[Cite as In re Williams, 2011-Ohio-4338.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY
IN THE MATTER OF:
HANK WILLIAMS, CASE NO. 9-10-64
ALLEGED DELINQUENT CHILD,
[HANK WILLIAMS - OPINION APPELLANT].
Appeal from Marion County Common Pleas Court Juvenile Division Trial Court No. 2009 DL 0558
Judgment Affirmed
Date of Decision: August 29, 2011
APPEARANCES:
Robert E. Wilson for Appellant
Brent W. Yager and Gregory A. Perry for Appellee Case No. 9-10-64
WILLAMOWSKI, J.
{¶1} Defendant-Appellant, Hank Williams (“Appellant” or “Hank”),
appeals the judgment of the Marion County Court of Common Pleas, Juvenile
Division, adjudicating him a delinquent child for having committed complicity to
aggravated vehicular homicide and vehicular assault. On appeal, Appellant
contends that the trial court erred in that liability cannot attach as an aider or
abettor when the passengers were willing participants; that the trial court erred in
failing to grant Appellant’s motion for acquittal; and that the trial court’s findings
were against the manifest weight of the evidence. For the reasons set forth below,
the judgment is affirmed.
{¶2} On February 4, 2010, a complaint was filed alleging Appellant was a
delinquent child on one count of complicity to aggravated vehicular homicide and
one count of complicity to aggravated vehicular assault, in violation of R.C.
2903.06(A) and R.C. 2903.08(A) respectively, felonies of the third and fourth
degrees if committed by an adult. Both offenses were filed as delinquency counts
pursuant to R.C. 2152.02(F). The Marion County Grand Jury had originally
returned an indictment on June 12, 2009, charging Appellant with the above two
counts and specifying that Appellant was age-eligible to be determined a serious
youthful offender. Appellant was born on December 1, 1990, making him just a
few weeks less then eighteen years of age at the time of the accident, and nineteen
-2- Case No. 9-10-64
years of age during most of the proceedings and at the time of the trial. The State
later dismissed the indictment and filed the complaint, which contained the same
charges but without the serious youthful offender specification.
{¶3} The complaint arose from an accident that occurred on November 6,
2008, when a group of teenagers/young adults were racing their cars on Holland
Road, an area known by locals as a good, secluded place to race cars. The driver
of one of the cars, Hali Gibson (“Hali”), was trying to pass Appellant’s car at a
high rate of speed when she lost control of her vehicle. Her 2000 silver Mitsubishi
Eclipse went off the road and hit a tree, killing her right front passenger, Brandon
Nelson (“Brandon”), and seriously injuring her back seat passenger, Montana
Roose (“Montana”).
{¶4} A three-day bench trial was held on February 23, 24, and 25, 2010.
The State presented the testimony of fourteen witnesses, including all of the
surviving youths who were riding in the vehicles; a neighbor who testified that she
saw and heard the cars racing; several officers who responded or investigated the
accident; and an accident reconstruction expert. Appellant testified on his own
behalf.
{¶5} The State’s witnesses testified that around 7:30 to 8:00 on the evening
of the accident, Appellant and his friend, Raymond Worthington (“Ray”), drove to
the BlueFusion, a bowling alley/game room that is a popular hangout. Appellant
-3- Case No. 9-10-64
drove Ray and himself there in his 1996 blue Eclipse. Shortly thereafter, Hali and
Brandon arrived and began to talk with Appellant and Ray. A little later, Kyle
Smith (“Kyle”) came with three of his friends, Cody Chapman (“Cody C.”), Cody
Kelly (“Cody K.), and Montana, and they joined the others. All eight were
interested in cars and the conversation was about cars and which cars were the
fastest. Kyle had recently acquired his 1994 white Honda Civic, which had
Lamborghini-type doors, blue neon undercarriage lights, and a new sound system.
The group then left the building and went to the parking lot to look at Kyle’s car.
The conversation about cars continued and there was speculation and teasing as to
whether Hali’s or Appellant’s Eclipse was the fastest. The teens then got into the
three cars they had come in and left the BlueFusion. Most of the State’s witnesses
testified that it was agreed or understood that they would be going to Holland
Road to race or “mess around” to see whose car was the fastest. As they were
leaving the parking lot, Kyle and Appellant peeled their tires and did a “burnout.”1
{¶6} A few minutes later, a gearshift cable came loose in Appellant’s car
and he and Ray pushed it to the side of the road. The other two vehicles also
pulled over and waited while Appellant repaired his shift, and then the group
1 Major Aaron Corwin of the Marion County Sheriff’s Department was doing private, plain clothes security duty in the parking lot and stopped Kyle and gave him a warning. He also tried to stop Appellant, but Appellant either didn’t notice or he ignored Major Corwin and kept going. Major Corwin put out a call to the sheriff’s department to be on the lookout for Appellant’s blue Eclipse. Shortly thereafter, at 8:55 p.m. when Appellant was on the side of the road repairing his car, Deputy Kevin Jolliff saw Appellant and gave him a ticket for reckless driving for the burnout in the parking lot.
-4- Case No. 9-10-64
headed out again together. At some point, they all pulled into MotorMart together
and Montana switched cars. Montana got into Hali’s car in the backseat to
equalize the weight between cars. Kyle testified that Montana wanted to ride in
Hali’s car because he thought it was faster. The group headed to Holland Road,
with Kyle driving his white Civic with Cody C. and Cody K. as passengers; Hali
driving her silver Eclipse, with Brandon and Montana as passengers; and
Appellant driving his blue Eclipse, with Ray as his passenger.
{¶7} Sometime around 9:30 p.m., they arrived at Holland Road. Kyle was
leading the group, followed by Hali, but then Appellant passed both vehicles.
After this first pass, they all turned around and headed back towards the
straightaway section of the road that is commonly used for racing.
{¶8} At this point, the three2 cars were driving single file, with Kyle in
front, and Hali and Appellant following. Kyle testified that he was traveling
around 60-70 miles per hour (“mph”), but that he wasn’t involved in the race
because his white Civic was not very fast and they were going to see which
Eclipse, Hali’s or Appellant’s, was the fastest. Kyle, and several of the State’s
other witnesses testified that Appellant passed both Hali and Kyle going
2 On the way to Holland Road, a fourth vehicle, a yellow Honda that they all knew to be a “really fast” car, joined the group. Cody C. recognized the car and told Kyle to flash his lights at it, which was a signal for racing. The yellow Honda joined the group on Holland Road but, before the accident, the yellow Honda “took off” and sped past all three of the other vehicles early on and went on its way. The driver of the yellow Honda was not involved in the trial.
-5- Case No. 9-10-64
approximately 100 mph, and then returned to the right-hand lane. Then, Hali also
passed Kyle going at least 100 mph, but she remained in the left lane trying to pass
Appellant. The State’s witnesses testified that the two Eclipses were both
traveling side-by-side at approximately 100 mph or more when Hali’s car bumped
or brushed Appellant’s car, transferring streaks of silver and blue paint onto each
other’s cars. Hali then lost control and went off the road, through a farm field,
and hit a large tree. The accident reconstruction expert testified that she was
traveling at 98 to 110 mph per hour at the time of the crash, and possibly even
faster. (Tr. at p. 713-714.)
{¶9} Appellant parked his car and he and Ray ran to the scene of the crash.
All three of the occupants were knocked unconscious at first, but then Hali came
to and Appellant and Ray helped to pull her out. Montana was in the backseat and
was moving and moaning, but he was stuck and they couldn’t extract him.
Brandon was not moving and it was evident that he was seriously injured. Kyle
also arrived there and dropped off Cody C. and Cody K. However, Kyle was
frightened and drove away, but he returned to the crash site shortly thereafter.
{¶10} After helping Hali out of the car, Appellant and Ray hurriedly left the
scene before the first responders arrived. Appellant claimed that he was scared
and that he also left because Ray was on probation and would have been in trouble
for being out past his curfew. Cody K. called 9-1-1 and the EMS and police
-6- Case No. 9-10-64
arrived. The jaws of life were used to extract Brandon and Montana and the three
injured teens were taken to the hospital. Brandon, who was fifteen years old, died
the following day. Montana had a severe head injury and it took him several
months to recover. Hali was released from the hospital the next day.
{¶11} Appellant’s testimony generally agreed with the State’s witnesses’
rendition of the events that occurred. However, he adamantly claimed that he was
not in any way involved in racing and had no knowledge that anyone was planning
to race. Appellant testified that he did not go to the parking lot with the other
seven, but that he remained in the BlueFusion and went to the bathroom. By the
time he went to the parking lot, he claimed that many of the others were already in
their respective cars and ready to leave. He testified that he never heard any
discussion about racing and that he never agreed to race. He did acknowledge that
he was being teased about his car being slower than Hali’s, but insisted that he
would never agree to race her because he already knew her car was faster because
it was newer and had a bigger engine. Appellant acknowledged that Hali and
Brandon were always challenging him to race, but he claimed he wouldn’t race
because he believed his car was “junk” compared to her car.
{¶12} Appellant also claimed that he never intended to go to Holland Road,
but that Hali had just said they were going to “ride around” when they left the
BlueFusion. After his car broke down, he spoke with his father, who told him to
-7- Case No. 9-10-64
come home. He testified that he was on his way home when they got a call that
everyone was going to meet at MotorMart and then “ride around.” Appellant
claims he wanted to go home but that Raymond talked him into going with the
group. After meeting at MotorMart, they followed the others and then turned onto
Holland Road.
{¶13} Appellant testified that he wasn’t sure what they were doing and he
was not familiar with Holland Road, but that he turned around when the other cars
did. Kyle and Hali were driving in front of Appellant and were driving slowly,
about 40 mph (Holland Road’s speed limit is 50 mph), so he put on his turn signal
and passed Hali and then Kyle, before returning to his lane in front of Kyle. He
testified that he saw Hali’s headlights behind him passing Kyle, and then her car
flew past him like he was sitting still. Appellant estimated he was traveling
between 50-60 mph when she passed him, traveling at more than 100 mph. He
believed that she was about five car lengths in front of him when he saw her car
fishtailing and she went off the road. He was not aware that their cars had made
contact until he got home and saw the paint.
{¶14} After hearing all of the testimony, the trial court took the matter
under advisement. On March 24, 2010, the trial court filed its decision,
adjudicating Appellant as a delinquent child for having committed complicity to
aggravated vehicular homicide and vehicular assault. After a dispositional
-8- Case No. 9-10-64
hearing, on July 23, 2010, the trial court filed its judgment entry giving Appellant
a suspended commitment to the Department of Youth Services and placing him on
probation. He further ordered that Appellant serve ninety days in the Multi-
County Correctional Center, with fifty-eight days suspended provided he complied
with all the orders and conditions imposed by the court, including community
service, attendance at Saving Teen Lives Classes, writing letters of apology,
payment of a fine, and payment of restitution to the victims’ families.3
{¶15} Appellant timely appealed but this Court dismissed the appeal on
September 29, 2010, for lack of jurisdiction. The judgment entry was not a final
appealable order because the issue of restitution remained to be determined and a
final amount was not specified. On November 29, 2010, the trial court ordered
Appellant to pay restitution of one-half of Brandon’s burial expenses in the
amount of $2,398.81. Appellant now brings this appeal, raising the following
three assignments of error for our review.
First Assignment of Error
Criminal liability cannot attach to an aider and abettor of a principal offender where the principal offender causes the death of one passenger and serious physical injury to another passenger if the passengers were willing participants in the criminal conduct.
3 Appellant was ordered to serve certain specific dates in 24-hour increments, including holidays (Thanksgiving, Christmas, Easter, Fourth of July, etc.), the anniversary date of the crash, Montana’s birthdates, Brandon’s birthdates, and what would have been Brandon’s graduation date.
-9- Case No. 9-10-64
Second Assignment of Error
The trial court erred in failing to grant alleged delinquent child, Hank Williams’ motion for acquittal pursuant to Rule 29 of the Ohio Rules of Criminal Procedure.
Third Assignment of Error
The judgment of the trial court finding alleged delinquent child Hank Williams guilty of complicity to aggravated vehicular homicide and complicity to vehicular assault are contrary to the manifest weight of the evidence.
{¶16} In order to facilitate our review, we shall address the assignments of
error out of order. In the second assignment of error, Appellant asserts that the
trial court erred by failing to grant his Crim.R. 29(A) motion for acquittal.
Specifically, Appellant alleges that the State failed to establish the elements to
prove that Appellant in any way aided or abetted Hali in causing the death of
Brandon and serious injury to Montana.
{¶17} Crim.R. 29(A) requires the court to enter a judgment of acquittal if
the evidence is insufficient to sustain a conviction of the offenses. In reviewing a
Crim.R. 29(A) motion for acquittal, 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.” State v. Williams, 74 Ohio St.3d 569, 1996-Ohio-91, 660 N.E.2d 724,
-10- Case No. 9-10-64
quoting State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two
of the syllabus.
{¶18} Pursuant to Juvenile Rule 29(E)(4) and R.C. 2151.35(A), a trial court
may find a juvenile delinquent when the evidence demonstrates beyond a
reasonable doubt that the child committed an act which would have constituted a
crime if committed by an adult. Therefore, the State was required to prove that
Appellant was guilty of complicity to aggravated vehicular homicide and
complicity to aggravated vehicular assault. The statute for Aggravated Vehicular
Homicide, R.C. 2903.06, states that:
(A) No person, while operating or participating in the operation of a motor vehicle * * * shall recklessly cause the death of another.
(B) Whoever violates this section is guilty of aggravated vehicular homicide, an aggravated felony of the third degree.
Similarly, R.C. 2903.08, Aggravated Vehicular Assault, provides that: “No person,
while operating or participating in the operation of a motor vehicle * * * shall
recklessly cause serious physical harm to another person.” 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.” R.C. 2901.22(C). Hali recklessly operated a
motor vehicle, which proximately caused the death of Brandon and serious
-11- Case No. 9-10-64
physical harm to Montana.4 Appellant was convicted of complicity for aiding and
abetting Hali in committing those offenses.
{¶19} The complicity statute, R.C. 2923.03(A) provides, in pertinent part:
No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following:
***
(2) Aid or abet another in committing the offense.
{¶20} To “aid and abet” is “‘[t]o assist or facilitate the commission of a
crime, or to promote its accomplishment.’” State v. Johnson, 93 Ohio St.3d 240,
243, 2001-Ohio-1336, 754 N.E.2d 796, quoting BLACK'S LAW DICTIONARY (7th
Ed.1999) 69. A conviction for complicity by aiding and abetting is shown by
evidence demonstrating that a defendant “supported, assisted, encouraged,
cooperated with, advised, or incited the principal in the commission of the crime,
and that the defendant shared the criminal intent of the principal.” Id. at the
syllabus. Evidence of aiding and abetting may be shown by either direct or
circumstantial evidence, and the sharing in criminal intent may be inferred from
presence, companionship, and conduct before and after the offense is committed.
State v. Lett, 160 Ohio App.3d 46, 2005-Ohio-1308, 825 N.E.2d 1158, ¶29.
4 Hali, who was eighteen at the time of the accident, pled guilty as an adult and was awaiting sentencing at the time of the trial.
-12- Case No. 9-10-64
{¶21} Hali, Montana, Kyle, Cody C., and Cody K. all testified that
everyone was going to Holland Road for the purpose of racing, to see whose car
was faster. Several testified that it was going to be Hali and Appellant who were
racing in order to see which Eclipse was the faster. Although Ray testified that he
and Appellant were only planning to “watch,” even he acknowledged that
everyone knew that they were going to Holland Road to race. For example, Cody
K. testified that:
Q. If everybody’s going there to race, they’re going from bridge to bridge?
A. Yes.
Q. Is that what happened? Was there ever a race?
Q. And who was the race between?
A. Hank and Hali.
(Tr. p. 329.) Appellant was the only person who claimed he had no idea that any
racing was planned or that any racing occurred that evening.
{¶22} And, contrary to Appellant’s testimony that he was only going 50-60
mph, all of the State’s witnesses testified that both Hali and Appellant were
traveling side-by-side at a high rate of speed, racing each other. Kyle testified that
he was traveling around 60-70 mph when Appellant and then Hali passed him,
-13- Case No. 9-10-64
each traveling about 100 mph. (Tr. p. 129-130.) Kyle testified that Hali was never
able to get in front of Appellant’s vehicle. (Tr. p. 199.) Cody C. testified that both
Hali and Appellant were traveling at about 115-120 when he saw their cars touch
and she went off the road. (Tr. p. 220.) He said that he saw their cars brush, just
hard enough for Hali to lose control. (Tr. p. 216.) Cody K. testified that he was in
Kyle’s car traveling about 60 mph when he saw Hank and then Hali pass him
going much faster and then, “[t]hey started racing and just a little bit past the white
house is where Hali lost control * * *.” (Tr. p. 287-88.)
{¶23} Montana, who was riding with Hali, testified that Kyle was “going
slow” (around 60 or 70), and that Appellant and Hali both passed them going
around 90 to 100 when the two cars “swiped” and then wrecked. (Tr. p. 351.) It
was his perception that the vehicles were racing, and he did not remember either
car trying to slow down before the crash. (Tr. p. 352-54.) Hali suffered some
memory loss concerning the accident, but she believed she was going 80 or 90
when she was trying to speed up and pass Appellant after he had passed her, and
that they were traveling at the same speed. (Tr. p. 423.) She testified that she was
next to Appellant when their cars bumped and she went off the road. (Tr. p. 452.)
{¶24} In addition to the participants’ testimony, Deborah Russell, a resident
on Holland Road, testified to hearing the “racers” revving their engines, and
seeing them turn around (several used her driveway) and race at a high rate of
-14- Case No. 9-10-64
speed on Holland Road. She has lived on Holland Road for many years, and the
action of the vehicles on the night of November 6th was consistent with the racing
that she had become accustomed to seeing and hearing from her home.
{¶25} Contrary to Appellant’s claim that he was merely “at the wrong place
at the wrong time,” there was ample evidence in the record to show that Appellant
was an active co-participant in racing with Hali. Viewing the evidence in a light
most favorable to the prosecution, we find that there was sufficient evidence of all
of the required elements of the charges to support the trial court’s denial of
Appellant’s motion for acquittal. Appellant’s second assignment of error is
overruled.
{¶26} In his third assignment of error, Appellant alleges that the decision
was against the manifest weight of the evidence because the State’s witnesses
were not credible and admitted that they had lied to authorities during the
investigation. Furthermore, he claims that none of the witnesses ever testified that
Hank and Hali were going to race or that Appellant in any way aided and abetted
Hali.
{¶27} When determining whether a trial court's delinquency adjudication is
against the manifest weight of the evidence, this Court employs the same standard
of review applicable to criminal convictions claimed to be against the manifest
weight of the evidence. See In re Clark, 4th Dist. No. 04CA588, 2004-Ohio-3851,
-15- Case No. 9-10-64
¶15. A challenge to a conviction based on the manifest weight of the evidence
concerns “the inclination of the greater amount of credible evidence, offered in a
trial to support one side of the issue rather than the other. It indicates clearly to the
jury that the party having the burden of proof will be entitled to their verdict, if, on
weighing the evidence in their minds, they shall find the greater amount of
credible evidence sustains the issue which is to be established before them.
Weight is not a question of mathematics, but depends on its effect in inducing
belief.” (Emphasis sic.) State v. Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d
541. Only if we conclude that the trier of fact clearly lost its way in resolving
conflicts in evidence and created a manifest miscarriage of justice will we reverse
the conviction and order a new trial. Id.
{¶28} Although the appellate court acts as a “thirteenth juror” in reviewing
all of the evidence, it still must give due deference to the findings made by the
fact-finder. State v. Thompson (1998), 127 Ohio App.3d 511, 529, 713 N.E.2d
456.
The fact-finder, being the jury, occupies a superior position in determining credibility. The fact-finder can hear and see as well as observe the body language, evaluate voice inflections, observe hand gestures, perceive the interplay between the witness and the examiner, and watch the witness' reaction to exhibits and the like. Determining credibility from a sterile transcript is a Herculean endeavor. A reviewing court must, therefore, accord due deference to the credibility determinations made by the fact- finder.
-16- Case No. 9-10-64
Id.
{¶29} As discussed above, all of the State’s witnesses who were present
that evening, with the exception of one, testified that it was the group’s intention
to go to Holland Road to race and that Appellant and Hali were racing each other,
side-by-side at a high rate of speed, when the accident occurred. Appellant’s
friend and passenger, Ray, was the only person (besides Appellant himself) who
testified that Appellant was traveling at “only” 60-65 mph when Hali passed them
like they were “sitting still.” (Tr. p. 499.) However, the State declared Ray to be a
hostile witness and used his June 10, 2009 grand jury testimony to impeach him.
At that time, Ray had testified that Appellant was participating in a race and he
was traveling in excess of 100 miles an hour. (Tr. p. 507-510.) The State read
part of Ray’s grand jury testimony pertaining to when he was riding with
Appellant:5
Answer: Yeah, see when we come around the corner, [Appellant] chomped it down and he said he was getting in front of all them, and he chomped it down, just kept it down until we got past and when we looked back, you could see the cars and they were way back there. * * *
Question: When you heard – when you say he “chomped it down,” how fast do you think he was going?
5 Because Ray could neither read nor write, the court took a recess while the bailiff read Ray’s grand jury testimony to him. The State then proceeded to question him concerning certain statements that he had made to the grand jury that were inconsistent with his trial testimony. Ray claimed he told a different story before because he was “intimidated” and felt he was being “bullied around.” (Tr. at p. 538.)
-17- Case No. 9-10-64
Answer: I’d say we was doing about 110 that night. * * *
(Tr. p. 515-516, 537.) The grand jury testimony also included Ray’s testimony
that:
[Appellant] kept saying he wasn’t going to race, but then some – somebody else said that they would race [Hali] and we all went out there, and [Appellant] told me that we was going out there to watch, which I knew we wasn’t going out there only to watch.
(Emphasis added.) (Tr. p. 525.)
{¶30} The trial court found that the intention to proceed to Holland Road to
race was corroborated by the testimony of all of the other vehicle occupants “with
only Hank Williams indicating he had no knowledge or intention to race.” (J.E.,
p. 3.) The evidence overwhelmingly indicated that Appellant was racing Hali
when their vehicles touched or bumped, and Hali went off the road and crashed.
{¶31} Appellant asserts that the State’s witnesses were not credible because
they were “admitted liars” and all had changed their stories. Therefore, their
testimony should not be given any weight or credibility.
{¶32} When the accident first occurred, Kyle and Cody C. and Cody K.
originally told the officer and the 9-1-1 dispatcher that they had “just happened
upon” the scene of the accident and denied that they had witnessed the crash.
However, the boys testified that they only said this because they were scared and
upset at the time, and were afraid of getting into trouble. When they were
-18- Case No. 9-10-64
questioned by the state highway patrol a few days later, knowing that Brandon had
died and the seriousness of the situation, they testified that they told the complete
truth about what had happened, starting from meeting at the BlueFusion and
ending on Holland Road. After the initial misrepresentation in the immediate
aftermath of the accident, their stories remained consistent and believable.
{¶33} Hali testified that she provided a written statement when she was in
the hospital but did not remember what she had told them. She acknowledged that
if that statement claimed that she was only going 60 mph at the time of the crash,
then it was not true. Montana was hospitalized with brain injuries and never spoke
to the investigators.
{¶34} Upon our review of the entire record, we do not find that the trier of
fact lost its way and created a manifest miscarriage of justice, nor does the
evidence weigh heavily against conviction. Appellant’s third assignment of error
claiming that the decision was against the manifest weight of the evidence is
{¶35} Returning to the first assignment of error, Appellant claims he cannot
be held responsible for complicity because he had never agreed to race and he had
no knowledge of the principal offender’s (Hali’s) intention to race. Furthermore,
even if Appellant did aid and abet the principal offender, he claims that no
criminal liability can attach to him because the victims were voluntary and willing
-19- Case No. 9-10-64
participants in the conduct. Appellant cites to a 1979 Cuyahoga County trial court
opinion in support of his claims. See State v. Uhler (1979), 61 Ohio Misc. 37, 402
N.E.2d 556.
{¶36} First, we find that it is irrelevant as to whether or not Appellant ever
“agreed” to race beforehand; the evidence clearly supports the finding that racing
had been discussed and, at some point, he made the decision to race and was
actively racing Hali at the time of the accident. See In re Clark, 2004-Ohio-3851
at ¶43 (not necessary to show an explicit agreement to race or a violation of the
street racing statute to support a complicity to aggravated vehicular homicide
conviction.) Furthermore, Appellant’s claim that he had no knowledge of Hali’s
intention to race was not supported by the testimony of the other witnesses.
{¶37} We also find Appellant’s reliance on State v. Uhler is misplaced.
This 1979 lower court case, which holds no precedential authority for this Court,
is factually distinguishable from the case before this court; it has not been
followed by any other Ohio jurisdictions; and, the case does not accurately reflect
the current state of the law applicable to this case. The trial court in Uhler held
that the survivor of a drag race cannot be charged with aggravated vehicular
homicide for the death of the other voluntary participant, absent any contact
between the vehicles. 61 Ohio Misc. at 41. In Uhler, the victim and defendant
were each driving their own vehicles home, after spending the evening drinking
-20- Case No. 9-10-64
together, when they impulsively agreed to a drag race. Both vehicles ended up
going off the road (without having had any contact with each other), but the
victim’s car hit a tree, resulting in his death. The defendant was charged with
aggravated vehicular homicide, not complicity.
{¶38} We find that the legal reasoning in a recent appellate case, with facts
almost identical to those in this case, is applicable. The Fourth District Court of
Appeals held that the evidence was sufficient to find that the defendant minor
driver was delinquent for committing complicity to aggravated vehicular
homicide, arising out of the death of a passenger in the vehicle that he was racing.
See In re Clark, supra, 2004-Ohio-3851. In Clark, the defendant and the driver of
the other vehicle in which the victim was riding, were actively participating with
each other in driving their vehicles at excessive speed (over 100 mph). Id. at ¶43.
When the driver of the other vehicle attempted to pass the defendant, he lost
control of the vehicle, resulting in the death of his passenger. Id. at ¶5. The
Fourth District Court of Appeals found that each driver should be charged with
knowledge that such conduct has a high likelihood of resulting in serious injury or
death, and that such conduct exhibits a heedless indifference to the consequences,
showing that both drivers perversely disregarded a known risk. Id. at ¶43; see,
also, R.C. 2901.22(C). The court of appeals upheld the trial court’s finding that
the defendant “operated his vehicle ‘in a criminally reckless manner * * * and in
-21- Case No. 9-10-64
so doing supported, assisted, encouraged[d], cooperated, and, aided and abetted
[the other driver] in reckless operation of a vehicle that resulted in the death of
[the victim].’” Id. at ¶6.
{¶39} Similarly, the Tenth District Court of Appeals found that there was
sufficient evidence to support a finding that the deaths of two victims were the
proximate result of the defendant’s actions of participating in a street race:
The direct, normal, and reasonably foreseeable consequences of a drag race is that contact can occur between two vehicles, which contact at such a high rate of speed can cause one of the drivers to lose control of their vehicle. It is also reasonable to conclude that there is a high likelihood that when a driver loses control of a vehicle while traveling 80 to 100 MPH, the occupants in that vehicle, as well as others in the immediate vicinity, may suffer injuries severe enough to cause death.
State v. Buterbaugh (Sept. 16, 1999), 10th Dist. No. 98AP-1093, 1999 WL
717268, 7-8.
{¶40} The facts in the Clark and Buterbaugh cases are very similar to the
facts and circumstances in this case, and the findings are applicable here.
Furthermore, there is nothing in the statutes for complicity, or for aggravated
vehicular homicide and assault, that exempts a person from criminal liability for
the death of another willing participant. As was the case in Clark, criminal
liability can be imposed for death or injury to passengers in the other driver’s
vehicle.
-22- Case No. 9-10-64
{¶41} The Ohio General Assembly has imposed criminal liability in certain
situations where an underlying criminal offense – in this case, the reckless
operation of a motor vehicle – is the proximate cause of the death of a victim,
regardless of whether the victim was an intended victim, an innocent bystander, or
one of the wrongdoers themselves. See, e.g., R.C. 2903.02(b) (felony murder);
R.C. 2903.04 (involuntary manslaughter); and R.C. 2903.06 (aggravated vehicular
homicide).6 Based upon the proximate cause theory of criminal liability in these
types of homicides, the victim’s identity or status as a comparative wrongdoer
does not matter as long as the victim’s death proximately results from the
commission of the underlying offense. See, e.g., State v. Filchock, 166 Ohio
App.3d 611, 2006-Ohio-2242, 852 N.E.2d 759 (“the alleged contributory
negligence of a victim may not be used as a defense in a subsequent aggravated
vehicular homicide prosecution unless it is the sole proximate cause of death”);
State v. Dixon, 2nd Dist. No. 18582, 2002-Ohio-541 (defendant could be convicted
of felony murder for death of his accomplice even though his accomplice was a
willing participant in the commission of an armed robbery).
{¶42} Hali was criminally responsible because her reckless operation of her
motor vehicle proximately resulted in the death and injuries of the victims.
6 In each of these offenses, criminal liability is based upon the offender committing an underlying criminal offense (a violent F1 or F2 for felony murder; any felony for involuntary manslaughter; and certain traffic offenses for aggravated vehicular homicide) that proximately results in the death of another person.
-23- Case No. 9-10-64
Appellant is criminally responsible because he aided and abetted Hali in her
criminal behavior by recklessly participating in a race with her, at a high rate of
speed, on a narrow country road. Appellant’s first assignment of error is
{¶43} Having found no error prejudicial to the Appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
ROGERS, P.J. and PRESTON, J., concur.
/jlr
-24-