[Cite as State v. Demastry, 193 Ohio App.3d 495, 2011-Ohio-1320.]


                                       COURT OF APPEALS
                                    FAIRFIELD COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



THE STATE OF OHIO,
     Appellee,

v.

DeMASTRY

        Appellant

JUDGES:
Hon. William B. Hoffman, P.J.
Hon. Sheila G. Farmer, J.
Hon. Patricia A. Delaney, J.


Case No. 10-CA-13

OPINION



CHARACTER OF PROCEEDING:                              Appeal from the Court of Common Pleas,
                                                      Case No. 09CR128



JUDGMENT:                                             Affirmed in part; Reversed in part, and
                                                      Remanded



DATE OF JUDGMENT ENTRY:                               March 17, 2011


APPEARANCES:

Gregg Marx, for appellee.                             Scott P. Wood, for appellant.
      HOFFMAN, Presiding Judge.

      {¶1}   On April 9, 2009, the Fairfield County Grand Jury indicted appellant,

Caitlin DeMastry, on one count of aggravated vehicular homicide in violation of R.C.

2903.06 and one count of involuntary manslaughter in violation of R.C. 2903.04, the

predicate offense(s) being operating a motor vehicle while under the influence of alcohol

and/or driving while under suspension. Appellant was also indicted on one count of

tampering with evidence in violation of R.C. 2921.12.      The charges arose from an

incident when appellant struck and killed a pedestrian, Charles Cain Jr., while she was

operating a motor vehicle. Immediately following the accident, appellant told a 9-1-1

dispatcher that her "designated driver," Jeffrey Davis, was operating the motor vehicle.

Davis was in fact a passenger in the vehicle.

      {¶2}   On January 7, 2010, appellant filed a motion to dismiss the tampering

count. The trial court denied the motion.

      {¶3}   A jury trial commenced on January 12, 2010. At the conclusion of the

state's case-in-chief, appellant moved for acquittal pursuant to Crim.R. 29. The motion

was denied. The jury found appellant not guilty of the aggravated-vehicular-homicide

count, but guilty of the involuntary-manslaughter count. The jury specifically found that

the state did not prove beyond a reasonable doubt that at the time of the incident,

appellant was operating her motor vehicle while under the influence of alcohol. The jury

also found appellant guilty of tampering with evidence.
       {¶4}    On January 27, 2010, appellant filed a postverdict motion for acquittal

pursuant to Crim.R. 29 as to the involuntary-manslaughter count. By entry filed March

9, 2010, the trial court denied the motion.

       {¶5}    By judgment entry filed March 18, 2010, the trial court sentenced appellant

to four years on each count, to be served consecutively.

       {¶6}    Appellant filed an appeal, and this matter is now before this court for

consideration. Assignments of error are as follows:

                                                 I

       {¶7}    "The trial court erred in overruling appellant's motion to dismiss count

three of the indictment prior to trial."

                                                II

       {¶8}    "The trial court erred in overruling appellant's motion for acquittal as to

count three of the indictment and there was insufficient evidence to support a conviction

for count three of the indictment."

                                                III

       {¶9}    "The trial court erred in overruling appellant's motion for acquittal as to the

driving under suspension charge, as the predicate offense to count two."

                                                IV

       {¶10} "The trial court erred in overruling appellant's post-verdict motion for

acquittal as to count two of the indictment."

                                                V

       {¶11} "The trial court's imposition of consecutive sentences was contrary to law."

                                              I, II
       {¶12} These assignments of error challenge appellant's conviction of tampering

with evidence in violation of R.C. 2921.12(A)(2). Appellant claims that the trial court

erred in denying her motion to dismiss and her motion to acquit because there was

insufficient evidence to support a conviction. We disagree.

       {¶13} Tampering with evidence as defined in R.C. 2921.12(A)(2) states the

following:

       {¶14} "(A) No person, knowing that an official proceeding or investigation is in

progress, or is about to be or likely to be instituted, shall do any of the following:

       {¶15} "(2) Make, present, or use any record, document, or thing, knowing it to be

false and with purpose to mislead a public official who is or may be engaged in such

proceeding or investigation, or with purpose to corrupt the outcome of any such

proceeding or investigation."

       {¶16} With regard to the tampering-with-evidence charge, the bill of particulars

filed November 25, 2009, states the following:

       {¶17} "[I]t is alleged that, the Defendant, on or about the 22nd day of February,

2009, at the County of Fairfield, State of Ohio, knowing that an official proceeding or

investigation was in progress or about to be or likely to be instituted, unlawfully, did

make, present or use a record, document or thing to-wit: a 911 call placed at 3:28 a.m.

on February 22, 2009, knowing it to be false with purpose to mislead a public official

who is or may be engaged in such proceeding or investigation, or with purpose to

corrupt the outcome of any such proceeding or investigation, in violation of

§2921.12(A)(2) of the Ohio Revised Code."
       {¶18} Appellant argues that a more specific criminal statute, R.C. 2921.13(A)(3)

(falsification) and/or R.C. 2921.31(A) (obstructing official business), takes precedence

over the general criminal prohibition of R.C. 2921.12(A)(2). Those sections state the

following:

       {¶19} R.C. 2921.13 states:

       {¶20} "(A) No person shall knowingly make a false statement, or knowingly

swear or affirm the truth of a false statement previously made, when any of the following

applies:

       {¶21} "(3) The statement is made with purpose to mislead a public official in

performing the public official's official function.”

       {¶22} R.C. 2921.31 states:

       {¶23} "(A) No person, without privilege to do so and with purpose to prevent,

obstruct, or delay the performance by a public official of any authorized act within the

public official's official capacity, shall do any act that hampers or impedes a public

official in the performance of the public official's lawful duties."

       {¶24} Appellant argues that these statutes are more specific by definition than

the tampering-with-evidence statute. Falsification requires a false statement to a public

official with the purpose to mislead. Obstruction of official business requires purpose to

prevent, obstruct, or delay an official duty and "any act" that hampers or impedes an

official duty. Appellant argues that either or both of these specific legislative statutes

prevail over the general statute of tampering with evidence, citing State v. Conyers

(1999), 87 Ohio St. 3d 246, 248, in support.
       {¶25} Appellant argues that the more specific statute of falsification and/or

obstructing official business applied to her conduct; therefore, the trial court should have

dismissed the tampering-with-evidence count.

       {¶26} It is undisputed in this case that the conduct alleged was appellant’s

making false statements in her 9-1-1 call for the purpose of misleading the police in their

investigation of the incident.      Appellant told the 9-1-1 dispatcher that Davis, her

"designated driver," struck Cain.

       {¶27} In State v. Lazzaro (1996), 76 Ohio St.3d 261, 266, the Supreme Court of

Ohio held the following:

       {¶28} "The General Assembly has adopted legislation intended to discourage

individuals from purposely giving false information that hinders public officials in the

performance of their duties.         Complete and honest cooperation with the law

enforcement process by all citizens is essential to the effective operation of the justice

system. Columbus v. New (1982), 1 Ohio St.3d 221, 227, 1 OBR 244, 249, 438 N.E.2d

1155, 1160. Therefore, we hold that the making of an unsworn false oral statement to a

public official with the purpose to mislead, hamper or impede the investigation of a

crime is punishable conduct within the meaning of R.C. 2921.13(A)(3) and 2921.31(A).

Our decisions in Columbus v. Fisher and Dayton v. Rogers are hereby overruled."

       {¶29} We find that neither falsification (R.C. 2921.13(A)(3)) nor obstructing

official business (R.C. 2921.31(A)) is a specific provision entitled to take precedence

over tampering with evidence (R.C. 2921.12(A)(2)). Unlike the statute under review in

State v. Volpe (1988), 38 Ohio St.3d 191, dealing specifically with a gambling device
(R.C. 2915.02), we find neither falsification nor obstructing official business similarly so

specific.

       {¶30} It is undisputed that appellant purposely lied to the 9-1-1 dispatcher when

she stated that her designated driver struck a pedestrian. The question is whether this

conduct constitutes falsification, obstructing official business, and/or tampering with

evidence.

       {¶31} Appellee contends that the phrase "to make" in the tampering-with-

evidence statute can be equated to purposely calling 9-1-1 and knowingly setting up a

defense or protection for appellant to shield her from prosecution or culpability. It is

arguable that in today's society, where 9-1-1 tapes are heard in the media and are freely

used at trial, appellant's actions could be classified as purposely setting up a defense

for oneself or purposely leading the investigation toward another. However, the very

same argument applies equally to the charge of falsification or obstructing official

business.

       {¶32} Appellant argues that the 9-1-1 call to the dispatcher did not constitute

"making a record." We disagree. In today's modern world, every tweet, e-mail, text

message, or phone call to 9-1-1 is the "making of a record." Clearly appellant’s 9-1-1

call caused a record to be made. We therefore conclude that making a purposely false

statement to a 9-1-1 dispatcher is within the statutory definition of R.C. 2921.12(A).

       {¶33} Upon review, we find that the trial court did not err in denying appellant's

motion to dismiss and motion for acquittal.

       {¶34} Assignments of error I and II are denied.

                                              III
       {¶35} Appellant claims that the trial court erred in denying her motion for

acquittal on the driving-while-under-suspension charge as a predicate offense because

the state failed to establish that she was properly notified of her driver's-license

suspension. Appellant claims that there was insufficient evidence to establish that she

had actual or constructive knowledge of the suspension. We disagree.

       {¶36} On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether that evidence, if believed, would support a conviction. State

v. Jenks (1991), 61 Ohio St.3d 259. "The relevant inquiry is 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." Jenks at

paragraph two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307.

       {¶37} Appellant argues that the suspension notice was not sent out until four

days prior to the incident and that it was returned "as not deliverable as addressed.

They were unable to forward it, so it was returned." Appellant relies on State v. Walker,

Stark App. No. 2009CA00091, 2010-Ohio-3043, in which this court held the following at

¶39:

       {¶38} "It is readily clear that Appellant was not notified that his driver’s license

was suspended by the BMV at the time he was charged with the offense. Notice of the

suspension was not complete until the BMV deposited the notice of suspension in the

mail on November 19, 2008. OAC 4501:1-10-02(E); see also, State v. Heiney, 11th

Dist. No. 2006-P-0074, 2007-Ohio-1200, ¶16.         As such, the State did not present

sufficient evidence for a jury to find appellant guilty of driving under suspension beyond
a reasonable doubt. In addition, due process was not satisfied as Appellant was not

given notice of the suspension by the BMV until after being charged."

      {¶39} However, we note that during the trial, Lancaster Police Officer Matthew

Ream testified that appellant readily admitted that her license was suspended:

      {¶40} "Q. Did you ask her who the car belonged to?

      {¶41} "A. I did.

      {¶42} "Q. And what did she say?

      {¶43} "A. She stated that it was her vehicle, but she immediately replied — or

also stated that she wasn't driving, that she's under suspension, and she had a

designated driver, and that she's drunk.

      {¶44} "* * *

      {¶45} "Q. Did you hear Ms. DeMastry say anything else other than what you've

already told us?

      {¶46} "A. I can't remember any quotes. I do know that she made the statement

twice that I heard, where she stated she was under suspension and she was drunk. I

heard her state one time that she had a designated driver. Besides that, I can't say.

Most of the time I spent there, with the exception of maybe the first ten minutes, was

with Mr. Davis."

      {¶47} We find these admissions, coupled with the certified records from the

Bureau of Motor Vehicles, to be sufficient evidence to establish the offense of driving

while under suspension.

      {¶48} Upon review, we find that the trial court did not err in denying appellant's

motion for acquittal on the driving-while-under-suspension charge.
         {¶49} Assignment of error III is denied.

                                             IV

         {¶50} Appellant claims that her conviction for involuntary manslaughter with the

predicate misdemeanor offense of driving while under suspension was unlawful;

therefore, the trial court erred in denying her postverdict motion for acquittal. We agree.

         {¶51} Crim.R. 29 governs motion for acquittal.       Subsection (A) states the

following:

         {¶52} "The court on motion of a defendant or on its own motion, after the

evidence on either side is closed, shall order the entry of a judgment of acquittal of one

or more offenses charged in the indictment, information, or complaint, if the evidence is

insufficient to sustain a conviction of such offense or offenses. The court may not

reserve ruling on a motion for judgment of acquittal made at the close of the state's

case."

         {¶53} The standard to be employed by a trial court in determining a Crim.R. 29

motion is set out in State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus:

         {¶54} "Pursuant to Crim.R. 29(A), a court shall not order an entry of judgment of

acquittal if the evidence is such that reasonable minds can reach different conclusions

as to whether each material element of a crime has been proved beyond a reasonable

doubt."

         {¶55} R.C. 2903.04 governs involuntary manslaughter. Subsection (B) states

the following:

         {¶56} "(B) No person shall cause the death of another or the unlawful

termination of another's pregnancy 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 other than a violation of any section contained in Title XLV of the Revised

Code that is a minor misdemeanor and other than a violation of an ordinance of a

municipal corporation that, regardless of the penalty set by ordinance for the violation, is

substantially equivalent to any section contained in Title XLV of the Revised Code that

is a minor misdemeanor."

       {¶57} The predicate offenses charged were operating a motor vehicle while

under the influence of alcohol and/or driving while under suspension.             The jury

specifically found that the state did not prove beyond a reasonable doubt that at the

time of the incident, appellant was operating her motor vehicle while under the influence

of alcohol; therefore, the only remaining predicate offense necessarily found in this case

was driving while under suspension. We note that the trial court instructed the jury on

"proximate result" as follows:

       {¶58} "Proximate result is a result which occurs from a proximate cause, which

is defined as an act or failure to act, which, in a natural and continuous sequence,

directly produced the death of Charles Cain, Jr., and without which it would not have

occurred."

       {¶59} As discussed in assignment of error III, appellant admitted to having a

suspended license.     Appellant's passenger, Davis, testified that appellant was the

operator of the vehicle that struck and killed Cain.

       {¶60} While there can be more than one proximate cause, we find that Cain’s

death was not a proximate result of appellant’s status of driving while under suspension.

To that extent, I agree with our brethren from the First District (State v. Jodrey (Apr. 10,
1985), 1st Dist. No. C-840406, 1985 WL 6740), the Fourth District (State v. Frommer

(Dec. 19, 1985), 4th Dist. no. 577,1985 WL 17494), the Sixth District (State v. Hamrick

(Dec. 19, 1997), 6th Dist. No. L-96-059, 1997 WL 796455), and the Eleventh District

(State v. Hatfield, Ashtabula App. No. 2006-A-0033, 2007-Ohio-7130). I agree with the

underlying rationale of those decisions that the act of driving under suspension is not

relevant to the quality of driving, and therefore, it is not relevant to causation.

       {¶61} Appellant’s fourth assignment of error is sustained.

                                                  V

       {¶62} Appellant claims that the imposition of consecutive sentences was

contrary to law.

       {¶63} In light of our disposition of appellant’s fourth assignment of error, we

overrule this assignment of error as moot.

       {¶64} The judgment of the Court of Common Pleas of Fairfield County, Ohio is

affirmed in part and reversed in part.

                                                                   Judgment affirmed in part

                                                                         and reversed in part.


       DELANEY, J. concurs separately.

       FARMER, J. concurs in part and dissents in part.

                                               ____________
       DELANEY, Judge, concurring.

       {¶65} I concur in Judge Hoffman’s opinion in regard to the ultimate disposition of

appellant’s assignments of error. However, I concur separately as to the resolution of

assignment of error IV.
      {¶66} I agree with Judge Hoffman’s conclusion in ¶60 that Cain’s tragic demise

was not a proximate result of appellant’s status of driving under suspension. I disagree

that as a matter of law, the act of driving under suspension is irrelevant to causation.

Rather, I reach the same conclusion as Judge Hoffman by examining this issue under a

sufficiency-of-evidence standard pursuant to Crim.R. 29.

      {¶67} While the legislature amended R.C. 2903.04(B) to include minor-

misdemeanor offenses as predicate offenses to the charge of involuntary manslaughter,

the state had the burden of proving beyond a reasonable doubt that Cain’s death

proximately resulted from appellant’s commission of the minor misdemeanor, which in

this particular case was driving under suspension. See Jackson v. State (1920), 101

Ohio St. 152, 127 N.E. 870, paragraph one of the syllabus.

      {¶68} “The term ‘proximate result’ was used by the General Assembly to refine

and limit the verb ‘cause’. * * * Under the statute, defendant cannot be held responsible

for consequences no reasonable person could expect to follow from his conduct; he will

be held responsible for consequences which are direct, normal, and reasonably

inevitable – as opposed to extraordinary or surprising – when viewed in the light of

ordinary experience. In this sense, then ‘proximate result’ bears a resemblance to the

concept of ‘proximate cause’ in that defendant will be held responsible for those

foreseeable consequences which are known to be, or should be known to be, within the

scope of the risk created by his conduct. Here, that means that death reasonably could

be anticipated by an ordinary prudent person as likely to result under these or similar

circumstances. * * *.” State v. Losey (1985) 23 Ohio App.3d 93, 95, 491 N.E.2d 379.
       {¶69} Upon review of the evidence adduced at trial, I conclude that the state

failed to establish a sufficient nexus between appellant’s suspension and the death of

Cain. When viewed in light of ordinary experience, the evidence presented in this case

would not have led the average mind to conclude that a fatal consequence was within

the foreseeable scope of risk created by a drivers’-license suspension.         I find the

reasoning of our brethren in the First Appellate District in State v. Jodrey, Hamilton App.

No. C-840406, 1985 WL 6740, to be persuasive on this issue. In Jodrey, the court

reversed a conviction for involuntary manslaughter under similar circumstances. The

court stated:

       {¶70} “We are not prepared to find that such an unintentional death as occurred

in the matter sub judice while the appellant was under a driving suspension (that is, not

legally permitted to drive such a motor vehicle as he was operating when Ackermann

was killed) would naturally, logically and proximately result from the commission of

driving under suspension.     Moreover, the unlawful act of driving under suspension

would not reasonably be anticipated by an ordinarily prudent person as likely to result in

such killing as occurred here. The operator license of citizens is revoked countless

numbers of times daily throughout this state for innumerable traffic offenses of differing

degrees of seriousness and for different periods of time, some as short as several days.

When the suspension – court or administratively imposed – terminates, the driver in

most cases resumes the operation of a motor vehicle without any testing. It is difficult to

imagine any real difference between one’s vehicle operation skills while under

suspension and immediately after the suspension is terminated. We cannot find that
the driving under suspension is the proximate cause of a death that occurs when a

person drives while under suspension, as reprehensible as that activity certainly is.”

       {¶71} While the state strenuously argues that appellant, in addition to driving

with a suspended license, was drunk and using a cell phone near the time of the

accident, the jury in this case specifically found that the state failed to establish beyond

a reasonable doubt that appellant was committing or attempting the operation of a

motor vehicle while under the influence of alcohol (additional finding as to Count two);

nor was cell-phone use a proscribed act at the time of the accident. Again, it must be

proven by the state beyond a reasonable doubt that the underlying unlawful act (here,

suspension) was the direct and proximate cause of the death. I find that the state failed

to present sufficient evidence on this issue and the involuntary manslaughter conviction

must be vacated.

                                        _____________

       FARMER, Judge, dissents.

       {¶72} I respectfully dissent from the disposition of assignment of error IV

regarding appellant's postverdict motion for acquittal pursuant to Crim.R. 29.

       {¶73} It is axiomatic that there can be more than one proximate cause. It is

undisputed that by appellant's admissions, she knew that her driver's license was

suspended. If the jury was convinced that appellant was driving, the driving occurred

while she was under suspension, and her operation of the vehicle was a proximate

cause of the death, the predicate offense was met under R.C. 2903.04(B).

       {¶74} The    Ohio   General Assembly addressed matters             concerning the

involuntary-manslaughter predicate-offense issue after State v. Collins (1993), 67 Ohio
St.3d 115. See also State v. Weitbrecht (1999), 86 Ohio St.3d 368. In its collective

wisdom, the General Assembly chose not to distinguish between status and nonstatus

offenses, which it could have done explicitly in the amendment.

      {¶75} Without such guidance, I am loath to rewrite or amend the statute. It is

clearly not within the province of the courts of Ohio.      Cleveland Elec. Illum. Co. v.

Cleveland (1988), 37 Ohio St.3d 50, paragraph three of the syllabus, following

Columbus-Suburban Coach Lines v. Pub. Util. Comm. (1969), 20 Ohio St.2d 125; State

ex rel. Carmean v. Bd. of Edn. (1960), 170 Ohio St. 415.

      {¶76} I would find that the trial court did not err in denying appellant's postverdict

Crim.R. 29 motion to acquit.


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