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State v. Kavlich12/12/1986
defendant's mental state and that he had acted recklessly." (Emphasis added.)
However, appellant neglected to quote the court when it said:
"In these circumstances the jury could properly conclude that the defendant knew his own condition, knew also that driving his car in such condition was likely to cause him to drive in such manner as to cause a collision with another car, and with heedless indifference to these consequences, perversely disregarded such known risk and, nevertheless, drove his car from the Red Fox Inn to the point of the collision. Such conclusion is tantamount to a conclusion that the defendant operated his vehicle recklessly and, with the other evidence as to causation, thus caused the death of another." Id. at 268, 10 OBR at 383, 462 N.E.2d at 430.
In essence, Gates supports the state's position, not appellant's.
Appellant cites Chockley, supra, for the proposition that the use of alcohol alone is insufficient proof of recklessness. However, as pointed out in State v. Hennessee (1984), 13 Ohio App.3d 436, 438-439, 13 OBR 525, 527-528, 469 N.E.2d 947, 950, the issue in Chockley concerned the award of punitive damages, not the interpretation of recklessness in the case of aggravated vehicular homicide:
"* * * In Chockley the court held a defendant in a civil case could not beheld liable for punitive damages, although defendant was intoxicated while driving, without other evidence of actual malice. Appellant asserts this is the standard `recklessness' must meet for a conviction under R.C. 2903.06(A). We disagree.
"Under prior law, R.C. 4511.181, a conviction for aggravated vehicular homicide was dependent upon a violation of the law regarding drunk driving , reckless operation or drag racing. None is needed under the current provision, R.C. 2903.06; therefore, the realm of violations under this section has expanded to include all reckless conduct as defined in R.C. 2901.22(C). * * *"
The Hennessee court then interpreted R.C. 2901.22(C) to the factspresented and stated at 439, 13 OBR at 528, 469 N.E.2d at 950:
"The record reveals appellant was driving while under the influence of alcohol, and failed to yield the right-of-way, causing the accident and the victim's death. A person is said to be `reckless,' pursuant to R.C. 2901.22(C), when one ostensibly disregards a known and significant possibility that his conduct is likely to cause a certain result. Appellant has admitted to driving while under the influence. A licensed driver is charged with knowledge that driving while under the influence is against the law, and creates a substantial risk to himself and others. Appellant disregarded this risk, and continued driving until the accident occurred. We find the element of `reckless' was amply supported by the record and proven by the state. * * *" (Emphasis added.)
See, also, State v. Dudock (1983), 6 Ohio App.3d 64, 65, 6 OBR 502, 503, 453 N.E.2d 1124, 1125.
In the case sub judice, the prosecutor stated that appellant (1) had a blood-alcohol content level of .152; (2) veered his car over the center line; and (3) collided head-on with another vehicle, causing the death of two women. By driving while under the influence appellant disregarded a known risk that his conduct would create substantial injury to himself and others. There were sufficient facts presented to sustain the conviction.
Appellant's second assigned error is overruled.
"The trial court erred in denying defendant's motion to strike the violence specification in the indictment as surplusage and inapplicable to the cause sub judice."
Appellant ch
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