[Cite as State v. Allen, 2013-Ohio-3715.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :       JUDGES:
                                             :       Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                   :       Hon. John W. Wise, J.
                                             :       Hon. Craig R. Baldwin, J.
-vs-                                         :
                                             :
JAMES ALLEN                                  :       Case No. 2012CA00196
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 2012CR963



JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    August 26, 2013




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JOHN D. FERRERO                                      JACOB T. WILL
Prosecuting Attorney                                 116 Cleveland Avenue, NW
                                                     Suite 808
By: KATHLEEN O. TATARSKY                             Canton, OH 44702
110 Central Plaza South
Suite 510
Canton, OH 44702-1413
Stark County, Case No. 2012CA00196                                                      2

Farmer, P.J.

      {¶1}     On August 6, 2012, the Stark County Grand Jury indicted appellant,

James Allen, on one count of vehicular assault in violation of R.C. 2903.08 and one

count of endangering children in violation of R.C. 2919.22. Said charges arose from an

incident wherein appellant drove his vehicle off the roadway, striking a house. His

passengers therein, his wife and two children, sustained injuries.

      {¶2}     A jury trial commenced on September 11, 2012. The jury found appellant

guilty as charged.     By judgment entry filed September 24, 2012, the trial court

sentenced appellant to an aggregate term of five years in prison.

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

consideration. Assignments of error are as follows:

                                                I

      {¶4}     "THE TRIAL COURT ERRED IN PERMITTING THE PROSECUTOR TO

USE PRIOR HEARSAY STATEMENTS TO IMPEACH A WITNESS PURSUANT TO

EVID. R. 613."

                                                II

      {¶5}     "THE    DEFENDANT'S       CONVICTIONS        FOR      ONE   COUNT      OF

VEHICULAR ASSAULT IN VIOLATION OF R.C. 2903.08 AND ONE COUNT OF

ENDANGERING CHILDREN IN VIOLATION OF R.C. 2919.22 WERE AGAINST THE

MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE."

                                                I

      {¶6}     Appellant claims the trial court erred in permitting the state to use prior

hearsay statements to impeach a witness pursuant to Evid.R. 613. We disagree.
Stark County, Case No. 2012CA00196                                                          3


       {¶7}   Evid.R. 613 provides the following in pertinent part:



              (B) Extrinsic evidence of prior inconsistent statement of

       witness. Extrinsic evidence of a prior inconsistent statement by a witness

       is admissible if both of the following apply:

              (1) If the statement is offered solely for the purpose of impeaching

       the witness, the witness is afforded a prior opportunity to explain or deny

       the statement and the opposite party is afforded an opportunity to

       interrogate the witness on the statement or the interests of justice

       otherwise require;

              (2) The subject matter of the statement is one of the following:

              (a) A fact that is of consequence to the determination of the action

       other than the credibility of a witness;

              (b) A fact that may be shown by extrinsic evidence under Evid.R.

       608(A), 609, 616(A), or 616(B);

              (c) A fact that may be shown by extrinsic evidence under the

       common law of impeachment if not in conflict with the Rules of Evidence.



       {¶8}   Evid.R. 801(C) defines "hearsay" as "a statement, other than one made by

the declarant while testifying at the trial or hearing, offered in evidence to prove the truth

of the matter asserted."

       {¶9}   The court called to the stand Anna Allen, appellant's wife, pursuant to

Evid.R. 614(A) which states: "The court may, on its own motion or at the suggestion of a
Stark County, Case No. 2012CA00196                                                       4


party, call witnesses, and all parties are entitled to cross-examine witnesses thus

called." Ms. Allen testified to the events leading up to the accident, the accident itself,

and what occurred at the hospital thereafter. She testified the cause of the accident

was appellant hitting a bump in the road (T. at 125):



             A. Um-m, we hit a bump, I had a pop in my hand, the pop went in

      the air.   It startled me because the back end started to slide almost

      immediately after hitting the bump underneath us. So the pop went up in

      the air, into his face.

             When I looked up, we were going to head towards a vehicle. My

      husband pulled the wheel this way to avoid hitting the car that was this

      way. And then after that, um-m, we just started to - - we continued to

      spiral out of control. I remember looking over at him and he was trying to

      get control of the wheel.



      {¶10} Because of inconsistencies between her trial testimony, her grand jury

testimony, and prior statements made to hospital staff and police, the state asked Ms.

Allen about her prior inconsistent statements. Ms. Allen testified she could not recall

her statements made at the hospital. T. at 131-132. Thereafter, the following exchange

occurred (T. at 137-138):
Stark County, Case No. 2012CA00196                                                     5


            Q. Ms. Allen, isn't it true, while in the hospital you told the officers

      that James stated he was going to take us all out and he swerved twice

      and that he slammed into the house and the car?

            A. Not to my knowledge. I have been told by my daughter, by the

      officer, by Victims Assistance, and a number of other people what I said,

      but I don't have any recollection of saying those things being that I had

      been up for days and I was under the influence.

            THE COURT REPORTER: I'm sorry?

            THE WITNESS: I had been up for days and I was under the

      influence. I had been up for three days, I was under the influence. Um-m,

      I was panicking, I don't know what I said at the time. I've been told by

      other people these are the things that I said so I'm not denying them, I'm

      just telling you that's not what happened and that's not what I can

      remember saying.



      {¶11} As our brethren from the Second District set forth in State v. Reed, 2nd

Dist. Montgomery No. 19674, 2003-Ohio-6536, ¶ 30:



            "If the witness admits making the conflicting statement, then there

      is no need for extrinsic evidence.      If the witness denies making the

      statement, extrinsic evidence may be admitted, provided the opposing

      party has an opportunity to query the witness about the inconsistency, and

      provided the 'evidence does not relate to a collateral matter[.]***'
Stark County, Case No. 2012CA00196                                                     6


      However, if the witness says he cannot remember the prior statement, 'a

      lack of recollection is treated the same as a denial, and use of extrinsic

      impeachment evidence is then permitted.' " (Citations omitted.) State v.

      Harris (Dec. 21, 1994), Montgomery App. No. 14343, 1994 WL 718227;

      see, also, State v. Taylor (July 26, 1996), Montgomery App. No. 15119,

      1996 WL 417098 ("A prior statement of a witness may be proved by

      extrinsic evidence if the witness denies the statement or claims he cannot

      remember the statement").



      {¶12} Based upon Ms. Allen's testimony at trial, an issue existed as to her

credibility. She was afforded the opportunity to explain or deny her statements, and

defense counsel was afforded the opportunity to interrogate her on her statements. We

find Evid.R. 613(B)(1) was satisfied.

      {¶13} Following Ms. Allen's testimony, the state called to the stand Debra

Stewart, the Emergency Room trauma nurse who treated Ms. Allen.             Ms. Stewart

testified while obtaining Ms. Allen's medical history for purposes of diagnosis and

treatment, Ms. Allen made certain statements to her. T. at 158. Ms. Allen was upset

and crying, but alert and oriented. T. at 159-161. Ms. Stewart testified to the following

exchange with Ms. Allen (T. at 162-163):



             A. She kept repeating, He hates me, he hates me. And in trying to

      get her children - - get her to calm down for her children's sake, I asked

      her, you know, what do you mean, you know, because I was trying to find
Stark County, Case No. 2012CA00196                                                     7


      out - - we have to question them as far as, like, how did the accident

      happen, what did you hit, the mechanism of injury because that can

      change the whole outlook on what tests you do and stuff, whether they

      were belted, whether they hit another object or another car. And she just

      kept saying, He hates me, he hates me. I asked her what she means by

      that, and she said her husband hates her, that they were fighting and he

      said he was going to kill them all, he just turned the wheel and lost control

      of the car.

             Q. When she provided that information to you, were you concerned

      at that point?

             A. Yes.

             Q. And why?

             A. Well, because that's a whole 'nother can of worms. And I didn't

      want to get too involved in it. I just went out and the Jackson Police

      officer, I believe he was in the other room with the person who was driving

      the car, and when he came out I just said, I got to tell you what this patient

      said to me. So I explained it to him, and then he went in and talked to the

      patient.



      {¶14} Ms. Allen's testimony at trial was meant to exonerate her husband from

the injuries caused by the accident. We find the impeachment also qualified under

Evid.R. 613(B)(2)(b).   In addition, Evid.R. 616(A) provides for the use of the bias

method of impeachment: "Bias, prejudice, interest, or any motive to misrepresent may
Stark County, Case No. 2012CA00196                                                        8


be shown to impeach the witness either by examination of the witness or by extrinsic

evidence."

       {¶15} Apart from the use of the impeachment tool, Ms. Allen's statements to Ms.

Stewart also qualified under the hearsay exceptions of Evid.R. 803(3) (then existing,

mental, emotional, or physical condition) and (4) (statements for purposes of medical

diagnosis or treatment).

       {¶16} Assignment of Error I is denied.

                                                II

       {¶17} Appellant claims his convictions were against the sufficiency and manifest

weight of the evidence. We disagree.

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

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

v. Jenks, 61 Ohio St.3d 259 (1991). "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, 443 U.S. 307 (1979). On

review for manifest weight, a reviewing court is to examine 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 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. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). See

also, State v. Thompkins, 78 Ohio St.3d 380, 1997–Ohio–52. The granting of a new
Stark County, Case No. 2012CA00196                                                      9


trial "should be exercised only in the exceptional case in which the evidence weighs

heavily against the conviction." Martin at 175.

      {¶19} Appellant was convicted of vehicular assault in violation of R.C.

2903.08(A)(2)(b) which states: "No person, while operating or participating in the

operation of a motor vehicle, motorcycle, snowmobile, locomotive, watercraft, or aircraft,

shall cause serious physical harm to another person or another's unborn in any of the

following ways:***Recklessly."

      {¶20} Appellant was also convicted of endangering children in violation of R.C.

2919.22(A) which states the following in pertinent part:



             No person, who is the parent, guardian, custodian, person having

      custody or control, or person in loco parentis of a child under eighteen

      years of age or a mentally or physically handicapped child under twenty-

      one years of age, shall create a substantial risk to the health or safety of

      the child, by violating a duty of care, protection, or support.



      {¶21} As set forth in R.C. 2901.22(C):



             A person acts recklessly when, with heedless indifference to the

      consequences, he perversely disregards a known risk that his conduct is

      likely to cause a certain result or is likely to be of a certain nature. A

      person is reckless with respect to circumstances when, with heedless
Stark County, Case No. 2012CA00196                                                       10


      indifference to the consequences, he perversely disregards a known risk

      that such circumstances are likely to exist.



      {¶22} It is appellant's position that the injuries were the result of a pothole and/or

animal in the road, not recklessness.

      {¶23} While at the hospital, Jackson Township Police Officer Thomas

Minarcheck took Ms. Allen's statement wherein she stated, "he stated he was going to

take us all out, and he swerved twice, and then he slammed into the house and the car."

T. at 256-266. A witness to the accident, Terre Arnold, testified to the following (T. at

193-195):



             A. I was coming back and - - to my daughter's house, and I

      witnessed a car that was coming towards me, and he - - well, the car

      jerked like towards the shoulder and then straightened out and then went

      across the double yellow line, went back into its lane, came back acrossed

      and tipped up a little bit.

             I pulled over into - - there's a church parking lot, or a driveway

      acrossed from my daughter's home, and I pulled in that to get out of the

      way because I didn't know if he was going to roll or hit me or what he was

      going to do, the car. So I just stayed there.

             And them, um-m, the vehicle shot acrossed my daughter's

      driveway.***

             ***
Stark County, Case No. 2012CA00196                                                         11


              So I went over, and as the car crossed the driveway and slammed

        into the house, it slid down the house into her car. And there was big

        bushes there, about six feet tall, and the force took all the bushes out so

        they were smashed between the vehicle that hit the house and my

        daughter's car.



        {¶24} Ms. Allen, who was trapped inside the car, told Ms. Arnold "he did it on

purpose, he did it on purpose." T. at 198. Ms. Arnold testified she travels the road a lot

and there were no bumps or anything in the road. T. at 200.

        {¶25} Jackson Township Police Officer Josh Escola wrote out the accident

report and took measurements at the scene.           T. at 219.    Officer Escola spoke to

appellant who told him "something ran in from of him, his car." T. at 220. Officer Escola

testified there were no skid marks on the road to indicate braking, but "yaw marks." T.

at 223, 225. He explained what yaw marks were and testified the yaw marks indicated

appellant cut the wheel "all the way to the right." T. at 224-225. The car never spun

out, indicating the brakes were not applied. T. at 226. From the first time the car went

off the road, it traveled 545 feet and 5 inches to its final resting place at the house. T. at

228. Officer Escola explained the car left the roadway at three different points (T. at

245):



              A. Yes, ma'am. Two times on the north, one time was the initial

        movement off the road, which was the Q and R mark. R was the initial

        movement off the road, crossed two lanes of travel on the left side of the
Stark County, Case No. 2012CA00196                                                       12


      vehicle, went off the road, both tires, the right tires did not go off the road,

      and then crossing the lanes of travel. And on I and J, these two marks,

      the vehicle went off the road for the final time.



      {¶26} Even after a thorough investigation of the area, there was no indication

that the brakes had been applied to the car. T. at 240.

      {¶27} We find Ms. Allen's statements were corroborated by the accident

investigation report and the eyewitness testimony.

      {¶28} Upon review, we find sufficient evidence to establish recklessness, and no

manifest miscarriage of justice.

      {¶29} Assignment of Error II is denied.
Stark County, Case No. 2012CA00196                                         13


      {¶30} The judgment of the Court of Common Pleas of Stark County, Ohio is

hereby affirmed.

By Farmer, P.J.

Wise, J. and

Baldwin, J. concur.




                                      _______________________________
                                      Hon. Sheila G. Farmer



                                      _______________________________
                                      Hon. John W. Wise



                                      _______________________________
                                      Hon. Craig R. Baldwin


SGF/sg 805
[Cite as State v. Allen, 2013-Ohio-3715.]


                     IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                  :
                                               :
        Plaintiff-Appellee                     :
                                               :
-vs-                                           :       JUDGMENT ENTRY
                                               :
JAMES ALLEN                                    :
                                               :
        Defendant-Appellant                    :       CASE NO. 2012CA00196




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Costs to

appellant.




                                               _______________________________
                                               Hon. Sheila G. Farmer



                                               _______________________________
                                               Hon. John W. Wise



                                               _______________________________
                                               Hon. Craig R. Baldwin
