[Cite as State v. Neale, 2012-Ohio-2530.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :      JUDGES:
                                               :
                                               :      Hon. Patricia A. Delaney, P.J.
                       Plaintiff-Appellee      :      Hon. W. Scott Gwin, J.
                                               :      Hon. Julie A. Edwards, J.
-vs-                                           :
                                               :      Case No. 2011 CA 00090
STEVE C. NEALE, JR.                            :
                                               :
                                               :
                       Defendant-Appellant     :      OPINION



CHARACTER OF PROCEEDING:                           Appeal from the Licking County Court of
                                                   Common Pleas Case No. 2010 CR 289


JUDGMENT:                                          AFFIRMED

DATE OF JUDGMENT ENTRY:                            June 4, 2012


APPEARANCES:

For Defendant-Appellant:                              For Plaintiff-Appellee:

THOMAS M. TYACK                                       KENNETH W. OSWALT
JAMES P. TYACK                                        Licking County Prosecuting Attorney
536 South High Street                                 20 South Second Street, Fourth Floor
Columbus, Ohio 43215                                  Newark, Ohio 43055
[Cite as State v. Neale, 2012-Ohio-2530.]


Delaney, J.

        {¶1}     Defendant-Appellant Steve C. Neale, Jr. appeals his conviction, following

a jury trial, in the Licking County Court of Common Pleas on three counts of aggravated

vehicular homicide (R.C. 2903.06(A)(1)(a)), three counts of vehicular homicide (R.C.

2903.06(A)(3)(a)), one count of aggravated vehicular assault (R.C. 2903.08(A)(1)(a)),

one count of negligent assault (R.C. 2903.14(a)), and one count of operating a vehicle

under the influence of alcohol (R.C. 4511.19(A)(1)(a) and (e)).

        {¶2}      The trial court sentenced Neale to an aggregate term of incarceration of

ten years, followed by three years of postrelease control and a lifetime drivers’ license

suspension.

                                   FACTS AND PROCEDURAL HISTORY

        {¶3}     On Sunday, June 15, 2008, just after midnight, Neale was driving a Chevy

Avalanche truck northbound on State Route 310. At the intersection of Route 310 and

Morse Road (CR 25), in Licking County, Ohio, Neale collided with a Saturn passenger

car driven eastbound by Gabrielle Mayabb, instantly killing her front seat passenger

Kevin Miller. Mayabb and a back seat passenger in the Saturn, Nicole Swigert-Moats,

subsequently died from their injuries. Paul Davis, Jr., also a back seat passenger, was

ejected from the Saturn and sustained serious injury. Davis survived the crash but with

permanent injury.

        {¶4}     Neale was seen by a paramedic at the scene. Neale did not have any

observable injury, and he signed an informed refusal form. Neale was interviewed at

the scene by the investigating patrol officer. Field sobriety tests were conducted and

Neale was arrested for driving under the influence. He was then transported to the
Licking County, Case No. 2011 CA 00090                                                     3


patrol station and a urine sample was obtained from Neale. The results subsequently

indicated a finding of a concentration of 0.160 of one gram by weight of alcohol per one

hundred milliliters of Neale’s urine, in violation of the legal limit of 0.110 of one gram by

weight of alcohol per 100 milliliters of urine.

       {¶5}   On June 11, 2010, nearly two years from the date of the accident, Neale

was indicted by the Licking County grand jury on thirteen counts as follows: Aggravated

Vehicular Homicide (R.C. 2903.06(A)(1)(a)), Counts 1-3; Aggravated Vehicular Assault

(R.C. 2903.08(A)(1)(a), Count 4; Aggravated Vehicular Assault (R.C. 2903.06(A)(2)(a),

Counts 5-7; Aggravated Vehicular Assault (R.C. 2903.08 (A)(2)(b), Count 8; Vehicular

Homicide (R.C. 2903.06(A)(3)(a), Counts 9-11; Negligent Assault (R.C. 2903.14(A),

Count 12; and Driving Under the Influence (R.C. 4511.19(A)(1)(a) and/or (A)(1)(e),

Count 13 (A) and (B).

       {¶6}   Neale pled not guilty at arraignment on June 29, 2010.

       {¶7}   On July 16, 2010, the state provided a bill of particulars indicating the

charges were based upon Neale’s intoxication and excessive speed at the time of the

accident.

       {¶8}   On August 31, 2010, Neale filed a motion to suppress/in limine regarding

the field sobriety and urine test results. On October 29, 2010, Neale filed a motion in

limine to exclude the testimony of the state’s accident reconstruction expert Dr. Dennis

Guenther. The same day, Neale filed a second, more detailed motion to suppress/in

limine regarding the field sobriety and urine tests. A suppression hearing was held on

February 18, 2011 and March 7, 2011. By judgment entry filed March 18, 2011, the trial

court overruled the motions.
Licking County, Case No. 2011 CA 00090                                                    4


       {¶9}   Neale exercised his right to a jury trial which commenced on July 12,

2011. Upon hearing the evidence and deliberating, the jury found Neale guilty as to

Counts 1, 2, 3, and 4. The jury was unable to reach a verdict with regard to Counts 5, 6,

7, and 8. The jury also found Neale guilty as to Counts 9, 10, 11, 12, 13(A) and (B).

       {¶10} On July 29, 2011, Neale filed a motion for judgment of acquittal, or in the

alternative, motion for a new trial. The trial court denied the motion by entry filed August

26, 2011.

       {¶11} The trial court sentenced Neale on September 1, 2011, to a mandatory

prison term of three years each on Counts 1, 2 and 3; one year on Count 4, and six

months on Count 13. Counts 1, 2, 3 and 4 were run consecutively with each other and

concurrently with Count 13, for an aggregate sentence of ten years. For purposes of

sentencing, Counts 9, 10, 11 and 12 merged with Counts 1, 2, 3, and 4. The state

dismissed the remaining counts.

       {¶12} Neale filed a notice of appeal on September 2, 2011 and raises five

assignments of error for our consideration:

       {¶13} “I.    THE TRIAL COURT ERRED IN OVERRULING DEFENDANT’S

MOTION TO SUPPRESS

       {¶14} “II. THE TRIAL COURT ERRED WHEN IT ALLOWED THE STATE’S

PRIVATELY HIRED EXPERT TO TESTIFY

       {¶15} “III. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR OF LAW

WHEN IT DENIED THE DEFENDANT’S REQUEST FOR JURY INSTRUCTIONS

       {¶16} “IV. THE EVIDENCE WAS INSUFFICIENT TO FIND THE APPELLANT

GUILTY (T.R. Vol. I-IV)
Licking County, Case No. 2011 CA 00090                                                         5


          {¶17} “V.     APPELLANT’S CONVICTION WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE (T.R. Vol. I-IV)

                                                 I.

          {¶18} First, Neale argues on appeal that the trial court should have suppressed

the results of the horizontal gaze nystagmus test (HGN) conducted by the trooper at the

scene.1 Neale also argues the trial court should have suppressed the results of the

urine test for lack of substantial compliance with Ohio Department of Health (ODH)

regulations as set forth in Ohio Administrative Code (OAC) 3701-53-05(F) and 3701-

53-06.

          {¶19} “Appellate review of a motion to suppress presents a mixed question of

law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8.                  The

appellate court must accept the trial court’s factual findings, provided they are supported

by competent, credible evidence. Id., citing State v. Fanning, 1 Ohio St.3d 19 (1982). A

reviewing court then applies the factual findings to the law regarding suppression of

evidence. An appellate court reviews the trial court’s application of law de novo. State

v. Anderson, 100 Ohio App.3d 688 (4th Dist. 1995).

                                               HGN Test

          {¶20} The results of field sobriety tests are admissible at trial if the state

presents clear and convincing evidence that the officer administered the tests in

substantial compliance with the National Highway Traffic Safety Administration

(NHTSA) standards. See, R.C. 4511.19(D)(4)(b).




1
    On appeal, Neale does not challenge the results of the One-Leg Stand or Walk and Turn tests.
Licking County, Case No. 2011 CA 00090                                                      6


       {¶21} The burden of proof in a motion to suppress the results of a field sobriety

test is on the state once the defendant has made an issue of the legality of the test.

State v. Ryan, 5th Dist. No. 02-CA-00095, 2003-Ohio-2803.

       {¶22} Part of the state’s burden includes demonstrating what the NHTSA

standards are through competent testimony and/or by introducing the applicable

portions of the NHTSA manual. In State v. Boczar, the Ohio Supreme Court held that

HGN test results are admissible in Ohio without expert testimony, so long as substantial

compliance with testing guidelines has been shown and a proper foundation has been

established as to the administering officer’s ability to administer the test and the officer’s

actual technique in administering the test. State v. Boczar, 113 Ohio St.3d 148, 2007-

Ohio-1251, ¶ 28.

       {¶23} In this case, Trooper Chad Maines testified at the suppression hearing as

to his qualifications and training in conducting field sobriety testing, as well as to the

NHTSA guidelines for HGN testing. He described how he performed the HGN test upon

Neale and stated the test was performed in substantial compliance with the NHTSA

guidelines. Maines stated Neale exhibited six of all possible six clues on the HGN test.

       {¶24} On appeal, Neale does not identify any specific error with Trooper Maines’

administration of the HGN test, in light of NHTSA guidelines, but nevertheless argues

conditions at the scene warranted suppression.

       {¶25} First, Neale claims the accident scene was littered with emergency

vehicles with bright lights, including strobe lights. However, Maines testified he moved

Neale away from the scene so there were no lights near the test area, nor did any

vehicle pass the area during the test. If any light was present, Maines stated it was to
Licking County, Case No. 2011 CA 00090                                                 7


the backside of Neale. (Suppression Hearing T. at 54-55). Second, Neale claims that

he was struck by the airbag upon impact and had injury to his nose. However, Maines

stated Neale had no visible signs of injury to the nose and had not lost consciousness.

(Id. at 51-52). Lastly, Neale claims that the trooper’s hand shook while administering

the test. Maines conceded that did in fact occur. (Id. at 102). Upon redirect, Maines

stated the hand shake does not affect the test results. (Id. at 113).

       {¶26} In its judgment denying Neale’s motion to suppress, the trial court found

“the specific field sobriety tests conducted by Trooper Maines were done in substantial

compliance sufficient to comply with the requirements set forth by the State of Ohio for

admissibility purposes.” Judgment Entry, March 18, 2011.

       {¶27} Upon review, we find the trial court properly overruled Neale’s motion to

suppress in regards to the HGN test as the testimony established compliance with the

NHTSA guidelines.

                                            Urine Test

       {¶28} The results of an alcohol content test administered pursuant to R.C.

4511.19 may be admitted into evidence upon a showing that the test was administered

in accordance with ODH regulations.         R.C. 4511.19(D)(1)(b).      In regards to the

collection and handling of urine specimens, ODH promulgated OAC 3701-53-05(F)

which states the “while not in transit or under examination, all blood and urine

specimens shall be refrigerated.” Without a showing of prejudice to a defendant, the

results of a urine test administered in substantial compliance with OAC 3701-53-05 are

admissible in a prosecution under R.C. 4511.19. State v. Plummer, 22 Ohio St.3d 292

(1986), at syllabus.
Licking County, Case No. 2011 CA 00090                                                    8

       {¶29} In State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 34, the Ohio

Supreme Court limited “the substantial compliance standard set forth in Plummer to

excusing only errors that are clearly de minimis. Consistent with this limitation, we have

characterized those errors that are excusable under the substantial compliance

standard as ‘minor procedural deviations’.” (Citation omitted.)

       {¶30} Neale provided a urine sample to Trooper Maines at 2:25 a.m. on June

15, 2008.   Maines witnessed the collection and then proceeded to place a sodium

fluoride capsule in the sample for preservation.       Maines packaged the sample for

mailing and kept it in his possession until his shift ended at approximately 7 a.m. that

day. En route home, he placed the package in the U.S. mailbox located at East Main

Street in Newark.

       {¶31} The sample was received by Ohio State Highway Patrol Crime Lab in

Columbus, Ohio on June 18, 2008 at 10:40 a.m. and placed into a refrigerator. Later

that day, at 1:35 p.m., the sample was removed from the refrigerator for logging into the

computer and placed into the “log-in” refrigerator.

       {¶32} On June 19, 2008, criminalist Mark Hiatt removed the sample from the

log-in refrigerator at 10:05 a.m. and took it to the lab space for alcohol testing; the area

is not refrigerated. Sometime between 10:05 a.m. and 2:20 p.m., Hiatt pulled two 100-

microliters aliquot of sample and placed both into the gas chromatography testing

instrument. Hiatt did not observe any indication of deterioration in the urine, such as

any type of bacterial growth. He then placed the remaining sample into the “toxicology”

refrigerator at 2:20 p.m.   The testing in the machine actually occurred at 4:31 p.m. for

the first sample and indicated a finding of .160 grams by weight of alcohol per 100
Licking County, Case No. 2011 CA 00090                                                        9


millimeters of urine. The second sample was tested at 7:44 p.m. and indicated a finding

of .161 grams. Hiatt testified that duplicate testing is performed to ensure quality results.

Per lab policies, the lower of the two numbers is the reported value.

       {¶33} Neale first challenges the admissibility of the urine test results because

the state failed to properly refrigerate the sample after it was collected. Specifically,

Neale argues the sample was unrefrigerated while in the custody of Trooper Maines, for

approximately four and half hours, and then roughly another six and half to nine hours

and half hours when the sample was not refrigerated while awaiting testing by Hiatt at

the lab.

       {¶34} As an initial matter, both Neale and the state agree that the placement of

the urine sample in the mail box until its receipt by the lab is clearly “in transit” within the

contemplation of OAC 3701-53-05(F).          The state, however, contends that the time

between when the sample was given until it was mailed also constitutes “in transit”.

Neale argues Maines’ retention of the urine sample in an unrefrigerated state for over

four and half hours before mailing was a violation.

       {¶35} In State v. Plummer, 22 Ohio St.3d 292 (1986), the Ohio Supreme Court

found no violation of OAC 3701-53-05(F) when a urine specimen went unrefrigerated for

a period of one hour and twenty-five minutes prior to mailing, and again went

unrefrigerated for a period of three to four hours after the specimen had been delivered

to the laboratory. See also, State v. Mayl, 106 Ohio St.3d 207, 2005-Ohio-4629, ¶ 50,

fn. 2 (concluding there was substantial compliance with OAC 3701-53-05(F) where

blood sample was not refrigerated for nearly one hour and 45 minutes); State v. Price,

11th Dist. No. 2007-G-2785, 2008-Ohio-1134, ¶ 26 (holding that retention of a blood
Licking County, Case No. 2011 CA 00090                                                  10

specimen in an unrefrigerated state for six hours before mailing not a violation); State v.

Schell, 5th Dist. CA-7884, 1990 WL 83992 (June 18, 1990) (blood sample

unrefrigerated for five hours is within range of substantial compliance). But see, State v.

DeJohn, 5th Dist. No. 06-CA-16, 2007-Ohio-163, (finding that failure to refrigerate urine

sample for 17 hours while in possession of trooper before mailing was not a slight delay

or minor procedural deviation).

       {¶36} While we do not characterize the pre-mail time period as “in transit”, we

find there was substantial compliance with OAC 3701-53-05(F) as, pursuant to Plummer

and Mayl, supra, a few hours where the sample was not refrigerated was still sufficient

to constitute substantial compliance.    In addition, the time period the test sample was

removed from the refrigerator until the testing process was concluded, in this court’s

view, would constitute “under examination” for purposes of the regulation.

       {¶37} Neale also attacks the reliability of the urine test results because neither

Maines or Hiatt knew how much sodium fluoride was in the preservative capsule, and

Maines did not know that “SF” stood for sodium fluoride. However, OAC 3701-53-05

does not set forth, nor does Neale identify, any ODH requirement regarding sodium

fluoride.

       {¶38} Even though we have determined that the state demonstrated substantial

compliance, and thus, the urine test results were admissible, Neale argues he was

prejudiced by less than strict compliance. He contends that at trial he presented the

testimony of Dr. Robert Belloto to demonstrate the urine test results were not reliable.

Dr. Belloto testified that the proper amount of sodium fluoride improves the quality of the
Licking County, Case No. 2011 CA 00090                                                     11


sample and prevents the fermentation of any sugar to ethanol at room temperature, if

the sample is contaminated with yeast or bacteria.

         {¶39} At trial, the trial court correctly determined that Dr. Belloto’s testimony

went to the weight of the evidence, not the admissibility, of the urine test results. We

agree.     In addition, Dr. Belloto’s testimony was not presented at the suppression

hearing and therefore, the trial court did not consider it when ruling upon the motion to

suppress.

         {¶40} Finally, Neale contends the urine sample was not properly tested,

pursuant to OAC 3701-53-06, claiming the state did not demonstrate the crime lab was

properly certified.

         {¶41} Ohio Adm.Code 3701-53-06 sets forth, in relevent part, the laboratory

requirements to ensure the accuracy of bodily substance test results, as follows:

         {¶42} * * *

         {¶43} “(B) The laboratory shall successfully complete a national proficiency

testing program using the applicable technique or method for which the laboratory

personnel seek a permit under rule 3701-53-09.

         {¶44} “(C) The laboratory shall have a written procedure manual of all analytical

techniques or methods used for testing of alcohol or drugs of abuse in bodily

substances. Text books and package inserts or operator manuals from the

manufacturer may be used to supplement, but may not be used in lieu of the

laboratory’s own procedure manual for testing specimens.

         {¶45} “(D) The designated laboratory director shall review, sign, and date the

procedure manual as certifying that the manual is in compliance with this rule. * * * ”.
Licking County, Case No. 2011 CA 00090                                                       12


       {¶46} At the suppression hearing, Hiatt testified he is a certified lab technician

by ODH for the gas chromatography method to test alcohol. He further testified that he

is employed by the Ohio State Highway Patrol Crime Lab. Hiatt stated the lab is

required to have a written procedure manual present when testing and, in fact, the

alcohol procedure manual was present in the same work space as the samples that are

tested. He further stated that the lab is subject to the proficiency examinations and he
                                    2
established through the affidavit       of the Director of Toxicology that the lab satisfies all

the quality standards set forth in OAC Chapter 3701.          Although general in nature, we

find the evidence established substantial compliance with the lab requirements of 3701-

53-06. In fairness to the state, the motions to suppress filed by Neale were equally as

general and only specifically raised the issue as to whether the manual was or was not

present in the lab testing area.

       {¶47} For all of the reasons set forth above, Neale’s first assignment of error is

overruled.

                                                    II.

       {¶48} Second, Neale argues on appeal that the trial court erred in admitting the

testimony of the state’s accident reconstruction expert Dr. Dennis Guenther.3 Neale

claims that Dr. Guenther made calculations “based upon assumptions that were not

observed personally by him or for which there was any evidence admitted at trial”

specifically, “that the Saturn was stopped at the stop bar.” Appellant’s Brief at p. 17.



2
  The affidavit, signed on May 12, 2008 by the Lab Director, preceded the specific testing by
Hiatt on June 19th, however, we still conclude substantial compliance was demonstrated by the
state.
3
  Neale does not dispute Dr. Guenther’s qualifications as an expert in accident reconstruction
under Evid.R. 702.
Licking County, Case No. 2011 CA 00090                                                  13


         {¶49} Evid.R. 703 provides that: “The facts or data in the particular case upon

which an expert bases an opinion or inference may be those perceived by the expert or

admitted in evidence at the hearing.”

         {¶50} Further, Evid.R. 704 provides that: “Testimony in the form of an opinion or

inference otherwise admissible is not objectionable solely because it embraces an

ultimate issue to be decided by the trier of fact.”

         {¶51} Evidentiary rulings are exercised within the broad discretion of the trial

court and will not be reversed on appeal unless there is an abuse of discretion that

materially prejudices a defendant. State v. Long, 53 Ohio St.2d 91, 98 (1978).

         {¶52} Dr. Guenther was retained by the state to review the crash report, the

2008 accident reconstruction report by Ohio State Patrol Sgt. Frank Horvath, the CDR

(also referred to as the “black box”) crash data of the Avalanche and the Saturn 4, and

photographs of the scene and intersection.

         {¶53} Dr. Guenther issued a report on June 1, 2010 to which he testified at trial.

Based upon materials he reviewed, Dr. Guenther concluded that the impact speed of

the Avalanche was 50 to 53 mph and the impact speed of the Saturn was 18 to 19 mph.

The CDR crash data of the Avalanche also revealed that Neale had set his cruise

control at 65 mph before he applied his brake for approximately one second prior to

impact. Based upon the calculated speed of the Saturn, Dr. Guenther opined that the

Saturn had stopped at the traffic light and then accelerated from its stopped position to

its impact position.




4
    No usable data was obtained from the Saturn box.
Licking County, Case No. 2011 CA 00090                                                  14


       {¶54} Importantly, Dr. Guenther offered no opinion as to which unit failed to yield

for a red traffic signal. Instead Dr. Guenther reconstructed the accident in his report, as

follows:

       {¶55} “The travel time of the Saturn from its stop position to its impact position

was about 4.43 seconds.        The Avalanche had about 1 second of braking time.

Assuming Mr. Neale had a perception-reaction time of 1.5 seconds, he should have

been able to apply the brakes sooner and had a least 1 to 2 more seconds braking time.

Based on these numbers, we conclude that Mr. Neale’s perception-reaction time most

likely was about 3 to 3.5 seconds, which was longer than the 1.5-second perception-

reaction time for an average driver. If he had 1 to 2 more seconds of braking time, the

velocity of the Avalanche at its impact position would have been lowered to 18.5 to 37.1

mph.

       {¶56} “Had Mr. Neale been traveling at the speed limit of 55 mph instead of 65

mph before braking, the Saturn definitely would have crossed SR 310 and it would have

been on the east side of the intersection before Mr. Neale’s Avalanche reached the

intersection and this accident would have been avoided.

       {¶57} “Mr. Neale had set his vehicle at a cruise control of 65 mph when his

vehicle was traveling on SR 310 and approaching the traffic light at the intersection with

CR 25. At 5 seconds prior to impact, his Avalanche was still traveling at 65 mph when it

was about 460 feet from its impact position. The posted speed limit on SR 310 was 55

mph. Based on these facts, we conclude that Mr. Neale was traveling at a dangerously

and excessive speed of 65 mph immediately prior to the impact with the Saturn.”
Licking County, Case No. 2011 CA 00090                                                   15


       {¶58} It is clear from the record and to this court that the data upon which Dr.

Guenther arrived at his opinion was based upon physical evidence admitted at trial such

as tire marks on the pavement, scene photographs of the damaged vehicles, and CDR

crash data.    From this information, Dr. Guenther employed principles of accident

reconstruction such as drag coefficients of friction and perception/reaction time, in

conjunction with the physical evidence, to determine impact speed, impact location,

departure locations and post-impact travel distance.

       {¶59} Neale contends Dr. Guenther improperly “assumed the Saturn was

stopped” because the state’s witness and sole surviving occupant of the Saturn, Paul

Davis, Jr. , testified he had no memory of the car stopping for a red light and he thinks

the Saturn was going about 30 to 35 mph at impact. In addition, Neale has always

maintained that he had a green light and the Saturn ran the red light.

       {¶60} However, we find such argument goes to the weight of the evidence and

not its admissibility. The credibility and reliability of Davis and Neale’s testimony was at

issue at trial for several reasons. Davis was in critical condition and in a coma for two

weeks after the accident and has a lasting brain injury which affects his memory. He

also stated his recollection of the crash comes, in part, from his dreams. At trial, Neale

was confronted with several inconsistencies between a signed statement he gave to

Trooper Maines and his trial testimony. For example, Neale told the trooper he was

going about 45 to 50 mph on SR 310 and that he was wearing a seat belt. However,

the vehicle data indicated Neale’s cruise control was set at 65 mph and the seat belt

was not engaged.      He told the trooper he was coming from a friend’s house in

Pataskala, when in fact he had left a bar. He also stated he had four to five beers at an
Licking County, Case No. 2011 CA 00090                                                  16


afternoon golf outing and none that evening, but then stated he stopped drinking at 8:00

or 8:30 p.m.

       {¶61}    We find unavailing Neale’s claim that Dr. Guenther did not have any

evidence that the Saturn possibly stopped before proceeding into the intersection.

Accordingly, because Dr. Guenther’s opinion was based on facts admitted into

evidence, such as the scene measurements and photographs, his testimony was

admissible under Evid.R. 703.

       {¶62} We overrule Neale’s second assignment of error.

                                               III.

       {¶63} Neale’s third argument claims that the trial court failed to adequately

instruct the jury on proximate cause with respect to Counts 1-3, aggravated vehicular

homicide.

       {¶64} This court reviews a trial court’s refusal to give a specific jury instruction

for an abuse of discretion. State v. Wolons, 44 Ohio St.3d 64 (1989). As a general rule,

a trial court should give a requested charge that is pertinent to the case, states the law

correctly, and is not covered by the general charge. State v. Madrigal, 87 Ohio St.3d

378, 394 (2000).

       {¶65} Pursuant to Crim.R. 30, parties may file written requests for specific jury

instructions.   Neale filed proposed jury instructions regarding: cause (Ohio Jury

Instruction-Criminal 417.23), natural consequences (OJI-CR 417.23), assuming others

will obey the law (OJI-CV 401.31), intervening cause, recklessly (OJI-CR 417.17),

proximate cause, foreseeability, negligently, due care, substantial, and risk (OJI-CR

417.19).
Licking County, Case No. 2011 CA 00090                                                17


       {¶66} The trial court instructed the jury pursuant to OJI 417.17, 417.19, 417.23

and 417.25 as to recklessly, cause, natural consequences, intervening cause, and risk.

The trial court also accepted Neale’s instructions on the issue of negligently, due care

and substantial lapse.

       {¶67} However, the trial court did not accept Neale’s requested instructions

regarding independent intervening causes and natural consequences that suggested

that Neale could be relieved from criminal liability if the Saturn had run the red light,

despite Neale’s intoxication and speed. Neale’s instructions were based upon civil jury

instructions and/or language not found in OJI.     Neale did object to the trial court’s

instructions. (T. at 952).

       {¶68} We find the trial court did not err in refusing Neale’s proposed jury

instructions on these issues because they are not applicable in a criminal proceeding

involving vehicular homicide. See, State v. Schroeder, 5th Dist. No. 10CA37, 2011-

Ohio-2169, ¶ 150, citing State v. Langenkamp, 137 Ohio App.3d 614, 2000-Ohio-1831

(“ * * * it is well settled that any contributory negligence of the decedent cannot be a

defense to vehicular homicide, unless it is the sole proximate cause of the accident,

(citations omitted).”

       {¶69} In addition, the proposed instructions are directly contrary to OJI 417.25

(1) and (2) which states:

       {¶70} “1. OTHER CAUSES NOT A DEFENSE. There may be one or more

causes of an event. However, if a defendant’s act or failure to act was one cause, then

the existence of other causes is not a defense.
Licking County, Case No. 2011 CA 00090                                                   18


       {¶71} “2. INTERVENING CAUSES. The defendant is responsible for the natural

consequences of the defendant’s unlawful act or failure to act, even though death or

physical harm to person was also caused by the intervening act or failure to act of

another person.”

       {¶72} Finally, Neale argues the trial court erred in refusing to accept his

proposed instructions as to foreseeability, as set forth in this court’s opinion in State v.

Barron, 5th Dist. No. 05CA 4, 2005-Ohio-6108, ¶ 15 (citations omitted). However, we

find the proposed instruction was covered by the court’s instruction on causation,

natural consequences and risk.

       {¶73} The record reflects the trial court’s instructions on causation were taken

nearly verbatim from OJI. Therefore, we cannot find that the trial court abused its

discretion, and the third assignment of error is overruled.

                                            IV. and V.

       {¶74} In the fourth and fifth assignments of error, Neale argues the evidence

was insufficient to support the convictions which require causation, and that those

convictions are against the manifest weight of the evidence.

       {¶75} 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 (1991),

paragraph two of the syllabus.

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

evidence, the appellate court acts a thirteenth juror and “in reviewing the entire record,
Licking County, Case No. 2011 CA 00090                                                19


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.

       {¶77} As stated earlier, Neale was convicted of three counts of aggravated

vehicular homicide (R.C. 2903.06(A)(1)(a)), three counts of vehicular homicide (R.C.

2903.06(A)(3)(a)), one count of aggravated vehicular assault (R.C. 2903.08(A)(1)(a)),

one count of negligent assault (R.C. 2903.14(a)). The underlying violations to these

charges were intoxication and/or speeding as noted in the indictment and bill of

particulars.

       {¶78} In this case, the state established causation through the formulation of the

accident with the expert assistance of Dr. Guenther. He testified at trial that Neale’s

excessive speed and intoxication impacted stopping distance and normal reaction time.

Dr. Guenther determined, based upon physical evidence, that the Saturn was traveling

approximately 18 mph at the time of impact. He concluded based upon a 1999 Saturn’s

build that this acceleration was from a stopped position at the stop bar on Morse Road.

Also, using data retrieved from the Avalanche’s box, Dr. Guenther conducted a time

distance study based upon the last four to five seconds prior to the impact point. He

opined that had Neale been going slower than 65 mph prior to braking, the impact

would not have occurred, even with a normal reaction time of 1.5 seconds.
Licking County, Case No. 2011 CA 00090                                                     20


       {¶79} In addition, Dr. Guenther further opined that alcohol can negatively affect

reaction time upwards to 2 to 4 times than normal and that this lessened Neale’s ability

to brake sooner, which caused impact at a greater speed.

       {¶80} At trial, the state also presented the testimony and June 27, 2008,

accident reconstruction report of Sgt. Frank Horvath of the State Highway Patrol. His

analysis revealed that the Saturn was traveling between 26-29 mph at impact and the

Avalanche was traveling between 47 and 52 mph.

       {¶81} Dr. Guenther disagreed with Sgt. Horvath’s conclusions for several

reasons: first, the co-efficient of friction Sgt. Horvath used was too low for the side

sliding and yawing of the Saturn in the gravel area; second, the travel distance of the

Saturn on the pavement after the impact was low because Sgt. Horvath apparently

assumed the right side tires left the two yaw marks on the pavement, however, the tire

marks were left by the left side tires; third, because the state investigator assumed the

two yaw marks were left by the right side tires of the Saturn, instead of the left side tires,

he had the impact location too far north of the centerline. As a result of these errors and

others, the calculated speed values of Sgt. Horvath were incorrect, according to Dr.

Guenther.

       {¶82} The state also presented the testimony Paul Davis, Jr. Neale contends

Davis’ testimony “annihilates” Dr. Guenther’s testimony because he has no memory of

the car stopping for the red light.

       {¶83} However, viewing the evidence most favorably to the state, we find

sufficient evidence supports a finding that the deaths of Kevin Miller, Gabrielle Mayabb
Licking County, Case No. 2011 CA 00090                                                  21


and Nicole Swigert-Moats and injury to Paul Davis, Jr. were the proximate result of

Neale’s actions.

       {¶84} The results of the field sobriety tests, urine test results and Dr. Guenther’s

testimony support that a rational trier of fact could have found the essential elements of

aggravated vehicular homicide, vehicular homicide, vehicular assault and negligent

assault beyond a reasonable doubt.

       {¶85} Neale argues that his convictions were against the manifest weight of the

evidence. The weight of the evidence concerns the inclination of the greater amount of

credible evidence offered in a trial to support one side of the issue rather than the

others. State v. Clemons, 82 Ohio St.3d 438, 444 (1998). In order for a court of

appeals to reverse the judgment of a trial court on the basis that the verdict is against

the manifest weight of the evidence, the appellate court must unanimously disagree with

the jury’s resolution of conflicting testimony. Thompkins, 78 Ohio St.3d, at 387.

       {¶86} Neale argues that his testimony establishes he had the green light and it

was not foreseeable that the Saturn would run the red light. His defense expert, Jack

Holland, also testified at trial and challenged both the conclusions of Dr. Guenther and

Sgt. Horvath. Holland opined that neither the state patrol nor Dr. Guenther adequately

evaluated the operation of the traffic loop detectors and traffic signals at the

intersection. He stated that the signal will remain green for northbound State Route 310

until triggered to cycle by an eastbound vehicle arriving at a loop. Given the phasing of

the light and Mr. Davis’ testimony that the Saturn did not stop, Mr. Holland concluded

that the light was red and would have stayed red for eastbound traffic. He also testified
Licking County, Case No. 2011 CA 00090                                                    22


that if the speed of the Saturn was 26-29 mph as calculated by Sgt. Horvath, it was not

from a dead stop.

       {¶87} Holland noted the major difference between Sgt. Horvath’s report and Dr.

Guenther’s report was that Dr. Guenther reduced the impact speed of the Saturn to

show that it was possible for the Saturn to stop at the stop bar and to accelerate to the

area of impact. Dr. Guenther did this by using an approach angle of the truck at 85

degrees, whereas the patrol had it at 89-90 degrees. The five degree difference had the

effect of reducing the speed of the Saturn at impact. In addition, Dr. Guenther had the

angle of departure for the Saturn at 73 degrees, but the patrol had it at 65 degrees. So

the combination of changing the angle of approach for the Avalanche and the departure

angle of the Saturn accounts for the difference between Sgt. Horvath’s speed

calculations and Dr. Guenther’s. The differences in the angles appear to be based

upon the interpretation of the yaw marks belonging to the left or right tires, as noted

earlier.

       {¶88} Holland put “more faith” in Sgt. Horvath’s angle calculations to determine

speed at impact, although he did not dispute Dr. Guenther’s calculation of speed based

upon his input values and interpretation of the yaw marks.

       {¶89} The jury in this case was free to accept or reject any and all of the

evidence offered at trial and assess the witnesses’ credibility. Following a review of the

entire record, we find no basis to believe that the jury clearly lost its way in convicting

Neale or that a manifest injustice of justice occurred. Although the evidence in this case

was highly technical at points, the theories of both sides were clearly laid out for the jury

in a straightforward, understandable fashion.
Licking County, Case No. 2011 CA 00090                                             23


       {¶90} Accordingly, we find the convictions were not against the manifest weight

of the evidence.

       {¶91} The fourth and fifth assignments of error are overruled.

       {¶92} The judgment of the Court of Common Pleas, Licking County, Ohio is

affirmed.

By: Delaney, P.J.

Gwin, J. and

Edwards, J. concur.



                                        HON. PATRICIA A. DELANEY



                                        HON. W. SCOTT GWIN



                                        HON. JULIE A. EDWARDS
[Cite as State v. Neale, 2012-Ohio-2530.]


                IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                  :
                                               :
                        Plaintiff-Appellee     :
                                               :
                                               :
-vs-                                           :    JUDGMENT ENTRY
                                               :
STEVE C. NEALE, JR.                            :
                                               :
                      Defendant-Appellant      :    Case No. 2011 CA 00090
                                               :




       For the reasons stated in our accompanying Opinion on file, the judgment of the

Licking County Court of Common Pleas is affirmed. Costs assessed to appellant.



                                                   _________________________________
                                                   HON. PATRICIA A. DELANEY


                                                   _________________________________
                                                   HON. W. SCOTT GWIN


                                                   _________________________________
                                                   HON. JULIE A. EDWARDS
