[Cite as State v. Reid, 2014-Ohio-1591.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT




STATE OF OHIO                                :       JUDGES:
                                             :       Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                   :       Hon. Sheila G. Farmer, J.
                                             :       Hon. Patricia A. Delaney, J.
-vs-                                         :
                                             :
CRAIG REID                                   :       Case No. 13-CA-68
                                             :
        Defendant-Appellant                  :       OPINION




CHARACTER OF PROCEEDING:                             Appeal from the Municipal Court,
                                                     Case No. 12 CRB 02051



JUDGMENT:                                            Affirmed




DATE OF JUDGMENT:                                    April 11, 2014




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

TRICIA M. MOORE                                      ANDREW T. SANDERSON
40 West Main Street                                  73 North Sixth Street
Newark, OH 43055                                     Newark, OH 43055
Licking County, Case No. 13-CA-68                                                    2

Farmer, J.

        {¶1}   On May 18, 2012, Newark Police Officer Joseph Phillips was dispatched

to the scene of an accident. Upon investigation, Officer Phillips determined appellant,

Craig Reid, was unable to come to a complete stop in time and struck a vehicle being

operated by Olan Lovelady. Mr. Lovelady underwent surgery for injuries sustained in

the accident. Thereafter, he suffered a post-operative heart attack and died on June 1,

2013.

        {¶2}   On September 19, 2012, appellant was charged with one count of

vehicular manslaughter in violation of R.C. 2903.06(A)(4). A bench trial commenced on

May 29, 2013. Appellant was found guilty. By judgment entry filed July 30, 2013, the

trial court sentenced appellant to thirty days in jail.

        {¶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 COMMITTED HARMFUL ERROR IN PERMITTING

THE INTRODUCTION OF HEARSAY EVIDENCE INTO THE PROCEEDINGS

BELOW."

                                               II

        {¶5}   "THE CONVICTION OF THE DEFENDANT-APPELLANT WAS BASED

ON INSUFFICIENT EVIDENCE TO SUSATAIN THE SAME."

                                               III

        {¶6}   "THE CONVICTION OF THE DEFENDANT-APPELLANT WAS AGAINST

THE MANIFEST WEIGHT OF THE EVIDENCE PRESENTED."
Licking County, Case No. 13-CA-68                                                           3


                                              I

       {¶7}   Appellant claims the trial court erred in permitting the introduction of

hearsay evidence. We disagree.

       {¶8}   The admission or exclusion of evidence lies in the trial court's sound

discretion. State v. Sage, 31 Ohio St.3d 173 (1987). In order to find an abuse of that

discretion, we must determine the trial court's decision was unreasonable, arbitrary or

unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5

Ohio St.3d 217 (1983).

       {¶9}   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."

       {¶10} Specifically, appellant points to two instances of inadmissible hearsay: 1)

when Officer Phillips identified the victim of the accident as Olan Lovelady, and 2) when

the coroner relied on Officer Phillips's report to formulate the cause of death.

       {¶11} Officer Phillips testified when he arrived at the scene, paramedics were

removing the driver of a gold Buick from the vehicle and administering medical aid. T.

at 9-11. Appellant's statement to Officer Phillips at the scene confirmed that as a result

of being cut off by another vehicle, he struck the gold Buick. T. at 8-9. Officer Phillips

obtained the driver's license of the victim and identified the victim as Olan Lovelady. T.

at 7. Officer Phillips reviewed photographs admitted into evidence and identified the

accident scene, including the victim's vehicle. T. at 10-11. Officer Phillips testified there

was only one person in the gold Buick, Mr. Lovelady. T. at 13. Officer Phillips also
Licking County, Case No. 13-CA-68                                                       4


testified he had brief contact with Mr. Lovelady before he was transported to a hospital

in Columbus. T. at 17.

       {¶12} Based upon the testimony of Officer Phillips, we find his determination that

the victim in the gold Buick was Mr. Lovelady does not constitute hearsay.

       {¶13} The coroner, Dr. Jan Gorniak, concluded Mr. Lovelady was in a car

accident and died as a "result of complications of blunt impact to the trunk and

extremities due to motor vehicle collision truck vs. car driver and was accidental in

nature." T. at 27.

       {¶14} Under Evid.R. 803(9), an exception to the hearsay rule, an official death

certificate and corner's opinion in a report are admissible:



              The following are not excluded by the hearsay rule, even though

       the declarant is available as a witness:

              (9) Records of vital statistics. Records or data compilations, in

       any form, of births, fetal deaths, deaths, or marriages, if the report thereof

       was made to a public office pursuant to requirement of law.



       {¶15} The central issue is whether the coroner's conclusions were based upon

the "hearsay testimony" of Officer Phillips wherein he identified the victim as Mr.

Lovelady, the deceased in the coroner's report.

       {¶16} We have found Officer Phillips's identification of Mr. Lovelady did not

constitute hearsay, but was in fact a compilation of direct evidence that he personally
Licking County, Case No. 13-CA-68                                                         5


observed. Upon review, we conclude the coroner's opinion and report were not based

upon hearsay.

       {¶17} Assignment of Error I is denied.

                                           II, III

       {¶18} Appellant claims his conviction for vehicular manslaughter was against the

sufficiency and manifest weight of the evidence. Specifically, appellant claims there

was no causal connection between the accident on May 18, 2013 and Mr. Lovelady's

death on June 1, 2013, or any proof that Mr. Lovelady was the victim. We disagree.

       {¶19} 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 trial

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

against the conviction." Martin at 175.
Licking County, Case No. 13-CA-68                                                      6


      {¶20} Appellant was convicted of vehicular manslaughter (with the underlying

misdemeanor offense being assured clear distance ahead) in violation of R.C.

2903.06(A)(4) which states the following:



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

      motor vehicle, motorcycle, snowmobile, locomotive, watercraft, or 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 or of a municipal ordinance that, regardless of the

      penalty set by ordinance for the violation, is substantially equivalent to any

      provision of any section contained in Title XLV of the Revised Code that is

      a minor misdemeanor.



      {¶21} Appellant argues there was no evidence to support the finding that Mr.

Lovelady was the driver of the gold Buick. Based upon the testimony of Officer Phillips

as discussed above, we find there was sufficient, credible, direct evidence to find Mr.

Lovelady was the driver/victim of the gold Buick.

      {¶22} Appellant also challenges the coroner's opinion of the cause of Mr.

Lovelady's death (T. at 27):
Licking County, Case No. 13-CA-68                                                       7


             The Newark Fire Department responded and transported him to

      Licking Memorial Hospital, Newark, Ohio. Examination revealed thoracic

      spine fracture and a right ulna fracture. Mr. Lovelady was immediately

      transferred by Critical Life Care to Grant Medical Center, Columbus, Ohio

      for further care. The Coroner's Office was notified and Trax Transport was

      dispatched this man was then transported to the Coroner's Office where

      an autopsy was performed. The death in this case with the end result of

      complications of blunt impact to the trunk and extremities due to motor

      vehicle collision truck vs. car driver and was accidental in nature.



      {¶23} Dr. Gorniak explained further (T. at 28):



             Mr. Lovelady had thoracic spine fractures when he underwent an

      operation to fuse those together and he had a heart attack…post

      operative heart attack, so after he had that surgery he had a heart attack.

      Therefore without the surgery he couldn't have a post operative heart

      attack and why did he have the surgery, because he had thoracic spine

      fractures and how did he have thoracic spine fractures because he was in

      a car crash.



      {¶24} Although on cross-examination defense counsel persistently challenged

the causation of death, the trial court accepted the undisputed testimony of the coroner.
Licking County, Case No. 13-CA-68                                                        8


      {¶25} We note the weight to be given to the evidence and the credibility of the

witnesses are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182 (1990).

The trier of fact "has the best opportunity to view the demeanor, attitude, and credibility

of each witness, something that does not translate well on the written page." Davis v.

Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260.

      {¶26} Upon review, we find appellant's conviction was based upon sufficient,

credible evidence, and was not a manifest miscarriage of justice.

      {¶27} Assignments of Error II and III are denied.

      {¶28} The judgment of the Municipal Court of Licking County, Ohio is hereby

affirmed.

By Farmer, J.

Delaney, J. concur and

Hoffman, P.J. concurs separately.




SGF/sg 303
Licking County, Case No. 13-CA-68                                                     9

Hoffman, P.J., concurring

      {¶29} I concur in the majority's analysis and disposition of Appellant's three

assignments of error. I write separately only to note I am not convinced our standard of

review of Appellant's first assignment of error is abuse of discretion. Sage deals only

with the admission or exclusion of "relevant" evidence.
