State v. Houston

Citation2018 Ohio 2788,114 N.E.3d 1236
Decision Date25 June 2018
Docket NumberNo. 17 NO 0455,17 NO 0455
Parties STATE of Ohio, Plaintiff-Appellee, v. Jay H. HOUSTON, Defendant-Appellant.
CourtUnited States Court of Appeals (Ohio)

Atty. Kelly Riddle, Prosecutor, Atty. Jamie Riley, Asst. Prosecutor, 150 Courthouse, Caldwell Ohio 43724, for Plaintiff-Appellee.

Atty. Michael J. Kinlin, Atty. Stephen Hanudel, 124 Middle Ave., Suite 900, Elyria, Ohio 44035, for Defendant-Appellant.

BEFORE: Carol Ann Robb, Gene Donofrio, Cheryl L. Waite, Judges.

OPINION AND JUDGMENT ENTRY

ROBB, P.J.

{¶ 1} Defendant-Appellant Jay H. Houston appeals the decision of the Noble County Court finding him guilty of failure to control in violation of R.C. 4511.202. Appellant contests the sufficiency and the weight of the evidence. He also contends the trial court erred in finding a deer running into the road is foreseeable and thus cannot constitute a sudden emergency for purposes of an affirmative defense. This court concludes a deer may constitute a sudden emergency; therefore, the trial court erred in ruling, as a matter of law, that a deer in the road cannot be a sudden emergency. As such, the judgment is reversed, and the case is remanded for further proceedings.

STATEMENT OF THE CASE

{¶ 2} Appellant was issued a citation for failure to control in violation of R.C. 4511.202. A bench trial was conducted by the Noble County Court on September 5, 2017. The trooper testified he was called to the scene of a single-vehicle accident on May 21, 2017 at 4:25 a.m. on Interstate 77 North in Noble County. He observed a large, yellow, Penske-rental, box truck leaning sideways in the grass median. (Tr. 4-5, 21). He concluded the truck drove off the left side of the freeway and into the grass median where it turned sideways, overturned, rolled, and landed upright with a twisted frame. (Tr. 4-5, 10-11, 21). The road was dry. The trooper observed minor cuts on the passenger and on Appellant, who identified himself as the driver. (Tr. 8-9).

{¶ 3} The trooper found no skid marks on the pavement where the truck left the roadway. (Tr. 6, 20). He saw tire tracks with tread marks in the grass at the point the truck left the berm, which demonstrated to him that the truck's tires were still freely rolling, as opposed to skidding, when the truck entered the grass. (Tr. 6). He concluded the driver did not brake while on the road or when first leaving it. (Tr. 12, 17). Photographs were admitted showing what the officer concluded were the truck's tire tracks in the grass after the truck started travelling sideways. (Tr. 7, 14, 17). A photograph showed the truck with a crushed cab roof, a broken windshield, and the metal sheared off the top and passenger side of the box compartment. Household belongings from inside the truck's box compartment were scattered in the median. The back end of the truck was protruding into the roadway on the other side of the freeway.

{¶ 4} The trooper testified he found no blood or fur on the front of the truck when checking to see if it made contact with an animal. (Tr. 8). When asked on cross-examination if he checked under the vehicle or the side of the vehicle for evidence of a deer, he said he did not because Appellant did not think he struck the deer. (Tr. 19). He acknowledged there are many deer-car collisions in this rural area and agreed a deer strike could cause death to someone inside a vehicle. (Tr. 18-19).

{¶ 5} Appellant testified in his own defense. He explained he rented the 26-foot box truck to move from North Carolina to northern Ohio. He planned to make multiple trips in a short period of time and left North Carolina at 8:00 p.m. (Tr. 26). Appellant testified he was driving north in the left lane when he saw a deer enter the road at a run from the right side of the roadway. (Tr. 27). He swerved off the road to the left, and the truck went into a slide. He said, "as soon as I hit the grass, that was it." (Tr. 28,31). He could not remember if he applied the brakes. (Tr. 28). He confirmed the truck rolled over and landed on its tires. (Tr. 27). He believed he was traveling at a speed between 60 and 70 miles per hour, stating the truck had a governor limiting the maximum speed to 70 mph, which he said was the speed limit. (Tr. 28, 30).

{¶ 6} When his attorney asked why he did not just go forward and hit the deer, he said his friend had a deer go through the car and maim him and "So I decided, that uh, natural instinct would be to swerve and miss instead of hitting him. That was just a natural instinct." (Tr. 28). When asked if he could have done anything differently, Appellant answered in the negative and explained, "something runs out in front of you, you're natural instinct is to swerve and to avoid it." (Tr. 30).

{¶ 7} Defense counsel renewed a motion for acquittal, which the court overruled, explaining reasonable minds could find Appellant guilty when the evidence was viewed in the light most favorable to the state. Closing arguments were presented. Defense counsel outlined the sudden emergency defense. The court then discussed the defense and concluded a wild animal crossing the road in a rural area of Ohio was foreseeable and therefore would not constitute a sudden emergency, finding the defense of sudden emergency does not exist for an animal in the roadway.

{¶ 8} The court found Appellant guilty as charged and imposed a fine of $50 plus $89 in court costs. (Tr. 35-36; J.E. 9/5/17). Appellant paid $139 that same day.1 Appellant filed an untimely notice of appeal from the September 5, 2017 judgment entry on Friday, October 6, 2017, which was one day late. This court granted leave for a delayed appeal under App.R. 5(A). (J.E. 12/6/17).

ASSIGNMENT OF ERROR ONE: SUFFICIENCY

{¶ 9} Appellant sets forth three assignments of error, the first of which alleges:

"THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT'S MOTION FOR ACQUITTAL UNDER CRIMINAL RULE 29 UPON THE COMPLETION OF APPELLANT'S CASE."

{¶ 10} Initially, the state responds by asserting a motion for acquittal has no application in a bench trial. Pursuant to Crim.R. 29(A) : "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, information, or complaint, if the evidence is insufficient to sustain a conviction of such offense or offenses." Crim.R. 29(A). We note the holding: "The purpose of a motion for judgment of acquittal is to test the sufficiency of the evidence and, where the evidence is insufficient, to take the case from the jury. In the non-jury trial, however, the defendant's plea of not guilty serves as a motion for judgment of acquittal, and obviates the necessity of renewing a Crim.R. 29 motion at the close of all the evidence." City of Dayton v. Rogers , 60 Ohio St.2d 162, 163, 398 N.E.2d 781 (1979).2

{¶ 11} A defendant does not waive a sufficiency argument by failing to renew a motion for acquittal. Likewise, a defendant is not required to move for acquittal in order to raise sufficiency of the evidence on appeal. In re J.M. , 7th Dist. No. 12 JE 3, 2012-Ohio-5283, 2012 WL 5542870, ¶ 34 (a defendant does not waive a sufficiency argument by failing to file a motion for acquittal as a not guilty plea preserves sufficiency arguments for purposes of appeal), citing State v. Jones , 91 Ohio St.3d 335, 346, 744 N.E.2d 1163 (2001), citing State v. Carter , 64 Ohio St.3d 218, 594 N.E.2d 595 (1992). Still, the law does not prohibit a defendant from asking the court at the close of the state's case for an acquittal to be entered prior to the defense calling witnesses in a bench trial. A renewed motion at the close of all evidence is not required, and the renewed motion in a bench trial is akin to a closing argument to emphasize the defendant's position. The defendant can argue insufficiency of the evidence to a trial court at a bench trial regardless of the form the argument takes.

{¶ 12} In any event, the review of a denial of a Crim.R. 29 motion for acquittal involves the application of the standards for reviewing the sufficiency of the evidence. See, e.g. , Crim.R. 29(A) (referring to insufficient evidence); State v. Williams , 74 Ohio St.3d 569, 660 N.E.2d 724 (1996) ; State v. Carter , 72 Ohio St.3d 545, 553, 651 N.E.2d 965 (1995). Accordingly, when a defendant challenges a court's denial of a motion for acquittal, he is challenging the sufficiency of the evidence. Whether the evidence is legally sufficient to sustain a conviction is a question of law evaluating the adequacy of the evidence. State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). In evaluating the sufficiency of the evidence, the court views the evidence and all rational inferences in the light most favorable to the state. See State v. Filiaggi , 86 Ohio St.3d 230, 247, 714 N.E.2d 867 (1999) ; State v. Goff , 82 Ohio St.3d 123, 138, 694 N.E.2d 916 (1998). An evaluation of credibility is not involved in a sufficiency review. State v. Yarbrough , 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79, 82. See also Thompkins , 78 Ohio St.3d at 390, 678 N.E.2d 541 (Cook, J., concurring) (sufficiency involves the state's burden of production rather than its burden of persuasion).

{¶ 13} As the state's brief points out, a conviction cannot be reversed on the grounds of insufficient evidence unless the reviewing court determines that no rational fact-finder could have found the essential elements of the offense proven beyond a reasonable doubt. Goff , 82 Ohio St.3d at 138, 694 N.E.2d 916. The question is merely whether any rational mind could find the elements were established by the direct and circumstantial evidence. See State v. Getsy , 84 Ohio St.3d 180, 193, 702 N.E.2d 866 (1998). Circumstantial evidence inherently possesses the same probative value as direct evidence. State v. Treesh , 90 Ohio St.3d 460, 485, 739 N.E.2d 749 (2001).

{¶ 14} The elements of the failure to control...

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