State v. Boyd , 2023 Ohio 1120 ( 2023 )

[Cite as State v. Boyd, 2023-Ohio-1120.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
BELMONT COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
DONALD THOMAS BOYD,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 21 BE 0048
Criminal Appeal from the
Court of Common Pleas of Belmont County, Ohio
Case No. 20 CR 22
BEFORE:
Cheryl L. Waite, Carol Ann Robb, Mark A. Hanni, Judges.
JUDGMENT:
Affirmed.
Limited Remand.
Atty. J. Kevin Flanagan, Belmont County Prosecutor and Atty. Jacob A. Manning,
Assistant Prosecuting Attorney, 52160 National Road, St. Clairsville, Ohio 43950, for
Plaintiff-Appellee
Atty. Brian A. Smith, Brian A. Smith Law Firm, LLC, 123 South Miller Road, Suite 250,
Fairlawn, Ohio 44333, for Defendant-Appellant.
Dated: March 30, 2023
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WAITE, J.
{¶1} Appellant Donald Thomas Boyd appeals an October 14, 2021 judgment
entry of the Belmont County Court of Common Pleas convicting him of various crimes.
Appellant raises several arguments challenging the joinder of two separate incidents in
one trial, the sufficiency of the evidence supporting his convictions, and the imposition of
consecutive sentences. Appellant also argues that he received ineffective assistance of
counsel. For the reasons that follow, Appellant’s arguments are without merit and the
judgment of the trial court is affirmed. However, the matter is sua sponte remanded for
the limited purpose of obtaining a nunc pro tunc entry to correctly reflect the indeterminate
nature of a portion of Appellant’s sentence.
Factual and Procedural History
{¶2} This appeal concerns two separate incidents that were combined in a single
indictment and corresponding trial. The first occurred on August 2, 2018. On that date,
Corporal Jason Schwarck of the Belmont County Sheriff’s Department ran a license plate
check on a vehicle during his patrol. He learned that the license plate was not registered
to the vehicle. He also learned that the plate was registered to a person who had a
suspended license and an outstanding arrest warrant. As a result, Corp. Schwarck
initiated a traffic stop of the vehicle.
{¶3} When Corp. Schwarck confirmed that Appellant, the driver of the vehicle,
was the person to whom the plate was registered, he placed Appellant under arrest
pursuant to the arrest warrant. Corp. Schwarck located a silver pill container when
searching Appellant’s person. Inside the container, Corp. Schwarck discovered foil with
two pieces of suspected LSD. Appellant admitted that it was LSD. Corp. Schwarck also
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found marijuana and other drug paraphernalia, but it does not appear that Appellant was
charged with these related offenses. Despite Appellant’s arrest in early August of 2018,
it does not appear that he was officially charged in this matter until May of 2021. It is
unclear why charging in this matter was delayed.
{¶4} The second incident occurred on September 12, 2018. Many of the
following facts stem from testimony provided by an accident reconstructionist who
conceded that reconstruction is subjective and that another investigator may arrive at a
different conclusion. However, it is the only information available, as it does not appear
that any eyewitness saw the entire event. Other facts are taken from witnesses, including
the parties involved.
{¶5} At the time of the incident, Appellant was under a driver’s license
suspension. However, he borrowed a white pickup truck from someone in West Virginia.
The photographs in evidence depict a two-lane road surrounded on both sides by brush
and weeds. The site of the crash itself appears to be located just before a bend in the
road.
{¶6} Appellant was driving the borrowed truck on Willow Grove Road in the
Village of Neffs, Belmont County. Appellant operated the truck within the posted speed
limit. Everett Dean Hartley was driving a grey pickup driving in the opposite direction.
The victim, Robert Hartley, sat in the front seat of his brother’s truck. Everett is referred
to as both Everett and Dean in this record, but his first name will be used, here. The
Hartleys were travelling from a convenience store to a job site.
{¶7} Through Appellant’s testimony and reconstruction efforts, it appears that
Appellant’s truck drifted left of center from the right lane and into the opposing lane, then
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off the berm and into the brush/weeds. Appellant’s vehicle then reentered the road into
opposing traffic and struck Everett’s truck, causing him to lose control of his vehicle. The
impact caused Everett’s truck to veer off of the road, where it eventually hit an
embankment. Everett’s truck apparently came to rest against some object halfway down
the embankment.
{¶8} Everett testified that he may have been rendered temporarily unconscious
immediately following the impact. When he regained consciousness, he found his brother
lying in the backseat. He placed his hand on his brother, who was not responsive. He
exited the truck through a window and saw Appellant sitting on a tire that had come off of
the borrowed truck. Appellant stated: “Dean [Everett], the reason I hit you, my wheel fell
off.” (Trial Tr., p. 360.) A significant amount of blood is visible in the truck Appellant was
driving, particularly on the deployed airbag. It appears that Appellant suffered some sort
of head injury as a result of the incident, however, neither he nor Everett were apparently
seriously injured.
{¶9} The crash occurred at approximately 7:45 a.m. A pedestrian in the area
called 911 and emergency vehicles arrived fairly quickly. The local fire department
arrived first. Ohio State Highway Patrol Trooper Daniel Moran was dispatched to the
scene at 7:48 a.m. and arrived a short time thereafter.
{¶10} Captain Chris Brokaw of the Neff Fire Department testified that he saw
Everett and Appellant walking in the street when he arrived. (Trial Tr., p. 318.) He
observed Appellant’s vehicle and noticed that the front passenger’s side tire was laying
in the road in front of the truck. At the time, Robert was still inside the grey truck. Before
he attempted to check on Robert, Captain Brokaw took a hose and put water on the
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engine, which appeared to be smoking. He then entered the bed of the truck, reached
inside and placed a heart monitor pad on Robert, which showed a “flat line.” (Trial Tr., p.
336.) He contacted dispatch, declared Robert dead on arrival, and was instructed to
leave the body alone and allow the investigation to proceed. He testified that he complied
with those instructions.
{¶11} Mary Mansfield, a firefighter and EMT, testified that she first approached
Everett and requested to be allowed to medically treat him, however, he declined
treatment until he knew his brother’s condition. She then saw Appellant, who appeared
to be “staggering a little bit on the roadway, so I grabbed ahold of him and I said, ‘Are you
okay?’ ” (Trial Tr., p. 342.) Appellant also initially refused treatment, however, Mansfield
persisted. Appellant kept asking her “[d]id someone pass away? Did someone die?”
(Trial Tr., p. 343.) She informed him that she did not know and began to address his
wounds. As she and Appellant talked, “more and more, I noticed he was kind of like --
just he wasn’t all there. His altered mental status started kicking in a little bit more.” (Trial
Tr., p. 344.) Although she believed he was impaired, she conceded that it was “[v]ery
possible” that his behavior was the result of a head injury based on the impact of his head
hitting the windshield. (Trial Tr., p. 350.)
{¶12} Trooper Moran testified that he did not expect to find a fatality when he
arrived and was surprised when the fire department informed him there had been a death.
He learned the name of all parties involved, but did not speak to either Appellant or Everett
at the scene because they were being medically treated. He photographed the scene
and attempted to trace the path of the vehicles to learn what may have caused the
accident. He was told Appellant claimed that mechanical failure had been responsible
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for the accident. However, Trooper Moran did not find any evidence that he believed
would support that claim. Sgt. Frank Cook later completed the accident reconstruction.
In summation, he also could find no evidence to support Appellant’s claim of mechanical
failure.
{¶13} At some point, Trooper Moran did speak with both Appellant and Everett,
who were being treated at two different area hospitals. Trooper Moran first visited
Appellant, who was in an emergency room and receiving fluids intravenously. Appellant
admitted to Trooper Moran that his driver’s license was suspended. Appellant also
admitted he had ingested a small amount of marijuana at either 5:00 or 5:30 that morning.
He explained that he uses marijuana daily to treat various medical conditions. He denied
any other drug use. Trooper Moran placed Appellant under arrest for DUI based on his
admission regarding marijuana use. He obtained a urine sample that was taken around
10:00 a.m. Trooper Moran could not state at trial the exact time requirement for obtaining
urine samples pursuant to law, but believed that they should be taken within two or three
hours following an incident. He conceded that Appellant’s test was taken at the outer
parameter of the timeline.
{¶14} Appellant’s urine sample tested positive for several substances. Kimberly
Belvin, a criminalist for the Ohio State Highway Patrol crime lab, provided testimony
regarding the legal limits for an OVI and about Appellant’s results. First, he tested positive
for amphetamine. The per se legal limit for purposes of an OVI is that a subject tests at
greater than 500 nanograms per milliliter. Appellant’s sample tested at more than 1,000
nanograms per milliliter. Belvin explained that once a sample is found to be more than
twice the legal limit (1,000 nanograms for purposes of amphetamine), testing is cut off at
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that point. Second, Appellant’s sample tested positive for methamphetamine. Belvin
stated that the legal limit for this drug is greater than 500 nanograms per milliliter.
Appellant tested at more than 1,000 nanograms per milliliter. Third, Appellant’s sample
tested positive for marijuana. Belvin testified that the legal limit for marijuana is 35
nanograms per milliliter and testing is cut off at 200 nanograms per milliliter. Appellant’s
sample tested positive for greater than 200 nanograms per milliliter.
{¶15} Trooper Moran also interviewed Everett, who was being seen at a separate
hospital. Everett denied any drug use. During questioning, Trooper Moran obtained a
urine sample. Although the state attempted to have this testimony excluded at trial, the
court permitted the defense to disclose the result of Everett’s urine sample, which tested
positive for both cocaine and glucose. The legal limit pertaining to cocaine for purposes
of an OVI is 150 nanograms per milliliter; Everett’s sample tested 213.94 nanograms per
milliliter +/- 19.25 nanograms per milliliter. According to Everett, it had been several days
since he had used cocaine. Everett’s sample also tested positive for glucose, which
usually triggers the necessity of a second alcohol screening test to be completed a week
later. For some reason, Everett’s second round of testing did not occur. Everett pleaded
guilty to an OVI charge and served an unspecified term of incarceration. He was released
at some point prior to trial in this case.
{¶16} Trooper Moran later returned to the scene and searched Appellant’s
vehicle, where he located a glass smoking pipe with a residue he believed to be
methamphetamine. Testing later revealed that the substance was, in fact,
methamphetamine. The pipe was found on the floor of the front passenger’s seat next to
two baggies, one containing a substance that appeared to be marijuana and the other
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containing seeds. Testing confirmed the first substance was marijuana, but the seeds
were not tested.
{¶17} On February 6, 2019, Appellant was charged with two counts of aggravated
vehicular manslaughter by means of a Rule 4 Complaint. On February 28, 2019,
Appellant failed to appear at arraignment and an arrest warrant was issued. Appellant
was subsequently located and was arraigned, and was released on a recognizance bond.
On March 5, 2020, Appellant was indicted on two counts of vehicular manslaughter.
{¶18} Due to COVID-19 and the continuances it caused, the procedural history
after this point is somewhat unclear. It appears that these delays allowed the state more
time to obtain testing results, which then led to additional charges.
{¶19} On May 6, 2021, in what appears to be a superseding indictment, Appellant
was indicted on both the earlier charges and several new charges: one count of
aggravated vehicular manslaughter, a felony of the second degree in violation of R.C.
2903.06(A)(1)(a), (B)(2)(a); one count of aggravated vehicular manslaughter, a felony of
the second degree in violation of R.C. 2903.06(A)(1)(a), (B)(2)(b)(1); one count of
operating a vehicle while under the influence of a controlled substance (“OVI”), a
misdemeanor of the first degree in violation of R.C. 4511.19 (A)(1), (J)(I), (G)(1)(a); one
count of operating a vehicle while under the influence of a controlled substance (“OVI”),
a misdemeanor of the first degree in violation of R.C. 4511.19 (A)(1), (J)(IX), (G)(1)(a);
one count of operating a vehicle while under the influence of a controlled substance
(“OVI”), a misdemeanor of the first degree in violation of R.C. 4511.19 (A)(1), (J)(VIII),
(G)(1)(a); one count of aggravated possession of drugs, a felony of the fifth degree in
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violation of R.C. 2925.11(A), (C)(1)(a); and one count of possession of LSD, a felony of
the fifth degree in violation of R.C. 2925.11(A), (C)(5)(a).
{¶20} For the sake of clarity as it relates to this appeal, we note that count seven
pertains to the traffic stop that occurred on August 2, 2018. Counts one through six relate
to the traffic accident that occurred on September 12, 2018. All counts were included in
the same indictment, no motion was made to sever these counts, and the trial court did
not sever them sua sponte.
{¶21} During trial, the state presented the following witnesses: Kimberly Belvin,
(Ohio State Highway Patrol Crime Lab), Jennifer Acurio (Ohio Bureau of Criminal
Investigations, forensic scientist), Captain Chris Brokaw (Neff Fire Department), Mary
Mansfield (Neff Fire Department firefighter/EMT), Everett Hartley (victim’s brother),
Jeffrey Turnau (Ohio State Highway Patrol Crime Lab), Trooper Daniel Moran (Ohio State
Highway Patrol), Frank J. Cook (Ohio State Highway Patrol accident reconstructionist),
and Corporal Jason Schwarck (Belmont County Sheriff’s Office). After a three-day trial,
the jury convicted Appellant of all offenses.
{¶22} At the sentencing hearing, the court imposed the following: eleven to
sixteen and one-half years of incarceration on count two; six months each for counts
three, four, and five; and one year for counts six and seven. The court merged counts
one and two. Counts three, four, and five were ordered to run concurrently and counts
six and seven consecutively to count two. The total aggregate sentence then, was
thirteen years to eighteen and one-half years. However, although not raised by the
parties, the court’s judgment entry failed to note that count two involved an indeterminate
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sentence. Instead, the judgment entry imposed an eleven year determinate sentence on
count two.
{¶23} Appellant filed a motion for a delayed appeal in this matter, which was
granted. Appellant also filed a motion to suspend execution of his sentence pending
appeal in both the trial court and this Court. Both motions were denied.
ASSIGNMENT OF ERROR NO. 1
The trial court abused its discretion in engaging in improper joinder and
trying the offenses contained in the Indictment together, prejudicing
Appellant and violating Appellant's right to a fair trial and to Due Process
under the Fifth and Fourteenth Amendments to the United States
Constitution and Article I, Section 16 of the Ohio Constitution.
ASSIGNMENT OF ERROR NO. 3
The failure of Appellant's trial counsel to object to testimony relating to the
August 2, 2018 incident constituted ineffective assistance of counsel, in
violation of Appellant's right to counsel under the Sixth and Fourteenth
Amendments to the United States Constitution and Article I, Section 10 of
the Ohio Constitution.
ASSIGNMENT OF ERROR NO. 4
The failure of Appellant's trial counsel to request relief from prejudicial
joinder and severance of Count Seven from Counts One through Six of the
Indictment constituted ineffective assistance of counsel, in violation of
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Appellant's right to counsel under the Sixth and Fourteenth Amendments to
the United States Constitution and Article I, Section 10 of the Ohio
Constitution.
{¶24} In each of these assignments of error, Appellant contends that it was error
to join the charges from the two separate incidents in one trial. Because both involved
drugs and traffic violations, Appellant complains that the jury could not be reasonably
expected to separate the evidence. He contends that his admission to LSD possession
in count seven likely portrayed him as a drug user to the jury, damaging his argument that
the drugs found in the truck might not have belonged to him, particularly since he had
borrowed it from someone else whose criminal record is unknown. Appellant argues that,
but for the failure to sever count seven, Corp. Schwarck’s testimony concerning his prior
possession of LSD during his traffic stop would not have been admissible in the accident
case as a prior bad act.
{¶25} In response, the state highlights that because no request to sever was made
and no objection raised, Appellant is limited to a plain error review. Regardless, the state
argues that the evidence pertaining to each offense was simple and direct, negating the
need to conduct the “other acts” analysis. As to Appellant’s ineffective assistance
argument, the state contends that motion would not have been successful and Appellant
is unable to demonstrate prejudice in any event.
{¶26} Ohio law favors joining multiple criminal offenses in a single trial. State v.
Harrison, 7th Dist. Jefferson No. 19 JE 0009, 2020-Ohio-3624, ¶ 55, citing State v.
Franklin, 62 Ohio St.3d 118, 122, 580 N.E.2d 1 (1991), citing State v. Lott, 51 Ohio St.3d
160, 163, 555 N.E.2d 293 (1990). “[J]oinder and the avoidance of multiple trials is favored
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for many reasons, among which are conserving time and expense, diminishing the
inconvenience to witnesses and minimizing the possibility of incongruous results in
successive trials before different juries.” State v. Torres, 66 Ohio St.2d 340, 343, 421
N.E.2d 1288 (1981).
{¶27} Crim.R. 8(A) provides:
Two or more offenses may be charged in the same indictment, information
or complaint in a separate count for each offense if the offenses charged,
whether felonies or misdemeanors or both, are of the same or similar
character, or are based on the same act or transaction, or are based on two
or more acts or transactions connected together or constituting parts of a
common scheme or plan, or are part of a course of criminal conduct.
{¶28} A defendant may move to sever trial of joined offenses pursuant to Crim.R.
14 if he can establish prejudice. Lott, supra, at 163. In relevant part, Crim.R. 14 provides
that: “[i]f it appears that a defendant or the state is prejudiced by * * * such joinder for trial
together of indictments, informations or complaints, the court shall order an election or
separate trial of counts, grant a severance of defendants, or provide such other relief as
justice requires.”
{¶29} The state may counter a claim of prejudice in one of two ways. The state
may demonstrate that the evidence presented at trial for each offense was simple and
direct. State v. Moore, 2013-Ohio-1435, 990 N.E.2d 625, ¶ 23 (7th Dist.), citing State v.
Coley, 93 Ohio St.3d at 259, 754 N.E.2d 1129 (2001). Failing that, the state must show
that all of the evidence presented at the combined trial would have been admissible in
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each case if tried separately. Id. If the state can demonstrate that the evidence is simple
and direct, then it is not required to prove the stricter admissibility test. State v. Harris,
7th Dist. Mahoning No. 13 MA 37, 2015-Ohio-2686, ¶ 29, citing State v. Johnson, 88 Ohio
St.3d 95, 109, 723 N.E.2d 1054 (2000). Evidence is simple and direct when it is apparent
that the jury was not confused about which evidence proved which act. Harrison at ¶ 60,
citing State v. Harris, 7th Dist. Mahoning No. 13 MA 37, 2015-Ohio-2686, ¶ 30; Coley at
259.
{¶30} The test for an ineffective assistance of counsel claim is two-part: whether
trial counsel's performance was deficient and, if so, whether the deficiency resulted in
prejudice. State v. White, 7th Dist. Jefferson No. 13 JE 33, 2014-Ohio-4153, ¶ 18, citing
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.
Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶ 107. In order to prove
prejudice, “[t]he defendant must show that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” State v. Lyons, 7th Dist. Belmont No. 14 BE 28, 2015-Ohio-3325, ¶ 11, citing
Strickland at 694. The appellant must affirmatively prove the alleged prejudice occurred.
Id. at 693.
{¶31} As both are necessary, if one prong of the Strickland test is not met, an
appellate court need not address the remaining prong. Id. at 697. The appellant bears
the burden of proof on the issue of counsel's effectiveness, and in Ohio, a licensed
attorney is presumed competent. State v. Carter, 7th Dist. Columbiana No. 2000-CO-32,
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2001 WL 741571 (June 29, 2001), citing State v. Calhoun, 86 Ohio St.3d 279, 289, 714
N.E.2d 905 (1999).
{¶32} Because defense counsel did not request a hearing on the issue of joinder,
we are without evidence as to whether the issue was contested at any point or whether
the parties agreed to joinder of the offenses. Appellant’s first argument, however, is that
the trial court erred in failing to sua sponte sever the seventh charge.
{¶33} Appellant is correct that at least some prejudice may have occurred as a
result of joinder in this matter. His admission to possession of LSD at his traffic stop could
reasonably have been expected to hinder his ability to present certain defenses to the
charges resulting from the traffic accident. The evidence may have portrayed him to the
jury as a person who abuses illegal drugs while operating a motor vehicle. That said, a
showing of possible prejudice is not necessarily enough to overcome joinder.
{¶34} We note that the state occasionally treated the two incidents as separate
events and sometimes indicated that they were intertwined. For example, during the
state’s opening, the prosecutor stated:
This case will be presented to you in two parts and will in some ways mesh
together, because what I just told you about was the September 12, 2018,
incident. But you’re also going to hear of an incident on August 2, 2018.
You will hear about that for two reasons. No. 1, you will hear from the
deputy that stopped [Appellant] on August 2, 2018, and he will tell you that
[Appellant] was under a suspension on that day, about 40 days, if you will,
prior to this incident. And he will also tell you that he seized LSD from
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[Appellant]. And you will look at that case, as well, throughout the course
of this.
(Trial, Tr., p. 234.)
{¶35} While we acknowledge that Crim.R. 8(A) requires some sort of link between
joined offenses, it appears from the opening statement and throughout the trial that the
state attempted to conflate the link between the two incidents. However, it is clear from
this record that while two incidents both involved operation of a motor vehicle and illegal
drugs, they occurred more than a month apart, involved different narcotics, and one
involved mere possession of a drug while the other involved driving under the influence
of drugs. The only identical fact was that both occurred while Appellant was driving
despite a suspended license. Hence, while it appears that these two incidents are similar
in nature, to “mesh” the incidents together as the state indicated would contradict the
standard requiring the evidence for each must be simple and direct. Our review of this
record reveals that even though the state may have stretched its application of Crim.R.
8(A) in the opening statement, there is no question that the evidence in support of each
of these cases was simple and direct.
{¶36} Contrary to Appellant’s assertion at oral argument, the long established
standard in Ohio in order for joinder to be appropriate requires the state to prove only one
of the following tests after a show of possible prejudice: that the evidence is simple and
direct for each charged crime, or that the evidence in one would have otherwise been
admissible in the other. Here, count seven involved only one witness and involved only
the possession of LSD discovered during a traffic stop. On the other hand, counts one
through six involved the testimony of various first responders, an accident
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reconstructionist, lab technicians, and a police officer, none of whom were involved with
or testified in the first case. The bulk of testimony on counts one through six addressed
testing results of a urine sample that did not test positive for the single drug involved in
count seven.
{¶37} For these reasons, the trial court’s failure to sua sponte sever the charges
was not error. For the same reasons, trial counsel was not ineffective for failing to raise
the issue. As such, Appellant’s first, third, and fourth assignments of error are without
merit and are overruled.
ASSIGNMENT OF ERROR NO. 2
Appellant's convictions were against the manifest weight of the evidence.
{¶38} Appellant argues that his aggravated vehicular manslaughter conviction is
against the manifest weight of the evidence. Appellant specifically questions whether the
state demonstrated that impairment was the proximate cause of the crash. Appellant also
attacks the testimony of Sgt. Cook, who wrote a report containing a reconstruction of the
accident. He takes issue with the testimony of Trooper Moran, who testified that he
obtained Appellant’s urine sample at the outer limits of the timeline. Appellant also
highlights Trooper Moran’s concession that Appellant was receiving unknown
medications intravenously at the time he collected the sample.
{¶39} The state argues that multiple witnesses testified Appellant appeared to be
in an impaired state shortly after the accident. While the state concedes that the urine
sample was taken after the time limitations, there is no evidence in the record that it
occurred after the timeline for collection had expired. The state also relies on Trooper
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Moran’s testimony that none of the officers at the scene could find any evidence to
corroborate Appellant’s claim that mechanical failure caused the accident to support its
theory of impairment as the cause of this accident.
{¶40} 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.”
(Emphasis deleted.) State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).
It is not a question of mathematics, but depends on the effect of the evidence in inducing
belief. Id. Weight of the evidence involves the state's burden of persuasion. Id. at 390,
678 N.E.2d 541 (Cook, J. concurring). The 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 jury clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be reversed.
State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 220, citing
Thompkins at 387, 678 N.E.2d 541. This discretionary power of the appellate court to
reverse a conviction is to be exercised only in the exceptional case in which the evidence
weighs heavily against the conviction. Id.{¶41} “[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. The trier of fact is in the best position 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). The jurors are free to believe some, all, or none of each witness'
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testimony, and they may separate the credible parts of the testimony from the incredible
parts. State v. Barnhart, 7th Dist. Jefferson No. 09 JE 15, 2010-Ohio-3282, ¶ 42, citing
State v. Mastel, 26 Ohio St.2d 170, 176, 270 N.E.2d 650 (1971). When there are two
fairly reasonable views of the evidence or two conflicting versions of events, neither of
which is unbelievable, we will not choose which one is more credible. State v. Gore, 131
Ohio App.3d 197, 201, 722 N.E.2d 125 (7th Dist.1999).
{¶42} Appellant limits his arguments to the events of September 12, 2018,
involving counts one through six. It is somewhat unclear whether Appellant challenges
his conviction on all six counts, as he devotes most of his argument toward the vehicular
homicide charges and only briefly addresses an argument in regard to his urine sample,
relevant to his OVI convictions. Appellant makes no reference to the possession of drugs
charge (count six), which stems from the discovery of marijuana in his truck after the
accident, nor does he address his conviction stemming from the traffic stop incident.
Thus, we will review only the aggravated vehicular homicide and OVI convictions.
{¶43} Aggravated vehicular manslaughter is described within R.C. 2903.06.
Appellant was charged under a specific subsection of this statute, R.C. 2903.06(A)(1)(a),
which provides:
(A) No person, while operating or participating in the operation of a motor
vehicle, motorcycle, snowmobile, locomotive, watercraft, or aircraft, shall
cause the death of another or the unlawful termination of another's
pregnancy in any of the following ways:
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(1)(a) As the proximate result of committing a violation of division (A) of
section 4511.19 of the Revised Code or of a substantially equivalent
municipal ordinance;
***
(2) In one of the following ways:
(a) Recklessly;
(b) As the proximate result of committing, while operating or participating in
the operation of a motor vehicle or motorcycle in a construction zone, a
reckless operation offense, provided that this division applies only if the
person whose death is caused or whose pregnancy is unlawfully terminated
is in the construction zone at the time of the offender's commission of the
reckless operation offense in the construction zone and does not apply as
described in division (F) of this section.
(3) In one of the following ways:
(a) Negligently;
(b) As the proximate result of committing, while operating or participating in
the operation of a motor vehicle or motorcycle in a construction zone, a
speeding offense, provided that this division applies only if the person
whose death is caused or whose pregnancy is unlawfully terminated is in
the construction zone at the time of the offender's commission of the
Case No. 21 BE 0048
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speeding offense in the construction zone and does not apply as described
in division (F) of this section.
(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 or of a municipal ordinance that, regardless of the penalty set
by ordinance for the violation, is substantially equivalent to any provision of
any section contained in Title XLV of the Revised Code that is a minor
misdemeanor.
{¶44} Appellant asserts that the state failed to demonstrate his alleged impairment
was the proximate cause of the accident. Within this argument, Appellant attacks the
investigation as a whole and, more specifically, in regard to his claims of mechanical
failure and the collection of his urine sample. He also contends that Everett’s state of
impairment should have been addressed as a contributing factor of the accident.
{¶45} We note at the outset that in his arguments, Appellant fails to consider that
once the state proved Appellant’s urine sample contained levels of prohibited substance
in excess of any acceptable levels pursuant to the OVI statues, and proved that an
accident did, in fact, occur, the state likely established his guilt as a matter of law. In other
words, the problem with Appellant’s arguments regarding his allegation of mechanical
failure and his dissatisfaction with the police investigation is that even if he is correct that
a mechanical failure occurred, the evidence still demonstrated that Appellant operated
the vehicle that lost control and caused an accident resulting in a death.
Case No. 21 BE 0048
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{¶46} Even if mechanical failure was some sort of contributing factor, the evidence
proves that Appellant had drugs in his system at levels well over the legal limit. Thus,
there is no way for him to disprove that his impairment was the cause or the major
contributing factor. At best, Appellant has presented the possibility there may have been
two additional, equally viable, causes of the accident, neither of which can be definitely
proved or disproved. The standard of manifest weight review is clear. We may not
choose between two equally viable versions of an event and determine which is more
credible. Again, credibility is a matter for the trier of fact. The jurors in this matter were
well aware of Appellant’s claims that the truck sustained a mechanical failure which
caused him to lose control, despite his argument that the police investigation was
deficient. The jurors either disbelieved Appellant, or determined that Appellant’s
impairment and inability to maintain control was the root cause of the accident and the
victim’s death despite any alleged mechanical failure. As Appellant concedes that he lost
control, travelled into oncoming traffic, and crashed into Everett’s truck, any impairment
on Everett’s part was irrelevant. Appellant’s concession on these facts operates as an
admission as to cause.
{¶47} Appellant also challenges the value of his urine sample based on the time
it was collected and the nature of his treatment at the emergency room. At trial, his
counsel elicited testimony from Trooper Moran, who admitted that he collected
Appellant’s urine sample at the outer limits of the collection period. Defense counsel then
entered the following colloquy with Trooper Moran:
Q. What is the timeframe for -- or what was the timeframe, actually, for the
collection of blood then?
Case No. 21 BE 0048
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A. To tell you right now, I could not honestly tell you.
Q. Could you tell us what it was for urine?
A. It was either two or three hours.
(Trial Tr., pp. 499-500.)
{¶48} Defense counsel then elicited testimony from Trooper Moran that he was
dispatched to the scene at 7:48 a.m. and did not collect the sample until 10:30 a.m.,
almost three hours after the accident. This fact was known to the jury.
{¶49} Despite the collection time of the urine sample, it contained
methamphetamine, amphetamine, and marijuana at levels more than double the levels
allowed by law for purposes of an OVI. It is entirely probable that had his sample been
more promptly taken, it would have contained even higher levels. Thus, Appellant’s
arguments in this regard are puzzling, at best. We also note that Appellant admitted to
marijuana use during his interrogation. This alone, significantly limits his ability to
challenge his corresponding OVI conviction.
{¶50} Appellant posits that he was receiving an unknown substance intravenously
at the time his sample was taken, which could have affected his sample. However, it
does not seem likely that Appellant could have been receiving any medication during his
treatment that could have caused him to test positive for these particular substances.
Regardless, as this was not addressed at trial, Appellant’s argument here amounts to
speculation on his part.
Case No. 21 BE 0048
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{¶51} For these reasons, sufficient and credible evidence supports the Appellant’s
convictions. As such, Appellant’s second assignment of error is without merit and is
overruled.
ASSIGNMENT OF ERROR NO. 5
The failure of Appellant's trial counsel, to promptly object to Trooper Daniel
Moran's testimony regarding the accident, without the trooper being
qualified as an expert witness in accident reconstruction, constituted
ineffective assistance of counsel, in violation of Appellant's right to counsel
under the Sixth and Fourteenth Amendments to the United States
Constitution and Article I, Section 10 of the Ohio Constitution.
{¶52} Appellant argues that his counsel’s representation was ineffective based on
his counsel’s failure to object to testimony from Trooper Moran. Appellant explains that
Trooper Moran testified regarding technical issues pertaining to accident reconstruction.
Trooper Moran stated that when he undertook his reconstruction of this accident, he found
no mechanical problem on the part of Appellant’s borrowed truck that could have been
the cause of the accident. Although Appellant concedes that his counsel did object to this
testimony, he did not do so until several minutes into Trooper Moran’s testimony.
Appellant claims that the damage to his defense caused by Trooper Moran had already
been done by that time. Appellant believes the error is compounded by that fact that
Trooper Moran is the only witness who was present at the scene of the accident to have
testified about these issues.
Case No. 21 BE 0048
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{¶53} At trial, the state asked Trooper Moran about Appellant’s claims that
mechanical failure, particularly a tire “locking up,” caused the accident. For ease of
understanding, all relevant testimony will be cited below.
[Trooper Moran] In this particular case, off to the side of the road, there
were weeds. And from -- it’s easy to see from -- you can tell if a tire is in
motion or if a tire is locked up. If a tire is in motion and it goes through
weeds, you are just going to see basically the weeds bent over and you’ll
be able to just tell what direction the vehicle was going. If the vehicle has a
locked up tire, obviously you’re going to see the weeds either pulled up or
you’re going to see dirt from where the actual--– the locked tire is skidding
across the grass and the weeds.
Now, once the vehicle gets into the weeds, it is -- people describe it as being
on ice. It’s harder to stop. But in this case, looking at the mark from the
white pickup truck [belonging to Appellant], it was free rolling. The weeds
were just smooshed down. There was nothing indicating that there was any
type of braking or a vehicle tire being locked up, or it would be skidding.
(Trial Tr., pp. 412-413.)
{¶54} Later, Trooper Moran was asked about Appellant’s claims that the truck
“wiggled back and forth” and “[t]hen it locked up.” (Trial Tr., p. 427) The following
testimony was given during the state’s direct examination of Trooper Moran:
Case No. 21 BE 0048
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Q How about, based on your training and experience, the wiggle of the tire?
Does that also leave a mark behind?
A With my training and experience with other crashes that have had tires
that have either gone flat or, you know, fallen off, you’re going to see some
type of movement from that tire. You’re going to see lug nuts that may have
fallen off. You’re going to see --
[Appellant’s Trial Counsel]: I’m going to object at this point. This witness
hasn’t been qualified as an expert regarding accident reconstruction or any
of the signs thereof. I think that we’ve gone beyond his personal
experience. We’re now delving into an area where he would need to be
qualified as an expert.
THE COURT: Sustained.
[PROSECUTOR]: Okay.
Will the Court permit him, then, to testify to his personal experience?
THE COURT: I will let him to [sic] testify as to his experience.
[PROSECUTOR]: Okay.
Q. Based on your experience, when -- and again, we will hear from
Sergeant Cook later on, but based on your experience, when you see this
wiggle in or on a -- or from a tire, does it leave marks on the roadway?
Case No. 21 BE 0048
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A. Based on my training and experience, not all the time, but there are
times where yes, there will be a marking or a squiggle mark on the roadway.
(Trial Tr., pp. 429-431.)
{¶55} Appellant contends that his counsel should have objected much earlier in
Trooper Moran’s testimony. However, the record demonstrates that counsel’s cross-
examination caused Trooper Moran to walk back his statement that tire issues will always
cause a mark on the road and to soften his assertion, clarifying that this is not always the
case. Even so, it was made clear to the jury that Trooper Moran was not qualified as an
expert witness.
{¶56} Later in Trooper Moran’s testimony, it became apparent he had limited
knowledge of the mechanical nature of vehicles. When asked about certain aspects of a
tire and the surrounding mechanics, he admitted that he is not a mechanic. He responded
to a mechanical question by stating “I’m not sure exactly what the term is. It’s an auto
part. What it is, I don’t know.” (Trial Tr., p. 504.) He was then asked what occurs when
an upper ball joint is loose or breaks, and he replied that he had no understanding of this
process. Thus, the jury understood that Trooper Moran was not a mechanical expert and
the state did not attempt to qualify him as an accident reconstruction expert. As such, the
timing of trial counsel’s objection does not constitute ineffective assistance of counsel.
Accordingly, Appellant’s fifth assignment of error is without merit and is overruled.
ASSIGNMENT OF ERROR NO. 6
The cumulative errors of Appellant's trial counsel constituted ineffective
assistance of counsel in violation of Appellant's right to counsel under the
Case No. 21 BE 0048
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Sixth and Fourteenth Amendments to the United States Constitution and
Article I, Section 10 of the Ohio Constitution.
{¶57} Appellant asserts that the cumulative effect of counsel’s alleged errors
caused the state’s case to appear more credible than it was and also violated his
constitutional right to counsel and due process. Appellant emphasizes that each of his
asserted errors affected his ability to present a mechanical failure defense and bolstered
the state’s theory of Appellant’s impairment.
{¶58} The state contends that none of Appellant’s arguments rise to the level of
error. However, even if errors were made, Appellant is unable to show that those errors
affected the outcome of the trial.
{¶59} “Cumulative error exists only where the harmless errors during trial actually
‘deprive[d] a defendant of the constitutional right to a fair trial.’ ” State v. Dawson, 2017-
Ohio-2957, 91 N.E.3d 140, ¶ 54 (7th Dist.), citing State v. DeMarco, 31 Ohio St.3d 191,
509 N.E.2d 1256 (1987), paragraph two of the syllabus. In Ohio, it is generally recognized
that “given the myriad [of] safeguards provided to assure a fair trial, and taking into
account the reality of the human fallibility of the participants, there can be no such thing
as an error-free, perfect trial, and that the Constitution does not guarantee such a trial.”
State v. Rupp, 7th Dist. No. 05 MA 166, 2007-Ohio-1561, ¶ 83, quoting State v. Jones,
90 Ohio St.3d 403, 422, 739 N.E.2d 300 (2000).
{¶60} Based on our analysis of Appellant’s arguments, he has not shown any
error, and so clearly cannot demonstrate cumulative error. As such, Appellant’s sixth
assignment of error is without merit and is overruled.
ASSIGNMENT OF ERROR NO. 7
Case No. 21 BE 0048
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The trial court's sentence of Appellant was contrary to law for failing to make
the required findings, pursuant to R.C. 2929.14(C)(4), to impose
consecutive sentences.
{¶61} Appellant argues that in imposing sentence, the court failed to make any
findings under R.C. 2914.14(C)(4) subsections (a), (b), or (c). He also contends that there
is no connection between the two separate incidents that were joined for trial, thus
negating the court’s finding of a course of conduct. He further argues that the court’s sole
statement as to his criminal history was that it was “quite lengthy,” which was not enough
on which to base the consecutive sentences.
{¶62} Pursuant to R.C. 2929.14(C)(4), before a trial court can impose consecutive
sentences on a defendant, the court must find:
[T]hat the consecutive service is necessary to protect the public from future
crime or to punish the offender and that consecutive sentences are not
disproportionate to the seriousness of the offender's conduct and to the
danger the offender poses to the public, and if the court also finds any of
the following:
(a) The offender committed one or more of the multiple offenses while the
offender was awaiting trial or sentencing, was under a sanction imposed
pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or
was under post-release control for a prior offense.
Case No. 21 BE 0048
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(b) At least two of the multiple offenses were committed as part of one or
more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the
offender.
{¶63} A trial court must make the consecutive sentence findings at the sentencing
hearing and must additionally incorporate the findings into the sentencing entry. State v.
Williams, 2015-Ohio-4100, 43 N.E.3d 797, 806, ¶ 33-34 (7th Dist.), citing State v. Bonnell,
140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. The court is not required to
state reasons in support nor is it required to use any “magic” or “talismanic” words, so
long as it is apparent that the court conducted the proper analysis. Williams at ¶ 34, citing
State v. Jones, 7th Dist. Mahoning No. 13 MA 101, 2014-Ohio-2248, ¶ 6; State v. Verity,
7th Dist. Mahoning No. 12 MA 139, 2013-Ohio-1158, ¶ 28-29.
{¶64} The Ohio Supreme Court has recently readdressed consecutive sentence
review. State v. Gwynne, -- Ohio St. 3d --, 2022-Ohio-4607, -- N.E.3d --. As to the
standard of review, the Gwynne Court held that:
The evidentiary standard for changing the trial court's order of consecutive
sentences is not deference to the trial court; the evidentiary standard is that
the appellate court, upon a de novo review of the record and the findings,
Case No. 21 BE 0048
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has a “firm belief” or “conviction” that the findings—the criteria mandated by
the legislature to be met before the exception to concurrent sentences can
apply—are not supported by the evidence in the record.
Id. at ¶ 23, citing State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231,
¶ 22; see also Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954).
R.C. 2953.08(G)(2) does not require the high level of deference that comes
with an abuse-of-discretion standard of review. This type of deference
would permit a court of appeals to modify a defendant's sentence or to
vacate the sentence and remand only when no sound reasoning process
can be said to support the decision, or where the trial court exhibited an
arbitrary or unconscionable attitude when it imposed the consecutive
sentences.
Gwynne at ¶ 19, citing AAAA Ents., Inc. v. River Place Community Urban Redevelopment
Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990); Huffman v. Hair Surgeon, Inc., 19
Ohio St.3d 83, 87, 482 N.E.2d 1248 (1985).
{¶65} The Court then provided “practical guidance on consecutive-sentence
review.” Id. at ¶ 24. The court explained that a consecutive sentence review is two-fold:
first, whether the record contains the requisite R.C. 2929.14(C) findings. Id. at ¶ 25.
Second, “[i]f the appellate court determines that the R.C. 2929.14(C)(4) consecutive-
sentence findings have been made, the appellate court may then determine whether the
record clearly and convincingly supports those findings.” Id. at ¶ 26. “The point here is
that if even one of the consecutive-sentence findings is found not to be supported by the
Case No. 21 BE 0048
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record under the clear-and-convincing standard provided by R.C. 2953.08(G)(2), then the
trial court's order of consecutive sentences must be either modified or vacated by the
appellate court.” Id., citing R.C. 2953.08(G)(2).
{¶66} “When reviewing the record under the clear-and-convincing standard, the
first core requirement is that there be some evidentiary support in the record for the
consecutive-sentence findings that the trial court made.” Id. at ¶ 28. “The second
requirement is that whatever evidentiary basis there is, that it be adequate to fully support
the trial court's consecutive-sentence findings. This requires the appellate court to focus
on both the quantity and quality of the evidence in the record that either supports or
contradicts the consecutive-sentence findings.” Id. at ¶ 29. We note that Gwynne was
released after briefing concluded in this matter, thus the parties do not cite Gwynne or
apply its law.
{¶67} At the sentencing hearing, the trial court found “[c]onsecutive service is
necessary to protect the public from further crime and to punish the offender, and
consecutive sentences are not disproportionate to the seriousness of the offender’s
conduct, and to the danger the offender poses to the public.” (Sentencing Hrg. Tr., p. 20.)
The court also found that Appellant’s criminal history was extensive and demonstrated
the need to protect the public from future crimes. The court relied heavily on the fact that
Appellant “should never have been in that truck or that car, that vehicle, that afternoon.
Forgetting his operation, the way he operated the vehicle, forgetting that, he should not
have been in the vehicle driving it.” (Sentencing Hrg. Tr., pp. 20-21.)
{¶68} On appeal, Appellant complains that the only record of his criminal history
is a single line in the transcript stating that his history is quite lengthy. However, the court
Case No. 21 BE 0048
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had ordered a presentencing investigation (“PSI”), which details Appellant’s criminal
history in both Ohio and California. The PSI reveals thirty-three prior criminal charges, a
significant amount of which involve conduct similar to the conduct giving rise to the instant
charges. We note that other charges were discussed at the sentencing hearing.
However, after Appellant’s counsel informed the court that those charges had been
expunged, the court expressly stated it would not consider them. This refutes Appellant’s
assertion that the trial court did not understand Appellant’s criminal history.
{¶69} There is a plethora of evidence to support the court’s conclusion as to
Appellant’s criminal history and the need to protect society from future crimes. The court
emphasized that the underlying conduct, driving under the influence, has been a recurrent
theme for Appellant as evidenced by the prior charges and convictions. The harm is
particularly serious in this matter as it resulted in a death. This record contains evidence
to support the court’s imposition of consecutive sentences. We note that only counts two,
six, and seven were ordered to run consecutively. Counts three, four, and five (the OVI
convictions) were ordered to run concurrently.
{¶70} However, although not raised by the parties, we note that the court made a
clerical error in its judgment entry. At the sentencing hearing, the court properly ordered
an indeterminate sentence of eleven to sixteen and one-half years on count two. In its
judgment entry, the court simply ordered a sentence of eleven years, with no mention of
the maximum term. As the court properly announced the sentence at the hearing, we
remand the matter for the sole purpose of issuing a nunc pro tunc entry to correct
Appellant’s sentence in this regard.
Case No. 21 BE 0048
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{¶71} Appellant’s seventh assignment of error is without merit and is overruled.
However, the matter is remanded for a nunc pro tunc entry concerning Appellant’s
sentence as to count two.
Conclusion
{¶72} Appellant raises several arguments essentially challenging the joinder of
two separate incidents in one trial, ineffective assistance of counsel, sufficiency of the
evidence supporting his convictions, and imposition of consecutive sentences. For the
reasons provided, Appellant’s arguments are without merit and the judgment of the trial
court is affirmed. However, the matter is sua sponte remanded to the trial court for the
limited purpose of obtaining a nunc pro tunc entry to correct Appellant’s sentence on
count two reflecting the indeterminate nature of this sentence.
Robb, J., concurs.
Hanni, J., concurs.
Case No. 21 BE 0048
[Cite as State v. Boyd, 2023-Ohio-1120.]
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 Belmont County, Ohio, is affirmed. However, we hereby sua
sponte remand this matter to the trial court for the limited purpose of obtaining a nunc pro
tunc entry to correctly reflect the indeterminate nature of a portion of Appellant’s sentence
according to law and consistent with this Court’s Opinion. 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.