COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72767 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION ROBERT L. HARRIS : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 15, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-346250 JUDGMENT: JUDGMENT MODIFIED AND CAUSE REMANDED FOR RE-SENTENCING. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor A. STEVEN DEVER Assistant County Prosecutor Justice Center - Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: ROBERT A. DIXON 1280 West Third Street Suite 100 Cleveland, Ohio 44113 -2- TERRENCE O'DONNELL, PRESIDING JUDGE: Robert L. Harris appeals from a common pleas court jury verdict finding him guilty of aggravated vehicular homicide with a specification that he was driving under the influence of alcohol, in connection with a motor vehicle accident which occurred at 2:15 A.M. on the morning of October 15, 1996, when Harris fell asleep while operating his 1989 Ford Escort and struck a tree on Lee Road in East Cleveland, Ohio, which resulted in the death of one of his passengers, Brandee Bazley. Harris alleges that the court erred in charging the jury regarding his refusal to submit to a blood alcohol test; that his conviction is not supported by sufficient evidence and is against the manifest weight of the evidence; that the court erred in overruling his motion for a new trial; that his attorney denied him effective assistance of counsel; and that the court erred in denying his motion for a mistrial. After a thorough review of the record and consideration of the arguments presented, we conclude this conviction is against the manifest weight of the evidence and we therefore modify it and enter a judgment of conviction for the lesser but included offense of vehicular homicide. The record before us reveals that on the evening of October 14, 1996, Robert L. Harris, then 18 years of age, picked up DeShawn Treadwell, and then met Brandee Bazley and Shelvon Duke at the home of Madelyn Johnson, Bazley's aunt, located on Yorkshire Road in Cleveland Heights. Around 10:00 o'clock, Harris drove the others to Shelvon's mother's apartment on Addison Road in Cleveland where -3- they played cards and drank beer and wine until midnight; at trial, Harris testified that during this time, he drank about 1/ glasses of beer and some wine. Around 1:00 A.M., they left and Harris first drove Treadwell to his home near W. 14th Street in Cleveland, and then, with Duke and Bazley in the car, proceeded to take Bazley to her home in Cleveland Heights. While traveling southbound on Lee Road, Harris fell asleep at the wheel and the car then crossed left-of-center, rode along the tree lawn, struck a tree and burst into flames killing Bazley instantly. Harris and Duke were able to escape from the burning car, and ambulances took them to Meridia Huron Road Hospital. As the fire department extinguished the fire, the police began an investigation of the accident. Although Harris refused a police request to submit to a blood alcohol test in the emergency room at Meridia Huron Road Hospital, the hospital conducted a BAC test along with its routine blood chemistry analysis which revealed his level to be .079. Thereafter, following police investigation, the grand jury indicted Harris on one count of aggravated vehicular homicide which contained a DUI specification. The court tried the case before a jury where the evidence revealed that after they arrived at Reva Duke's apartment, Shelvon and her mother purchased beer and wine and Harris and the others began to drink and play cards, but no drinking had occurred earlier. Further, that Harris appeared sober when he left the apartment to drive everyone home, and also that prior to the accident Harris had slumped over in the driver's seat and made no -4- effort to apply the brakes and that he weaved unsteadily on his feet following the accident and admitted he had fallen asleep behind the wheel. Also at trial, the court admitted, without objection, the hospital BAC test result. Deputy Coroner Stanley Seligman testified that because the hospital conducted the BAC test on Harris' blood serum instead of his whole blood, he actually had a BAC of .06 which, in Seligman's opinion, indicated that Harris had consumed around 4/ drinks. Seligman further testified that a person with a BAC of .06 could experience a slow reaction time and decreased eye-hand coordination because alcohol has a sedative effect on the central nervous system, and may tend to make an individual who lacked sleep more tired; on cross-examination, he admitted that those reactions vary among individuals and that those conditions did not necessarily apply to Harris. Harris testified in his defense and admitted that he consumed 1/ glasses of beer and a / glass of wine, that he felt buzzed but not drunk, that he felt sleepy just before he drove down Lee Road, that he had slept only two hours the previous night, and that he fell asleep at the wheel of the car. Following final argument, the court charged the jury on aggravated vehicular homicide and the lesser included offense of vehicular homicide. After its deliberations, the jury returned a verdict finding Harris guilty of aggravated vehicular homicide with a specification that he was driving under the influence of alcohol. Following deliberation but prior to sentencing, however, a juror wrote a letter to the court stating that during -5- deliberations, she had believed that Harris' conduct constituted negligence, rather than recklessness, which would have required the jury to find him guilty on the lesser included offense of vehicular homicide. She further stated that she eventually agreed with the other eleven jurors in finding recklessness because they repeatedly pointed out to her information contained in a driver's license testing manual, regarding driving under the influence of alcohol, which the jurors used during their deliberation but which had not been offered at trial or admitted into evidence. She also wrote that she still believed Harris' conduct constituted mere negligence. Based upon this letter, Harris moved for a new trial alleging juror misconduct, but the court denied that motion. The court then sentenced Harris to a term of two years for his participation in this case. Harris now appeals and raises the following assignments of error for our consideration: I. THE LOWER COURT COMMITTED PLAIN ERROR WHEN IT CHARGED THE JURY ON THE SIGNIFICANCE OF REFUSAL TO SUBMIT TO A BLOOD-ALCOHOL TEST. II. THE VERDICT AND JUDGMENT FINDING THE APPELLANT GUILTY OF AGGRAVATED VEHICULAR HOMICIDE WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND NOT SUPPORTED BY SUFFICIENT EVIDENCE. III. THE LOWER COURT ERRED AND ABUSED ITS DISCRETION IN OVERRULING THE APPELLANT'S MOTION FOR NEW TRIAL. IV. -6- THE APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL. V. THE LOWER COURT ERRED AND DENIED THE APPELLANT DUE PROCESS OF LAW AND A FAIR TRIAL WHEN IT FAILED TO GRANT A MISTRIAL AFTER HIGHLY IMPROPER QUESTIONING BY THE PROSECUTOR. We shall address the second assignment of error first as it controls our resolution of this case. Harris contends his conviction is not supported by sufficient evidence and is against the manifest weight of the evidence, because he claims his conduct constituted mere negligence, not recklessness, which mandates a conviction of vehicular homicide. The state urges that Harris' aggravated vehicular homicide conviction is supported by sufficient evidence and is not against the manifest weight of the evidence. The issues then presented for our review concern whether Harris' aggravated vehicular homicide conviction is supported by sufficient evidence or is against the manifest weight of the evidence. Regarding sufficiency, Crim.R. 29(A) provides in relevant part: * * *. 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 * * * if the evidence is insufficient to sustain a conviction of such offense or offenses * * *. In State v. Martin (1983), 20 Ohio App.3d 172, the court noted at 175: -7- As to the claim of insufficient evidence, the test is whether after viewing the probative evidence and inferences reasonably drawn therefrom in the light most favorable to the prosecution, any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt. The claim of insufficient evidence invokes an inquiry about due process. It raises a question of law, the resolution of which does not allow the court to weigh the evidence. Jackson v. Virginia (1979), 443 U.S. 307, 319 * * *. Thus, the sufficiency test raises a question of law for the court to decide regarding whether the state has put forth evidence required to prove each of the essential elements of the offense beyond a reasonable doubt, prior to the time the jury may consider the case. In applying this test, the court should consider the evidence and all reasonable inferences drawn therefrom in a light most favorable to the state. In conducting this review, we note the court may not weigh the evidence to resolve the sufficiency question. Here, the state assumed the burden of proving the essential elements of the crime of aggravated vehicular homicide contained in R.C. 2903.06, which states in relevant part: (A) No person, while operating * * * a motor vehicle * * * shall recklessly cause the death of another * * *. (Emphasis added). R.C. 2901.22(C) defines the culpable mental state of recklessly in the following manner: A person acts recklessly when, with heedless indifference to the consequences, he perversely disregards a known risk that his 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 -8- consequences,he perversely disregards a known risk that such circumstances are likely to exist. The court also charged the jury on the lesser but included offense of vehicular homicide as defined in R.C. 2903.07 which states in relevant part: (A) No person, while operating * * * a motor vehicle * * * shall negligently cause the death of another * * *. (Emphasis added). R.C. 2901.22(D) defines the culpable mental state of negligently as follows: A person acts negligently when, because of a substantial lapse from due care, he fails to perceive or avoid a risk that his 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, he fails to perceive or avoid a risk that such circumstances may exist. Thus, the difficult task undertaken by the jury in this case concerned the assessment of whether Harris recklessly or negligently caused the death of his friend, Brandee Bazley, while operating his automobile. Here, the evidence revealed that Harris drank beer and wine and then drove his friends to their homes, that his BAC result could have indicated that he drank around 4/ drinks and caused him to experience a slow reaction time and decreased eye-hand coordination, that he failed to make an attempt to brake his car just prior to the accident, that the accident resulted in Bazley's death, and that following the accident, he weaved while trying to stand. Construing this evidence and the inferences reasonably -9- drawn therefrom in the light most favorable to the state, we conclude as a matter of law that the court correctly ruled that the state submitted evidence to prove the essential elements of the offense of aggravated vehicular homicide. Regarding Harris' claim that his conviction is against the manifest weight of the evidence, we observe that the test is found in State v. Martin (1983), 20 Ohio App.3d 172 at 175: There being sufficient evidence to support the conviction as a matter of law, we next consider the claim that the judgment was against the manifest weight of the evidence. Here the test is much broader. 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 * * *. Our task in connection with this review differs from our sufficiency review. Here, we are to weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether Harris' conduct resulted from heedless indifference to consequences and constitutes a perverse disregard of a known risk that it would be likely to cause this result, or whether because of a substantial lapse of due care he failed to perceive or avoid a risk that his conduct may have caused this result. The record before us reflects that Harris had only two hours of sleep the previous night, that he appeared to be sober when he left Reva Duke's apartment, that according to Dr. Seligman's -10- testimony he had a BAC of .06, that he took over an hour to drive to W. 14thStreet and back to Lee Road, and that he fell asleep at the wheel resulting in the accident and Bazley's death. Notable is that a BAC level of .06 does not rise to the level of intoxication as defined by R.C. 4511.19, and further apparent is the fact that Harris had driven Treadwell to his W. 14th Street home and returned to East Cleveland without incident. Considering that the appellant had little sleep in the previous twenty-four hour period, that he had been drinking earlier in the evening but appeared sober when he left to drive everyone home, and had driven to W. 14th Street and back to Lee Road before becoming involved in this tragic accident, and that he fell asleep while driving with a BAC of .06, and, after weighing this evidence and all reasonable inferences and considering the credibility of the witnesses, we conclude that the jury lost its way in resolving conflicts in this evidence and created a miscarriage of justice which requires us to reverse Harris' conviction. We conclude the evidence demonstrates that Harris acted negligently on the morning of October 15, 1996, not recklessly. Accordingly, we vacate appellant's conviction of aggravated vehicular homicide and, in accordance with App.R. 12(B), we enter a judgment of conviction for vehicular homicide and remand the matter to the trial court for re- sentencing on this conviction. Further, because our determination renders moot the remaining assignments of error, we decline to consider them. See App.R. 12(A)(1)(c). -11- Judgment accordingly. Matter remanded for re-sentencing. -12- It is ordered that appellant recover of appellee his costs herein taxed. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. TIMOTHY E. McMONAGLE, J., and JAMES D. SWEENEY, J., CONCUR PRESIDING JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .