State v. Gonzalez, 2008 Ohio 2749 (Ohio App. 6/3/2008)
| Decision Date | 03 June 2008 |
| Docket Number | No. 06 MA 58.,06 MA 58. |
| Citation | 2008 Ohio 2749 |
| Parties | State of Ohio, Plaintiff-Appellee, v. Joseph Gonzalez, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
{¶1} Appellant Joseph Gonzalez appeals his felony conviction for aggravated vehicular homicide and a related misdemeanor conviction for failure to stop after an accident. Appellant presents four issues for review. He argues, in part, that the indictment for failure to stop after an accident was defective and we agree with this argument, particularly because the indictment fails to mention the mens rea element of the crime. We therefore vacate his conviction for failure to stop after an accident. The remaining alleged errors concern evidentiary issues. Appellant contends that certain photographs of the victim should not have been admitted into evidence. He claims that evidence of an alleged physical altercation at a bar should have been excluded under Evid.R. 404. Finally, he argues that the manifest weight of the evidence does not support his aggravated vehicular homicide conviction. We reject these arguments, and affirm the conviction for aggravated vehicular homicide.
{¶2} At approximately 2:30 a.m. on March 21, 2004, Shaun Summerville and Richard Bussey were walking on the sidewalk on Wilson Avenue in Campbell, Ohio. Appellant, who was driving his brother's truck on Wilson Avenue at the time, struck and killed Mr. Summerville. Appellant did not stop at the time of the accident. Appellant's brother noticed that his truck had been damaged, and Appellant initially told him that a friend had used the truck and struck a pole. Appellant later claimed that he may have hit a dog or some other animal. After the news of Mr. Summerville's death was reported in the local media, Appellant hired an attorney and then turned himself over to the Campbell Police Department.
{¶3} On March 25, 2004, Appellant was indicted on one count of aggravated vehicular homicide, a second degree felony, R.C. 2903.06(A)(2), and one count of failure to stop after an accident, a third degree felony, R.C. 4549.02(A). Trial began on February 7, 2006. At trial, Mr. Bussey testified that he was walking on the sidewalk on Wilson Avenue on the morning of the accident, and that Mr. Summerville was walking next to him, partly on the sidewalk and partly on the grass. They were walking in very close proximity to one another. Mr. Summerville was closer to the road. Mr. Bussey noticed a truck come from behind them. He heard a thump, and then realized that his friend, Mr. Summerville, was gone. He said the truck had swerved up onto the sidewalk, driving in between telephone poles and rocks, when it hit Mr. Summerville. When Mr. Bussey looked for his friend, he found him laying face up, showing no signs of life. He ran to a nearby house, and called his aunt to tell her that Mr. Summerville was dead. He then returned to the body and knelt down and cried. Other people began arriving at the scene, including the local police.
{¶4} Appellant's brother, Jonathan Centeno, testified that he owned a red and white Ford Bronco truck. On the night prior to the accident, he left his truck and his keys at his mother's house. At approximately 3:00 a.m. on the morning of the accident, he received a phone call from Appellant concerning damage to the truck. Appellant told Mr. Centeno that a woman had used the truck and hit a pole. Appellant drove the truck back to Mr. Centeno, who noticed that the right side of the vehicle had been damaged. Appellant gave no further explanation about the damage to the truck, and Mr. Centeno went back to bed. After he awoke again that afternoon Appellant told him that he heard on the news that there was some type of accident on Wilson Avenue and that he may have hit something on Wilson Avenue, possibly a dog. Appellant then contacted his attorney.
{¶5} Randall Benner, a paramedic, testified that he was called to the scene of the accident on March 21, 2004. Mr. Benner determined that the victim was dead, and had sustained a severe trauma to the head. He also noticed that one of the victim's shoes had been knocked off and was lying some distance from the body. Benner testified that an impact forceful enough to knock a person's shoe off is generally a fatal impact.
{¶6} Dr. Robert Belding, a forensic pathologist, testified about the autopsy he performed on the victim. He testified that the victim sustained massive head injury, as well as numerous other abrasions, scrapes, bruises and bone fractures. He stated that virtually every organ in the victim's abdomen had been damaged, and that death had been very rapid due to the tremendous trauma to the body. The state introduced photographs into evidence supporting Dr. Belding's testimony, including an autopsy photograph of the head injury.
{¶7} Campbell Police Officer Kevin Sferra testified that he was called to investigate the accident. He testified that he found pieces of debris that had broken off from the vehicle at the time of the accident. An examination of some of the debris indicated that the vehicle in question was a red and white Ford Bronco.
{¶8} Ohio State Trooper Joel T. Hughes testified. Trooper Hughes was called to the scene of the accident soon after it occurred. He testified as to measurements he took of the crime scene, including the exact location of the body, the victim's shoe, the roadway, the telephone poles along the road, and the tire tracks and scuff marks that were found near the body.
{¶9} Appellant also testified at trial. He admitted he took his brother's truck a few hours prior to the accident and drove to a bar called Pal Joey's. He left the bar at approximately 2:00 a.m. He admitted that he may have hit something as he drove on Wilson Avenue after he left the bar. He testified that he did not stop because he panicked at the time, particularly since his license was under suspension. He stated that he turned himself into the police after he heard about the accident in the morning news.
{¶10} The jury convicted Appellant of aggravated vehicular homicide, a second degree felony, and of misdemeanor failure to stop after an accident. Sentencing took place on March 13, 2006. The court sentenced him to six years in prison on count one and six months in prison on count two, to be served concurrently. The sentencing judgment entry was filed on April 5, 2006, and this timely appeal followed.
{¶11} Appellant presents four assignments of error on appeal, which will be treated out of order to facilitate our analysis.
{¶12} "THE TRIAL COURT ERRED IN OVERRULING THE DEFENDANT'S MOTION TO DISMISS COUNT 2 (FAILURE TO STOP AFTER AN ACCIDENT) AS THE INDICTMENT CHARGING THIS OFFENSE FAILED TO STATE ALL THE ESSENTIAL ELEMENTS OF THE OFFENSE."
{¶13} Appellant contends that he was never properly charged with the offense of failure to stop after an accident, and therefore, he could not have been convicted of that offense. Appellant was charged with violating R.C. 4549.02(A), which states, in pertinent part:
{¶14} "(A) In case of accident to or collision with persons or property upon any of the public roads or highways, due to the driving or operation thereon of any motor vehicle, the person driving or operating the motor vehicle, having knowledge of the accident or collision, immediately shall stop the driver's or operator's motor vehicle at the scene of the accident or collision and shall remain at the scene of the accident or collision until the driver or operator has given the driver's or operator's name and address and, if the driver or operator is not the owner, the name and address of the owner of that motor vehicle, together with the registered number of that motor vehicle, to any person injured in the accident or collision or to the operator, occupant, owner, or attendant of any motor vehicle damaged in the accident or collision, or to any police officer at the scene of the accident or collision.
{¶15} "In the event the injured person is unable to comprehend and record the information required to be given by this section, the other driver involved in the accident or collision forthwith shall notify the nearest police authority concerning the location of the accident or collision, and the driver's name, address, and the registered number of the motor vehicle the driver was operating, and then remain at the scene of the accident or collision until a police officer arrives, unless removed from the scene by an emergency vehicle operated by a political subdivision or an ambulance."
{¶16} The portion of Appellant's indictment relating to the crime of failure to stop after an accident contained the following language:
{¶17}
{¶18} Appellant contends that the language in the indictment fails to charge him with the offense described in R.C. 4549.02(A). He argues that, "if a vital and material...
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