[Cite as State v. Smith,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 104553

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

DEWAYNE SMITH DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED IN PART; REVERSED IN PART; REMANDED FOR RESENTENCING

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-602362-A

BEFORE: S. Gallagher, J., E.T. Gallagher, P.J., and Celebrezze, J.

RELEASED AND JOURNALIZED: February 16, 2017 ATTORNEY FOR APPELLANT

Allison S. Breneman 1220 West 6th Street Suite 303 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Michael C. O’Malley Cuyahoga County Prosecutor By: Brett Hammond Assistant Prosecuting Attorney Justice Center - 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 SEAN C. GALLAGHER, J.:

{¶1} Dewayne Smith disagrees with his convictions upon two counts of

aggravated vehicular assault and operating a vehicle while intoxicated. We affirm in part

and reverse in part and remand for resentencing.

{¶2} In September 2014, Smith drove while under the influence of alcohol.

Smith’s blood alcohol level was almost three times the legal limit. Accident

investigators determined that Smith drove his car through a four-way stop at 54 m.p.h. on

a street with a posted speed limit of 25 m.p.h. Smith broadsided the victim’s vehicle as

she drove through the intersection. The impact was so violent it pushed the victim’s car

through the front yard of the adjacent, corner house. The victim spent a month in a coma

in addition to other serious medical issues.

{¶3} The jury found Smith guilty of two counts of aggravated vehicular assault, for

causing serious physical harm to the victim as a proximate result (1) of operating a

vehicle while intoxicated in violation of R.C. 2903.08(A)(1)(a), and (2) of driving

recklessly in violation of R.C. 2903.08(A)(2)(b); and guilty of one count of operating a

vehicle while intoxicated under R.C. 4511.19. The sentences on the individual counts

were imposed consecutively, culminating in a seven-year sentence after the trial court

made the required findings — a five-year term on the third-degree felony violation of

R.C. 2903.08(A)(1)(a), an 18-month term on the fourth-degree felony violation of R.C.

2903.08(A)(2)(b), and a six-month term on the misdemeanor violation of R.C.

4511.19(A)(1), which was not challenged in this timely appeal. {¶4} At the onset, we decline to address Smith’s claim of prosecutorial misconduct

during the closing arguments. The prosecutor told the jury that “there were no experts

who testified that gave different opinions than the experts who testified in this case.

There were two experts. One for speed, one for blood alcohol level. You didn’t hear

any other opinions.” The state also told the jury that everyone has a right to a jury trial,

“no matter how overwhelming the evidence is.” The entirety of Smith’s legal analysis is

that the first statement “improperly shifted the burden of proof away from the State by

implying that Appellant was responsible for proving his innocence with competing expert

testimony[,]” and the second statement “is highly improper because it implies that the

Appellant was abusing the protections of the legal process, given that the state was of the

opinion that the evidence in this case was overwhelming against Appellant.” Such a

summarily presented conclusion provides no analysis for us to consider or to which the

state could respond. We have no independent obligation to research relevant case law to

prove the unsupported assertions on behalf of the defendant. App.R. 16(A)(7).

{¶5} Smith contends that his convictions for aggravated vehicular assault are

against the sufficiency or the manifest weight of the evidence because the victim may

have rolled through the stop sign or may have had a trace amount of alcohol in her

system. According to Smith, his conduct in (1) driving while impaired at nearly three

times the state limit, (2) driving over twice the posted speed limit of 25 m.p.h. in a

residential neighborhood, and (3) failing to stop, yield, or even recognize the four-way stop-controlled intersection was insufficient to support the convictions. Neither

contention has merit.

{¶6} A claim of insufficient evidence raises the question whether the evidence is

legally sufficient to support the verdict as a matter of law. State v. Thompkins,

,

,

. In reviewing a sufficiency challenge,

“[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of the

crime proven beyond a reasonable doubt.” State v. Jenks,

,

(1991), paragraph two of the syllabus. When reviewing a claim challenging the

manifest weight of the evidence, the court, reviewing the entire record, must weigh the

evidence and all reasonable inferences, consider the credibility of witnesses, and

determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its

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

reversed and a new trial ordered. Thompkins.

{¶7} Generally in Ohio, another’s potential contribution to the death or injury of a

victim is not a valid defense to criminal conduct unless that contribution was the sole

proximate cause of injury or death. State v. Galvin, 8th Dist. Cuyahoga No. 103266,

. If the defendant’s criminal action contributes to, in other words,

is the proximate cause of, the death or injury, another’s conduct is irrelevant.

There

is no contributory negligence analog in criminal law. This alone dooms Smith’s

argument. {¶8} No witness testified that Smith stopped at the four-way intersection before

proceeding into the intersection or that he drove anywhere near the posted speed limit.

But for Smith’s conduct, the violent collision would not have occurred or would not have

been so severe. Smith cannot rely on the allegation that the victim’s own conduct

contributed to her injuries, to escape liability. Even if the victim contributed to the

collision, her conduct was not the sole proximate cause. Smith’s argument addressing

the weight of the evidence demonstrating the victim’s alleged contributions to causing the

collision is entirely without merit. The evidence presented, even considering the

credibility of the witnesses, demonstrated that Smith caused serious physical harm to

another as a proximate result of driving while intoxicated and as a result of driving

recklessly. R.C. 2903.08(A)(1)(a); R.C. 2903.08(A)(2)(b). The evidence presented at

trial sufficed, and no manifest miscarriage of justice occurred.

{¶9} Regardless, even if relevant to Smith’s conviction for causing serious

physical harm to another as a proximate result of Smith’s driving under the influence of

alcohol or reckless driving, we note that the only evidence substantiating Smith’s claim

that the victim caused the accident by running the stop sign and by having a trace amount

of alcohol detected upon being admitted to the hospital is merely based on conjecture.

{¶10} One witness, Smith’s friend who was driving ahead of Smith and was

approaching the victim as she drove toward the stop sign from the intersecting direction,

claimed that the victim was driving at a reasonable speed as she arrived at the

intersection, about 30 m.p.h. in the 25 m.p.h. posted zone, and it “looked like [the victim] was about to run [the stop sign]. [Smith’s friend] went through and when * * * [Smith’s

friend] went through, he watched [the victim] as she didn’t stop at the stop sign.” At that

time, Smith was a “maybe four or five houses” behind his friend. The witness was not

sure whether Smith ran the stop sign or how fast Smith was driving, a critical piece of

information even if we assume it possible to accelerate to 54 m.p.h. after stopping at the

intersection. The allegation that the victim drove through the stop sign after Smith’s

friend cleared the intersection is thus irrelevant; both the friend and the victim arrived at

the intersection at a point when Smith was still four or five houses away from the

intersection, according to Smith’s own version of the facts. The incident would not have

occurred, or the victim’s injuries would not have been so severe, had Smith obeyed the

traffic laws or had he been sober.

{¶11} Further, the only evidence of the victim’s supposed intoxication came after

all of her testimony had been completed. Only then were the victim’s personal and

confidential hospital records entered into the public record — 1,200 pages in total, of

which only one page was relevant to the defense’s argument. In those 1,200-some pages,

it was noted that the victim’s serum ethanol level was “notable.” The admission of the

victim’s hospital records in such a fashion was wholly improper. The victim’s personal

and confidential medical records were introduced solely to impeach the victim after she

testified to not having any alcohol before the collision, and the records indicated she had a

trace amount detected. Evid.R. 616(C) prohibits impeachment proved by extrinsic evidence unless permitted by Evid.R. 608(A), 609, 613, 616(A)-(B), or 706. None

seemed to apply in this case.1

{¶12} Finally, Smith asks us to review his sentences on the aggravated vehicular

assault charges as being allied offenses of similar import under the analysis set forth in

State v. Johnson,

,

,

. Smith claims

that the two counts are of similar import because both were committed with the same

conduct. It is true that the conclusion in the lead Johnson opinion was accepted as the

black-letter law for a period of time. State v. Miranda,

,

,

(noting the Johnson test, which applied R.C. 2941.25,

was not the sole statutory codification regarding the multiplicity of sentencing in Ohio);

State v. Ruff,

,

,

(the analysis in

Johnson emphasized the conduct-based inquiry was incomplete because it only accounted

for R.C. 2941.25(A) and not division (B)). Subsequently, however, it has been

determined that the lead opinion in Johnson did not receive the majority support of the

Ohio Supreme Court, and after several subsequent decisions eroding the impact of the

1 Arguably Evid.R. 616(B), sensory or mental defect, would permit the defendant to introduce extrinsic evidence of a defect of capacity, ability, or opportunity to observe, remember, or relate. In light of the fact that no expert explained the notation in the victim’s hospital record about the serum ethanol level, the records were not evidence of a sensory defect. We note that the victim’s medical records indicated the level of ethanol in her sample was “6.” The defendant’s blood sample tested positive with 213 milligrams per deciliter of alcohol at the time he was admitted to the hospital, resulting in a blood alcohol concentration of .177 as explained by the state’s expert. The trace amount of ethanol in the victim’s system hardly demonstrates intoxication, as Smith argued, and cannot be considered as a form of permissible impeachment with extrinsic evidence when the defense’s theory was not that the victim was incapable of accurately observing, remembering, or relating because of intoxication, but that she committed perjury. lead analysis, Johnson has been rendered largely obsolete. State v. Earley,

,

,

, ¶ 11. Under the latest interpretation of R.C.

2941.25, and contrary to Smith’s contention, committing multiple offenses with the same

conduct is not dispositive. Ruff at ¶ 21.

{¶13} Under R.C. 2941.25, courts must use a three-part inquiry to determine

whether a defendant can be convicted of multiple offenses if those offenses arose from

the same act or transaction:

(1) Were the offenses dissimilar in import or significance? (2) Were they committed separately? and (3) Were they committed with separate animus or motivation? An affirmative answer to any of the above will permit separate convictions. The conduct, the animus, and the import must all be considered. Id. at ¶ 31. In addition, “a defendant’s conduct that constitutes two or more offenses

against a single victim can support multiple convictions if the harm that results from each

offense is separate and identifiable from the harm of the other offense.” Id. at ¶ 26.

R.C. 2941.25, however, is not the sole legislative consideration when framing the allied

offense analysis. Miranda; State v. Brown,

,

,

.

{¶14} Smith was convicted of two counts of aggravated vehicular assault in

violation of R.C. 2903.08(A)(1)(a) and (A)(2)(b). The two subdivisions, however,

provide alternative means of committing the one offense — causing serious physical

injury either (1) as a proximate result of operating a motor vehicle while impaired under

R.C. 4511.19, or (2) while operating a motor vehicle recklessly. Although Smith has

framed the debate in terms of outdated law, we find merit to the underlying basis of his argument that focuses on the fact that the state charged Smith with the commission of a

single offense but divorced the alternative methods of committing that offense into

distinct crimes upon which the state sought and obtained separate punishments. The

state contends that each method of committing aggravated vehicular assault is separately

punishable under the Ruff analysis because each caused a separate, identifiable harm.

Smith, however, committed only one offense of aggravated vehicular assault, and the

analysis enunciated in Ruff interpreting R.C. 2941.25 is not applicable.

{¶15} All too often there is a knee-jerk reaction to resort to the pendulum of

decisions construing R.C. 2941.25 from State v. Rance,

,

,

, to Johnson,

,

,

; to Ruff,

,

,

. During that

time, there has been one constant, dispositive analysis outside the framework of R.C.

2941.25 — the legislative intent behind the individual statutes defining criminal conduct.

State v. Anthony,

,

, ¶ 72-73 (8th Dist.) (S. Gallagher, J.,

dissenting); Miranda,

,

,

(reaffirming Johnson, but holding that R.C. 2941.25 is not “the sole legislative

declaration on the multiplicity of indictments,” and that courts must consider legislative

intent behind the creation of individual criminal statutes); Brown,

,

,

. Allied offense analysis interpreting R.C. 2941.25,

from Rance to Ruff, is only implicated where the conduct can be construed to constitute

two or more allied offenses. R.C. 2941.25 (“where the same conduct by defendant can be construed to constitute two or more allied offenses * * *.” (Emphasis added.)); Ruff

(under R.C. 2941.25, an offender committing multiple offenses may be subject to separate

punishments).

{¶16} When an offender’s conduct satisfies alternative means of committing a

single offense, the offender can be convicted of only one offense. State v. Brown, 8th

Dist. Cuyahoga No. 87651,

. In Brown, the indictment

contained two separate counts of aggravated assault: one charged appellant with

knowingly causing serious physical harm, and the second charged appellant with

knowingly causing or attempting to cause physical harm by means of a deadly weapon or

ordnance.

citing R.C. 2903.12(A)(1) and (2). The defendant stabbed the victim a

single time in the stomach with a kitchen knife, causing both serious physical harm and

physical harm by means of a deadly weapon. The panel concluded that there was one

aggravated assault committed and, accordingly, the conviction on both counts of

aggravated assault was improper and in violation of double jeopardy safeguards.

{¶17} The Ohio Supreme Court affirmed. Brown,

,

,

. Although the judicial interpretation of R.C.

2941.25 is helpful, when the legislative intent is unambiguously set forth in the statute

criminalizing certain conduct, courts need not rely on any interpretation of R.C. 2941.25

and instead must look to the language of the statute criminalizing the conduct itself.

When statutory intent is unambiguous, courts must apply the law as written.

After

reviewing R.C. 2903.12, it was held that the legislature demonstrated an intent for a single punishment. Id. at ¶ 37. R.C. 2903.12(A)(1)-(2) unambiguously defines

aggravated assault to include alternative methods of commission, either by causing

serious physical harm or by causing physical harm with a deadly weapon. From that, it

was determined that the legislature “manifested its intent to serve the same interest —

preventing physical harm to persons.” Id. In other words, the legislature did not intend

separate punishments for each potential method of committing the single offense. Id. It

must be remembered that different means of accomplishing a single crime do not create

separate and distinct offenses. State v. Rogers, 8th Dist. Cuyahoga No. 91380,

, citing State v. Gardner,

,

,

. If the state charges an offender who is found guilty of alternative methods

of committing a single offense, the sentences must merge. Ruff at ¶ 24 (“[w]hen the

defendant’s conduct constitutes a single offense, the defendant may be convicted and

punished only for that offense.”); see generally Brown.

{¶18} Under R.C. 2903.08(A)(1)-(2), as it was for the aggravated assault under

2903.12(A)(1) and (2) from Brown, the legislature provided alternative means of

committing aggravated vehicular assault. The state may prove the defendant caused

serious physical harm to another while operating a motor vehicle either as a proximate

result of operating it while intoxicated or by driving it recklessly. Alternative means of

committing one criminal offense demonstrates the legislative intent for a single

punishment when it arises from a single occurrence and is committed against a single

victim. Brown at ¶ 40. An offender, therefore, can be found guilty but sentenced for only one violation of the aggravated vehicular assault statute even if the offender’s

conduct satisfied alternative methods of committing the offense. See Ruff at ¶ 24;

Brown, 8th Dist. Cuyahoga No. 87651,

.

{¶19} We acknowledge that the aggravated vehicular assault statute punishes the

offender for the harm caused to a victim as a proximate result of operating a vehicle while

under the influence more severely than simply operating the vehicle recklessly, unlike

situations involving the aggravated assault analog for which the commission of the

alternative methods does not affect the severity of the punishment. See R.C.

2903.08(B)-(C), R.C. 2903.12(B). The former is a felony of the third degree while the

latter is a fourth-degree felony. R.C. 2903.08(B)-(C). A difference in sentencing based

on the commission of the alternative methods of committing a single offense does not

alter the Brown analysis. If the facts demonstrate the commission of the offense

occurred in such a manner as to warrant the greater punishment, the offender has still only

committed a single offense. The more severe punishment is simply the potential

sentence for the commission of that particular crime rather than the lesser penalty. If the

legislature had contemplated holding an offender responsible for each alternative method

of committing a single offense, the various methods could have been codified into distinct

offenses in some fashion, such as separate statutory sections or potentially even separate

divisions. We need not reach any conclusions on this issue because, as it stands, the

reckless and the operating while intoxicated components of aggravated vehicular assault

are presented as alternative methods of committing a single offense. “When the defendant’s conduct constitutes a single offense, the defendant may be convicted and

punished only for that offense.” Ruff,

,

,

.

{¶20} In response, the state presented the same argument rejected by the Ohio

Supreme Court in Brown. The state claims that the elements of the alternative methods of

committing an aggravated vehicular assault could be committed independently of each

other because committing one would not necessarily result in the commission of the other.

One could drive under the influence of alcohol without being reckless or vice versa.

We agree, but as with aggravated vehicular assault, an offender could commit aggravated

assault either by causing serious physical harm to another or by causing any physical

harm by means of a deadly weapon. Brown at ¶ 34. The commission of one would not

necessarily result in the commission of the other — serious physical harm could be

caused without a deadly weapon. Id. We reject the state’s argument that the

commission of an alternative method of committing the offense can be punished

separately if the alternative can independently occur. Ruff did not alter the holding from

Brown.

{¶21} It should be noted our conclusion does not impact situations involving

multiple offenses. “When the conduct supports more than one offense * * * a court must

conduct the analysis of allied offenses of similar import to determine whether the offenses

merge or whether the defendant may be convicted of separate offenses” under R.C.

2941.25. Id. In other words, if there are separate acts of aggravated vehicular assault, such as two separate occurrences, or if there are separate victims, such as two or more

victims in one occurrence, which are then considered multiple offenses, then courts must

determine whether the multiple offenses are allied ones of similar import under R.C.

2941.25. Ruff at ¶ 24. In this situation, the legislative intent behind the alternative

methods of committing a single offense no longer controls the outcome. There are

multiple offenses to consider.

{¶22} In this case, there was only one victim. See, e.g., State v. O’Neill, 6th Dist.

Wood No. WD-10-029,

, ¶ 35 (separate punishments were permissible

for each victim); State v. Watkins, 1st Dist. Hamilton No. C-120567,

(driving a vehicle into a single collision, which resulted in the death of one person and in

serious physical harm to two others, is separately punishable because it involves separate

victims). There also was only a single underlying incident: the collision Smith caused.

{¶23} The legislature unambiguously manifested its intent to punish Smith for one

offense by providing alternative means of commission in the definition of the crime for

which he was found guilty. Accordingly, the judicial interpretation of R.C. 2941.25 in

Ruff is not applicable. We agree that the two sentences on the aggravated vehicular

assault counts should have merged. His sentences for the aggravated vehicular assault in

violation of R.C. 2903.08(A) are reversed, and this matter is remanded for resentencing.

Smith’s conviction for operating a vehicle while intoxicated under R.C. 4511.19 is

affirmed, including the imposition of that sentence to be served consecutive to the

remaining aggravated vehicular assault charge. {¶24} Smith’s convictions are affirmed in part and reversed in part and remanded

to the lower court for further proceedings consistent with this opinion. It is ordered

that appellant and appellee share costs herein taxed. The court finds there were

reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s convictions having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for resentencing.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

SEAN C. GALLAGHER, JUDGE

EILEEN T. GALLAGHER, P.J., and FRANK D. CELEBREZZE, JR., J., CONCUR