[Cite as State v. O'Brien,

.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, : CASE NO. 2011-L-011 - vs - :

TODD J. O’BRIEN, :

Defendant-Appellant. :

Criminal Appeal from the Lake County Court of Common Pleas, Case No. 10 CR 000375.

Judgment: Affirmed in part; reversed in part and remanded.

Charles E. Colson, Lake County Prosecutor, Alana A. Rezaee, Assistant Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).

R. Paul LaPlante, Lake County Public Defender, Vanessa R. Clapp, Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-Appellant).

THOMAS R. WRIGHT, J.

{¶1} This appeal is from a final judgment of the Lake County Court of Common

Pleas. In the underlying criminal action, appellant, Todd J. O’Brien, was convicted of

felony murder, felonious assault, aggravated vehicular homicide, failure to stop after an

accident, and violation of a protection order. All of these crimes stemmed from a series

of events that culminated in the death of Kayelee Russell-Martin.

{¶2} Appellant and the victim knew each other for nearly nine years, having first met when they both were teenagers. At various times in their relationship, they were

romantically involved and lived together. Moreover, in 2006, they had a son, Alex.

However, appellant and the victim were never able to sustain their relationship, and on

those occasions when they would have disagreements, their attitude toward each other

was hostile.

{¶3} For his part, appellant had a history of stalking the victim when they were

not together. He also displayed a tendency to irritate her by either calling or texting her

constantly. Moreover, on at least one occasion, the victim alleged that appellant

engaged in physical abuse. On another occasion, appellant threatened to “kill” the

victim. As a result of the foregoing events, a civil protection order was issued against

appellant.

{¶4} In early 2009, appellant and the victim were living together with their son.

At some point, appellant invited his boyhood friend, Sean Doytek, to reside with them in

their home. Due to this living arrangement, the victim and Doytek soon became friends.

Later, when the victim left appellant and moved in with her aunt in Painesville Township,

they began to date. Although the quality of this new relationship fluctuated often over

the ensuing months, Doytek eventually proposed to the victim. However, they tried to

hide their relationship from appellant because they were unsure how he would react.

{¶5} In June 2010, a new dispute arose between appellant and the victim about

the extent of his right to visitation with their son. Consistent with his previous behavior,

appellant began calling and texting her constantly, notwithstanding the existence of the

civil protection order.

{¶6} On June 15, 2010, Doytek visited the victim at her aunt’s condominium. In

2 the early afternoon, they decided to go to a pet store in a shopping mall in Mentor, Ohio.

As they were sitting at a traffic light, they saw appellant’s vehicle in a corner gas station.

Before their light turned green, appellant maneuvered his vehicle in such a way as to

enter the roadway. He then made a left-hand turn in front of the victim’s car. Despite

driving against traffic, appellant drove his vehicle close to the victim’s car, but did not

collide with it. He then made an obscene gesture, and drove off.

{¶7} After completing their shopping, Doytek and the victim drove back to her

aunt’s condominium. Instead of going inside immediately, they sat with Alex on a

boulder located near a horseshoe-shaped driveway at the entrance of the complex.

While they were sitting there, Doytek and the victim saw appellant’s vehicle coming up

the driveway. Appellant accelerated his vehicle and crossed over a lane of traffic. As

the vehicle approached the boulder, its front left tire swerved onto the sidewalk and the

grass. Both Doytek and the victim jumped from the boulder with Alex. Appellant’s

vehicle swerved away and drove out the driveway.

{¶8} Once Alex was taken inside, Doytek and the victim began walking toward

the back of the condominium complex. Doytek took the victim’s canister of pepper

spray from her purse, and was walking slightly ahead of her. The victim called the

police on her cell phone, and was still talking to a dispatcher as Doytek approached the

intersection of two roads at the edge of the complex. As Doytek was standing near the

intersection, the victim was still standing in a parking lot, partially hidden behind a clump

of trees.

{¶9} At that point, appellant’s vehicle pulled up to the intersection and stopped.

Doytek approached the vehicle from behind and attempted to shoot the pepper spray at

3 appellant through the open window on the driver’s side. Though some of the spray

went into the car, appellant pulled forward into the intersection and made a left turn onto

the adjacent roadway. After pulling forward a short distance, he stopped his vehicle

again.

{¶10} Doytek followed the vehicle and again tried to approach it from behind. As

he reached the back of the vehicle, the victim emerged from the trees and walked into

the roadway a few feet directly behind the vehicle. When Doytek got near the driver’s

door on the left-side of the vehicle, he again attempted to use the spray. In response,

appellant put his vehicle into reverse and hit the accelerator. As a result, the vehicle

immediately hit the victim.

{¶11} Initially, the victim rolled onto the trunk of the vehicle and hit the back

window. She then rolled off the trunk and landed on the roadway. Since appellant’s

vehicle was still accelerating, the back tires ran over her. She was dragged under the

vehicle for a number of yards before she emerged from the front of the vehicle.

Appellant then backed into a driveway and stopped his vehicle. Without getting out of

his vehicle, he drove forward around the body and left the scene.

{¶12} The victim immediately died from the injuries she suffered. In addition to

Doytek, the incident was witnessed by a number of residents of the condominium

complex and others in the vicinity. Appellant eventually gave himself up to authorities in

a separate county, and gave a lengthy statement about the incident. As to the fact that

he continued to go backward after initially striking the victim, appellant stated that he

thought he hit a speed bump.

{¶13} In August 2010, the Lake County Grand Jury returned a 13-count

4 indictment. Regarding the specific incident in which the victim was hit by appellant’s

vehicle, the indictment contained charges of aggravated murder, murder, felony murder,

aggravated vehicular homicide, felonious assault, violation of a civil protection order,

and failure to stop at the scene of an accident. As to Doytek, the separate “horseshoe

driveway” incident, and the separate “traffic light” incident, the indictment had four

additional counts of felonious assault and two additional counts of violation of a civil

protection order.

{¶14} An eight-day jury trial ensued. At the close of the evidence, the jury found

appellant not guilty of aggravated murder and murder; as to the remaining five charges

stemming directly from the victim’s death, the jury returned guilty verdicts. In relation to

the remaining six counts, the jury found appellant guilty of three additional counts of

felonious assault and two additional counts of violation of a civil protection order. As to

the charge of felonious assault which pertained to Doytek and was based upon the

“fatal” incident, the jury found him not guilty.

{¶15} After conducting a separate sentencing hearing, the trial court issued its

final judgment. For the purposes of sentencing, the court merged the aggravated

vehicular homicide count and one of the felonious assault counts into the felony murder

count. As to the latter charge, the court imposed an indefinite term of 15 years to life.

In regard to the remaining seven counts, the trial court merged a misdemeanor count of

violation of a protection order into a felony count of violation of a protection order, and

then imposed a five-year term as to each of the remaining six counts. The trial court

ordered all of the terms to be served consecutively, for an aggregate sentence of 45

years to life.

5 {¶16} In appealing the foregoing conviction and sentence, appellant raises eight

assignments of error:

{¶17} “[1.] The defendant-appellant was deprived of his constitutional rights to

fair trial and due process when the trial court admitted irrelevant and improper testimony

of prior bad acts and character and improper hearsay testimony and then failed to give

a limiting instruction to the jury.

{¶18} “[2.] The defendant-appellant was deprived of his constitutional rights to

fair trial and due process when the trial court permitted the admission of direct testimony

and hearsay testimony regarding what witnesses believed his state of mind was at the

time in question.

{¶19} “[3.] The defendant-appellant was deprived of his constitutional rights to

fair trial and due process when the trial court permitted the admission of gruesome

death photos and irrelevant nude sexting photos.

{¶20} “[4.] The defendant-appellant was deprived of his constitutional rights to

fair trial and due process when the trial court failed to give a complete accident

instruction.

{¶21} “[5.] The defendant-appellant’s constitutional rights to due process and fair

trial under the Fifth, Sixth and Fourteen Amendments to the United States Constitution

and Article 1, Sections 10 and 16 of the Ohio Constitution were prejudiced by the

ineffective assistance of trial counsel.

{¶22} “[6.] The trial court erred to the prejudice of the defendant-appellant when

it denied his motion for acquittal made pursuant to Crim.R. 29(A).

{¶23} “[7.] The trial court erred to the prejudice of the defendant-appellant when

6 it returned a verdict of guilty against the manifest weight of the evidence.

{¶24} “[8.] The trial court erred to the prejudice of the defendant-appellant by

sentencing him to a maximum and consecutive sentence of forty-five years to life in

prison.”

{¶25} Under his first assignment, appellant asserts he was denied a fair trial due

to the admission of certain evidence showing that he committed prior bad acts.

According to him, the jury’s consideration of the disputed evidence constituted plain

error because it raised the possibility that his conviction was based solely upon the

conclusion that he was a person of bad character. He also states that the error in the

admission of this evidence was compounded by the failure of the trial court to instruct

the jury to limit its consideration of the evidence to cited purposes.

{¶26} The majority of the disputed evidence was set forth in the testimony of the

victim’s mother, other relatives or acquaintances of the victim, and Doytek. No

objection was ever raised to the testimony in question. As a result, appellant can only

prevail on his first assignment if the admission of the “prior bad acts” testimony can be

characterized as plain error.

{¶27} “Pursuant to Crim.R. 52(B), ‘plain errors or defects affecting substantial

rights may be noticed although they were not brought to the attention of the court.’ ‘In

order to constitute plain error, the error must be obvious and have a substantial adverse

impact on both the integrity of and the public’s confidence in the judicial proceedings.’

State v. Tichon (1995),

, * * *. ‘Notice of plain error (***) is to

be taken with the utmost caution, under exceptional circumstances and only to prevent

a manifest miscarriage of justice.’ State v. Long (1978),

, * * *,

7 paragraph three of the syllabus. ‘Plain error does not exist unless it can be said that but

for the error, the outcome of the trial would clearly have been otherwise.’ State v.

Moreland, (1990),

, * * *.” State v. Griffith, 11th Dist. No. 2008-P-

0089,

, ¶64.

{¶28} In summarizing the general standard for plain error, this court has stated

that this type of error can only be found when: “(1) there was an error, i.e., a deviation

from a legal rule; (2) the error was plain, i.e., there was an ‘obvious’ defect in the trial

proceedings; and (3) the error affected substantial rights, i.e., affected the outcome of

trial.” State v. Kovacic, 11th Dist. No. 2010-L-065,

, ¶14.

{¶29} Applying this standard to this case, the record does not support a finding

of a plain error regarding the admission of the “prior bad acts” testimony.

{¶30} As previously mentioned, appellant and the victim knew each other for a

considerable number of years before the events leading to her death. As part of the

state’s case-in-chief, considerable evidence was presented regarding the volatile nature

of that relationship. Despite the fact that they had lived together at times and had a

child, they had also been separated a number of times. During the periods when they

were not together, appellant had a history of telephoning her on numerous occasions to

merely argue about their relationship. He also had a history of stalking the victim. This

behavior led to the issuance of a civil protection order against him.

{¶31} The majority of the evidence concerning their relationship pertained to the

events that took place on either the day of the incident or a few days before. For

example, the state presented a report setting forth the substantial number of phone calls

and text messages appellant made to the victim during that limited time frame.

8 However, some testimony was allowed concerning the tumultuous nature of appellant’s

relationship with the victim through the years. This testimony included statements

pertaining to alleged threats appellant made to the victim and his prior propensity for

violent behavior. For example, the victim’s mother testified that she was leery for a

number of weeks that appellant was likely to kill her daughter.

{¶32} Moreover, evidence of appellant’s general character and his relationship

with his son was introduced. Examples of this type of testimony included the mother’s

characterization of appellant as a “loser,” a “pot” smoker, and a poor father. As to the

type of father appellant was, Sean Doytek was permitted to testify about a telephone

conversation appellant had with his son two days before the incident, in which he tried

to tell his son that he was not his actual father.

{¶33} During the course of the mother’s testimony, a sidebar conference was

held regarding the scope of her statements on appellant’s general character. At that

time, the trial court expressly asked the primary defense counsel why he was not

objecting to her testimony. In response, defense counsel indicated that he specifically

decided not to object so that he would have the opportunity to refute the mother’s

testimony and, as a result, harm her credibility as a witness.

{¶34} Evid.R. 404(B) expressly states that evidence of a person’s prior bad acts

is not admissible to prove the nature of his general character and whether he has now

acted in conformity with it. However, the rule also provides that “character” evidence is

admissible “for other purposes, such as proof of motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident.”

{¶35} In contending that the “intent” exception in Evid.R 404(B) is applicable, the

9 state argues that appellant’s entire defense to the charges stemming from the victim’s

death was that an “accident” occurred. The state further maintains that, in light of his

defense, it was necessary for the prosecution to show that appellant acted purposefully

in driving his vehicle in such a dangerous manner. In other words, evidence as to the

prior relationship was relevant to show that appellant acted in a way that was consistent

with his previous threat to “kill” the victim.

{¶36} The record supports the state’s assertion that the vast majority of the

evidence concerning appellant’s prior bad acts related to his relationship with the victim

and how he reacted violently whenever he thought she was dating another man. In

applying Evid.R. 404(B), the Twelfth Appellate District held that when there is a dispute

as to whether the harm to the victim was caused accidentally, evidence concerning prior

threats and prior acts of violence is admissible to prove that the defendant acted

intentionally. State v. Wyatt, 12th Dist. No. CA2010-07-171,

, ¶7-12.

Pursuant to this authority, and defense counsel’s stated strategy for not objecting, the

admission of the testimony as to appellant’s prior relationship with the victim does not

amount to plain error.

{¶37} While it is true that some of the “prior bad acts” testimony, such as the

mother’s assertions about appellant’s use of marijuana, was irrelevant to the nature of

his relationship with the victim, the amount of that other “character” evidence was

relatively small in contrast to the amount of evidence submitted during the entire trial.

Thus, even though the lack of any objection to that particular testimony did constitute an

obvious error, the record before this court does not support the conclusion that this error

had any effect upon the outcome of the trial.

10 {¶38} As a separate point, appellant submits that trial counsel’s failure to request

a limiting instruction regarding the jury’s consideration of the “prior bad acts” evidence

needlessly increased the possibility of prejudice. As to the need for such an instruction,

a trial court has no obligation to give a limiting instruction when one is not requested,

and defense counsel’s failure to make such a request does not always result in plain

error because the lack of a request may be a tactical decision. State v. Schlee, 11th

Dist. No. 93-L-082,

, *19-20, quoting State v. Schaim,

(1992).

{¶39} Since the admission of testimony as to appellant’s prior bad acts did not

result in a denial of his right to a fair trial, his first assignment of error is lacking in merit.

{¶40} Under his second assignment, appellant submits that he was denied a fair

trial when the trial court allowed certain lay witnesses to state their opinions regarding

an ultimate factual issue in the action. As part of its case-in-chief, the state presented

the testimony of at least two witnesses who saw appellant’s car hit the victim. Both

witnesses testified that their observations led them to believe that appellant acted

intentionally. Appellant argues this testimony was prejudicial because, under two of the

murder charges, the question of whether he acted purposefully was an ultimate issue

for the jury.

{¶41} Of the seven counts of the indictment pertaining to the incident where the

victim was struck by appellant’s vehicle, only two, aggravated murder and murder,

required the state to prove appellant acted purposefully in taking the victim’s life. As

previously mentioned, regarding those two counts, the jury expressly found appellant

not guilty. Therefore, given that the jury never found that appellant had acted

11 intentionally, any error as to the admission of the disputed testimony was not prejudicial

to appellant.

{¶42} Notwithstanding the foregoing point, the merits of appellant’s argument as

to the admissibility of the disputed testimony will still be considered. The admission of

“opinion” testimony through a lay witness is governed by Evid.R. 701:

{¶43} “If the witness is not testifying as an expert, the witness’ testimony in the

form of opinions or inferences is limited to those opinions or inferences which are (1)

rationally based on the perception of the witness and (2) helpful to a clear

understanding of the witness’ testimony or the determination of a fact in issue.”

{¶44} The Ohio Rules of Evidence expressly provide the scope of “opinion”

testimony a lay witness can offer: “Testimony in the form of an opinion or inference

otherwise admissible is not objectionable solely because it embraces an ultimate issue

to be decided by the trier of fact.” Evid.R. 704.

{¶45} Accordingly, the critical point is whether the opinion of the lay witness will

truly be helpful to the jury; i.e., if the basic facts are clear and the jury is able to draw its

own conclusions, the lay opinion is not admissible. See State v. Kehoe,

(12th Dist. 1999); City of Ashtabula v. Smith, 11th Dist. No. 2000-A-

0029,

, (May 18, 2001) at *14-15, citing Klotter, Criminal

Evidence (7 Ed. 1999) 277, Section 11.3 (Concurring Opinion of Judge Donald R. Ford).

{¶46} In this case, the trial record readily demonstrates that the testimony of the

two lay witnesses was based upon their own perception of the fatal event as it occurred

before them. Furthermore, even though the testimony of the two witnesses was

relatively clear as to the events, the specific factual issue of whether appellant acted

12 purposefully was not so obvious. In this regard, the evidence showed that the victim did

not walk into the road until a few seconds before appellant backed up the car. In

addition, there was evidence that appellant turned his head to look behind him at

essentially the same time he hit the accelerator to back up. Under such circumstances,

the opinion of each lay witness was admissible under Evid.R. 701 because the disputed

testimony assisted the jury in understanding the facts as they related to the basic

question of appellant’s intent.

{¶47} In conjunction with the foregoing point, appellant asserts that he also was

prejudiced when references were made to similar lay opinions during the testimony of

the coroner and the chief investigating sheriff’s deputy. The testimony of both of these

officials confirms that, in stating the materials each considered in producing their

respective reports on the incident, both cited to statements of witnesses at the scene

who described appellant’s acts as intentional.

{¶48} As to these references, it must first be noted that the lay opinions were not

cited for the truth of the matter asserted. In relation to the chief investigating deputy, the

reference was made only to explain what information he gave to the coroner at the

scene and how it affected the subsequent course of the investigation. In turn, that

information was used by the coroner in formulating his own statutorily-mandated opinion

concerning the cause of the victim’s death. Thus, since the references were only made

to establish the basis of both officials’ subsequent actions in the investigation, no

prejudicial error occurred in allowing the jury to hear the references as part of the

testimony of the two witnesses. Appellant’s second assignment does not have merit.

{¶49} Under his next assignment, appellant contends the trial court erred in

13 allowing the state to introduce into evidence multiple photographs from the autopsy of

the victim. He maintains that, because the photographs were particularly repetitive and

gruesome, they only served the purpose of inflaming the jury against him.

{¶50} There is no dispute that appellant’s trial counsel did not object to any of

the autopsy photographs. As a result, the admission of the photographs can only

constitute a basis for reversal if plain error occurred.

{¶51} In reviewing the merits of the trial court’s determination to admit or exclude

evidence, an appellate court applies an “abuse of discretion” standard. State v.

Handiwork, 11th Dist. No. 2002-P-0134,

. As to the introduction of

photographs in a non-capital murder case, the mere fact that they are gruesome or

horrendous is not an automatic reason for exclusion. Id. at ¶21. Instead, the basic

balancing test under Evid.R. 403(A) must be employed; i.e., it must be decided if the

probative value of the photographs is substantially outweighed by the danger of unfair

prejudice. Kovacic,

, at ¶29.

{¶52} A review of the disputed autopsy photographs shows that the first

photograph provides an overall view of the victim’s clothed body. Appellant asserts that

this particular photograph adequately depicted the various injuries she suffered in the

incident, and that many of the ensuing photographs of her unclothed physique were

simply repetitive and needlessly gruesome.

{¶53} A review of the other 15 photographs challenged by appellant shows that

the series of pictures are in no way repetitive. As a result of being hit and then dragged

under appellant’s vehicle, the victim suffered serious bruises and abrasions on many

aspects of her body. The disputed photographs depict each of the various injuries.

14 Moreover, while some of the photographs provide an up-close view of specific injuries,

none of them are so horrendous as to distract from the basic purpose of demonstrating

of the nature of the victim’s injuries.

{¶54} While certainly graphic in nature, each of the disputed photographs has

probative value to the extent they depict the seriousness of the victim’s injuries and the

cause of her death. Like most autopsy pictures, the photographs could be

characterized as gruesome. Yet, when the photographs are considered as a whole,

their gruesome nature is not so significant that their probative value is outweighed by

the danger of unfair prejudice. Accordingly, admission of the photographs did not

constitute plain error.

{¶55} As a separate issue under this assignment, appellant submits that the trial

court abused its discretion in admitting nude photographs that he retained on his cell

phone. As part of the testimony of a police detective, the state presented a written

report concerning the manner in which appellant used his cell phone immediately prior

to the incident. Although the report primarily consisted of lists of various text messages

and phone calls, it also contained photographs that were sent with a text message and

retained on the memory of the phone. The nude photographs were of the victim and an

unidentified male, and were sexually explicit.

{¶56} During the course of his testimony regarding the “phone” report, the police

detective did not make any reference to the nude pictures; accordingly, no undue

emphasis was placed on them. Moreover, at the close of the state’s case, appellant’s

trial counsel did not object to the pictures or any other aspect of the report. In fact,

defense counsel attempted to refer to the pictures in questioning appellant during his

15 trial testimony.

{¶57} The majority of the nude photographs taken from appellant’s phone were

of the victim. As part of its evidentiary submission in response to appellant’s claim that

the victim’s death was an accident, the state tried to demonstrate that appellant was

obsessed with the victim to the point that he would become violent when he was given a

reason to be jealous. To the extent that the presence of the photographs on appellant’s

phone tended to show that he was obsessed with the victim, the photographs were

relevant.

{¶58} Without providing an extensive argument, appellant asserts before this

court that the introduction of the nude photographs raised the “possibility” of unfair

prejudice against him in the eyes of the jury. While it cannot be denied that the

photographs could have some prejudicial effect, the record does not support the

conclusion that the prejudice was so great that it substantially outweighed the probative

value of the photographs. Thus, admission of the photographs does not result in an

obvious defect undermining the basic integrity of appellant’s trial. His third assignment

of error is not well taken.

{¶59} Under his fourth assignment, appellant asserts the trial court erred in

failing to instruct the jury on the defense of accident as to all five counts relating to the

victim’s death. As was noted above, five of the charges against appellant were based

upon the specific incident where he ran over her with his vehicle: aggravated murder,

murder, felony murder, aggravated vehicular homicide, and felonious assault. When

appellant made his request for an “accident” instruction at the close of the trial, the trial

court granted it in regard to the mens rea of aggravated murder and murder, but denied

16 it as to the remaining three charges, under which the mens rea was not purposefully.

{¶60} The discussion regarding the inclusion of an “accident” instruction was

held after the close of appellant’s evidence near the conclusion of the trial. Initially, the

lead defense counsel requested that an “accident” instruction be given as to all five

charges pertaining to the death of the victim. The request appears to have been

predicated upon counsel’s inaccurate assumption that the mens rea for all five offenses

was purposefully. After indicating that only aggravated murder and murder required a

purposefully finding, the trial court stated that the “accident” instruction would only be

given for those two counts because the fact that an act was an accident could only be

employed to defend against the mens rea of purposefully or intentionally. Thereafter,

defense counsel expressly agreed with the trial court’s statement, and did not raise any

objection to the “accident” instruction after it was read to the jury.

{¶61} Crim.R. 30(A) mandates that if a party has an objection to the trial court’s

instructions to the jury, it must be expressly raised before the jury retires to begin its

deliberations. If the necessary objection is not made timely, the party waives all but

plain error. State v. Chambers, 4th Dist. No. 10CA902,

. In our

case, defense counsel did not assert any objection as to the extent of the trial court’s

“accident” instruction before the jury deliberations began.

{¶62} “Accident is not an affirmative defense. * * *. Rather, the defense of

accident is tantamount to a denial that an unlawful act was committed; it is not a

justification for the defendant’s admitted conduct. * * *. Accident is defined as an

unfortunate event occurring casually or by chance. * * *. Accident is an argument that

supports a conclusion that the State has failed to prove the intent element of the crime

17 beyond a reasonable doubt. * * *. When accident has been raised as a defense, with a

supporting record, a court errs when it refuses to charge the jury on the issue.”

(Citations omitted.) State v. Atterberry,

(8th Dist. 1997).

{¶63} As the foregoing quote indicates, some Ohio appellate courts have only

referred to the mens rea of “purposefully” in describing how the “accident” doctrine can

be used as a means of negating the mens rea element of a crime. However, this court

applies the doctrine when the mens rea of the charged offense is less than purposefully,

i.e., knowingly. See State v. Brady,

(11th Dist. 1988). Similarly, we

have stated that, when justified and requested, an “accident” instruction should be given

even when the mens rea of the charged offense is recklessness. See State v. Howell,

(11th Dist. 2000).

{¶64} In Brady, the defendant was charged with felonious assault, an offense

requiring a mens rea of “knowingly.” At trial, the court refused to give the defendant’s

requested “accident” instruction. On appeal, the Brady court first held that, since the

evidence at trial was sufficient to support the ‘accident’ defense, the trial court should

have given the instruction. Brady,

. We then addressed the

state’s argument that the failure to instruct on accident was harmless because the jury

had been instructed on the statutory definition of “knowingly.” That is, it was the state’s

position that implicit in the definition of knowingly is that if an accident is found by the

jury, this means that the mens rea has not been proven. In rejecting the argument, the

Brady court held that, while it was arguable that a jury would see the interplay between

“unknowingly” and accident, by requiring an explicit instruction we remove the possibility

that a juror would miss this point.

. Based upon this, the Brady court concluded

18 that, when warranted under the facts of a case, an “accident” instruction should be

given.

{¶65} Pursuant to Brady, the failure to give an “accident” instruction can never

be deemed a harmless error when requested because an instruction as to the definition

of “knowingly” does not provide an explicit instruction regarding the legal effect of a

finding of accident. See, also, Howell,

.

{¶66} Like the defendant in Brady, appellant was charged with felonious assault.

Moreover, the count of felony murder against him was predicated upon the underlying

charge of felonious assault. Therefore, the governing mens rea for both of those counts

was “knowingly.” See R.C. 2903.11(A) and 2903.02(B). In addition, pursuant to R.C.

2903.08(A)(2)(b), the offense of aggravated vehicular homicide requires a finding of

“reckless” behavior. As a result, the holdings in Brady and Howell are clearly applicable

to the facts of this case.

{¶67} In the years since the release of Brady in 1988, at least one of our sister

appellate districts has reached a decision directly conflicting with our Brady analysis.

See State v. Staats, 9th Dist. No. 15706,

, *13 (April 13,

1994), in which the Ninth Appellate District concluded that the failure to give an

“accident” instruction was not reversible error because the jury would have realized that

a finding of “knowingly” necessarily entailed the absence of an accident. On the other

hand, our Brady holding was expressly followed in State v. LaBarre, 5th Dist. No. CA-

8367,

, *7-8 (June 3, 1991), in which the Fifth Appellate

District held that a prejudicial error occurred when the trial court did not provide an

“accident” instruction regarding the “knowingly” element of voluntary manslaughter.

19 {¶68} This court has never specifically overruled the holding in Brady; in fact, 12

years after the release of Brady, we essentially applied the identical analysis in regard

to the mens rea of “reckless.”

Furthermore, in requesting this court to

not follow Brady in this case, the state has failed to set forth any legitimate reason for us

to overrule our prior precedent. Therefore, the Brady decision is still binding authority in

this district, and was clearly pertinent to the three counts of felony murder, felonious

assault, and aggravated vehicular homicide in this case.

{¶69} Nevertheless, it must again be noted that appellant’s trial counsel did not

object to the trial court’s decision to limit its “accident” instruction to the two charges of

aggravated murder and murder; thus, this court must again engage in a “plain error”

analysis. As previously discussed, a criminal conviction can only be reversed under the

“plain error” standard when, inter alia, an obvious defect in the proceedings adversely

affected the outcome of the trial. Kovacic,

, at ¶14.

{¶70} In arguing that the record does not support a finding of plain error in this

case, the state cites State v. Smiley, 8th Dist. No. 93853,

. In Smiley,

the primary issue before the appellate court was whether the defendant had been

denied effective assistance as a result of the trial counsel’s failure to request an

“accident” instruction in regard to the charged offense of felonious assault. However, in

addressing this question, the Smiley court also considered whether the lack of any

“accident” instruction to the jury could be plain error. In upholding the conviction for

felonious assault, the Smiley court concluded that the requirements for plain error could

not be met “‘“[b]ecause the accident defense is not an excuse or justification for the

admitted act,” and the effect of such an instruction “would simply (* * *) remind the jury

20 that the defendant presented evidence to negate the requisite mental element,” such as

purpose. In this regard, “[i]f the jury had credited [the defendant’s] argument, it would

have been required to find [the defendant] not guilty (* * *) pursuant to the court’s

general instructions.”’ State v. Johnson, 10th Dist. No. 06AP-878,

, ¶63

* * *.” Id. at ¶16. See, also, Chambers,

.

{¶71} In essence, the Smiley court found that there had been no plain error

because, by providing the jury with the statutory definition of “knowingly,” the trial court

told the jury that the defendant could not be found guilty of felonious assault if an

accident had occurred. Id. at ¶18-19. At first glance, the Smiley plain error analysis

would appear to directly conflict with our ultimate holding in Brady. However, it must be

reiterated that the Brady opinion never addressed the issue of whether plain error had

occurred. Instead, the sole issue before the Brady court was whether an error resulted

from the trial court’s denial of the defendant’s express request for an “accident”

instruction.

{¶72} As previously indicated, as part of our analysis in Brady, this court

acknowledged that it is arguable that, even in the absence of an instruction on accident,

the jury could still understand that if it found that the defendant’s conduct was an

accident, he did not act knowingly. Brady,

. The basis for our

decision in Brady was that, even though it is likely that the jury would see the foregoing

relationship even in the absence of an “accident” instruction, there was still a possibility

that a particular set of jurors might not comprehend the legal effect of a finding that if the

defendant’s conduct was an accident, he could not have acted knowingly. Given these

circumstances, the better practice is to always require the “accident” instruction

21 whenever it is warranted under the facts, and to hold that it is prejudicial error to not

give the instruction when requested by the defendant because the “accident’ instruction

explicitly states what is only implicit in the pertinent mens rea definitions.

{¶73} However, under a plain error analysis, the nature of our review of the

record is substantially different. Again, plain error should not be found unless it can be

said that the disputed error affected the outcome of the trial in such a way that it had a

substantial adverse impact upon the integrity of the underlying proceeding. Griffith,

, at ¶64. Pursuant to Smiley and

two other appellate

districts have held that the absence of an “accident” instruction does not constitute plain

error because a proper definition of the term “knowingly” will suffice to inform an

average juror that if an accident occurred, then the defendant did not act knowingly.

Upon due consideration, this court holds that the Smiley plain error analysis is

persuasive, and does not conflict with our prior holding in Brady. That is, we conclude

that the lack of an “accident” instruction does not amount to plain error.

{¶74} In this case, the trial record shows that the trial court gave a proper

definition of “knowingly” in relation to the counts of felony murder and felonious assault,

and a proper definition of “recklessness” as to the count of aggravated vehicular

homicide. Hence, since the record does not support a finding of plain error, appellant’s

fourth assignment lacks merit.

{¶75} Under his next assignment, appellant states that his entire conviction must

be reversed because he was denied his basic constitutional right to effective assistance

of trial counsel. In support of this assertion, he cites to trial counsel’s failure to request

a limiting instruction in regard to the “prior bad acts” testimony and the failure to object

22 to the gruesome autopsy photographs.

{¶76} “In order to prevail on a claim of ineffective assistance of counsel,

appellant must establish that: (1) the performance of defense counsel was seriously

flawed and deficient; and (2) the result of appellant’s trial would have been different if

defense counsel had provided proper representation. See Strickland v. Washington

(1984),

, * * *. We are to be highly deferential in our review of trial

counsel’s performance.

. Moreover, it is well-settled that counsel benefits

from a strong presumption of competence. See State v. Smith (1985),

, * * *. In other words, defense counsel is not ineffective unless his or her

performance fell below an objective standard of reasonable representation, and the

defendant is prejudiced from that performance. State v. Bradley (1989),

, * * *. Nevertheless, analysis of whether counsel’s performance was deficient

is not necessary if a claim can be disposed of by showing a lack of sufficient prejudice.

Id.” Kovacic,

, ¶45.

{¶77} Concerning the two matters cited by appellant, consistent with our prior

analysis, the trial record does not support a finding of deficient performance as to the

“prior bad acts” testimony. Similarly, since the autopsy photographs are relevant and

their probative value is not outweighed by the danger of unfair prejudice, they were

admissible. In addition, given our conclusion under the fourth assignment that the

absence of an “accident” instruction to the jury did not constitute plain error, counsel’s

failure to object to the trial court’s instructions does not constitute ineffective assistance.

Thus, as to the foregoing points, appellant fails to establish that he was denied a fair

trial as a result of the actions of his trial counsel.

23 {¶78} As a separate argument pertaining to the competency of his trial counsel,

appellant submits that he was prejudiced by counsel’s decision to not request that the

entire audiotape of his statement to the police be played for the jury. After his surrender

to the authorities, appellant agreed to be interviewed and provided a statement about

the incident. This interview lasted for over two hours and was taped by the authorities.

At trial, the state introduced the audiotape of the statement into evidence, but no portion

of the tape was actually played before the jury.

{¶79} According to appellant, the playing of the audiotape would have helped his

case because the jury would have heard how distraught he was immediately following

the incident. However, our review of the trial record shows that, in testifying before the

jury, one of the officers who conducted the interview described appellant’s demeanor

and how he reacted when he was informed that the victim was dead. Specifically, the

officer testified that appellant began screaming and cried hysterically. Moreover,

appellant testified on his behalf at trial; thus, he had every opportunity to explain to the

jury what his feelings had been at that time. For this reason, the trial record does not

support any finding that appellant was prejudiced by the fact that the audiotape was not

played for the jury. Accordingly, the fifth assignment is not well taken.

{¶80} Under his sixth assignment, appellant challenges the trial court’s decision

to deny his Crim.R. 29 motion for a judgment of acquittal, which was made at the close

of the state’s case-in-chief. As to the remaining three charges relating to the incident

causing the victim’s death, i.e., felony murder, felonious assault, and aggravated

vehicular homicide, he argues that the state failed to present any evidence that he acted

knowingly or recklessly when he backed up his car.

24 {¶81} It is well established under Ohio law that a Crim.R. 29 motion for judgment

of acquittal contests the legal sufficiency of the state’s evidence. State v. Sawyer, 11th

Dist. No. 2011-P-0003,

, ¶55. Therefore, such a motion should not be

granted “when the state’s evidence is such that a reasonable juror could find that every

essential element of the crime was established beyond a reasonable doubt.” State v.

Ramirez, 11th Dist. No. 2010-L-040,

, ¶23.

{¶82} “‘* * * (A) reviewing court must look to the evidence presented * * * to

assess whether the state offered evidence on each statutory element of the offense, so

that a rational trier of fact may infer that the offense was committed beyond a

reasonable doubt.’ State v. March (July 16, 1999), 11th Dist. No. 98-L-065,

, at *8. The evidence is to be viewed in a light most favorable to the

prosecution when conducting this inquiry. State v. Jenks (1991),

,

* * *, paragraph two of the syllabus. Further, the verdict will not be disturbed on appeal

unless the reviewing court finds that reasonable minds could not have arrived at the

conclusion reached by the trier of fact. State v. Dennis (1997),

, 430

* * *.” Sawyer,

, at ¶60.

{¶83} In essentially claiming that he could not have acted “knowingly” when he

hit the victim while backing up, appellant emphasizes that the event took place quickly

and that he was driving too fast and erratically to realize that the victim was now behind

him. As to this point, this court would note that R.C. 2901.22(B) provides that a person

acts knowingly “when he is aware that his conduct will probably cause a certain result

* * *.” By its very nature, the act of driving backwards at a fast speed and in an erratic,

“zigzagging” manner is so dangerous that an accident is likely to occur. Hence,

25 regardless of whether appellant realized that the victim was behind him, the evidence

was sufficient. Moreover, there was some evidence indicating that appellant looked

behind him momentarily before accelerating; if believed, this evidence supports an

inference that he saw the victim before his vehicle began to go backwards.

{¶84} As to the charge of aggravated vehicular homicide, requiring a mens rea

of reckless, R.C. 2901.22(C) states that a person engages in reckless behavior “when,

with heedless indifference to the consequences, he perversely disregards a known risk

that his conduct is likely to cause a certain result * * *.” Consistent with our analysis as

to the “knowingly” element, we conclude that the state presented sufficient evidence to

support a finding of recklessness.

{¶85} As a separate argument under this assignment, appellant asserts that the

state failed to present any evidence that he acted knowingly when he drove his vehicle

unto the sidewalk near the “horseshoe” driveway of the victim’s condominium complex.

As to this issue, the evidence demonstrated that, in driving his vehicle toward his son,

the victim, and Doytek as they were standing near a boulder, appellant crossed a lane

of traffic and drove upon the sidewalk and some of the grass before veering away. The

fact that appellant drove directly toward them indicated that he was fully aware of their

presence. Additionally, the record shows that he performed this maneuver at a high

rate of speed. Hence, again, the evidence was sufficient as to the “knowingly” element.

{¶86} Taken as a whole, the state’s evidence was legally sufficient to warrant

the submission of all pending charges to the jury. Thus, appellant’s sixth assignment is

not well taken.

{¶87} Under his next assignment, appellant contends that his three convictions

26 stemming from the victim’s death were against the manifest weight of the evidence. As

he did under the sixth assignment, appellant focuses his challenge on the “knowing”

element of felonious assault and felony murder. That is, he again argues that the act he

committed in backing his car into the victim occurred so quickly that the evidence could

only be interpreted to show that he did not form the requisite mens rea. He also asserts

that the testimony of Sean Doytek should have been rejected because it was completely

lacking in credibility.

{¶88} “‘In determining whether the verdict was against the manifest weight of the

evidence, “*** 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.” (Citations omitted.) (Emphasis added.)’” Schlee,

, at *14-15, quoting State v. Davis,

(1988).

{¶89} As appellant correctly asserts, Sean Doytek was the sole state witness at

trial who testified that appellant turned his head and looked behind his car a split second

before applying the accelerator and hitting the victim. It is appellant’s basic position that

Doytek’s version of the event was so inconsistent with the other evidence presented at

trial that it was not believable. According to appellant, the remaining evidence showed

that the events happened so quickly that he did not have time to turn his head prior to

hitting the accelerator.

{¶90} Regarding this argument, it must be emphasized that, of all the witnesses

who actually saw the incident occur, Doytek was the closest, being only a few feet away

27 from appellant’s vehicle when it began to back up. Furthermore, given that appellant’s

reason for moving his vehicle backward was to avoid Doytek, it logically follows that he

was looking at Doytek before he decided to move. Thus, despite the fact that no one

else saw appellant look backward, Doytek’s version was still credible because he was in

the best position to see appellant’s head movements.

{¶91} When considered as a whole, Doytek’s trial testimony did not contain any

inconsistencies or illogical statements which would call into question his truthfulness.

Additionally, his testimony, if believed, constituted some evidence upon which a juror

could reasonably find that appellant acted knowingly when he hit the victim with his

vehicle, thereby satisfying the elements for both felony murder and felonious assault.

For the same reason, the “reckless” element of aggravated vehicular homicide was also

met. Hence, since the jury verdict on the three charges relating to the victim’s death

was not against the manifest weight of the evidence, appellant’s seventh assignment

lacks merit.

{¶92} Under his final assignment of error, appellant has raised two issues as to

the propriety of the sentence which the trial court imposed. First, he contends that the

trial court failed to give proper consideration to the remorse which he exhibited during

the trial. Based upon this, he further contends that consecutive and maximum prison

terms should not have been imposed. Second, appellant maintains that the trial court

committed plain error when it failed to merge the two felony “protective order” charges

into the corresponding counts of felonious assault for purposes of sentencing.

{¶93} Pursuant State v. Kalish,

,

, a two-prong

test is followed in reviewing a criminal sentence on appeal. “First, the [appellate court]

28 must examine the sentencing court’s compliance with all applicable rules and statutes in

imposing the sentence to determine whether the sentence is clearly and convincing

contrary to law. If this first prong is satisfied, the trial court’s decision in imposing the

term of imprisonment is reviewed under the abuse-of-discretion standard.” Id. at ¶26.

This court has indicated that an abuse of discretion occurs when the trial court fails to

engage in sound, reasonable, and legal decision-making. State v. Alsina, 11th Dist. No.

2011-A-0016,

, ¶13.

{¶94} In this case, appellant has not contested the legality of the imposed term;

instead, he submits that the maximum sentence possible was not justified in light of the

remorse he has shown. However, a review of the general facts of this matter indicates

that, of the offenses for which he was convicted, appellant committed the worst possible

form of those crimes. That is, in backing his car up in such a haphazard manner, he

gave no heed to the threat he could pose to the victim. Moreover, after initially hitting

the victim, he did not attempt to stop his car in order to limit the harm to the victim.

Given these circumstances, his remorse was not entitled to significant weight.

{¶95} Appellant further submits that the trial court did not accord proper weight

to certain mitigating factors, such as he was reacting to strong provocation when his

vehicle hit the victim. As to this point, even though the record confirms that Doytek was

trying to hit appellant with pepper spray right before the fatal incident occurred, the trial

court could have readily found that appellant had been the instigator of the entire

confrontation by following the victim and Doytek from Mentor to the condominium

complex; hence, appellant’s “provocation” argument was not entitled to significant

weight. Similarly, the trial court could have justifiably rejected appellant’s contention

29 that his reaction to the various events on the fatal day stemmed from the fact that he

was distraught by the possibility that he might be losing visitation with his son. The

state presented considerable evidence from which it could be inferred that appellant’s

commission of the various crimes had been motivated solely by his obsession with the

victim and his refusal to accept the basic fact that she no longer wanted to have a

relationship with him.

{¶96} Finally, appellant argues that the imposition of consecutive and maximum

sentences cannot be upheld because, during the sentencing hearing, the trial court was

biased against him. In support of this point, he notes that the court made derogatory

comments concerning the propriety of certain evidence which the defense introduced at

trial. For example, the trial court was critical that the defense presented the testimony

of an expert witness who theorized that appellant’s vehicle was not going over 5 m.p.h.

when it hit the victim.

{¶97} Generally, the submission of evidence is not a proper factor for

consideration in the imposition of sentence. Nevertheless, upon reviewing the entire

transcript of the sentencing hearing and the sentencing judgment, the references to the

cited evidence were not a controlling factor in the trial court’s sentencing determination.

That is, the record shows that the decision to impose maximum and consecutive prison

terms was based primarily upon these points: (1) appellant did not show any

compassion for the victim at the time of the incident; (2) appellant had placed his own

son’s life in jeopardy during the “horseshoe drive” incident; (3) appellant’s acts caused a

tremendous amount of grief for his son and the victim’s family; (4) appellant’s acts were

based upon impulsive behavior over which he did not try to exercise any control; and (5)

30 he used his motor vehicle as a deadly weapon throughout the entire episode.

{¶98} When viewed as a whole, the trial court’s sentencing determination was

predicated upon relevant factors under R.C. 2929.12 and 2929.13. Moreover, the trial

court’s findings on those factors were supported by the evidence presented at trial.

Therefore, the trial court did not abuse its discretion in imposing maximum and

consecutive sentences for the various offenses.

{¶99} Under the second aspect of this assignment, appellant asserts that it was

plain error for the trial court to impose separate five-year terms as to each of the two

felony charges for violating a protection order. Besides the misdemeanor “protection

order” charge that was based on the separate “traffic light” incident in Mentor, appellant

was found guilty of two felony “protection order” charges that were based upon the

“horseshoe drive” incident and the fatal incident, respectively. Appellant argues that, for

sentencing purposes, the two felony charges should have been merged with the two

counts of felonious assault pertaining to the victim and the two incidents in question.

{¶100} Specifically, he maintains that the crime of violating a civil protection order

and the crime of felonious assault are allied offenses of similar import, pursuant to R.C.

2941.25(A). In response, the state contends that, even if the two offenses are allied for

purposes of the statute, separate prison terms on each of the felony “protection order”

charges was still warranted because appellant had a separate animus as to each crime.

{¶101} As an initial point, no objection was made to the trial court’s decision to

impose a separate term on each of the two felony “protection order” convictions.

However, the Supreme Court of Ohio has stated that the imposition of multiple

sentences for allied offenses is always viewed as plain error. State v. Underwood, 124

,

.

{¶102} R.C. 2941.25 sets forth the procedure to be followed in relation to a

criminal conviction involving multiple counts:

{¶103} “(A) Where the same conduct by defendant can be construed to constitute

two or more allied offenses of similar import, the indictment or information may contain

counts for all such offenses, but the defendant may be convicted of only one.

{¶104} “(B) Where the defendant’s conduct constitutes two or more offenses of

dissimilar import, or where his conduct results in two or more offenses of the same or

similar kind committed separately or with a separate animus as to each, the indictment

or information may contain counts for all offenses, and the defendant may be convicted

of all of them.”

{¶105} As to the test to be employed in deciding when two crimes are allied

offenses of similar import, a plurality of the Ohio Supreme Court summarized its

application of R.C. 2941.25 in State v. Johnson,

,

,

which was decided seven days after the trial court sentenced in this case. In

subsequent cases before this court, we have expressly followed the Johnson plurality.

See State v. Muncy, 11th Dist. No. 2011-A-0066,

. The Johnson court

stated, at ¶48-51:

{¶106} “In determining whether offenses are allied offenses of similar import

under R.C. 2941.25(A), the question is whether it is possible to commit one offense and

commit the other with the same conduct * * *. If the offenses correspond to such a

degree that the conduct of the defendant constituting commission of one offense

constitutes commission of the other, then the offenses are of similar import.

32 {¶107} “If the multiple offenses can be committed by the same conduct, then the

court must determine whether the offenses were committed by the same conduct, i.e.,

‘a single act, committed with a single state of mind.’ * * *.

{¶108} “If the answer to both questions is yes, then the offenses are allied

offenses of similar import and will be merged.

{¶109} “Conversely, if the court determines that the commission of one offense

will never result in the commission of the other, or if the offenses are committed

separately, or if the defendant has separate animus for each offense, then, according to

R.C. 2941.25(B), the offenses will not merge.” (Citations omitted and emphasis sic.)

{¶110} In our case, the issue is whether felonious assault and a violation of a

protection order are allied offenses of similar import. Under R.C. 2903.11(A)(2), a

person is guilty of felonious assault if he knowingly causes, or attempts to cause,

physical harm to another by means of a deadly weapon or dangerous ordinance.

Pursuant to R.C. 2919.27(A)(2), a person is guilty of violating a protection order if he

recklessly fails to comply with a protection order issued under R.C. 2903.213 or

2903.214.

{¶111} Upon comparing the elements of these two crimes, this court holds that

they are allied offenses of similar import because the conduct which results in the

commission of a felonious assault would also result in the commission of a violation of

protection order, if such an order is in effect. Cf., State v. Weathers, 12th Dist. No.

CA2011-01-013,

. In this regard, conduct done “knowingly”

encompasses conduct performed recklessly. State v. Skeens, 7th Dist. No. 286, 2001-

Ohio-3476, ¶24.

33 {¶112} Furthermore, during both the “horseshoe drive” incident and the fatal

incident, the two offenses were committed with the same animus. Because it was plain

error for the trial court not to merge for sentencing purposes the two felony “protection

order” counts into the two felonious assault counts involving the victim and the two

incidents at the apartment complex, appellant’s eighth assignment has merit to that

limited extent.

{¶113} Pursuant to the analysis under the eighth assignment, the judgment of the

Lake County Court of Common Pleas is affirmed in part and reversed in part, and the

case is remanded for the limited purpose of resentencing appellant in light of the merger

of the two counts of felony violation of a protection order.

TIMOTHY P. CANNON, P.J.,

MARY JANE TRAPP, J.,

concur.

34