State v. Smith

[Cite as State v. Smith, 2025-Ohio-2086.]

IN THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

MONTGOMERY COUNTY

STATE OF OHIO :

:

Appellee : C.A. No. 30201

:

v. : Trial Court Case No. 2023 CR 00535

:

CARL LAMONT SMITH : (Criminal Appeal from Common Pleas

: Court)

Appellant :

:

...........

OPINION

Rendered on June 13, 2025

...........

JOHNNA M. SHIA, Attorney for Appellant

MATHIAS H. HECK, JR., by SARAH H. CHANEY, Attorney for Appellee

.............

TUCKER, J.

{¶ 1} Defendant-appellant Carl Lamont Smith appeals from his convictions for

aggravated vehicular homicide, aggravated vehicular assault, and operating a vehicle

while under the influence. For the reasons set forth below, we affirm.

-2-

I. Factual and Procedural Background

{¶ 2} This appeal arises from a motor vehicle collision that occurred on January 1,

2023, on Germantown Pike in Montgomery County, Ohio. At approximately 7:00 p.m.,

David Watson heard a loud crash. Upon exiting his front door, Watson observed a

portion of a heavily damaged Chevy Suburban in his yard. He also observed that the

front passenger section of the Suburban was in Germantown Pike’s northbound lane of

travel. Watson located three boys in the Suburban, all of whom had suffered minor

injuries, and led them to his front porch. After first responders arrived on the scene, it

was discovered that the adult driver of the Suburban and two juvenile passengers were

dead. Two other juvenile passengers were determined to have sustained serious

injuries and were immediately transported to a local hospital. One of the injured juveniles

had sustained a traumatic brain injury which left her permanently disabled.

{¶ 3} The other vehicle involved in the crash, a Chevy Traverse, was located off

the road with its rear passenger wheel still in Germantown Pike’s southbound lane. The

driver of the Traverse, later identified as Smith, was trapped inside the vehicle. After he

was removed from the vehicle, he was transported to the hospital for treatment of his

injuries.

{¶ 4} Following an investigation, Smith was indicted on three counts of aggravated

vehicular homicide (driving under suspension) in violation of R.C. 2903.06(A)(1), two

counts of aggravated vehicular assault (suspension) in violation of R.C. 2903.08(A)(1),

one count of operating a vehicle while under the influence (prior felony – whole blood)

-3-

(OVI) in violation of R.C. 4511.19(A)(1)(f)/(G)(1)(e), one count of operating a motor

vehicle while under the influence (.238 or more urine/prior felony) in violation of R.C.

4511.19(A)(1)(i)/(G)(1)(e), and one count of operating a vehicle while under the influence

(prior felony) in violation of R.C. 4511.19(A)(1)(a)/(G)(1)(e).

{¶ 5} A jury trial commenced on June 10, 2024. The State presented the

testimony of several witnesses at trial. Montgomery County Sherriff’s Deputy Bradley

Gulley of the forensic services/traffic services unit had been assigned to investigate the

collision. He testified that he had arrived on the scene of the crash before the debris was

cleared. Gulley observed that most of the debris from the collision, including one tire

from each vehicle, was in the northbound lane. When the tires were removed from the

roadway, Gulley was able to observe a gouge mark in the road. According to Gulley,

when cars collide head-on, the rear ends of the vehicles lift upward while the front ends

move downward and leave a gouge mark in the pavement; in head-on collisions, gouge

marks indicate the location where two vehicles collided. Based upon the location of the

gouge mark, Gulley opined that Smith’s vehicle had crossed the center line into the

Suburban’s lane of travel, causing the collision. Gulley also testified that a partially

consumed bottle of rum and an empty beer can had been recovered from Smith’s vehicle.

{¶ 6} The State presented testimony that the airbag module from Smith’s vehicle

had been retrieved and had captured approximately five seconds of information prior to

the collision. The module data indicated that, five seconds prior to the collision, Smith

was travelling 62 miles per hour. At approximately one second prior to the crash, the

speed dropped to 61 miles per hour. The module data indicated that Smith’s foot never

-4-

left the gas pedal, and the vehicle’s brakes were not engaged.

{¶ 7} Brandon Abney, a firefighter/paramedic with the Miami Valley Fire District,

helped remove Smith from his vehicle. Abney testified that he rode in the back of an

ambulance with Smith during transport to the hospital. According to Abney, Smith stated

that he “did have a lot to drink today.” Miami Valley Fire District firefighter/paramedic

inspector David Martin also testified that Smith initially stated that he had had “a lot to

drink” that day. Martin further testified that Smith later stated that he had only consumed

two beers.

{¶ 8} Montgomery County Sheriff’s Deputy Benjamin Hale testified about speaking

with Smith in the emergency department. According to Hale, Smith’s speech was slightly

slurred, and he had an odor of alcohol about him. Brian Simons, a forensic toxicologist

with the Montgomery County Regional Crime Laboratory and the Montgomery County

Coroner’s Office, testified that Smith’s blood testified positive for ketamine. Simons also

testified that Smith’s blood alcohol content was .290, and his urine test for alcohol

returned a positive result of .391.

{¶ 9} Smith did not testify or present any witnesses at trial.

{¶ 10} The jury found Smith guilty on all counts. The trial court merged the three

counts of OVI into Count One, sentenced Smith on each count, and ordered the offenses

to be served consecutively. The aggregate prison term was 64 to 71.5 years.

{¶ 11} Smith appeals.

II. Sufficiency and Manifest Weight of the Evidence

-5-

{¶ 12} Smith’s first assignment of error states:

THE STATE’S EVIDENCE WAS INSUFFICIENT AS A MATTER OF LAW

AND THE MANIFEST WEIGHT OF THE EVIDENCE DOES NOT

SUPPORT THE JURY’S VERDICTS.

{¶ 13} Smith claims the State failed to present evidence sufficient to support his

convictions and that his convictions were against the manifest weight of the evidence.

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

evidence to support a criminal conviction is to examine the evidence admitted at trial to

determine whether such evidence, if believed, would convince the average mind of the

defendant's guilt beyond a reasonable doubt.” State v. Marshall, 2010-Ohio-5160, ¶ 52

(2d Dist.), quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the

syllabus. The relevant inquiry is whether, after viewing the evidence in the light most

favorable to the State, any rational trier of fact could have found the crime's essential

elements proven beyond a reasonable doubt. Id.

{¶ 15} However, when an appellate court reviews whether a conviction is against

the manifest weight of the evidence, “[t]he court, reviewing the entire record, weighs the

evidence and all reasonable inferences, considers the credibility of the 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.” State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting State

v. Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1983). A case should not be reversed as

being against the manifest weight of the evidence except “ ‘in the exceptional case in

-6-

which the evidence weighs heavily against the conviction.’ ” Id.

{¶ 16} “Although sufficiency and manifest weight are different legal concepts,

manifest weight may subsume sufficiency in conducting the analysis; that is, a finding that

a conviction is supported by the manifest weight of the evidence necessarily includes a

finding of sufficiency.” (Citations omitted.) State v. McCrary, 2011-Ohio-3161, ¶ 11 (10th

Dist.). Accord State v. Winbush, 2017-Ohio-696 ¶ 58 (2d Dist.). As a result, a

determination that a conviction is supported by the weight of the evidence will also be

dispositive of sufficiency. State v. Farra, 2022-Ohio-1421, ¶ 50 (2d Dist.).

{¶ 17} Smith was convicted of aggravated vehicular homicide in violation of R.C.

2903.06(A)(1) and aggravated vehicular assault in violation of R.C. 2903.08(A)(1).

Under these statutes, the State was required to prove that Smith had caused the death

of another, or caused serious physical harm to another, as the proximate result of

committing any OVI offense as defined by R.C. 4511.19(A).

{¶ 18} Smith first argues the State failed to present sufficient evidence that he

committed an OVI offense. Specifically, he claims the State did not prove he was driving

while “under the influence” because there was no proof that he was actually impaired by

alcohol at the time of the collision. He notes that R.C. 4511.19(A)(1)(a), which prohibits

driving while “under the influence of alcohol” requires some proof of actual impairment.

See State v. Naylor, 2024-Ohio-1648, ¶ 45 (11th Dist.) (“Driving ‘under the influence’

[under R.C. 4511.19(A)(1)(a)] encompasses the concept of ‘impaired’ driving [making] a

defendant's behavior a primary consideration.”).

{¶ 19} However, under both R.C. 2903.06 and R.C. 2903.08, violation of any

-7-

section of R.C. 4511.19(A) may serve as the predicate offense for aggravated vehicular

homicide and aggravated vehicular assault. Significantly, alternate sections of R.C.

4511.19(A) do not require proof of actual impairment. Rather, the State need only prove

that the offender’s alcohol concentration exceeds certain levels. As stated by the Ohio

Supreme Court in City of Defiance v. Kretz, 60 Ohio St.3d 1 (1991):

[T]he General Assembly [has] defined the point at which an individual can

no longer drive without being a substantial danger to himself and others.

In determining whether the defendant committed the per se offense, the trier

of fact is not required to find that the defendant operated a vehicle while

under the influence of alcohol or drugs, but only that the defendant's

chemical test reading was at the prescribed level and that the defendant

operated a vehicle within the state.

(Citations omitted.) Id. at 3.

{¶ 20} Here, the State presented unrebutted competent, credible evidence that

Smith had “a concentration of seventeen-hundredths of one per cent or more by weight

per unit volume of alcohol in the person's whole blood” and that he had “a concentration

of two hundred thirty-eight-thousandths of one gram or more by weight of alcohol per one

hundred milliliters of the person's urine.” See R.C. 4511.19(A)(1)(f) and (i). This

evidence was sufficient to prove a violation of R.C. 4511.19(A).

{¶ 21} Smith next argues that the act of driving under suspension, which he does

not contest, was not sufficient to support the aggravated vehicular homicide and

aggravated vehicular assault convictions. In support, he cites State v. Moore, 2019-

-8-

Ohio-3705 (6th Dist.), wherein the defendant was charged with involuntary manslaughter

in violation of R.C. 2903.04(B). Id. at ¶ 4. That statute prohibits causing the death of

another “as a proximate result of the offender's committing or attempting to commit a

misdemeanor of any degree, a regulatory offense, or a minor misdemeanor . . . .” The

predicate offense for the manslaughter charge in that case was driving under a

suspended driver’s license in violation of R.C. 4510.16(A) and (D)(1). Id. at ¶ 40. In

reviewing the defendant’s sufficiency of the evidence argument, the appeals court held,

“when a defendant’s unlawful act is driving under suspension . . . [that act] cannot

constitute the basis for an involuntary manslaughter conviction when there is no causative

connection between the criminal act and the death of another.” Id. at ¶ 43.

{¶ 22} Unlike the situation in Moore, driving under a suspended license is not an

element of or predicate offense for the crimes of aggravated vehicular homicide/assault.

Instead, proof that Smith was driving under a suspended license at the time of committing

those offenses served merely to enhance the degree of the offenses. Aggravated

vehicular homicide is elevated to a first-degree felony and aggravated vehicular assault

is elevated to a second-degree felony if the offender was driving under a suspension at

the time he committed those offenses. See R.C. 2903.06(B)(2)(B) and R.C.

2903.08(B)(1)(a). In other words, the act of driving under a suspension becomes

relevant only after the State has already presented evidence sufficient to sustain

convictions for aggravated vehicular homicide/assault.

{¶ 23} Finally, Smith argues that the deaths and injuries suffered by the victims

were not caused by his driving. Instead, he claims there were other proximate causes

-9-

which served to negate his culpability.

{¶ 24} First, Smith claims that the yellow lane-dividing lines on Germantown Pike

were not clear because remnants of a prior yellow center line remained visible after the

roadway had been widened and the line repainted. Smith notes that the gouge mark

observed by Deputy Gulley was “very close to the ‘artifact’ line suggesting that the

Suburban was very close the center line.” Thus, he argues, “[i]t is possible that under

these circumstances, Smith could have believed that the artifact was the center line, and

if the Suburban caused the gouge mark, Smith would not have necessarily been left of

center.”

{¶ 25} The record indicates that the roadway had been widened and that a new

center line had been painted on it. The older center line, which was rendered off-center

by the widening of the road, had not been completely removed. However, the old line

had degraded and was not visible in some areas. The photographs presented into

evidence showed that the detached vehicle tires overlaying the gouge mark were clearly

on the northbound side of both the new line and the artifact line. Thus, regardless of

whether Smith believed the “artifact” line was the center line, the area of impact noted by

Gulley was on the northbound side of both lines. Thus, we conclude this argument has

no factual merit.

{¶ 26} Next, Smith contends that neither the deaths nor the injuries would have

occurred had the victims worn their seatbelts.

{¶ 27} “It is well established that the definition of ‘cause’ in criminal cases is

identical to the definition of ‘proximate cause’ in civil cases. . . .The general rule is that

-10-

a defendant's conduct is the proximate cause of injury or death to another if the

defendant's conduct (1) is a ‘substantial factor’ in bringing about the harm and (2) there

is no other rule of law relieving the defendant of liability.” State v. Flanek, 1993 WL

335601, *8 (8th Dist. Sept. 2, 1993). Accord State v. Carter, 2007-Ohio-5570, ¶ 25 (2d

Dist.). “A defendant cannot escape criminal liability merely because factors other than

his actions contributed to the death or injury to the victims, unless the other factors were

the sole proximate cause.” State v. Ward, 2001 WL 220244, *3 (2d Dist. Mar. 2, 2001),

citing Flanek at *7. “Indeed, . . . 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.” Flanek at *7; Carter at ¶ 27

{¶ 28} Smith’s argument is similar to that made by the defendant in State v.

Mitchell, 67 Ohio App.3d 123 (3d Dist. 1990). In Mitchell, the defendant was charged

with aggravated vehicular homicide. Id. at 124. The defendant attempted to introduce

evidence that the decedent had not been wearing a seatbelt, claiming that such evidence

was pertinent to the issue of whether the defendant’s actions had caused the decedent’s

death. Id. at 125.

{¶ 29} On appeal, the court affirmed the trial court’s decision to exclude such

evidence, concluding that whether the decedent had been wearing a seatbelt was not

relevant in a prosecution for aggravated vehicular homicide. The court wrote:

Defendant makes a tenuous claim as to a distinction existing between a

defendant causing the death of another (in the words of the statute), and a

defendant's conduct being the proximate cause of the death of another. He

-11-

would have us believe that evidence of the lack of a seat belt was admissible

to show the cause of the death of the passenger, divorcing such cause from

any conduct of the defendant. However, the statute makes it a crime for the

defendant to “recklessly cause the death of another.” This crime is complete

when the defendant, while operating a motor vehicle, sets in motion with the

required state of mind the chain of conduct and events resulting in the death

of another. The operator's culpability is determined when death occurs. He

may “luck out” if death is prevented by the fact that a potential victim is

wearing a seat belt, but he is nonetheless culpable because death occurs

when the decedent had not been wearing a seat belt. Thus, when death has

occurred, seat belt evidence has nothing to do with whether each of the

statutory elements of the crime have been proved by other evidence.

Accordingly, it is our opinion that . . . such evidence was not relevant to the

proof of the elements of the alleged crime and was not admissible in any

event.

Id. at 126-127.

{¶ 30} Here, Smith asks us to ignore his conduct and to focus on his claim that the

deaths and injuries would not have occurred had the victims been wearing their seatbelts.

This argument lacks merit. The record contains evidence, as outlined above, that

Deputy Gulley, an accident reconstruction expert, determined that Smith had crossed the

center line and caused the collision. There was also sufficient evidence to show that he

was driving with a prohibited blood alcohol level. Without Smith’s initial conduct, the

-12-

collision would not have occurred, and the resulting injuries and deaths would not have

occurred.

{¶ 31} We conclude the record contains sufficient evidence that Smith committed

the offenses of OVI, aggravated vehicular homicide, and aggravated vehicular assault.

We further conclude that the convictions are not against the manifest weight of the

evidence. Accordingly, the first assignment of error is overruled.

III. Motion in Limine

{¶ 32} Smith’s second assignment of error provides:

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT SUSTAINED

THE STATE’S MOTION IN LIMINE CONCERNING THE VICTIM’S

TOXICOLOGY RESULTS.

{¶ 33} Smith contends the trial court erred by preventing him from introducing

evidence regarding the toxicology report on the driver of the other vehicle (the Suburban).

He argues that the driver’s “alcohol level may have affected his ability to drive, which is

entirely relevant to the” issue of causation.

{¶ 34} Prior to trial, the State filed a motion in limine seeking to exclude any

evidence regarding the toxicology report generated as part of the autopsy of the driver of

the Suburban. In the motion, the State claimed the toxicology report “indicated positivity

for ethanol and marijuana metabolites.” The trial court sustained the motion prior to

empaneling the jury. During the trial court’s on-the-record ruling on the motion, defense

counsel objected to the ruling and stated that he had subpoenaed the toxicologist who

-13-

generated the report. Counsel stated that the evidence at trial could “open the door” for

the admission of the toxicology report. The court agreed. However, defense counsel

did not attempt to call the toxicologist to testify at trial or proffer the toxicology report or

the nature of the testimony relevant to it.

{¶ 35} “[A] motion in limine, if granted, is a tentative, interlocutory, precautionary

ruling by the trial court reflecting its anticipatory treatment of the evidentiary issue. In

virtually all circumstances finality does not attach when the motion is granted. Therefore,

should circumstances subsequently develop at trial, the trial court is certainly at liberty

“. . . to consider the admissibility of the disputed evidence in its actual context.” State v.

Grubb, 28 Ohio St.3d 199, 201-202 (1986), citing State v. White, 6 Ohio App.3d 1, 4 (8th

Dist. 1982). The Ohio Supreme Court in Grubb further stated:

The effect of the granting of a motion in limine in favor of the state in a

criminal proceeding is to temporarily prohibit the defendant from making

reference to evidence which is the subject of the motion. At trial it is

incumbent upon a defendant, who has been temporarily restricted from

introducing evidence by virtue of a motion in limine, to seek the introduction

of the evidence by proffer or otherwise in order to enable the court to make

a final determination as to its admissibility and to preserve any objection on

the record for purposes of appeal. In the case at bar, appellant failed to

make any such proffer and therefore we conclude, consistent with Evid.R.

103, that he waived his right to object to the evidentiary issue on appeal.

(Citation and footnote omitted.) Id. at 203.

-14-

{¶ 36} As stated, Smith never sought to introduce the toxicology report during trial

and failed to proffer the results contained therein. Thus, we are constrained to conclude

there is no final evidentiary ruling regarding the admissibility of the report for us to review.

The second assignment of error is overruled.

IV. Expert Witness Testimony

{¶ 37} The third assignment of error states:

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ALLOWED

DEP. GULLEY TO TESTIFY AS AN EXPERT WITNESS IN ACCIDENT

RECONSTRUCTION.

{¶ 38} Smith contends the trial court should not have permitted the State to present

Deputy Gulley as an expert on the subject of accident reconstruction.

{¶ 39} A trial court has broad discretion to determine the admissibility of expert

testimony, and its decision will not be reversed absent an abuse of that discretion. State

v. Pulaski, 2003-Ohio-4847, ¶ 18 (2d Dist.), citing State v. Jones, 90 Ohio St.3d 403, 414

(2000); Lucsik v. Kosdrosky, 2017-Ohio-96, ¶ 16 (8th Dist.). The qualification of an

expert witness is governed by Evid.R. 702, which permits a witness to testify as an expert

when the following conditions are met:

(A) The witness' testimony either relates to matters beyond the knowledge

or experience possessed by lay persons or dispels a misconception

common among lay persons;

(B) The witness is qualified as an expert by specialized knowledge, skill,

-15-

experience, training, or education regarding the subject matter of the

testimony;

(C) The witness' testimony is based on reliable scientific, technical, or other

specialized information. To the extent that the testimony reports the result

of a procedure, test, or experiment, the testimony is reliable only if all of the

following apply:

(1) The theory upon which the procedure, test, or experiment is based is

objectively verifiable or is validly derived from widely accepted knowledge,

facts, or principles;

(2) The design of the procedure, test, or experiment reliably implements the

theory;

(3) The particular procedure, test, or experiment was conducted in a way

that will yield an accurate result.

{¶ 40} Smith does not dispute Gulley’s training, education, or certification in

accident reconstruction. Instead, his argument is that, “[a]lthough Deputy Gulley had

completed 400 hours of educations and certifications to reconstruct an accident, he had

never done so in his six years at the Sheriff’s office before this case.”

{¶ 41} The record demonstrates that Gulley has been a law enforcement officer

since 2010 and began working for the Montgomery County Sheriff’s Department in 2020;

he completed over 400 hours of education and training before receiving his certification

as an accident reconstructionist in February 2022.

{¶ 42} We first note that, despite Smith’s stated argument, Gulley had been

-16-

employed as a Sheriff’s Deputy for approximately three years prior to being appointed as

lead investigator in this case. Further, he became certified in accident reconstruction

approximately one year prior to this case. In other words, there is no support for Smith’s

implied claim that some unspecified problem prevented Gulley from acting as a lead

investigator for six years after his certification. Nonetheless, we previously addressed a

similar objection to an expert’s competence to testify in State v. Thomas, 2003-Ohio-5746

(2d Dist.), wherein we stated:

The fact that Robinson had not previously testified as an expert does not

disqualify her as an expert witness. All expert witnesses presumably have

a first time testifying as an expert. If a witness cannot qualify as an expert

without prior experience testifying as an expert, there can never be expert

witnesses. “[A]s with any expert witness, that witness must at some point in

time be qualified for the first time as an expert in a certain field. The fact that

the witness may have limited opportunities to testify before a court of law

does not limit his knowledge of the subject in any manner.” State v. Moulder,

2002–Ohio–5327, ¶ 65 (8th Dist.).

Id. at ¶ 27.

{¶ 43} In short, the fact that this was the first time Gulley testified as an expert

witness was not a basis to disqualify him as an expert witness.

{¶ 44} Smith also contests Gulley’s expertise because Gulley admitted that he had

not considered certain factors such as the weight, length, and height of the vehicles

involved in the collision. Smith also faults Gulley for failing to determine the speed of

-17-

either vehicle in preparing his report.

{¶ 45} We first note that the State produced evidence that Smith’s Traverse was

traveling 61 miles per hour at the point of impact. Likewise, evidence was introduced

that the driver of the Suburban could not have reached a speed of more than 60 miles

per hour at the time of the crash. Further, while Gulley indicated that the factors cited by

Smith may, generally, be relevant to a crash investigation, he testified that he had

considered all the factors he deemed relevant to and determinative of the cause of this

specific collision. Smith did not present any expert evidence to indicate Gulley’s

investigation was deficient or that the above-cited factors must be considered in every

crash investigation.

{¶ 46} Finally, although not stated in his assignment of error, Smith claims “the trial

court abused its discretion when it permitted Deputy Evers to also testify as an expert

reconstructionist for the State, thereby bolstering the credibility of Deputy Gulley and other

deputy’s lay testimony concerning the same.”

{¶ 47} We begin by noting that Smith did not object to the trial court’s decision to

permit Evers to testify as an expert. Therefore, we are constrained to conduct a plain

error review. Plain error requires the existence of an obvious error and a reasonable

probability that it affected the outcome of the proceeding. State v. Hess, 2023-Ohio-3658,

¶ 11 (2d Dist.).

{¶ 48} Smith does not contest Ever’s competence as an expert in accident

reconstruction. The record demonstrates that Evers had the requisite education,

training, and certification to qualify him as such an expert. To the extent that this

-18-

argument can be read as an objection to cumulative expert testimony, we find no merit in

that argument. The main purpose of Evers’s testimony was to establish that he had

conducted acceleration/speed tests from the stop sign at Soldier’s Home Road to the site

of the accident to determine how fast the adult victim had been driving at the time of the

crash. Therefore, his testimony provided evidence that was not merely cumulative to

Gulley’s testimony. On this record, we find no error, let alone plain error, in permitting

Evers to testify as an expert.

{¶ 49} The third assignment of error is overruled.

V. Cumulative Error

{¶ 50} Smith’s fourth assignment of error states:

SMITH WAS DENIED DUE PROCESS OF LAW AND A FAIR TRIAL DUE

TO THE CUMULATIVE EFFECT OF ERRORS BY THE TRIAL COURT.

{¶ 51} Smith contends that the trial court committed multiple errors during trial and

that the cumulative effect of those errors resulted in the denial of a fair trial.

{¶ 52} Under the doctrine of cumulative error, “[s]eparately harmless errors may

violate a defendant's right to a fair trial when the errors are considered together. . . . In

order to find cumulative error, we first must find that multiple errors were committed at

trial.” State v. Harris, 2004-Ohio-3570, ¶ 40 (2d Dist.). “A conviction will be reversed

when the cumulative effect of errors in a trial deprives a defendant of a fair trial even

though each of the numerous instances of trial-court error does not individually constitute

cause for reversal.” State v. Powell, 2012-Ohio-2577, ¶ 223, citing State v. DeMarco, 31

-19-

Ohio St.3d 191 (1987), paragraph two of the syllabus. The doctrine is inapplicable

unless there are “multiple instances of harmless error.” State v. Garner, 74 Ohio St.3d

49, 64 (1995).

{¶ 53} Having found no errors in the record before us, we cannot find cumulative

error. Accordingly, the fourth assignment of error is overruled.

VI. Maximum Sentences

{¶ 54} The fifth assignment of error asserted by Smith is as follows:

THE RECORD DOES NOT SUPPORT THE TRIAL COURT’S MAXIMUM

SENTENCE BY CLEAR AND CONVINCING EVIDENCE AND IS,

THEREFORE, CONTRARY TO LAW.

{¶ 55} Smith argues that the imposition of the maximum sentences for aggravated

vehicular homicide, aggravated vehicular assault, and OVI was not supported by the

record.

{¶ 56} We review felony sentences under the standard of review set forth in R.C.

2953.08(G)(2). State v. Marcum, 2016-Ohio-1002, ¶ 1, 21. As provided in that statute,

an appellate court may increase, reduce, modify, or vacate and remand a challenged

felony sentence if the court clearly and convincingly finds either that the record does not

support the sentencing court's findings as required by certain sentencing statutes not

applicable to this assignment of error, or the sentence is “otherwise contrary to law.”

{¶ 57} “A trial court's imposition of a maximum prison term for a felony conviction

is not contrary to law as long as the sentence is within the statutory range for the offense,

-20-

and the court considers the purposes and principles of felony sentencing set forth in R.C.

2929.11 and the seriousness and recidivism factors set forth in R.C. 2929.12.” State v.

Seith, 2016-Ohio-8302, ¶ 12 (8th Dist.), citing State v. Keith, 2016-Ohio-5234, ¶ 10, 16

(8th Dist.).

{¶ 58} Smith does not claim that the sentences imposed fall outside the statutory

ranges provided for each offense. Further, the record affirmatively demonstrates that

the trial court considered both the principles and purposes of felony sentencing as well

as the relevant seriousness and recidivism factors. Specifically, the court's sentencing

entry states that the court considered “all required factors of the law” in imposing its

sentence and found that “prison is consistent with the purpose of R.C. 2929.11.” The

sentencing hearing transcript also reflects that the trial court considered the purposes and

principles of felony sentencing under R.C. 2929.11 and the seriousness and recidivism

factors of 2929.12 before sentencing Smith to maximum terms. Accordingly, the trial

court's imposition of maximum sentences was not contrary to law.

{¶ 59} However, Smith argues that a review of the seriousness and recidivism

factors set forth in R.C. 2929.12 establishes that the imposition of the maximum

sentences was clearly and convincingly not supported by the record. But reviewing and

weighing those factors exceeds the permissible scope of our appellate review, as R.C.

2953.08(G)(2)(b) does not permit a reviewing court to vacate or modify a sentence “based

upon its view that the sentence is not supported by the record under R.C. 2929.11 and

2929.12.” State v. Jones, 2020-Ohio-6729, ¶ 39.

{¶ 60} Because the trial court examined the record and concluded that maximum

-21-

sentences were consistent with the purposes of felony sentencing and were appropriate

in view of the statutory seriousness and recidivism factors, Jones precludes us from

independently weighing the evidence and substituting our judgment for that of the trial

court. Accordingly, the sixth assignment of error is overruled.

VII. Consecutive Sentences

{¶ 61} Smith’s sixth assignment of error provides:

WHETHER THE TRIAL COURT’S IMPOSITION OF CONSECUTIVE

SENTENCES WAS SUPPORTED BY CLEAR AND CONVINCING

EVIDENCE IN THE RECORD.

{¶ 62} Smith contends the trial court erred by imposing consecutive sentences.

{¶ 63} In general, it is presumed that prison terms will be served concurrently. R.C.

2929.41(A); State v. Bonnell, 2014-Ohio-3177, ¶ 16, 23. However, after determining the

sentence for a particular crime, a sentencing judge has discretion to order an offender to

serve individual counts of a sentence consecutively to each other or to sentences

imposed by other courts. State v. Dillon, 2020-Ohio-5031, ¶ 44 (2d Dist.).

{¶ 64} R.C. 2929.14(C)(4) permits a trial court to impose consecutive sentences if

it finds that (1) consecutive sentencing is necessary to protect the public from future crime

or to punish the offender, (2) consecutive sentences are not disproportionate to the

seriousness of the offender's conduct and to the danger the offender poses to the public,

and (3) any of the following applies:

(a) The offender committed one or more of the multiple offenses while the

-22-

offender was awaiting trial or sentencing, was under a sanction imposed

pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or

was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one or

more courses of conduct, and the harm caused by two or more of the

multiple offenses so committed was so great or unusual that no single

prison term for any of the offenses committed as part of any of the courses

of conduct adequately reflects the seriousness of the offender's conduct.

(c) The offender's history of criminal conduct demonstrates that consecutive

sentences are necessary to protect the public from future crime by the

offender.

{¶ 65} When reviewing the imposition of consecutive sentences, “[t]he plain

language of R.C. 2953.08(G)(2) requires an appellate court to defer to the trial court's

consecutive-sentence findings, and the trial court's findings must be upheld unless those

findings are clearly and convincingly not supported by the record.” State v. Gwynne,

2023-Ohio-3851, ¶ 5. See also State v. Norris, 2023-Ohio-4057, ¶ 13 (2d Dist.) (an

appellate court cannot reverse consecutive sentences unless it clearly and convincingly

finds the record does not support the trial court's findings).

{¶ 66} There is no dispute that the trial court made the required findings for

imposing consecutive sentences. However, Smith contests the trial court’s R.C.

2929.14(C)(4)(b) finding. Specifically, he argues the “multiple offenses [of which he was

convicted] amount to a single act and were not so great or unusual that the trial court

-23-

could not have met the purposes and principles of sentencing with a single prison term.”

{¶ 67} We disagree. The deaths and serious injuries to multiple victims supported

the trial court’s conclusion that the harm caused by Smith’s conduct was so great that a

single prison term was not adequate to reflect the seriousness of his conduct. Moreover,

the record supported the trial court’s finding that Smith’s criminal history demonstrated

that consecutive sentences were necessary to protect the public from future crime.

{¶ 68} The trial court had the benefit of a presentence investigation report which

showed that Smith had an extensive criminal history. The report showed a juvenile

adjudication for offenses that, had he been an adult, would have constituted the crimes

of criminal damaging and felony unauthorized use of a vehicle. Further, between 2007

and 2021, Smith was convicted of 11 misdemeanor offenses, including three convictions

for operating a vehicle under the influence. Additionally, he was convicted of a felony

OVI offense in December 2021.

{¶ 69} The record also reflects that Smith was on community control sanctions at

the time of the instant offense, as he had been placed on five years of community control

sanctions for the 2021 conviction. As part of those sanctions, he was placed on an SL2

alcohol monitor, and his license was suspended. In June 2022, Smith absconded after

cutting and removing the alcohol monitor. He was not located until he was involved in

the instant offense.

{¶ 70} Given this record, we cannot say that the court's findings were clearly and

convincingly not supported by the record. Smith’s sixth assignment of error is overruled.

-24-

VIII. Conclusion

{¶ 71} All of Smith’s assignments of error being overruled, the judgment of the trial

court is affirmed.

.............

LEWIS, J. and HANSEMAN, J., concur.