not
to rely on the EDR. The testimony highlighted by the trial court was contained in
the record and did indicate that the EDR could possibly have been incorrect. The
statement of Kyle Loomis is particularly telling given that he was merely a
bystander driving behind Karmann’s vehicle. Loomis indicated he had been
2
Godfrey argues in another assignment of error that the State had actually stipulated to Karmann’s vehicle
traveling 95 mph. However, despite Godfrey’s contention, there is no indication that the State ever
stipulated to this as a fact rather than merely stipulating to the admissibility of the documents containing the
findings proposed as facts by Godfrey. In fact, the majority of the testimony the State presented challenged
whether Karmann was driving 95 mph, clearly indicating a lack of agreement on this point. Moreover, if
we were to accept Godfrey’s contention that the parties stipulated to the truth of all the statements
contained in the stipulated reports, there would be conflicting “truths” as to the speed of Karmann’s
vehicle.
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driving in the left lane prior to the accident and had not been passed anytime
recently on the left or the right. Loomis indicated he was only driving about 66
mph. Moreover, there was no basis in the record for giving conclusive weight to
the defense experts’ interpretations in that we note none of those experts
independently examined the EDR itself but rather merely relied upon the Ohio
State Highway Patrol’s download of the EDR’s data.
{¶47} When considering all of the testimony in the record, and the specific
testimony cited by the trial court after remand, we cannot find that the trial court,
acting as factfinder, clearly lost its way or created a manifest miscarriage of
justice. Accordingly, we cannot find that there was insufficient evidence to
convict Godfrey of Failure to Yield or Vehicular Manslaughter or that his
convictions were against the manifest weight of the evidence. Therefore,
Godfrey’s second assignment of error is overruled.
Third Assignment of Error
{¶48} In Godfrey’s third assignment of error, he contends that the trial
court erred by not holding a hearing upon remand from this Court before entering
its findings of fact and conclusions of law. Specifically, Godfrey contends that the
trial court should have held a hearing before “disregarding the stipulated
evidence.”
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{¶49} In the original appeal, this Court specifically remanded the case for
the trial court to weigh the evidence already presented at trial and make a factual
determination. This is precisely what the trial court did. No further hearing was
necessary based on this Court’s specific instructions on remand. Accordingly, we
cannot find that the trial court erred by not holding a hearing before making the
finding it was directed to make by this court.
{¶50} Therefore, Godfrey’s third assignment of error is overruled.
First Assignment of Error
{¶51} In Godfrey’s first assignment of error, he argues that the trial court
erred by not granting Godfrey’s motion for a new trial that had been made after his
trial was originally completed but prior to his original appeal.
{¶52} Based on the original appeal, this Court reversed and remanded the
trial court’s decision, determining that the trial court had not made a required
finding regarding Karmann’s speed. We thus held that Godfrey’s trial was not
complete until the finding was made. Therefore, any motion for a new trial that
Godfrey had made after the original trial—prior to the original appeal—would
have had to have been refiled after the trial was rendered complete. Godfrey did
not file a second motion for a new trial following the trial court entering its final
judgment in this case. Accordingly, Godfrey’s argument pertaining to an earlier,
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irrelevant new trial motion is not well-taken and his first assignment of error is
overruled.
{¶53} However, we would note that with respect to Godfrey’s sentence, it
does not appear that the trial court held a new sentencing hearing after Godfrey
was found guilty upon remand. From the trial court’s final judgment entry, it
appears the court simply reimposed its earlier sentence without holding a hearing.
{¶54} A defendant has a fundamental right to be present at all critical
stages of his criminal trial. State v. Salyers, 5th Dist. Ashland No. 04COA60,
2005-Ohio-972, ¶ 8, citing State v. Hill, 73 Ohio St. 3d 433, 444, 1995-Ohio-287,
citing, Crim.R. 43(A) and Section 10, Article I, Ohio Constitution. The United
States Supreme Court has stated that an accused is guaranteed the right to be
present at all stages of criminal proceedings that are critical to its outcome when
his or her absence may frustrate the fairness of the proceedings. Kentucky v.
Stincer, 482 U.S. 730, 745 (1987).
{¶55} Pursuant to Criminal Rule 43(A), Godfrey could waive his presence
at sentencing in a misdemeanor case, but there is no indication in the record before
us that he did actually waive his presence at the sentencing hearing. Therefore,
according to the record before us, we find that sentencing Godfrey in absentia
upon remand was improper.
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{¶56} Accordingly, Godfrey’s first, second, and third assignments of error
are overruled and the judgment of the trial court is affirmed on these issues;
however, the sentence is reversed and the case is remanded for the limited purpose
of resentencing Godfrey.
Judgment Affirmed in Part,
Reversed in Part and
Cause Remanded
WILLAMOWSKI, P.J., concurs in Judgment Only.
/jlr
ROGERS, J. Dissenting.
{¶57} I must respectfully dissent from the opinion of the majority, and
would find that the decision of the trial court is not supported by sufficient
evidence and, in the alternative, is against the manifest weight of the evidence. I
will discuss each in turn.
Sufficiency of the Evidence
{¶58} “It is axiomatic that the State has the burden to prove every element
of an offense beyond a reasonable doubt.” State v. Jones, 91 Ohio St. 3d 335, 347
(2001). This burden cannot be shifted to the defendant. State v. Sparks, 3d Dist.
Union No. 14-01-03, 2001 WL 929374, *3 (Aug. 16, 2001). For failure to yield,
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the State must prove, as an element of the offense, that the victim’s car had the
right of way. State v. Brooks, 4th Dist. Meigs No. 359, 1985 WL 8313, *4 (Aug.
27, 1985); see also Beers v. Wills, 172 Ohio St. 569 (1962), paragraph two of the
syllabus. “The law gives to the operator of the vehicle upon the highway a shield,
an absolute right to proceed uninterruptedly. He forfeits the shield if he fails to
proceed in a lawful manner.” Beers at 571. Where evidence is presented that the
victim’s vehicle was traveling at speeds above the posted limit, it creates a
presumption that it was proceeding in an unlawful manner, which can be rebutted
by evidence showing that the speed was reasonable for the conditions. State v.
Legg, 5th Dist. Licking No. 04 CA 63, 2005-Ohio-2376, ¶ 15.
{¶59} At trial, Godfrey presented ample evidence creating the presumption
that Karmann was traveling above the posted limit. As this court previously
noted: “Given all the testimony presented to the trial court, the issue of Karmann’s
speed was clearly raised by Godfrey at trial. Thus, the trial court had an obligation
to determine whether Karmann was traveling at a reasonable speed for the
conditions.” State v. Godfrey, 3d Dist. Wyandot Nos. 16-12-06, 16-12-07, 2013-
Ohio-3396, ¶ 11 ( hereinafter, “Godfrey I”). In its ruling on remand, the trial court
found that a speed between 70 and 75 miles per hour would be reasonable for the
conditions as per Sergeant Kinn’s testimony. Therefore, for Godfrey to be found
guilty, there must be sufficient evidence that Karmann’s speed was within that
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range. None of the witnesses provided evidence that Karmann’s speed was within
this range.
{¶60} While Kyle Loomis stated that he was traveling at 66 miles per hour
at the time of the accident, he never gave any indication of Karmann’s speed in
relationship to his own. See State v. Jarosz, 11th Dist. Portage No. 2013-P-0050,
2013-Ohio-5839, ¶ 19 (officer could not establish speed of motorist when he could
not establish he kept an even pace with vehicle). Without this information, the
testimony about his own speed is not an indication of Karmann’s speed. Trooper
Griffeth’s MapQuest testimony also does not establish Karmann’s speed, as he did
not testify that he verified the MapQuest route with the passengers. While the
crash report contains some information as to the route Karmann took that evening,
the MapQuest route was not entered on the record to allow this court to
independently verify that it was the same as the route taken by Karmann. Without
any ability to verify the route, it cannot be used to determine Karmann’s speed.
Also, Trooper Griffeth based his conclusion on a starting time from the Denison
campus that was not verified. Further, although Catherine Maiorana stated to
Trooper Griffeth that Karmann was traveling between 65 and 75 miles per hour on
average, when he asked her directly “how fast was [Karmann] driving just prior to
the accident” she responded “I don’t know.” Trial Tr., State’s Exhibit C, p. 3.
When asked again “What speed were you doing?” she answered “I don’t know.”
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Id. at p. 4. Therefore, her statement cannot support the finding that Karmann was
traveling between 65 and 70 miles per hour immediately before the crash, when
she stated that she did not know what speed they were traveling at the moment of
impact.
{¶61} There is no evidence in the record that Karmann was traveling within
the range that the trial court determined was reasonable for the conditions.
Therefore, Godfrey’s conviction is not supported by sufficient evidence.
Manifest Weight of the Evidence
{¶62} Where a defendant is convicted in a trial by jury, an appellate court
must be unanimous to reverse the decision based upon the manifest weight of the
evidence. State v. Thompkins, 78 Ohio St. 3d 380, 389 (1997). However, “[w]here
a trial is not to a jury, a majority of the Court of Appeals may reverse a judgment
on the manifest weight of the evidence.” State v. Gilkerson, 1 Ohio St. 2d 103, 104
(1965); State v. Hill, 7th Dist. Mahoning No. 09-MA-202, 2011-Ohio-6217, ¶ 49.
Assuming, arguendo that the evidence discussed above was sufficient to find that
Karmann was traveling at a speed reasonable for the conditions, such a finding is
against the manifest weight of the evidence.
{¶63} The trial court based its decision that Karmann was traveling at a
reasonable rate of speed for the conditions on Loomis’ statement, Maiorana’s
statement, and Trooper Griffeth’s MapQuest testimony. None of this evidence
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should be afforded substantial weight. The statements of Loomis and Maiorana
were hearsay, as they were contained in the crash report. Neither testified at trial.
{¶64} Further, when Loomis was asked whether he saw the accident or just
the bounce caused by the crash, he answered “Just the bounce.” Trial Tr., State’s
Exhibit E (“Crash Report”), p. 29. When asked whether there were vehicles
between his car and the accident, he replied “No, I don’t think there were.” Id. at
p. 30. When asked “Did you see a vehicle ahead of you prior to observing the
bounce?” he replied “No.” Id. The only indication we have that Loomis was
following Karmann was his statement that no one had passed him. He may have
been following her for some time without noticing her, or she may have passed
him immediately before the crash without him noticing. One must be true, as the
accident occurred in front of him and he never saw her car until it happened. His
inability to perceive a vehicle either passing him or driving in front of him limits
the reliability of his testimony, as it relates to her speed.
{¶65} Further, even if the trial court inferred that Loomis was following
Karmann’s car from his statement that no one had passed him, nothing in his
statement indicated whether she was pulling away, staying on pace with his speed,
or going slower. Loomis neither stated what he thought her speed was, nor gave
any indication as to how fast or slow she was moving in relation to his own
vehicle. While he stated that he was traveling 66 miles per hour, we have no idea
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how fast Karmann was going in relation to that speed. To reach the conclusion
that Karmann’s speed matched that of Loomis, the court must infer that Loomis
had been behind Karmann for a period of time, and assume she had not recently
passed him. To draw the conclusion that her speed matched his, the court must
infer that because she was in front of Loomis for a period of time, she was going
his same speed. This is an inference built upon an inference, and as such not
evidence of Karmann’s speed. State v. Cowans, 87 Ohio St. 3d 68, 78 (1999).
{¶66} As to Maiorana’s statement, she not only indicated that she did not
know Karmann’s speed at the time of impact, but that she was dozing off just prior
to the accident. This explains why she did not see the semi until immediately
before the crash and did not know the speed Karmann was traveling. While
Maiorana speculated as to Karmann’s average speed, the fact that she could not
remember the actual speed at the point of the impact, coupled with her dozing off
until right before the accident, renders her statement unreliable.
{¶67} As to Trooper Griffeth’s MapQuest testimony, even if the accident
occurred exactly where it should have according to the MapQuest route, and that
route is in fact the route taken by Karmann that evening, it is only evidence of
Karmann’s average speed. Madison Sanders, another passenger in the vehicle,
provided a statement that was included in the crash report, where she indicated
that “Traffic was heavy stop and go at first but it did not last long.” Crash Report,
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p. 26. Trooper Griffeth did not indicate how this was factored into his MapQuest
calculations, even though it would have an impact on the average speed.
{¶68} Further, Trooper Griffeth testified that the start time for his
calculations was based upon a phone call from Karmann to her father. His crash
report, however, states that the start time was based upon a “cell phone text
message sent by [Karmann] to her Mother * * *.” (Emphasis added) Crash
Report, p. 16. There is no indication in the record as to how Trooper Griffeth
determined that a text message occurred at the beginning of the journey. Instead,
the crash report contains the statement made by Sanders, who told Trooper
Griffeth that Karmann “did call her dad as we drove leaving the campus.”
(Emphasis added). Id. at p. 22. She was the only passenger to state that Karmann
used her phone at the start of the journey. Therefore, the start time for the
MapQuest calculation in the crash report is not consistent with the statement
Sanders provided, and is further not consistent with Trooper Griffeth’s testimony
at trial.
{¶69} We cannot assume that Karmann’s phone call to her father as stated
by Sanders was the same as the text message to her mother that Trooper Griffeth
used to determine the start time. If both a call and a text message were sent from
Karmann at different times, using the wrong communication could impact how
long the car would have been on the road and change the average. There is no
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indication that this calculation was performed twice, once with a text message and
once with a phone call, and Trooper Griffeth provided no testimony to clarify why
he used a text message instead of a phone call for the start time in the crash report.
Further, Sanders did not state when the phone call was made which could
independently verify the start time. Instead, Trooper Griffeth must have relied on
an outside piece of information to make this determination. Whatever Trooper
Griffeth relied on is not in the record. Without this information or any testimony
by Trooper Griffeth to clear up these inconsistencies, the trial court could not
know whether Trooper Griffeth used the correct communication, and therefore
cannot determine that he used the correct start time.
{¶70} Where Loomis’s statement requires inference upon inference,
accepting the MapQuest testimony as evidence of Karmann’s speed requires
assumption built on assumption. We must assume Trooper Griffeth used the right
route, assume that he factored in the traffic, and assume that he used the right
communication to the right person to obtain the right start time. Trooper Griffeth
provided no testimony regarding any of these variables, and there is no other
evidence in the record to allow this court to independently verify his methodology.
As a result, the testimony regarding MapQuest is completely unreliable in even
determining Karman’s average speed. The trial court inferred that Karmann was
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traveling her average speed at the time of the crash. Because the MapQuest
testimony cannot provide that average speed, it cannot support the inference.3
{¶71} As to the evidence that Karmann was traveling at an unreasonable
rate of speed:
Godfrey presented substantial evidence that Karmann was traveling
above the posted speed limit. In Defendant’s Exhibit 2, the expert
explained how the Event Data Recorder (“EDR”) worked, stated that
he had verified its accuracy and how that was done, stated that it was
working at the time of the accident and that the readings were valid.
The statement then goes on to state that the recorded traveling speed
of 95 mph was valid for this accident. In Defendant’s Exhibit 4, the
expert stated that had the Karmann vehicle been traveling at a
reasonable speed, the accident would not have occurred. Larry
Neuenschwander, whose vehicle was struck by Karmann’s vehicle
after it struck the trailer, testified that he observed Karmann’s
vehicle crossing the median and coming at him at a fast rate. Tr. 25-
29.
Ohio State Trooper Gary Griffeth testified that based on the physical
evidence at the scene, the speed stated by the black box was reliable.
Tr. 92. He also testified that even without the numbers presented by
the black box, the physical evidence indicated that Karmann was
traveling well above the posted speed. Tr. 93. He concluded that
Karmann’s speed was a significant factor in the accident. Tr. 98.
Godfrey presented the testimony of Sergeant Christopher Kinn
(“Kinn”) who is a trained accident reconstructionist. He testified that
Karmann's speed was unreasonable. Tr. 151-52. He further testified
that if Karmann’s vehicle had been going within five or ten miles
over the posted speed limit, the accident would not have occurred.
Tr. 154. Finally Kinn testified that he not only regularly relies upon
EDR’s for information, but that the physical evidence at the scene,
3
I find it curious that the trial court found that the EDR data was suspect because it was not independently
verified, when it accepted the MapQuest route without having the route offered into evidence and without
anything in the record that would verify its results.
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Case No. 16-14-03
such as the damage to the vehicles and the distance Karmann’s
vehicle traveled post-impact, supports the validity of the numbers
provided by the EDR in this case. Tr. 170.
Finally, Godfrey presented the testimony of Frederick Greive
(“Greive”), an accident reconstructionist. He testified that he had
reviewed the EDR data, photographs of the vehicles, the police
reports, the scene, and the vehicles themselves. Tr. 174-75. Based
upon all the evidence he had before him, Grieve determined that the
cause of the accident was the speed of Karmann’s Chevrolet Tahoe.
Tr. 176. Grieve also testified that all of the physical evidence
supported the data from the EDR as to the speed of Karmann’s
vehicle. Tr. 179. He, like Kinn, based his conclusion on the amount
of damage done to the vehicles and the distance that the Karmann
vehicle traveled post-impact. Tr. 179.
Godfrey I, 2013-Ohio-3396, ¶ 7-10.
{¶72} As this court has previously found, there is evidence that Karmann
was traveling at an unreasonable rate of speed independent of the EDR data.
Further, the reliability of the EDR data was never in dispute at trial, as it was the
State, through Sergeant Kinn, who downloaded it as part of his investigation. If
EDR data was inherently unreliable, Sergeant Kinn would not have utilized it in
his own determinations. Further, Trooper Griffeth testified that Karmann was
traveling at 95 miles per hour, based upon Sergeant Kinn’s investigation. Indeed,
the crash report stated: “Preliminary results are well above the posted limit. Exact
speed will be supplemented upon review by crash Re-Constructionists.” Crash
Report, p. 16. The reliance by the State’s own investigators on the EDR data
provides it substantial weight. Indeed, the State did not question the validity of the
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EDR data at trial, and instead argued that Karmann’s speed was irrelevant. As we
indicated in Godfrey I, that is not an accurate statement of law.
{¶73} As the weight of the evidence indicates that Karmann was traveling
at an unreasonable rate of speed for the conditions, and there is no reliable
evidence to the contrary, I believe that the trial court clearly lost its way when it
found beyond a reasonable doubt that Karmann had the right of way at the time of
the accident.
{¶74} Accordingly, I would sustain Godfrey’s second assignment of error.
/jlr
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