State v. Gates

• Decision Date: 22 April 1983
• Citation: 462 N.E.2d 425,10 OBR 379,10 Ohio App.3d 265
• Parties: , 10 O.B.R. 379 The STATE of Ohio, Appellee, v. GATES, Appellant. *
• Court: Ohio Court of Appeals

Page 265

10 Ohio App.3d 265

462 N.E.2d 425, 10 O.B.R. 379

The STATE of Ohio, Appellee, v. GATES, Appellant. ^*

Court of Appeals of Ohio, Third District, Hardin County.

April 22, 1983.

Syllabus by the Court

1. The controlling element of the crime of aggravated vehicular homicide, a violations of R.C. 2903.06, is the state of mind of the defendant as to (1) the known risk, and (2) his perverse disregard of same with heedless indifference to the consequences. (R.C. 2901.22[C], applied.)

2. When the disregarded risk involves a mental and/or physical condition arising from the consumption of intoxicants, the same proof which establishes the existence of the risk may, in some circumstances, establish the absence of the knowledge thereof or of the perversity in disregarding it. The burden is on the prosecution to establish that the defendant was acting recklessly and it is a jury question whether in proving the existence of the risk the proof fails as to the existence of knowledge and perversity. (R.C. 2901.22[C], construed.)

3. The two-hour limitation in R.C. 4511.19 is a general limitation applying to all arrests for a violation of that statute regardless of how long before the arrest the consumption of alcohol took place and is based on scientific principles consistently applicable to the general population. On the other hand, the results of the analysis of a blood sample withdrawn more than two hours after the event to which the test must relate may have probative value dependent upon the foundation of expert or opinion evidence related to the defendant and the circumstances. (Evid.R. 701 and 702, applied.)

James S. Rapp, Pros. Atty., for appellee.

Tudor, Cloud & Cesner, Robert E. Cesner, Jr., Columbus, Keith A. Lange, for appellant.

GUERNSEY, Judge.

Defendant Andrew P. Gates was charged, tried, convicted and sentenced in the Court of Common Pleas of Hardin County for the crime of aggravated vehicular homicide in violation of R.C. 2903.06.

There was evidence that the defendant and the decedent had been attending the same party at an establishment known as the Red Fox Inn which began the evening of September 18, 1981, and extended into the early morning hours of September 19, 1981; and that at approximately 1:00 a.m. they both left the party, each driving his own car, the decedent driving east thence north on S.R. 235 and the defendant driving north thence east on County Road 60 where they each approached the same intersection in their own lanes of travel. The intersection was controlled by a stop sign requiring the defendant to stop before entering. Their cars collided in the intersection only minutes after they had departed the Red Fox Inn.

Defendant and the decedent were removed to the same hospital for treatment but the decedent was found to be dead on arrival. Approximately four hours from the time of the collision defendant was requested by a law officer to submit to a blood alcohol test, to which he consented, after first speaking with an attorney by telephone. Blood samples were then removed from both the defendant and the decedent. Upon being tested defendant's sample revealed a blood alcohol content of .21 to .22 percent as well as the presence of 102 nanograms of marijuana per milliliter of blood. The defendant filed a pretrial motion to suppress this blood test evidence which, upon hearing, the trial court overruled. The trial court also did not permit the results of the test of the decedent's blood to be admitted into evidence either on the motion to suppress or on the trial of the charge.

At trial several state highway troopers testified regarding their investigation of the collision both as to the physical facts found at the scene thereof and as to their opinions of the manner in which it had happened. In combination they concluded from the physical evidence and from the various tests which they conducted that the decedent was traveling north on the preferential state highway in his own lane of travel, with headlights operating, at a legal rate of speed at the point of impact of approximately fifty-three miles per hour, and that the defendant was traveling east on the county road in his own lane of travel at a legal rate of speed at the point of impact of approximately forty-three miles per hour.

The jury found the defendant guilty of the crime charged and upon entry of his conviction and sentence he appealed setting forth five assignments of error, the first three which we will discuss and consider together and the others which we will discuss and consider separately.

"Assignment of Error No. 1:

"The trial court erred in admitting evidence of the alcohol and drug level of intoxication of the defendant under indictment for aggravated vehicular homicide for the following reasons: (1) the blood sample upon which the test was performed was obtained more than four hours after the accident; (2) a law enforcement officer obtained consent of the defendant to submit to the blood test by advising him that he was being charged with operating a motor vehicle while under the influence, and concealing the fact from defendant that the other person involved in the collision had expired and the defendant was the sole suspect in a felony investigation, i.e. aggravated vehicular homicide; and (3) that the test results were not relevant and of no probative value upon the issues in the case.

"Assignment of Error No. 2:

"The trial court erred in refusing to permit the defendant to present evidence concerning the drug and alcohol level of intoxication of the deceased at the time of the accident. This ruling was erroneous for one or all of the following reasons: (1) the prosecution had opened the door to evidence of the conduct of the deceased and the condition of his vehicle; (2) while evidence concerning the contributory negligence or fault of the deceased does not constitute a defense in a criminal charge of aggravated vehicular homicide and the lesser included offense of vehicular homicide, such evidence is admissible as part of the res gestae and is relevant to the issue of proximate cause only; and (3) such evidence is further relevant, as part of the res gestae, to assist the jury in making a determination as to whether the conduct of defendant was reckless, as required in the offense of aggravated vehicular homicide, or culpably negligent, as required in the lesser included offense of vehicular homicide.

"Assignment of Error No. 3:

"The conviction of defendant upon a charge of aggravated vehicular homicide was against the manifest weight of the evidence, and the trial court erred in failing to direct a verdict in favor of defendant upon the charge of aggravated vehicular homicide at the conclusion of the state's case. The trial court further erred in failing to reduce the conviction of defendant from aggravated vehicular homicide to vehicular homicide upon motion of counsel for defendant after verdict."

The charge of aggravated vehicular homicide is based on the following provisions of R.C. 2903.06 in the form in which it existed at the time of the collision:

"(A) No person, while operating * * * a motor vehicle * * * shall recklessly cause the death of another."

To act "recklessly" is, as applied to this case, in turn defined by R.C. 2901.22(C) as follows:

"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. * * * "

Thus, it appears that a controlling element of the alleged crime is the state of mind of the defendant as to (1) the known risk, and (2) his perverse disregard of same with heedless indifference to the consequences. Because of this mental state this case must be separated analytically into two separate, yet associated, locales or events. We first consider the locale, or the event, of the collision. The only persons who could have known by personal knowledge or experience what transpired at that point were the decedent and the defendant. Being deceased the decedent could not testify thereto and the defendant, if he had any memory of same, elected not to testify. Such evidence as there was consisted of the circumstantial inferences arising from physical evidence found at the scene of the collision, the testimony of two acquaintances who discovered the collision, and the opinion evidence of the troopers. As to the decedent this evidence tended to prove that the decedent was traveling in his proper lane of travel at a legal rate of speed with his headlights operating. Similarly the evidence tended to prove that the defendant was traveling in his proper lane of travel at a legal rate of speed, and that before being removed from the scene he stated, "I didn't see it." In the defendant's case the inference could also be made that his speed at the point of impact was such that he could not have either stopped for the stop sign controlling his entrance to the intersection nor could he have, after stopping, yielded the right of way to the decedent whose lighted headlights made his approach visible to the defendant. There was no evidence to the contrary.

Considering this evidence alone there was no evidence whatever of any improper or erratic driving conduct on the part of the decedent and the evidence as to the defendant's driving conduct tended to prove, at most, only common-law negligence on his part or negligence per se by virtue of his statutory violations, but in no event did such evidence tend to prove, in and by itself, the defendant's mental state and that he had acted recklessly. Not tending to prove that the defendant had acted recklessly such evidence relating to the collision and scene thereof tended only to have probative value as it related to and tended to prove causation.

Since all of the evidence relating to the occurrence of the collision tended to show that the decedent was operating his car in its...