[Cite as State v. Hill, 2013-Ohio-4022.]


STATE OF OHIO                      )                  IN THE COURT OF APPEALS
                                   )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                   )

STATE OF OHIO                                         C.A. No.       26519

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
SHAUNTAE MARIE HILL                                   COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
        Appellant                                     CASE No.   CR 11 04 1091 (A)

                                  DECISION AND JOURNAL ENTRY

Dated: September 18, 2013



        CARR, Judge.

        {¶1}     Appellant Shauntae Hill appeals her conviction in the Summit County Court of

Common Pleas. This Court affirms in part, reverses in part, and remands.

                                                 I.

        {¶2}     A baby girl tragically died from injuries sustained when Hill crashed her car into

Lynette Hayward’s car in the middle of the night after both women had been drinking. Both Hill

and Hayward were prosecuted in regard to the incident and their cases were tried together.

        {¶3}     Hill was indicted on one count of aggravated vehicular homicide, one count of

involuntary manslaughter, one count of operating a vehicle under the influence of alcohol or

drugs, and one count of receiving stolen property. The trial court later dismissed the charge of

receiving stolen property at the State’s request. The matter proceeded to trial, at the conclusion

of which the jury found Hill guilty of the remaining three counts. The trial court merged the

count of involuntary manslaughter into the count of aggravated vehicular homicide and
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sentenced Hill to six years in prison for the homicide and twenty-four days in jail for operating

under the influence. Hill’s driving privileges were suspended for life. Hill filed a timely appeal

in which she raises five assignments of error for review.           This Court consolidates some

assignments of error to facilitate review.

                                                 II.

                                 ASSIGNMENT OF ERROR I

       APPELLANT’S CONVICTIONS FOR AGGRAVATED VEHICULAR
       HOMICIDE, INVOLUNTARY MANSLAUGHTER, AND OPERATING A
       VEHICLE UNDER THE INFLUENCE ARE AGAINST THE MANIFEST
       WEIGHT OF THE EVIDENCE.

       {¶4}    Hill argues that her convictions are against the manifest weight of the evidence.

This Court disagrees.

       In determining whether a criminal conviction is against the manifest weight of the
       evidence, an appellate court must review the entire record, weigh the evidence
       and all reasonable inferences, consider the credibility of witnesses and determine
       whether, in resolving conflicts in the evidence, the trier of fact 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. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).

       Weight of the evidence concerns the tendency of a greater amount of credible
       evidence to support one side of the issue more than the other. State v. Thompkins,
       78 Ohio St.3d 380, 387 (1997). Further when reversing a conviction on the basis
       that it was against the manifest weight of the evidence, an appellate court sits as a
       “thirteenth juror,” and disagrees with the factfinder’s resolution of the conflicting
       testimony. Id.

State v. Tucker, 9th Dist. Medina No. 06CA0035-M, 2006-Ohio-6914, at ¶ 5. This

discretionary power should be exercised only in exceptional cases where the evidence

presented weighs heavily in favor of the defendant and against conviction. Thompkins,

78 Ohio St.3d at 387.
                                                3


       {¶5}    Hill was charged with operating a vehicle while under the influence of alcohol or

drugs pursuant to R.C. 4511.19(A)(1)(a) which states: “No person shall operate any vehicle * * *

if, at the time of the operation, * * * [t]he person is under the influence of alcohol, a drug of

abuse, or a combination of them.” Hill’s charge of operating a vehicle while under the influence

of alcohol or drugs served as the predicate offense for her charges of both aggravated vehicular

homicide and involuntary manslaughter. In this assignment of error, she challenges only the

finding that she was intoxicated. Accordingly, this Court considers only that issue.

       {¶6}    This Court has addressed the type of evidence required to support a conviction for

driving while under the influence of alcohol or drugs pursuant to R.C. 4511.19(A)(1) as follows:

       “[I]n [OVI] prosecutions, the state is not required to establish that a defendant was
       actually impaired while driving, but rather, need only show an impaired driving
       ability. State v. Zentner, 9th Dist. Wayne No. 02CA0040, 2003-Ohio-2352, ¶ 19,
       citing State v. Holland, 11th Dist. Portage No. 98-P-0066, 1999 WL 1313665
       (Dec. 17, 1999). ‘[T]o prove impaired driving ability, the state can rely on
       physiological factors (e.g., odor of alcohol, glossy or bloodshot eyes, slurred
       speech, confused appearance) to demonstrate that a person’s physical and mental
       ability to drive was impaired.’ Holland, [supra], citing State v. Richards, 11th
       Dist. Portage No. 98-P-0069, 1999 WL 1580980 (Oct. 15, 1999). Furthermore,
       ‘[v]irtually any lay witness, without special qualifications, may testify as to
       whether or not an individual is intoxicated.’ Zentner at ¶ 19, quoting State v.
       DeLong, 5th Dist. Fairfield No. 02 CA 35, 2002-Ohio-5289, ¶ 60” State v. Sloan,
       9th Dist. Medina No. 04CA0103-M, 2005-Ohio-3325, ¶ 9; see also State v.
       Standen, 9th Dist. Lorain No. 05CA008813, 2006-Ohio-3344, ¶ 18.

State v. Peters, 9th Dist. Wayne No. 08CA0009, 2008-Ohio-6940, ¶ 5.

       {¶7}    At approximately 4:00 a.m. on August 29, 2010, Lynette Hayward was driving

with her five-month old granddaughter in a car seat on the back seat. As Hayward began to

make a left turn at an intersection, Hill, who was driving at a high rate of speed, slammed into

the passenger side of Hayward’s car. The baby in Hayward’s car died as a result of injuries

sustained during the crash. Hill fled the scene on foot before the police arrived, although eye
                                                  4


witnesses were able to direct the police in the direction of her flight. The police found Hill on a

back porch of a nearby home.

       {¶8}    Officer Shawn Chetto of the Akron Police Department testified that he responded

to the scene of the accident within minutes. Hayward was still in the driver’s seat of her car, but

the other car was empty. The officer testified that a group of people soon gathered on the corner

and pointed east, informing him that the driver of the other car had fled that way. After giving

chase on foot for a while, he found Hill lying on her back on someone’s back porch. He

described her as “barely conscious; appeared to be intoxicated.”

       {¶9}    Officer Mark Northup of the Akron Police Department testified that he responded

to the scene of the accident, but finding multiple officers already there, he drove around the area

looking for the multiple black females who were reported to have fled from one of the cars at the

scene. The officer heard over the radio that Officer Chetto had found a suspect, so he responded

to that address to assist. Officer Northup testified that Hill was sitting on a deck, in a party dress

with no shoes. He testified that Hill was bleeding and appeared frantic, distraught, and very

upset. Based on his training and experience, Officer Northup believed that Hill was under the

influence because her speech was slurred, her eyes were bloodshot, and she was very confused,

“yelling and saying things that didn’t make sense[.]” He testified that he did not, however, smell

an odor of alcohol around Hill. He did not perform any tests to determine whether Hill was

under the influence because he did not know that she was the driver, based on her assertions that

she was not; and he further assumed that the traffic division would conduct any such necessary

tests. Officer Northup testified, however, that Hill’s behavior, speech, and appearance were

consistent with intoxication.
                                                  5


       {¶10} Dominica Pierce, a paramedic/firefighter for the Akron Fire Department, testified

that she also responded to the scene of the motor vehicle accident. She testified that Hill was

already in police custody when she arrived on the scene. Ms. Pierce testified that she helped

evaluate Hill after the police escorted her to the ambulance. Although she was somewhat

uncooperative, Hill admitted that she had been at a club with friends and that she had been

drinking alcohol. Ms. Pierce testified that she smelled alcohol on Hill’s breath in the ambulance.

She testified that Hill exhibited normal cognitive responses.

       {¶11} Chris Logan, a firefighter/paramedic with the Akron Fire Department, testified

that he helped to assess only Hayward at the scene. He testified that Hayward also admitted that

she had been drinking and that she was alert and oriented. Mr. Logan disagreed with the

supposition that an intoxicated person cannot be alert and cognizant because alcohol has various

effects on various people. In fact, he testified that he has responded to “highly intoxicated”

people who have admitted to using a lot of alcohol but who could nevertheless respond

accurately to questions about time, their birthdays, and other matters.

       {¶12} Officer Paul Hill of the Akron Police Department testified that he responded to

the two-car accident on August 29, 2010. He testified that he left to assist Officer Chetto who

ran after some people who had fled the scene. He found Hill in a backyard a few blocks away.

The officer testified that Hill was yelling, screaming, and cussing, and that she was combative,

belligerent, and uncooperative. He testified that she appeared to be intoxicated based on these

behaviors. After two other officers got Hill under control, Officer Hill returned to the scene of

the crash, where he looked in one of the cars. He found a photograph of Hill inside the car. In

that same car, he saw a pair of leopard print shoes, various items of trash, and a bottle of tequila.
                                                  6


         {¶13} Officer Garry Ivey of the Akron Police Department assisted in investigating the

crash. He testified that he removed a bottle of 1800 Tequila from Hill’s car. He further testified

that he interviewed Hill who made a statement that she had had two shots of 1800 Tequila that

night.

         {¶14} Officer Linda McCain of the Akron Police Department testified that she was the

first traffic unit on the scene. Although she did not speak with Hill until much later after she had

been taken to the hospital, she testified generally as to indicators of intoxication based on her

training and experience. Officer McCain testified that an odor of alcohol, an admission to

alcohol use, bloodshot eyes, slurred speech, lack of balance, inconsistent statements, and

combative or argumentative behavior are all possible indicators of intoxication. She testified

that, while the effects of involvement in an accident like a head-on collision could present in a

similar manner, the act of fleeing from the scene would indicate that the person was not injured

in the accident. Therefore, the above-mentioned observations would again be indicative of

intoxication rather than injury as a result of an accident.

         {¶15} This Court will not overturn the trial court’s verdict on a manifest weight of the

evidence challenge only because the trier of fact chose to believe certain witness’ testimony over

the testimony of others. State v. Crowe, 9th Dist. Medina No. 04CA0098-M, 2005-Ohio-4082, ¶

22.

         {¶16} A thorough review of the record indicates that this is not the exceptional case

where the evidence weighs heavily in favor of Hill. The weight of the evidence supports the

conclusion that Hill was intoxicated while she was driving both before and at the time she drove

into the side of Hayward’s car. She admitted to drinking shots of 1800 Tequila, and an empty

bottle of the same type of tequila was found in her car. Multiple officers and paramedics
                                                 7


testified that Hill appeared to be intoxicated based on multiple indicators. Accordingly, Hill’s

convictions are not against the manifest weight of the evidence.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
       FAILED TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE
       OF VEHICULAR MANSLAUGHTER[.]

                                ASSIGNMENT OF ERROR III

       THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY PERMITTING
       THE STATE’S ACCIDENT RECONSTRUCTIONIST TO TESTIFY AS AN
       EXPERT.

       {¶17} Hill argues that the trial court erred by failing to instruct the jury on the lesser

included offense of vehicular manslaughter and by allowing the State’s accident reconstructionist

to testify as an expert. This Court disagrees.

       {¶18} This Court has long held that “an appellate court will not consider as error any

issue a party was aware of but failed to bring to the trial court’s attention[]” at a time when the

trial court might have corrected the error. State v. Dent, 9th Dist. Summit No. 20907, 2002-

Ohio-4522, ¶ 6. “[F]orfeiture is a failure to preserve an objection[.] * * * [A] mere forfeiture

does not extinguish a claim of plain error under Crim.R. 52(B).” (Internal citations omitted.)

State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, ¶ 23. By failing to raise these issues

below, Hill has forfeited her objections to the lack of any lesser included offense instruction and

to the admission of expert testimony. See Akron v. Concannon, 9th Dist. Summit No. 24512,

2009-Ohio-4162, ¶ 12. Furthermore, Hill has failed to argue plain error on appeal. “[T]his Court

will not construct a claim of plain error on behalf of an appellant who fails to raise such an

argument in her brief.” State v. White, 9th Dist. Summit Nos. 23955, 23959, 2008-Ohio-2432, ¶

33. Accordingly, this Court will not consider whether these matters gave rise to plain error.
                                                 8


State v. Leason, 9th Dist. Summit No. 25566, 2011-Ohio-6591, ¶ 13. Hill’s second and third

assignments of error are overruled.

                                ASSIGNMENT OF ERROR IV

       THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY PERMITTING
       STATE’S EXHIBIT 11, WHICH WAS A PRINTOUT FROM A CRASH DATA
       RETRIEVAL TOOL, WITHOUT REQUIRED TESTIMONY THAT THE
       PROGRAM WAS RELIABLE.

       {¶19} Hill argues that the trial court erred by admitting the State’s exhibit 11 into

evidence. This Court disagrees.

       {¶20} Hill failed to object to the admission of the exhibit.        Accordingly, she has

forfeited any objection except on the basis of plain error. Payne at ¶ 23. “Plain error exists

when it can be said that but for the error, the outcome of the trial would clearly have been

otherwise.” State v. Issa, 93 Ohio St.3d 49, 56 (2001). Hill does not allege plain error except by

way of a bald conclusory statement that “[i]t is plain error to allow just such an exhibit * * *.”

Assuming arguendo that this is sufficient to raise plain error, she does not argue, let alone

demonstrate, that the outcome of the trial would have been different but for the admission of the

exhibit. Hill’s fourth assignment of error is overruled.

                                  ASSIGNMENT OF ERROR V

       THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
       FAILED TO MERGE THE AGGRAVATED VEHICULAR ASSAULT (sic)
       AND THE OVI CONVICTIONS.

       {¶21} Hill argues that the trial court erred by failing to merge her convictions for

aggravated vehicular homicide and operating a vehicle while under the influence of alcohol.

       {¶22} The current test for determining whether multiple offenses constitute allied

offenses for sentencing purposes is set forth in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-

6314. The Johnson court held that “[w]hen determining whether two offenses are allied offenses
                                                  9


of similar import subject to merger under R.C. 2941.25, the conduct of the accused must be

considered.” Id.

       {¶23} During the sentencing hearing, the trial court did not conduct an analysis pursuant

to Johnson to determine whether aggravated vehicular homicide and operating a vehicle while

under the influence were allied offenses of similar import subject to merger. This Court has

consistently declined to conduct the Johnson analysis in the first instance. See, e.g., State v.

Ross, 9th Dist. Summit No. 25178, 2011-Ohio-3197, ¶ 12. Accordingly, we must remand the

matter to the trial court for consideration in the first instance of whether Hill’s offenses are allied

offenses of similar import pursuant to Johnson, supra.          Hill’s fifth assignment of error is

sustained.

                                                      III.

       {¶24} Hill’s first, second, third, and fourth assignments of error are overruled. Her fifth

assignment of error is sustained. This judgment of the Summit County Court of Common Pleas

is affirmed in part, reversed in part, and remanded for further proceedings consistent with this

opinion.

                                                                          Judgment affirmed in part,
                                                                                   reversed in part,
                                                                               and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.
                                                10


       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed equally to both parties.




                                                     DONNA J. CARR
                                                     FOR THE COURT



WHITMORE, J.
CONCURS.

BELFANCE, P. J.
CONCURS IN JUDGMENT ONLY.


APPEARANCES:

GREGORY A. PRICE, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
