State v. Dailey, 2007 Ohio 2544 (Ohio App. 5/23/2007)
| Decision Date | 23 May 2007 |
| Docket Number | No. 2006-CA-0012.,2006-CA-0012. |
| Citation | 2007 Ohio 2544 |
| Parties | State of Ohio, Plaintiff-Appellee, v. William J. Dailey, Jr. Defendant-Appellant, |
| Court | Ohio Court of Appeals |
David J. Stamolis, Assistant Prosecutor, 60 East High Street, Mount Gilead, OH 43338, for Plaintiff-Appellee.
Earl K. Desmond, 75 South Main Street P.O. Box 67, Mount Gilead, OH 43338, for Defendant-Appellant.
Before: Hon: W. Scott Gwin, P.J., Hon: Sheila G. Farmer, J., Hon: Julie A. Edwards, J.
{¶1} Defendant-appellant, William J. Dailey, Jr. appeals from the judgment of conviction and sentence entered in the Morrow County Municipal Court upon a jury's verdict finding appellant guilty of vehicular homicide, a misdemeanor of the first degree, in violation of R.C. 2903.06(A)(3).
{¶2} The instant cause arises out of a fatal automobile accident in Morrow County involving the appellant, William J. Dailey, Jr. and Scott L. Carpenter. The decedent, Sylvia Rayetta Stewart, was riding as a passenger in Mr. Carpenter's car at the time of the collision.
{¶3} At approximately 9:00 a.m. on November 28, 2003, Scott L. Carpenter was driving a 1985 Mercury Grand Marquis automobile northbound on State Route 314 in Morrow County, Ohio. Appellant and his passenger William Adams were traveling eastbound on State Route 97 in a large Ryder type 2002 Ford E350 truck. The truck was towing an empty car dolly trailer. Appellant testified that he stopped his truck at the stop sign where State Route 97 intersects with State Route 314, looked to his left and right and proceeded into the intersection. Appellant claims he did not see Carpenter's vehicle coming until appellant's vehicle was in the middle of the intersection. Carpenter's vehicle was roughly 100 yards away at this point according to appellant. Appellant turned his wheel and accelerated in an attempt to avoid the collision. State Route 314 does not have any traffic control devices at the State Route 97 intersection.
{¶4} Appellant was subsequently tried in the Morrow County Municipal Court. Prior to closing arguments appellant's trial counsel requested in writing special jury instructions concerning "right of way" and "general caution signs" which the trial court declined to give to the jury. The jury found appellant guilty of vehicular homicide. On August 21, 2006 the trial court sentenced appellant to serve one hundred eighty days incarceration, a fine of $1,000.00 and a five year driver license suspension.
{¶5} Appellant filed a timely notice of appeal and herein raises the following two assignments of error for our consideration:
{¶6} "I. IT WAS AN ABUSE OF DISCRETION AND THE TRIAL COURT ERRED AS A MATTER OF LAW BY OVERRULING DEFENDANT'S WRITTEN REQUEST FOR A RIGHT OF WAY INSTRUCTION AND GENERAL CAUTION SIGN INSTRUCTION.
{¶7}
{¶8} In his first assignment of error, appellant asserts that the trial court committed prejudicial error when it failed to properly instruct the jury. Appellant claims that the court improperly failed to define "Right-of-way" and "General Caution Signs." Appellant further contends that the trooper who investigated the accident was permitted to testify that a driver who has the initial right-of-way never loses his right of way even if he ignores a caution sign and is driving in excess of the speed limit. Appellant argues that this is an incorrect statement of the law and when combined with the trial court's instruction on "causation" the jury had no choice but to convict him. We disagree.
{¶9} We note appellant does not cite any portion of the record where the trooper gave such an opinion.
{¶10} In State, ex rel. Physician's Committee for Responsible Medicine v. Board of Trustees of Ohio State University noted: . . 108 Ohio St.3d 288, 291 2006-Ohio-903 at ¶13, 843 N.E.2d 174, 177-78.
{¶11} A review of the record in the case at bar reveals that the "right-of-way" issue was broached by appellant's trial counsel on cross-examination. (T. at 98-100). The record further reveals that, contrary to appellant's assertions, the trooper actually testified that a driver stopped at a stop sign who sees a car approaching at a high rate of speed, cannot deliberately drive into imminent danger of a collision, upon an assumption that the driver who initially has the right-of-way has lost the right-of-way because of his excessive speed. (T. at 98; 100; 101). In other words "the fact that the driver on the preferential thoroughfare forfeits the right of way by driving in an unlawful manner, does not relieve the unfavored driver of the duty to look for approaching vehicles on the main thoroughfare and to exercise ordinary care to avoid a collision." Smith v. Jones (1960), 112 Ohio App. 195, 198, 175 N.E.2d 758, 760.
{¶12} However, we will address appellant's assignment of error in the context that the trial court failed to give the instructions requested in writing by appellant's trial counsel prior to closing arguments.
{¶13} "[A]fter arguments are completed, a trial court must fully and completely give the jury all instructions which are relevant and necessary for the jury to weigh the evidence and discharge its duty as the fact finder." State v. Comen (1990), 50 Ohio St. 3d 206, paragraph two of the syllabus. If a requested instruction contain a correct, pertinent statement of the law and is appropriate to the facts, the instruction must be included, at least in substance. State v. Nelson (1973), 36 Ohio St. 2d 79, paragraph one of the syllabus. However, the corollary of this maxim is also true. It is well established that the trial court will not instruct the jury where there is no evidence to support an issue. Riley v. Cincinnati (1976), 46 Ohio St.2d 287, 75 O.O.2d 331, 348 N.E.2d 135; Murphy v. Carrollton Manufacturing Co. (1991), 61 Ohio St.3d 585, 591, 575 N.E.2d 828, 832. "In reviewing a record to ascertain the presence of sufficient evidence to support the giving of an * * * instruction, an appellate court should determine whether the record contains evidence from which reasonable minds might reach the conclusion sought by the instruction." Feterle v. Huettner (1971), 28 Ohio St.2d 54, 275 N.E.2d 340, at syllabus; Murphy v. Carrollton Manufacturing Co., supra; State v. Coleman, 6th Dist. No. S-02-41, 2005-Ohio-318 at ¶12.
{¶14} Appellant was convicted of vehicular homicide. That offense is set forth in R.C. 2903.06(A) (3) (a), and provides, in pertinent part:
{¶15} "No person, while operating or participating in the operation of a motor vehicle * * * shall cause the death of another in any of the following ways... negligently...."
{¶16} Under R.C. 2903.06(A) (3) (a), therefore, the elements which must be proved beyond a reasonable doubt are (1) operation of a motor vehicle, (2) lack of due care during the operation of that vehicle, and (3) death proximately caused by that lack of due care. State v. Vaught (1978), 56 Ohio St.2d 93, 94-95, 382 N.E.2d 213, 214. [ former statute R.C.2903.07 (A)].
{¶17} R.C. 2901.22(D) defines criminal negligence as follows:
{¶18}
{¶19} Under R.C. 2901.22(D) something more than ordinary negligence is required to prove criminal negligence. There must be a substantial lapse from due care. State v. Varney (June 22, 1987, 12th Dist. No. CA86-07-100; State v. Mason (June 27, 1986), 3rd Dist. No. 1-85-11; State v. McKeand (Sept. 29, 1986), 12th Dist. No. 86-02-018.
{¶20} The trial court in the case at bar instructed the jury pursuant to OJI Section 409.31, . (T. at 204). See, State v. Abboud (Nov. 16, 1995), 8th Dist. No. 68611.
{¶21} "Substantial" for purposes of criminal negligence is a determination for the trier of fact. State v. Jones, 2nd Dist. No. 2000CA57, 2001-Ohio-1508; State v. McKeand, supra; State v. Ovens (1974), 44 Ohio App.2d 428.
{¶22} In the case at bar, appellant requested the trial court instruct the jury on right-of-way at through highways.
{¶23} R.C. 4511.01 states in relevant part:
{¶24} "(UU) `Right-of-way' means ...:(1) The right of a vehicle, streetcar, trackless trolley, or pedestrian to proceed uninterruptedly in a lawful manner in the direction in which it or the...
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