State v. Simon

[Cite as State v. Simon, 2013-Ohio-2067.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff - Appellee Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vs-
SHANNA L. SIMON Case No. 2012CA00152
Defendant - Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from Court of Common Pleas,
Case No. 2012-CR-0491
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 20, 2013
APPEARANCES:
For Plaintiff - Appellee For Defendant - Appellant
JOHN D. FERRERO KRISTINE W. BEARD
Prosecuting Attorney 4450 Belden Village Street, N.W.,
Suite 703
By: RONALD MARK CALDWELL Canton, OH 44718
Assistant Prosecuting Attorney
110 Central Plaza, South – Suite 510
Canton, OH 44702-1413
Stark County, Case No. 2012CA00152 2
Baldwin, J.
{¶1} Defendant-appellant Shanna L. Simon appeals her conviction and
sentence from the Stark County Court of Common Pleas on one count each of
aggravated vehicular assault, failure to stop after an accident, and operating a motor
vehicle under the influence of alcohol, a drug of abuse, or a combination of them.
Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On May 21, 2012, the Stark County Grand Jury indicted appellant on one
count of felonious assault in violation of R.C. 2903.11(A)(1) and/ or (A)(2), a felony of
the second degree, one count of aggravated vehicular assault in violation of R.C.
2903.08(A)(1), a felony of the third degree, one count of failure to stop after an accident
in violation of R.C. 4549.02, a felony of the fifth degree, and 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(A)(1)(a), a misdemeanor of the first degree. At her
arraignment on May 25, 2012, appellant entered a plea of not guilty to the charges
contained in the indictment.
{¶3} Subsequently, a jury trial commenced on June 26, 2012. The following
testimony was adduced at trial.
{¶4} On March 22, 2012, Beau Landis, who had been dating appellant for
about a week, met appellant at the Tremont Pub in Massillon. The two played pool with
Mike Thatcher and had some beers and shots. According to Landis, appellant
consumed alcohol during the time, but he was unable to say how much appellant had
consumed. Landis testified that he bought appellant a Bud Light and a shot.
Stark County, Case No. 2012CA00152 3
{¶5} During the evening, appellant got into a fight with Lionel Clark. Landis
testified that he tried to get appellant to leave the bar because there were three other
girls who wanted to confront appellant. Landis testified that appellant, Clark and the girls
were all arguing while in the parking lot and that he was trying to get them to calm
down. Landis managed to get appellant into her vehicle. He testified that after appellant
got into her vehicle, Clark was trying to come over and talk to either appellant or to him
and that, before he knew it, he was run over by appellant’s car. As a result, Landis
suffered from a fractured ankle, a fractured knee, a cracked pelvis, a dislocated lip, and
other injuries. In all, he spent two weeks in an induced coma and three weeks in the
hospital. After his release from the hospital, Landis entered a rehabilitation facility for
approximately three and a half months.
{¶6} The next witness to testify at the trial was Sarah Seese, who was a
bartender at the Tremont Pub who was familiar with appellant. Seese testified that, on
the night in question, appellant ordered three White Russians which are made with
vodka, Kahlua and half and half. Seese further testified that appellant and Lionel Clark
were arguing back and forth and that Landis then grabbed appellant’s arm and indicated
that they should leave. On cross-examination, Seese testified that she did not see
appellant consume the White Russians. She further admitted that she did not have a
receipt indicating that appellant had ordered three of the drinks, although she testified
that she had a good memory.
{¶7} At trial, Stephanie Gurule testified that she was at the Tremont Pub on
March 22, 2012 at around 10:30 p.m. While Gurule was sitting at the bar, she saw
Lionel Clark approach appellant about gossip. According to Gurule, appellant and Clark
Stark County, Case No. 2012CA00152 4
were yelling at each other and then Landis, Clark and appellant were all yelling at each
other while in the parking lot. Gurule testified that three other girls were also trying to
confront appellant. Gurule also testified that she used her body to physically prevent the
girls from becoming involved because the situation had nothing to do with them and
that, once they backed off, she went over to Clark to get him to stop yelling and to get
back to the bar. While Gurule was standing in the parking lot, appellant “cut” her wheel
and ran over Landis who was close to appellant’s car along with Gurule. The following
testimony was adduced when Gurule was asked what happened to Landis: “When she
cut it, when she cut the car to go in reverse, his legs went underneath of the front wheel,
and when she backed up, his body flipped a couple of times. When she put it in drive
and – to take off again, he was stuck under the wheel and she drug him about 15 feet
until he hit a – till she hit a bump or pothole in the parking lot and it knocked his body
loose. And she kept going.” Transcript at 144-145.
{¶8} According to Gurule, everyone on the scene was screaming at appellant
to stop the car, but appellant did not stop. She testified that appellant’s windows were
down. A videotape from the Tremont Pub was played for the jury.
{¶9} On cross-examination, Gurule testified that, prior to appellant and Clark
getting into a yelling match with each other, the other three girls were picking fights with
other people the whole two hours that Gurule was there. The three other women were
screaming at appellant and intimidating her. Gurule testified that Clark approached
appellant and that appellant did not go up to Clark looking for a fight. Gurule further
testified that appellant was not arguing with Landis and did not seem mad at him. On
Stark County, Case No. 2012CA00152 5
redirect, Gurule testified that appellant was yelling back at the three girls who were
yelling at her.
{¶10} Officer Thomas Solinger of the Massillon Police Department testified that
he investigated the incident that occurred at the Tremont Pub. As part of his
investigation, Officer Solinger interviewed Lionel Clark who showed him some cell
phone messages. Officer Solinger took photos of the messages, which were admitted
into evidence. The Officer stated that he took photos of the messages after Clark
indicated that he had been texting appellant. In one of the messages, appellant texted
that she had not hit Landis, but had hit the “dumb bitch.” Appellant admitted texting
Clark after the incident, but said that she did not remember sending the message about
the “dumb bitch.”
{¶11} Officer Solinger testified that he spoke with appellant with her attorney
present about a week later. He testified that he believed that appellant said that she had
a couple of drinks that night, but he was not positive. Appellant also told him that she
did not remember hitting anyone with her car.
{¶12} On cross-examination, Officer Solinger testified that appellant told him that
she was afraid that she was going to be assaulted by the three females at the bar. He
further testified that appellant told him that she had sped out of the parking lot at a high
rate of speed.
{¶13} The next witness to testify at trial was Robert Jones who lived next door to
the Tremont Pub. Jones testified that he heard commotion coming from the Tremont
Pub on March 22, 2012. At some point, Jones saw appellant’s car back up and knock
Landis down and then run over him. Jones testified that he yelled along with everyone
Stark County, Case No. 2012CA00152 6
else for appellant to stop, but that the vehicle dragged Landis through the gravel parking
lot.
{¶14} Massillon Police Officer Shaun Dadisman was dispatched to the Tremont
Pub on the night in question shortly after midnight. When he arrived on the scene, he
found Landis in poor condition. Officer Dadisman took statements from witnesses who
had told him that appellant had hit Landis. The Officer then went back to the station to
work on his report and, approximately 30 or 40 minutes later, received a call about
another disturbance at the Tremont Pub. After determining that there was nothing going
on at the Tremont Pub, Officer Dadisman and another officer went to the Tiki Bar where
they found a vehicle matching the description of the vehicle that that had left the scene
at the Tremont Pub. Appellant, who was located sitting at the bar, was arrested outside
the bar. At the time, she had bloodshot eyes, she smelled of alcohol, she was very
emotional and she was not walking normally. Appellant was taken to jail.
{¶15} While being booked at the jail, appellant was very emotional and was
crying without tears and then not crying. Appellant stated that she had done nothing
wrong. Officer Dadisman testified that he asked appellant to perform three field sobriety
tests and that, based on her performance on the tests, he believed that appellant was
impaired either by alcohol or some type of drug. He testified that he found a couple of
pills in an unmarked pill bottle in appellant’s purse. Appellant told the Officer that the
pills were Xanax and that they were her grandmother’s.
{¶16} On cross-examination, Officer Dadisman testified that the parking lot of
the Tremont Pub was gravel and had dips and potholes. He testified that the incident
took place shortly after midnight and that appellant was arrested at approximately 1:29
Stark County, Case No. 2012CA00152 7
a.m. When asked why he did not take a blood, urine or breath sample from appellant,
the Officer testified that that he made such decision along with his superior officer based
on the lapse of time between the time appellant left the Tremont Pub and the time she
was arrested. He admitted that he had no evidence that appellant was under the
influence of alcohol or drugs when she was at the Tremont Pub. Officer Dadisman did
not fill out an impaired driver’s report. He further admitted that he did not know exactly
what sort of pills appellant had on her because the pills were not tested. According to
Officer Dadisman, appellant was shocked when told who she had run over.
{¶17} On redirect, Officer Dadisman testified that he did not interview either
Sarah Seese or Beau Landis on the night at issue and that he did not have any
information about appellant’s consumption of alcohol when he had appellant at the jail.
{¶18} Susan Parnacott, who is Robert Jones’ fiancée, testified that she heard
the commotion outside the Tremont Pub and that, after seeing appellant hit Landis, she
was screaming at appellant to stop. Parnacott further testified that while everyone was
yelling at appellant to stop, she heard appellant scream from her car to “F off.”
Transcript at 266.
{¶19} After Parnacott testified, Michael Thatcher testified that he went to the
Tremont Pub on March 22, 2012 to meet Landis and appellant. He testified that he saw
appellant consume two beers and that appellant took a shot of Crown Royal whiskey
from him and drank the same. He also saw appellant eat some blue pills.
{¶20} The final witness to testify at trial was Lionel Clark. Clark testified that he
and appellant got into a verbal altercation and that appellant then left the bar. Clark
testified that he then went into the parking lot because there was a lot of arguing going
Stark County, Case No. 2012CA00152 8
on and other girls wanted to beat appellant up. According to Clark, he was attempting to
calm everyone down. Clark testified that he walked over to appellant’s car, where
Landis was standing, and told appellant that she was wrong. Clark then went over to the
fence line to talk to an acquaintance. Clark testified that he then saw appellant back up
and run over Landis. Landis was not breathing, so Clark turned him over a bit and
Landis coughed up blood and started breathing.
{¶21} Clark stated that he had talked to appellant many times on the phone and
texted her. He testified that appellant texted him on March 222, 2012 while he was still
standing in the parking lot of Tremont Pub. He then texted appellant to return to the
Tremont Pub. On cross-examination, Clark testified that he went up to appellant and
started talking to her and asking her questions about why she was disrespecting him.
He testified that he went outside to the parking lot to stop the girls who wanted to beat
appellant up. Clark further testified that he went up to appellant’s car and apologized to
Landis.
{¶22} At the conclusion of the evidence, the trial court granted appellant’s
Crim.R. 29 motion with respect to the charge of felonious assault. Thereafter, on June
27, 2012, the jury found appellant guilty of aggravated vehicular assault, failure to stop
after an accident, and operating a motor vehicle while under the influence of alcohol, a
drug of abuse, or a combination of them. Appellant was sentenced to an aggregate
prison sentence of 12 months and was fined $1,000.00. In addition, appellant’s driver’s
license was suspended for a period of three (3) years and appellant was ordered to pay
restitution.
{¶23} Appellant now raises the following assignment of error on appeal:
Stark County, Case No. 2012CA00152 9
{¶24} “APPELLANT’S CONVICTIONS FOR AGGRAVATED VEHICULAR
ASSAULT, FAILURE TO STOP AFTER AN ACCIDENT AND OVI ARE AGAINST THE
SUFFICIENCY AND MANIFEST WEIGHT OF THE EVIDENCE.”
I
{¶25} Appellant, in her sole assignment of error, argues that her convictions for
aggravated vehicular assault, failure to stop after an accident, and operating a motor
vehicle while under the influence of alcohol, a drug of abuse, or a combination of them
are against the sufficiency and manifest weight of the evidence. We disagree.
{¶26} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire
record, weighs the evidence and all reasonable inferences, considers the credibility of
witnesses, and determines whether in resolving conflicts in 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.’ “ State v. Thompkins, 78 Ohio St.3d 380, 387,
1997–Ohio–52, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485
N.E.2d 717 (1st Dist. 1983).
{¶27} An appellate court's function when reviewing the sufficiency of the
evidence is to determine 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. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492, paragraph two of the syllabus (1991).
{¶28} Appellant was convicted of aggravated vehicular assault in violation of
R.C. 2903.08(A)(1) and operating a vehicle under the influence of alcohol, a drug of
Stark County, Case No. 2012CA00152 10
abuse, or a combination of them in violation of R.C. 4511.19(A)(1)(a). R.C. 2903.08
states, in relevant part, as follows: “(A) No person, while operating or participating in the
operation of a motor vehicle, motorcycle, snowmobile, locomotive, watercraft, or aircraft,
shall cause serious physical harm to another person or another's unborn in any of the
following ways: (1)(a) As the proximate result of committing a violation of division (A) of
section 4511.19 of the Revised Code or of a substantially equivalent municipal
ordinance;…” In turn, R.C. 4511.19 states, in pertinent part, as follows: “(A)(1) No
person shall operate any vehicle, streetcar, or trackless trolley within this state, if, at the
time of the operation, any of the following apply:(a) The person is under the influence of
alcohol, a drug of abuse, or a combination of them…”
{¶29} Appellant also was convicted of failure to stop after an accident in violation
of R.C. 4549.02. Such section provides, in relevant part, as follows: “A) In case of
accident to or collision with persons or property upon any of the public roads or
highways, due to the driving or operation thereon of any motor vehicle, the person
driving or operating the motor vehicle, having knowledge of the accident or collision,
immediately shall stop the driver's or operator's motor vehicle at the scene of the
accident or collision and shall remain at the scene of the accident or collision until the
driver or operator has given the driver's or operator's name and address and, if the
driver or operator is not the owner, the name and address of the owner of that motor
vehicle, together with the registered number of that motor vehicle, to any person injured
in the accident or collision or to the operator, occupant, owner, or attendant of any
motor vehicle damaged in the accident or collision, or to any police officer at the scene
of the accident or collision.”
Stark County, Case No. 2012CA00152 11
{¶30} Appellant specifically contends that appellee failed to prove that she
operated a motor vehicle while under the influence of alcohol, a drug of abuse, or a
combination of them at the time of the incident and that, therefore, the aggravated
vehicular assault conviction must fail. Appellant further argues that appellee failed to
prove that she knew or had reasonable cause to believe that she had been involved in a
motor vehicle accident and that, therefore, the failure to stop after an accident
conviction must also fail.
{¶31} As is stated above, there was testimony at trial that appellant had bought
and consumed alcohol on the night in question. Beau Landis testified that he bought
appellant a Bud Light and a shot and Sarah Seese testified that appellant ordered three
White Russians. In addition, Michael Thatcher testified that he saw appellant consume
two beers, that appellant took a shot of Crown Royal whiskey from him and drank the
same and that he saw appellant eat some blue pills. As noted by appellee, appellant’s
actions in speedily backing up while people were near her car, and turning her wheel in
such a manner so as to endanger people also indicated someone whose judgment was
impaired by alcohol. Moreover, after striking Landis, appellant disregarded the many
screams to stop and drove over Landis. Furthermore, when later at the police station,
appellant exhibited signs of intoxication. In short, after viewing the evidence in a light
most favorable to the prosecution, any rational trier of fact could have found that
appellant was under the influence of drugs and/or alcohol when she struck Landis. We
further find that the jury did not lose its way in convicting her of the offenses of
aggravated vehicular assault and operating a vehicle under the influence of alcohol, a
drug of abuse, or a combination of them.
Stark County, Case No. 2012CA00152 12
{¶32} As is stated above, appellant also argues that appellee failed to prove that
she knew or had reasonable cause to believe that she had been involved in a motor
vehicle accident and that, therefore, the failure to stop after an accident conviction must
also fail. However, testimony was adduced at trial that Lionel Clark texted appellant and
told her that she needed to return because the police were at the Tremont Pub.
Appellant did not do so. Rather, appellant texted back that she thought she had hit the
“dumb bitch” instead of Landis. Based on the foregoing, we find that any rational trier of
fact could have found that appellant knew that she hit someone. We further find that the
jury did not lose its way in convicting her of failure to stop.
{¶33} Appellant’s sole assignment of error is, therefore, overruled.
{¶34} Accordingly, the judgment of the Stark County Court of Common Pleas is
affirmed.
By: Baldwin, J.
Hoffman, P. J. and
Wise, J. concur.
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JUDGES
CRB/css
Stark County, Case No. 2012CA00152 13
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff - Appellee :
:
-vs- : JUDGMENT ENTRY
:
SHANNA L.SIMON :
:
Defendant - Appellant : Case No. 2012CA00152
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Stark County Court of Common Pleas is affirmed. Costs assessed to
appellant.
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JUDGES