The opinion
Shaw, Judge,
dissenting.
{¶ 22} Because I believe that the trial court adequately determined the issue of whether the decedent was proceeding in a lawful manner, I respectfully dissent.
{¶ 23} R.C. 2903.06 governs the offense of vehicular manslaughter and provides:
(A) No person, while operating or participating in the operation of a motor vehicle, motorcycle * * * shall cause the death of another * * * in any of the following ways:
Hi Hi *
(4) As the proximate result of committing a violation of any provision of any section contained in Title XLV of the Revised Code that is a minor misdemean- or or of a municipal ordinance * * * for the violation, is substantially equivalent to any provision of any section contained in Title XLV of the Revised Code that is a minor misdemeanor.
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(D) Whoever violates division (A)(4) of this section is guilty of vehicular manslaughter. Except as otherwise provided in this division, vehicular manslaughter is a misdemeanor of the second degree.
{¶ 24} In analyzing this offense, the majority concludes that the fact-finder (in this case the trial court) must make a specific and affirmative finding that the speed of the decedent, while in excess of the posted speed limit, is reasonable under the circumstances as a predicate to any further determination of the charge. The majority asserts that without this specific finding, the trial court could not determine that the decedent was proceeding in a lawful manner when decedent’s motorcycle collided with Neill’s car and, therefore, that the trial court cannot find that the defendant failed to yield the right of way until it determines whether the decedent’s speed was reasonable.
{¶ 25} I do not necessarily disagree that the determination suggested by the majority as to the overall reasonableness of the speed of the motorcycle is probably an essential step in a finding of guilt under R.C. 2903.06(A)(4). However, I believe that the determination is implicit in the trial court’s analysis of proximate cause and that the essential inquiry for this court is simply whether the totality of the evidence supports the conclusions necessary for conviction, including the conclusion that the overall speed of the motorcycle was not unreasonable to the extent that it became the proximate cause of the collision.
{¶ 26} Specifically, if the evidence satisfies us that these conclusions are adequately supported in the record, I am not convinced that the statute or the case authority requires the fact-finder in a case such as this to make a special finding as to the speed of the motorcycle in order to demonstrate the legitimacy of its overall determination of guilt under R.C. 2903.06(A)(4) to the reviewing court. See, for example,
Upper Arlington v. Streets
(Dec. 20, 1994), 10th Dist. No. 94APC04-534, 1994 WL 714609 , *3, citing
Cleveland v. Keah
(1952), 157 Ohio St. 331 , 47 O.O. 195 , 105 N.E.2d 402 (“the trial court could find on the evidence before it that [appellant’s] speed was reasonable under the conditions, even though it was not required to do so”);
State v. West
(Apr. 9,1990), 12th Dist. No. CA89-11-096, 1990 WL 40619 , *2 (based on the evidence presented that Carr was exceeding the 40-mile-per-hour posted speed limit by as much as ten miles per hour at the time of the accident, the trial court could have determined that Carr was not traveling at an unreasonable rate of speed).
{¶ 27} R.C. 2903.06(A)(4) requires that the defendant’s violation of the specified traffic offense be the proximate cause of the death of another person. Some traffic violations, such as failing to yield the right of way, are unusual in that proof of the charge necessarily involves an evaluation of the conduct of more than one person, i.e., the drivers of the two vehicles involved in the accident. More
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over, where the failure-to-yield charge is a predicate offense to a manslaughter charge as it is here, the proximate-cause determination of R.C. 2908.06(A)(4) is necessarily related to the conduct of both drivers in such a way that the fact finder can determine guilt only upon a totality-of-the-evidence analysis.
{¶ 28} In my view, this is exactly what the trial court did in this case. The trial court considered all of the evidence presented at trial when it made the determination that Neill failed to yield to the right of way of other traffic:
The Court FINDS that Nicole Neill had the legal obligation to proceed from the Subway parking lot in a lawful fashion, yielding the right-of-way to all oncoming traffic. Based upon the testimony of Adam Hewitt, Jordan Kotsaris and the expert witnesses and the relative times offered into evidence as to the amount of time Nicole Neill had in order to avoid the collision, the Court FINDS that Nicole Neill violated Bellefontaine City Ordinance § 331.22, Failure to Yield, a minor misdemeanor.
{¶ 29} The trial court made these findings based upon the testimony offered at the trial, including the lengthy testimony of expert witnesses regarding their opinions of decedent’s rate of speed and a viewing of the motor vehicle driven by Neill and the motorcycle driven by decedent. While Neill testified that she looked both to her left and right before pulling out of the Subway parking lot, the testimony of two other witnesses cast doubt on Neill’s testimony. For example, Adam Hewitt and Jordan Kotsaris, both traveling on State Route 68 at the time of the accident, testified both to seeing decedent’s motorcycle traveling south on State Route 68 and to seeing Neill’s car pull out of the Subway parking lot into its path. Further, Neill’s statement, given shortly after the collision, indicated that Neill also saw the motorcycle as she was pulling out of the Subway parking lot. Neill’s later testimony that she did not see either of the two cars or decedent’s motorcycle could reasonably support inferences that she failed to look at all before pulling out of the Subway parking lot or that she misjudged the amount of time she had to safely enter the right of way of traffic. Either conclusion would support the trial court’s determination that Neill committed the offense of failure to yield the right of way in entering State Route 68.
{¶ 30} In sum, while the trial court did not make a specific finding as to the rate of speed of the motorcycle preceding the collision, the trial court determined based on the evidence and the testimony that Neill had ample time to react to the motorcycle traveling south on State Route 68 had she looked to her left before pulling out of the Subway parking lot. The trial court’s determination implicitly reflects the conclusion that the speed of the motorcycle did not serve to forfeit decedent’s right of way. Therefore, in my view, the record supports the finding by the trial court that Neill failed to yield the right of way. Accordingly, I would
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affirm the judgment of the Common Pleas Court of Logan County with regard to the conviction pursuant to Bellefontaine City Ordinances 331.22.
{¶ 31} As to the second assignment of error, upon making the finding that Neill was guilty of failure to yield the right of way and, therefore, guilty of a minor misdemeanor, the trial court further specifically addressed whether Neill’s actions were the proximate cause of the deaths of the decedents. In doing so, the trial court relied upon this court’s decision in
State v. Langenkamp
(2000), 137 Ohio App.3d 614, 621 , 739 N.E.2d 404 , which applied the proposition of law that “contributory negligence of the decedent cannot be a defense to vehicular homicide, unless it is the sole proximate cause of the accident.” Although the
Langenkamp
case involved the offense of vehicular homicide pursuant to R.C. 2903.06(A)(3),
4
the analysis is applicable to the offense of vehicular manslaughter as well.
{¶ 32} In
Langenkamp ,
the appellant was driving on a two-lane road in a rural area of Mercer County when he came upon a slow-moving, full-size pickup truck towing a 16-foot trailer. Appellant attempted to pass the truck by moving into the lane of oncoming traffic. At the time appellant moved into that lane, he was in a legal passing zone. However, shortly after moving into the lane, appellant started traveling through a no-passing zone. Appellant continued traveling in the lane of oncoming traffic through an intersection. As appellant attempted to pass the pickup truck he realized that there was a slow-moving tractor pulling a hay baler traveling directly in front of the truck. Nevertheless, appellant maintained his position and accelerated through the no-passing zone. While appellant was attempting to pass the vehicles, the tractor initiated a left turn across the lane of oncoming traffic. Appellant applied his brakes in an attempt to avoid the tractor, but was unable to do so. Appellant’s vehicle collided with the tractor. As a result of the collision, the driver of the tractor was killed. Appellant was convicted of vehicular homicide.
{¶ 33} On appeal, appellant argued that while the collision was the proximate cause of the decedent’s death, appellant’s actions were not the proximate cause of the collision. Proximate cause of an event is defined as “that which in a natural and continuous sequence, unbroken by any new, independent cause, produces that event and without which that event would not have occurred.” 137 Ohio App.3d at 621 , 739 N.E.2d 404 , citing
Aiken v. Indus. Comm.
(1944), 143 Ohio St. 113, 117 , 28 O.O. 50 , 53 N.E.2d 1018 . The appellant in
Langenkamp
argued that the driver of the tractor failed to look in his rear-view mirrors before turning left and failed to use his turn signal to alert drivers behind him before turning. While the
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record in the case did not contain evidence to corroborate or rebut appellant’s assertion that decedent failed to look in his rear-view mirror, this court held that even assuming that decedent did not do so, the trial court did not err in determining that appellant’s actions were the proximate cause of the accident.
Langenkamp,
137 Ohio App.3d at 622 , 739 N.E.2d 404 . This court held that “[a]ny failure by the decedent to do so may have been a contributing factor to the accident; however, in light of the appellant’s actions, we cannot say that it was the sole proximate cause of the accident.” Id.
{¶ 34} In the case sub judice, the trial court adopted the line of reasoning from the
Langenkamp
case and found that “while the Burkhammer motorcycle was most probably exceeding the posted speed limit of 35 mph, and taking into account all the other facts and circumstances entered into evidence, the court cannot make the finding that the decedent was 100% at fault.” Three experts testified at trial and offered three different approximations of decedent’s speed. The trial court concluded that despite decedent’s speed, Neill had between 5.5 and 11.7 seconds within which she could have reacted in a manner other than entering the lane of traffic within which decedent was traveling. In my view, these conclusions are sufficient to support the trial court’s determination that Neill’s failure to yield the right of way was the proximate cause of the death of another pursuant to R.C. 2903.06(A)(4).
{¶ 35} As the trial court’s findings and determinations regarding the right of way and proximate cause are adequately supported by the record, I would affirm the judgments of the Juvenile Court of Logan County with regard to Neill’s conviction of two counts of vehicular manslaughter.
4
. Vehicular homicide was formerly codified under R.C. 2903.07, which is the section referred to in the
Langenkamp
case.