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State v. Zanders7/5/2000
DECISION AND JOURNAL ENTRY
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
Lawrence Zanders appeals from his conviction following a jury trial in the Summit County Court of Common Pleas. This court affirms.
I.
On October 23, 1992, at approximately 8:00 p.m., Denise Charley and her four-year-old son Dustin went out to get the mail from their mailbox, located on the opposite side of Krumroy Road from their Springfield Township home. As Denise and Dustin walked toward the road, but while still in their yard, they were struck by a car. Denise landed some twenty-five feet back from the roadside, and Dustin landed in the gravel shoulder area, at least one hundred feet from Denise. Moments later, another car drove down this section of Krumroy Road and the passenger noticed Denise struggling to get up from the yard. The driver stopped at the scene of the accident. The car's passenger noticed something small lying near the roadside. It was Dustin. Dustin died immediately, but Denise lived long enough to render a coherent account of the incident to EMS workers. Denise stated that she and Dustin were not even at the roadside when a large white or tan car hit them, so she could not understand how the accident could have happened. Denise also said that she "thought [the driver] had turned the lights out."
The police investigation of the scene revealed that there were tire tracks leaving the roadway, reaching as far as seven feet from the outside lane line, and traveling some thirty feet before returning to the road. The police also retrieved debris from the scene including broken grillwork and pieces of a headlight cover, which belonged to a 1982 Cadillac. The next day, the police found a 1982 Cadillac, titled to Lawrence Zanders, with the same parts missing from the front end of the car.
Zanders was arrested and indicted on two counts of aggravated vehicular homicide, tampering with evidence, failure to stop after an accident, two counts of involuntary manslaughter, with several predicate minor misdemeanor traffic violations. At the conclusion of a jury trial in January 1993, the jury acquitted Zanders of: both counts of aggravated vehicular homicide, tampering with evidence, failure to stop after an accident, and driving without required lighted lights. The jury convicted Zanders of two counts of involuntary manslaughter and failure to drive within marked lanes. The jury was undecided about the failure to control charge, and the trial court dismissed that count.
On appeal, this court reversed in part and remanded, finding that the minor misdemeanor traffic offense could not serve as the predicate offense for involuntary manslaughter. State v. Zanders (Apr. 5, 1994), Summit App. No. 16166, unreported, at 2, citing State v. Collins (1993), 67 Ohio St.3d 115, syllabus. During the pendency of the appeal, Daniel Ott, a fellow inmate who knew Zanders at Grafton Correctional Institute, sent a letter to the prosecutor, indicating that Zanders had revealed to Ott certain incriminating facts. Ott stated that Zanders told him that the accident occurred after Zanders saw Denise Charley at the side of the road, and deliberately swerved toward her to scare her.
After remand following appeal, the prosecutor used this information from Ott to obtain a supplemental indictment for two counts of involuntary manslaughter, based on two counts of the predicate misdemeanor of aggravated menacing, a first degree misdemeanor in violation of R.C. 2903.21. The trial court, however, determined that the aggravated menacing charges were barred by the two-year stat
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