         [Cite as State v. McHenry, 2018-Ohio-3383.]

                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                           HAMILTON COUNTY, OHIO




STATE OF OHIO,                                   :     APPEAL NO. C-170671
                                                       TRIAL NO. 16CRB-33249B
        Plaintiff-Appellee,                      :
                                                          O P I N I O N.
  vs.                                            :

ALANDONAL MCHENRY,                               :

    Defendant-Appellant.                         :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: August 24, 2018



Paula Boggs Muething, City Solicitor, Natalia S. Harris, City Prosecutor, and
Christopher Liu, Appellate Director, for Plaintiff-Appellee,

Timothy J. McKenna, for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS




MYERS, Judge.

       {¶1}    Defendant-appellant Alandonal McHenry appeals his conviction,

following a jury trial, for vehicular manslaughter in violation of R.C. 2903.06(A)(4).

       {¶2}   In four assignments of error, McHenry argues that the verdict form

was in error because it failed to require the jury to make a finding on a predicate

offense in violation of R.C. 2945.75(A)(2), that his conviction was not supported by

sufficient evidence, that it was against the manifest weight of the evidence, and that

he received ineffective assistance from his trial counsel. Finding no merit to his

arguments, we affirm the trial court’s judgment.

                                 Factual Background


       {¶3}   On September 24, 2016, a vehicle driven by McHenry was involved in

a single-vehicle accident on Interstate 75. McHenry’s front-seat passenger Jeffrey

Griesinger died from injuries sustained in the accident. McHenry was charged with

vehicular homicide, in violation of R.C. 2903.06(A)(3), and vehicular manslaughter,

in violation of R.C. 2903.06(A)(4).

       {¶4}   Evidence presented at trial established that McHenry had been driving

a pickup truck that was towing a trailer carrying various lawn-care equipment.

McHenry had been traveling in the right lane when traffic in front of him slowed

suddenly. To avoid hitting the car in front of him, McHenry swerved to the right.

McHenry’s trailer jackknifed, causing the truck to slide sideways into a guardrail and

a light post. Griesinger was ejected from the vehicle and suffered extensive injuries,

from which he later died.




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       {¶5}   Cincinnati Police Officer Alexandra Hoskins responded to the accident

scene and spoke to McHenry. Officer Hoskins testified that McHenry was very

distraught and told her that he had been coming in too fast and had put his foot on

the brake, and that the trailer had caused him to lose control of his vehicle.

Cincinnati Police Officer Aaron Myers, who had been Officer Hoskins’s assigned

recruit at the time of the accident, also spoke with McHenry. McHenry told Officer

Myers that he had been driving approximately 55 m.p.h. when the car in front of him

braked, requiring McHenry to brake and swerve to avoid hitting it. McHenry made a

similar statement to Sergeant Michael Machenheimer, stating that he had slammed

on his brakes because traffic ahead had suddenly stopped, and that he had thought it

would be better to hit the guardrail instead of the car in front of him.

       {¶6}   Cincinnati Police Specialist Jerry Enneking testified that he had

conducted a crash scene investigation.         Specialist Enneking determined that

McHenry had failed to control his vehicle in a safe manner when he swerved to the

right while braking, and that roadway and weather conditions had not been a factor

in the accident. Specialist Enneking testified that McHenry had been traveling at a

speed that did not allow him to stop or safely avoid a crash.

       {¶7}   McHenry testified that he had been traveling south on Interstate 75

when the car in front of him had suddenly stopped. McHenry hit his brakes and

attempted to veer to the right, but the trailer jackknifed, causing the truck to turn

and slide into a light pole and guardrail. McHenry testified that he had driven the

truck and trailer on previous occasions and that he had not been speeding when the

accident occurred. He denied telling Officer Hoskins that he had “been coming in




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too fast.” He further denied telling Sergeant Machenheimer that he had slammed on

his brakes, and testified that he had gradually pressed on the brakes.

        {¶8}   The jury acquitted McHenry of vehicular homicide, but found him

guilty of vehicular manslaughter.

                                      R.C. 2945.75


        {¶9}   In his first assignment of error, McHenry argues that the verdict form

for the offense of vehicular manslaughter violated R.C. 2945.75(A)(2) because it

failed to require a separate finding for the predicate offense of failure to control a

motor vehicle. McHenry’s argument is misplaced.

        {¶10} R.C. 2945.75(A)(2) provides:

        (A)    When the presence of one or more additional elements makes

        an offense one of more serious degree:

                                    * * *

        (2) A guilty verdict shall state either the degree of the offense of which

        the offender is found guilty, or that such additional element or

        elements are present. Otherwise, a guilty verdict constitutes a finding

        of guilty of the least degree of the offense charged.

This statute applies when the presence of an additional element makes the offense

one of a more serious degree. State v. Gibert, 2017-Ohio-7676, 97 N.E.3d 1004, ¶ 18

(1st Dist.).

        {¶11} McHenry was found guilty of vehicular manslaughter in violation of

R.C. 2903.06(A)(4), which provides that:

        (A) No person, while operating or participating in the operation of a

        motor vehicle, motorcycle, snowmobile, locomotive, watercraft, or



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       aircraft, shall cause the death of another or the unlawful termination of

       another’s pregnancy in any of the following ways:

                                     * * *

       (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

       misdemeanor * * *.

Here, the state alleged that McHenry had caused the death of Griesinger while

committing a violation of R.C. 4511.202, operating a vehicle without reasonable

control.

       {¶12} McHenry’s failure to operate his vehicle with reasonable control was a

basic element of the offense of vehicular manslaughter under R.C. 2903.06(A)(4). It

was not an element that elevated the degree of the offense. Because the complaint

did not allege, and the state did not seek to prove, any additional element that would

have elevated the degree of the offense or made it a more serious degree, R.C.

2945.75(A)(2) was inapplicable and the jury was not required to specifically find on

the verdict form that McHenry had operated his vehicle without reasonable control.

       {¶13} McHenry was charged with, and found guilty of, vehicular

manslaughter as a misdemeanor of the second degree. This was the least degree of

the offense of vehicular manslaughter. R.C. 2903.06(D) provides:

       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. Vehicular

       manslaughter is a misdemeanor of the first degree if, at the time of the

       offense, the offender was driving under a suspension or cancellation




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       imposed under Chapter 4510. or any other provision of the Revised

       Code or was operating a motor vehicle or motorcycle, did not have a

       valid     driver’s   license,   commercial      driver’s   license,    temporary

       instruction permit, probationary license, or nonresident operating

       privilege, and was not eligible for renewal of the offender’s driver’s

       license     or   commercial      driver’s    license   without        examination

       under section 4507.10 of the Revised Code or if the offender previously

       has been convicted of or pleaded guilty to a violation of this section or

       any traffic-related homicide, manslaughter, or assault offense.

Had the state sought to prove any of the elements in R.C. 2903.06(D) that would

have elevated the commission of the offense of vehicular manslaughter to a

misdemeanor of the first degree, the verdict form would have been required to

comply with R.C. 2945.75(A)(2) and include either the degree of the offense or a

statement that the additional element was found. But because the state did not seek

to prove any of these additional elements, and McHenry was charged with the least

degree of the offense, R.C. 2945.75(A)(2) was inapplicable.

       {¶14} The jury was properly instructed on the elements of vehicular

manslaughter under R.C. 2903.06(A)(4) and operating a vehicle without reasonable

control under R.C. 4511.202. The verdict form for vehicular manslaughter stated

“We the jury, in the issue joined, find the defendant, ALANDONAL MCHENRY,

GUILTY of Vehicular Manslaughter in violation of Section 2903.06(A)(4) of the Ohio

Revised Code.”      By finding McHenry guilty of vehicular manslaughter, the jury

necessarily found that the state had proven all the elements of that offense, including




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that McHenry had failed to control his vehicle in violation of R.C. 4511.202. This was

an element of the offense itself, not an element of enhancement.

       {¶15} Having determined that the verdict form was not in error, we overrule

McHenry’s first assignment of error.

                              Sufficiency and Weight


       {¶16} In his second and third assignments of error, McHenry argues that his

conviction was not supported by sufficient evidence and was against the manifest

weight of the evidence. He specifically challenges the proximate cause element of his

conviction, contending that the record fails to demonstrate that Griesinger died as a

result of his actions. He argues that Griesinger’s death was not foreseeable or within

the scope of risk created by his conduct. We find this argument to be without merit.

       {¶17} By finding McHenry guilty of vehicular manslaughter, the jury found

that he had caused Griesinger’s death “as the proximate result” of committing a

violation of R.C. 4511.202. See R.C. 2903.06(A)(4).

       {¶18} In the context of an involuntary-manslaughter conviction, this court

has held that the “proximate result” or “proximate cause” element “is satisfied when

the accused sets in motion a sequence of events that make the death of another a

‘direct, proximate, and reasonably inevitable’ consequence.” State v. Lovelace, 137

Ohio App.3d 206, 215, 738 N.E.2d 418 (1st Dist.1999), quoting State v. Chambers, 53

Ohio App.2d 266, 272-273, 373 N.E.2d 393 (9th Dist.1977).

       {¶19} The Second District considered a similar argument when reviewing the

sufficiency of the evidence supporting a vehicular-manslaughter conviction in State

v. Wieckowski, 2d Dist. Clark No. 2010-CA-111, 2011-Ohio-5567.          Rejecting the

appellant’s proximate-cause argument, the court held that “[i]t is not necessary that



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the precise consequences of the conduct be foreseeable but only that what actually

transpired was naturally and logically within the scope of the risk created by the

conduct.” Id. at ¶ 12.

          {¶20} Here, Griesinger’s death was within the scope of risk created by

McHenry’s conduct. But for McHenry’s failure to control his vehicle and crash into

the guardrail and light post, Griesinger’s death would not have occurred. Specialist

Enneking’s testimony established that, although McHenry was not speeding, he had

been traveling at a speed that did not allow him to stop or to safely avoid a crash

while towing a trailer. That Griesinger ultimately died from injuries following the

crash “was not so extraordinary or surprising that it would be simply unfair to hold

the defendant criminally responsible for something so unforeseeable.” Lovelace at

216, citing LaFave & Scott, Criminal Law, Section 35, 246 (1972).

          {¶21} The record contains sufficient evidence to establish that McHenry had

caused Griesinger’s death while operating his vehicle without reasonable control in

violation of R.C. 2903.06(A)(4). See State v. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1st Dist.1983). And this was not the rare case in which the jury lost its

way and created such a manifest miscarriage of justice that McHenry’s conviction

must be reversed. See State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541

(1997).

          {¶22} The second and third assignments of error are overruled.

                                 Ineffective Assistance


          {¶23} In his fourth assignment of error, McHenry argues that he received

ineffective assistance from his trial counsel.




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       {¶24} Counsel will not be considered ineffective unless her or his

performance was deficient and caused actual prejudice to the defendant. Strickland

v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.

Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989). Counsel’s performance

will only be deemed deficient if it fell below an objective standard of reasonableness.

Strickland at 688; Bradley at 142. A defendant is only prejudiced by counsel’s

performance if there is a reasonable probability that the outcome of the proceedings

would have been different but for the deficient performance. Strickland at 694;

Bradley at 142.    A reviewing court must indulge a presumption that counsel’s

behavior fell within the acceptable range of reasonable professional assistance.

Strickland at 689; Bradley at 142.

       {¶25} McHenry contends that his counsel was ineffective for failing to

engage a crime scene reconstructionist.      Generally, the failure to call an expert

witness does not constitute ineffective assistance of counsel. State v. Chambers, 1st

Dist. Hamilton Nos. C-060922 and C-061036, 2008-Ohio-470, ¶ 28.               Although

McHenry’s counsel did not hire an expert to conduct an accident reconstruction,

counsel thoroughly cross-examined Specialist Enneking, who investigated the crash

and prepared a diagram of the accident scene. Counsel’s decision to cross-examine

the state’s witness, rather than to call his own expert, was a matter of trial strategy.

Id. Further, any testimony that a crime scene reconstructionist would have provided

is purely speculative, and McHenry cannot demonstrate that the outcome of the

proceedings would have been different but for counsel’s failure to hire such an

expert. See Strickland at 694; Bradley at 142.

       {¶26} The fourth assignment of error is overruled.




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                      OHIO FIRST DISTRICT COURT OF APPEALS


                                       Conclusion


       {¶27} Having overruled McHenry’s assignments of error, we accordingly

affirm the judgment of the trial court.

                                                                      Judgment affirmed.



MOCK, P.J., and ZAYAS, J., concur.



Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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