[Cite as State v. Rickard,

.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WOOD COUNTY

State of Ohio Court of Appeals Nos. WD-14-016 WD-14-017 Appellee Trial Court Nos. 2013CR0574 v. 2013CR0596

Cody R. Rickard DECISION AND JUDGMENT

Appellant Decided: August 14, 2015

*****

Paul A. Dobson, Wood County Prosecuting Attorney, Gwen Howe-Gebers, Chief Assistant Prosecuting Attorney, and David T. Harold, Assistant Prosecuting Attorney, for appellee.

Lawrence A. Gold, for appellant.

*****

JENSEN, J.

{¶ 1} This is a consolidated appeal from the February 4, 2014 judgment entries of

the Wood County Court of Common Pleas, following a jury trial, in which appellant,

Cody R. Rickard, was found guilty of one count of murder, two counts of aggravated vehicular homicide, two counts of felonious assault, and two counts of vehicular assault.

The trial court convicted and then sentenced Rickard to 15 years to life in prison on the

murder count, and 7 years to each of the felonious assault counts. The trial court ordered

the sentences to be served consecutively. Rickard now appeals. For the reasons that

follow, we affirm, in part, and reverse, in part, the judgments of the trial court.

{¶ 2} On October 28, 2013, numerous CSX employees and subcontractors were

replacing railroad tracks near the town of Bradner in Wood County, Ohio. A barricade

was placed at the intersection of James Street and Bradner Road (aka South Main Street)

indicating “ROAD CLOSED AT RAILROAD CROSSING LOCAL TRAFFIC ONLY.”

A second “ROAD CLOSED” barricade was placed across both lanes of Bradner Road,

approximately 372 feet south of the first road closed sign, just after the last private

residence before the road intersects the tracks. Vernon Bowling, a CSX mechanic, had

parked his truck, facing south, a few feet from the railroad crossing. The truck blocked a

portion of the northbound lane of Bradner Road approximately 139 feet south of the

second barricade.

{¶ 3} At approximately 11:18 a.m., several CSX employees were standing at the

back end of the truck waiting for Bowling to repair a machine that had broken down on

the track. Lewis Knott was seated on the back bumper of the truck, Jimmy D. Conley

and Paul Castle stood near Knott.

{¶ 4} At the same time, appellant drove his white Dodge Charger south on

Bradner Road. He drove around the first barricade, then into the grass around the second

2. barricade. As he accelerated his vehicle, appellant struck a metal pole bearing a curve

warning sign located 65 feet south of the second barricade. Then, appellant struck a

wood utility pole located 59 feet south of the metal pole. Both the metal pole and the

wood pole were sheared from their bases.

{¶ 5} Appellant’s vehicle struck Conley, Castle, and the back panel of the

mechanic’s truck before it came to stop in a drainage ditch. Upon impact with

appellant’s vehicle, Castle’s body was thrown more than 80 feet. Castle died from

complications of multiple blunt force traumas. The collision caused Conley to fall onto

Knott. Conley suffered fractures to his pelvis and vertebrae. Knott suffered injuries to

his legs and hip.

{¶ 6} On November 7, 2013, in case No. 2013CR0574, the grand jury issued a

four-count indictment against appellant. In Counts 1 and 3, appellant was charged with

vehicular assault on Lewis Knott and Jimmy Conley, in violation of R.C.

2903.08(A)(2)(a) and (C)(2), felonies of the fourth degree. In Count 2, appellant was

charged with felonious assault on Knott, in violation of R.C. 2903.11(A)(2) and

(D)(1)(a), a felony of the second degree. In Count 4, appellant was charged with

felonious assault on Conley, in violation of R.C. 2903.11(A)(1) and (D)(1)(a), a felony of

the second degree.

{¶ 7} On November 21, 2013, in case No. 2013CR0596, the grand jury issued a

three-count indictment against appellant relating to the death of Paul Castle. In Count 1,

appellant was charged with aggravated vehicular homicide in violation of R.C.

3. 2903.06(A)(2)(b) and (B)(3), a felony of the third degree. In Count 2, appellant was

charged with aggravated vehicular homicide in violation of R.C. 2903(A)(2)(a) and

(B)(3), a felony of the third degree. In Count 3, appellant was charged with murder in

violation of R.C. 2903.02(B) and (D), an unclassified felony.

{¶ 8} The two cases were joined. A jury trial was held January 27-30, 2014.

{¶ 9} One of the victims, Lewis Knott, recalled sitting on the rear bumper of the

mechanic’s truck; Paul Castle and Jimmy Conley were standing nearby. Suddenly, Knott

saw something white and heard “something hit something real loud.” Conley fell onto

Knott and knocked Knott to the ground. A few moments later, Knott saw appellant run

down the track towards Bradner.

{¶ 10} A second victim, Jimmy Conley, recalled seeing a car sitting at the first

barricade. Conley explained:

I took my attention away from the car because I thought he would

turn around * * *. At some point there I heard somebody holler something,

I didn’t know what it was, and I turned and looked. When I looked the car

was already, I mean, it was right there. And what I saw was the right rear

quarter panel of the car coming towards me and stones flying, and I turned

a little bit to try to get out of the way and it hit me. And the next thing I

knew I was laying on my left side on the road looking north towards

Bradner.

4. {¶ 11} CSX employee James Bevens remembered standing on the tracks talking

with some of the other guys from the crew. Bevens explained:

[A]ll of a sudden I just heard a motor racing real loud like you would

hear on a NASCAR race, something like that, I mean, it was really – like

you could be passing somebody on the highway. It was really accelerated.

I looked, I thought, “what is going on here?” You know, it shocked you,

you know, because you never seen nothing like this. I looked and I said,

“What is this idiot doing here?” By the time I said that, I said, “Oh gosh,

he hit the pole.” * * * I blinked, and the next thing I know I seen the green

blur, which was Paul [Castle] * * * going through the air.

{¶ 12} CSX employee Christopher Delano testified that after the white Dodge

Charger came to a stop, he ran to the vehicle’s passenger side window and leaned in.

Appellant was sitting in the driver’s seat, facing the driver’s side door with his right

shoulder towards the front windshield, his back towards Delano. Delano asked if

appellant was ok. In response, appellant turned to Delano and said “the devil is my

savior” in what Delano described as “very demonic voice.” Delano explained

[Appellant] got out of the car. He put his hand up in the air. He said,

“Wahoo, I did it. Wahoo, I did it.” And he jumped in the air and on

his way down he put his arm around another employee an arm strong, and

he said, “I did it.” Another individual on our team asked him, “You did

what? You killed those boys.” He said, “I should have killed everyone of

5. you all.” I then walked up, I put my hand on his shoulder, I said, “Sir, you

need to calm down. You just went through a telephone pole. He looked

like he was in shock. I was trying to calm him down and he just kept

walking.

{¶ 13} CSX employee Brandon Stokes testified that after appellant’s car hit the

telephone pole, he saw “one body flying into another body, and another body being shot

out.” He immediately ran towards the scene. Stokes explained, “When I got up there, the

[appellant] had gotten out of his vehicle already and he was walking past me and he said

that ‘one of you need to get that fucking shit cleaned up.’ I was kind of in shock. I was

like, I can’t believe this guy just said. He’s – you know, at that time we didn’t know he

maybe just killed somebody.”

{¶ 14} Other CSX employees offered similar testimony.

{¶ 15} Risingsun police patrol officer Jason Tate and Bradner police officer Jamie

Blausey were the first two units to arrive at the scene. Officer Tate testified that when he

arrived appellant was sitting on the tracks surrounded by several CSX employees. The

CSX employees informed him that appellant had hit their coworkers with his vehicle and

tried to run. Officer Tate noticed an injury on the back of appellant’s head. When the

officer asked appellant what had happened, appellant responded “I love Jesus Christ.”

Appellant was unresponsive to other questions. At that point, Tate explained to appellant

that he was going to be detained for “his safety.” Tate explained, “[a]s I was attempting

to put handcuffs on him, he started to resist me and struggle with me. We went to the

6. ground and Officer Blausey ran over and assisted me in restraining him and putting him

in the backseat of my patrol car.”

{¶ 16} Matthew Ruble is a volunteer firefighter and paramedic for the Bradner

Fire Department. Ruble testified that he assessed appellant and found his vital functions

normal. Yet, appellant was unable to answer questions about what had happened.

Appellant was transported to Wood County Hospital by squad. Ruble indicated, “[w]e

transported him lights and sirens. It wasn’t because of patient condition, it was because

of safety. Even though he was handcuffed he was still being verbally aggressive with us.

He did lunge at us a few times during transport. He made some wild accusations and

accused us of doing stuff during transport.”

{¶ 17} Christopher J. Kinn is a lieutenant for the Ohio State Highway Patrol. Over

trial counsel’s objection, the trial court qualified Kinn as an expert in crash

reconstruction. Lieutenant Kinn explained that when automobile manufacturers started

putting airbags in cars, they also installed event date recorders (“EDR”) to perform

various diagnostic checks inside the vehicle when an airbag deploys. He described the

type of data collected and how the data is extracted from the EDR. He explained the

results of the data collected on appellant’s EDR and the graphs interpreting the data.

While Lieutenant Kinn opined that hitting the “curve ahead” sign likely did not cause

appellant’s airbag to deploy, he expressed no opinion as to what event did, in fact, cause

appellant’s airbag to deploy.

7. {¶ 18} Lieutenant Kinn opined that the impact which caused appellant’s airbag to

deploy was “pretty significant” because the “longitudinal crash pulse got as high as

negative 50-some miles an hour.” He further opined that for the five seconds before

impact, the accelerator pedal was pushed all the way to the floor until “right before the air

bag came up.” Five seconds before impact, appellant’s vehicle was traveling 41 m.p.h.

and gained speed until it reached 61 m.p.h. The last data point before the crash,

appellant’s vehicle was traveling 57 m.p.h. Finally, Lieutenant Kinn indicated that the

data indicated appellant never applied his braked in the five seconds before the crash.

{¶ 19} Following the presentation of evidence, a jury found appellant guilty of all

charges.

{¶ 20} On appeal, appellant sets forth the following assignments of error:

I. The trial court abused its discretion and erred to the prejudice of

Appellant by denying a jury instruction on vehicular homicide as the lesser

included offense of aggravated vehicular homicide.

II. Appellant received ineffective assistance of counsel in violation

of his rights under the Sixth and Fourteenth Amendments to the United

States Constitution and Article I, §10 of the Constitution of the State of

Ohio.

III. The trial court abused its discretion in permitting the state’s

expert witness to testify despite the failure of the state to comply with Ohio

Rule of Criminal Procedure 16(K).

8. IV. The trial court erred to the prejudice of Appellant by imposing

consecutive sentences without making judicial findings under R.C.

2929.14(C)(4).

V. The trial court erred by denying Appellant’s request for a

presentence investigation report prior to imposing sentence.

VI. The trial court erred in denying Appellant’s Rule 29 Motion for

Acquittal at the completion of the state’s case in chief.

VII. Appellant’s conviction was against the manifest weight of the

evidence introduced by the state at trial.

First Assignment of Error

{¶ 21} In his first assignment of error, appellant asserts that the trial court abused

its discretion when it denied jury instructions on vehicular homicide as a lesser included

offense of aggravated vehicular homicide.

{¶ 22} Preliminarily, we note that in regard to Paul Castle’s death, appellant was

charged with and the jury was instructed on one count of aggravated vehicular homicide

in violation of R.C. 2903.06(A)(2)(a), one count of aggravated vehicular homicide in

violation of R.C. 2903.06(A)(2)(b), and one count of murder in violation of R.C.

2903.02(B)(D) and (A)(D)(1). The jury found him guilty of all three offenses.

{¶ 23} Appellant’s requested instructions, denied by the trial court, were based on

the lesser included offenses of vehicular homicide in violation of R.C. 2903.06(A)(3)(a)

and (b). R.C. 2903.06(A)(3) provides:

9. (A) No person, while operating or participating in the operation of

the motor vehicle * * * shall cause the death of another * * *:

(3) In the following ways:

(a) Negligently;

(b) As the proximate result of committing, while operating * * * a

motor vehicle * * * in a construction zone, a speeding offense * * * if the

person whose death is caused * * * is in the construction zone at the time of

the offender’s commission of the reckless operation offense in the

construction zone * * *.

{¶ 24} On appeal, appellant asserts that evidence presented at trial warranted jury

instructions on the lesser included offenses. Appellant supports his position by pointing

to the speed appellant was traveling in the construction zone as well as the code’s

definition of the culpable mental state “negligently.” R.C. 2901.22(D) provides:

A person acts negligently when, because of a substantial lapse from

due care, the person fails to perceive or avoid a risk that the person’s

conduct may cause a certain result or may be of a certain nature. A person

is negligent with respect to circumstances when, because of a substantial

lapse from due care, the person fails to perceive or avoid a risk that such

circumstances may exist.

{¶ 25} “The question of whether a particular offense should be submitted to the

finder of fact as a lesser included offense involves a two-tiered analysis.” (Citation

10. omitted.) State v. Deanda,

,

,

.

“The first tier * * * is purely a legal question, wherein we determine whether one offense

is generally a lesser included offense of the charged offense.”

citing State v. Kidder,

,

(1987). “The second tier looks to the evidence

in a particular case and determines whether ‘a jury could reasonably find the defendant

not guilty of the charged offense, but could convict the defendant of the lesser included

offense.’”

quoting State v. Evans,

,

,

.

{¶ 26} “[A] charge on the lesser offense is required ‘only where the evidence

presented at trial would reasonably support both an acquittal of the crime charged and a

conviction upon the lesser included offense.’” State v. Trimble,

,

,

, quoting State v. Thomas,

,

(1988), paragraph two of the syllabus.

{¶ 27} “The trial court must view the evidence in the light most favorable to the

defendant when deciding whether to instruct the jury on a lesser included offense.”

citing State v. Campbell,

,

(1994). “The lesser-

included-offense instruction is not warranted every time ‘some evidence’ is presented to

support the lesser offense.”

citing State v. Shane,

,

(1992). “Rather, a court must find ‘sufficient evidence’ to ‘allow a jury to

reasonably reject the greater offense and find the defendant guilty on a lesser included (or

inferior degree) offense.’ (Emphasis sic.)”

quoting

.

11. {¶ 28} In this case, the state does not dispute the first tier of the analysis that

vehicular homicide in violation of R.C. 2903.06(A)(3)(a) is a lesser included offense of

aggravated vehicular homicide in violation of R.C. 2903.06(A)(2)(a) or that vehicular

homicide in violation of R.C. 2903.06(A)(3)(b) is a lesser included offense of aggravated

vehicular homicide in violation of R.C. 2903.06(A)(2)(b).

{¶ 29} With respect to the second tier of the analysis, we must determine whether

a jury could reasonably find appellant not guilty of aggravated vehicular homicide in

violation of R.C. 2903.06(A)(2)(a) and (b) based on the evidence presented at trial.

{¶ 30} R.C. 2903.06(A)(2) provides:

(A) No person, while operating or participating in the operation of a

motor vehicle * * * shall cause the death of another * * *:

(2) In one of the following ways:

(a) Recklessly;

(b) As the proximate result of committing, while operating * * * a

motor vehicle * * * in a construction zone, a reckless operation offense

* * * if the person whose death is caused * * * is in the construction zone at

the time of the offender’s commission of the reckless operation offense in

the construction zone * * *.

{¶ 31} R.C. 2901.22, which defines the various culpable mental states,

defines recklessly as follows:

12. A person acts recklessly when, with heedless indifference to the

consequences, the person disregards a substantial and unjustified risk that

the person’s conduct is likely to cause a certain result or is likely to be of a

certain nature. A person is reckless with respect to circumstances when,

with heedless indifference to the consequences, the person disregards a

substantial and unjustified risk that such circumstances are likely to exist.

R.C. 2901.22(C).

{¶ 32} In turn, a reckless operation offense is defined as the operation of a motor

vehicle “on any street or highway in willful or wanton disregard of the safety of persons

or property.” R.C. 4511.20(A). See also State v. Pugh, 6th Dist. Erie No. E-11-014,

, ¶ 5.

{¶ 33} Appellant contends that the testimony at trial supports the finding that

appellant was merely speeding through a construction zone when he hit a utility pole and

lost control of his vehicle. Thus, appellant argues, the evidence supports a finding of

negligence, not recklessness. In response, the state asserts that instructing the jury on the

lesser included offenses was unnecessary because of appellant’s “callous nature and

reaction to this horrible incident.”

{¶ 34} At trial, the state presented evidence that appellant drove around two “road

closed” barricades during daylight hours, when several CSX employees wearing high-

visibility clothing where standing on and near a railroad crossing in a construction zone.

Instead of slowing down or turning around, appellant pressed his vehicle’s accelerator

13. pedal “all of the way down” and drove through the construction zone, without braking.

Whether the impact of the pole or the impact with the ditch caused appellant’s airbag to

deploy, data from the Charger’s EDR, as interpreted by Ohio State Highway Patrol

Lieutenant Chris Kinn, demonstrates that in the five seconds before impact, appellant’s

vehicle traveled at speeds up to 60 m.p.h. A few milliseconds before impact, appellant’s

vehicle was traveling 57 m.p.h. The speed limit on Bradner Road is 50 m.p.h.

{¶ 35} We find that the evidence presented at trial does not reasonably support

both acquittal on the aggravated vehicular assault charges and conviction of the lesser

included offenses of vehicular assault. Thus, the trial court did not err in refusing to

instruct the jury on the lesser included offenses. Further, whether a jury could reasonably

have found appellant not guilty of aggravated vehicular homicide, but guilty of the lesser

included offense vehicular homicide, is of little consequence to the outcome of this case

because the jury also found appellant guilty of murder. Thus, any error in failing to

instruct the jury on the lesser included offense would be harmless, at best. Appellant’s

first assignment of error is not well-taken.

Second Assignment of Error

{¶ 36} In his second assignment of error, appellant contends he was denied the

effective assistance of trial counsel.

{¶ 37} In order to establish ineffective assistance of counsel, an appellant must

satisfy the two-part test created in Strickland v. Washington,

,

,

(1984). Appellant must show counsel’s performance fell below an

14. objective standard of reasonableness, and a reasonable probability exists that but for

counsel’s error, the result of the proceedings would have been different.

. “Judicial scrutiny of counsel’s performance must be highly deferential. * * * [A]

court must indulge a strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance * * *.” State v. Bradley,

,

(1989), quoting

.

{¶ 38} Under this assignment of error, appellant first argues that trial counsel was

ineffective by failing to engage expert witnesses to advance his theory of the case.

Specifically, appellant asserts that trial counsel should have hired a reconstruction expert

to interpret the EDR data in a light more favorable to the defense’s theory that the airbag

deployed upon impact with the utility pole, obscured his view, and made it impossible to

avoid a collision with the victims. Appellant further asserts that trial counsel should have

called a medical expert to testify to the effect of a potential head injury from the collision

to explain appellant’s irrational post-accident behavior.

{¶ 39} The failure to call an expert does not necessarily constitute ineffective

assistance of counsel, particularly when trial counsel relies on cross-examination of the

opposing party’s expert witness. See State v. Thompson,

,

(1987). Thus, this court must presume trial counsel’s decision to merely cross-

examine the state’s expert witnesses and not present expert witnesses on behalf of the

appellant falls within the wide range of reasonable professional assistance and is the

product of sound trial strategy.

.

15. {¶ 40} In his second argument under this assignment of error, appellant asserts

trial counsel was ineffective when he attempted to introduce physical evidence the day of

trial without having previously provided it to the state through reciprocal discovery. The

physical evidence in question included a bloody sweatshirt appellant allegedly wore on

the day of the incident and a CSX operations manual. It is unclear how this evidence, if it

had been properly introduced, would have been used to advance trial counsel’s theory of

the case. Thus, we must presume trial counsel’s conduct fell within the wide range of

reasonable professional assistance.

{¶ 41} In his third argument under this assignment of error, appellant asserts trial

counsel was ineffective when he discussed, in his opening statement, appellant’s

anticipated testimony. However, it is clear from the record that appellant ultimately

chose not to testify in his defense. The trial court explained to the jury that appellant’s

decision could not be considered for any purpose. Appellant has not shown how trial

counsel’s opening statement prejudiced the defense.

{¶ 42} Pursuant to the above, we cannot say that trial counsel’s performance fell

below an objective standard of reasonableness or that a reasonable probability exists that

but for counsel’s alleged errors, the result of the proceedings would have been different.

Therefore, we find appellant was not denied the effective assistance of counsel.

Appellant’s second assignment of error is not well-taken.

16. Third Assignment of Error

{¶ 43} In his third assignment of error, appellant asserts that the trial court abused

its discretion when it permitted Lieutenant Kinn to testify despite the state’s failure to

comply with Crim.R. 16(K).1 Specifically, appellant asserts that the state never produced

Lieutenant Kinn’s analysis of the EDR data before trial.

{¶ 44} In response, the state asserts that expert reports “were turned-over to the

defense once the State received them.” Unfortunately, the contents of the state’s

discovery disclosures are not included in the record. However, a review of the state’s

response to appellant’s motion to exclude suggests that on December 16, 2012, the state

disclosed Lieutenant Kinn as a potential witness. The state’s response indicates that it

simultaneously “listed the ECM module interpretation, a drawing from the WCSO with

measurements of the scene, and numerous other documents and photographs.” The

state’s response further indicates that on January 6, 2013, it provided a “report, including

a schematic drawing, from the CSX risk management department.” Finally, the state’s

response states that on January 15, 2014, the state provided “measurements of the scene

1 Crim.R. 16(K) provides,

An expert witness for either side shall prepare a written report summarizing the expert witness’s testimony, findings, analysis, conclusions, or opinions, and shall include a summary of the expert’s qualifications. The written report and summary of qualifications shall be subject to disclosure under this rule no later than twenty-one days prior to trial, which period may be modified by the court for good cause shown, which does not prejudice any other party. Failure to disclose the written report to opposing counsel shall preclude the expert’s testimony at trial.

17. from the OSHP, along with the CV of Lt. Kinn.” Without an opportunity to examine the

materials actually disclosed to trial counsel, we cannot conclude the state violated

Crim.R. 16(K).

{¶ 45} Upon our review of the record we find no willful violation of the discovery

rules on behalf of the state. Thus, we cannot find that the trial court abused its discretion

in allowing Lieutenant Kinn to testify as an expert witness. Appellant’s third assignment

of error is not well-taken.

Fourth Assignment of Error

{¶ 46} In his fourth assignment of error, appellant contends that the trial court

alluded to but did not make the required judicial findings in open court and on the record,

as required by R.C. 2929.14(C)(4), before imposing consecutive sentences.

{¶ 47} Recently, in State v. Banks, 6th Dist. Lucas No. L-13-1095, 2014-Ohio-

1000, ¶ 11-12, we explained

R.C. 2929.14(C)(4) now requires that a trial court engage in a three-

step analysis in order to impose consecutive sentences. First, the trial court

must find the sentence is necessary to protect the public from future crime

or to punish the offender. Second, the trial court must find that consecutive

sentences are not disproportionate to the seriousness of the offender’s

conduct and to the danger the offender poses to the public. Third, the trial

court must find that at least one of the following applies: (a) the offender

committed one or more of the multiple offenses while the offender was

18. awaiting trial or sentencing, while under a sanction imposed pursuant to

R.C. 2929.16, 2929.17, or 2929.18, or while under postrelease control for a

prior offense; (b) at least two of the multiple offenses were committed as

part of one or more courses of conduct, and the harm caused by two or

more of the multiple offenses so committed was so great or unusual that no

single prison term for any of the offenses committed as part of any of the

courses of conduct adequately reflect the seriousness of the offender’s

conduct; or (c) the offender’s history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime

by the offender.

However, the trial court is not required to recite any “magic” or

“talismanic” words when imposing consecutive sentences provided it is

“clear from the record that the trial court engaged in the appropriate

analysis.” State v. Murrin, 8th Dist. Cuyahoga No. 83714, 2004-Ohio-

3962, ¶ 12.

{¶ 48} Then, in State v. Payne, 6th Dist. Lucas Nos. L-13-1024, L-13-1025, 2014-

Ohio-1147, we referenced the long-standing premise that a trial court speaks through its

judgment entries and found that while a court might fully explain its reasons for ordering

consecutive sentences and make the statutorily-mandated findings required under R.C.

2929.14(C)(4) at the sentencing hearing, those findings must be reflected in its judgment

entry. Id. at ¶ 13-16.

19. {¶ 49} Upon review of the February 4, 2014 nunc pro tunc judgment entries and

the transcript of the January 30, 2014 sentencing hearing, we find that the trial court did

engage in the first step of the consecutive sentence analysis—that the sentence is

necessary to protect the public from future crime or to punish the offender—when, during

the sentencing hearing, it held that consecutive sentences were necessary because “a

single prison term would not adequately punish the offender or protect the public given

the nature of this case and the wanton and reckless behavior that led to us all being in

court here today.” We further find that the trial court’s findings were sufficiently

reflected in its judgment entries when it asserted: “consecutive sentences are necessary

to punish the Defendant.”

{¶ 50} The record reflects that the trial court did engage in the second step of the

consecutive sentence analysis—that consecutive sentences are not disproportionate to the

seriousness of the offender’s conduct and to the danger the offender poses to the public—

when, during the sentencing hearing, it stated:

The Court has to consider the purposes and principles of felony

sentencing, which are to punish the offender and to protect the public from

future crime by the offender and others. And the court is instructed to

impose the minimum sanctions that the Court determines would accomplish

those purposes without imposing an unnecessary burden on the State or

local government resources. The Court has to consider the need for

incapacitation, deterrence, rehabilitation, and restitution and fashion a

20. sentence that is commensurate with and not demeaning the seriousness of

the offender’s conduct and its impact on the victims, and consistent with

sentences for similar crimes by similar offenders.

***

The Court does make a finding that a single prison term would not

adequately punish the offender or protect the public given the nature of this

case and the wanton and reckless behavior that led to us all being in court

here today.

The trial court’s findings were sufficiently reflected in its judgment entries when it

asserted that consecutive sentences “are not disproportionate to the seriousness of the

defendant’s conduct and the danger the defendant poses to the public.” The court further

stated, “no single prison term would adequately reflect the seriousness of the Defendant’s

conduct.”

{¶ 51} The record reflects that trial court engaged in the third step of the

consecutive sentence analysis—that at least one of the three conditions set forth in R.C.

2929.14(C)(4) applies—when it stated:

In considering sentencing factors making the conduct more serious,

there was no action by the victims that exacerbated the situation. The

victims have suffered serious physical, psychological and economic harm.

In looking at recidivism factors, it does not appear that that

defendant has a prior criminal record or a prior juvenile adjudication. The

21. Court does make a finding that the offender, until just now, has not shown

any remorse.

However, the sentencing entry does not sufficiently reflect these findings. See Payne, 6th

Dist. Lucas Nos. L-13-1024, L-13-1025,

, ¶ 13-16 (trial court made

appropriate findings at the sentencing hearing before imposing consecutive sentences, but

matter remanded for the court to amend its judgment entry to reflect those findings).

Thus, we remand this matter to the trial court to amend its judgment entry to reflect its

R.C. 2929.14(C)(4) findings. Appellant’s fourth assignment of error is well-taken.

Fifth Assignment of Error

{¶ 52} In his fifth assignment of error, appellant asserts the trial court erred in

denying his request for a presentence investigation report. Appellant asserts that

although he was sentenced to serve a mandatory term of imprisonment of 15 years to life

for murder, appellant would otherwise conceivably be an “eligible offender” under R.C.

2929.20, for purposes of judicial release at some future point in time, but for the lack of a

presentence investigation report.

{¶ 53} R.C. 2951.03(A)(1) provides, in relevant part, that “[n]o person who has

been convicted of or pleaded guilty to a felony shall be placed under a community control

sanction until a written presentence report has been considered by the court.” Similarly,

Crim.R. 32.2 provides that “[i]n felony cases the court shall, and in misdemeanor cases

the court may, order a presentence investigation and report before imposing community

control sanctions or granting probation.” In turn, “community control sanction” is

22. defined in R.C. 2929.01(E) as “a sanction that is not a prison term and that is described in

section 2929.15, 2929.16, 2929.17, or 2929.18 of the Revised Code or a sanction that is

not a jail term and that is described in section 2929.26, 2929.27, or 2929.28 of the

Revised Code.”

{¶ 54} Here, appellant was not sentenced to a community control sanction as

defined in R.C. 2929.01(E). Thus, the trial court was not required to order a presentence

investigation and report. Accordingly, appellant’s fifth assignment of error is not well-

taken.

Sixth Assignment of Error

{¶ 55} In his sixth assignment of error, appellant asserts that the trial court erred in

overruling appellant’s Crim.R. 29 motion for judgment of acquittal. Appellant argues

that the state did not present sufficient evidence to sustain convictions for the felonious

assault or murder charges. Specifically, appellant asserts there was insufficient evidence

introduced to support the mens rea element of the offenses, i.e., that appellant acted

“knowingly.”

{¶ 56} Crim.R. 29(A) provides:

The court on motion of a defendant or on its own motion, after the

evidence on either side is closed, shall order the entry of a judgment of

acquittal of one or more offenses charged in the indictment, information, or

complaint, if the evidence is insufficient to sustain a conviction of such

23. offense or offenses. The court may not reserve ruling on a motion for

judgment of acquittal made at the close of the state’s case.

{¶ 57} Sufficiency of the evidence is a legal standard that tests whether the

evidence introduced at trial is legally adequate to support a jury verdict as to all elements

of the crime. State v. Thompkins,

,

(1997). The

proper analysis under a sufficiency of the evidence standard is “‘whether, after viewing

the evidence in a light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime proven beyond a reasonable doubt.’”

State v. Williams,

,

(1996), quoting State v. Jenks,

,

(1991), paragraph two of the syllabus. In order to

affirm the denial of a Crim.R. 29 motion, we need only find that there was legally

sufficient evidence to sustain the guilty verdict.

.

{¶ 58} Appellant was convicted of felonious assault on Conley in violation of R.C.

2903.11(A)(1), a felony of the second degree. This section provides that “No person

shall knowingly * * * [c]ause serious physical harm to another[.]”

{¶ 59} Appellant was convicted of felonious assault on Knott in violation of R.C.

2903.11(A)(2), a felony of the second degree. This section provides that “No person

shall knowingly * * * [c]ause or attempt to cause physical harm to another * * * by

means of a deadly weapon or dangerous ordnance.”

{¶ 60} Appellant was convicted of the murder of Castle in violation of R.C.

2903.02(B). That section provides that “[n]o person shall cause the death of another as a

24. proximate result of the offender’s committing or attempting to commit an offense of

violence that is a felony of the first or second degree * * *.” R.C. 2903.02(B). The

predicate offense for the murder charge was felonious assault in violation of R.C.

2903.11(A)(1) and (2).

{¶ 61} R.C. 2901.22 defines culpable mental states. R.C. 2901.22(B) states, in

relevant part: “A person acts knowingly regardless of purpose, when the person is aware

that the person’s conduct will probably cause a certain result or will probably be of a

certain nature. A person has knowledge of circumstances when the person is aware that

such circumstances probably exist.”

{¶ 62} At trial, numerous CSX employees indicated that appellant, in broad

daylight, quickly accelerated his vehicle through a marked construction zone with

workers wearing high visibility clothing. The street, closed at the railroad crossing, was

essentially a dead-end street. In order to reach the area where the victims were standing,

appellant had to drive his vehicle off of the road around a set of “ROAD CLOSED”

barricades that had been erected across both lanes of traffic. This evidence, coupled with

testimony describing appellant’s lack of remorse immediately following the collision—

including his statement that “I should have killed every one of you all” could have

convinced a reasonable trier of fact that appellant knowingly caused serious physical

harm to Castle and Conley, and knowingly caused or attempted to cause physical harm to

Knott by means of a deadly weapon. Consequently, the evidence was sufficient to

25. support these convictions. The trial court did not err in denying appellant’s Crim.R. 29

motion for acquittal. Appellant’s sixth assignment of error is not well-taken.

Seventh Assignment of Error

{¶ 63} In his seventh assignment of error, appellant maintains that his convictions

were against the manifest weight of the evidence. He asserts that the evidence presented

at trial shows that the event was an “accident” consistent with the elements for the

offenses of vehicular assault and vehicular homicide; not felonious assault and murder.

{¶ 64} The Ohio Supreme Court has summarized the standard for reversal of a

criminal conviction on the ground that it is against the manifest weight of the evidence as

follows:

The court, reviewing the entire record, weighs the evidence and all

reasonable inferences, considers the credibility of witnesses and determines

whether in resolving conflicts in the evidence, the jury clearly lost its way

and created such a manifest miscarriage of justice that the conviction must

be reversed and a new trial ordered. Thompkins,

,

, quoting State v. Martin,

,

(1st Dist. 1983).

“In determining whether a conviction is against the manifest weight of the evidence, we

do not view the evidence in a light most favorable to the state. Instead, we sit as a

‘thirteenth juror’ and scrutinize ‘the factfinder’s resolution of the conflicting testimony.’”

State v. Robinson, 6th Dist. Lucas No. L-10-1369,

, ¶ 15, citing

26.

. Reversal on manifest weight grounds is reserved for “the exceptional

case in which the evidence weighs heavily against the conviction.”

.

{¶ 65} While a reviewing court considers the credibility of the witnesses in a

weight of the evidence review, “that review must nevertheless be tempered by the

principle that weight and credibility are primarily for the trier of fact.” State v. Pena, 6th

Dist. Lucas No. L-12-1309,

, ¶ 22, quoting State v. Kash, 1st Dist.

Hamilton No. CA2002-10-247,

. The trier of fact is in the best

position to “view the witnesses and observe the credibility of the proffered testimony,”

id. at ¶ 22, quoting Seasons Coal Co., Inc. v. Cleveland,

,

(1984). A jury may believe all, part, or none of a witness’s testimony. Id.

at ¶ 22.

{¶ 66} Appellant does not dispute that Conley, Knott, and Castle were injured as a

result of the collision and that, ultimately, Castle’s injuries were fatal. However,

appellant asserts that the evidence does not support a determination that appellant’s

vehicle was “directed at the victims.” Appellant argues that Knott’s testimony that

appellant’s vehicle “glanced off” the utility pole and swerved into the truck supports his

theory that appellant was “attempting to avoid impact with the pole” and that he never

even saw Conley, Knott, and Castle.

{¶ 67} Whether or not the front of appellant’s vehicle was “directed at the

victims” in the moments before impact is, in reality, of very little consequence to the

outcome of this case. As stated above, a person acts knowingly when he is aware that his

27. conduct will probably cause a certain result. R.C. 2901.22(B). “It is not necessary that

the accused be in a position to foresee the precise consequences of his conduct; only that

the consequences be foreseeable in the sense that what actually transpired was natural

and logical in that it was within the scope of the risk created by his conduct.” State v.

Mobley-Melbar, 8th Dist. Cuyahoga No. 92314,

, ¶ 19, quoting State v.

Losey,

,

(10th Dist. 1985).

{¶ 68} The jury visited the accident scene and was shown photographs and

sketches of where the victims were standing in relation to the mechanic’s truck and

construction barricades. Bradner Road is bordered with dense foliage on the east and

railroad tracks on the west. One witness after another described appellant quickly

accelerating his vehicle, full throttle, through the construction zone. Appellant never

applied his brakes. Even if he was trying to avoid the utility pole, there is no reasonable

explanation to explain why appellant was driving 60 m.p.h. down a dead-end street less

than 15 feet from three construction workers wearing high-visibility clothing.

Considering this evidence, as well as the evidence discussed under the previous

assignments of error, we cannot say the jury clearly lost its way and created a manifest

miscarriage of justice when it found appellant guilty of felonious assault and murder.

Accordingly, appellant’s seventh assignment of error is not well-taken.

28. Conclusion

{¶ 69} For the reasons set forth above, the judgment of the trial court is affirmed,

in part, and reversed, in part. We remand this matter to the trial court to amend its

judgment entry to reflect its R.C. 2929.14(C)(4) findings. The costs of this appeal are

assessed to appellant and appellee equally under App.R. 24.

Judgment affirmed, in part, and reversed, in part.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________ JUDGE James D. Jensen, J. CONCUR. _______________________________ JUDGE Thomas J. Osowik, J., DISSENTS.

OSOWIK, J.

{¶ 70} I would respectfully dissent. I find appellant’s second assignment of error to

be meritorious and would reverse. At the outset, I would note the court’s advice in

Strickland that reviewing courts should strive to ensure that ineffectiveness claims not

29. become so burdensome to defense counsel that the entire criminal justice system suffers as a

result. Strickland v. Washington,

,

,

(1984).

With that admonition in mind, the Supreme Court of Ohio has instructed that the claims of

ineffectiveness are to be reviewed individually and to be determined upon their individual

merits. State v. Bradley,

,

(1989).

{¶ 71} After a review of the record, I find that counsel’s performance in the

representation of his client in this case fell below an objective standard of reasonable

representation contemplated by Strickland.

{¶ 72} The facts of this case are undeniably upsetting. A railroad worker lost his life

and fellow coworkers suffered life-altering permanent injuries. The appellant was indicted

for murder. It is self-evident that the crime of murder is a serious felony. A conviction for

murder carries with it a mandatory period of imprisonment for an indefinite term of 15 years

to life in the Ohio Department of Rehabilitation and Corrections. R.C. 2929.02(B)(1). Legal

representation under these circumstances requires the utmost diligence on the part of counsel.

{¶ 73} The Sixth Amendment does not merely guarantee counsel to persons charged

with serious crimes; it requires the effective assistance of counsel.

. The

right to effective representation assures that those who are criminally charged and tried

actually receive the protections provided under the law and required by the Constitution. As

the United Stated Supreme Court held 83 years ago:

Even the intelligent and educated layman has small and sometimes

no skill in the science of law. If charged with crime, he is incapable,

30. generally, of determining for himself whether the indictment is good or

bad. He is unfamiliar with the rules of evidence. Left without the aid of

counsel he may be put on trial without a proper charge, and convicted upon

incompetent evidence, or evidence irrelevant to the issue or otherwise

inadmissible. He lacks both the skill and knowledge adequately to prepare

his defense, even though he have a perfect one. He requires the guiding

hand of counsel at every step in the proceedings against him. Without it,

though he be not guilty, he faces the danger of conviction because he does

not know how to establish his innocence. If that be true of men of

intelligence, how much more true is it of the ignorant and illiterate, or those

of feeble intellect. Powell v. Alabama,

,

,

(1932).

{¶ 74} Counsel has a “duty to bring to bear such skill and knowledge as will render

the trial a reliable adversarial testing process.” State v. Kole,

,

(2001), quoting

.

{¶ 75} Effective representation of a client carries with it an obligation to make a

reasonable investigation where the facts of a case require it. State v. Bradley,

,

(1989). Specifically, the defense attorney “has the immediate

responsibility of deciding if and when to object, which witnesses, if any, to call, and what

defenses to develop.” Wainwright v. Sykes,

,

,

(1977). In addition to assuming these tactical decisions, representation of a criminal

31. defendant entails certain basic duties first and foremost of which is the duty to represent his

or her client with reasonable diligence. Prof.Cond.R. 1.3.

{¶ 76} In this case, the record as presented to this court establishes a complete failure

to investigate the possibility appellant had any history of mental instability or some mental

defect from which he was suffering at the time of his horrific and bizarre actions. The facts

of this case support at least a modest inquiry and exploration of presenting what may have

been the only defense available to appellant and that is a defense available under R.C.

2901.01(A)(14). That section states:

(14) A person is “not guilty by reason of insanity” relative to a

charge of an offense only if the person proves, in the manner specified in

section 2901.05 of the Revised Code, that at the time of the commission of

the offense, the person did not know, as a result of a severe mental disease

or defect, the wrongfulness of the person’s acts.

{¶ 77} Thus, an insanity defense requires proof that the defendant did not know, as a

result of a severe mental disease or defect, the wrongfulness of his or her acts. The defense

does not require proof of psychosis or neurosis. State v. Coombs,

,

(1985). This burden is on the defendant and must be proved by a preponderance

of the evidence. State v. Filiaggi,

,

(1999).

Therefore, the burden is not necessarily high. Nevertheless, no burden can be met by

unpresented evidence. A meager investigation would have been a starting point.

32. {¶ 78} The record of the trial is replete with witness testimony concerning appellant’s

actions and statements prior to the event and immediately afterwards.

{¶ 79} A witness testified that he watched appellant drive right through a stop sign in

the middle of the day without even slowing his vehicle. He then proceeded directly through

a red light without applying his brakes. The witness then observed appellant’s car coming to

a complete stop in front of the barricaded roadway. He remains stationary “for a few

minutes.” It is unclear whether appellant got out of his vehicle at this point, but the witness

then stated “then I seen him get back in and then reverse.” And then he went forward “with a

great amount of speed” according to another witness. The car proceeded to strike a traffic

sign and a telephone pole shearing it in half and continuing further until he struck three

railroad workers, one of whom ultimately died as a result of the injuries he received.

{¶ 80} When approached appellant stated in a “demonic” voice that “the devil is my

savior.” When he exited the vehicle he appeared to be celebratory stating “Yeah.” Another

witness described appellant “hooting and hollering and saying ‘this was great.’” He was

throwing ballast rocks at the railroad workers. He sat down and then raised his fists and

began cursing at one witness. He then “squared up like toe-to-toe getting ready to fight [and]

that is when he took off running.” One witness felt it necessary to strike appellant on the

head with a piece of metal to restrain him.

{¶ 81} A second deputy arriving at the scene after appellant was restrained in the

back seat of the patrol car observed appellant “was just rambling just crazy thoughts or crazy

statements.” He went on to pretend that he was fainting while the EMT crew was treating

33. him. Appellant refused to open his eyes and began “squinting really, really hard.” When

they got appellant to his feet “he started laughing, he started joking.” The Wood County

hospital emergency room personnel indicated that appellant’s “mental behavior was of great

concern.” Appellant insisted the deputy and medical personnel tell him that they loved him.

In the emergency room while handcuffed, he was “dry humping the door in a sexual manner,

and he was laughing about it. His behavior was completely erratic.” The testimony at trial

was devoid of any head trauma that would be responsible for such strange behavior. Another

witness testified “we could tell he was messed up on something.” Blood tests came back

completely negative for the presence of any toxic substances.

{¶ 82} In this case, as a result of the disturbing testimony of each of the eyewitnesses,

reasonable diligence would compel counsel to make a simple and almost effortless

investigation concerning a possible mental defect being present at the time that appellant

committed these acts. Yet the record is devoid of any such effort on the part of counsel.

{¶ 83} An attorney should be able to recognize that a fact pattern such as this could

result in a finding of insanity by a medical professional and the issue ultimately being

presented to the jury for its consideration. State v. Wotring, 11th Dist. Lake No. 99-L-114,

(Dec. 21, 2001).2

2 In State v. Wotring, the court initially released an opinion in which the majority reversed the judgment entered by the trial court, holding that Wotring was denied effective assistance of counsel based on the specific facts of that case. The state filed an application for reconsideration and the court allowed the parties to submit additional evidentiary materials. The record was then supplemented with affidavits from defense counsel in which counsel stated that he did in fact obtain an evaluation with funds from his own personal budget, but that the evaluation was not made part of the record. He also discussed these results with

34. {¶ 84} The Ohio Supreme Court has held that a complete and total lack of reasonable

investigation gives rise to a presumption of prejudice under Strickland. State v. Johnson,

,

(1986).

{¶ 85} For these reasons, I would find the second assignment of error well-taken and

reverse the judgment of the trial court and remand this case to be re-tried.

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.

Wotring. Following this supplementation, the court reversed itself and affirmed the judgment of the trial court. It found that trial counsel had fulfilled the obligation to diligently discharge his duty to his client by requesting an evaluation although the result of the strategy was to keep such evidentiary materials out of the record and beyond review of the appellate court. See State v. Wotring, 11th Dist. Lake No. 99-L-114,

.

35.