State v. Malvasi , 2022 Ohio 4556 ( 2022 )

[Cite as State v. Malvasi, 2022-Ohio-4556.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
MICHAEL MALVASI,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 21 MA 0083
Criminal Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 2018 CR 584
BEFORE:
Carol Ann Robb, Cheryl L. Waite, Judges and Kristy S. Wilkin, Judge of the
Fourth District Court of Appeals, Sitting by Assignment.
JUDGMENT:
Affirmed.
Atty. Paul J. Gains, Mahoning County Prosecutor, Atty. Edward A. Czopur, Assistant
Mahoning County Prosecutor, Mahoning County Prosecutor’s Office, 21 West Boardman
Street, 6th Floor, Youngstown, Ohio 44503 for Plaintiff-Appellee and
Atty. Michael A Partlow, P.O. Box 1562, Stow, Ohio 44224 for Defendant-Appellant.
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Dated: December 14, 2022
Robb, J.
{¶1} Defendant-Appellant Michael Malvasi appeals after being convicted of
multiple offenses in the Mahoning County Common Pleas Court. He raises the following
issues: the admissibility of the accident reconstruction expert’s opinion concluding the
decedent was in the passenger seat at the time of the accident; the applicability of the
state of mind hearsay exception to the testimony of two witnesses who heard the
decedent say Appellant was the best drunk driver he knew (to show how the decedent
intended to get home from the bar); the propriety of a jury instruction on flight; and the
weight of the evidence. For the following reasons, Appellant’s convictions are affirmed.
STATEMENT OF THE CASE
{¶2} On November 18, 2017, just after 2:45 a.m., a white Mercedes crossover
SUV, which was registered to Appellant’s father, failed to negotiate the second portion of
the S-curve heading west on Shields Road (U.S. 62) in Canfield Township. The vehicle
left the road, traveled down an embankment, hit a tree, and then rolled at least two times.
Ryan Lanzo (the decedent) died at the scene from his injuries sustained in the crash. The
state believed he was the front seat passenger and Appellant was the driver.
{¶3} A bystander passed the scene sometime after the crash occurred and called
the police. Before the police arrived, a vehicle arrived at the scene, and the decedent’s
body was retrieved. Appellant’s father eventually transported the decedent’s body to an
Austintown health care center (variously called urgent care or emergency care by
witnesses).
{¶4} On June 7, 2018, Appellant was indicted for the following offenses:
aggravated vehicular homicide (a second-degree felony where the death proximately
resulted from a violation of division (A) of R.C. 4511.19); an alternative vehicular homicide
count (a third-degree felony where the death was caused recklessly); two counts of failure
to stop after an accident (a third-degree felony where the accident resulted in a death and
a second-degree felony where the defendant knew the accident resulted in a death);
tampering with evidence (a third-degree felony); and operating a vehicle under the
influence of alcohol and/or drugs (a first-degree misdemeanor OVI).
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{¶5} The case was tried to a jury in July 2021. The decedent’s friend, Dante,
testified about their night in the hours before the crash. He went to the decedent’s
apartment where he consumed a mixed drink with Appellant, the decedent, and another
friend. (Tr. 257-258). He also observed Appellant and the decedent smoke marijuana.
(Tr. 258-259). Dante was originally planning to drive the group to some bars but decided
he wanted to drink that night. When he mentioned using the services of Uber to reach
the bars, Appellant said not to worry because he would drive. (Tr. 260-261). Dante
testified he felt unsafe in Appellant’s white Mercedes on the way to the bar because
Appellant had the music on the highest volume, drove aggressively, took a turn at a high
speed, and failed to make a complete stop at a traffic signal. (Tr. 262-263).
{¶6} At the first bar (Blue Wolf Tavern), Dante observed Appellant drink a beer;
he then spent his time separate from Appellant (as he had just met him that night). (Tr.
266). The decedent drank Long Island iced tea at the bar. (Tr. 282). Eventually, Dante
walked next door to another bar (Suzie’s Dogs and Drafts).
{¶7} After Appellant arrived at the second bar, Dante saw him have one or two
drinks and a shot. (Tr. 270). Near the end of the night, the decedent learned Dante would
be getting a ride home from his friend Jackie and asked if he could also obtain a ride from
this friend. Dante offered to call the decedent an Uber. (Tr. 270-271).
{¶8} At that point, Appellant said he would be leaving soon and he could take the
decedent home. (Tr. 272). Dante suggested the decedent should decline the ride. The
decedent replied, “don’t worry. Mike’s the best drunk driver I know.” The decedent and
Appellant thereafter walked out of the bar. (Tr. 273).
{¶9} Jackie testified she met Dante at Blue Wolf Tavern at 11:45 p.m. (Tr. 290-
291). She said she only had one glass of wine early in the night and noticed the decedent
consume three drinks at this bar. (Tr. 290, 293). She opined they left Blue Wolf Tavern
for Suzie’s Dogs and Drafts around 1:30 a.m. (Tr. 294). She confirmed the decedent
asked for a ride at the end of the night and Dante offered to call him an Uber. (Tr. 297).
Jackie also heard Appellant offer to drive the decedent home, noting Appellant seemed
in a rush to leave. (Tr. 298-301). After Appellant’s offer, the decedent unsuccessfully
offered to pay people at her table for a ride home. (Tr. 299). She believed this occurred
after the lights came on at last call around 2:30 a.m. (Tr. 301).
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{¶10} A patron at Suzie’s Dogs and Drafts, Lauren, testified she met Appellant on
a prior occasion. When he and the decedent first sat at her table on the night at issue,
Appellant seemed intoxicated. Lauren had shots of Crown Royal with Appellant. By the
end of the night, he seemed “very intoxicated.” (Tr. 318). Lauren was also intoxicated
but said it was not to an extreme level. (Tr. 317). When they all got up to leave, Appellant
fell into a table, which caused a commotion involving Appellant, the patrons at that table,
and security. (Tr. 319). Opining he should not drive, Lauren used Appellant’s phone to
order him an Uber to his address on Timber Run Drive in Canfield. (Tr. 320-321).
{¶11} Lauren’s friend, Macy, testified she watched Appellant drink beer and
multiple shots. (Tr. 350). She described Appellant as acting “blacked-out drunk”; he was
unable to form a sentence, slurred his words, and was unsteady on his feet. (Tr. 346).
Macy said she had one beer at this bar and five beers (or less) during an earlier six-hour
period. (Tr. 347). She was concerned because Appellant drove that night and asked
Lauren to leave with him and the decedent. (Tr. 351). When she voiced her concerns
about Appellant’s intoxicated state and asked the decedent to seek a ride with Dante, the
decedent said Appellant “is the best drunk driver that he knows.” (Tr. 353-355). While
watching a bar surveillance video on the stand, Macy pointed out Lauren using
Appellant’s phone and Appellant falling into a table. (Tr. 364-366).
{¶12} A resident near the scene of the crash testified he fell asleep in his den
while watching television and woke at 2:46 a.m. As he stood up, he saw a vehicle heading
west around the first S-curve and heard it accelerate. As he turned to leave the room, he
heard a lot of noise and then a loud thud. (Tr. 438). He opened the window but could
not see or hear anything, noting the crash site sits lower than the roadway. (Tr. 438-439,
441). This witness went to bed and heard about the crash the next morning.
{¶13} A passerby, who described herself as a designated driver, testified she
noticed tracks leading off the road and a vehicle in a yard. (Tr. 400-401). After she
dropped off her passengers and drove past the scene, she saw a different vehicle parked
in a driveway and legs on the ground near the two open doors on the driver’s side of the
car. (Tr. 403). She stopped at Argus Park and called 911 at 3:12 a.m. (Tr. 403); (St.Ex.
4). She then turned around and drove back past the scene, but the car was no longer in
the driveway. (Tr. 406).
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{¶14} The first responding officer from the sheriff’s department did not notice the
crash when approaching from the west but found it after turning around and approaching
from the east. They found no victims at the scene of the crashed white Mercedes; the
fire department assisted in the search using thermal imaging cameras. (Tr. 382, 385).
{¶15} Because the vehicle was registered to Appellant’s father, police officers
were dispatched to the Malvasi residence on Timber Run Drive in Canfield, where
Appellant lived with his parents. (Tr. 450-451, 854). A Canfield police officer testified he
saw Appellant talking on the phone through the front window while another officer
knocked on the door around 3:45 a.m. Appellant looked at the officer and then walked
away down a hallway. They continued knocking, but the occupants would not come to
the door. The officer thereafter saw Appellant peek down the hall. (Tr. 450-454).
{¶16} At 3:52 a.m., Appellant’s father arrived at a health center in Austintown,
Ohio with the decedent’s body; he was driving a four-door Toyota sedan registered in his
name. (Tr. 540, 841). There were towels and dark stains on the seat; blood was collected
from inside the vehicle and from an object in the trunk. (Tr. 609, 620-621).
{¶17} A stipulation was entered into the record which stated the following:
Appellant’s father was asleep when Appellant woke him; he went outside where the
Toyota used by his son was parked in the driveway; the decedent, who appeared
unconscious, was in the backseat; and the father immediately drove the vehicle alone to
St. Elizabeth’s Emergency Care. (Tr. 504).
{¶18} Surveillance footage recovered from a neighboring house on Timber Run
Drive showed the garage of the Malvasi residence. This video showed the following
events: a car leaving the Malvasi residence at 3:09 a.m.; the car returning at 3:16 a.m.;
the car leaving the residence again at 3:40 a.m.; and headlights in the drive at 3:46 a.m.
(upon the arrival of the Canfield police). (Tr. 587-593). These times were calculated after
the witness found the camera time was four minutes slow. (Tr. 588)
{¶19} A different surveillance video, from the house across from the Malvasi
residence, showed the following events in the street: a subject walking toward the Malvasi
residence from the west (from the direction of the crash) at 3:06 a.m.; a car heading east
(toward the crash) at 3:10 a.m.; a car heading west (toward the house) at 3:16 a.m.; a car
heading east (toward the health center) at 3:41 a.m.; and two Canfield police cruisers
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approaching at 3:45 a.m. (Tr. 579-584). The times were calculated after the witness
found the camera time was five minutes fast. (Tr. 505, 575).
{¶20} A business’s surveillance camera facing the intersection of Shields Road
and Route 46 recorded a figure headed west (from the direction of the crash site toward
Appellant’s residence) at 2:56 a.m. This footage also showed a vehicle headed east at
3:12 a.m., a vehicle headed west at 3:15 a.m., and a vehicle headed east and turning
north (toward Austintown) at 3:42 a.m. (Tr. 699-704). The times were calculated after
the witness found the camera time was one hour and eight minutes fast. (Tr. 696).
{¶21} Not long after the Canfield police officers left the Malvasi residence upon
their unsuccessful attempt to make contact with Appellant, one of the officers returned for
a stakeout to ensure Appellant did not leave. A highway patrol trooper, who spoke to
Appellant’s father at the health center, went to the house after the father called home to
inquire about his son’s condition and injuries. (Tr. 483, 486-487). At 5:45 a.m., the
Canfield police officer knocked on the door accompanied by the trooper. (Tr. 456-457).
{¶22} Appellant’s sister answered the door and let them in the house. Appellant’s
mother and sister used a key to unlock the door to Appellant’s bedroom where he was
sleeping and groaning. (Tr. 459-460, 488). After Appellant complained of side pain, he
was evaluated by an emergency medical technician (EMT) and transported to the
hospital. (Tr. 460). The Canfield police officer heard Appellant tell the EMT he smoked
marijuana and drank three to four beers plus six shots. (Tr. 462).
{¶23} Two hours later, Appellant spoke to a trooper at the hospital. He identified
the decedent and said he had no memory of the crash. He claimed the decedent was
the driver, alleging the decedent started driving from the parking lot at Suzie’s Dogs and
Drafts. (Tr. 846). After a short break in the interview, Appellant said the decedent argued
with him about driving while in the bar’s parking lot. (Tr. 851). He admitted smoking weed
and said his memory was lacking because of all the beer, whiskey, and tequila he drank.
(Tr. 852). The trooper testified it took him seven minutes to drive 3.4 miles to the crash
site from Suzie’s Dogs and Drafts while traveling the speed limit. (Tr. 864). He said the
drive from the crash site to Appellant’s house takes approximately two minutes. (Tr. 866).
{¶24} The forensic pathologist testified the decedent suffered brain hemorrhaging
of various types, a lacerated blood vessel at the heart, lung contusions, a lacerated liver,
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hemorrhaging in the pleural cavity and abdomen, and fractured ribs and clavicle. (Tr.
518-519). The external injuries were mostly pre-death abrasions. (Tr. 522-523). She
believed he died “seconds to minutes” after receiving the injuries, with five minutes being
the maximum. (Tr. 520).
{¶25} An agent from the Ohio Department of Public Safety testified to his review
of surveillance videos from the two bars (after the bar owners and their contracted
technology representatives testified about providing the videos to law enforcement).
(St.Ex. 152, 153). After viewing BMV photographs of Appellant and the decedent, this
agent spotted them arriving at Blue Wolf Tavern at 11:46 p.m. (Tr. 640-641). At 12:20
a.m., Appellant was seated at the bar. At 1:24 a.m., Appellant and the decedent exited
Blue Wolf Tavern. (Tr. 642). The time on the video was found to be accurate. (Tr. 639).
{¶26} The video from Suzie’s Dogs and Drafts shows a white SUV entering the
parking lot around 1:30 a.m. (calculated after the agent found the camera time was 14
minutes slow). (St.Ex. 153); (Tr. 651). The agent noted he could see the clothing worn
by the driver and passenger as they exited the vehicle and approached the entrance to
the bar. (Tr. 651-658). Macy confirmed the identity of Appellant and the decedent
(including the clothing worn that night) from the video for the agent. (Tr. 349, 359, 664-
665). Jackie identified the two (and their clothing) from still shots taken from the video.
(Tr. 303-304). Appellant can be seen in the bar with the decedent and other witnesses.
{¶27} Just prior to exiting the bar, Appellant stumbled into his own table. While
walking toward the door, he staggered to the side, knocked over a chair, and landed on
a seated male patron while causing the patron’s table to move from its position. The
decedent had to pull him off the patron. The outside video thereafter shows Appellant
and the decedent exit the bar and walk to the white SUV where it can be discerned that
the decedent entered the front passenger side of the vehicle and Appellant entered the
front driver’s side of the vehicle. The agent also testified to this observation. (Tr. 663).
The car drove away at 2:39 a.m.
{¶28} The jury also watched videos Appellant posted to Snapchat earlier in the
night. (St.Ex. 151). The first video clip had a 9:25 p.m. timestamp and showed Appellant
drinking a shot of Crown Royal; the next clip in the sequence showed him do another
shot, spilling some down his chin. Another clip was shot from inside a vehicle stopped at
Case No. 21 MA 0083
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a red light with the camera held at a position near the center armrest, which allowed the
viewer to see the Mercedes emblem on the steering wheel and the vehicle’s clock reading
10:06; the camera then turned to show Appellant singing to the music. (Tr. 713-715).
{¶29} A knit hat with an Arctic Cat logo was found on the driver’s seat of the
wrecked Mercedes. (Tr. 686-687, 900). The still shot taken from the bar video showed
Appellant wearing a knit cap with an emblem on it. (Tr. 900). A phone attributed to the
decedent was found between the driver’s seat and the driver’s door of the Mercedes. (Tr.
594, 613).
{¶30} The accident reconstruction expert testified the crash occurred at the
second 45-degree turn heading west on Shields Road after Argus Park. At the curves,
there were warning signs, an overhead light, and a suggested speed of 25 mph. (Tr.
744). The expert documented three tires marks beginning on the road and leading off the
north side of the road into the grass and down an embankment. He explained the tracks
showed the vehicle did not drive straight off the road at the curve but tried (and failed) to
negotiate the curve. (Tr. 745). He believed the vehicle was traveling at 43 to 45 miles
per hour through the crash site if it was not braking and 60 to 65 miles per hour if it had
the brakes locked, but he did not believe the brakes were locked due to the curvature of
the tire marks. (Tr. 787-788).
{¶31} Ninety feet after the vehicle started through the grass, its right side near the
front corner hit a pine tree (standing 17 to 20 feet in height), shearing the tree off at the
base and uprooting the stump. (Tr. 746, 748). The vehicle then overturned, striking the
ground very hard on its left side and rolling at least twice while in the grass and then
probably again over a gravel driveway. (Tr. 746-747, 797-798, 812). Evidence of the
overturns included missing tire marks, the gouges in the grass, the debris field, and the
condition of the vehicle (including dirt on certain parts of the vehicle and the missing
driver’s side mirror). (Tr. 747, 830). The vehicle landed upright on its wheels on the
other side of the gravel driveway (facing the direction from which it was originally driving
on the road). The expert said the debris field and crash scene spanned roughly 280 feet.
(Tr. 747).
{¶32} The dashboard showed evidence of impacts with the occupants; their denim
pants left imprints, which indicated they were not wearing seatbelts. (Tr. 776). The
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imprint on the driver’s side was under the steering wheel. There was a separate imprint
on the passenger side, which seemed to slide up the dashboard (where the glove
compartment met the console). (Tr.768-769). The expert explained the occupants were
thrown to the left, toward the driver’s side, as the vehicle rolled upside down. (Tr. 797-
798, 801-802, 813).
{¶33} The side airbags were deployed. The driver’s window was missing, but the
expert said an ejection through the driver’s window during the roll was unlikely due to the
door and the deployed side airbag, which had dirt on the outside. (Tr. 749, 798). The
rear window was missing, but a cargo cover was crushed into the space, which blocked
that potential ejection route.
{¶34} The sunroof was expelled from the top of the vehicle, and there was
damage to the left rear sunroof frame. For instance, the fabric around the interior sunroof
corner indicated an impact with and abrasion by an object being ejected through the hole
in the roof. (Tr. 750). The outside of this sunroof corner was free of mud and sod,
suggesting someone was caught between the roof and the grass as the vehicle rolled.
(Tr. 777). One of the injuries running down the decedent’s left leg was angled in a shape
matching the sunroof’s angled support arm. (Tr. 775-777). The spacing between the
injuries at the bottom of the decedent’s leg and pant leg corresponded to the layout of the
sunroof frame. (Tr. 782, 798-799). The expert opined to a reasonable degree of scientific
certainty the decedent had been in the passenger seat and was then thrown to the left
through the sunroof. (Tr. 797).
{¶35} The jury found Appellant guilty as charged with the exception of the second-
degree felony leaving the scene of an accident charge, which was decreased to a third-
degree felony due to a special finding that Appellant did not know the accident resulted
in a death when he left the scene. The court sentenced Appellant to consecutive
sentences of eight years on count one, two years on count three, and two years on count
five, for a total sentence of twelve years. He received a concurrent sentence for the
misdemeanor OVI, and the other two counts were merged. The court imposed three
years of mandatory post-release control and a mandatory lifetime driver’s license
suspension. The within timely appeal followed.
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ASSIGNMENT OF ERROR ONE: EXPERT OPINION
{¶36} Appellant sets forth four assignments of error, the first of which provides:
“THE TRIAL COURT ERRED IN PERMITTING TROOPER CHRISTOPHER
JESTER TO TESTIFY CONCERNING HIS OPINION THAT APPELLANT HAD BEEN
DRIVING THE CAR AT THE TIME OF THE ACCIDENT AND THE DECEDENT HAD
BEEN A PASSENGER IN THE CAR.”
{¶37} Before trial, Appellant filed a motion in limine seeking to preclude the
opinion of the state’s accident reconstruction expert and asking for a pre-trial hearing on
the issue. The expert testified at a hearing on October 16, 2021, and the court overruled
Appellant’s motion. (10/19/20 J.E.). At trial, defense counsel renewed his motion as to
the expert, and the court overruled the motion again. (Tr. 730-731).
{¶38} On appeal, Appellant first contends this witness was not properly qualified
as an expert in accident reconstruction as required by Evid.R. 702(B). He suggests the
witness may have been an expert in accident investigation but lacked sufficient training
or experience in accident reconstruction.
{¶39} A witness who testifies as an expert must be “qualified as an expert by
specialized knowledge, skill, experience, training, or education regarding the subject
matter of the testimony * * *.” Evid.R. 702(B). “Neither special education nor certification
is necessary to confer expert status upon a witness. The individual offered as an expert
need not have complete knowledge of the field in question, as long as the knowledge he
or she possesses will aid the trier of fact in performing its fact-finding function.” State v.
Hartman, 93 Ohio St.3d 274, 285, 754 N.E.2d 1150 (2001). See also State v. Thompson,
141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶ 127 (the witness need not be
the best witness on the subject to be qualified as an expert).
{¶40} The determination of an expert's qualifications to testify on a particular
subject is within the sound discretion of the trial court and reviewable only for an abuse
of discretion. State v. Jones, 90 Ohio St.3d 403, 414, 739 N.E.2d 300 (2000). Under
such standard, the decision is upheld unless it is unreasonable, arbitrary or
unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
{¶41} At the time of the initial hearing, the expert had been a trooper with the Ohio
State Highway Patrol for over 26 years. He was a crime and crash scene reconstructionist
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with almost 1,500 hours in traffic crash and crime scene training. Of those hours, 868
were specific to traffic crashes, including 40 specific to the placement of occupants or
pedestrians during a crash. (Hrg.Tr. 3-5). The expert taught three levels of courses in
crash investigation. (Hrg.Tr. 6). He had previously been qualified to testify as an expert
in accident reconstruction in Columbiana, Mahoning, and Trumbull Counties. (Hrg.Tr. 5-
6).
{¶42} The expert’s CV shows he engaged in low level accident reconstruction
prior to 2004, at which time he trained in crash reconstruction and began serving as an
accident reconstructionist. (St.Ex. 1). He completed over 300 reconstruction cases for
local, state, and federal agencies between 2004 and 2017. He also served as a
reconstruction training officer for new investigators and developed protocols for the
reconstruction unit. His training courses were listed on the CV. At trial, he again reviewed
his qualifications as an expert, noting he was a full-time crash and crime scene
reconstructionist since 2012. (Tr. 734-740).
{¶43} As the state points out, the expert’s qualifications in accident reconstruction
were established to a greater degree than those in a prior case where we found an officer
was properly qualified to testify on accident reconstruction. See State v. Brady, 7th Dist.
Mahoning No. 13 MA 88, 2014-Ohio-5721, ¶ 46 (where a police officer of 20 years was
assigned to the accident investigation unit for 13 years, took a reconstruction course, and
was previously qualified as a reconstruction expert). See also State v. DeWalt, 7th Dist.
Carroll No. 08 CA 852, 2009-Ohio-5283, ¶ 24 (finding a trooper was qualified as an
accident reconstruction expert where he took courses on the subject and previously
testified as an expert on the subject six times).
{¶44} Here, we have an Ohio State Highway Patrol trooper with a quarter century
of accident investigation experience who was trained in reconstruction, worked in the
crash and crime scene reconstruction unit since 2004, was a full-time crash and crime
scene reconstructionist since 2012, completed reconstructions in over 300 cases, and
was previously qualified as an expert in at least three counties. The trial court did not
abuse its discretion in finding the state’s expert was qualified to testify on accident
reconstruction.
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{¶45} Appellant next contends the expert’s reconstruction methods were not
established to be reliable under Evid.R. 702(C) and the principles in Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
Appellant claims there was no proof the results were subject to replication. He points out
the decedent’s location in the vehicle at the time of the crash was a central issue in the
case. In citing case law on expert testimony, he also mentions the testimony must be
relevant and with a probative value that is not outweighed by the risks of unfair prejudice,
confusing the issues, or misleading the jury.
{¶46} An expert's testimony must be based on “reliable scientific, technical, or
other specialized information.” Evid.R. 702(C). If the testimony reports the result of a
procedure, test, or experiment, then it is reliable only if: (1) the theory is objectively
verifiable or validly derived from widely accepted knowledge, facts, or principles; (2) the
design reliably implements the theory; and (3) it was conducted in a way that will yield an
accurate result. Evid.R. 702(C)(1)-(3).
{¶47} In determining whether the opinion of an expert is reliable, the trial court
examines whether the expert's conclusion is based on scientifically valid principles and
methods, not whether the opinion is correct. Miller v. Bike Athletic Co., 80 Ohio St.3d
607, 611-613, 687 N.E.2d 735 (1998) (reversing the trial court’s exclusion of an expert
opinion), citing Daubert, 509 U.S. at 592-593, 595. Factors to consider when evaluating
the reliability of scientific evidence include whether the theory or technique has been
tested and/or subjected to peer review, the potential rate of error, and whether the
methodology is generally accepted. Miller, 80 Ohio St.3d at 611 (the inquiry is flexible),
citing Daubert, 509 U.S. at 593-594.
{¶48} The expert testified the speed calculation is a simple, long-standing concept
taught in basic courses (and is even taught in courses that do not rise to the level of
accident reconstruction). He explained the equation inputs (for the friction factor of the
surface and the distance the vehicle traveled over the surface). (Hrg.Tr. 18). He
additionally mentioned using a 3D laser scan and forensic mapping to record the condition
of the vehicle and the scene; he also took photographs while he evaluated the vehicle at
the scene. (Hrg.Tr. 9, 20-21). The expert explained his knowledge, gained from training
and experience, that ejection from a vehicle likely leaves evidence at the edges of the
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opening, such as the fabric abrasion at the corner of the sunroof. He also explained how
clothing imprint marks are left on a dashboard from an impact during a crash, noting this
is a common occurrence on the inside and outside of vehicles when a person collides
with a vehicle surface at high velocity. (Hrg.Tr. 23-25).
{¶49} The accident reconstruction expert said his methods, techniques,
equations, and tools were generally accepted throughout the world in the field of accident
reconstruction and investigation and were not unique. (Hrg.Tr. 31). Moreover, his report
was subjected to peer review by a supervisor in order to lower the error rate and verify
the conclusions such as the rolling of the vehicle. (Hrg.Tr. 30, 47, 49). At trial, he
reiterated much of his experience and the process utilized. In addition, the evidence he
relied on was viewable by the fact-finder in photographs and in maps he was trained to
make (including the damage to and features of the outside and inside of the vehicle, the
tire marks and gouges in the ground, the debris field, and the damage to the clothing and
skin).
{¶50} Merely because the expert could not say the accident “absolutely” occurred
as he described or could not say a future accident would always happen in this same
manner did not mean the reconstruction opinion was unreliable as to this particular
accident considering all of the circumstances before the expert. Moreover, the
consideration of reproducible results relates to the conclusion of an expert who employs
a test or method for the facts at issue. The final interpretation of all existing data was not
an experiment; nor was it a test in and of itself. We also note the expert voiced his
conclusion to a reasonable degree of scientific certainty. A “reasonable certainty” is
synonymous with “probability” not absolutes. State v. Jackson, 92 Ohio St.3d 436, 751
N.E.2d 946 (2001). In fact, “expert witnesses in criminal cases can testify in terms of
possibility rather than in terms of a reasonable scientific certainty or probability.” State v.
Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 77 (applying the
probability standard only to civil cases is constitutionally sound), citing State v.
D'Ambrosio, 67 Ohio St.3d 185, 616 N.E.2d 909 (1993). Issues with the certainty of the
scientific opinion are matters of sufficiency or weight of the evidence. Id.{¶51} Appellant also briefly complains the expert failed to mention whether the
occupants could have dislodged from their seats before the vehicle impacted the tree or
Case No. 21 MA 0083
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evaluate whether the side airbags could have inadvertently deployed before the impact,
noting there was a front airbag recall based on inadvertent deployment. He also says the
expert failed to consider the tree strike in making certain conclusions, such as on
trajectory. As to the latter argument, we note the trajectory was supported by evidence
such as tracks, ground gouges, debris field, and vehicle condition and position. Also, the
expert explained the general equation was based on friction without accounting for
strikes; it was not some omission on his part. (Hrg.Tr. 41). The other subjects involve
unsupported theories raised by Appellant at trial. These were topics for cross-
examination and for the jury in weighing the evidence. For instance, there is no indication
a front airbag recall (issued for inadvertent deployment of a front airbag) had any relation
to the deployment of the side airbags in this case (where the front airbags were not
deployed). Again, the credibility of the expert and the weight to give his conclusions
remained issues for the trier of fact. Brady, 7th Dist. No. 13 MA 88 at ¶ 45.
{¶52} The trial court reasonably found the expert’s opinion was reliable under
Evid.R. 702(C), and the decision was not arbitrary or unconscionable. Moreover, the
testimony was relevant under Evid.R. 401, and the probative value was not substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading of
the jury under Evid.R. 403(A). In sum, the trial court’s decision to find the trooper was
qualified to testify as an expert in accident reconstruction and to allow him to testify about
the accident and the decedent’s location in the vehicle was not an abuse of discretion.
Accordingly, this assignment of error is overruled.
ASSIGNMENT OF ERROR TWO: HEARSAY
{¶53} Appellant’s second assignment of error alleges:
“THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY PERMITTING
VARIOUS WITNESSES TO TESTIFY THAT THE DECEDENT STATED THAT
APPELLANT WAS THE ‘BEST DRUNK DRIVER’ HE KNEW.”
{¶54} As set forth supra in our Statement of the Case, the decedent asked for a
ride home from people other than Appellant at the end of the night. Dante was getting a
ride home from Jackie, but he offered to summon an Uber for the decedent. At that point,
Appellant said he could transport the decedent and would be leaving soon. Dante
suggested the decedent should decline the ride. The defense unsuccessfully objected
Case No. 21 MA 0083
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when Dante quoted the decedent as follows: “don’t worry, Mike’s the best drunk driver I
know.” The decedent and Appellant thereafter walked out of the bar. (Tr. 270-273).
{¶55} Macy separately voiced her concerns about the decedent’s ride home due
to Appellant’s intoxication. She testified over objection that the decedent told her
Appellant was going to drive them. The court overruled the objection after the state
pointed out it showed the decedent’s intent. The state then asked Macy what gave her
the impression Appellant would be the driver. The court overruled another defense
objection, allowing Macy to testify the decedent told her “[Appellant] is the best drunk
driver that he knows.” (Tr. 353-354).
{¶56} Appellant contends the statement about Appellant being “the best drunk
driver” the decedent knew was inadmissible hearsay. He also claims the prejudicial effect
outweighed the probative value under Evid.R. 403.
{¶57} We begin by pointing out the decedent’s statements to his friends before
leaving the bar were non-testimonial; the primary purpose of the statements was not to
create an out-of-court substitute for trial testimony. See State v. Ash, 7th Dist. Monroe
No. 16 MO 0002, 2018-Ohio-1139, 108 N.E.3d 1115, ¶ 72-75 (victim’s statements to
relatives), citing Ohio v. Clark, 576 U.S. 237, 135 S.Ct. 2173, 2181, 192 L.Ed.2d 306(2015) (a statement cannot fall within the confrontation clause unless its primary purpose
was testimonial); Giles v. California, 554 U.S. 353, 376, 128 S.Ct. 2678, 171 L.Ed.2d 488(2008) (statements to friends not subject to confrontation clause); State v. McKelton, 148
Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 185 (statement of defendant’s
daughter to the victim’s niece was non-testimonial). This non-testimonial description does
not appear to be in dispute.
{¶58} Where a non-testimonial statement is admitted, the confrontation clause
does not apply, and the matter is left to the application of state rules of evidence such as
hearsay rules. Michigan v. Bryant, 562 U.S. 344, 358-359, 131 S.Ct. 1143, 179 L.Ed.2d
93 (2011). Hearsay, which is generally inadmissible, is “a statement, other than one made
by the declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted in the statement.” Evid.R. 801(C); Evid.R. 802.
{¶59} As below, the state first claims the statement was not hearsay because it
was not offered to show Appellant was the best drunk driver the decedent knew.
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However, the statement also implicitly indicates Appellant was drunk that night, which
was a fact the state was charged with establishing at trial.
{¶60} In any case, the state asserts the contested statement would be admissible
under the statement of intent exception to the ban on hearsay, which the state also raised
at trial in response to the objection. This exception provides the following type of hearsay
is admissible:
Then Existing, Mental, Emotional, or Physical Condition. A statement of the
declarant's then existing state of mind, emotion, sensation, or physical
condition (such as intent, plan, motive, design, mental feeling, pain, and
bodily health), but not including a statement of memory or belief to prove
the fact remembered or believed unless it relates to the execution,
revocation, identification, or terms of declarant's will.
Evid.R. 803(3).
{¶61} “[S]tatements of current intent to take future actions are admissible for the
inference that the intended act was performed.” State v. Hand, 107 Ohio St.3d 378, 2006-
Ohio-18, 840 N.E.2d 151, ¶ 99 (a declarant’s statements that he was going to make
money and “take somebody out” for the defendant, he had to be ready to go see the
defendant, and he would be right back after he picked up some money were admissible
under Evid.R. 803(3) to show the declarant intended to meet with the defendant, pick up
money, and later kill a person), citing State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-
2126, 767 N.E.2d 216, ¶ 33 (it is a long-standing rule that a statement of then-existing
intent may be used as the basis for introducing statements showing the declarant’s
forward-looking intent to prove he thereafter acted in accordance with that intent).
{¶62} As the state points out, the contested statement constituted a part of the
declarant’s stated intent and plan. Without allowing Dante to testify to the statement,
Dante could not have disclosed the decedent’s declaration of his plan or intent to accept
Appellant’s offer of a ride and get in the car with him driving. Presented in the context of
the conversation about who was driving the decedent that night, the statement was
offered to show the decedent intended to ride with Appellant notwithstanding the concerns
over his drunkenness. By the time Macy testified, the same statement was already in the
record.
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{¶63} It was not an abuse of discretion for the trial court to conclude the
decedent’s reassurances to his concerned friends not to worry because Appellant was
the best drunk driver he knew demonstrated the decedent’s “current intent to take future
actions” and were “admissible for the inference that the intended act was performed.”
See Hand, 107 Ohio St.3d 378 at ¶ 99. As such, the decedent’s statements indicating he
was accepting Appellant’s offer of a ride were admissible under Evid.R. 803(3) to prove
he then acted in conformity with his expressed intent.
{¶64} The decedent’s intent to get a ride with Appellant notwithstanding his
intoxication was certainly relevant evidence. See Evid.R. 401 (relevant evidence is
“evidence having any tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable than it would be without
the evidence”). The admission or exclusion of relevant evidence under Evid.R. 403(A) is
within the sound discretion of the trial court. State v. Skatzes, 104 Ohio St.3d 195, 819
N.E.2d 215, 2004-Ohio-6391, ¶ 107.
{¶65} When an otherwise admissible statement is relevant, it shall be excluded if
its probative value was not substantially outweighed by the danger of unfair prejudice, of
confusion of the issues, or of misleading the jury. Evid.R. 403(A). The contested
statement would not have confused or misled the jury. It was admittedly prejudicial,
including the implication that the decedent may have witnessed Appellant drive drunk in
the past. Still, it is only unfair prejudice to be weighed against the probative value, as the
state's evidence will obviously prejudice a defendant. Skatzes, 104 Ohio St.3d 195 at ¶
107. The jury already heard from Dante that Appellant drove him and the decedent to the
bar after Appellant consumed at least one mixed vodka drink and smoked marijuana.
Plus, the probative value of the statement evincing the decedent’s intent to ride with
Appellant was very high. It was reasonable to find the probative value of the statements
was not substantially outweighed by the danger of unfair prejudice.
{¶66} Finally, the state also persuasively contends that assuming arguendo there
was a hearsay error in admitting the contested statement, any error would have been
harmless. Appellant drove the decedent to the bars in a wild manner while driving a
Mercedes owned by Appellant’s father. As mentioned in reviewing prejudice, the jury
already heard from Dante that Appellant consumed at least one mixed vodka drink and
Case No. 21 MA 0083
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smoked marijuana before driving them to the bar. Various witnesses saw him drink more
at the bars and watched him act drunk, with his staggering and fall captured on video for
the jury. When the decedent sought a ride from people at the end of the night, Appellant
specifically declared that he would drive the decedent, and they then left the bar together.
Appellant’s offer of the ride to the decedent was the defendant’s own statement and was
thus non-hearsay. Evid.R. 801(D)(2)(a).
{¶67} Moreover, before Macy revealed the “best drunk driver” statement, she had
already disclosed the decedent said he would be driven by Appellant that night. In
addition, the bar’s video (from less than 10 minutes before the crash) showed Appellant
entering the vehicle through the driver’s door with the decedent entering on the passenger
side. With these facts and the remainder of the facts collected in our Statement of the
Case, it is clear any error in admitting the alleged hearsay statement would have been
harmless as there was overwhelming evidence that Appellant was both intoxicated and
the driver. See State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶
32 (even if there was prejudicial error in admitting evidence, the overwhelming other
evidence rendered the error harmless). For the various reasons expressed above, this
assignment of error is overruled.
ASSIGNMENT OF ERROR THREE: FLIGHT INSTRUCTION
{¶68} Appellant’s third assignment of error states:
“THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY GIVING A
FLIGHT INSTRUCTION TO THE JURY OVER THE OBJECTIONS OF APPELLANT.”
{¶69} Defense counsel objected to a flight or consciousness of guilt instruction
before the jury was charged. The court overruled the objection and gave the following
jury instruction:
Testimony has been admitted indicating that the defendant fled the
scene. You are instructed that fleeing the scene alone does not weigh the
presumption of guilt, but it may tend to indicate the defendant's
consciousness of guilt.
If you find that the facts do not support the defendant leaving the
scene or if you find that some other motive prompted their conduct, or if you
Case No. 21 MA 0083
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find that, or if you are unable to decide what his motive was, then you should
not consider this evidence for any purpose.
However, if you find that the facts support that the defendant
engaged in such conduct, and you decide that it was motivated by
consciousness of guilt you may, but are not required to consider that
evidence in deciding whether or not he is guilty of the crime charged. You
alone will determine what weight, if any, to give to this evidence.
(Tr. 979-980).
{¶70} A trial court's decision to provide a particular jury instruction based upon the
facts of the case will not be reversed absent an abuse of discretion, requiring the decision
to be unreasonable, arbitrary or unconscionable. State v. Wolons, 44 Ohio St.3d 64, 68,
541 N.E.2d 443 (1989). It is well-established “that the fact of an accused's flight, escape
from custody, resistance to arrest, concealment, assumption of a false name, and related
conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself.”
State v. Williams, 79 Ohio St.3d 1, 11, 679 N.E.2d 646 (1997). Clearly, flight from a crash
scene qualifies as a type of flight. State v. Miller, 7th Dist. Mahoning No. 13 MA 12, 2014-
Ohio-2936, ¶ 139 (fleeing the scene instead of calling for ambulance), citing State v.
Eaton, 19 Ohio St.2d 145, 160, 249 N.E.2d 897 (1969) (“Flight from justice, and its
analogous conduct, have always been indicative of consciousness of guilt”), overruled in
part on other grounds, Eaton v. Ohio, 408 U.S. 935, 92 S.Ct. 2857, 33 L.Ed.2d 750 (1972)
(vacating death penalty).
{¶71} Appellant argues a flight instruction was not warranted because he merely
left the scene, claiming he took no affirmative step to avoid the police. He relies on the
following Eighth District holding: “a flight instruction should not be given when a defendant
merely departs from the scene of a crime, unless deliberate flight is proven, such that the
defendant took affirmative steps to avoid detection and apprehension.” State v. Keller,
8th Dist. Cuyahoga No. 106196, 2018-Ohio-4107, ¶ 63. The court distinguished between
mere departure from the scene and fleeing from the scene, which is a deliberate act of
avoiding detection or evading the police. Id. at ¶63-64. Although the Eighth District found
the instruction should not have been given, the court then found a lack of prejudice to the
defense and affirmed the conviction. Id. at ¶ 65-66.
Case No. 21 MA 0083
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{¶72} The facts of the Keller case have no similarity to the case at bar. The victim
in Keller said: she was drinking at various places with the defendant and others; she
passed out at 6:00 a.m. next to the defendant on the couch at her friend’s house; the
defendant raped her while she was passed out; he was sleeping when she woke up to
her alarm; and he left the house while she was in the bathroom. That defendant testified
the sex was consensual and he left after waking up at 9:00 a.m. because he was
embarrassed (with the victim’s boyfriend sleeping on the other couch).
{¶73} Here, Appellant did not merely depart from the scene of an accident
involving a vehicle owned by his father. There was evidence he used the vehicle to drive
to bars that night after he had an alcoholic drink and smoked marijuana; there was also
evidence he drank at two bars and was intoxicated at the end of the night at the final bar.
His friend was fatally injured in the accident, but he did not call 911 or seek assistance
from the nearby houses. Instead, he walked or ran quite a distance to reach his house.
According to video evidence, it took him ten minutes to walk to his house from the Route
46 intersection. This was in addition to the walk from the crash site to that recorded
intersection, which seemed to be a similar distance. Then, when Appellant arrived home,
he still did not call 911. Instead, he obtained another vehicle to drive back to the scene
where he dragged the decedent’s body into his vehicle and left the scene a second time.
Appellant then went home again where the body stayed for 25 minutes in his car (until his
father drove the car to an emergency care center).
{¶74} Furthermore, the police arrived at Appellant’s house mere minutes after his
father left. When they knocked, Appellant was in the kitchen. Appellant looked at the
officer through the window and walked away down a hallway instead of answering the
door. He peeked around the corner at the officer minutes later, still refusing to answer
the door despite ten minutes of knocking. The police subsequently learned of the fatality
after the father reached the emergency center.
{¶75} Collectively, the situation was more than mere departure from a scene;
there was evidence of deliberate acts of evasion, concealment, and delay (potentially in
order to provide time to come up with a story or to postpone alcohol testing). The reason
behind Appellant’s departure from the scene and related conduct thereafter was a jury
question. It was not an abuse of discretion to conclude that Appellant’s conduct could
Case No. 21 MA 0083
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rationally be viewed as constituting flight or “analogous conduct” after crashing a vehicle
while under the influence, warranting a consciousness of guilt instruction. See Eaton, 19
Ohio St.2d at 160.
{¶76} Moreover, the jury was specifically instructed that if the defendant’s conduct
of leaving the scene was prompted by some motive other than consciousness of guilt,
then they should not consider the conduct. In formulating the jury instructions, the court
was not required to accept the theory from Appellant’s opening statement that he was
merely “stupid” by trying to “help” his friend in this manner (or his claim to a trooper that
he was not the driver). The court did not abuse its discretion in providing the
consciousness of guilt instruction on flight. The instruction would not have prejudiced the
defense in any event under the totality of the evidence as reviewed in our Statement of
the Case and throughout this Opinion; contrary to his argument, the other evidence
showing he was the driver was not weak but was overwhelming. This assignment of error
is overruled.
ASSIGNMENT OF ERROR FOUR: WEIGHT
{¶77} Appellant’s fourth and final assignment of error contends:
“APPELLANT’S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.”
{¶78} Weight of the evidence concerns “the inclination of the greater amount of
credible evidence, offered in a trial, to support one side of the issue rather than the other.”
Thompkins, 78 Ohio St.3d at 387. Although the effect of the evidence in inducing belief
is evaluated, weight of the evidence is not a question of mathematics. Id. A weight of
the evidence review considers whether the state met its burden of persuasion. Id. at 390
(Cook, J., concurring) (as opposed to the burden of production involved in a sufficiency
review). The trier of fact occupies the best position from which to weigh the evidence and
judge the witnesses’ credibility by observing their gestures, voice inflections, and
demeanor. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273(1984).
{¶79} When a defendant claims a conviction is contrary to the manifest weight of
the evidence, the appellate court is to review the entire record, weigh the evidence and
all reasonable inferences, consider the credibility of witnesses, and determine whether,
Case No. 21 MA 0083
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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 and a new trial
ordered. State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 220,
citing Thompkins, 78 Ohio St.3d at 387. Where a case was tried by a jury, only a
unanimous appellate court can reverse on manifest weight of the evidence grounds. Ohio
Constitution, Article IV, Section 3(B)(3). The power of the court of appeals to sit as the
“thirteenth juror” is limited in order to preserve the jury's primary function of weighing the
evidence. Thompkins, 78 Ohio St.3d at 389.
{¶80} Appellant contends there was “scant” evidence he was driving at the time
of the crash. He suggests the only evidence he was driving at the time of the accident
was the opinion of the accident reconstruction expert and criticizes this testimony
because he testified his report was based on a wet road. Appellant construes the
testimony of the first responding officer as stating the road was dry.
{¶81} First, we note the first responding officer was asked about “the weather
conditions” upon her arrival, not the road condition, and she responded by saying, “It was
dry out” when she arrived on the scene. (Tr. 383-384). We also note she said it was
pouring heavy rain when a trooper arrived approximately five minutes later. (Tr. 384,
394). The trial was held almost four years after the accident, and the first responding
officer did not make a report of the accident. (Tr. 393).
{¶82} Notably, closer to the time of the crash, rain is depicted in the videos
showing the subject walking from the direction of the crash site on Shields Road and the
car driving toward the scene (before the first responding officer would have arrived on the
scene). The trooper who reviewed this video from the business on Route 46 noted it was
raining or sleeting in the video and windy. (Tr. 703). The trooper who reviewed the video
from a Timber Run Drive neighbor noted the video showed light rain was falling during
the portion viewed. (Tr. 584). In addition, the accident reconstructionist said he consulted
the weather conditions reported from the local airport and concluded the conditions were
wet at the time of the accident. (Tr. 785, 808). In any event, he pointed out that if the
conditions were dry, then he would have concluded the vehicle was driving even faster.
(Tr. 815). There was no indication this would have affected the expert’s conclusion on
the passenger’s position in the vehicle.
Case No. 21 MA 0083
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{¶83} Appellant next notes the forensic pathologist testified she could not match
the decedent’s injuries to a place on the vehicle. (Tr. 549). However, she did not view
the vehicle, the crash site, or photographs of the vehicle or scene. (Tr. 550). She also
received the body unclothed. (Tr. 547, 551). Moreover, she did not attempt to make such
connections in evaluating the decedent.
{¶84} Appellant says the passenger’s injuries were consistent with him being the
driver, pointing to injuries to the torso (lacerated liver and aortic arch, fractured ribs,
contused lungs surrounded by blood in the pleural cavity, blood in the abdomen).
However, there was no testimony so opining, and one could just as freely conclude the
injuries were consistent with being an unbelted passenger being thrown forward and to
the left through the vehicle and partially through the sunroof as the vehicle rolled on its
top and continued rolling until his ejection.
{¶85} The accident reconstruction expert explained his conclusions on the
passenger’s trajectory and why he believed to a reasonable degree of scientific certainty
that the decedent was the passenger and not the driver. It was within the jury’s province
to find the testimony worthy of belief. “[T]he weight to be given the evidence and the
credibility of the witnesses are primarily for the trier of the facts.” State v. Hunter, 131
Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 118, quoting State v. DeHass, 10
Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. “When more than
one competing interpretation of the evidence is available and the one chosen by the jury
is not unbelievable, we do not choose which theory we believe is more credible and
impose our view over that of the jury.” State v. Baker, 7th Dist. Mahoning No. 19 MA
0080, 2020-Ohio-7023, ¶ 148, citing State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d
125 (7th Dist.1999).
{¶86} Moreover, we reiterate the other evidence suggesting Appellant was the
driver. The vehicle was a Mercedes SUV registered to Appellant’s father. Before driving
to the first bar, Appellant had at least one mixed drink and smoked marijuana. He then
drove the decedent, Dante, and another friend to Blue Wolf Tavern in this vehicle three
hours before the accident. He was seen drinking beer at Blue Wolf, and he later moved
his vehicle from Blue Wolf to Suzie’s Dogs and Drafts (rather than walking over as other
patrons did). As the lights came on after last call at Suzie’s Dogs and Drafts, Appellant
Case No. 21 MA 0083
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was heard offering to drive the decedent while the decedent was seeking a ride from other
sources. Five hours after the crash, Appellant told a trooper the decedent argued with
him in the parking lot at Suzie’s about who would drive and the decedent ended up driving.
However, the decedent’s statements of intent minutes before exiting the bar indicate he
intended to leave with Appellant as the driver.
{¶87} In any event, at approximately 2:39 a.m., the video shows Appellant leaving
Suzie’s Dogs and Drafts and directly entering the driver’s door of his father’s vehicle while
the decedent entered on the passenger side. Appellant’s brief theorizes they may have
switched position somewhere else after he drove away from the bar. However,
circumstantial evidence inherently possesses the same probative value as direct
evidence. State v. Treesh, 90 Ohio St.3d 460, 485, 739 N.E.2d 749 (2001).
{¶88} Furthermore, a resident near the crash site testified the crash occurred
around 2:46 a.m. A trooper testified it took him seven minutes to arrive at the crash site
from Suzie’s Dogs and Drafts when driving the speed limit (taking the route down
Tippecanoe Road to Shields Road).
{¶89} In addition, Appellant left the scene of the crash on foot and fled to his
house, which was not a short walk. Appellant did not call 911 from at or near the scene,
and he did not call 911 when he arrived home. Instead, he retrieved another vehicle,
drove to the scene, dragged the decedent’s body into the vehicle, and returned to his
house where the decedent remained for 25 minutes (until Appellant’s father drove the
decedent to a health center). Besides finding blood in the back seat, troopers also found
blood on an object in the trunk. Additionally, Appellant ignored the police when they
repeatedly knocked on his door just after his father left with the decedent’s body; the
officer first saw Appellant look at him when the knocking started and a second time when
Appellant later peeked down the hallway. Again, it was for the jury to evaluate what
Appellant’s post-crash behavior suggested. As reviewed supra, there was weighty
evidence showing Appellant’s intoxication as well.
{¶90} Finally, the jury considered Appellant’s observation that there was no
indication of when the clocks on the surveillance videos lost track of actual time. Four out
of the five surveillance videos were found to be off from actual time. The three videos
from after the crash correlate neatly once adjusted for actual time, and the videos were
Case No. 21 MA 0083
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collected just days after the accident. Also, the video from Suzie’s Dogs and Drafts was
collected within two weeks of the crash, and the adjusted time corresponded with witness
testimony and with the Blue Wolf Tavern video, which was found to have accurate time.
{¶91} A thorough review of the record does not indicate this is the “exceptional”
case in which the evidence weighs “heavily” against the conviction and requires the
exercise of our limited “thirteenth juror” discretion to grant a new trial. See Lang, 129
Ohio St.3d 512 at ¶ 220. Accordingly, the decision to convict Appellant of the offenses
was not contrary to the manifest weight of the evidence. This assignment of error is
overruled.
{¶92} For the foregoing reasons, Appellant’s convictions are affirmed.
Waite, J., concurs.
Wilkin, J., concurs.
Case No. 21 MA 0083
[Cite as State v. Malvasi, 2022-Ohio-4556.]
For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs waived.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.