State v. Peck

• Citation: 2007 Ohio 2730,172 Ohio App.3d 25,872 N.E.2d 1263
• Decision Date: 05 June 2007
• Docket Number: No. 06AP-500.,06AP-500.
• Parties: The STATE of Ohio, Appellee, v. PECK, Appellant.
• Court: United States Court of Appeals (Ohio)

872 N.E.2d 1263

172 Ohio App.3d 25

2007-Ohio-2730

The STATE of Ohio, Appellee, v. PECK, Appellant.

No. 06AP-500.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided June 5, 2007.

Ron O'Brien, Franklin County Prosecuting Attorney, and Kimberly M. Bond, Assistant Prosecuting Attorney, for appellee.

Robert F. Krapenc, for appellant.

KLATT, Judge.

{¶ 1} Defendant-appellant, William L. Peck, appeals from a judgment of conviction entered by the Franklin County Court of Common Pleas. Because appellant's conviction is not supported by sufficient evidence, we reverse that judgment and enter judgment for appellant.

{¶ 2} On the evening of January 13, 2005, Charles Starkes was driving a tractor-trailer (a tractor with two attached trailers) on I-270 near Columbus, Ohio. His tractor weighed about 34,000 pounds and his two trailers were loaded with almost 30,000 pounds of materials, for a combined weight of almost 64,000 pounds, or 32 tons.

{¶ 3} Starkes accidentally drove his tractor-trailer into the freeway's median and became stuck in the mud. He called for a tow. Appellant, who worked for a towing company in Columbus, responded to the scene in a tow truck. Appellant had almost ten years of towing experience. Starkes told appellant how much weight he had in his two trailers. Appellant told Starkes that his tow truck was too small and that a heavy tow truck was on the way. Appellant called Derick Lane and asked him to bring the company's heavy tow truck. A half an hour later, Lane arrived at the scene with the heavy truck. Lane parked the heavy tow truck on the left berm lane of the freeway, about 100 feet in front of Starkes's tractor-trailer. Appellant parked his small tow truck partially in the left lane of the freeway behind Starkes's tractor-trailer, with his lights flashing to alert oncoming drivers.

{¶ 4} Appellant began to set up the tow. He extended two braces from the back of the heavy tow truck to add stability. He took a securement chain from the heavy truck and placed it in the recovery hooks on the front of Starkes's tractor-trailer. Appellant removed a "snatch block" (basically a large pulley with an attached hook) from the heavy tow truck and hooked it to the rear of the heavy tow truck. Appellant examined the snatch block to make sure it was not cracked, but he did not check the capacity rating of the snatch block. Snatch blocks are rated for capacities of two to 24 tons. Appellant then ran the cable from the heavy tow truck's boom down through the snatch block and then out to the tractor-trailer, where he attached the cable to the securement chain. The snatch block that appellant used was rated at three tons and it was the only snatch block on the heavy tow truck when it was brought to the scene. Appellant testified that he assumed this snatch block was appropriate for the job because it was the only one provided with the heavy tow truck.

{¶ 5} After connecting the cable to the securement chain, appellant went to the controls located on the outside of the heavy tow truck and began to tighten the cable in preparation for pulling the tractor-trailer out of the median. Appellant visually inspected the cable going back to the tractor-trailer to see if everything was in good condition. He did not see or hear anything that caused him to believe something was wrong. However, as he applied more pressure to the cable, the heavy tow truck slid back toward the tractor-trailer a few feet. In response, Lane got inside the heavy tow truck and applied the brakes to help hold it in place. Appellant then reapplied pressure to the cable to start the pull. Within a few seconds, the snatch block broke and catapulted away from the heavy tow truck. The snatch block crashed through the windshield of a passing car driven by Danielle Knapp. Ms. Knapp was killed as a result of this tragic incident.

{¶ 6} A Franklin County Grand Jury indicted appellant on one count of reckless homicide in violation of R.C. 2903.041. Appellant entered a not-guilty plea and proceeded to a bench trial. At trial, the state presented testimony from two witnesses, William McQuirt and Stacy Wills, who own towing companies in Columbus. They both testified that appellant should not have used the snatch block at issue because it was underrated for such a heavy tow. Specifically, they stated that they would not have used the snatch block appellant used and they would have used more than one snatch block. Appellant testified that he did not check the snatch block's capacity rating before using it. Nor did he realize that the snatch block might fail. He simply assumed that it was the appropriate snatch block to use because it was on the heavy tow truck. The trial court found appellant guilty of reckless homicide and sentenced him accordingly.

{¶ 7} Appellant appeals and assigns the following error:

Defendant-Appellant's conviction for reckless homicide is not supported by evidence sufficient to satisfy the requirements of due process under U.S. Const. amend. V and XIV; or, alternatively, is against the manifest weight of the evidence.

{¶ 8} Appellant first contends that his conviction was not supported by sufficient evidence. In State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, the Supreme Court of Ohio described the role of an appellate court presented with a challenge to the sufficiency of the evidence:

An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.

Id., at paragraph two of the syllabus.

{¶ 9} Whether the evidence is legally sufficient is a question of law, not fact. State v. Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541. Indeed, in determining the sufficiency of the evidence, an appellate court must "give[] full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560. Consequently, the weight of the evidence and the credibility of the witnesses are issues primarily determined by the trier of fact. State v. Yarbrough, 95 Ohio St.3d 227, 240, 767 N.E.2d 216; State v. Thomas (1982), 70 Ohio St.2d 79, 80, 24 O.O.3d 150, 434 N.E.2d 1356. A jury verdict will not be disturbed unless, after viewing the evidence in the light most favorable to the prosecution, it is apparent that reasonable minds could not reach the conclusion reached by the trier of fact. State v. Treesh (2001), 90 Ohio St.3d 460, 484, 739 N.E.2d 749; Jenks, 61 Ohio St.3d at 273, 574 N.E.2d 492.

{¶ 10} In order to convict appellant of reckless homicide, the state had to prove beyond a reasonable doubt that appellant recklessly caused Knapp's death. R.C. 2903.041. 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." R.C. 2901.22(C). A risk is defined as a strong probability, as contrasted with a remote probability, that a certain result may occur. R.C. 2901.01(A)(7). Thus, the state had to prove that appellant, with heedless indifference to the consequences, perversely disregarded a known risk that his conduct was likely to cause a certain result.

{¶ 11} "`"A person is said to be reckless under the section when, without caring about the consequences, he obstinately disregards a known and significant possibility that his conduct is likely to cause a certain result or be of a certain nature, or that certain circumstances are likely to exist."'" Bexley v. Selcer (1998), 129 Ohio App.3d 72, 77, 716 N.E.2d 1220, quoting State v. Pack (1996), 110 Ohio App.3d 632, 636, 674 N.E.2d 1263, quoting Legislative Service Commission Comment to R.C. 2901.22.

{¶ 12} A mere failure to perceive or avoid a risk, because of a lack of due care, does not constitute reckless conduct. Columbus v. Akins (Sept. 27, 1984), Franklin App. No. 83AP-977, 1984 WL 5923. Instead, one must recognize the risk of the conduct and proceed with a perverse disregard for that risk. State v. Covington (1995), 107 Ohio App.3d 203, 206, 668 N.E.2d 520; State v. Whitaker (1996), 111 Ohio App.3d 608, 613, 676 N.E.2d 1189 (noting that to be reckless, "one must act with full knowledge of the existing circumstances").

{¶ 13} In contrast to the actor who proceeds with knowledge of a risk, the failure of a person to perceive or avoid a risk that his conduct may cause a certain result or may be of a certain nature is negligence. R.C. 2901.22(D). Recklessness requires more than ordinary negligent conduct. The difference between the terms "recklessly" and "negligently" is normally one of a kind, rather than of a degree. "Each actor creates a risk of harm. The reckless actor is aware of the risk and disregards it; the negligent actor is not aware of the risk but should have been aware of it." (Emphasis sic.) Wharton's Criminal Law (15th Ed.1993) 170, Section 27; see, also, State v. Wall (S.D.1992), 481 N.W.2d 259, 262.

{¶ 14} Appellant contends that the state failed to prove that he acted recklessly because it did not present sufficient evidence demonstrating that he perversely disregarded a known risk that his conduct was likely to cause a certain result. We agree.

{¶ 15} Preliminarily, we note that the parties do not agree on what risk we must assess in determining whether there was sufficient evidence to support the conviction for reckless homicide. The state contends that appellant perversely disregarded the...