COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67206 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION MARCUS WADE, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : APRIL 13, 1995 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-255332 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: A. Steven Dever Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Bruce D. Horrigan HORRIGAN & CLEARY 20800 Center Ridge Road Suite 217 Rocky River, Ohio 44116 -2- NAHRA, J.: Appellant, Marcus Wade, is appealing his conviction for aggravated vehicular homicide. He contends the trial court erred in refusing to instruct the jury on the lesser included offense of vehicular homicide and also contends that the conviction was against the manifest weight of the evidence. For the following reasons, we affirm. Lisa Redd, a witness to the homicide, testified that she was driving southbound on East 89th Street, around 10:50 p.m.. It was raining very hard. She stopped at a red light at the intersection of East 89th and Chester. Redd observed a pedestrian, Lynn Hunt, on the southwest corner of the intersection, waiting for the light to change. Hunt wore dark clothing and carried a green umbrella. Redd's light changed to green, but she did not proceed through the intersection. Her daughter's puppy had made its way to the front seat and Redd returned the puppy to the back seat. As Redd was scolding her daughter, she observed Lynn Hunt cross the eastbound side of Chester Avenue to the median strip. The traffic on Chester had a red light. Two cars were waiting at the light on the westbound side of Chester. Then, a red car drove around these two cars and into the lane closest to the median strip. The red car came flying through the red light at 50 to 60 miles per hour. Lynn Hunt had taken a few steps off the median strip and the red car hit her. Hunt was thrown into the air and came down very hard on the driver's side window of the red car. The red car took -3- off. Redd later identified a red Ford Probe owned by appellant's sister as the car that hit the victim. Michelle Wade, appellant's sister, testified that appellant borrowed her car on the evening in question. Around 11:30 or 12:00 p.m., appellant told her that an unknown object hit the car. Officer Daniel Hayes of the Cleveland police responded to the scene. He saw no evidence of braking or evasive action to avoid hitting the pedestrian. Hayes described Chester Avenue as a heavily travelled road, but the traffic was light at the time of day the accident occurred. The intersection is adjacent to the Cleveland Clinic Foundation and Mount Sinai Medical Center. Harold R. Konst, a retired Shaker Heights police officer, testified that he was on duty at the police station on the night in question. Appellant made an accident report that he hit a metal pipe or something in the road on Shaker Boulevard. Then, appellant changed his story and stated the accident occurred at Shaker Boulevard and Lee Road. Thomas Mascha, owner and operator of Comet Glass testified that on the day following the accident, a red Ford probe was brought to his facility. The driver's side was smashed and indented heavily from the front bumper to the windshield. The windshield was smashed as if something heavy had hit it. The young man who brought the vehicle in said he had hit a dog. Mascha later described the man to the police and his description matched the defendant. -4- The coroner removed a red paint chip from the victim's hair. The paint chip matched samples taken from Michelle Wade's Ford Probe. A piece of plastic found at the scene matched the driver's side wheelwell like a jigsaw puzzle piece. I. Appellant's first assignment of error states: THE TRIAL COURT ERRED WHEN IT REJECTED DEFENSE COUNSEL'S TIMELY REQUEST THAT THE JURY BE INSTRUCTED ON THE LESSER INCLUDED OFFENSE OF VEHICULAR HOMICIDE IN VIOLATION OF R.C. 2903.07, THEREFORE PRECLUDING COUNSEL'S OPPORTUNITY TO ARGUE, AND THE JURY'S OPPORTUNITY TO CONSIDER, THAT THE APPELLANT ACTED NEGLIGENTLY RATHER THAN RECKLESSLY IN THE COMMISSION OF THIS OFFENSE. If under any reasonable view of evidence it is possible for the trier of fact to find the defendant not guilty of the greater offense and guilty of the lesser offense, the instruction on the lesser included offense must be given. The evidence must be considered in the light most favorable to defendant. State v. Davis (1983), 6 Ohio St.3d 91, 95. Aggravated vehicular homicide, the greater offense, requires that the offender recklessly caused the death of another, while vehicular homicide, the lesser offense, requires only that the offender negligently caused the death. See R.C. 2903.06, 2903.07. We must determine whether it was possible for the jury to find the defendant did not act recklessly, but acted negligently. According to the eyewitness, Lisa Redd, appellant ran a red light, at night, in a heavy rain storm at 50 to 60 miles per hour, in a well-travelled area. This conduct was likely to cause an accident and demonstrated a perverse disregard for a known risk, so the conduct was reckless. R.C. 2901.22(C). The conduct could not -5- be construed as negligent, that is, a mere lapse of due care that may have resulted in an accident. R.C. 2901.22(D). There was no other evidence establishing that appellant acted negligently. Thus, the jury could only find recklessness, not negligence, and appellant was not entitled to a jury instruction on the lesser included offense of vehicular homicide. Davis, supra. Accordingly, this assignment of error is overruled. II. Appellant's second assignment of error states: THE JURY'S VERDICT FINDING THE APPELLANT GUILTY OF AGGRAVATED VEHICULAR HOMICIDE IN VIOLATION OF R.C. 2903.06, AN AGGRAVATED FELONY OF THE THIRD DEGREE, AS CHARGED IN THE SINGLE COUNT INDICTMENT, WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND CONTRARY TO LAW. In determining if a conviction is against the manifest weight of the evidence, the appellate court reviews the record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines 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. Martin (1983), 20 Ohio App.3d 172, quoting Tibbs v. Florida (1982), 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652. The court should consider whether the evidence is credible or incredible, contradicted or uncontradicted, reliable and unreliable, certain or uncertain, whether a witness was impeached and whether a witness' testimony was self-serving. State v. Mattison (1985), 23 Ohio App.3d 10. A reviewing court -6- will not reverse a jury verdict where there is substantial, competent and credible evidence supporting the criminal conviction. State v. Eley (1978), 56 Ohio St.2d 169, Martin, supra. Appellant contends the jury's finding that he acted recklessly was against the manifest weight of evidence. To find recklessness, the trier of fact must find: (1) a known risk the offender's conduct is likely to cause a certain result, and (2) perverse disregard of this risk with heedless indifference to the consequences. R.C. 2901.22(C), State v. Gates (1983), 10 Ohio App.3d 265. The evidence establishing recklessness includes Lisa Redd's testimony that appellant sped through the red light at 50 to 60 miles per hour, at night, during a heavy rain. There was testimony the intersection was heavily travelled and located near two large hospitals where pedestrian traffic could be expected. The traffic lights and street lights were operating. Applying the Mattison factors, Redd's testimony was consistent, uncontradicted, reliable and not self-serving. The evidence concerning the traffic and other conditions of the intersection was not contradicted. There was substantial, competent, credible evidence that appellant perversely disregarded a known risk that his manor of driving was likely to cause injury to others on the road. The jury did not -7- lose its way in determining that appellant recklessly caused the death of Lynn Hunt. Accordingly, this assignment of error is overruled. The decision of the trial court is affirmed. -8- It is ordered that appellee recover of appellant its 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 conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. BLACKMON, P.J., and MATIA, DAVID T., J., CONCUR. JOSEPH J. NAHRA JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .