[Cite as State v. Ruth,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

FAYETTE COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2019-08-018

: OPINION - vs - 9/21/2020 :

TERRI L. RUTH, :

Appellant. :

CRIMINAL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS Case No. CRI20180387

Jess C. Weade, Fayette County Prosecuting Attorney, Rachel S. Martin, 110 East Court Street, Washington Court House, Ohio 43160, for appellee

Harris Law Firm, LLC, Felice Harris, 6031 E. Main Street, #187, Columbus, Ohio 43213, for appellant

S. POWELL, J.

{¶ 1} Appellant, Terri L. Ruth, appeals her conviction in the Fayette County Court

of Common Pleas after a jury found her guilty of one count of aggravated vehicular assault.

For the reasons outlined below, we affirm Ruth's conviction.

{¶ 2} On October 5, 2018, the Fayette County Grand Jury returned an indictment Fayette CA2019-08-018

charging Ruth with one count of aggravated vehicular assault in violation of R.C.

2903.08(A)(1)(a), a third-degree felony.1 According to the bill of particulars, the charge

arose after Ruth, while operating a vehicle while under the influence of alcohol ("OVI"),

caused serious physical harm to the victim, R.H., as a result of an automobile accident

between the two. There is no dispute that the accident occurred on May 6, 2018 in Fayette

County at the intersection of State Route 753 and Robinson Road. There is also no dispute

that, as a result of this accident, Ruth pled guilty to OVI in the Washington Court House

Municipal Court.

{¶ 3} On July 18, 2019, the matter proceeded to a one-day jury trial. At trial, R.H.

testified that he and Ruth were involved in an automobile accident that caused him to suffer

a serious injury to his right shoulder. Explaining this injury, R.H. testified that the accident

caused him to suffer a constant, dull pain in his right shoulder for over a year, limited the

range of motion in his right arm, and required him to receive physical therapy and eventually

shoulder surgery. R.H. also testified that the accident resulted in pain in his chest, an injury

to his leg, and soreness to his "whole body." Following deliberations, the jury returned a

verdict finding Ruth guilty as charged. The trial court then held a sentencing hearing and

sentenced Ruth to 60 months in prison. Ruth now appeals her conviction, raising four

assignments of error for review.

{¶ 4} Assignment of Error No. 1:

{¶ 5} THE TRIAL COURT ERRED IN ADMITTING THE TESTIMONY OF DR.

BAGDASCHEWSKYI.

{¶ 6} In her first assignment of error, Ruth argues the trial court erred by allowing

Dr. Bagdaschewskyi, R.H.'s primary care physician at the time of the accident, to testify as

1. Ruth was also charged with one count of operating a vehicle while under the influence of alcohol in violation of R.C. 4511.19(A)(1)(i), a first-degree misdemeanor. This charge was later dismissed by the state. -2- Fayette CA2019-08-018

an expert witness regarding the cause, diagnosis, and "explanation of diagnosis" of R.H.'s

shoulder injury, i.e., that R.H.'s shoulder injury was a type of "impingement syndrome" that

was caused by the automobile accident. We disagree.

{¶ 7} Contrary to Ruth's claim, Dr. Bagdaschewskyi did not testify as an expert

witness. The record instead indicates Dr. Bagdaschewskyi testified as a lay witness

regarding the treatment he provided to R.H. during a routine check-up on May 1, 2018, five

days prior to the accident, as well as the treatment he recommended for R.H. on May 8,

2018, two days after the accident. Dr. Bagdaschewskyi in fact specifically testified that he

was not providing any opinion as to what may have caused R.H.'s shoulder injury. Dr.

Bagdaschewskyi instead testified that he was "just going by what [R.H. had] told [him]" had

occurred; that R.H. was suffering from "muscular discomfort" in his neck, shoulder, right

arm, and "right lower extremity" after he had reported being involved in an automobile

accident two days earlier. Therefore, considering Dr. Bagdaschewskyi specifically testified

that he was not offering any opinion as to what may have caused R.H.'s shoulder injury, Dr.

Bagdaschewskyi's testimony was admissible lay witness testimony. Accordingly, finding no

error in the trial court's decision to allow Dr. Bagdaschewskyi to testify in the manner in

which he did, Ruth's first assignment of error lacks merit and is overruled.

{¶ 8} Assignment of Error No. 2:

{¶ 9} THE TRIAL COURT ERRED IN ADMITTING TESTIMONY AND

PHOTOGRAPHS WHICH WERE IN VIOLATION OF OHIO EVID.R. 802 AND 403(A).

{¶ 10} In her second assignment of error, Ruth argues it was plain error for the trial

court to admit certain testimony and evidence offered by Deputy Travis Burden, a deputy

with the Fayette County Sheriff's Office who was dispatched to the scene of the automobile

accident between Ruth and the victim, R.H. We disagree.

{¶ 11} When properly objected to, this court reviews a trial court's decision to admit

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or exclude evidence under an abuse of discretion standard. State v. Gerde, 12th Dist.

Clermont No. CA2016-11-077,

. Ruth, however, did not object to any

of the testimony and evidence for which she now complains. By failing to object, Ruth has

waived all but plain error on appeal. State v. Grimm, 12th Dist. Clermont No. CA2018-10-

071,

. Pursuant to Crim.R. 52(B), "[p]lain errors or defects affecting

substantial rights may be noticed although they were not brought to the attention of the

court." An error does not rise to the level of a plain error unless, but for the error, the

outcome of the trial would have been different. State v. Palmer, 12th Dist. Butler Nos.

CA2013-12-243 and CA2014-01-014,

. "'Notice of plain error under

Crim.R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and

only to prevent a manifest miscarriage of justice.'" State v. Harner, 12th Dist. Brown No.

CA2019-10-012,

, quoting State v. Landrum,

(1990).

{¶ 12} Ruth initially argues that it was plain error for the trial court to admit Deputy

Burden's testimony about the statement she gave to him at the hospital shortly after the

accident occurred; specifically, that "another vehicle pulled in front of her causing the

accident." Ruth claims this testimony was inadmissible hearsay under Evid.R. 802.

However, contrary to Ruth's claim, Deputy Burden's testimony was admissible as a non-

hearsay admission by a party-opponent in accordance with Evid.R. 801(D)(2). Pursuant to

that rule, "'any prior statement of a party is admissible providing it is offered against the

party at trial.'" State v. Gerde, 12th Dist. Clermont No. CA2016-11-077,

, quoting State v. Baker,

(12th Dist. 2000), quoting

Weissenberger, Ohio Evidence Treatise, Section 801.33 at 367 (1988). Such is the case

here. Therefore, because a party's own statement is not hearsay if the statement is offered

against that party, Ruth's claim alleging Deputy Burden's testimony about the statement

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she gave to him at the hospital shortly after the accident occurred was inadmissible hearsay

under Evid.R. 802 lacks merit.

{¶ 13} Ruth also argues that Deputy Burden's testimony should have been excluded

under Evid.R. 403(A) because it confused the issues and unfairly prejudiced the jury against

her by implying she was "a bad person who attempted to shift the blame for the collision."

However, despite Ruth's assertions, we find nothing about Deputy Burden's testimony

confusing or unfairly prejudicial. Deputy Burden was merely repeating the statement Ruth

gave him at the hospital shortly after the accident occurred. Considering neither party

disputed the fact that Ruth and R.H. were involved in an automobile accident, this testimony

had little, if any, impact on the jury's ultimate finding of guilt. This holds true even though

the challenged testimony did not go directly to either of the two main issues in dispute;

causation and whether R.H. suffered serious physical harm. Therefore, because it is only

unfairly prejudicial evidence that Evid.R. 403(A) prohibits, Ruth's claim that Deputy Burden's

testimony should have been excluded under Evid.R. 403(A) also lacks merit.

{¶ 14} Ruth further argues that it was plain error for the trial court to admit Deputy

Burden's testimony regarding the "scene of the accident," the "position of the cars," the

"severe injury" sustained by a passenger in Ruth's vehicle, as well as five photographs of

the scene of the accident taken shortly after the accident occurred. Ruth claims this

evidence was not relevant, confused the issues, was unfairly prejudicial to her, and used

by the state to "enflame the emotions of the jury" since she had already admitted to being

under the influence of alcohol at the time of the accident. However, contrary to Ruth's

claims, this evidence was relevant, straightforward, and not unfairly prejudicial to her. This

is because, as noted by the state, this testimony and evidence was used to establish the

nature and the circumstances of the crime charged in relation to the testimony offered by

the victim, R.H. Therefore, finding no error, let alone plain error, in the trial court's decision

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to admit any of challenged testimony and evidence at issue, Ruth's second assignment of

error lacks merit and is overruled.

{¶ 15} Assignment of Error No. 3:

{¶ 16} THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT

RUTH'S CRIM.R. 29 MOTION FOR JUDGMENT OF ACQUITTAL.

{¶ 17} In her third assignment of error, Ruth argues the trial court erred by denying

her Crim.R. 29(A) motion for acquittal. We disagree.

{¶ 18} The standard of review for a denial of a Crim.R. 29(A) motion for acquittal is

the same as the standard of review for a sufficiency of the evidence claim. State v.

Robinson, 12th Dist. Butler No. CA2015-01-013,

. Whether the

evidence presented is legally sufficient to sustain a verdict is a question of law. State v.

Grinstead,

,

, ¶ 10 (12th Dist.). When reviewing the

sufficiency of the evidence underlying a criminal conviction, an appellate court examines

the evidence to determine whether such evidence, if believed, would convince the average

mind of the defendant's guilt beyond a reasonable doubt. State v. Intihar, 12th Dist. Warren

No. CA2015-05-046,

. The 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. This test "requires a

determination as to whether the state has met its burden of production at trial." State v.

Boles, 12th Dist. Brown No. CA2012-06-012,

, citing State v. Wilson,

12th Dist. Warren No. CA2006-01-007,

.

{¶ 19} As noted above, Ruth was convicted of aggravated vehicular assault in

violation of R.C. 2903.08(A)(1)(a). Pursuant to that statute, no person, while operating or

participating in the operation of a motor vehicle, shall cause "serious physical harm" to

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another person while under the influence of alcohol. State v. Phelps, 12th Dist. Butler No.

CA2009-09-243,

, ¶ 12. As defined by R.C. 2901.01(A)(5)(c) and (e), the

phrase "serious physical harm" includes:

(c) Any physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary, substantial incapacity;

***

(e) Any physical harm that involves acute pain of such duration as to result in substantial suffering or that involves any degree of prolonged or intractable pain.

Thus, as it relates to R.C. 2901.01(A)(5)(e), there are "three categories of pain that

constitute serious physical harm: 'acute pain of such duration as to result in substantial

suffering,' any degree of 'prolonged pain,' and any degree of 'intractable pain.'" State v.

Fitzgerald, 12th Dist. Clermont No. CA2016-06-044,

.

{¶ 20} As stated previously, Ruth does not dispute that she was under the influence

of alcohol at the time of the accident. Ruth instead argues that the state failed to prove she

caused the victim, R.H., to suffer serious physical harm. However, after a thorough review

of the record, we find the state offered extensive evidence to prove Ruth caused serious

physical harm to the victim. This includes, most notably, R.H.'s testimony that the accident

had caused him to suffer pain in his chest, an injury to his leg, soreness to his "whole body,"

and a serious injury to his right shoulder. R.H. testified that his shoulder injury limited his

range of motion and resulted in him living with a constant, dull pain for over a year. R.H.

testified that this pain, which he characterized as an eight to nine out of ten two days after

the accident, would then increase "into a sharper pain" the higher he raised his arm. R.H.

also testified that he received physical therapy and eventually shoulder surgery, but that

nothing helped until one day his arm and shoulder returned to normal after he "felt it pop,"

his arm "actually popped."

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{¶ 21} The degree of harm that rises to the level of "serious" physical harm is not an

exact science. State v. Sharp, 12th Dist. Butler No. CA2009-09-236,

, ¶

11. "'[W]here injuries to the victim are serious enough to cause him or her to seek medical

treatment, the finder of fact may reasonably infer that the force exerted on the victim caused

serious physical harm as defined by R.C. 2901.01(A)(5).'" State v. Church, 12th Dist. Butler

No. CA2011-04-070,

, ¶ 18, quoting State v. Lee, 8th Dist. Cuyahoga No.

82326,

; State v. Lanier, 6th Dist. Ottawa No. OT-19-025, 2020-Ohio-

3394, ¶ 25 ("the element of serious physical harm [is] met where a victim's injuries require

medical treatment"). Such is the case here. See, e.g., State v. Beaver, 3d Dist. Union No.

14-13-15,

(victim suffered serious physical harm where the victim's

"injuries caused her to seek medical treatment, and ultimately required surgery" after she

"rated her pain as a nine out of ten when she first sought medical treatment for her injuries").

Therefore, while not an exact science, because the state provided extensive evidence to

prove Ruth caused the victim, R.H., to suffer serious physical harm, the trial court did not

err by denying Ruth's Crim.R. 29(A) motion for acquittal. Accordingly, because we find no

error in the trial court's decision, Ruth's third assignment of error lacks merit and is

overruled.

{¶ 22} Assignment of Error No. 4:

{¶ 23} TERRI RUTH'S CONVICTION FOR AGGRAVATED VEHICULAR ASSAULT

IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 24} In her fourth assignment of error, Ruth argues her conviction was against the

manifest weight of the evidence. In support, Ruth makes the same basic arguments that

she advanced under her third assignment of error wherein she advanced a challenge to the

sufficiency of the evidence presented at trial. "Although a verdict is supported by sufficient

evidence, an appellate court may nevertheless conclude that the verdict is against the

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manifest weight of the evidence because the test under the manifest weight standard is

much broader than that for sufficiency of the evidence." State v. Davidson, 12th Dist. Preble

No. CA2009-05-014,

, ¶ 5, citing State v. Mathews, 4th Dist. Lawrence No.

94CA42,

, *11 (Oct. 27, 1995).

{¶ 25} However, while the test may be broader, "[a]n appellate court will overturn a

conviction due to the manifest weight of the evidence only in extraordinary circumstances

when the evidence presented at trial weighs heavily in favor of acquittal." State v. Blair,

12th Dist. Butler No. CA2014-01-023,

, ¶ 43, citing State v. Barnes, 12th

Dist. Brown No. CA2010-06-009,

, ¶ 81, citing State v. Thompkins,

(1997). This is not one of those cases. Therefore, because this is not one

of those extraordinary cases when the evidence presented at trial weighs heavily in favor

of acquittal, but rather a case in which there exists extensive evidence to support the jury's

guilt finding, Ruth's conviction was not against the manifest weight of the evidence.

Accordingly, finding no merit to any of Ruth's arguments raised herein, Ruth's fourth

assignment of error is overruled.

{¶ 26} Judgment affirmed.

M. POWELL, P.J., and PIPER, J., concur.

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