[Cite as State v. Swaney,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2022-CA-20 : v. : Trial Court Case No. 2021-CR-430 : SARAH SWANEY : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 7th day of October, 2022.

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IAN A. RICHARDSON, Atty. Reg. No. 0100124, Assistant Prosecuting Attorney, Clark County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee

MICHAEL R. PENTECOST, Atty. Reg. No. 0036803, 117 South Main Street, Suite 400, Dayton, Ohio 45422 Attorney for Defendant-Appellant

.............

TUCKER, P.J. -2-

{¶ 1} Sarah Swaney appeals her convictions following a jury trial on charges of

vehicular homicide and failing to stop after an accident.

{¶ 2} Swaney contends her convictions were against the manifest weight of the

evidence. She also argues that the record does not support the trial court’s consecutive-

sentence findings.

{¶ 3} We conclude that the weight of the evidence supported both convictions and

that the trial court’s consecutive-sentence findings are not clearly and convincingly

unsupported by the record. Accordingly, the trial court’s judgment will be affirmed.

I. Background

{¶ 4} The present appeal stems from a fatal accident that occurred on April 5,

2021. On that date, Cassandra Smith was traveling west on State Route 41 when she

saw a pedestrian ahead of her standing near the center line of the two-lane road. Although

there was no stop signal or crosswalk at that location, Smith stopped to allow the

pedestrian, Russell Morgan, to finish crossing in front of her. As Morgan neared the front

passenger side of Smith’s car, Swaney drove up behind Smith in a landscaping truck

pulling a trailer. Swaney passed Smith’s vehicle on the right shoulder of the road. As she

did so, her trailer’s wheel well struck Morgan, resulting in fatal injuries. Another driver,

John Watkins, observed the accident.

{¶ 5} Swaney failed to stop after striking Morgan and proceeded to a landscaping

job. Security-camera video at the job site captured her arrival with the truck and trailer

shortly after the accident. Upon her arrival, Swaney immediately began examining the

area of the trailer where Morgan had been hit. She picked up a piece of plywood that had -3-

broken off of the trailer and tried to put it into place. Police later recovered the trailer, and

testing of the plywood established that Morgan’s blood was on it. Police also located the

truck and noticed that a yellow beacon shown on the truck’s roof in the security video had

been removed. The truck was inspected by a mechanic, who determined that it was unfit

for operation. Swaney’s front brake lines were rusted through and “blown,” there was no

brake fluid in the reservoir, the rear brake pads were stuck to the calipers and inoperable,

and the brake pedal “went to the floor” with no hydraulic pressure.

{¶ 6} Police interviewed Swaney following the accident. She admitted operating

the truck despite having a suspended driver’s license. She denied awareness that she

had hit anyone. She claimed not to have heard or felt anything. According to one of the

officers, she admitted looking in her rear-view mirror and seeing Morgan on the ground

but thought he had fallen down in the street. Swaney also admitted having problems with

her brakes and explained that she had passed Smith’s vehicle on the right shoulder

because she did not believe she could stop. At one point during the interview, Springfield

police officer Chris Armstrong confronted Swaney about the security video. He stated that

he thought she was lying about not knowing that she had hit someone because she

immediately exited the truck and examined the damaged area. According to Armstrong,

Swaney responded, “You’re right.”

{¶ 7} Swaney testified in her own defense at trial. When asked about her truck’s

brakes on direct examination, she responded that she drove the truck every day and that

it was “just fine.” Swaney denied “having difficulties” with her brakes. She explained that

she applied her brakes when she saw Smith’s stopped car and that it simply took a little -4-

distance to slow down with the trailer. She testified that she saw Morgan crossing the

opposing lane of traffic and saw him in front of Smith’s vehicle as she went past. She

denied looking back in her mirror and seeing Morgan on the ground. Swaney claimed

there was no broken piece of plywood on her trailer when she arrived at her job site. With

regard to the security video, she insisted that she was examining tools in her trailer.

Swaney denied knowing that her driver’s license had been suspended but admitted

obtaining a state identification card in lieu of a driver’s license. On cross-examination, she

admitted telling police that she had “one bad brake line” and could not stop “with force.”

She then denied that the truck needed any brake work at the time of the accident and

claimed that she had “had not one issue with it.”

{¶ 8} Based on the evidence presented, the jury found Swaney guilty of vehicular

homicide, a fourth-degree felony, with a specification that she was driving without a

license. The jury also found her guilty of failing to stop after an accident, a third-degree

felony. The trial court imposed consecutive prison terms of 18 months for vehicular

homicide and 36 months for failure to stop. It also imposed an aggregate eight-year

driver’s license suspension.

II. Analysis

{¶ 9} Swaney advances two assignments of error:

I. THE JUDGMENT OF THE TRIAL COURT IS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.

II. THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE

SENTENCES. -5-

{¶ 10} In her first assignment of error, Swaney contends the evidence did not

support either conviction. She cites her testimony that she believed it was legal to pass

on the right. She also cites her testimony about seeing Morgan walking in the street,

breaking to slow down as she passed Smith’s vehicle, and not seeing, hearing, or feeling

any indication of a collision. Swaney additionally cites her trial testimony denying having

any problems with her brakes. Finally, she cites the testimony of eyewitness John

Watkins, who opined that there was “plenty of clearance” for her to pass Smith on the

right and who described the incident as a “freak accident.” With regard to the security-

camera footage, Swaney contends it failed to prove her knowledge of the accident when

it occurred. She also relies on her own testimony denying telling police she looked in her

rear-view mirror and saw Morgan on the ground. In any event, Swaney notes that she

purportedly told them she thought Morgan had fallen down in the street, not that she had

hit him.

{¶ 11} When a conviction is challenged on appeal as being against the weight of

the evidence, an appellate court must review the entire record, weigh the evidence and

all reasonable inferences, consider witness credibility, 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.” State v. Thompkins,

,

(1997). A

judgment should be reversed as being against the manifest weight of the evidence “only

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

State v. Martin,

,

(1st Dist. 1983). -6-

{¶ 12} With the foregoing standards in mind, we conclude that Swaney’s

convictions were not against the weight of the evidence. She was found guilty of vehicular

homicide in violation of R.C. 2903.06(A)(3)(a) for negligently causing Morgan’s death

while operating a motor vehicle. The jury reasonably could have found criminal

negligence, which involves a substantial lapse of care, based on her acts of operating a

truck with defective brakes while pulling a trailer and passing a stopped car on the right

shoulder after seeing a pedestrian walking across the street. Although Swaney disputed

whether her brakes were defective, the jury reasonably could have relied on the State’s

evidence to find that they were not functioning properly. In fact, Swaney’s own statements

to police after the accident established that she knew her brakes were defective and that

she could not stop “with force.”

{¶ 13} The evidence also supported Swaney’s conviction for failing to stop after an

accident in violation of R.C. 4549.02. The only real issue was whether she knew she had

hit Morgan. The jury reasonably could have found such knowledge. The record contains

evidence that Swaney saw Morgan crossing the street before the collision and that she

saw him on the ground after she passed him. She proceeded to her job site and

immediately examined the area of the trailer where Morgan had been struck, including a

bloody piece of plywood. When Officer Armstrong confronted Swaney and stated that he

thought she was lying about her knowledge because she had examined the trailer,

Swaney responded, “You’re right.”

{¶ 14} Based on our review of the record, we do not find that the jury clearly lost

its way and created a manifest miscarriage of justice. This is not an exceptional case in -7-

which the evidence weighs heavily against the convictions. The first assignment of error

is overruled.

{¶ 15} In her second assignment of error, Swaney contends the record clearly and

convincingly fails to support the trial court’s consecutive-sentence findings.

{¶ 16} Under R.C. 2929.14(C)(4), a trial court may impose consecutive sentences

if it finds that (1) consecutive service is necessary to protect the public from future crime

or to punish the offender; (2) consecutive sentences are not disproportionate to the

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

and (3) one or more of the following three findings are satisfied:

(a) The offender committed one or more of the multiple offenses while the

offender was awaiting trial or sentencing, was under a sanction imposed

pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or

was under post-release 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 reflects the seriousness of the offender's conduct.

(c) The offender’s history of criminal conduct demonstrates that consecutive

sentences are necessary to protect the public from future crime by the

offender.

R.C. 2929.14(C)(4)(a)-(c).

{¶ 17} “[W]here a trial court properly makes the findings mandated by R.C. -8-

2929.14(C)(4), an appellate court may not reverse the trial court’s imposition of

consecutive sentences unless it first clearly and convincingly finds that the record does

not support the trial court’s findings.” State v. Withrow,

,

,

¶ 38 (2d Dist.).

{¶ 18} Here the trial court made the required findings. It determined that

consecutive sentences were necessary to protect the public from future crime and to

punish Swaney. It found that consecutive sentences were not disproportionate to the

seriousness of her conduct and to the danger she poses to the public. Finally, it found

that her two offenses were committed as part of a course of conduct and that the harm

caused was so great or unusual that no single prison term adequately reflects the

seriousness of her conduct. Sentencing Tr. at 11-12.

{¶ 19} On appeal, Swaney cites her lack of a criminal record and the jury’s failure

to convict her on the greater offense of aggravated vehicular homicide to argue that

consecutive sentences are disproportionate to the seriousness of her conduct and to the

danger she poses to the public. We note, however, that Swaney’s lack of a prior record

and her acquittal on a greater charge say nothing about whether consecutive sentences

are disproportionate to the seriousness of the criminal conduct for which she was

convicted. The criminal conduct at issue also indicates that Swaney does pose a danger

to the public notwithstanding her lack of a prior record.

{¶ 20} The State’s evidence established that Swaney knowingly operated a truck

and trailer with seriously defective brakes and without a driver’s license. Finding herself

unable to stop, she passed Smith’s vehicle on the right shoulder and struck Morgan, who -9-

she had seen walking across the street in front of Smith’s car. Despite observing Morgan

fall in the street, Swaney fled the scene, examined the damage to her trailer, attempted

to hide the damage and disguise the truck, and lied to police about her knowledge of the

accident. In light of this evidence, the record does not clearly and convincingly

demonstrate that consecutive sentences are disproportionate to the seriousness of her

conduct and to the danger she poses to the public.

{¶ 21} Swaney also challenges the trial court’s finding that her offenses were

committed as part of a course of conduct and that the harm caused by the two offenses

was so great or unusual that no single prison term adequately reflects the seriousness of

her conduct. She contends her failure to stop caused no independent harm. She notes

the absence of evidence that her act of fleeing in any way caused physical harm to

Morgan or contributed to his death. Therefore, she maintains that R.C. 2929.14(C)(4)(b)

was not satisfied because it requires “the harm caused by two or more of the multiple

offenses” to be so great or unusual that no single prison term will suffice. (Emphasis

added.) Based on the premise that only one of her offenses caused any harm, Swaney

asserts that the trial court’s R.C. 2929.14(C)(4)(b) finding clearly and convincingly is

unsupported by the record.

{¶ 22} We disagree. Nothing in R.C. 2929.14(C)(4)(b) limits the type of harm that

will support consecutive sentences to physical harm. There is an inherent societal harm

that occurs when an offender fails to stop after an accident, purposefully making it more

difficult for justice to be served and for victims to seek redress. State v. Mullins, 4th Dist.

Scioto No. 15CA3716,

(recognizing that vehicular assault and -10-

failing to stop after an accident involve distinct harms). Therefore, we are unpersuaded

by Swaney’s argument that only her vehicular-homicide offense caused harm. We note

too that courts have upheld similar consecutive sentences for failure to stop after an

accident and aggravated vehicular homicide. See, e.g., State v. Tidmore, 8th Dist.

Cuyahoga No. 107369,

; State v. Catlett, 3d Dist. Allen No. 1-16-

10,

. Finally, although Swaney has not raised the issue, we

conclude that her offenses of vehicular homicide and failing to stop were committed as

part of a “course of conduct,” which merely requires a showing of “some connection” tying

the offenses together. State v. Smith, 2d Dist. Montgomery No. 28265,

. For the foregoing reasons, we reject Swaney’s challenge to her consecutive

sentences. The second assignment of error is overruled.

III. Conclusion

{¶ 23} Having overruled both assignments of error, we affirm the judgment of the

Clark County Common Pleas Court.

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DONOVAN, J. and WELBAUM, J., concur.

Copies sent to:

Ian A. Richardson Michael R. Pentecost Hon. Douglas M. Rastatter