State v. Wright , 2014 Ohio 985 ( 2014 )


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  • [Cite as State v. Wright, 
    2014-Ohio-985
    .]
    IN THE COURT OF APPEALS
    TWELFTH APPELLATE DISTRICT OF OHIO
    BUTLER COUNTY
    STATE OF OHIO,                                    :
    CASE NO. CA2012-08-152
    Plaintiff-Appellee,                       :
    OPINION
    :             3/17/2014
    - vs -
    :
    RANDALLA C. WRIGHT,                               :
    Defendant-Appellant.                      :
    CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
    Case No. CR2011-10-1705
    Michael T. Gmoser, Butler County Prosecuting Attorney, Michael A. Oster, Jr., Government
    Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee
    Marshall G. Lachman, 75 North Pioneer Boulevard, Springboro, Ohio 45066, for defendant-
    appellant
    S. POWELL, J.
    {¶ 1} Defendant-appellant, Randalla C. Wright, appeals from her conviction in the
    Butler County Court of Common Pleas for one count of aggravated vehicular homicide. For
    the reasons discussed below, we affirm.
    {¶ 2} On the afternoon of September 2, 2011, appellant took her mother's vehicle
    and drove to meet her daughter's school bus. The bus had not yet arrived, so appellant
    Butler CA2012-08-152
    parked on Michelle Drive near the stop sign at the intersection with Merry Day Drive.
    Appellant did not have permission to be driving her mother's vehicle, and her driver's license
    had been suspended since February of that year.
    {¶ 3} While appellant was waiting she observed the arrival of Mary Long and her
    three small children, who played nearby while also waiting for the bus. When the bus arrived,
    it turned right onto Michelle Drive from Merry Way Drive and made a full stop directly across
    the street from where appellant had parked. Once the bus stopped, appellant exited her
    vehicle and went across the street to retrieve her daughter. When she returned, appellant
    placed her daughter in the back seat of her vehicle and noticed that Long's children
    continued to play nearby. Appellant then got back into her vehicle and, while the bus was still
    stopped directly across the street with its warning signals activated, proceeded to turn right
    onto Merry Day Drive. In so doing, it is undisputed that appellant struck Long's youngest
    child, B.B., causing a critical cranial injury that led to B.B.'s death.
    {¶ 4} On October 19, 2011, appellant was indicted on one count of aggravated
    vehicular homicide in violation of R.C. 2903.06(A)(2), a second-degree felony. Appellant
    waived a jury trial, and a bench trial began on June 27, 2012. At the close of the state's
    case, appellant moved for acquittal under Crim.R. 29(A) on the grounds that the state's
    evidence was insufficient to show the element of recklessness. The motion was overruled.
    Thereafter, at the conclusion of all evidence, the trial court found appellant guilty, and
    sentenced her to four years in prison. Appellant now appeals from her conviction, raising the
    following two assignments of error for review.
    {¶ 5} Assignment of Error No. 1:
    {¶ 6} THE TRIAL COURT ERRED BY OVERRULING APPELLANT'S MOTION FOR
    ACQUITTAL SINCE THE STATE FAILED TO SUPPLY SUFFICIENT EVIDENCE AS TO ALL
    THE ELEMENTS NECESSARY TO SUPPORT THE CHARGE OF AGGRAVATED
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    Butler CA2012-08-152
    VEHICULAR HOMICIDE AGAINST THE APPELLANT.
    {¶ 7} Assignment of Error No. 2:
    {¶ 8} THE TRIAL COURT'S VERDICT OF GUILTY ON THE CHARGE OF
    AGGRAVATED VEHICULAR HOMICIDE WAS AGAINST THE MANIFEST WEIGHT OF
    THE EVIDENCE.
    {¶ 9} Under her first and second assignments of error, appellant argues the state
    failed to supply sufficient evidence to support the charge of aggravated vehicular homicide,
    and that her conviction was against the manifest weight of the evidence. We disagree.
    {¶ 10} At the outset, we note that "[t]he legal concepts of sufficiency of the evidence
    and weight of the evidence are both quantitatively and qualitatively different." State v.
    Thompkins, 
    78 Ohio St.3d 380
    , 386, 
    1997-Ohio-52
    . On one hand, a challenge to the
    sufficiency of the evidence requires an appellate court to determine whether the state has
    presented evidence that would allow any rational trier of fact to find the essential elements of
    the crime proven beyond a reasonable doubt. State v. Saunders, 12th Dist. Fayette No.
    CA2012-03-006, 
    2013-Ohio-2052
    , ¶ 23, citing State v. Stringer, 12th Dist. Butler No.
    CA2012-04-095, 
    2013-Ohio-988
    , ¶ 27. On the other hand, a manifest weight challenge
    examines the inclination of the greater amount of credible evidence, offered at a trial, to
    support one side of the issue rather than the other. Id. at ¶ 24, citing Stringer at ¶ 28.
    {¶ 11} Yet, though the two concepts are different, they are nonetheless related. It is
    well established that finding a conviction is supported by the manifest weight of the evidence
    is also dispositive of the issue of sufficiency. State v. Jones, 12th Dist. Butler No. CA2012-
    03-049, 
    2013-Ohio-150
    , ¶ 19, citing State v. Church, 12th Dist. Butler No. CA2011-04-070,
    
    2012-Ohio-3877
    , ¶ 10. Therefore, in examining her two assignments of error, we first
    examine whether appellant's conviction for aggravated vehicular homicide under R.C.
    2903.06(A)(2) is supported by the manifest weight of the evidence.
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    Butler CA2012-08-152
    {¶ 12} To determine whether a conviction is against the manifest weight of the
    evidence, an appellate court reviews the entire record, weighs the evidence and all
    reasonable inferences, considers the credibility of witnesses and determines 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. State v. Allison, 12th
    Dist. Warren No. CA2011-03-025, 
    2012-Ohio-1126
    , ¶ 8, citing State v. Cummings, 12th Dist.
    Butler No. CA2006-09-224, 
    2007-Ohio-4970
    , ¶ 12. When reviewing a bench trial, an
    appellate court will not reverse a conviction "where the trial court could reasonably conclude
    from substantial evidence that the state has proven the offense beyond a reasonable doubt."
    Jones at ¶ 18, citing State v. Godby, 12th Dist. Butler No. CA2005-03-056, 
    2006-Ohio-205
    , ¶
    4; State v. Eskridge, 
    38 Ohio St.3d 56
    , 59 (1988).
    {¶ 13} Evidentiary issues "are primarily matters for the trier of fact to decide since the
    trier of fact is in the best position to judge the credibility of the witnesses and the weight to be
    given the evidence." Allison at ¶ 9, quoting State v. Hernandez, 12th Dist. Warren No.
    CA2010-10-098, 
    2011-Ohio-3765
    , ¶ 26. Thus, an appellate court may overturn a conviction
    due to the manifest weight of the evidence only in extraordinary circumstances to correct a
    manifest miscarriage of justice, and only when the evidence presented at trial weighs heavily
    in favor of acquittal. 
    Id.,
     citing Thompkins at 387.
    {¶ 14} In order to prove aggravated vehicular homicide in violation of R.C.
    2903.06(A)(2), the state was required to prove beyond a reasonable doubt that while
    appellant was operating a motor vehicle, she recklessly caused the death of another. As
    noted above, appellant does not dispute the fact that while she was operating a motor vehicle
    she caused the death of another. Rather, appellant's exclusive challenge is to the trial court's
    finding of recklessness.
    {¶ 15} According to R.C. 2901.22(C):
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    Butler CA2012-08-152
    [a] person acts recklessly when, with heedless indifference to the
    consequences, [s]he perversely disregards a known risk that
    [her] conduct is likely to cause a certain result or is likely to be of
    a certain nature. A person is reckless with respect to
    circumstances when, with heedless indifference to the
    consequences, [s]he perversely disregards a known risk that
    such circumstances are likely to exist.
    A "risk" is "a significant possibility, as contrasted with a remote possibility, that a certain result
    may occur or that certain circumstances may exist." R.C. 2901.01(A)(7).
    {¶ 16} At trial, the state presented several eye witnesses who observed appellant's
    vehicle parked on Michelle Drive just short of the intersection with Merry Day Drive, directly
    across the street from where the school bus was stopped. The state also introduced video
    footage from the surveillance cameras in a nearby trailer park that showed the bus had its
    warning signals activated at the time of the incident. Although the footage does not include
    an image of appellant's vehicle striking B.B., the cameras did capture the reactions of the
    children on the bus, which make clear that the incident occurred directly across the street
    from where the bus was stopped. This was corroborated by additional video footage from
    cameras on the bus that captured images of Long frantically seeking help for her critically
    injured child. Based upon this evidence, the trial court could reasonably conclude that
    appellant's decision to drive through this "zone of safety" was a perverse disregard of a
    known risk. See, e.g., State v. Wolffram, 
    62 Ohio App.3d 749
    , 751-52 (12th Dist.1989)
    (noting that R.C. 4511.75 requires vehicles to maintain a "zone of safety" when a school bus
    is receiving or discharging students mainly because children are unpredictable).
    {¶ 17} In addition, appellant testified she had a brief conversation with Long prior to
    the arrival of the school bus, and that she witnessed Long's daughter and B.B. in a tug-of-war
    over a doll near the street. She also admitted that she told a police officer after the incident
    that she had previously seen Long grab B.B. to prevent him from stepping into the road in
    front of a moving vehicle. Furthermore, appellant testified that just before the incident she
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    Butler CA2012-08-152
    had seen Long cross the street to talk to the bus driver, she knew Long's small children were
    unattended, and that she had seen the children near her vehicle just before pulling away.
    Here, too, the trial court could reasonably have concluded from the evidence that appellant's
    decision to drive away despite the proximity of small, unattended children was a perverse
    disregard of a known risk.
    {¶ 18} Finally, to the extent that appellant may have attempted to rebut evidence
    pointing to a mental state of recklessness, we cannot say that the trial court lost its way in
    finding her testimony to be self-serving and inconsistent. See, e.g., State v. Dipman, 6th
    Dist. Lucas No. L-05-1327, 
    2007-Ohio-2143
    , ¶ 19 (noting the fact-finder could have
    discounted appellant's testimony, credited the testimony of others, and concluded that
    appellant acted recklessly where she struck and killed a child crossing in front of a stopped
    school bus). The state presented valid impeachment evidence, including testimony regarding
    inconsistent statements given to police officers who interviewed her at various times after the
    incident, as well as a recent felony conviction for an offense involving dishonesty.
    {¶ 19} After a thorough review of the record, we cannot say that the trier of fact lost its
    way and created a manifest miscarriage of justice in determining that appellant acted
    recklessly. See generally State v. Allison, 12th Dist. Warren No. CA2011-03-025, 2012-
    Ohio-1126 (overruling a manifest weight challenge to recklessness as an element of
    aggravated vehicular homicide); State v. Gorham, 12th Dist. Butler No. CA2006-08-195,
    
    2007-Ohio-6028
     (overruling a manifest weight challenge to recklessness as an element of
    vehicular assault). Therefore, we find that appellant's conviction for aggravated vehicular
    homicide in violation of R.C. 2903.06(A)(2) was not against the manifest weight of the
    evidence.   As noted above, this finding necessarily includes a finding of sufficiency.
    Accordingly, appellant's two assignments of error are overruled.
    {¶ 20} Judgment affirmed.
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    Butler CA2012-08-152
    HENDRICKSON, P.J., and M. POWELL, J., concur.
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