State v. Simon

2013 Ohio 2067

• Court: Ohio Court of Appeals
• Decided: May 20, 2013
• Docket: 2012CA00152
• Status: Published

Opinion

[Cite as State v. Simon, 2013-Ohio-2067.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff - Appellee Hon. John W. Wise, J. Hon. Craig R. Baldwin, J. -vs-

SHANNA L. SIMON Case No. 2012CA00152

Defendant - Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from Court of Common Pleas, Case No. 2012-CR-0491

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: May 20, 2013

APPEARANCES:

For Plaintiff - Appellee For Defendant - Appellant

JOHN D. FERRERO KRISTINE W. BEARD Prosecuting Attorney 4450 Belden Village Street, N.W., Suite 703 By: RONALD MARK CALDWELL Canton, OH 44718 Assistant Prosecuting Attorney 110 Central Plaza, South – Suite 510 Canton, OH 44702-1413 Stark County, Case No. 2012CA00152 2

Baldwin, J.

{¶1} Defendant-appellant Shanna L. Simon appeals her conviction and

sentence from the Stark County Court of Common Pleas on one count each of

aggravated vehicular assault, failure to stop after an accident, and operating a motor

vehicle under the influence of alcohol, a drug of abuse, or a combination of them.

Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On May 21, 2012, the Stark County Grand Jury indicted appellant on one

count of felonious assault in violation of R.C. 2903.11(A)(1) and/ or (A)(2), a felony of

the second degree, one count of aggravated vehicular assault in violation of R.C.

2903.08(A)(1), a felony of the third degree, one count of failure to stop after an accident

in violation of R.C. 4549.02, a felony of the fifth degree, and one count of operating a

vehicle under the influence of alcohol, a drug of abuse, or a combination of them in

violation of R.C. 4511.19(A)(1)(a), a misdemeanor of the first degree. At her

arraignment on May 25, 2012, appellant entered a plea of not guilty to the charges

contained in the indictment.

{¶3} Subsequently, a jury trial commenced on June 26, 2012. The following

testimony was adduced at trial.

{¶4} On March 22, 2012, Beau Landis, who had been dating appellant for

about a week, met appellant at the Tremont Pub in Massillon. The two played pool with

Mike Thatcher and had some beers and shots. According to Landis, appellant

consumed alcohol during the time, but he was unable to say how much appellant had

consumed. Landis testified that he bought appellant a Bud Light and a shot. Stark County, Case No. 2012CA00152 3

{¶5} During the evening, appellant got into a fight with Lionel Clark. Landis

testified that he tried to get appellant to leave the bar because there were three other

girls who wanted to confront appellant. Landis testified that appellant, Clark and the girls

were all arguing while in the parking lot and that he was trying to get them to calm

down. Landis managed to get appellant into her vehicle. He testified that after appellant

got into her vehicle, Clark was trying to come over and talk to either appellant or to him

and that, before he knew it, he was run over by appellant’s car. As a result, Landis

suffered from a fractured ankle, a fractured knee, a cracked pelvis, a dislocated lip, and

other injuries. In all, he spent two weeks in an induced coma and three weeks in the

hospital. After his release from the hospital, Landis entered a rehabilitation facility for

approximately three and a half months.

{¶6} The next witness to testify at the trial was Sarah Seese, who was a

bartender at the Tremont Pub who was familiar with appellant. Seese testified that, on

the night in question, appellant ordered three White Russians which are made with

vodka, Kahlua and half and half. Seese further testified that appellant and Lionel Clark

were arguing back and forth and that Landis then grabbed appellant’s arm and indicated

that they should leave. On cross-examination, Seese testified that she did not see

appellant consume the White Russians. She further admitted that she did not have a

receipt indicating that appellant had ordered three of the drinks, although she testified

that she had a good memory.

{¶7} At trial, Stephanie Gurule testified that she was at the Tremont Pub on

March 22, 2012 at around 10:30 p.m. While Gurule was sitting at the bar, she saw

Lionel Clark approach appellant about gossip. According to Gurule, appellant and Clark Stark County, Case No. 2012CA00152 4

were yelling at each other and then Landis, Clark and appellant were all yelling at each

other while in the parking lot. Gurule testified that three other girls were also trying to

confront appellant. Gurule also testified that she used her body to physically prevent the

girls from becoming involved because the situation had nothing to do with them and

that, once they backed off, she went over to Clark to get him to stop yelling and to get

back to the bar. While Gurule was standing in the parking lot, appellant “cut” her wheel

and ran over Landis who was close to appellant’s car along with Gurule. The following

testimony was adduced when Gurule was asked what happened to Landis: “When she

cut it, when she cut the car to go in reverse, his legs went underneath of the front wheel,

and when she backed up, his body flipped a couple of times. When she put it in drive

and – to take off again, he was stuck under the wheel and she drug him about 15 feet

until he hit a – till she hit a bump or pothole in the parking lot and it knocked his body

loose. And she kept going.” Transcript at 144-145.

{¶8} According to Gurule, everyone on the scene was screaming at appellant

to stop the car, but appellant did not stop. She testified that appellant’s windows were

down. A videotape from the Tremont Pub was played for the jury.

{¶9} On cross-examination, Gurule testified that, prior to appellant and Clark

getting into a yelling match with each other, the other three girls were picking fights with

other people the whole two hours that Gurule was there. The three other women were

screaming at appellant and intimidating her. Gurule testified that Clark approached

appellant and that appellant did not go up to Clark looking for a fight. Gurule further

testified that appellant was not arguing with Landis and did not seem mad at him. On Stark County, Case No. 2012CA00152 5

redirect, Gurule testified that appellant was yelling back at the three girls who were

yelling at her.

{¶10} Officer Thomas Solinger of the Massillon Police Department testified that

he investigated the incident that occurred at the Tremont Pub. As part of his

investigation, Officer Solinger interviewed Lionel Clark who showed him some cell

phone messages. Officer Solinger took photos of the messages, which were admitted

into evidence. The Officer stated that he took photos of the messages after Clark

indicated that he had been texting appellant. In one of the messages, appellant texted

that she had not hit Landis, but had hit the “dumb bitch.” Appellant admitted texting

Clark after the incident, but said that she did not remember sending the message about

the “dumb bitch.”

{¶11} Officer Solinger testified that he spoke with appellant with her attorney

present about a week later. He testified that he believed that appellant said that she had

a couple of drinks that night, but he was not positive. Appellant also told him that she

did not remember hitting anyone with her car.

{¶12} On cross-examination, Officer Solinger testified that appellant told him that

she was afraid that she was going to be assaulted by the three females at the bar. He

further testified that appellant told him that she had sped out of the parking lot at a high

rate of speed.

{¶13} The next witness to testify at trial was Robert Jones who lived next door to

the Tremont Pub. Jones testified that he heard commotion coming from the Tremont

Pub on March 22, 2012. At some point, Jones saw appellant’s car back up and knock

Landis down and then run over him. Jones testified that he yelled along with everyone Stark County, Case No. 2012CA00152 6

else for appellant to stop, but that the vehicle dragged Landis through the gravel parking

lot.

{¶14} Massillon Police Officer Shaun Dadisman was dispatched to the Tremont

Pub on the night in question shortly after midnight. When he arrived on the scene, he

found Landis in poor condition. Officer Dadisman took statements from witnesses who

had told him that appellant had hit Landis. The Officer then went back to the station to

work on his report and, approximately 30 or 40 minutes later, received a call about

another disturbance at the Tremont Pub. After determining that there was nothing going

on at the Tremont Pub, Officer Dadisman and another officer went to the Tiki Bar where

they found a vehicle matching the description of the vehicle that that had left the scene

at the Tremont Pub. Appellant, who was located sitting at the bar, was arrested outside

the bar. At the time, she had bloodshot eyes, she smelled of alcohol, she was very

emotional and she was not walking normally. Appellant was taken to jail.

{¶15} While being booked at the jail, appellant was very emotional and was

crying without tears and then not crying. Appellant stated that she had done nothing

wrong. Officer Dadisman testified that he asked appellant to perform three field sobriety

tests and that, based on her performance on the tests, he believed that appellant was

impaired either by alcohol or some type of drug. He testified that he found a couple of

pills in an unmarked pill bottle in appellant’s purse. Appellant told the Officer that the

pills were Xanax and that they were her grandmother’s.

{¶16} On cross-examination, Officer Dadisman testified that the parking lot of

the Tremont Pub was gravel and had dips and potholes. He testified that the incident

took place shortly after midnight and that appellant was arrested at approximately 1:29 Stark County, Case No. 2012CA00152 7

a.m. When asked why he did not take a blood, urine or breath sample from appellant,

the Officer testified that that he made such decision along with his superior officer based

on the lapse of time between the time appellant left the Tremont Pub and the time she

was arrested. He admitted that he had no evidence that appellant was under the

influence of alcohol or drugs when she was at the Tremont Pub. Officer Dadisman did

not fill out an impaired driver’s report. He further admitted that he did not know exactly

what sort of pills appellant had on her because the pills were not tested. According to

Officer Dadisman, appellant was shocked when told who she had run over.

{¶17} On redirect, Officer Dadisman testified that he did not interview either

Sarah Seese or Beau Landis on the night at issue and that he did not have any

information about appellant’s consumption of alcohol when he had appellant at the jail.

{¶18} Susan Parnacott, who is Robert Jones’ fiancée, testified that she heard

the commotion outside the Tremont Pub and that, after seeing appellant hit Landis, she

was screaming at appellant to stop. Parnacott further testified that while everyone was

yelling at appellant to stop, she heard appellant scream from her car to “F off.”

Transcript at 266.

{¶19} After Parnacott testified, Michael Thatcher testified that he went to the

Tremont Pub on March 22, 2012 to meet Landis and appellant. He testified that he saw

appellant consume two beers and that appellant took a shot of Crown Royal whiskey

from him and drank the same. He also saw appellant eat some blue pills.

{¶20} The final witness to testify at trial was Lionel Clark. Clark testified that he

and appellant got into a verbal altercation and that appellant then left the bar. Clark

testified that he then went into the parking lot because there was a lot of arguing going Stark County, Case No. 2012CA00152 8

on and other girls wanted to beat appellant up. According to Clark, he was attempting to

calm everyone down. Clark testified that he walked over to appellant’s car, where

Landis was standing, and told appellant that she was wrong. Clark then went over to the

fence line to talk to an acquaintance. Clark testified that he then saw appellant back up

and run over Landis. Landis was not breathing, so Clark turned him over a bit and

Landis coughed up blood and started breathing.

{¶21} Clark stated that he had talked to appellant many times on the phone and

texted her. He testified that appellant texted him on March 222, 2012 while he was still

standing in the parking lot of Tremont Pub. He then texted appellant to return to the

Tremont Pub. On cross-examination, Clark testified that he went up to appellant and

started talking to her and asking her questions about why she was disrespecting him.

He testified that he went outside to the parking lot to stop the girls who wanted to beat

appellant up. Clark further testified that he went up to appellant’s car and apologized to

Landis.

{¶22} At the conclusion of the evidence, the trial court granted appellant’s

Crim.R. 29 motion with respect to the charge of felonious assault. Thereafter, on June

27, 2012, the jury found appellant guilty of aggravated vehicular assault, failure to stop

after an accident, and operating a motor vehicle while under the influence of alcohol, a

drug of abuse, or a combination of them. Appellant was sentenced to an aggregate

prison sentence of 12 months and was fined $1,000.00. In addition, appellant’s driver’s

license was suspended for a period of three (3) years and appellant was ordered to pay

restitution.

{¶23} Appellant now raises the following assignment of error on appeal: Stark County, Case No. 2012CA00152 9

{¶24} “APPELLANT’S CONVICTIONS FOR AGGRAVATED VEHICULAR

ASSAULT, FAILURE TO STOP AFTER AN ACCIDENT AND OVI ARE AGAINST THE

SUFFICIENCY AND MANIFEST WEIGHT OF THE EVIDENCE.”

I

{¶25} Appellant, in her sole assignment of error, argues that her convictions for

aggravated vehicular assault, failure to stop after an accident, and operating a motor

vehicle while under the influence of alcohol, a drug of abuse, or a combination of them

are against the sufficiency and manifest weight of the evidence. We disagree.

{¶26} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire

record, weighs the evidence and all reasonable inferences, considers the credibility of

witnesses, and determines whether in resolving conflicts in 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. Thompkins, 78 Ohio St.3d 380, 387,

1997–Ohio–52, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1st Dist. 1983).

{¶27} An appellate court's function when reviewing the sufficiency of the

evidence is to determine 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. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492, paragraph two of the syllabus (1991).

{¶28} Appellant was convicted of aggravated vehicular assault in violation of

R.C. 2903.08(A)(1) and operating a vehicle under the influence of alcohol, a drug of Stark County, Case No. 2012CA00152 10

abuse, or a combination of them in violation of R.C. 4511.19(A)(1)(a). R.C. 2903.08

states, in relevant part, as follows: “(A) No person, while operating or participating in the

operation of a motor vehicle, motorcycle, snowmobile, locomotive, watercraft, or aircraft,

shall cause serious physical harm to another person or another's unborn in any of the

following ways: (1)(a) As the proximate result of committing a violation of division (A) of

section 4511.19 of the Revised Code or of a substantially equivalent municipal

ordinance;…” In turn, R.C. 4511.19 states, in pertinent part, as follows: “(A)(1) No

person shall operate any vehicle, streetcar, or trackless trolley within this state, if, at the

time of the operation, any of the following apply:(a) The person is under the influence of

alcohol, a drug of abuse, or a combination of them…”

{¶29} Appellant also was convicted of failure to stop after an accident in violation

of R.C. 4549.02. Such section provides, in relevant part, as follows: “A) In case of

accident to or collision with persons or property upon any of the public roads or

highways, due to the driving or operation thereon of any motor vehicle, the person

driving or operating the motor vehicle, having knowledge of the accident or collision,

immediately shall stop the driver's or operator's motor vehicle at the scene of the

accident or collision and shall remain at the scene of the accident or collision until the

driver or operator has given the driver's or operator's name and address and, if the

driver or operator is not the owner, the name and address of the owner of that motor

vehicle, together with the registered number of that motor vehicle, to any person injured

in the accident or collision or to the operator, occupant, owner, or attendant of any

motor vehicle damaged in the accident or collision, or to any police officer at the scene

of the accident or collision.” Stark County, Case No. 2012CA00152 11

{¶30} Appellant specifically contends that appellee failed to prove that she

operated a motor vehicle while under the influence of alcohol, a drug of abuse, or a

combination of them at the time of the incident and that, therefore, the aggravated

vehicular assault conviction must fail. Appellant further argues that appellee failed to

prove that she knew or had reasonable cause to believe that she had been involved in a

motor vehicle accident and that, therefore, the failure to stop after an accident

conviction must also fail.

{¶31} As is stated above, there was testimony at trial that appellant had bought

and consumed alcohol on the night in question. Beau Landis testified that he bought

appellant a Bud Light and a shot and Sarah Seese testified that appellant ordered three

White Russians. In addition, Michael Thatcher testified that he saw appellant consume

two beers, that appellant took a shot of Crown Royal whiskey from him and drank the

same and that he saw appellant eat some blue pills. As noted by appellee, appellant’s

actions in speedily backing up while people were near her car, and turning her wheel in

such a manner so as to endanger people also indicated someone whose judgment was

impaired by alcohol. Moreover, after striking Landis, appellant disregarded the many

screams to stop and drove over Landis. Furthermore, when later at the police station,

appellant exhibited signs of intoxication. In short, after viewing the evidence in a light

most favorable to the prosecution, any rational trier of fact could have found that

appellant was under the influence of drugs and/or alcohol when she struck Landis. We

further find that the jury did not lose its way in convicting her of the offenses of

aggravated vehicular assault and operating a vehicle under the influence of alcohol, a

drug of abuse, or a combination of them. Stark County, Case No. 2012CA00152 12

{¶32} As is stated above, appellant also argues that appellee failed to prove that

she knew or had reasonable cause to believe that she had been involved in a motor

vehicle accident and that, therefore, the failure to stop after an accident conviction must

also fail. However, testimony was adduced at trial that Lionel Clark texted appellant and

told her that she needed to return because the police were at the Tremont Pub.

Appellant did not do so. Rather, appellant texted back that she thought she had hit the

“dumb bitch” instead of Landis. Based on the foregoing, we find that any rational trier of

fact could have found that appellant knew that she hit someone. We further find that the

jury did not lose its way in convicting her of failure to stop.

{¶33} Appellant’s sole assignment of error is, therefore, overruled.

{¶34} Accordingly, the judgment of the Stark County Court of Common Pleas is

affirmed.

By: Baldwin, J.

Hoffman, P. J. and

Wise, J. concur.

___________________________________

___________________________________ JUDGES

CRB/css Stark County, Case No. 2012CA00152 13

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff - Appellee : : -vs- : JUDGMENT ENTRY : SHANNA L.SIMON : : Defendant - Appellant : Case No. 2012CA00152

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Stark County Court of Common Pleas is affirmed. Costs assessed to

appellant.