[Cite as State v. Dendak,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. Sheila G. Farmer, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Craig R. Baldwin, J. -vs- Case No. 2013 CA 00065 ASHLEY L. DENDAK

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Canton Municipal Court, Case No. 2012 CRB 4634

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: December 23, 2013

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

TYRONE D. HAURITZ GEORGE URBAN CANTON CITY PROSECUTOR 116 Cleveland Avenue NW BRANDEN L. DICKERSON Suite 808 ASSISTANT PROSECUTOR Canton, Ohio 44702 218 Cleveland Avenue SW Canton, Ohio 44702 Stark County, Case No. 2013 CA 00065 2

Wise, J.

{¶1} Appellant Ashley L. Dendak appeals from her conviction, in the Canton

Municipal Court, Stark County, on one count of vehicular manslaughter. Appellee is the

State of Ohio. The relevant facts leading to this appeal are as follows.

{¶2} On the afternoon of August 1, 2012, troopers from the Ohio State Highway

Patrol were dispatched to the scene of a left-of-center motor vehicle crash in the 7400

block of State Route 43 (Waynesburg Drive SE), Sandy Township, Stark County, Ohio.

The two vehicles involved were a white 1994 GMC Safari van, operated by appellant,

and a gray 2000 Jeep Wrangler, operated by Marsha Lowe. When medics arrived, they

determined that Lowe was deceased, having been ejected from the Jeep during the

crash. Neither driver had been wearing a seat belt. The Jeep had come to rest on top of

Ms. Lowe, who died instantly, while appellant’s van had left the roadway after striking

the Jeep and hit a utility pole.

{¶3} Following further investigation, on November 19, 2012, appellant was

arrested on a warrant for one count of vehicular homicide, R.C. 2903.06(A)(3), a

misdemeanor of the first degree, and one count of vehicular manslaughter, R.C.

2903.06(A)(4), a misdemeanor of the second degree, one count of driving on the left

side of the roadway, R.C. 4511.30, a minor misdemeanor, and one count of no seat

belt, 4513.263, a minor misdemeanor. On November 20, 2012, at her arraignment,

appellant pled not guilty to all charges.

{¶4} The case proceeded to a jury trial commencing on March 11, 2013. On

March 12, 2013, the jury returned a verdict of not guilty on the count of vehicular Stark County, Case No. 2013 CA 00065 3

homicide, but guilty on one count of vehicular manslaughter. Additionally, the trial court

found appellant guilty of the two minor misdemeanor traffic charges.

{¶5} The trial court thereafter sentenced appellant to ninety days in the Stark

County Jail, with credit for one day served and one day suspended on the condition that

appellant pay restitution. Appellant also received six points on her driver's license and a

two year driver's license suspension.

{¶6} On April 3, 2013, appellant filed a notice of appeal. She herein raises the

following two Assignments of Error:

{¶7} “I. THE APPELLANT'S CONVICTION FOR ONE COUNT OF

VEHICULAR MANSLAUGHTER IN VIOLATION OF R.C. 2903.06 WAS AGAINST THE

MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

{¶8} “II. THE APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF

COUNSEL.”

I.

{¶9} In her First Assignment of Error, appellant maintains her conviction for

vehicular manslaughter was not supported by the sufficiency of the evidence and was

against the manifest weight of the evidence. We disagree.

{¶10} In reviewing a claim based on the sufficiency of the evidence, “[t]he

relevant inquiry 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. Jenks (1991),

,

, paragraph two of the syllabus. Stark County, Case No. 2013 CA 00065 4

{¶11} Appellant herein was convicted of violating R.C. 2903.06(A)(4), which

states: “No person, while operating or participating in the operation of a motor vehicle,

motorcycle, snowmobile, locomotive, watercraft, or aircraft, shall cause the death of

another *** [a]s the proximate result of committing a violation of any provision of any

section contained in Title XLV of the Revised Code that is a minor misdemeanor or of a

municipal ordinance that, regardless of the penalty set by ordinance for the violation, is

substantially equivalent to any provision of any section contained in Title XLV of the

Revised Code that is a minor misdemeanor.”

{¶12} Among the witnesses called by the State at trial was Trooper Michelle Fish

of the Ohio State Highway Patrol, who is trained in accident reconstruction. Trooper

Fish determined in her investigation that the collision on August 1, 2012 occurred as a

result of appellant's southbound van crossing approximately eight feet to the left of the

center line and striking Ms. Lowe's Jeep near the rear left tire. Tr. at 116. The Jeep’s

rear axle was thereby damaged, and the Jeep began to skid counterclockwise and

proceeded to go off of the right side of the northbound lane, where it rolled over. Ms.

Lowe, who was not belted in, was ejected from the vehicle, which then came to rest on

top of her. Tr. at 119, 147.

{¶13} The State also called Harry Campbell, an investigator for the Stark County

Coroner's Office, who was summoned to the scene of the crash. His investigation

strongly indicated that Ms. Lowe had suffered from a basal skull fracture resulting in her

immediate death. Tr. at 171-173. The Stark County Coroner, Dr. P. S. Murthy, also took

the stand at trial. Dr. Murthy ruled Ms. Lowe's manner of death as an accident. Tr. at Stark County, Case No. 2013 CA 00065 5

190. He determined that the cause of death was multiple blunt trauma to the head and

trunk as a result of a motor vehicle crash. Tr. at 189.

{¶14} Although appellant does not dispute that an automobile collision occurred

on the day in question, her argument focuses on the “causation” element and the fact

that Ms. Lowe was determined by the troopers to have not been wearing a seatbelt. In

essence, appellant rather speculatively maintains that had Ms. Lowe been wearing her

seat belt, she would likely not have died, as she would not have been fatally ejected

from the Jeep. However, “it is well settled that any contributory negligence of the

decedent cannot be a defense to vehicular homicide, unless it is the sole proximate

cause of the accident.” State v. Langenkamp (2000),

,

. Although Langenkamp involved a case of vehicular homicide, we find its

aforesaid holding applicable to the offense of vehicular manslaughter as charged in the

case sub judice. We are unpersuaded that the General Assembly intended that

contributory or comparative negligence should generally be a factor for consideration of

culpability under R.C. 2903.06(A)(4).

{¶15} Accordingly, we find appellant’s conviction for vehicular manslaughter was

supported by sufficient evidence.

{¶16} Our standard of review on a manifest weight challenge to a criminal

conviction is stated 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.” State v. Martin (1983),

, 485 N.E.2d Stark County, Case No. 2013 CA 00065 6

717. See, also, State v. Thompkins (1997),

,

. The

granting of a new trial “should be exercised only in the exceptional case in which the

evidence weighs heavily against the conviction.”

.

{¶17} It appears upon our review of the transcript that part of the defense

strategy at trial was to emphasize that appellant had no drugs or alcohol in her system

and to suggest to the jury that a mechanical problem in one of the van’s wheels or tires

may have been an issue. Appellant’s boyfriend, James Stine, recalled during direct

examination that as he rode in the front passenger seat of appellant’s van on the day of

the crash, he noticed that something seemed amiss with one of the tires, what he called

a “sway-in” or a “wheel shimmy.” Tr. at 150, 152. He noted on cross-examination: “Well

it started to [sic], yes, and that’s why I says, ‘We need to pull over right now.’ And as we

said that [appellant] looked at me and the next thing you know it just – we were into the

embankment.” Tr. at 157. However, Stine had told the troopers at the scene that the

van had been traveling “every bit of the speed limit, fifty-five.” Tr. at 151. Appellant

testified in her defense that as she was discussing pulling over to check the tires, “*** I

felt something hit me and I, uh, looked up and all I saw was the telephone pole and then

I was in the embankment.” Tr. at 224.

{¶18} Upon review, we are unpersuaded that the jury lost its way in assessing

the evidence in this case. We find the jury's decision did not create a manifest

miscarriage of justice requiring that appellant's conviction be reversed and a new trial

ordered.

{¶19} Appellant’s First Assignment of Error is therefore overruled. Stark County, Case No. 2013 CA 00065 7

II.

{¶20} In her Second Assignment of Error, appellant contends she was deprived

of the effective assistance of counsel at trial. We disagree.

{¶21} Our standard of review for ineffective assistance claims is set forth in

Strickland v. Washington (1984),

,

,

. Ohio

adopted this standard in the case of State v. Bradley (1989),

,

. These cases require a two-pronged analysis: First, we must determine

whether counsel's assistance was ineffective; whether counsel's performance fell below

an objective standard of reasonable representation and was violative of any of his

essential duties to the client. If we find ineffective assistance of counsel, we must then

determine whether or not the defense was actually prejudiced by counsel's

ineffectiveness such that the reliability of the outcome of the trial is suspect. This

requires a showing that there is a reasonable probability that but for counsel's

unprofessional error, the outcome of the trial would have been different.

Trial counsel

is entitled to a strong presumption that all decisions fall within the wide range of

reasonable professional assistance. State v. Sallie (1998),

,

. Furthermore, both prongs of the Strickland test need not be analyzed if the

claim of ineffective assistance can be resolved under one prong. State v. Doss, 4th Dist.

Gallia No. 09CA20, 2012–Ohio–883, ¶ 16, citing State v. Madrigal (2000),

,

.

{¶22} Appellant first challenges her trial counsel’s failure to object to alleged

opinion testimony by Trooper Fish. The assistant prosecutor asked Trooper Fish at one

point whether the vehicle driven by appellant was unsafe due to a loose bumper and a Stark County, Case No. 2013 CA 00065 8

cracked windshield. See Tr. at 128. Trooper Fish was also similarly asked whether

appellant’s vehicle was safe to be driven on the roadway. See Tr. at 137. It is

undisputed that Trooper Fish was not specifically testifying as an expert witness under

the Rules of Evidence. However, because the state of appellant’s van’s bumper and

windshield before the crash was largely irrelevant to the offense for which she was

convicted, we find no demonstration of ineffective assistance on this basis.

{¶23} Appellant secondly challenges her trial counsel’s failure to object to the

introduction of Trooper Fish’s written accident reconstruction report. We note Evid.R.

803(8) states the following are not excluded by the hearsay rule:

{¶24} “Records, reports, statements, or data compilations, in any form, of public

offices or agencies, setting forth (a) the activities of the office or agency, or (b) matters

observed pursuant to duty imposed by law as to which matters there was a duty to

report, excluding, however, in criminal cases matters observed by police officers and

other law enforcement personnel, unless offered by defendant, unless the sources of

information or other circumstances indicate lack of trustworthiness.” (Emphasis added).

{¶25} Thus, police reports are generally recognized as inadmissible hearsay and

should not be submitted to the jury. State v. Hall, 8th Dist. Cuyahoga No. 96680, 2012-

Ohio-266, ¶ 12, citing State v. Leonard,

, 2004–Ohio–6235,

. However, in light of the overall testimony of Highway Patrol Sergeants

Glennon and Thorne, Troopers Fish and Smith, Investigator Campbell, Coroner Dr.

Murthy, and passenger James Stine, we find appellant has not established that she was

actually prejudiced by the admission of the written accident report, much of which was

cumulative to such oral testimony. Furthermore, as the State suggests, defense Stark County, Case No. 2013 CA 00065 9

counsel, countering both the vehicular homicide and vehicular manslaughter charges,

may have had strategic reasons for allowing the jury to see the full written details of the

crash investigation. Part of defense counsel’s closing arguments, for example, was the

following: “All accidents are a moment in time that you make a split decision that your

attention drifts from what you were doing *** we’ve all lost attention of the road at some

point in time. And but for [sic] the grace of God we haven’t committed this crime.” Tr. at

251.

{¶26} We therefore find no showing that appellant's trial counsel's performance

prejudiced appellant's defense such that reversal would be warranted. Appellant’s

Second Assignment of Error is overruled.

{¶27} For the reasons stated in the foregoing opinion, the judgment of the

Canton Municipal Court, Stark County, Ohio, is hereby affirmed.

By: Wise, J.

Farmer, P. J., and

Baldwin, J., concur.

___________________________________ HON. JOHN W. WISE

___________________________________ HON. SHEILA G. FARMER

___________________________________ HON. CRAIG R. BALDWIN

JWW/d 1210 Stark County, Case No. 2013 CA 00065 10

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : ASHLEY L. DENDAK : : Defendant-Appellant : Case No. 2013 CA 00065

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Canton Municipal Court, Stark County, Ohio, is affirmed.

Costs assessed to appellant.

___________________________________ HON. JOHN W. WISE

___________________________________ HON. SHEILA G. FARMER

___________________________________ HON. CRAIG R. BALDWIN