State v. Hough ( 2024 )

[Cite as State v. Hough, 2024-Ohio-2430.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 23AP-478
v. : (C.P.C. No. 17CR-6061)
Richard M. Hough, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on June 25, 2024
On brief: G. Gary Tyack, Prosecuting Attorney, and
Sheryl L. Prichard, for appellee. Argued: Sheryl L. Prichard
and Jeffrey Devereaux, certified legal intern.
On brief: Timothy Young, Ohio Public Defender, and Max
Hersch, for appellant.
APPEAL from the Franklin County Court of Common Pleas
LELAND, J.
{¶ 1} Defendant-appellant, Richard M. Hough, appeals from a judgment of
conviction and sentence entered by the Franklin County Court of Common Pleas following
a jury trial in which the jury returned verdicts finding him guilty of one count of aggravated
vehicular homicide, three counts of aggravated vehicular assault, three counts of vehicular
assault, and one count of operating a motor vehicle while under the influence of a drug of
abuse.
I. Facts and Procedural History
{¶ 2} On November 7, 2017, appellant was indicted on two counts of aggravated
vehicular homicide, in violation of R.C. 2903.06, three counts of aggravated vehicular
assault, in violation of R.C. 2903.08, three counts of vehicular assault, in violation of R.C.
No. 23AP-478 2
2903.08, one count of operating a vehicle under the influence of alcohol, a drug of abuse,
or a combination of them, in violation of R.C. 4511.19, and three counts of operating a motor
vehicle while under the influence of a listed controlled substance or a listed metabolite of a
controlled substance, in violation of R.C. 4511.19.
{¶ 3} The matter initially came for trial before a jury on August 26, 2019. Prior to
jury deliberations, “[c]ounts 10, 11, and 12 of the indictment, the operating a vehicle while
under the influence per se counts, were * * * dismissed * * * on the basis that [appellant’s]
blood sample was taken outside the three-hour window required for those counts.” State
v. Hough, 10th Dist. No. 19AP-682, 2021-Ohio-2198, ¶ 4 (“Hough I”).
{¶ 4} On August 29, 2019, the jury returned verdicts finding appellant guilty of
“Counts 1 through 9.” Id. at ¶ 9. The trial court sentenced appellant by judgment entry filed
September 12, 2019. In its entry, “[t]he court noted several counts merged and [appellant]
was sentenced to 6 years on Count 1, as well as 3 years on Counts 3, 5, and 7, to be served
consecutive to Count 1 and to each other, and 6 months on Count 9 to be served
concurrently, for a total of 15 years.” Id. at ¶ 10.
{¶ 5} Appellant appealed his convictions and raised three assignments of error,
including a challenge to the trial court’s failure to conduct a competency evaluation. In
Hough I, this court overruled all three assignments of error and affirmed the judgment of
the trial court. Appellant filed an appeal with the Supreme Court of Ohio which accepted
jurisdiction over one proposition of law, i.e., that the trial court erred by not conducting a
hearing on his motion for competency evaluation. In State v. Hough, 169 Ohio St.3d 769,
2022-Ohio-4436 (“Hough II”), the Supreme Court held this court erred in concluding the
trial court’s failure to hold a competency hearing was harmless error; the Supreme Court
therefore vacated appellant’s convictions and remanded the matter to the trial court “to
provide * * * an inquiry into [appellant’s] competency that is contemporaneous with his
trial.” Id. at ¶ 42.
{¶ 6} Following remand, the trial court conducted a hearing on February 16, 2023
regarding the court’s receipt of a competency evaluation report dated February 2, 2023.
The trial court noted the report, prepared by Benjamin J. Silber, Ph.D., found appellant
“was malingering, in the examiner’s opinion, and that because there’s a presumption of
competence and because of scales that he tested on indicating * * * he was either
No. 23AP-478 3
malingering or faking or giving intentional responses to make him look not competent, the
report concludes that he’s competent.” (Feb. 16, 2023 Tr. at 2-3.)
{¶ 7} On February 24, 2023, the trial court conducted an evidentiary hearing on
the competency evaluation report. During the hearing, Dr. Silber testified on behalf of
plaintiff-appellee, State of Ohio. At the conclusion of the hearing, the court indicated it
would order a second competency evaluation of appellant. The trial court conducted a
subsequent hearing on April 5, 2023, at which time the parties stipulated to a report
prepared by Brian O’Reilly, Ph.D., dated March 30, 2023. In that report, Dr. O’Reilly
concluded appellant “is competent to stand trial and able to assist with his defense and
understand the nature of the charges and the objective of the proceedings.” (Apr. 5, 2023
Tr. at 2-3.)
{¶ 8} On June 26, 2023, the matter came for retrial before a jury. During the
retrial, in addition to the testimony of witnesses called to the stand, the state read portions
of prior testimony from the first trial into the record due to the unavailability of several
witnesses. The state initially read into the record the prior testimony of Amanda Griggs
(hereafter “Amanda”), the mother of two children. On August 8, 2017, Amanda was a
passenger in a vehicle driven by her mother-in-law, Betty Griggs (hereafter “Betty”). On
that date, Betty picked up Amanda and her daughters and began driving to a Chuck E.
Cheese restaurant at the Eastland Mall.
{¶ 9} Betty traveled on Refugee Road toward an exit ramp to merge onto State
Route 33. As they entered the ramp, Amanda “heard Betty say something * * * like, ‘Oh,
my God’ or something got my attention.” (June 26, 2023 Tr. Vol. 1 at 36.) Amanda “looked
up” and observed “a red truck or SUV where it shouldn’t have been.” (June 26, 2023 Tr.
Vol. 1 at 36.) Amanda testified that Betty’s vehicle was traveling in the correct direction,
but the red vehicle was traveling against traffic. The “last thing” Amanda remembered was
“the vehicle coming toward us,” and then “[w]aking up in the hospital.” (June 26, 2023 Tr.
Vol. 1 at 36.)
{¶ 10} Amanda remained in the hospital for two months; she described her injures
as follows: “My left arm was nearly severed. Broken. Nearly severed. Both of my legs were
broken. I had 13 broken ribs. Internal bleeding. I ended up * * * losing my spleen. Having
my spleen removed. Waking up unable to breathe, so I was intubated on a breathing
No. 23AP-478 4
machine for several days.” (June 26, 2023 Tr. Vol. 1 at 38-39.) Amanda testified she
received pain medication, which was an issue for her because she “had been in recovery
from addiction, opiate pain pill addiction, for some time.” (June 26, 2023 Tr. Vol. 1 at 42.)
{¶ 11} Amanda’s youngest daughter, who was two years of age at the time of the
incident, suffered a “subdural hematoma,” resulting in “staples and scars from the top of
her head down the back of her head into the back.” (June 26, 2023 Tr. Vol. 1 at 43.)
Amanda’s older daughter was hospitalized for one month and suffered “severe” trauma to
her head and required “follow-up surgeries for her leg.” (June 26, 2023 Tr. Vol. 1 at 44.)
Amanda testified there were “ongoing concerns about her [older daughter’s] development,
intellectual and emotional development.” (June 26, 2023 Tr. Vol. 1 at 44.) Amanda stated
that her older daughter, who is currently in the fifth grade, “relates everything to before the
accident and after the accident.” (June 26, 2023 Tr. Vol. 1 at 45.)
{¶ 12} On August 8, 2017, Columbus Police Officer Robert Barrett prepared a search
warrant for a blood draw, and he assisted other officers “with the execution of the search
warrant” at Grant Hospital; a blood sample was drawn from appellant at 3:48 p.m. that
day. (June 26, 2023 Tr. Vol. 1 at 56-57.)
{¶ 13} On August 8 2017, Wendy Duke, a paramedic with the Columbus Fire
Department, responded to a motor vehicle accident on the freeway ramp at State Routes
104 and 33. Duke attended to a female accident victim, Betty, at the scene. Betty “was
telling us she couldn’t breathe,” and “[s]he was starting to go cyanotic.” (June 27, 2023 Tr.
Vol. 2 at 82.) Medical personnel began CPR and transported Betty to the hospital. Medics
administered “an oral pharyngeal airway,” and paramedics “also tried to needle
decompress [Betty] on both sides because we were concerned about air and blood in her
chest cavity that was causing her not to be able to breath[e].” (June 27, 2023 Tr. Vol. 2 at
83.) After going into cardiac arrest, Betty died a short time later that day.
{¶ 14} At trial, Nicholas Baldauf, a forensic toxicologist, identified state’s exhibit No.
120 as blood tubes drawn from appellant. Baldauf testified “the confirmatory test for
cocaine and the cocaine metabolite came back positive.” (June 27, 2023 Tr. Vol. 2 at 126.)
The “cocaine reported at 236.92 nanograms per milliliter,” and the cocaine metabolite
“reported at 2340.49 nanograms per milliliter.” (June 27, 2023 Tr. Vol. 2 at 126.)
No. 23AP-478 5
{¶ 15} On August 8, 2017, Columbus Police Officer Duane Ward was dispatched to
a reported accident at the interchange of State Routes 104 and 33. Upon arrival, Officer
Ward observed two disabled vehicles, a “[b]lue Nissan Sentra going * * * east on the
entrance ramp to 33 west or north,” and a “maroon Chevy Tahoe * * * going basically west
on the ramp facing the wrong direction so that the vehicle was going the wrong direction
up the ramp.” (June 27, 2023 Tr. Vol. 2 at 161.) Both vehicles had “[h]eavy front-edge
damage.” (June 27, 2023 Tr. Vol. 2 at 161.) Officer Ward testified the Tahoe, which had a
West Virginia license tag, “was traveling the wrong way,” and the Sentra was “going the
correct way.” (June 27, 2023 Tr. Vol. 2 at 174.)
{¶ 16} There were two adults and two children in the Sentra. Officer Ward observed
“the gentleman” associated with the Tahoe “was not in it. He was kind of away from it
sitting down.” (June 27, 2023 Tr. Vol. 2 at 164.) The officer estimated this person was “five
to seven feet” from the vehicle. (June 27, 2023 Tr. Vol. 2 at 168.) Officer Ward asked the
man what happened, and if he was okay; in response, he “just said, ‘Oh, man.’ ” (June 27,
2023 Tr. Vol. 2 at 170.) Officer Ward described the individual’s behavior as “indifferent,”
meaning “when you feel that they are impaired. And certain actions, not much emotions,
not much responding to two basic questions.” (June 27, 2023 Tr. Vol. 2 at 173.) At trial,
Officer Ward identified appellant as the person he observed that day.
{¶ 17} John Daniels, a forensic pathologist, testified the Franklin County Coroner’s
Office performed an autopsy of Betty, with a reported date of death of August 8, 2017.
Daniels stated the cause of death was “multiple blunt force injuries,” with the “most
significant injury” being a “pontomedullary laceration,” which “would almost
instantaneously stop breathing and disruption of central nervous system control of the
heart rate.” (June 27, 2023 Tr. Vol. 2 at 222-23.)
{¶ 18} On August 8, 2017, Columbus Police Officer Dan Perez was dispatched to the
accident scene, located at the “on-ramp that goes from eastbound 104 to State Route 33
towards Columbus in a northwesterly direction.” (June 27, 2023 Tr. Vol. 2 at 234.) Officer
Perez testified the Tahoe “belonged to the owner which came back to a Richard Hough out
of Logan, West Virginia.” (June 27, 2023 Tr. Vol. 2 at 256.) On August 26, 2017, Officer
Perez interviewed David Cotter, who provided information about observing a red Tahoe
No. 23AP-478 6
being driven erratically in the vicinity of the accident scene on the date of the events. At
trial, the officer identified photographic exhibits taken of the accident scene.
{¶ 19} During retrial, the prior testimony of Phil Biggs was read into the record. On
August 8, 2017, Biggs, a paramedic with the Columbus Fire Department, was dispatched to
the scene at 12:56 p.m. Biggs was accompanied by firefighter Steve Elliott. Several other
medics were already at the scene. Upon arrival, Biggs and Elliott “were assigned to the
gentleman sitting on the edge of the east side of the ramp.” (June 28, 2023 Tr. Vol. 3 at
316-17.) At the time, “the [p]atient was seated on the edge of the road about 40 feet from
his vehicle.” (June 28, 2023 Tr. Vol. 3 at 320.) Biggs testified that “[a]t some point during
the evaluation, the patient,” later identified as appellant, “indicated that the SUV across
from where he was sitting was his vehicle.” (June 28, 2023 Tr. Vol. 3 at 321.)
{¶ 20} Biggs prepared a report of his interaction with the patient, which stated in
part: “Throughout the time with this patient he was difficult to get answers from due to
talking in a low voice or refusing to answer. The patient got agitated when I pulled up the
back of his shirt to look for injuries.” (June 28, 2023 Tr. Vol. 3 at 322.) Biggs also noted
in the report the patient “had a difficult demeanor throughout the run,” and an
“unwillingness to provide much information.” (June 28, 2023 Tr. Vol. 3 at 323-24.) Medics
“applied a c-collar” to appellant and “initially put him on a backboard,” but the “[p]atient
refused to lay backward so he had to be moved off of the backboard and onto [a] cot.” (June
28, 2023 Tr. Vol. 3 at 325-26.) As Biggs was “preparing for an IV,” the patient “immediately
said he did not want one,” stating “the last time someone had done that, he got medication
that knocked him out.” (June 28, 2023 Tr. Vol. 3 at 327.)
{¶ 21} Robert G. Topmiller, chief of toxicology at the Hamilton County Coroner’s
Office, performed a review of laboratory testing of appellant’s blood samples. Topmiller
opined “that the 236.92 nanograms per milliliter * * * of cocaine reported by the Ohio State
Highway Patrol Crime Lab identified in [appellant’s] blood would indicate recent usage.”
(June 28, 2023 Tr. Vol. 3 at 361.) He further opined the concentration of cocaine found in
appellant’s blood, as well as “the behavior that was witnessed * * * right before the crash,
would have impaired his ability * * * to some degree to safely operate a motor vehicle at the
time of the crash.” (June 28, 2023 Tr. Vol. 3 at 362.)
No. 23AP-478 7
{¶ 22} David Cotter is a retired auto technician. On August 8, 2017, Cotter was in a
vehicle traveling northbound on State Route 33. Cotter testified he observed “an SUV
coming behind me quite away[] back, probably * * * ten, fourteen cars maybe. And all of
the sudden he was right behind me.” (June 28, 2023 Tr. Vol. 3 at 382.) He stated “the SUV
came up behind me pretty close and then he swerved over to the right berm. I was in the
right-hand lane. And he swerved over to the right berm and went around me, and cut back
in front of me.” (June 28, 2023 Tr. Vol. 3 at 383.) Cotter described the vehicle as “a Chevy
- - I think it was a Tahoe or something like that. It was an SUV. Maroon in color.” (June 28,
2023 Tr. Vol. 3 at 383.) After passing Cotter, the driver “cut back across in front of me, and
* * * it was close enough I could see that it had [a] West Virginia license on it. * * * And he
cut back across the front of me, across the left-hand land and down into the median, where
he drove * * * probably a couple hundred yards I suppose.” (June 28, 2023 Tr. Vol. 3 at
384.)
{¶ 23} Cotter stated the SUV was traveling on grass in the median, and the driver
then came “back up on the road, and across both lanes back over to the right-hand berm.”
(June 28, 2023 Tr. Vol. 3 at 384.) Cotter “thought [the driver] was going to stop. And he
was almost just a little farther north of where the ramp for Refugee Road would come down
and he made a U-turn and started up the ramp after that.” (June 28, 2023 Tr. Vol. 3 at
384-85.) Cotter “didn’t know what happened until I watched the news the next morning.”
(June 28, 2023 Tr. Vol. 3 at 385.)
{¶ 24} During the events, Cotter “didn’t actually see the driver until he started back,
after [the driver] had come back across the road and was over on the berm before he made
his U-turn to go back up the ramp.” (June 28, 2023 Tr. Vol. 3 at 385-86.) When
interviewed by police after the incident, Cotter described the driver as “a short-haired,
white male.” (June 28, 2023 Tr. Vol. 3 at 387.) Cotter saw “a glance” of the driver, but he
“wouldn’t say a real good look.” (June 28, 2023 Tr. Vol. 3 at 387.) Cotter did not observe
anyone else in the SUV except the driver.
{¶ 25} At the close of the state’s case-in-chief, the parties stipulated that appellant
was treated at Grant Medical Center “from August 8th of 2017 to August 12th of 2017,” at
which time he “reported right knee pain, right hip pain, and back pain”; he was diagnosed
No. 23AP-478 8
with and “treated for multiple fractures to his right hip socket with dislocation or partial
dislocation of the upper leg from the hip joint.” (June 29, 2023 Tr. Vol. 4 at 437-38.)
{¶ 26} Appellant called one witness, Harry Plotnick, Ph.D., a consultant in forensic
toxicology. Based on assumed facts presented by defense counsel regarding the incident,
Dr. Plotnick opined: “I didn’t find enough information upon which to base an opinion
within a reasonable degree of scientific certainty that the individual’s ability to operate a
motor vehicle was impaired by cocaine.” (June 29, 2023 Tr. Vol. 4 at 451-52.) He further
testified: “I don’t see anything else in the entire picture, the transportation to the hospital,
the evaluation at the hospital, that support the finding of an effect of a stimulant drug like
cocaine upon his performance. I didn’t say it wasn’t. I’m saying that there is not sufficient
information * * * for me to give an opinion within a reasonable degree of scientific certainty
that he was impaired by the drug.” (June 29, 2023 Tr. Vol. 4 at 452.)
{¶ 27} Following deliberations, the jury returned verdicts finding appellant guilty on
all nine counts. On July 5, 2023, the trial court conducted a sentencing hearing. By
amended judgment entry filed August 15, 2023, the trial court sentenced appellant to 8
years on Count 1, 3 years on Count 3, 4 years on Count 5, 3 years on Count 7, and 6 months
on Count 9, with all counts (except for Count 9) to be served consecutive to each other, for
a total aggregate sentence of 18 years. The court merged Counts 2, 4, 6, and 8 for purposes
of sentencing.
II. Assignments of Error
{¶ 28} Appellant appeals and assigns the following two assignments of error for our
review:
I. The trial court’s interjections demonstrated judicial bias,
denying Mr. Hough his right to the due process of law. The
Due Process Clause of the Fourteenth Amendment to the U.S.
Constitution; State ex rel. Wise v. Chand, 21 Ohio St.2d 113,
265 N.E.2d 613 (1970); State v. Weaver, 171 Ohio St.3d 429,
2022-Ohio-4371, 218 N.E.3d 806; Evid.R. 614(B).
II. The trial court imposed a vindictive sentence after Mr.
Hough’s successful appeal. The Due Process Clause of the
Fourteenth Amendment to the U.S. Constitution; North
Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d
656 (1969); Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201,
104 L.Ed.2d 865 (1989).
No. 23AP-478 9
III. Analysis
{¶ 29} Under his first assignment of error, appellant asserts the trial court, through
questions interposed during retrial, demonstrated judicial bias. Specifically, appellant
argues such questions emphasized facts favorable to the prosecution and bolstered the
credibility of the state’s expert witnesses.
{¶ 30} Evid.R. 614(B) affords the trial court “discretion to decide whether or not to
question a witness.” Yurkowski v. Univ. of Cincinnati, 10th Dist. No. 11AP-974, 2013-Ohio-
242, ¶ 60. Under this rule, “a trial court is permitted to question witnesses called by a party
as long as the questions are relevant and the questioning is done impartially.” In re Myers,
3d Dist. No. 13-03-61, 2004-Ohio-539, ¶ 8. Evid.R. 614(B) states: “The court may
interrogate witnesses, in an impartial manner, whether called by itself or by a party.” The
rule “ ‘exists because the trial court has an “obligation to control proceedings, to clarify
ambiguities, and to take steps to insure substantial justice.” ’ ” State v. Skerkavich, 8th
Dist. No. 105455, 2019-Ohio-4973, ¶ 13, quoting State v. Stadmire, 8th Dist. No. 81188,
2003-Ohio-873, ¶ 26, quoting State v. Kay, 12 Ohio App.2d 38, 49 (8th Dist.1967). Further,
“pursuant to Evid.R. 611(A), the trial court has discretion to control the flow of the trial,”
and such control “ ‘ “includes asking questions of the participants and the witnesses in a
search for truth.” ’ ” Id., quoting State v. Redon, 8th Dist. No. 92611, 2009-Ohio-5966, ¶ 8,
quoting State v. Prokos, 91 Ohio App.3d 39, 44 (4th Dist.1993), citing Evid.R. 614.
Accordingly, “[t]he right to question a witness, pursuant to Evid.R. 614(B), rests within the
sound discretion of the trial court.” State v. Vanloan, 12th Dist. No. CA2008-10-259, 2009-
Ohio-4461, ¶ 8.
{¶ 31} The ability of the trial court “to question a witness is restrained by the
requirement in Evid.R. 614(B) that the court must question impartially.” Brothers v.
Morrone-O’Keefe Dev. Co., L.L.C., 10th Dist. No. 05AP-161, 2006-Ohio-1160, ¶ 12.
However, in the absence of “ ‘ “any showing of bias, prejudice, or prodding of a witness to
elicit partisan testimony, it will be presumed that the trial court acted with impartiality [in
propounding to the witness questions from the bench] in attempting to ascertain a material
fact or to develop the truth.” ’ ” Id., quoting State v. Baston, 85 Ohio St.3d 418, 426 (1999),
quoting Jenkins v. Clark, 7 Ohio App.3d 93, 98 (2d Dist.1982). Further, “[a] trial court’s
questioning of a witness is not deemed partial for purposes of Evid.R. 614(B) merely
No. 23AP-478 10
because the evidence elicited during the interrogation was damaging to one of the parties.”
Klasa v. Rogers, 8th Dist. No. 83374, 2004-Ohio-4490, ¶ 32. Evid.R. 614(C) states that
“[o]bjections to the calling of witnesses by the court or to interrogation by it may be made
at the time or at the next available opportunity when the jury is not present.”
{¶ 32} In the present case, appellant did not object to the trial court’s questions
posed at trial, and therefore “our review is for plain error only, as assertions of structural
error do not preclude an appellate court from applying the plain-error standard when the
accused has failed to object.” State v. West, 168 Ohio St.3d 605, 2022-Ohio-1556, ¶ 28,
citing State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, ¶ 24. Under the plain error
standard, “the defendant bears the burden of ‘showing that but for a plain or obvious error,
the outcome of the proceeding would have been otherwise, and reversal must be necessary
to correct a manifest miscarriage of justice.’ ” Id. at ¶ 22, quoting State v. Quarterman, 140
Ohio St.3d 464, 2014-Ohio-4034, ¶ 16. Under Ohio law, “[p]lain error should be invoked
with utmost caution, only under exceptional circumstances to prevent a miscarriage of
justice.” State v. King, 2d Dist. No. 24141, 2011-Ohio-3417, ¶ 11, citing State v. Jenks, 61
Ohio St.3d 259, 282 (1991).
{¶ 33} Appellant first contends that questions posed by the trial court to two
witnesses, paramedic Duke and Officer Perez, emphasized undisputed facts. Regarding the
testimony of Duke, the record indicates the prosecutor questioned this witness on direct
examination regarding treating one of the accident victims who was having difficulty
breathing. Duke testified that paramedics initially attempted to insert an “oral pharyngeal
airway,” and “also tried to needle compress the patient.” (June 26, 2023 Tr. Vol. 1 at 83.)
At that point, the trial court asked the witness to “explain the procedure,” and the witness
provided an explanation regarding the insertion of a needle into the “pleural cavity.”
(June 26, 2023 Tr. Vol. 1 at 83-84.)
{¶ 34} While appellant characterizes the trial court’s inquiry as seeking to emphasize
a fact not in dispute, the record reflects the court requested the witness to explain/clarify a
procedure referenced by the witness, and such inquiry was relevant to the testimony and
within the parameters of Evid.R. 614(B). Further, despite appellant’s contention that the
inquiry resulted in the witness providing a “gruesome description,” the “mere fact that the
evidence elicited by a trial court’s questioning is potentially damaging to a party does not
No. 23AP-478 11
show a bias.” Holt v. Feron, 3d Dist. No. 9-17-43, 2018-Ohio-3318, ¶ 21, citing State v.
Lowe, 9th Dist. No. 25862, 2012-Ohio-907, ¶ 19.
{¶ 35} During the direct testimony of Officer Perez, the state introduced
photographs depicting the scene of the collision involving the two vehicles. The prosecutor,
in questioning the witness about one of the photographs, inquired: “[I]f you have this view,
are you driving in the right way or the wrong way in this photograph?” (June 27, 2023 Tr.
Vol. 2 at 269.) The witness responded: “If you are looking in that view, you are driving the
correct way.” (June 27, 2023 Tr. Vol. 2 at 269.) The trial court then asked the witness:
“[A]re you saying that [the] Tahoe would have come up this ramp the wrong way and
around the curve?” (June 27, 2023 Tr. Vol. 2 at 270.)
{¶ 36} While the record indicates, as argued by appellant, it was undisputed the
Tahoe was traveling the wrong way on the ramp, the court’s inquiry, in context, reflects an
attempt to clarify the witness’ testimony regarding the direction of travel of the subject
vehicles as depicted in a displayed photograph. In this respect, “questions posed for the
purpose of clarifying material facts do not qualify as improper examination.” O’Brien v.
Phillips, 10th Dist. No. 14AP-1026, 2015-Ohio-3901, ¶ 29, citing King at ¶ 13.
{¶ 37} Appellant also argues questions posed by the trial court bolstered the
credibility of prosecution expert witnesses. Appellant first contends the court, on several
occasions, asked witnesses to explain their training or accreditations.
{¶ 38} The record indicates the prosecutor, during direct examination of paramedic
Duke, asked this witness: “What training did you go through to prepare you for your work?”
(June 27, 2023 Tr. Vol. 2 at 77.) Duke responded: “I went through Firefighter I, Firefighter
II, EMT Basic, and EMT paramedic.” (June 27, 2023 Tr. Vol. 2 at 77.) The court then asked
the witness: “Can you explain that to the jury, what all that means?” (June 27, 2023 Tr.
Vol. 2 at 77.) During direct examination of forensic toxicologist Baldauf, in response to an
inquiry by the prosecutor as to whether “the OSP Crime Lab that you work for [is]
accredited in any way,” Baldauf responded the lab is “accredited through ANAB.” (June 27,
2023 Tr. Vol. 2 at 100.) The court then inquired: “What does [that] mean?” (June 27, 2023
Tr. Vol. 2 at 101.)
{¶ 39} Appellant has failed to show plain error based on the above inquiries. In
general, a trial court performs “a ‘gatekeeping’ role” regarding the qualification and
No. 23AP-478 12
relevancy of expert testimony. Abon, Ltd. v. Transcontinental. Ins. Co., 5th Dist. No. 2004-
CA-0029, 2005-Ohio-3052, ¶ 58. A review of the subject questions, i.e., requests to explain
the meaning of certain designations or accreditations, indicates the trial court sought to
elicit additional relevant information, and the questions posed did not suggest an opinion
about witness credibility or exhibit partiality. As observed by one court, there is a difference
between “objectively” referencing a witness’ “qualifications to answer a question” as
opposed to suggesting the testimony of a witness “is to be given enhanced weight and
credibility” because of such qualifications. United States v. Laureano-Perez, 797 F.3d 45,
54 (1st Cir.2015).
{¶ 40} Appellant next contends the trial court erred when it “implored two of the
prosecution’s expert witnesses that their opinions will be given to a reasonable degree of
medical or scientific certainty.” (Emphasis sic.) (Appellant’s Brief at 18.)
{¶ 41} During the testimony of forensic pathologist Daniels, the trial court inquired
of the witness: “And will you make sure all of your opinions are based upon a reasonable
degree of medical certainty and probability?” (June 27, 2023 Tr. Vol. 2 at 209.) The witness
responded: “That is correct.” (June 27, 2023 Tr. Vol. 2 at 209.) During the testimony of
toxicologist Topmiller, the trial court, in a like manner, noted the requirement that all
opinions “be based upon a reasonable degree of forensic and scientific accuracy.” (June 28,
2023 Tr. Vol. 3 at 361.) No objection was raised by appellant to this line of
inquiry/comment.
{¶ 42} In R.T. v. Knobeloch, 10th Dist. No. 16AP-809, 2018-Ohio-1596, ¶ 60, this
court addressed a similar contention in which the appellant therein challenged the
following inquiry by the trial court of the appellees’ expert witness: “When you give
opinions, Doctor, you have to make sure all of your opinions are to a reasonable degree of
medical certainty and probability, i.e., 51 percent or more likely. Will you make sure that
all your opinions are within that degree?” In rejecting appellant’s claim of bias or prejudice
from this type of inquiry, this court observed the trial court “was clarifying under what
circumstances [the expert] was permitted to express his medical opinion,” and that the
court “reminded” the expert witness “he was limited to opinions supported by a reasonable
degree of medical certainty and probability.” Id. We held that such “clarification can be
interpreted as beneficial to [the] appellants as well as the appellees.” Id.No. 23AP-478 13
{¶ 43} As alluded to by this court in Knobeloch, stating an expert opinion to a
reasonable degree of certainty is a requirement of Ohio law. See also State v. English, 77
Ohio App.3d 371, 381 (10th Dist.1991) (“An expert’s opinion generally is competent only if
the expert holds that opinion to a reasonable degree of scientific certainty.”). Upon review,
and in accordance with Knobeloch, appellant has failed to demonstrate plain error or
prejudice by the trial court regarding this line of inquiry.
{¶ 44} Finally, appellant contends that several questions posed by the trial court to
witnesses regarding the effect of cocaine on impairment were not impartial. During direct
testimony of Topmiller, the prosecutor asked Topmiller whether “the term ‘impaired his
ability’ to safely operate a motor vehicle * * * means unfit to drive?” (Tr. Vol. 3 at 362.) In
response, Topmiller stated: “Yes. I’m saying that based on the identification of cocaine that
was found in his blood and the high risk driving behavior that was exhibited by him
immediately prior to the crash, in my opinion would lead me to stating that I’d expect some
degree of impairment from - - that he be exhibiting some degree of impairment because of
that at the time of the crash.” (Tr. Vol. 3 at 362-63.) At that point, the trial court inquired:
“Because of the cocaine?” (June 28, 2023 Tr. Vol. 3 at 363.) The witness responded:
“Because of the cocaine, yes.” (June 28, 2023 Tr. Vol. 3 at 363.)
{¶ 45} Appellant has failed to show plain error. A review of the above exchange, in
context, indicates the trial court’s inquiry was to clarify the witness’ response. Again, such
inquiry is proper under Evid.R. 614(B). See, e.g., Elias v. Macek, 8th Dist. No. 78828
(Oct. 25, 2001) (No abuse of discretion by trial court under Evid.R. 614(B) where questions
of trial court demonstrated attempt to “impartially clarify what it believed was incomplete
or confusing testimony.”).
{¶ 46} Appellant also argues the framing of the trial court’s questions posed to
appellant’s expert, Dr. Plotnick, improperly “promoted the notion that [appellant] was
impaired by cocaine.” (Appellant’s Brief at 22.)
{¶ 47} During direct examination of Dr. Plotnick, counsel for appellant requested
the witness to assume certain facts as true. Based on those assumed facts, Dr. Plotnick
opined there was insufficient evidence for him “to give an opinion within a reasonable
degree of scientific certainty that [appellant] was impaired by the drug.” (June 29, 2023
Tr. Vol. 4 at 452.) Also on direct, the witness was questioned about the prior testimony of
No. 23AP-478 14
the state’s toxicologist, Topmiller, and Dr. Plotnick noted his disagreement with Topmiller
as to whether certain factors were relevant to the issue of impairment. On cross-
examination, the prosecutor questioned Dr. Plotnick about the effects of cocaine on an
individual, including inquiries about “stimulation” and “depressive” stages. (June 29, 2023
Tr. Vol. 4 at 457.)
{¶ 48} The record indicates that, following direct and cross-examination of Dr.
Plotnick, the trial court asked several follow-up questions of the witness related to the issue
of impairment in general, including whether an individual who ingests cocaine can “exhibit
signs of paranoia,” and whether cocaine “can * * * impair a person’s ability to drive.”
(June 29, 2023 Tr. Vol. 4 at 459.) The court also asked the witness whether his testimony
as to “things that you talked about in the urine[] would * * * be metabolites that had been
processed through the system.” (June 29, 2023 Tr. Vol. 4 at 460.)
{¶ 49} Upon review, the questions posed by the trial court, which were arguably
relevant, did not display partiality and “did not ‘indicate to the jury its opinion on the
evidence.’ ” State v. Phelps, 8th Dist. No. 51520 (Dec. 18, 1986), quoting State ex rel. Wise
v. Chand, 21 Ohio St.2d 113, 119 (1970). See also State v. Roark, 12th Dist. No. CA2012-
04-036, 2013-Ohio-217, ¶ 37 (trial court’s questions did not go beyond the parameters of
Evid.R. 614(B) where “tenor and nature of the court’s questions did not indicate that it was
expressing an opinion as to the evidence”); State v. Johnson, 10th Dist. No. 03AP-1103,
2004-Ohio-4842, ¶ 11 (trial court’s “follow-up questions” to witness were proper as
“designed to assist the jury’s search for the truth” and did not reflect an assessment of the
credibility of the witness or the evidence).
{¶ 50} We note that, following the trial court’s inquiries, the court afforded both
sides the opportunity to ask further questions of Dr. Plotnick, and the record indicates both
the defense and prosecution asked follow-up questions. We also note the trial court
provided the following curative instruction at trial:
If during the course of the trial, I said or did anything that you
consider an indication of my view of the facts, you’re
instructed to disregard it. I ask questions during every trial.
Take no - - take no concern about why I may have asked a
question. It’s not for me to decide anything about the facts of
this case. It’s up to you.
(June 29, 2023 Tr. Vol. 4 at 539.)
No. 23AP-478 15
{¶ 51} Under Ohio law, “[a] jury is presumed to follow the instructions, including
curative instructions, given it by a trial judge.” State v. Garner, 74 Ohio St.3d 49, 59 (1995).
Ohio courts, including this court, have held such an instruction acts to minimize the risk of
potential prejudice from questions posed by a trial court. See State v. West, 10th Dist. No.
19AP-90, 2020-Ohio-3434, ¶ 17 (although the appellant failed to demonstrate plain error
as a result of trial court’s questions, “any arguable problem was cured by the trial court’s
curative instruction”); State v. Wilbon, 8th Dist. No. 82934, 2004-Ohio-1784, ¶ 17 (even
assuming jury had impression trial judge was not impartial, trial judge issued proper
curative instruction to jury).
{¶ 52} On the record presented, appellant has failed to show plain error or that the
trial court’s questions or remarks deprived him of the right to a fair trial. Accordingly,
appellant’s first assignment of error is not well-taken and is overruled.
{¶ 53} Under his second assignment of error, appellant contends the trial court
imposed a vindictive sentence following his successful appeal to the Supreme Court.
Appellant argues that, because he received a harsher sentence on resentencing from the
same trial judge after a successful appeal, his new sentence (which was three years longer
than the sentence he received after the first trial) is presumed vindictive. Appellant further
contends the trial court’s stated reasons for imposing an increased sentence were
pretextual.
{¶ 54} In general, “[a] court may impose a different sentence when a defendant is
again convicted after a retrial.” State v. Kincaid, 6th Dist. No. L-08-1163, 2009-Ohio-3211,
¶ 11, citing State v. Howard, 174 Ohio App.3d 562, 2007-Ohio-4334 (2d Dist.); N. Carolina
v. Pearce, 395 U.S. 711 (1969), overruled on other grounds, Alabama v. Smith, 490 U.S.
794 (1989). However, “[t]he Due Process Clause of the Fourteenth Amendment requires
* * * that vindictiveness against a defendant for having successfully attacked his first
conviction must play no part in the sentence he receives after a new trial.” Id., citing Pearce
at 725. In order to assure the absence of “any such retaliatory motivation” on the part of a
sentencing court, “whenever a judge imposes a more severe sentence upon a defendant
after a new trial, the reasons for the judge’s doing so must affirmatively appear and the
factual data upon which the increased sentence is based must be made part of the record
No. 23AP-478 16
for purposes of reviewing the constitutionality of the increased sentence.” Id., citing Pearce
at 726.
{¶ 55} In Wasman v. United States, 468 U.S. 559, 568 (1984), the United States
Supreme Court observed: “If it was not clear from the Court’s holding in Pearce, it is clear
from our subsequent cases applying Pearce that due process does not in any sense forbid
enhanced sentences or charges, but only enhancement motivated by actual vindictiveness
toward the defendant for having exercised guaranteed rights.” (Emphasis sic.) The term
“ ‘[a]ctual vindictiveness’ implies an animus against a defendant because he or she
exercised his or her right of appeal which resulted in the reversal of the prior conviction
based upon an error made by the sentencing judge.” Kincaid at ¶ 12, quoting Howard at
¶ 17. Therefore, “[b]y operation of law, an enhanced or increased sentence, by the same
sentencer, after a new trial and conviction, creates a rebuttable presumption of actual
vindictiveness.” Id., citing Wasman at 568-69, citing Pearce.
{¶ 56} In order to overcome the presumption of vindictiveness, a trial court “must
make affirmative findings on the record regarding conduct or events that occurred or were
discovered after the original sentencing.” State v. Davis, 2d Dist. No. 2006 CA 69, 2007-
Ohio-1030, ¶ 25, citing Pearce at 726; Wasman. Under Pearce, a trial court is required to
“make findings based upon objective information concerning identifiable conduct on the
part of the defendant.” Id., citing Pearce at 726. See also State v. Hitchcock, 5th Dist. No.
19-CA-56, 2020-Ohio-6751, ¶ 26, quoting Texas v. McCullough, 475 U.S. 134, 142-43
(1986) (The presumption of vindictiveness “may be overcome with any objective
information that justifies an increased sentence,” including “a trial court’s discovery of
‘new, probative evidence supporting a longer sentence.’ ”). Further, “[s]uch information
may come to the judge’s attention from evidence adduced at the second trial itself, from a
new presentence investigation, from the defendant’s prison record, or possibly from other
sources.” Pearce at 723. In this respect, “ ‘[r]elevant conduct or events’ sufficient to
overcome the presumption of vindictiveness are those that throw ‘new light upon the
defendant’s “life, health, habits, conduct, and mental and moral propensities.” ’ ” Davis at
¶ 26, quoting Wasman at 570-71, quoting Williams v. New York, 337 U.S. 241, 245 (1949).
{¶ 57} In the present case, it is undisputed the trial court stated on the record
reasons as to why it was imposing a harsher sentence. During the resentencing hearing,
No. 23AP-478 17
the court acknowledged “the law says for me to increase [appellant’s] sentence, it’s
presumed that I’m being vindictive. So in order to overcome the presumption of
vindictiveness in the law, I have to make findings and I have to make those findings part of
the record.” (July 5, 2023 Sentencing Tr. at 28.) The trial court further recognized “the
Pearce case permits a sentencing authority to justify an increased sentence by affirmatively
identifying relevant conduct or events that occurred subsequent to the original sentencing
proceedings.” (July 5, 2023 Sentencing Tr. at 28.)
{¶ 58} The trial court initially addressed the court’s “Exhibit A,” appellant’s
institutional report summary, which listed disciplinary infractions during his incarceration
since 2019. In reviewing the report’s infraction summary, the court noted “one, two, three,
four, five times that he refused to take medications.” (July 5, 2023 Sentencing Tr. at 29.)
On another occasion, prison officials discovered “contraband in his cell.” (July 5, 2023
Sentencing Tr. at 29.) With respect to one of the infractions, the trial court observed:
“[Appellant] was given a direct order and he said, ‘I don’t want to.’ So he had to be cuffed
up. He was arguing. He finally complied. And he has had repeated offenses. Those are all
documented. 6-27-21, 6-14-21, 5-23-20, 2-3-20.” (July 5, 2023 Sentencing Tr. at 29.) The
trial court also “note[d]” that appellant participated in “no [prison] programming.
Nothing.” (July 5, 2023 Sentencing Tr. at 29.)
{¶ 59} The trial court next addressed the court’s “Exhibit B,” the forensic evaluation
of Dr. Silber, dated February 2, 2023. (July 5, 2023 Sentencing Tr. at 30.) The court cited
Dr. Silber’s “conclusion * * * that [appellant] malingered, faked, malingered.” (July 5, 2023,
Sentencing Tr. at 30.) The trial court also reviewed court “Exhibit C,” the report of Dr.
O’Reilly, based on an evaluation conducted on March 30, 2023. (July 5, 2023 Sentencing
Tr. at 33.) The court noted Dr. O’Reilly found appellant “clearly malingered symptoms of
mental illness during his prior competency evaluation and during this evaluation. He
intentionally attempted to portray himself as ignorant or incompetent on psychological
testing.” (July 5, 2023 Sentencing Tr. at 34.) Regarding those exhibits, the trial court
observed: “These are all subsequent to the prior sentencing, so the Court can only believe
that he has intentionally malingered, intentionally faked these results.” (July 5, 2023
Sentencing Tr. at 35.)
No. 23AP-478 18
{¶ 60} The trial court also cited “further information regarding all the victims of this
case. Further effects, traumatic effects, that it’s had on them, some of which the Court knew
about, others that have become more aggravated.” (July 5, 2023 Sentencing Tr. at 35-36.)
During the resentencing proceeding, the court heard victim impact testimony that “the
harm” caused by appellant is “far greater than we were aware of at your first sentencing in
2019.” (July 5, 2023 Sentencing Tr. at 23.) The victim impact testimony included
statements regarding Amanda, who had committed suicide subsequent to the first trial, and
statements regarding both minor children. The court noted it “cannot directly contribute
Amanda’s suicide to [appellant], but the fact she committed suicide certainly had to be at
least indirectly related to what happened to her and the fact that she was taking opioids.”
(July 5, 2023 Sentencing Tr. at 36.) Finally, the trial court found appellant “has never, ever
accepted responsibility one iota. No remorse whatsoever. No sympathy. It’s almost
unbelievable to me. In fact, it’s one of the worst cases I’ve ever seen of somebody trying to
get out of a situation and not accepting any responsibility whatsoever.” (July 5, 2023
Sentencing Tr. at 36.)
{¶ 61} Appellant does not dispute the trial court gave reasons for the sentence
following retrial. Appellant argues, however, the reasons cited by the trial court were either
known at the time of the original sentencing or do not reflect new information about
appellant’s character or conduct. The record on resentencing, however, belies this
contention. As set forth above, the trial court cited identifiable conduct occurring
subsequent to the time of the original sentencing, including disciplinary incidents set forth
in the institutional report summary and the results of psychological testing of appellant
following his first trial indicating he intentionally malingered during two evaluations of his
competency to stand trial. Thus, the record reflects the trial court was presented with new
information that “shed new light upon [appellant’s] ‘conduct, and mental and moral
propensities.’ ” State v. Seymour, 12th Dist. No. CA2014-03-081, 2015-Ohio-1086, ¶ 5,
quoting Pearce at 723, quoting Williams at 245.
{¶ 62} Appellant seeks to minimize the exhibit evidence presented at the
resentencing hearing, arguing that his prison disciplinary record involved minor infractions
and further asserting that, despite conclusions by Drs. Silber and O’Reilly that he
malingered and was competent to stand trial, “the record in this case is not so clear-cut.”
No. 23AP-478 19
(Appellant’s Brief at 30.) The trial court, however, could have properly relied on the report
of Dr. Silber, who opined that appellant “malingered throughout the evaluation,” as well as
the report of Dr. O’Reilly who opined, based on his evaluation of appellant, that “he
malingered symptoms of mental illness” and “intentionally performed poorly on
psychological tests assessing his competency to stand trial.” (Court’s Ex. B at 1; Ex. C at 14.)
{¶ 63} Upon review, the trial court affirmatively stated its reasons for the sentence
imposed based on objective information concerning identifiable “conduct or events that
occurred subsequent to the original sentencing proceedings,” including appellant’s history
of institutional disciplinary infractions and the court’s view that he malingered, i.e., was
dishonest, during evaluations to avoid responsibility for his actions. Wasman at 572.
{¶ 64} Further, this new objective information “thoroughly rebutted” any
presumption of vindictiveness. Seymour at ¶ 6-7 (information set forth in the defendant’s
institutional summary report and prison incident reports, relied on by trial court as the
basis of increased sentence, rebutted presumption of vindictiveness). See also State v.
Johnson, 2d Dist. No. 23297, 2010-Ohio-2010, ¶ 14 (appellant’s prison records, reflecting
his “offense history while incarcerated,” provided trial court “with objective, non-vindictive
reasons” for imposing longer prison sentence); State v. King, 9th Dist. No. 10CA009755,
2010-Ohio-4400, ¶ 53 (trial court’s imposition of greater sentence upon resentencing not
based on vindictiveness where court “affirmatively stated its reasons for increasing [the
appellant’s] sentence” based on consideration of prison infractions occurring after time of
original sentence); State v. Mockbee, 4th Dist. No. 14CA3601, 2014-Ohio-4493, ¶ 14,
vacated on other grounds (evidence of the appellant’s five prison infractions, including
possession of contraband, following second trial “sufficient to rebut the presumption of
vindictiveness”); State v. Johnson, 2d Dist. No. 18937, 2002-Ohio-4339, ¶ 21 (no evidence
that harsher sentence was the product of judicial vindictiveness where re-sentencing entry
“pointed to facts occurring after initial sentencing * * * as justification,” including “the
defendant’s continuing lack of remorse, his failure to seek assistance for his problem with
drug and alcohol dependence, and the continuing and extensive psychological injury to the
victims”).
{¶ 65} Appellant’s further contention that the trial court’s stated reasons for the
increased sentence were pretextual is not persuasive. In support, appellant points to
No. 23AP-478 20
several comments by the trial court, including one made during a preliminary hearing in
which the court noted appellant’s prior “counsel ‘never once said he was incompetent
during the trial,’ ” as well as a comment in which the court “criticized” appellant’s former
counsel for having “waited so long” to bring the issue of competency to the court’s attention.
(Appellant’s Brief at 36-37.)
{¶ 66} Appellant’s attempt to portray the trial court’s reasons for the increased
sentence as pretextual, i.e., based on actual vindictiveness, is not persuasive. In this
respect, it has observed that “ ‘[t]he existence of a retaliatory motive would * * * be
extremely difficult to prove in any individual case.’ ” (Footnote omitted.) United States v.
Singletary, 75 F.4th 416, 427 (4th Cir.2023), quoting Pearce at 725. While appellant cites
to several comments by the trial court that may have reflected frustration over the course
of the proceedings, a review of the record indicates any such “personal commentary was
unrelated to the new sentence.” State v. Watson, 5th Dist. No. 22-COA-027, 2023-Ohio-
1469, ¶ 36. Rather, as previously addressed, the record indicates the trial court was
presented with “new information which cast new light on [the appellant’s] conduct, mental
and moral propensities.” Id. See also Singletary at 427, quoting Wasman at 572 (while “it
is possible – though unlikely – that a case could arise in which a * * * court’s stated reasons
for an increased sentence are so facially implausible [or] pretextual * * * that they cannot
rebut the presumption of vindictiveness,” such is not the case where the court “extensively
justified its higher sentence by reference to material, legitimately aggravating ‘conduct
[and] events that occurred subsequent to the original sentencing’ ”).
{¶ 67} Because the trial court stated on the record objective, non-vindictive reasons
justifying the increased sentence, and in the absence of evidence of actual vindictiveness,
appellant has failed to demonstrate a due process violation. Accordingly, appellant’s
second assignment of error is not well-taken and is overruled.
IV. Conclusion
{¶ 68} Based on the foregoing, appellant’s two assignments of error are overruled,
and the judgment of the Franklin County Court of Common Pleas is hereby affirmed.
Judgment affirmed.
LUPER SCHUSTER and BEATTY BLUNT, JJ., concur.