State v. Habib

2023 Ohio 1338

• Court: Ohio Court of Appeals
• Decided: April 24, 2023
• Docket: 22 CAA 01 0007
• Status: Published

Opinion

[Cite as State v. Habib, 2023-Ohio-1338.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : Hon. Andrew J. King, J. -vs- : : GEORGE M.S. HABIB : Case No. 22 CAA 01 0007 : Defendant-Appellee : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 21 CR I 02 0101

JUDGMENT: Affirmed

DATE OF JUDGMENT: April 24, 2023

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOEL C. WALKER WILLIAM T. CRAMER 145 N. Union Street 470 Olde Worthington Road 3rd Floor Suite 200 Delaware, OH 43015 Westerville, OH 43082 Delaware County, Case No. 22 CAA 01 0007 2

King, J.

{¶ 1} Defendant-Appellant George M.S. Habib appeals the January 3, 2022

judgment of conviction and sentence of the Delaware County Court of Common Pleas.

Plaintiff-Appellee is the state of Ohio.

Facts and Procedural History

{¶ 2} On August 3, 2020, Appellant and six friends went to Alum Creek with the

plan of renting a ski boat to go tubing on the lake. The friends included Amjad Krayem,

Miguel Petrarca, Yzen Al-Marrawi, Mohamed "Malak" Soumakieh, Joseph Youseef, and

Omar Mahli. Transcript of Trial (T.) 491-497.

{¶ 3} Malak rented the boat, and he and Yzen completed the mandatory boating

exam to obtain a one-day license. T. 498-499, 554, 599. No other member of the group

was licensed to operate a watercraft.

{¶ 4} A marina employee directed the men to a boat - a 1996 Bayliner Capri - and

Malak drove the boat out of the marina. Once out on the lake, Amjad and Yzen got on the

tube first with Malak driving the boat. T. 500-502. While towing Amjad and Yzen, Malak

made slight turns left and right, and ensured the tube was behind the boat again before

making those turns. T. 508-509.

{¶ 5} After several minutes, Amjad and Yzen got back in the boat and Appellant

and Malak took a turn on the tube while Amjad drove. T. 620. Amjad drove the boat in the

same manner as Malak had. T. 621.

{¶ 6} Omar and Joseph were the last to take a turn on the tube. T. 511, 624.

Appellant wanted to drive. T. 511-512. While hesitant to do so, Malak let Appellant drive.

T. 512. Delaware County, Case No. 22 CAA 01 0007 3

{¶ 7} Meanwhile, two fishermen, Joseph Haig and Alex Kettler had been watching

the men tubing. The group caught their attention because while Appellant was at the

wheel, they watched him stop the boat, bringing the tube parallel to the boat, then

accelerate quickly snapping the tube around to the back of the boat, and then make half

circle turns back toward the tube. T. 456-459, 695-697. Haig thought the maneuvers

looked risky. T. 459.

{¶ 8} Appellant towed Omar and Joseph for a couple minutes making some sharp

turns. He then swung the boat to the right before quickly executing a sharp left turn, driving

directly at Omar and Joseph. T. 515-16, 630, 800-801. Seconds later the boat struck both

Omar and Joseph, sucking them under the boat, where they were both struck by the

propeller. T. 515-516, 630.

{¶ 9} Malak turned off the boat motor and called 911. T.521, 803-804. Appellant

and Yzen jumped into the water to help Omar and Joseph. T. 521. Yzen and Omar swam

back to the boat. Omar sustained serious injury from the boat's propeller. T. 524.

{¶ 10} Haig and Kettler witnessed the collision and went to the aid of Joseph. T.

460-464. They pulled both Joseph and Appellant into their boat, noting Joseph was

gravely injured and bleeding profusely. T. 463. Appellant was hysterical, "freaked out"

and asked "if he had killed him." T. 465. Haig called the Department of Natural Resources

and transported Appellant and Joseph to shore. Joseph was transported by ambulance

to Grant Medical Center where he died as a result of his injuries. T. 902.

{¶ 11} Berlin Township Fire Department Captain Malachi Swanson responded to

the scene. He drove the department rescue boat out to the stranded rental boat still

occupied by Omar, Yzen, Malak, Miguel, and Amjad. Swanson first transported Omar to

shore for medical attention, then returned to the rental boat. Swanson attempted to drive Delaware County, Case No. 22 CAA 01 0007 4

the rental boat to shore, but the wheel was locked. He therefore towed the boat to the

marina. T. 326-330.

{¶ 12} Ohio Department of Natural Resources Lieutenant Dawn Roberts took

custody of the rental boat and transported it to a secure facility controlled by the ODNR.

T. 391, 404. She took photos of the boat, the stern drive, and the propeller. T. 394. During

the processing of the boat, ODNR investigators removed entangled fabric from the

propeller which proved to be the swim trunks Joseph and Omar had worn, plus a strap

from one of their life jackets. T. 408. ODNR investigator Heidi Hayes then investigated

the wheel and stern drive and found both operated as intended. T. 932-933.

{¶ 13} As a result of these events, Appellant was charged with one count each of

aggravated vehicular homicide, aggravated vehicular assault, reckless or unsafe

operation of a vessel.

{¶ 14} Appellant pled not guilty to the charges and elected to proceed to a jury trial.

Appellant blamed mechanical malfunction for the accident. Specifically, he alleged the

steering on the boat malfunctioned. T. 259-260.

{¶ 15} At trial, Dr. Kort Gronbach testified on behalf of the state. Gronbach testified

that the day before this incident, he and his family had rented the same ski boat that

Appellant and his friends had rented the following day. He further testified his family had

the boat for the entire day, used it for tubing, and experienced no issues with the boat's

steering. T. 277-280.

{¶ 16} Omar also testified for the state. He testified that August 3, 2020 was the

first time he had been boating or tubing. He had met Appellant approximately two months

prior. T. 849, 852. Omar characterized Malak as a "safe driver" of the boat who "didn't get Delaware County, Case No. 22 CAA 01 0007 5

anywhere near the tubers." T. 860-861. Omar recalled Malak mentioning he felt the boat's

steering was "weird." T. 861.

{¶ 17} Omar testified Amjad drove while Appellant and Malak took a turn on the

tube. He described Amjad's driving as "rougher," "it was faster and he was like

manipulating the steering much more." T. 862. Omar and Joseph then got on the tube.

Before they did, Omar saw Amjad shorten the tow rope on the tube putting the tube closer

to the boat. T. 864. Once the boat started "[i]mmediately they started going crazy * * *

driving very rough * * * just like trying to do something. They just really driving really

quickly and in all directions, so something was, was going to go wrong." T. 867. "They

were doing stunts and weaves with the boat and we were like very hardly able to hang

onto the tube." T. 869. On one pass the boat came very close to them as Appellant turned

around. T. 871.

{¶ 18} Both Omar and Joseph were concerned. Joseph was screaming and telling

them to stop. Then suddenly the tube was no longer moving and the boat was coming

straight at them very fast. T. 868-869. The men never let go of the tube before being

struck by the boat, pulled underneath, and struck by the propeller. Omar was struck by

the propeller on his arms, legs and body. His swim trunks and part of his life vest were

torn from his body. T. 872-873. Once he and Joseph surfaced, they were both screaming

in pain and for help. T. 874-875. Eventually Omar and Joseph were removed from the

lake and transported to a hospital. T. 876-877.

{¶ 19} Henry Lipian also testified on behalf of the state. Lipian is a senior crash

reconstructionist with Introtech Crash Reconstruction and Forensics. Introtech

investigates all types of transportation accidents including maritime accidents. T. 945-

946. Lipian spent 31 years in the United States Coast Guard where he was a maritime Delaware County, Case No. 22 CAA 01 0007 6

engineer and was involved in, among other things, boating accident investigation

involving a wide array of watercraft. He spent 10 years on active duty and continued as a

reserve guardsmen. Lipian also served as an Ohio State Highway Patrol Trooper as well

as an officer at two other police departments. Lipian had investigated thousands of

maritime accidents involving a wide range of watercraft. He had previously testified as an

expert in boating accident reconstruction on at least 10 occasions. T. 947-954. Because

he had performed maintenance and repair on similar boats on many occasions, Lipian

was also very familiar with the rack and pinion steering system common in smaller

recreational boats like the Bayliner he was asked to examine in this case. T. 950-952.

{¶ 20} Lipian examined the steering system of the Bayliner from the wheel to the

all the way to the aft stern drive. He found three of the four bolts holding the Teleflex rack

and pinon steering system in place were loose. Lipian opined that while ideally the bolts

should be tight, the loose bolts would have no effect on steering the boat. T. 970-971. He

stated that if the wheel were locked to the left or the right, the stern drive would also be

in the same position. However, when the boat was removed from the water, the sterndrive

was centered. Ultimately, Lipian found nothing which would cause the steering on the

boat to lock. T. 1090-1095.

{¶ 21} Eric Brown testified for the defense. Brown is the owner of Crash Tech

Reconstruction Services. He is a certified forensic vehicle inspector and completed

course work covering rack and pinion steering systems. Brown previously served as a

Marine where he was assigned to motor transport and responsible for operation of the

motor vehicles or working in the motor pool on trucks and Humvees. Following the Marine

Corp, Brown went to police academy and spent most of his law enforcement career with

the Canton Police Department. He was assigned to the traffic unit as a traffic crash Delaware County, Case No. 22 CAA 01 0007 7

investigator and received formal training in the same. While Brown had investigated over

2,500 crashes, only 25 involved watercraft and this case marked the first time he had

testified as an expert in boating accident reconstruction. T. 1012-1020.

{¶ 22} Brown also performed a forensic examination of the Bayliner's steering

system and observed the same loose bolts Lipian observed. Brown opined the loose bolts

caused the Teleflex system to twist and lock in place just before the collision. Brown's

opinion was also based on the statements of the men who drove the rental boat and said

steering wheel was hard to turn, those that heard the men say so, and Berlin Township

Fire Department Captain Swanson who stated the wheel of the boat was locked when he

boarded to boat to rescue Omar. T. 1060-1062. The wheel did not lock during Brown's

inspection. Instead the wheel required greater force to turn once it was turned completely

in one direction. T. 1054-1055. Brown concluded, however, that mechanical failure was

the proximate cause of the collision. T. 1043-1045.

{¶ 23} Lipian rejected Brown's finding that the rack and pinion system jammed due

to lose bolts. He explained the rack unit was engaged with the pinion housing and there

was good contact between the pinion and the rack gears. T. 1098.

{¶ 24} After hearing all the evidence and deliberating, the jury convicted Appellant

as charged. Appellant was sentenced to a term of community control with various

conditions, his driver's license was suspended for four years, and he was ordered to pay

a fine and restitution.

{¶ 25} Appellant filed an appeal and the matter is now before this court for

consideration. He raises one assignment of error as follows: Delaware County, Case No. 22 CAA 01 0007 8

{¶ 26} "THE CONVICTIONS FOR AGGRAVATED VEHICULAR HOMICIDE AND

VEHICULAR ASSAULT WERE NOT SUPPORTED BY THE WEIGHT OF THE

EVIDENCE."

{¶ 27} In his sole assignment of error, Appellant argues his convictions for

aggravated vehicular homicide and vehicular assault are against the manifest weight of

the evidence. We disagree.

{¶ 28} On review for manifest weight, a reviewing court is to examine the entire

record, weigh the evidence and all reasonable inferences, consider the credibility of

witnesses and determine "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." State v. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1st Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d

541 (1997). The granting of a new trial "should be exercised only in the exceptional case

in which the evidence weighs heavily against the conviction." Martin at 175.

{¶ 29} Appellant was convicted of aggravated vehicular homicide pursuant to R.C.

2903.06(A)(2)(a). That section provides in relevant part that no person, while operating a

watercraft, shall recklessly cause the death of another. Appellant was also convicted of

aggravated vehicular assault pursuant to R.C. 2903.08(A)(2)(b). That section provides in

relevant part that no person while operating a watercraft, shall recklessly cause serious

physical harm to another person.

{¶ 30} At trial Appellant did not dispute that Joseph died or that Omar suffered

serious physical harm. The dispute instead focused on whether Appellant recklessly

caused the death and injury. Appellant's argument remains the same here on appeal. Delaware County, Case No. 22 CAA 01 0007 9

{¶ 31} R.C. 2901.22(C) defines the culpable state of recklessness. That section

states:

A person acts recklessly when with heedless indifference to the

consequences, the person disregards a substantial and 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, a person disregards a substantial and unjustifiable

risk that such circumstances are likely to exist.

{¶ 32} The trial court instructed the jury on "cause" pursuant to Ohio Jury

Instructions sections 417.23 and 414.25. The instruction defined case as:

[A]n act or a failure to act that in a natural and continuous sequence

directly produces a particular outcome and without which that

outcome would not have occurred. The Defendant’s responsibility is

not limited to the immediate or most obvious result of his actions or

his failure to act. He is also responsible for the natural and

foreseeable consequences that follow, in the ordinary course of

events, from his actions or failure to act.

{¶ 33} T. 1259.

{¶ 34} Appellant first discounts the testimony of Haig and Kettler as that of

fishermen irritated by the appearance of the ski boat which disrupted their quiet day. He Delaware County, Case No. 22 CAA 01 0007 10

further faults their testimony because neither could recall there were multiple drivers at

the wheel of the Bayliner. We note, however, that neither Haig nor Kettler testified they

were irritated by the appearance of the men in the ski boat. Rather, Kettler testified he

was concerned when the ski boat passed them very closely. T. 677. Further, the jury

could have reasonably concluded Haig and Kettler were merely bystanders with no

motive to fabricate their testimony regarding Appellant's reckless operation of the boat.

Moreover, whether or not Haig and Kettler were aware of multiple drivers was of no

consequence as Appellant never disputed he was behind the wheel of the Bayliner when

the collision took place.

{¶ 35} Appellant also discounts the testimony of Omar by arguing that the whole

experience would have felt more dangerous to him because he did not have his glasses

on, and further, because he got hurt, in hindsight the experience would seem more

dangerous to him. But Omar never testified that not wearing his glasses had any impact

on what he physically felt or his emotional state, only that he could not see who was

driving the boat. T. 865. The jury was aware Omar sustained injury and aware he was not

wearing his glasses. It was free to weigh his credibility accordingly.

{¶ 36} Appellant further argues Omar was not credible because his testimony

conflicted in various ways with that of the rest of his friends. It is well settled, however,

that that a jury is charged with resolving matters of credibility and conflicts in the evidence.

In fact, the Supreme Court of Ohio recently reiterated that it is the jury's responsibility to

"fairly * * * resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts" and that the "jury is the sole

judge of a witness's credibility." (Citations omitted) State v. Hundley, 162 Ohio St.3d 509, Delaware County, Case No. 22 CAA 01 0007 11

2020-Ohio-3775, 166 N.E.3d 1066 ¶ 59. Upon review of the record and find the jury "fairly"

resolved these conflicts.

{¶ 37} Appellant's final arguments pertain to the conflicting conclusions of expert

witnesses Lipian and Brown. The jury heard extensive testimony from each expert.

Whether or not the steering malfunctioned was the focus of each expert's testimony.

Lipian found nothing internal to the boat that would permit the steering wheel to lock, even

though Captain Swanson stated he found the wheel "locked." Lipian noted that in fact,

there was 15-20 degrees of play in the wheel in either direction. While Brown relied

heavily on the statement of Swanson and the men who drove the boat, Lipian felt the

restriction experienced by Swanson was caused by something external to the boat such

as line/tow rope wrapped in the sterndrive or propeller. T. 1090. Swanson did not examine

the boat, and neither expert could cause the steering on the Bayliner to seize or lock.

{¶ 38} While the testimony of the two experts reached different conclusions, as

noted above, conflicts in testimony are a matter for the jury to sort out. We find nothing in

the record to a support a conclusion that the jury lost its way in believing the state's expert

over Appellant's. As also noted above, matters of credibility are also to be determined by

the jury. The jury may well have assigned greater credibility to the state's expert over

Appellant's due to Lipian's superior experience in the investigation of boat crashes or

found his analysis more believable.

{¶ 39} Upon complete review of the record, we find it devoid of any indication that

the jury lost its way in making its credibility determinations, resolving conflicts in evidence,

and convicting Appellant of aggravated vehicular homicide and aggravated vehicular

assault. Accordingly, we find Appellant's convictions are not against the manifest weight

of the evidence and overrule the sole assignment of error. Delaware County, Case No. 22 CAA 01 0007 12

{¶ 40} The judgment of the Delaware County Court of Common Pleas is affirmed.

By King, J.,

Hoffman, P.J. and

Baldwin, J. concur.

AJK/rw [Cite as State v. Habib, 2023-Ohio-1338.]