[Cite as State v. Smith, 2011-Ohio-5095.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                               :   JUDGES:
STATE OF OHIO                                  :   W. Scott Gwin, P.J.
                                               :   John W. Wise, J.
                         Plaintiff-Appellee    :   Julie A. Edwards, J.
                                               :
-vs-                                           :   Case No. 2011CA00015
                                               :
                                               :
JESSICA RENEE SMITH                            :   OPINION

                     Defendant-Appellant




CHARACTER OF PROCEEDING:                            Criminal Appeal from Stark County
                                                    Court of Common Pleas Case No.
                                                    2010CR0196

JUDGMENT:                                           Affirmed In Part and Reversed and
                                                    Remand In Part

DATE OF JUDGMENT ENTRY:                             September 26, 2011

APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

JOHN D. FERRERO                                     BERNARD L. HUNT
Prosecuting Attorney                                2395 McGinty Road, N.W.
Stark County, Ohio                                  North Canton, Ohio 44720

BY: RONALD MARK CALDWELL
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South
Suite 510
Canton, Ohio 44702-1413
[Cite as State v. Smith, 2011-Ohio-5095.]


Edwards, J.

        {¶1}     Defendant-appellant, Jessica Smith, appeals her conviction and sentence

from the Stark County Court of Common Pleas on one count of vehicular homicide.

Plaintiff-appellee is the State of Ohio.

                                 STATEMENT OF THE FACTS AND CASE

        {¶2}     On or about March 15, 2010, the Stark County Grand Jury indicted

appellant on one count of vehicular homicide in violation of R.C. 2903.06(A)(3), a felony

of the fourth degree. At her arraignment on March 19, 2010, appellant entered a plea of

not guilty to the charge.

        {¶3}     Subsequently, a jury trial commenced on October 25, 2010. The following

testimony was adduced at trial.

        {¶4}     Kim Haas, the manager of the Speedway gas station on Mahoning Road,

in Canton, Ohio, was working on December 23, 2009, when she learned from a food

steward and one of the cashiers that a customer had been injured. The injured

customer was Maurice Gillespie. Haas testified that she assisted the police in

investigating the accident by burning a DVD from the store surveillance at the time of

the accident. The videotape showed Gillespie entering the Speedway to purchase his

coffee and then leaving out the front door. As Gillespie exited the store, a dark car

parked outside the entrance backed up and hit Gillespie. The car then departed, but left

a passenger behind. Maurice Gillespie, who had a fractured shoulder and fractured hip,

was taken to the hospital.

        {¶5}     According to Haas, the passenger, who turned out to be Steve Altier,

appellant’s boyfriend, helped Gillespie get inside the store. When Canton Police Officer
Stark County App. Case No. 2011CA00015                                                    3


Darrel Pierson arrived on the scene, Gillespie was sitting in a chair inside the Speedway

doorway with medical personnel and firemen around him. According to the officer,

Gillespie was in pain and was distraught. When Officer Pierson asked appellant what

had happened, appellant stated that “he was walking through the parking lot and pretty

much the bitch ran me over.” Transcript at 170. After speaking with Altier, Officer

Pierson developed the name “Renee Johnston” as the driver of the vehicle that had

struck Gillespie.

       {¶6}   Canton Police Officer Michael Gary testified that he ran a computer search

on Steve Altier who he had dealings with before. During the search, the officer

discovered that Jessica Renee Smith was a known associate of Altier.

       {¶7}   At trial, Frank Altier testified that Steve Altier was his son and that, in

December of 2009, his son was staying off and on with appellant. Frank Altier testified

that, at around Christmastime, his son and appellant asked him to rent a car for him. He

testified that he did not do so.

       {¶8}   The next witness to testify was Kurt Henley. Henley testified that in mid-

December of 2009, he rented a car for appellant, whose driver’s license had been

suspended for not having insurance, from Enterprise Rent-A-Car. Henley testified that

appellant went with him to rent the car and that he rented the car for three days. On

December 26, 2009, Henley was contacted by Enterprise Rent-A-Car after the car had

not been returned. After appellant failed to return the car, Henley gave the car rental

agency her address on Mahoning Road.

       {¶9}   Officer Kim Elliott of the Canton Police Department testified that, as part of

the investigation, she went to Enterprise-Rent-A-Car to obtain rental agreement records
Stark County App. Case No. 2011CA00015                                                  4


for a 2009 black Chevy Impala that had been rented by Kurt Henley. While at the car

rental agency, the officer retrieved items that had been taken from the car once it was

towed from appellant’s address.      The items included a purse, diapers, baby items,

clothing and lingerie.

       {¶10} Brad Frank, the branch manager of the Enterprise-Rent-A-Car on Market

and Ninth Street in Canton, testified that he was working in December of 2009. He

testified that Kurt Henley rented a black Chevy Impala on December 16, 2009 and that,

when the car was not returned, he went to Henley’s house and told him that they

needed the car back. After the car was not returned by the next morning, Frank called

Henley who gave him appellant’s address. Frank went to the address on December 29,

2009 and saw the car in the driveway. Frank testified that he knocked on appellant’s

door, but no one answered although he heard “rumblings” inside the apartment.

Transcript at 238. Frank then called the police and also called for a tow truck. According

to Frank, appellant came out of the apartment and then went back inside. When a police

officer arrived, Frank asked him if he could get the keys from appellant. Appellant,

however, refused to open the door. Once the tow truck arrived, the car was towed and

the personal belongings in the same were taken out of the car and labeled.

       {¶11} Due to pulmonary emboli caused by trauma from the accident and the

necessary immobilization, Gillespie died on December 30, 2009, and an arrest warrant

was issued for appellant for causing his death. Officer Gary testified that after he

arrested appellant on February 11, 2010, she said that she had no idea about the

accident and denied knowing Steve Altier. She also denied knowing Kurt Henley, the

man who had rented the car that she was driving.
Stark County App. Case No. 2011CA00015                                                 5


      {¶12} Detective Mike Volpe of the Canton Police Department testified that he

knew Steve Altier and that, in February of 2010 while on patrol, he was dispatched in

response to a trouble call during the afternoon. The Detective testified that witnesses

had seen someone jump into the vehicle that was the subject of the trouble call and

drive away. When Detective Volpe stopped the vehicle, he recognized Altier as the

driver. Appellant and her children were in the back seat. According to the Detective,

appellant appeared to know Steve Altier.

      {¶13} Detective Sean Flaherty of the Canton Police Department testified that he

was assigned to investigate the accident. Detective Flaherty testified that he spoke with

Steve Altier’s parents and that they told him that Renee Johnston was their son’s

girlfriend. The Detective was able to identify the car as a rental car from Enterprise

Rent-A-Car and determine that it was rented by Kurt Henley. When the Detective went

to appellant’s apartment, appellant had just come out of her apartment with her two kids

and was starting to walk down the stairs. When he asked her if she was Renee Smith,

appellant said no. The name on appellant’s driver’s license was Jessica R. Smith.

Detective Flaherty asked appellant if the “R” stood for “Renee” and appellant indicated

that she did not go by that name. When the Detective told appellant that he was there to

talk to her about a traffic crash that occurred at Speedway, appellant stated that she

was not involved in one and indicated that she did not drive. Appellant was not “real

cooperative” and told the Detective that she would not answer any questions. Transcript

at 369.   Detective Flaherty later inspected the items that were retrieved from the

repossessed rental car and testified that the items included a letter in the passenger

seat addressed to “Steve Altier.” When Detective Flaherty went to appellant’s apartment
Stark County App. Case No. 2011CA00015                                                 6


to arrest her, the person behind the door indicated that Jessica Renee Smith did not live

there and refused to open the door. While they were talking, Officer Gary saw appellant

come to the window and close the curtain. The officers then forced the door open and

arrested appellant.

      {¶14} Testimony was adduced at trial that, while in jail, appellant made at least

two telephone calls that were recorded and introduced at trial.        During the calls,

appellant admitted that she was driving the car at the time of the accident and that she

got the rental car from Kurt Henley.

      {¶15} At the conclusion of the evidence and the end of deliberations, the jury, on

October 27, 2010, found appellant guilty of vehicular homicide. Pursuant to a Judgment

Entry filed on October 29, 2010, appellant was sentenced to eighteen (18) months in

prison. As memorialized in a Judgment Entry filed on November 8, 2010, appellant’s

driver’s license was suspended for a period of five years.

      {¶16} Appellant now raises the following assignments of error on appeal:

      {¶17} “I. THE TRIAL COURT VIOLATED RULE 43 WHEN IT FAILED TO

IMPOSE A LICENSE SUSPENSION DURING THE APPELLANT’S SENTENCING

HEARING AND DID SO AT A LATER DATE.

      {¶18} “II. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED

THE APPELLANT’S MOTION FOR A MISTRIAL.

      {¶19}    “III. THE TRIAL COURT COMMITTED ERROR WHEN IT DENIED

APPELLANT’S RULE 29 MOTION FOR AQUITTAL [SIC].”
Stark County App. Case No. 2011CA00015                                                   7


                                                I

       {¶20} Appellant, in her first assignment of error, argues that the trial court erred

in suspending appellant’s driver’s license outside of appellant’s presence. We agree.

       {¶21} As is stated above, pursuant to a Judgment Entry filed on October 29,

2010, appellant was sentenced to eighteen (18) months in prison. Thereafter, as

memorialized in a separate Judgment Entry filed on November 8, 2010, appellant’s

driver’s license was suspended for a period of five years. Appellant now contends that

the trial court violated Crim.R. 43 by failing to impose the mandatory license suspension

during appellant’s sentencing hearing and doing so at a later date.

       {¶22} Crim.R. 43(A)(1) states as follows:

       {¶23} “Except as provided in Rule 10 of these rules and division (A)(2) of this

rule, the defendant must be physically present at every stage of the criminal proceeding

and trial, including the impaneling of the jury, the return of the verdict, and the

imposition of sentence, except as otherwise provided by these rules. In all prosecutions,

the defendant's voluntary absence after the trial has been commenced in the

defendant's presence shall not prevent continuing the trial to and including the verdict. A

corporation may appear by counsel for all purposes.” (Emphasis added).

       {¶24} In State v. Robar, Delaware App. No. 10-CAC-03-0022, 2010-Ohio-5319,

this Court held that the trial court failed to comply with Crim.R. 43 by suspending the

appellant’s driver's license via a sentencing entry without imposing the license

suspension during the sentencing hearing. We reversed and remanded the matter for a

new sentencing hearing.
Stark County App. Case No. 2011CA00015                                                       8

       {¶25} Based on Robar, and on the fact that the State concedes the matter

should be reversed and remanded for resentencing, appellant’s first assignment of error

is sustained.

                                                  II

       {¶26} Appellant, in her second assignment of error, argues that the trial court

erred when it denied appellant’s motion for a mistrial. We disagree.

       {¶27} The granting of a mistrial rests within the sound discretion of the trial court

as it is in the best position to determine whether the situation at hand warrants such

action. State v. Glover (1988), 35 Ohio St.3d 18, 517 N.E.2d 900; State v. Jones (1996)

115 Ohio App.3d 204, 207, 684 N.E.2d 1304, 1306.

       {¶28} “A mistrial should not be ordered in a criminal case merely because some

error or irregularity has intervened * * *.” State v. Reynolds (1988), 49 Ohio App.3d 27,

33, 550 N.E.2d 490, 497. The granting of a mistrial is necessary only when a fair trial is

no longer possible. State v. Franklin (1991), 62 Ohio St.3d 118, 127, 580 N.E.2d 1, 9;

State v. Treesh, 90 Ohio St.3d 460, 480, 2001-Ohio-4, 739 N.E.2d 749, 771. When

reviewed by the appellate court, we should examine the climate and conduct of the

entire trial, and reverse the trial court's decision as to whether to grant a mistrial only for

a gross abuse of discretion. State v. Draughn (1992), 76 Ohio App.3d 664, 671, 602

N.E.2d 790, 793–794, citing State v. Maurer (1984), 15 Ohio St.3d 239, 473 N.E.2d

768, certiorari denied (1985), 472 U.S. 1012, 105 S.Ct. 2714, 86 L.Ed.2d 728; State v.

Gardner (1998), 127 Ohio App.3d 538, 540–541, 713 N.E.2d 473, 475.

       {¶29} In the case sub judice, Officer Pierson testified that when he asked

Maurice Gillespie what had happened, Gillespie “stated that he was walking through the
Stark County App. Case No. 2011CA00015                                                   9


parking lot and pretty much the bitch ran me over.” Transcript at 170. Appellant then

objected and asked for a mistrial. The following discussion then occurred on the record:

      {¶30} “THE COURT: Wish I would have known that was going to be the answer.

      {¶31} “MR. SCOTT: Well, the fact that he used the term bitch refers more badly

on him than it does on the victim.

      {¶32} “Secondly, it is excited utterance and present sense.

      {¶33} “THE COURT: Yeah. I think it is a hearsay exception.

      {¶34} “I don’t really like the language. But in all honesty, Mr. Graham, I think the

language helps you defending your client.

      {¶35} “I think it is a hearsay exception. So please proceed.” Transcript at 171.

      {¶36} Appellant now contends that the use of the word “bitch” was inflammatory

and prejudiced the jury against appellant. However, we find that such statement

constitutes an excited utterance under Evid .R. 803(2). An “excited utterance” is defined

as “[a] statement relating to a startling event or condition made while the declarant was

under the stress of excitement caused by the event or condition.” Evid.R. 803(2). For an

alleged excited utterance to be admissible, four prerequisites must be satisfied: (1) an

event startling enough to produce a nervous excitement in the declarant, (2) the

statement must have been made while still under the stress of excitement caused by

the event, (3) the statement must relate to the startling event, and (4) the declarant must

have personally observed the startling event. See State v. Duncan (1978), 53 Ohio

St.2d 215, 373 N.E.2d 1234.

      {¶37} In the case sub judice, such statement was made shortly after Gillespie

had been run down in a hit-and-run incident that caused him serious injuries and severe
Stark County App. Case No. 2011CA00015                                                    10


pain. There was testimony that Gillespie was distraught when such statement was

made. Moreover, while appellant asserts that the word “bitch was inflammatory and

prejudiced the jury against her, we note that her trial counsel, during cross-exanimation,

used the word “bitch” five times before being advised by the trial court that “we got the

point about the bitch.” Transcript at 182. Finally, as noted by appellee and the trial court,

the use of such word reflected badly on Gillespie and to appellant’s benefit.

       {¶38} Appellant’s second assignment of error is, therefore, overruled.

                                                 III

       {¶39} Appellant, in her third assignment of error, argues that the trial court erred

in denying appellant’s Crim. R. 29 motion for acquittal. We disagree.

       {¶40} In determining whether a trial court erred in overruling an appellant's

motion for judgment of acquittal, the reviewing court focuses on the sufficiency of the

evidence. See, e.g., State v. Carter, 72 Ohio St.3d 545, 553, 1995-Ohio-104, 651

N.E.2d 965, 974; State v. Jenks (1991), 61 Ohio St.3d 259 at 273, 574 N.E.2d 492, 503.

       {¶41} When reviewing the sufficiency of the evidence, our inquiry focuses

primarily upon the adequacy of the evidence; that is, whether the evidence, if believed,

reasonably could support a finding of guilt beyond a reasonable doubt. See State v.

Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541, 546 (stating,

“sufficiency is the test of adequacy”); Jenks, supra. The standard of review is whether,

after viewing the probative evidence and inferences reasonably drawn therefrom in the

light most favorable to the prosecution, any rational trier of fact could have found all the

essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia
Stark County App. Case No. 2011CA00015                                                    11

(1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560; Jenks, 61 Ohio St.3d at 273, 574

N.E.2d at 503.

       {¶42} Appellant specifically contends that the evidence failed to establish

beyond a reasonable doubt that her conduct constituted a substantial lack of due care.

Appellant was convicted of vehicular homicide. That offense is set forth in R.C.

2903.06(A)(3)(a), and provides, in pertinent part:

       {¶43} “No person, while operating or participating in the operation of a motor

vehicle * * * shall cause the death of another in any of the following ways ...

negligently....”

       {¶44} Under R.C. 2903.06(A)(3)(a), therefore, the elements which must be

proved beyond a reasonable doubt are (1) operation of a motor vehicle, (2) lack of due

care during the operation of that vehicle, and (3) death proximately caused by that lack

of due care. State v. Vaught (1978), 56 Ohio St.2d 93, 94-95, 382 N.E.2d 213, 214.

[Construing former statute R.C.2903.07 (A) ].

       {¶45} R.C. 2901.22(D) defines criminal negligence as follows: “(D) A person acts

negligently when, because of a substantial lapse from due care, he fails to perceive or

avoid a risk that his conduct may cause a certain result or may be of a certain nature. A

person is negligent with respect to circumstances when, because of a substantial lapse

from due care, he fails to perceive or avoid a risk that such circumstances may exist.”

       {¶46} In the case sub judice, there was evidence that appellant backed up in the

very busy parking lot of a Speedway two days before Christmas and struck Gillespie. As

a result, Gillespie suffered fractures to his shoulder and to his hip and ended up dying

from pulmonary emboli resulting from the accident. Testimony was adduced at trial that
Stark County App. Case No. 2011CA00015                                                   12


the Speedway was busier than usual because of the holiday.         Appellant, after striking

Gillespie, drove off, leaving her passenger behind. We find, based on the foregoing,

that the trial court did not err in denying appellant’s Crim. R. 29 motion for acquittal. We

find that the evidence did not fail to establish beyond a reasonable doubt that

appellant’s conduct constituted a substantial lack of due care.

       {¶47} Appellant’s third assignment of error is, therefore, overruled.

       {¶48} Accordingly, the judgment of the Stark County Court of Common Pleas is

affirmed in part and reversed and remanded in part.




By: Edwards, J.

Gwin, P.J. and

Wise, J. concur

                                                    ______________________________



                                                    ______________________________



                                                    ______________________________

                                                                  JUDGES

JAE/d0714
[Cite as State v. Smith, 2011-Ohio-5095.]


                IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
JESSICA RENEE SMITH                               :
                                                  :
                        Defendant-Appellant       :       CASE NO. 2011CA00015




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

judgment of the Stark County Court of Common Pleas is affirmed in part, and reversed

and remanded to the trial court for further proceedings. Costs assessed to appellant.




                                                      _________________________________


                                                      _________________________________


                                                      _________________________________

                                                                   JUDGES
