State v. McHenry , 2018 Ohio 3383 ( 2018 )

[Cite as State v. McHenry, 2018-Ohio-3383.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-170671
TRIAL NO. 16CRB-33249B
Plaintiff-Appellee, :
O P I N I O N.
vs. :
ALANDONAL MCHENRY, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: August 24, 2018
Paula Boggs Muething, City Solicitor, Natalia S. Harris, City Prosecutor, and
Christopher Liu, Appellate Director, for Plaintiff-Appellee,
Timothy J. McKenna, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Judge.
{¶1} Defendant-appellant Alandonal McHenry appeals his conviction,
following a jury trial, for vehicular manslaughter in violation of R.C. 2903.06(A)(4).
{¶2} In four assignments of error, McHenry argues that the verdict form
was in error because it failed to require the jury to make a finding on a predicate
offense in violation of R.C. 2945.75(A)(2), that his conviction was not supported by
sufficient evidence, that it was against the manifest weight of the evidence, and that
he received ineffective assistance from his trial counsel. Finding no merit to his
arguments, we affirm the trial court’s judgment.
Factual Background
{¶3} On September 24, 2016, a vehicle driven by McHenry was involved in
a single-vehicle accident on Interstate 75. McHenry’s front-seat passenger Jeffrey
Griesinger died from injuries sustained in the accident. McHenry was charged with
vehicular homicide, in violation of R.C. 2903.06(A)(3), and vehicular manslaughter,
in violation of R.C. 2903.06(A)(4).
{¶4} Evidence presented at trial established that McHenry had been driving
a pickup truck that was towing a trailer carrying various lawn-care equipment.
McHenry had been traveling in the right lane when traffic in front of him slowed
suddenly. To avoid hitting the car in front of him, McHenry swerved to the right.
McHenry’s trailer jackknifed, causing the truck to slide sideways into a guardrail and
a light post. Griesinger was ejected from the vehicle and suffered extensive injuries,
from which he later died.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶5} Cincinnati Police Officer Alexandra Hoskins responded to the accident
scene and spoke to McHenry. Officer Hoskins testified that McHenry was very
distraught and told her that he had been coming in too fast and had put his foot on
the brake, and that the trailer had caused him to lose control of his vehicle.
Cincinnati Police Officer Aaron Myers, who had been Officer Hoskins’s assigned
recruit at the time of the accident, also spoke with McHenry. McHenry told Officer
Myers that he had been driving approximately 55 m.p.h. when the car in front of him
braked, requiring McHenry to brake and swerve to avoid hitting it. McHenry made a
similar statement to Sergeant Michael Machenheimer, stating that he had slammed
on his brakes because traffic ahead had suddenly stopped, and that he had thought it
would be better to hit the guardrail instead of the car in front of him.
{¶6} Cincinnati Police Specialist Jerry Enneking testified that he had
conducted a crash scene investigation. Specialist Enneking determined that
McHenry had failed to control his vehicle in a safe manner when he swerved to the
right while braking, and that roadway and weather conditions had not been a factor
in the accident. Specialist Enneking testified that McHenry had been traveling at a
speed that did not allow him to stop or safely avoid a crash.
{¶7} McHenry testified that he had been traveling south on Interstate 75
when the car in front of him had suddenly stopped. McHenry hit his brakes and
attempted to veer to the right, but the trailer jackknifed, causing the truck to turn
and slide into a light pole and guardrail. McHenry testified that he had driven the
truck and trailer on previous occasions and that he had not been speeding when the
accident occurred. He denied telling Officer Hoskins that he had “been coming in
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OHIO FIRST DISTRICT COURT OF APPEALS
too fast.” He further denied telling Sergeant Machenheimer that he had slammed on
his brakes, and testified that he had gradually pressed on the brakes.
{¶8} The jury acquitted McHenry of vehicular homicide, but found him
guilty of vehicular manslaughter.
R.C. 2945.75
{¶9} In his first assignment of error, McHenry argues that the verdict form
for the offense of vehicular manslaughter violated R.C. 2945.75(A)(2) because it
failed to require a separate finding for the predicate offense of failure to control a
motor vehicle. McHenry’s argument is misplaced.
{¶10} R.C. 2945.75(A)(2) provides:
(A) When the presence of one or more additional elements makes
an offense one of more serious degree:
* * *
(2) A guilty verdict shall state either the degree of the offense of which
the offender is found guilty, or that such additional element or
elements are present. Otherwise, a guilty verdict constitutes a finding
of guilty of the least degree of the offense charged.
This statute applies when the presence of an additional element makes the offense
one of a more serious degree. State v. Gibert, 2017-Ohio-7676, 97 N.E.3d 1004, ¶ 18
(1st Dist.).
{¶11} McHenry was found guilty of vehicular manslaughter in violation of
R.C. 2903.06(A)(4), which provides that:
(A) No person, while operating or participating in the operation of a
motor vehicle, motorcycle, snowmobile, locomotive, watercraft, or
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OHIO FIRST DISTRICT COURT OF APPEALS
aircraft, shall cause the death of another or the unlawful termination of
another’s pregnancy in any of the following ways:
* * *
(4) As the proximate result of committing a violation of any provision of any
section contained in Title XLV of the Revised Code that is a minor
misdemeanor * * *.
Here, the state alleged that McHenry had caused the death of Griesinger while
committing a violation of R.C. 4511.202, operating a vehicle without reasonable
control.
{¶12} McHenry’s failure to operate his vehicle with reasonable control was a
basic element of the offense of vehicular manslaughter under R.C. 2903.06(A)(4). It
was not an element that elevated the degree of the offense. Because the complaint
did not allege, and the state did not seek to prove, any additional element that would
have elevated the degree of the offense or made it a more serious degree, R.C.
2945.75(A)(2) was inapplicable and the jury was not required to specifically find on
the verdict form that McHenry had operated his vehicle without reasonable control.
{¶13} McHenry was charged with, and found guilty of, vehicular
manslaughter as a misdemeanor of the second degree. This was the least degree of
the offense of vehicular manslaughter. R.C. 2903.06(D) provides:
Whoever violates division (A)(4) of this section is guilty of vehicular
manslaughter. Except as otherwise provided in this division, vehicular
manslaughter is a misdemeanor of the second degree. Vehicular
manslaughter is a misdemeanor of the first degree if, at the time of the
offense, the offender was driving under a suspension or cancellation
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OHIO FIRST DISTRICT COURT OF APPEALS
imposed under Chapter 4510. or any other provision of the Revised
Code or was operating a motor vehicle or motorcycle, did not have a
valid driver’s license, commercial driver’s license, temporary
instruction permit, probationary license, or nonresident operating
privilege, and was not eligible for renewal of the offender’s driver’s
license or commercial driver’s license without examination
under section 4507.10 of the Revised Code or if the offender previously
has been convicted of or pleaded guilty to a violation of this section or
any traffic-related homicide, manslaughter, or assault offense.
Had the state sought to prove any of the elements in R.C. 2903.06(D) that would
have elevated the commission of the offense of vehicular manslaughter to a
misdemeanor of the first degree, the verdict form would have been required to
comply with R.C. 2945.75(A)(2) and include either the degree of the offense or a
statement that the additional element was found. But because the state did not seek
to prove any of these additional elements, and McHenry was charged with the least
degree of the offense, R.C. 2945.75(A)(2) was inapplicable.
{¶14} The jury was properly instructed on the elements of vehicular
manslaughter under R.C. 2903.06(A)(4) and operating a vehicle without reasonable
control under R.C. 4511.202. The verdict form for vehicular manslaughter stated
“We the jury, in the issue joined, find the defendant, ALANDONAL MCHENRY,
GUILTY of Vehicular Manslaughter in violation of Section 2903.06(A)(4) of the Ohio
Revised Code.” By finding McHenry guilty of vehicular manslaughter, the jury
necessarily found that the state had proven all the elements of that offense, including
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OHIO FIRST DISTRICT COURT OF APPEALS
that McHenry had failed to control his vehicle in violation of R.C. 4511.202. This was
an element of the offense itself, not an element of enhancement.
{¶15} Having determined that the verdict form was not in error, we overrule
McHenry’s first assignment of error.
Sufficiency and Weight
{¶16} In his second and third assignments of error, McHenry argues that his
conviction was not supported by sufficient evidence and was against the manifest
weight of the evidence. He specifically challenges the proximate cause element of his
conviction, contending that the record fails to demonstrate that Griesinger died as a
result of his actions. He argues that Griesinger’s death was not foreseeable or within
the scope of risk created by his conduct. We find this argument to be without merit.
{¶17} By finding McHenry guilty of vehicular manslaughter, the jury found
that he had caused Griesinger’s death “as the proximate result” of committing a
violation of R.C. 4511.202. See R.C. 2903.06(A)(4).
{¶18} In the context of an involuntary-manslaughter conviction, this court
has held that the “proximate result” or “proximate cause” element “is satisfied when
the accused sets in motion a sequence of events that make the death of another a
‘direct, proximate, and reasonably inevitable’ consequence.” State v. Lovelace, 137
Ohio App.3d 206, 215, 738 N.E.2d 418 (1st Dist.1999), quoting State v. Chambers, 53
Ohio App.2d 266, 272-273, 373 N.E.2d 393 (9th Dist.1977).
{¶19} The Second District considered a similar argument when reviewing the
sufficiency of the evidence supporting a vehicular-manslaughter conviction in State
v. Wieckowski, 2d Dist. Clark No. 2010-CA-111, 2011-Ohio-5567. Rejecting the
appellant’s proximate-cause argument, the court held that “[i]t is not necessary that
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OHIO FIRST DISTRICT COURT OF APPEALS
the precise consequences of the conduct be foreseeable but only that what actually
transpired was naturally and logically within the scope of the risk created by the
conduct.” Id. at ¶ 12.
{¶20} Here, Griesinger’s death was within the scope of risk created by
McHenry’s conduct. But for McHenry’s failure to control his vehicle and crash into
the guardrail and light post, Griesinger’s death would not have occurred. Specialist
Enneking’s testimony established that, although McHenry was not speeding, he had
been traveling at a speed that did not allow him to stop or to safely avoid a crash
while towing a trailer. That Griesinger ultimately died from injuries following the
crash “was not so extraordinary or surprising that it would be simply unfair to hold
the defendant criminally responsible for something so unforeseeable.” Lovelace at
216, citing LaFave & Scott, Criminal Law, Section 35, 246 (1972).
{¶21} The record contains sufficient evidence to establish that McHenry had
caused Griesinger’s death while operating his vehicle without reasonable control in
violation of R.C. 2903.06(A)(4). See State v. Martin, 20 Ohio App.3d 172, 175, 485
N.E.2d 717 (1st Dist.1983). And this was not the rare case in which the jury lost its
way and created such a manifest miscarriage of justice that McHenry’s conviction
must be reversed. See State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541(1997).
{¶22} The second and third assignments of error are overruled.
Ineffective Assistance
{¶23} In his fourth assignment of error, McHenry argues that he received
ineffective assistance from his trial counsel.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶24} Counsel will not be considered ineffective unless her or his
performance was deficient and caused actual prejudice to the defendant. Strickland
v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.
Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989). Counsel’s performance
will only be deemed deficient if it fell below an objective standard of reasonableness.
Strickland at 688; Bradley at 142. A defendant is only prejudiced by counsel’s
performance if there is a reasonable probability that the outcome of the proceedings
would have been different but for the deficient performance. Strickland at 694;
Bradley at 142. A reviewing court must indulge a presumption that counsel’s
behavior fell within the acceptable range of reasonable professional assistance.
Strickland at 689; Bradley at 142.
{¶25} McHenry contends that his counsel was ineffective for failing to
engage a crime scene reconstructionist. Generally, the failure to call an expert
witness does not constitute ineffective assistance of counsel. State v. Chambers, 1st
Dist. Hamilton Nos. C-060922 and C-061036, 2008-Ohio-470, ¶ 28. Although
McHenry’s counsel did not hire an expert to conduct an accident reconstruction,
counsel thoroughly cross-examined Specialist Enneking, who investigated the crash
and prepared a diagram of the accident scene. Counsel’s decision to cross-examine
the state’s witness, rather than to call his own expert, was a matter of trial strategy.
Id. Further, any testimony that a crime scene reconstructionist would have provided
is purely speculative, and McHenry cannot demonstrate that the outcome of the
proceedings would have been different but for counsel’s failure to hire such an
expert. See Strickland at 694; Bradley at 142.
{¶26} The fourth assignment of error is overruled.
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OHIO FIRST DISTRICT COURT OF APPEALS
Conclusion
{¶27} Having overruled McHenry’s assignments of error, we accordingly
affirm the judgment of the trial court.
Judgment affirmed.
MOCK, P.J., and ZAYAS, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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