State v. Rickard

[Cite as State v. Rickard, 2015-Ohio-3298.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals Nos. WD-14-016
WD-14-017
Appellee
Trial Court Nos. 2013CR0574
v. 2013CR0596
Cody R. Rickard DECISION AND JUDGMENT
Appellant Decided: August 14, 2015
*****
Paul A. Dobson, Wood County Prosecuting Attorney, Gwen
Howe-Gebers, Chief Assistant Prosecuting Attorney, and
David T. Harold, Assistant Prosecuting Attorney, for appellee.
Lawrence A. Gold, for appellant.
*****
JENSEN, J.
{¶ 1} This is a consolidated appeal from the February 4, 2014 judgment entries of
the Wood County Court of Common Pleas, following a jury trial, in which appellant,
Cody R. Rickard, was found guilty of one count of murder, two counts of aggravated
vehicular homicide, two counts of felonious assault, and two counts of vehicular assault.
The trial court convicted and then sentenced Rickard to 15 years to life in prison on the
murder count, and 7 years to each of the felonious assault counts. The trial court ordered
the sentences to be served consecutively. Rickard now appeals. For the reasons that
follow, we affirm, in part, and reverse, in part, the judgments of the trial court.
{¶ 2} On October 28, 2013, numerous CSX employees and subcontractors were
replacing railroad tracks near the town of Bradner in Wood County, Ohio. A barricade
was placed at the intersection of James Street and Bradner Road (aka South Main Street)
indicating “ROAD CLOSED AT RAILROAD CROSSING LOCAL TRAFFIC ONLY.”
A second “ROAD CLOSED” barricade was placed across both lanes of Bradner Road,
approximately 372 feet south of the first road closed sign, just after the last private
residence before the road intersects the tracks. Vernon Bowling, a CSX mechanic, had
parked his truck, facing south, a few feet from the railroad crossing. The truck blocked a
portion of the northbound lane of Bradner Road approximately 139 feet south of the
second barricade.
{¶ 3} At approximately 11:18 a.m., several CSX employees were standing at the
back end of the truck waiting for Bowling to repair a machine that had broken down on
the track. Lewis Knott was seated on the back bumper of the truck, Jimmy D. Conley
and Paul Castle stood near Knott.
{¶ 4} At the same time, appellant drove his white Dodge Charger south on
Bradner Road. He drove around the first barricade, then into the grass around the second
2.
barricade. As he accelerated his vehicle, appellant struck a metal pole bearing a curve
warning sign located 65 feet south of the second barricade. Then, appellant struck a
wood utility pole located 59 feet south of the metal pole. Both the metal pole and the
wood pole were sheared from their bases.
{¶ 5} Appellant’s vehicle struck Conley, Castle, and the back panel of the
mechanic’s truck before it came to stop in a drainage ditch. Upon impact with
appellant’s vehicle, Castle’s body was thrown more than 80 feet. Castle died from
complications of multiple blunt force traumas. The collision caused Conley to fall onto
Knott. Conley suffered fractures to his pelvis and vertebrae. Knott suffered injuries to
his legs and hip.
{¶ 6} On November 7, 2013, in case No. 2013CR0574, the grand jury issued a
four-count indictment against appellant. In Counts 1 and 3, appellant was charged with
vehicular assault on Lewis Knott and Jimmy Conley, in violation of R.C.
2903.08(A)(2)(a) and (C)(2), felonies of the fourth degree. In Count 2, appellant was
charged with felonious assault on Knott, in violation of R.C. 2903.11(A)(2) and
(D)(1)(a), a felony of the second degree. In Count 4, appellant was charged with
felonious assault on Conley, in violation of R.C. 2903.11(A)(1) and (D)(1)(a), a felony of
the second degree.
{¶ 7} On November 21, 2013, in case No. 2013CR0596, the grand jury issued a
three-count indictment against appellant relating to the death of Paul Castle. In Count 1,
appellant was charged with aggravated vehicular homicide in violation of R.C.
3.
2903.06(A)(2)(b) and (B)(3), a felony of the third degree. In Count 2, appellant was
charged with aggravated vehicular homicide in violation of R.C. 2903(A)(2)(a) and
(B)(3), a felony of the third degree. In Count 3, appellant was charged with murder in
violation of R.C. 2903.02(B) and (D), an unclassified felony.
{¶ 8} The two cases were joined. A jury trial was held January 27-30, 2014.
{¶ 9} One of the victims, Lewis Knott, recalled sitting on the rear bumper of the
mechanic’s truck; Paul Castle and Jimmy Conley were standing nearby. Suddenly, Knott
saw something white and heard “something hit something real loud.” Conley fell onto
Knott and knocked Knott to the ground. A few moments later, Knott saw appellant run
down the track towards Bradner.
{¶ 10} A second victim, Jimmy Conley, recalled seeing a car sitting at the first
barricade. Conley explained:
I took my attention away from the car because I thought he would
turn around * * *. At some point there I heard somebody holler something,
I didn’t know what it was, and I turned and looked. When I looked the car
was already, I mean, it was right there. And what I saw was the right rear
quarter panel of the car coming towards me and stones flying, and I turned
a little bit to try to get out of the way and it hit me. And the next thing I
knew I was laying on my left side on the road looking north towards
Bradner.
4.
{¶ 11} CSX employee James Bevens remembered standing on the tracks talking
with some of the other guys from the crew. Bevens explained:
[A]ll of a sudden I just heard a motor racing real loud like you would
hear on a NASCAR race, something like that, I mean, it was really – like
you could be passing somebody on the highway. It was really accelerated.
I looked, I thought, “what is going on here?” You know, it shocked you,
you know, because you never seen nothing like this. I looked and I said,
“What is this idiot doing here?” By the time I said that, I said, “Oh gosh,
he hit the pole.” * * * I blinked, and the next thing I know I seen the green
blur, which was Paul [Castle] * * * going through the air.
{¶ 12} CSX employee Christopher Delano testified that after the white Dodge
Charger came to a stop, he ran to the vehicle’s passenger side window and leaned in.
Appellant was sitting in the driver’s seat, facing the driver’s side door with his right
shoulder towards the front windshield, his back towards Delano. Delano asked if
appellant was ok. In response, appellant turned to Delano and said “the devil is my
savior” in what Delano described as “very demonic voice.” Delano explained
[Appellant] got out of the car. He put his hand up in the air. He said,
“Wahoo, I did it. Wahoo, I did it.” And he jumped in the air and on
his way down he put his arm around another employee an arm strong, and
he said, “I did it.” Another individual on our team asked him, “You did
what? You killed those boys.” He said, “I should have killed everyone of
5.
you all.” I then walked up, I put my hand on his shoulder, I said, “Sir, you
need to calm down. You just went through a telephone pole. He looked
like he was in shock. I was trying to calm him down and he just kept
walking.
{¶ 13} CSX employee Brandon Stokes testified that after appellant’s car hit the
telephone pole, he saw “one body flying into another body, and another body being shot
out.” He immediately ran towards the scene. Stokes explained, “When I got up there, the
[appellant] had gotten out of his vehicle already and he was walking past me and he said
that ‘one of you need to get that fucking shit cleaned up.’ I was kind of in shock. I was
like, I can’t believe this guy just said. He’s – you know, at that time we didn’t know he
maybe just killed somebody.”
{¶ 14} Other CSX employees offered similar testimony.
{¶ 15} Risingsun police patrol officer Jason Tate and Bradner police officer Jamie
Blausey were the first two units to arrive at the scene. Officer Tate testified that when he
arrived appellant was sitting on the tracks surrounded by several CSX employees. The
CSX employees informed him that appellant had hit their coworkers with his vehicle and
tried to run. Officer Tate noticed an injury on the back of appellant’s head. When the
officer asked appellant what had happened, appellant responded “I love Jesus Christ.”
Appellant was unresponsive to other questions. At that point, Tate explained to appellant
that he was going to be detained for “his safety.” Tate explained, “[a]s I was attempting
to put handcuffs on him, he started to resist me and struggle with me. We went to the
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ground and Officer Blausey ran over and assisted me in restraining him and putting him
in the backseat of my patrol car.”
{¶ 16} Matthew Ruble is a volunteer firefighter and paramedic for the Bradner
Fire Department. Ruble testified that he assessed appellant and found his vital functions
normal. Yet, appellant was unable to answer questions about what had happened.
Appellant was transported to Wood County Hospital by squad. Ruble indicated, “[w]e
transported him lights and sirens. It wasn’t because of patient condition, it was because
of safety. Even though he was handcuffed he was still being verbally aggressive with us.
He did lunge at us a few times during transport. He made some wild accusations and
accused us of doing stuff during transport.”
{¶ 17} Christopher J. Kinn is a lieutenant for the Ohio State Highway Patrol. Over
trial counsel’s objection, the trial court qualified Kinn as an expert in crash
reconstruction. Lieutenant Kinn explained that when automobile manufacturers started
putting airbags in cars, they also installed event date recorders (“EDR”) to perform
various diagnostic checks inside the vehicle when an airbag deploys. He described the
type of data collected and how the data is extracted from the EDR. He explained the
results of the data collected on appellant’s EDR and the graphs interpreting the data.
While Lieutenant Kinn opined that hitting the “curve ahead” sign likely did not cause
appellant’s airbag to deploy, he expressed no opinion as to what event did, in fact, cause
appellant’s airbag to deploy.
7.
{¶ 18} Lieutenant Kinn opined that the impact which caused appellant’s airbag to
deploy was “pretty significant” because the “longitudinal crash pulse got as high as
negative 50-some miles an hour.” He further opined that for the five seconds before
impact, the accelerator pedal was pushed all the way to the floor until “right before the air
bag came up.” Five seconds before impact, appellant’s vehicle was traveling 41 m.p.h.
and gained speed until it reached 61 m.p.h. The last data point before the crash,
appellant’s vehicle was traveling 57 m.p.h. Finally, Lieutenant Kinn indicated that the
data indicated appellant never applied his braked in the five seconds before the crash.
{¶ 19} Following the presentation of evidence, a jury found appellant guilty of all
charges.
{¶ 20} On appeal, appellant sets forth the following assignments of error:
I. The trial court abused its discretion and erred to the prejudice of
Appellant by denying a jury instruction on vehicular homicide as the lesser
included offense of aggravated vehicular homicide.
II. Appellant received ineffective assistance of counsel in violation
of his rights under the Sixth and Fourteenth Amendments to the United
States Constitution and Article I, §10 of the Constitution of the State of
Ohio.
III. The trial court abused its discretion in permitting the state’s
expert witness to testify despite the failure of the state to comply with Ohio
Rule of Criminal Procedure 16(K).
8.
IV. The trial court erred to the prejudice of Appellant by imposing
consecutive sentences without making judicial findings under R.C.
2929.14(C)(4).
V. The trial court erred by denying Appellant’s request for a
presentence investigation report prior to imposing sentence.
VI. The trial court erred in denying Appellant’s Rule 29 Motion for
Acquittal at the completion of the state’s case in chief.
VII. Appellant’s conviction was against the manifest weight of the
evidence introduced by the state at trial.
First Assignment of Error
{¶ 21} In his first assignment of error, appellant asserts that the trial court abused
its discretion when it denied jury instructions on vehicular homicide as a lesser included
offense of aggravated vehicular homicide.
{¶ 22} Preliminarily, we note that in regard to Paul Castle’s death, appellant was
charged with and the jury was instructed on one count of aggravated vehicular homicide
in violation of R.C. 2903.06(A)(2)(a), one count of aggravated vehicular homicide in
violation of R.C. 2903.06(A)(2)(b), and one count of murder in violation of R.C.
2903.02(B)(D) and (A)(D)(1). The jury found him guilty of all three offenses.
{¶ 23} Appellant’s requested instructions, denied by the trial court, were based on
the lesser included offenses of vehicular homicide in violation of R.C. 2903.06(A)(3)(a)
and (b). R.C. 2903.06(A)(3) provides:
9.
(A) No person, while operating or participating in the operation of
the motor vehicle * * * shall cause the death of another * * *:
(3) In the following ways:
(a) Negligently;
(b) As the proximate result of committing, while operating * * * a
motor vehicle * * * in a construction zone, a speeding offense * * * if the
person whose death is caused * * * is in the construction zone at the time of
the offender’s commission of the reckless operation offense in the
construction zone * * *.
{¶ 24} On appeal, appellant asserts that evidence presented at trial warranted jury
instructions on the lesser included offenses. Appellant supports his position by pointing
to the speed appellant was traveling in the construction zone as well as the code’s
definition of the culpable mental state “negligently.” R.C. 2901.22(D) provides:
A person acts negligently when, because of a substantial lapse from
due care, the person fails to perceive or avoid a risk that the person’s
conduct may cause a certain result or may be of a certain nature. A person
is negligent with respect to circumstances when, because of a substantial
lapse from due care, the person fails to perceive or avoid a risk that such
circumstances may exist.
{¶ 25} “The question of whether a particular offense should be submitted to the
finder of fact as a lesser included offense involves a two-tiered analysis.” (Citation
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omitted.) State v. Deanda, 136 Ohio St. 3d 18, 2013-Ohio-1722, 989 N.E.2d 986, ¶ 6.
“The first tier * * * is purely a legal question, wherein we determine whether one offense
is generally a lesser included offense of the charged offense.” Id., citing State v. Kidder,
32 Ohio St. 3d 279, 281, 513 N.E.2d 311 (1987). “The second tier looks to the evidence
in a particular case and determines whether ‘a jury could reasonably find the defendant
not guilty of the charged offense, but could convict the defendant of the lesser included
offense.’” Id., quoting State v. Evans, 122 Ohio St. 3d 381, 2009-Ohio-2974, 911 N.E.2d
889, ¶ 13.
{¶ 26} “[A] charge on the lesser offense is required ‘only where the evidence
presented at trial would reasonably support both an acquittal of the crime charged and a
conviction upon the lesser included offense.’” State v. Trimble, 122 Ohio St. 3d 297,
2009-Ohio-2961, 911 N.E.2d 242, ¶ 192, quoting State v. Thomas, 40 Ohio St. 3d 213,
533 N.E.2d 286 (1988), paragraph two of the syllabus.
{¶ 27} “The trial court must view the evidence in the light most favorable to the
defendant when deciding whether to instruct the jury on a lesser included offense.” Id.,
citing State v. Campbell, 69 Ohio St. 3d 38, 47, 630 N.E.2d 339 (1994). “The lesser-
included-offense instruction is not warranted every time ‘some evidence’ is presented to
support the lesser offense.” Id., citing State v. Shane, 63 Ohio St. 3d 630, 632, 590
N.E.2d 272 (1992). “Rather, a court must find ‘sufficient evidence’ to ‘allow a jury to
reasonably reject the greater offense and find the defendant guilty on a lesser included (or
inferior degree) offense.’ (Emphasis sic.)” Id., quoting Shane at 632.
11.
{¶ 28} In this case, the state does not dispute the first tier of the analysis that
vehicular homicide in violation of R.C. 2903.06(A)(3)(a) is a lesser included offense of
aggravated vehicular homicide in violation of R.C. 2903.06(A)(2)(a) or that vehicular
homicide in violation of R.C. 2903.06(A)(3)(b) is a lesser included offense of aggravated
vehicular homicide in violation of R.C. 2903.06(A)(2)(b).
{¶ 29} With respect to the second tier of the analysis, we must determine whether
a jury could reasonably find appellant not guilty of aggravated vehicular homicide in
violation of R.C. 2903.06(A)(2)(a) and (b) based on the evidence presented at trial.
{¶ 30} R.C. 2903.06(A)(2) provides:
(A) No person, while operating or participating in the operation of a
motor vehicle * * * shall cause the death of another * * *:
(2) In one of the following ways:
(a) Recklessly;
(b) As the proximate result of committing, while operating * * * a
motor vehicle * * * in a construction zone, a reckless operation offense
* * * if the person whose death is caused * * * is in the construction zone at
the time of the offender’s commission of the reckless operation offense in
the construction zone * * *.
{¶ 31} R.C. 2901.22, which defines the various culpable mental states,
defines recklessly as follows:
12.
A person acts recklessly when, with heedless indifference to the
consequences, the person disregards a substantial and unjustified risk that
the person’s conduct is likely to cause a certain result or is likely to be of a
certain nature. A person is reckless with respect to circumstances when,
with heedless indifference to the consequences, the person disregards a
substantial and unjustified risk that such circumstances are likely to exist.
R.C. 2901.22(C).
{¶ 32} In turn, a reckless operation offense is defined as the operation of a motor
vehicle “on any street or highway in willful or wanton disregard of the safety of persons
or property.” R.C. 4511.20(A). See also State v. Pugh, 6th Dist. Erie No. E-11-014,
2012-Ohio-829, ¶ 5.
{¶ 33} Appellant contends that the testimony at trial supports the finding that
appellant was merely speeding through a construction zone when he hit a utility pole and
lost control of his vehicle. Thus, appellant argues, the evidence supports a finding of
negligence, not recklessness. In response, the state asserts that instructing the jury on the
lesser included offenses was unnecessary because of appellant’s “callous nature and
reaction to this horrible incident.”
{¶ 34} At trial, the state presented evidence that appellant drove around two “road
closed” barricades during daylight hours, when several CSX employees wearing high-
visibility clothing where standing on and near a railroad crossing in a construction zone.
Instead of slowing down or turning around, appellant pressed his vehicle’s accelerator
13.
pedal “all of the way down” and drove through the construction zone, without braking.
Whether the impact of the pole or the impact with the ditch caused appellant’s airbag to
deploy, data from the Charger’s EDR, as interpreted by Ohio State Highway Patrol
Lieutenant Chris Kinn, demonstrates that in the five seconds before impact, appellant’s
vehicle traveled at speeds up to 60 m.p.h. A few milliseconds before impact, appellant’s
vehicle was traveling 57 m.p.h. The speed limit on Bradner Road is 50 m.p.h.
{¶ 35} We find that the evidence presented at trial does not reasonably support
both acquittal on the aggravated vehicular assault charges and conviction of the lesser
included offenses of vehicular assault. Thus, the trial court did not err in refusing to
instruct the jury on the lesser included offenses. Further, whether a jury could reasonably
have found appellant not guilty of aggravated vehicular homicide, but guilty of the lesser
included offense vehicular homicide, is of little consequence to the outcome of this case
because the jury also found appellant guilty of murder. Thus, any error in failing to
instruct the jury on the lesser included offense would be harmless, at best. Appellant’s
first assignment of error is not well-taken.
Second Assignment of Error
{¶ 36} In his second assignment of error, appellant contends he was denied the
effective assistance of trial counsel.
{¶ 37} In order to establish ineffective assistance of counsel, an appellant must
satisfy the two-part test created in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984). Appellant must show counsel’s performance fell below an
14.
objective standard of reasonableness, and a reasonable probability exists that but for
counsel’s error, the result of the proceedings would have been different. Id. at 687-688,
696. “Judicial scrutiny of counsel’s performance must be highly deferential. * * * [A]
court must indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance * * *.” State v. Bradley, 42 Ohio St. 3d 136,
142, 538 N.E.2d 373 (1989), quoting Strickland at 689.
{¶ 38} Under this assignment of error, appellant first argues that trial counsel was
ineffective by failing to engage expert witnesses to advance his theory of the case.
Specifically, appellant asserts that trial counsel should have hired a reconstruction expert
to interpret the EDR data in a light more favorable to the defense’s theory that the airbag
deployed upon impact with the utility pole, obscured his view, and made it impossible to
avoid a collision with the victims. Appellant further asserts that trial counsel should have
called a medical expert to testify to the effect of a potential head injury from the collision
to explain appellant’s irrational post-accident behavior.
{¶ 39} The failure to call an expert does not necessarily constitute ineffective
assistance of counsel, particularly when trial counsel relies on cross-examination of the
opposing party’s expert witness. See State v. Thompson, 33 Ohio St. 3d 1, 10, 514 N.E.2d
407 (1987). Thus, this court must presume trial counsel’s decision to merely cross-
examine the state’s expert witnesses and not present expert witnesses on behalf of the
appellant falls within the wide range of reasonable professional assistance and is the
product of sound trial strategy. Strickland at 689.
15.
{¶ 40} In his second argument under this assignment of error, appellant asserts
trial counsel was ineffective when he attempted to introduce physical evidence the day of
trial without having previously provided it to the state through reciprocal discovery. The
physical evidence in question included a bloody sweatshirt appellant allegedly wore on
the day of the incident and a CSX operations manual. It is unclear how this evidence, if it
had been properly introduced, would have been used to advance trial counsel’s theory of
the case. Thus, we must presume trial counsel’s conduct fell within the wide range of
reasonable professional assistance. Id.
{¶ 41} In his third argument under this assignment of error, appellant asserts trial
counsel was ineffective when he discussed, in his opening statement, appellant’s
anticipated testimony. However, it is clear from the record that appellant ultimately
chose not to testify in his defense. The trial court explained to the jury that appellant’s
decision could not be considered for any purpose. Appellant has not shown how trial
counsel’s opening statement prejudiced the defense.
{¶ 42} Pursuant to the above, we cannot say that trial counsel’s performance fell
below an objective standard of reasonableness or that a reasonable probability exists that
but for counsel’s alleged errors, the result of the proceedings would have been different.
Therefore, we find appellant was not denied the effective assistance of counsel.
Appellant’s second assignment of error is not well-taken.
16.
Third Assignment of Error
{¶ 43} In his third assignment of error, appellant asserts that the trial court abused
its discretion when it permitted Lieutenant Kinn to testify despite the state’s failure to
comply with Crim.R. 16(K).1 Specifically, appellant asserts that the state never produced
Lieutenant Kinn’s analysis of the EDR data before trial.
{¶ 44} In response, the state asserts that expert reports “were turned-over to the
defense once the State received them.” Unfortunately, the contents of the state’s
discovery disclosures are not included in the record. However, a review of the state’s
response to appellant’s motion to exclude suggests that on December 16, 2012, the state
disclosed Lieutenant Kinn as a potential witness. The state’s response indicates that it
simultaneously “listed the ECM module interpretation, a drawing from the WCSO with
measurements of the scene, and numerous other documents and photographs.” The
state’s response further indicates that on January 6, 2013, it provided a “report, including
a schematic drawing, from the CSX risk management department.” Finally, the state’s
response states that on January 15, 2014, the state provided “measurements of the scene
1
Crim.R. 16(K) provides,
An expert witness for either side shall prepare a written report
summarizing the expert witness’s testimony, findings, analysis,
conclusions, or opinions, and shall include a summary of the expert’s
qualifications. The written report and summary of qualifications shall be
subject to disclosure under this rule no later than twenty-one days prior to
trial, which period may be modified by the court for good cause shown,
which does not prejudice any other party. Failure to disclose the written
report to opposing counsel shall preclude the expert’s testimony at trial.
17.
from the OSHP, along with the CV of Lt. Kinn.” Without an opportunity to examine the
materials actually disclosed to trial counsel, we cannot conclude the state violated
Crim.R. 16(K).
{¶ 45} Upon our review of the record we find no willful violation of the discovery
rules on behalf of the state. Thus, we cannot find that the trial court abused its discretion
in allowing Lieutenant Kinn to testify as an expert witness. Appellant’s third assignment
of error is not well-taken.
Fourth Assignment of Error
{¶ 46} In his fourth assignment of error, appellant contends that the trial court
alluded to but did not make the required judicial findings in open court and on the record,
as required by R.C. 2929.14(C)(4), before imposing consecutive sentences.
{¶ 47} Recently, in State v. Banks, 6th Dist. Lucas No. L-13-1095, 2014-Ohio-
1000, ¶ 11-12, we explained
R.C. 2929.14(C)(4) now requires that a trial court engage in a three-
step analysis in order to impose consecutive sentences. First, the trial court
must find the sentence is necessary to protect the public from future crime
or to punish the offender. Second, the trial court must find that consecutive
sentences are not disproportionate to the seriousness of the offender’s
conduct and to the danger the offender poses to the public. Third, the trial
court must find that at least one of the following applies: (a) the offender
committed one or more of the multiple offenses while the offender was
18.
awaiting trial or sentencing, while under a sanction imposed pursuant to
R.C. 2929.16, 2929.17, or 2929.18, or while under postrelease control for a
prior offense; (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 reflect the seriousness of the offender’s
conduct; or (c) the offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the offender.
However, the trial court is not required to recite any “magic” or
“talismanic” words when imposing consecutive sentences provided it is
“clear from the record that the trial court engaged in the appropriate
analysis.” State v. Murrin, 8th Dist. Cuyahoga No. 83714, 2004-Ohio-
3962, ¶ 12.
{¶ 48} Then, in State v. Payne, 6th Dist. Lucas Nos. L-13-1024, L-13-1025, 2014-
Ohio-1147, we referenced the long-standing premise that a trial court speaks through its
judgment entries and found that while a court might fully explain its reasons for ordering
consecutive sentences and make the statutorily-mandated findings required under R.C.
2929.14(C)(4) at the sentencing hearing, those findings must be reflected in its judgment
entry. Id. at ¶ 13-16.
19.
{¶ 49} Upon review of the February 4, 2014 nunc pro tunc judgment entries and
the transcript of the January 30, 2014 sentencing hearing, we find that the trial court did
engage in the first step of the consecutive sentence analysis—that the sentence is
necessary to protect the public from future crime or to punish the offender—when, during
the sentencing hearing, it held that consecutive sentences were necessary because “a
single prison term would not adequately punish the offender or protect the public given
the nature of this case and the wanton and reckless behavior that led to us all being in
court here today.” We further find that the trial court’s findings were sufficiently
reflected in its judgment entries when it asserted: “consecutive sentences are necessary
to punish the Defendant.”
{¶ 50} The record reflects that the trial court did engage in the second step of the
consecutive sentence analysis—that consecutive sentences are not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender poses to the public—
when, during the sentencing hearing, it stated:
The Court has to consider the purposes and principles of felony
sentencing, which are to punish the offender and to protect the public from
future crime by the offender and others. And the court is instructed to
impose the minimum sanctions that the Court determines would accomplish
those purposes without imposing an unnecessary burden on the State or
local government resources. The Court has to consider the need for
incapacitation, deterrence, rehabilitation, and restitution and fashion a
20.
sentence that is commensurate with and not demeaning the seriousness of
the offender’s conduct and its impact on the victims, and consistent with
sentences for similar crimes by similar offenders.
***
The Court does make a finding that a single prison term would not
adequately punish the offender or protect the public given the nature of this
case and the wanton and reckless behavior that led to us all being in court
here today.
The trial court’s findings were sufficiently reflected in its judgment entries when it
asserted that consecutive sentences “are not disproportionate to the seriousness of the
defendant’s conduct and the danger the defendant poses to the public.” The court further
stated, “no single prison term would adequately reflect the seriousness of the Defendant’s
conduct.”
{¶ 51} The record reflects that trial court engaged in the third step of the
consecutive sentence analysis—that at least one of the three conditions set forth in R.C.
2929.14(C)(4) applies—when it stated:
In considering sentencing factors making the conduct more serious,
there was no action by the victims that exacerbated the situation. The
victims have suffered serious physical, psychological and economic harm.
In looking at recidivism factors, it does not appear that that
defendant has a prior criminal record or a prior juvenile adjudication. The
21.
Court does make a finding that the offender, until just now, has not shown
any remorse.
However, the sentencing entry does not sufficiently reflect these findings. See Payne, 6th
Dist. Lucas Nos. L-13-1024, L-13-1025, 2014-Ohio-1147, ¶ 13-16 (trial court made
appropriate findings at the sentencing hearing before imposing consecutive sentences, but
matter remanded for the court to amend its judgment entry to reflect those findings).
Thus, we remand this matter to the trial court to amend its judgment entry to reflect its
R.C. 2929.14(C)(4) findings. Appellant’s fourth assignment of error is well-taken.
Fifth Assignment of Error
{¶ 52} In his fifth assignment of error, appellant asserts the trial court erred in
denying his request for a presentence investigation report. Appellant asserts that
although he was sentenced to serve a mandatory term of imprisonment of 15 years to life
for murder, appellant would otherwise conceivably be an “eligible offender” under R.C.
2929.20, for purposes of judicial release at some future point in time, but for the lack of a
presentence investigation report.
{¶ 53} R.C. 2951.03(A)(1) provides, in relevant part, that “[n]o person who has
been convicted of or pleaded guilty to a felony shall be placed under a community control
sanction until a written presentence report has been considered by the court.” Similarly,
Crim.R. 32.2 provides that “[i]n felony cases the court shall, and in misdemeanor cases
the court may, order a presentence investigation and report before imposing community
control sanctions or granting probation.” In turn, “community control sanction” is
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defined in R.C. 2929.01(E) as “a sanction that is not a prison term and that is described in
section 2929.15, 2929.16, 2929.17, or 2929.18 of the Revised Code or a sanction that is
not a jail term and that is described in section 2929.26, 2929.27, or 2929.28 of the
Revised Code.”
{¶ 54} Here, appellant was not sentenced to a community control sanction as
defined in R.C. 2929.01(E). Thus, the trial court was not required to order a presentence
investigation and report. Accordingly, appellant’s fifth assignment of error is not well-
taken.
Sixth Assignment of Error
{¶ 55} In his sixth assignment of error, appellant asserts that the trial court erred in
overruling appellant’s Crim.R. 29 motion for judgment of acquittal. Appellant argues
that the state did not present sufficient evidence to sustain convictions for the felonious
assault or murder charges. Specifically, appellant asserts there was insufficient evidence
introduced to support the mens rea element of the offenses, i.e., that appellant acted
“knowingly.”
{¶ 56} Crim.R. 29(A) provides:
The court on motion of a defendant or on its own motion, after the
evidence on either side is closed, shall order the entry of a judgment of
acquittal of one or more offenses charged in the indictment, information, or
complaint, if the evidence is insufficient to sustain a conviction of such
23.
offense or offenses. The court may not reserve ruling on a motion for
judgment of acquittal made at the close of the state’s case.
{¶ 57} Sufficiency of the evidence is a legal standard that tests whether the
evidence introduced at trial is legally adequate to support a jury verdict as to all elements
of the crime. State v. Thompkins, 78 Ohio St. 3d 380, 386, 678 N.E.2d 541 (1997). The
proper analysis under a sufficiency of the evidence standard is “‘whether, after viewing
the evidence in a light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime proven beyond a reasonable doubt.’”
State v. Williams, 74 Ohio St. 3d 569, 576, 660 N.E.2d 724 (1996), quoting State v. Jenks,
61 Ohio St. 3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. In order to
affirm the denial of a Crim.R. 29 motion, we need only find that there was legally
sufficient evidence to sustain the guilty verdict. Thompkins at 386.
{¶ 58} Appellant was convicted of felonious assault on Conley in violation of R.C.
2903.11(A)(1), a felony of the second degree. This section provides that “No person
shall knowingly * * * [c]ause serious physical harm to another[.]” Id.
{¶ 59} Appellant was convicted of felonious assault on Knott in violation of R.C.
2903.11(A)(2), a felony of the second degree. This section provides that “No person
shall knowingly * * * [c]ause or attempt to cause physical harm to another * * * by
means of a deadly weapon or dangerous ordnance.” Id.
{¶ 60} Appellant was convicted of the murder of Castle in violation of R.C.
2903.02(B). That section provides that “[n]o person shall cause the death of another as a
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proximate result of the offender’s committing or attempting to commit an offense of
violence that is a felony of the first or second degree * * *.” R.C. 2903.02(B). The
predicate offense for the murder charge was felonious assault in violation of R.C.
2903.11(A)(1) and (2).
{¶ 61} R.C. 2901.22 defines culpable mental states. R.C. 2901.22(B) states, in
relevant part: “A person acts knowingly regardless of purpose, when the person is aware
that the person’s conduct will probably cause a certain result or will probably be of a
certain nature. A person has knowledge of circumstances when the person is aware that
such circumstances probably exist.”
{¶ 62} At trial, numerous CSX employees indicated that appellant, in broad
daylight, quickly accelerated his vehicle through a marked construction zone with
workers wearing high visibility clothing. The street, closed at the railroad crossing, was
essentially a dead-end street. In order to reach the area where the victims were standing,
appellant had to drive his vehicle off of the road around a set of “ROAD CLOSED”
barricades that had been erected across both lanes of traffic. This evidence, coupled with
testimony describing appellant’s lack of remorse immediately following the collision—
including his statement that “I should have killed every one of you all” could have
convinced a reasonable trier of fact that appellant knowingly caused serious physical
harm to Castle and Conley, and knowingly caused or attempted to cause physical harm to
Knott by means of a deadly weapon. Consequently, the evidence was sufficient to
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support these convictions. The trial court did not err in denying appellant’s Crim.R. 29
motion for acquittal. Appellant’s sixth assignment of error is not well-taken.
Seventh Assignment of Error
{¶ 63} In his seventh assignment of error, appellant maintains that his convictions
were against the manifest weight of the evidence. He asserts that the evidence presented
at trial shows that the event was an “accident” consistent with the elements for the
offenses of vehicular assault and vehicular homicide; not felonious assault and murder.
{¶ 64} The Ohio Supreme Court has summarized the standard for reversal of a
criminal conviction on the ground that it is against the manifest weight of the evidence as
follows:
The court, reviewing 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 and a new trial ordered. Thompkins, 78 Ohio St. 3d at 387, 678
N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d
717 (1st Dist.1983).
“In determining whether a conviction is against the manifest weight of the evidence, we
do not view the evidence in a light most favorable to the state. Instead, we sit as a
‘thirteenth juror’ and scrutinize ‘the factfinder’s resolution of the conflicting testimony.’”
State v. Robinson, 6th Dist. Lucas No. L-10-1369, 2012-Ohio-6068, ¶ 15, citing
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Thompkins at 388. Reversal on manifest weight grounds is reserved for “the exceptional
case in which the evidence weighs heavily against the conviction.” Id. at 387.
{¶ 65} While a reviewing court considers the credibility of the witnesses in a
weight of the evidence review, “that review must nevertheless be tempered by the
principle that weight and credibility are primarily for the trier of fact.” State v. Pena, 6th
Dist. Lucas No. L-12-1309, 2014-Ohio-423, ¶ 22, quoting State v. Kash, 1st Dist.
Hamilton No. CA2002-10-247, 2004-Ohio-415, ¶ 25. The trier of fact is in the best
position to “view the witnesses and observe the credibility of the proffered testimony,”
id. at ¶ 22, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St. 3d 77, 80, 461
N.E.2d 1273 (1984). A jury may believe all, part, or none of a witness’s testimony. Id.
at ¶ 22.
{¶ 66} Appellant does not dispute that Conley, Knott, and Castle were injured as a
result of the collision and that, ultimately, Castle’s injuries were fatal. However,
appellant asserts that the evidence does not support a determination that appellant’s
vehicle was “directed at the victims.” Appellant argues that Knott’s testimony that
appellant’s vehicle “glanced off” the utility pole and swerved into the truck supports his
theory that appellant was “attempting to avoid impact with the pole” and that he never
even saw Conley, Knott, and Castle.
{¶ 67} Whether or not the front of appellant’s vehicle was “directed at the
victims” in the moments before impact is, in reality, of very little consequence to the
outcome of this case. As stated above, a person acts knowingly when he is aware that his
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conduct will probably cause a certain result. R.C. 2901.22(B). “It is not necessary that
the accused be in a position to foresee the precise consequences of his conduct; only that
the consequences be foreseeable in the sense that what actually transpired was natural
and logical in that it was within the scope of the risk created by his conduct.” State v.
Mobley-Melbar, 8th Dist. Cuyahoga No. 92314, 2010-Ohio-3177, ¶ 19, quoting State v.
Losey, 23 Ohio App. 3d 93, 96, 491 N.E.2d 379 (10th Dist.1985).
{¶ 68} The jury visited the accident scene and was shown photographs and
sketches of where the victims were standing in relation to the mechanic’s truck and
construction barricades. Bradner Road is bordered with dense foliage on the east and
railroad tracks on the west. One witness after another described appellant quickly
accelerating his vehicle, full throttle, through the construction zone. Appellant never
applied his brakes. Even if he was trying to avoid the utility pole, there is no reasonable
explanation to explain why appellant was driving 60 m.p.h. down a dead-end street less
than 15 feet from three construction workers wearing high-visibility clothing.
Considering this evidence, as well as the evidence discussed under the previous
assignments of error, we cannot say the jury clearly lost its way and created a manifest
miscarriage of justice when it found appellant guilty of felonious assault and murder.
Accordingly, appellant’s seventh assignment of error is not well-taken.
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Conclusion
{¶ 69} For the reasons set forth above, the judgment of the trial court is affirmed,
in part, and reversed, in part. We remand this matter to the trial court to amend its
judgment entry to reflect its R.C. 2929.14(C)(4) findings. The costs of this appeal are
assessed to appellant and appellee equally under App.R. 24.
Judgment affirmed, in part,
and reversed, in part.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
James D. Jensen, J.
CONCUR. _______________________________
JUDGE
Thomas J. Osowik, J.,
DISSENTS.
OSOWIK, J.
{¶ 70} I would respectfully dissent. I find appellant’s second assignment of error to
be meritorious and would reverse. At the outset, I would note the court’s advice in
Strickland that reviewing courts should strive to ensure that ineffectiveness claims not
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become so burdensome to defense counsel that the entire criminal justice system suffers as a
result. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
With that admonition in mind, the Supreme Court of Ohio has instructed that the claims of
ineffectiveness are to be reviewed individually and to be determined upon their individual
merits. State v. Bradley, 42 Ohio St. 3d 136, 538 N.E.2d 373 (1989).
{¶ 71} After a review of the record, I find that counsel’s performance in the
representation of his client in this case fell below an objective standard of reasonable
representation contemplated by Strickland.
{¶ 72} The facts of this case are undeniably upsetting. A railroad worker lost his life
and fellow coworkers suffered life-altering permanent injuries. The appellant was indicted
for murder. It is self-evident that the crime of murder is a serious felony. A conviction for
murder carries with it a mandatory period of imprisonment for an indefinite term of 15 years
to life in the Ohio Department of Rehabilitation and Corrections. R.C. 2929.02(B)(1). Legal
representation under these circumstances requires the utmost diligence on the part of counsel.
{¶ 73} The Sixth Amendment does not merely guarantee counsel to persons charged
with serious crimes; it requires the effective assistance of counsel. Strickland at 686. The
right to effective representation assures that those who are criminally charged and tried
actually receive the protections provided under the law and required by the Constitution. As
the United Stated Supreme Court held 83 years ago:
Even the intelligent and educated layman has small and sometimes
no skill in the science of law. If charged with crime, he is incapable,
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generally, of determining for himself whether the indictment is good or
bad. He is unfamiliar with the rules of evidence. Left without the aid of
counsel he may be put on trial without a proper charge, and convicted upon
incompetent evidence, or evidence irrelevant to the issue or otherwise
inadmissible. He lacks both the skill and knowledge adequately to prepare
his defense, even though he have a perfect one. He requires the guiding
hand of counsel at every step in the proceedings against him. Without it,
though he be not guilty, he faces the danger of conviction because he does
not know how to establish his innocence. If that be true of men of
intelligence, how much more true is it of the ignorant and illiterate, or those
of feeble intellect. Powell v. Alabama, 287 U.S. 45, 69, 53 S. Ct. 55, 77 L. Ed.
158 (1932).
{¶ 74} Counsel has a “duty to bring to bear such skill and knowledge as will render
the trial a reliable adversarial testing process.” State v. Kole, 92 Ohio St. 3d 303, 306, 750
N.E.2d 148 (2001), quoting Strickland at 688.
{¶ 75} Effective representation of a client carries with it an obligation to make a
reasonable investigation where the facts of a case require it. State v. Bradley, 42 Ohio St. 3d
136, 538 N.E.2d 373 (1989). Specifically, the defense attorney “has the immediate
responsibility of deciding if and when to object, which witnesses, if any, to call, and what
defenses to develop.” Wainwright v. Sykes, 433 U.S. 72, 93, 97 S. Ct. 2497, 53 L. Ed. 2d 594
(1977). In addition to assuming these tactical decisions, representation of a criminal
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defendant entails certain basic duties first and foremost of which is the duty to represent his
or her client with reasonable diligence. Prof.Cond.R. 1.3.
{¶ 76} In this case, the record as presented to this court establishes a complete failure
to investigate the possibility appellant had any history of mental instability or some mental
defect from which he was suffering at the time of his horrific and bizarre actions. The facts
of this case support at least a modest inquiry and exploration of presenting what may have
been the only defense available to appellant and that is a defense available under R.C.
2901.01(A)(14). That section states:
(14) A person is “not guilty by reason of insanity” relative to a
charge of an offense only if the person proves, in the manner specified in
section 2901.05 of the Revised Code, that at the time of the commission of
the offense, the person did not know, as a result of a severe mental disease
or defect, the wrongfulness of the person’s acts.
{¶ 77} Thus, an insanity defense requires proof that the defendant did not know, as a
result of a severe mental disease or defect, the wrongfulness of his or her acts. The defense
does not require proof of psychosis or neurosis. State v. Coombs, 18 Ohio St. 3d 123, 480
N.E.2d 414 (1985). This burden is on the defendant and must be proved by a preponderance
of the evidence. State v. Filiaggi, 86 Ohio St. 3d 230, 242, 714 N.E.2d 867 (1999).
Therefore, the burden is not necessarily high. Nevertheless, no burden can be met by
unpresented evidence. A meager investigation would have been a starting point.
32.
{¶ 78} The record of the trial is replete with witness testimony concerning appellant’s
actions and statements prior to the event and immediately afterwards.
{¶ 79} A witness testified that he watched appellant drive right through a stop sign in
the middle of the day without even slowing his vehicle. He then proceeded directly through
a red light without applying his brakes. The witness then observed appellant’s car coming to
a complete stop in front of the barricaded roadway. He remains stationary “for a few
minutes.” It is unclear whether appellant got out of his vehicle at this point, but the witness
then stated “then I seen him get back in and then reverse.” And then he went forward “with a
great amount of speed” according to another witness. The car proceeded to strike a traffic
sign and a telephone pole shearing it in half and continuing further until he struck three
railroad workers, one of whom ultimately died as a result of the injuries he received.
{¶ 80} When approached appellant stated in a “demonic” voice that “the devil is my
savior.” When he exited the vehicle he appeared to be celebratory stating “Yeah.” Another
witness described appellant “hooting and hollering and saying ‘this was great.’” He was
throwing ballast rocks at the railroad workers. He sat down and then raised his fists and
began cursing at one witness. He then “squared up like toe-to-toe getting ready to fight [and]
that is when he took off running.” One witness felt it necessary to strike appellant on the
head with a piece of metal to restrain him.
{¶ 81} A second deputy arriving at the scene after appellant was restrained in the
back seat of the patrol car observed appellant “was just rambling just crazy thoughts or crazy
statements.” He went on to pretend that he was fainting while the EMT crew was treating
33.
him. Appellant refused to open his eyes and began “squinting really, really hard.” When
they got appellant to his feet “he started laughing, he started joking.” The Wood County
hospital emergency room personnel indicated that appellant’s “mental behavior was of great
concern.” Appellant insisted the deputy and medical personnel tell him that they loved him.
In the emergency room while handcuffed, he was “dry humping the door in a sexual manner,
and he was laughing about it. His behavior was completely erratic.” The testimony at trial
was devoid of any head trauma that would be responsible for such strange behavior. Another
witness testified “we could tell he was messed up on something.” Blood tests came back
completely negative for the presence of any toxic substances.
{¶ 82} In this case, as a result of the disturbing testimony of each of the eyewitnesses,
reasonable diligence would compel counsel to make a simple and almost effortless
investigation concerning a possible mental defect being present at the time that appellant
committed these acts. Yet the record is devoid of any such effort on the part of counsel.
{¶ 83} An attorney should be able to recognize that a fact pattern such as this could
result in a finding of insanity by a medical professional and the issue ultimately being
presented to the jury for its consideration. State v. Wotring, 11th Dist. Lake No. 99-L-114,
2001 WL 1647234 (Dec. 21, 2001).2
2
In State v. Wotring, the court initially released an opinion in which the majority reversed
the judgment entered by the trial court, holding that Wotring was denied effective assistance
of counsel based on the specific facts of that case. The state filed an application for
reconsideration and the court allowed the parties to submit additional evidentiary materials.
The record was then supplemented with affidavits from defense counsel in which counsel
stated that he did in fact obtain an evaluation with funds from his own personal budget, but
that the evaluation was not made part of the record. He also discussed these results with
34.
{¶ 84} The Ohio Supreme Court has held that a complete and total lack of reasonable
investigation gives rise to a presumption of prejudice under Strickland. State v. Johnson, 24
Ohio St. 3d 87, 494 N.E.2d 1061 (1986).
{¶ 85} For these reasons, I would find the second assignment of error well-taken and
reverse the judgment of the trial court and remand this case to be re-tried.
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
Wotring. Following this supplementation, the court reversed itself and affirmed the
judgment of the trial court. It found that trial counsel had fulfilled the obligation to diligently
discharge his duty to his client by requesting an evaluation although the result of the strategy
was to keep such evidentiary materials out of the record and beyond review of the appellate
court. See State v. Wotring, 11th Dist. Lake No. 99-L-114, 2003-Ohio-326.
35.