State v. Kavlich12/12/1986
, Ohio Revised Code, was against the manifest weight of the evidence."
Although appellant incorrectly labels this assigned error in terms of weight of the evidence, in essence, he is contending that the facts recited by the prosecutor did not establish that he committed aggravated vehicular homicide. At most, appellant contends he committed vehicular homicide.
In State v. Thorpe (1983), 9 Ohio App.3d 1, 9 OBR 1, 457 N.E.2d 912, paragraph two of the syllabus, this court noted that:
"The trial court has clear authority in a felony case to determine whether the facts alleged in the indictment, information, or complaint are sufficient to justify conviction of the offense charged. If an indictment alleges facts sufficient to support a conviction, the trial court's acceptance of a no contest plea requires a guilty finding. If not, the court may dismiss the charge or find the defendant guilty of a lesser included offense which is shown by those alleged facts."
See, also, Cleveland v. Technisort, Inc. (1985), 20 Ohio App.3d 139, 20 OBR 172, 485 N.E.2d 294, paragraph two of the syllabus.
The crime of aggravated vehicular homicide is defined in R.C. 2903.06(A) as follows:
"No person, while operating or participating in the operation of a motor vehicle, * * * shall recklessly cause the death of another." (Emphasis added.)
Vehicular homicide is similar to aggravated vehicular homicide except that it is couched in terms of negligence, not recklessness. R.C. 2903.07(A) reads as follows:
"No person, while operating or participating in the operation of a motor vehicle, * * * shall negligently cause the death of another." (Emphasis added.)
The issue presented is whether appellant acted recklessly or negligently. R.C. 2901.22 defines these culpable mental states as follows:
"(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 indifference to the consequences, he perversely disregards a known risk that such circumstances are likely to exist.
"(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, hsfails to perceive or avoid a risk that such circumstances may exist."
Appellant relies in part on State v. Gates (1983), 10 Ohio App.3d 265, 10 OBR 379, 462 N.E.2d 425, and Detling v. Chockley (1982), 70 Ohio St.2d 134, 24 O.O. 3d 239, 436 N.E.2d 208, to support his position. In Gates, the defendant had a blood-alcohol content level of .21 to .22 percent and the presence of 102 nanograms of marijuana per milliliter of blood. The defendant was driving north at a legal rate of speed in his own lane of travel, with his headlights on. Defendant failed to stop at a stop sign and collided with another car, causing the driver's death. Appellant cites the following passage from Gates at 267, 10 OBR at 382, 462 N.E.2d at 429:
"Considering this evidence alone there was no evidence whatever of any improper or erratic driving conduct on the part of the decedent and the evidence as to the defendant's driving conduct tended to prove, at most, only common-law negligence on his part or negligence per se by virtue of his statutory violations, but in no event did such evidence tend to prove, in and by itself, the
Page 1 2 3 4 5 6 7 Ohio DUI Attorneys
DUI Lawyers
|