State v. Alfieri

• Decision Date: 31 December 1998
• Docket Number: No. C-970526., No. C-970490
• Citation: 724 NE 2d 477,132 Ohio App.3d 69
• Parties: The STATE of Ohio, Appellee and Cross-Appellant, v. ALFIERI, Appellant and Cross-Appellee.
• Court: Ohio Court of Appeals

132 Ohio App.3d 69

724 NE 2d 477

The STATE of Ohio, Appellee and Cross-Appellant, v. ALFIERI, Appellant and Cross-Appellee.¹

Nos. C-970490, C-970526.

Court of Appeals of Ohio, First District, Hamilton County.

Decided December 31, 1998.

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Steven W. Rakow, Assistant Prosecuting Attorney, for appellee and cross-appellant.

Douglas Mansfield, for appellant and cross-appellee.

SUNDERMANN, Presiding Judge.

On November 27, 1996, at approximately 7:30 a.m., Rene Andrews, then six months' pregnant, was ejected from the driver's-side window of her white Volkswagen Cabriolet after it collided with a flatbed truck parked on the berm of northbound I-71 just past the Red Bank Road entrance. Andrews came to rest, face down, on the interstate, sustaining pervasive injuries. Shortly thereafter, surgeons removed from Andrews's damaged uterus her twenty-five-week-old² unborn child, which had bled to death after the impact of the crash caused Andrews's placenta to separate from her uterus. Andrews remained in the intensive-care unit for three and a half days and underwent four surgeries. She was then transferred to the regular portion of the hospital, where she remained for over a week before being transferred to assisted-care facilities for two more months. Finally, on February 13, 1997, she returned home.

On January 2, 1997, the Hamilton County Grand Jury issued a two-count indictment against defendant-appellant Tracie Alfieri in connection with the collision. Alfieri was charged with (1) aggravated vehicle homicide, in violation of R.C. 2903.06(A), for recklessly causing the unlawful termination of Rene Andrews's pregnancy while operating a motor vehicle, and (2) aggravated vehicular assault, in violation of R.C. 2903.08(A), for recklessly causing serious physical harm to Rene Andrews while operating a motor vehicle.

Alfieri filed a motion to dismiss the aggravated-vehicular-homicide charge, asserting that R.C. 2903.06(A) was unconstitutional. The trial court overruled this motion and the case proceeded to trial. At the conclusion of four days of trial, the case went to the jury, which deliberated for a day and a half before returning guilty verdicts on both charges. After examining the completed presentence report and hearing mitigation testimony presented on Alfieri's behalf, the trial court sentenced Alfieri to serve one year of incarceration on the aggravated-vehicular-homicide charge and six months of incarceration on the aggravated-vehicular-assault charge. The trial court ordered that the sentences run consecutively.

Alfieri has filed a timely appeal from the trial court's judgment, asserting five assignments of error. By leave of this court, the state has filed, under case No. C-970526, a cross-appeal that we have consolidated with Alfieri's appeal, which is separately numbered C-970490. We have reviewed the parties' assignments of error. We conclude that Alfieri's five assignments are without merit. Accordingly, we affirm her convictions. We also conclude that the assignment raised by the state in its cross-appeal is moot. Therefore, we do not address it. Before we discuss the assignments more fully, it is appropriate to detail the circumstances precipitating the tragic incident that gave rise to the prosecution of Alfieri.

I. FACTUAL BACKGROUND

The testimony presented by the state at trial established that at approximately 7:00 a.m. on November 27, 1996, Andrews left her home in order to go to work. Although Andrews was unable to recall the events that unfolded following her departure from home, the testimony of other witnesses established that at approximately 7:26 a.m., she was traveling on Red Bank Road, directly behind a Coca Cola truck. The truck was moving slowly up a hill leading to the entrance to 1-71. Michael Grisi and David Bahler were traveling directly behind Andrews in two separate cars. Grisi testified that Andrews moved into the left lane in front of Alfieri, passed the slow-moving Coca Cola truck, and then moved back into the right lane. He noticed that Andrews's lane change caused Alfieri to slow down and that Alfieri began to gesture at Andrews. Alfieri moved into the right lane behind Andrews and followed her onto the entrance ramp to 1-71. According to Grisi and Bahler, Alfieri then began to drive erratically, moving from side to side as if she wanted to pass Andrews.

As the group neared the end of the entrance ramp, Andrews, still in front of Alfieri, remained in the same lane, which eventually provided access to the next exit from the interstate. Alfieri moved one lane to the left into the first regular lane of interstate traffic. According to Grisi and Bahler, Alfieri then pulled next to Andrews and made obscene gestures. Andrews responded by moving one lane to the left, behind Alfieri. But just as Andrews was completing her lane change, Alfieri applied her brakes suddenly and with such force that the nose of her Pontiac Grand Am dipped down. Grisi and Bahler testified that, at the time Alfieri braked, no traffic or other obstruction existed in front of her that would have warranted this abrupt action. It was their belief that she had intentionally given Andrews a "brake job," or had intentionally applied her brakes in an abrupt manner for the sole purpose of startling Andrews and causing her to slow down or change lanes.

In response to Alfieri's sudden application of her brakes, Andrews hit her own brakes and jerked her steering wheel to the right in an effort to avoid a collision with Alfieri. Unfortunately, this caused her to lose control of her car, which veered to the right and crashed into a disabled flatbed truck parked on the interstate. Upon impact, she was thrown from her car.

In the meantime, Alfieri continued to drive to work along 1-71. Grisi and Bahler, angered by her actions, drove after her and recorded her license-plate number.

At trial, several of Alfieri's co-workers testified that they discussed the circumstances of Andrews's collision with Alfieri on the morning of November 27, 1996. One co-worker testified that Alfieri told her that she thought she had caused an accident because she had slammed her brakes on in order to avoid traffic in front of her. Both co-workers testified that Alfieri told them that Andrews "cut her off" and that she did not "take shit" from anyone on the road. Alfieri also testified at trial. She contended that when Andrews changed lanes in front of her on Red Bank Road, she was forced to slam on her brakes in order to avoid hitting Andrews. As a result, she honked her horn and flashed her headlights at Andrews, who gestured at her and appeared agitated. Furthermore, Alfieri contended that she had properly attempted to pass Andrews on Red Bank Road (not on the entrance ramp), but had been prevented from doing so because Andrews insisted on "matching" her speed as she tried to pass. Because she needed to get on northbound 1-71, she was forced to merge to the right behind Andrews. Alfieri claimed that Andrews then hit her brakes abruptly, nearly causing a collision. As a result, she dropped back from Andrews and moved to the side of the lane to see if there was an obstruction in the road that would have caused Andrews to brake so suddenly. She saw nothing.

Alfieri also contended that when she passed Andrews on 1-71, both she and Andrews gestured at each other. She claimed, however, that the gestures were non-obscene. And, with regard to the moments before the crash, Alfieri stated that she thought Andrews was going to use the next exit and did not even realize that she was moving into the lane behind her. She also stated that she had applied her brakes because she believed she was coming up too quickly on the traffic ahead of her; she had not done so to startle or harm Andrews.

Finally, Alfieri testified that she did not actually see the crash occur and did not observe that Andrews's car had collided with a truck until after she had passed the next exit. Therefore, she proceeded to work, where she called the authorities to report that she might have information relative to Andrews's accident.

II. ALFIERI'S ASSIGNMENTS OF ERROR

A. CONSTITUTIONAL ISSUES

In her first assignment of error, Alfieri challenges the constitutionality of the legislation that amended the statutory definition in Ohio's aggravated-vehicularhomicide statute, R.C. 2903.06(A), to encompass the unlawful termination of another's pregnancy and that added new definitions to R.C. 2903.09.³ She claims that the law, as amended, violates her rights to equal protection of the law, due process, and freedom from cruel and unusual punishment. She also contends that the law impermissibly establishes and fosters religious purposes and beliefs. R.C. 2903.06(A), as amended by Am.Sub.S.B. No. 239, provides:

"No person, while operating or participating in the operation of a motor vehicle * * * shall recklessly cause the death of another or the unlawful termination of another's pregnancy."

R.C. 2903.09(A) defines the unlawful termination of another's pregnancy as "causing the death of an unborn member of the species homo sapiens, who is or was carried in the womb of another, as a result of injuries inflicted during the period that begins with fertilization and that continues unless and until live birth occurs."

Further, the legislature has specifically provided that the definition of "unlawful termination of another's pregnancy" is not to be applied to consensual abortions and exempts pregnant women from prosecution.

1. EQUAL PROTECTION OF THE LAW

Alfieri contends that R.C. 2903.09(C) impermissibly exempts pregnant women from prosecution under R.C. 2903.06(A) in violation of the Equal Protection Clause. She contends that no rational basis exists for this disparate treatment. This argument lacks merit.

Equal protection under the law requires that no person or class of persons be denied the protection afforded by...