State v. Beard

2024 Ohio 161

• Court: Ohio Court of Appeals
• Decided: January 18, 2024
• Docket: 112547
• Status: Published

Opinion

[Cite as State v. Beard, 2024-Ohio-161.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff- Appellee, : No. 112547 v. :

JASON D. BEARD, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: January 18, 2024

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-21-657295-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Gregory M. Paul, Assistant Prosecuting Attorney, for appellee.

Friedman, Gilbert & Gerhardstein and Marcus Sidoti, for appellant.

MICHELLE J. SHEEHAN, J.:

Defendant-appellant Jason Beard appeals his conviction for

aggravated vehicular homicide. Because the trial court properly instructed the jury,

Beard’s conviction was based on sufficient evidence and the conviction was not against the manifest weight of the evidence, the judgment of the trial court is

affirmed.

PROCEDURAL HISTORY AND RELEVANT FACTS

On February 24, 2021, Beard was indicted for two counts of

aggravated vehicular homicide for the death of Daniel Ripepi. The first count

charged a violation of R.C. 2903.06(A)(2)(a) alleging Beard operated a vehicle

recklessly causing Ripepi’s death. The second count charged a violation of R.C.

2903.06(A)(2)(b), alleging Beard operated a vehicle negligently causing Ripepi’s

death.

After a jury trial, Beard was convicted of aggravated vehicular homicide

in violation of R.C. 2903.06(A)(2) for driving recklessly and causing Ripepi’s death.1

The trial court sentenced Beard to community-control sanctions for a period of three

years and suspended Beard’s driver’s license for a period of five years.

Beard’s conviction resulted from his actions driving a dump truck on

September 24, 2020, at a construction site. On that date, Beard was driving for

Midland Concrete & Sand at a construction site adjacent to I-480. Beard delivered

a load of material to the site, emptied the truck, and proceeded to drive away from

the site to enter the highway. However, the dump bed of the truck was still raised,

and before Beard entered the highway, the bed hit an overhead sign causing the sign

1 At the close of the state’s case, the trial court granted Beard’s motion to dismiss the

second count of the indictment. and the truss supporting it to fall. The sign and a portion of the truss hit a pick-up

truck on the highway, and the driver of the truck, Ripepi, died as a result of being hit

by a portion of the sign and truss that entered the cab of the truck through the

windshield.

Testimony at trial established that Beard drove to the construction site

at 8:30 a.m. and that he was running late. Beard dumped the load from the bed of

his truck in the wrong location. Johnathan Zak, the construction supervisor at the

site, testified that when dumping the load from the truck, Beard did not use a

“spotter.” He testified that a spotter is used to assist a driver to ensure that no

overhead obstructions would be hit. Zak further said it was necessary to use a

spotter that day because there was a bridge, signs, and overhead obstructions at the

construction site.

After dumping the load from his truck, Beard pulled away with the bed

of his truck in an upright position. Witnesses testified they saw Beard’s truck driving

onto I-480 with the bed of the truck fully raised and that the bed hit an overhead

sign. One witness testified that he saw that the driver had headphones on and that

because the witness knew the truck was going to hit the sign, the witness started

honking his horn at the dump truck.

Troopers from the Ohio State Highway patrol arrived at the scene of

the incident to investigate. Trooper Elliott Rawson testified that Beard drove the

dump truck from the construction zone onto the access road but he believed that

Beard never entered the main lanes of the highway. Trooper Tim Gatesman examined the dump truck shortly after the crash and found that the truck’s dump

bed and all warning lights were working properly. Trooper Gatesman further

testified that the height of the fully opened bed on Beard’s truck was 25 and ½ feet

and that the maximum height allowed on the highway would be 13 and ½ feet.

Thomas Brown, the lead technician for Midland Concrete testified that

it was never acceptable to drive a dump truck with the bed raised. In his testimony,

Zak stated that if a driver drove with the bed of the truck raised, there would also be

a risk of the truck flipping. Richard Cerny, an accident investigator hired by Beard,

testified that Beard should have had a spotter and was careless in driving away

before the bed was lowered. There was also testimony at trial that there would have

been a light on in the truck that indicated the bed was raised. Additionally, Zach

Bergen, who was a vice president at Midland Concrete & Sand for 22 years testified

that the dangers associated with driving with the bed of a dump truck raised were

communicated to all drivers.

After the accident, Beard made a statement to the Ohio State Highway

Patrol. In the statement, Beard said that he believed he lowered the bed before he

drove toward the highway, he knew the bed had not completely lowered, and he

believed it would take about four of five seconds for the bed to be completely

lowered. Trooper Jason Turner testified that lowering the bed of that truck would

take about 45 seconds. Trooper Turner also estimated that the truck Beard was

driving was travelling at about 20 m.p.h. when it hit the truss. Beard’s accident

investigator estimated that Beard was travelling between 5 and 22 m.p.h. LAW AND ARGUMENT

Beard raises three assignments of error, which read:

I. The trial court abused its discretion and appellant was deprived of a fair trial and due process of law as guaranteed by the Sixth Amendment to the U.S. Constitution and by Section 10, Article I of the Ohio Constitution due to the trial court not giving a full and accurate jury instruction on recklessness and negligence.

II. The trial court erred when it denied appellant’s motion for acquittal under Crim.R. 29 because the state failed to present sufficient evidence to establish beyond a reasonable doubt the elements necessary to support the conviction.

III. Appellant’s conviction is against the manifest weight of the evidence.

Jury Instructions

Within his first assignment of error, Beard argues that the trial court

was required to give additional instructions to the jury on the difference between

recklessness and negligence because the key issue at trial was whether Beard acted

recklessly. The state argues that the court’s instruction to the jury accurately stated

the law and that Beard’s requested instructions would be redundant to the

instructions given by the trial court.

Prior to the court instructing the jury, Beard moved to supplement

the Ohio Jury Instructions on recklessness with language derived from State v. Peck,

172 Ohio App.3d 25, 2007-Ohio-2730, 872 N.E.2d 1263 (10th Dist.).2 In Peck, a tow

2 The specific language requested by Beard’s counsel was not made part of the record.

However, the record is sufficient to determine that the language requested was based on truck driver used a “snatch block,” a large pulley with an attached hook, that was

insufficient to pull the weight of the tractor-trailer the driver was attempting to

move. Id. at ¶ 4. As a result, the snatch block broke and catapulted into a passing

car, killing the driver of the car. Id. Peck was convicted of reckless homicide in

violation of R.C. 2903.041. Id. at ¶ 6.

On appeal, the Tenth District Court of Appeals reversed the

conviction, finding the evidence at trial failed to prove the driver knew the risk

associated with using the snatch block. Id. at ¶ 22-23. The court of appeals

elaborated on the difference between reckless and negligent behavior as follows:

A mere failure to perceive or avoid a risk, because of a lack of due care, does not constitute reckless conduct. Columbus v. Akins (Sep. 27, 1984), Franklin App. No. 83AP-977, 1984 Ohio App. LEXIS 10935. 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 constitute recklessness, one must act with full knowledge of the existing circumstances”). Id. at ¶ 12.

paragraph 12 of Peck, 2007-Ohio-2730, which was specifically cited by Beard’s counsel. See State v. Griffin, 141 Ohio St.3d 392, 2014-Ohio-4767, 24 N.E.3d 1147, ¶ 12 (“We are somewhat handicapped in that no alternative jury instructions were presented for our review. Griffin’s reference to Boyle [v. United States, 556 U.S. 938, 129 S.Ct. 2237, 173 L.Ed.2d 1265 (2009),] and [United States v.] Turkette, 452 U.S. 576 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981), however, is sufficient for us to understand the instructions that he sought.”). The trial court declined to use Beard’s requested language and

instructed the jury with instructions in pertinent part as follows:

Before you can find the defendant guilty of aggravated vehicular homicide, you must find beyond a reasonable doubt that on or about the 24th day of September, 2020, in Cuyahoga County, Ohio, the defendant did, while operating or participating in the operation of a motor vehicle, cause the death of Daniel C. Ripepi recklessly.

***

A person acts recklessly when with heedless indifference to the consequences the person disregards a substantial or unjustifiable risk that the person’s conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when with heedless indifference to the consequences the person disregards a substantial and justifiable risk that such circumstances are likely to exist.

See 2 Ohio Jury Instructions, CR Section 417.17 (2023).

The state argues that the jury instructions were correct statements of

the law and sufficient for the jury to determine whether Beard acted recklessly.

Further, the state argues that any of Beard’s requested instructions would be

redundant to the definition of recklessness in the Ohio Jury Instructions.

“When reviewing a trial court’s jury instructions, the proper standard

of review for an appellate court is whether the trial court’s refusal to give a requested

instruction constituted an abuse of discretion under the facts and circumstances of

the case.” State v. Sims, 8th Dist. Cuyahoga No. 85608, 2005-Ohio-5846, ¶ 12,

citing State v. Wolons, 44 Ohio St.3d 64, 68, 541 N.E.2d 443 (1989). A court abuses

its discretion when it “exercises its judgment in an unwarranted way regarding a

matter over which has discretionary authority.” State v. McFarland, 8th Dist. Cuyahoga No. 111390, 2022-Ohio-4638, ¶ 20, citing Johnson v. Abdullah, 166 Ohio

St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463, ¶ 35. “In other words, ‘[a] court abuses

its discretion when a legal rule entrusts a decision to a judge’s discretion and the

judge’s exercise of that discretion is outside of the legally permissible range of

choices.’” Id. at ¶ 20, quoting State v. Hackett, 164 Ohio St.3d 74, 2020-Ohio-6699,

172 N.E.3d 75, ¶ 19.

In this case, the trial court instructed the jury as to the definition of

recklessness pursuant to the Ohio Jury Instructions. Beard does not complain that

the instructions per se are wrong, but rather that they are incomplete based on the

circumstances of this case. Beard argues further explanation of recklessness and

negligence was necessary in this case because of the similarity of his case to Peck,

172 Ohio App.3d 25, 2007-Ohio-2730, 872 N.E.2d 1263. We do not find the

instructions incomplete or insufficient statements of the law that would not allow

the jury to determine if Beard’s actions were reckless or not. Unlike the evidence

presented in Peck, in this case, there was evidence from several witnesses about the

known risks of driving with a dump truck’s bed raised, including Beard’s own

statements that allowed an inference that he knew to lower the bed before he drove

toward the highway. Further, the trial court is not required to give jury instructions

that are redundant or duplicative. Griffin, 141 Ohio St.3d 392, 2014-Ohio-4767, 24

N.E.3d 1147, at ¶ 5. Accordingly, we cannot say the trial court abused its discretion

by declining to instruct the jury further as to the definition of recklessness.

The first assignment of error is overruled. Sufficiency and Manifest Weight of the Evidence

Beard argues within the second and third assignments of error that

his conviction is based upon insufficient evidence, and if not, then it is against the

manifest weight of the evidence. In reviewing a challenge to the sufficiency of

evidence, we determine whether the evidence, if believed, would convince the

average juror of the defendant’s guilt beyond a reasonable doubt. State v. Jenks, 61

Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. “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. Our review is not to determine

“whether the state’s evidence is to be believed, but whether, if believed, the evidence

against a defendant would support a conviction.” State v. Thompkins, 78 Ohio St.3d

380, 390, 678 N.E.2d 541 (1997).

A manifest weight challenge to a conviction asserts that the state did

not meet its burden of persuasion in obtaining a conviction. Thompkins at 390. A

manifest weight challenge raises factual issues:

“The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.” Id. at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st

Dist.1983); State v. Townsend, 8th Dist. Cuyahoga No. 107177, 2019-Ohio-544,

¶ 20.

Beard was convicted for violating R.C. 2903.06(A)(2). The state was

required to produce evidence at trial that while Beard recklessly operated the dump

truck, he caused the death of another. Beard argues that the only dispute at trial was

whether he acted recklessly or negligently. The definition of “recklessly” and

“negligently” are provided for in R.C. 2901.22, which reads in pertinent part:

(C) A person acts recklessly when with heedless indifference to the consequences the person disregards a substantial or unjustifiable risk that the person’s conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when with heedless indifference to the consequences the person disregards a substantial and justifiable risk that such circumstances are likely to exist.

(D) A person acts negligently when, because of a substantial lapse from due care, the person fails to perceive or avoid a risk that the person’s conduct may cause a certain result or may be of a certain nature. A person is negligent with respect to circumstances when, because of a substantial lapse from due care, the person fails to perceive or avoid a risk that such circumstances may exist.

Beard argues that in the majority of aggravated vehicular homicides,

the evidence of recklessness is straightforward because the defendants are either

speeding, under the influence of drugs or alcohol, or a combination thereof, but that

none of those factors were evidenced in this case to allow a finding of recklessness.

Beard asserts these facts are more commonly associated with negligence and do not

amount to evidence that he perceived the risk his actions could cause. In contrast, the state presented sufficient evidence that Beard acted recklessly in disregard of a

known risk by driving toward the highway knowing the bed of the dump truck was

not fully lowered, in spite of knowing that practice was not safe. The evidence was

sufficient to allow the finder of fact to find Beard acted recklessly.

In his third assignment of error, Beard iterates his arguments raised

in his second assignment of error to argue his conviction was against the manifest

weight of the evidence, highlighting the fact that there was evidence that Beard

believed the bed of the dump truck was lowering when he drove towards the

highway. The state presented evidence that Beard was aware of the risk of driving

the dump truck with the bed raised. Further, there was evidence that the dump truck

and its warning lights were fully functional, Beard was running late that day, he did

not use a spotter when dumping the load, and he had headphones on when he was

driving towards the highway where the bed of his truck struck an overhead sign.

After review of the record, we do find that the jury lost its way, created a manifest

injustice by entering a guilty verdict, or that this is the exceptional case in which the

evidence weighs heavily against conviction. Thompkins, 78 Ohio St.3d at 387, 678

N.E.2d 541.

The second and third assignments of error are overruled.

CONCLUSION

We affirm Beard’s conviction for aggravated vehicular homicide. In

this case, the trial court properly instructed the jury as to the law of recklessness and

did not abuse its discretion by not instructing the jury further as to those definitions. Beard’s conviction was based on sufficient evidence, and the conviction was not

against the manifest weight of the evidence where the state presented evidence that

Beard acted recklessly in disregard of a known risk by driving toward the highway

knowing the bed of the dump truck was not fully lowered, in spite of knowing that

practice to be unsafe. Further, there was evidence that the dump truck and its

warnings lights were functional, Beard was running late and did not use a spotter,

and he had headphones on when driving towards the highway where the bed of his

truck struck an overhead sign.

Judgment affirmed.

It is ordered that appellee recover of appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

__________________________________ MICHELLE J. SHEEHAN, JUDGE

ANITA LASTER MAYS, P.J., and SEAN C. GALLAGHER, J., CONCUR