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State v. Liming

Court of Appeals of Ohio, Second District

January 16, 2004

STATE OF OHIO Plaintiff-Appellee.
BRIAN R. LIMING Defendant-Appellant.

(Criminal Appeal from Common Pleas Court) T.C. CASE NO. 02CR688

William F. Schenck, Pros. Attorney; Aldolfo A. Tornichio, Asst. Pros. Attorney, Atty. Reg. No. 0070490 Attorney for Plaintiff-Appellee

Jon Paul Rion, Atty. Reg. No. 0067020 Attorney for Defendant-Appellant.



{¶1} Defendant, Brian R. Liming, appeals from his conviction and resulting sentence for a violation of R.C. 2903.06(A)(2), aggravated vehicular homicide, which were entered on Liming's guilty plea.

{¶2} R.C. 2903.06(A) provides: "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:" Four ways are set out. Paragraph (1) of that section states: "As the proximate result of committing a violation of division (A) of section 4511.19 of the Revised Code or of a substantially equivalent municipal ordinance." Paragraph (2) states: "Recklessly."

{¶3} R.C. 2903.06(A)(1), which is founded on an underlying violation of R.C. 4511.19(A), the DUI statute, is a second degree felony for which a prison term is mandatory. R.C 2903.06(B)(1)(a), (C). Second degree felonies are punishable by definite terms of incarceration of two, three, four, five, six, seven, or eight years. R.C. 2929.14(A)(2).

{¶4} R.C. 2903.06(A)(2), which is founded on reckless conduct, is a felony of the third degree. R.C. 2903.06(B)(1)(b). A prison term is not mandated. Therefore, a community control sanction may be imposed in lieu of incarceration. R.C. 2929.15(A)(1). If a prison term is imposed, it must be for a definite term of incarceration of two, three, four, or five years. R.C. 2929.15(A)(1).

{¶5} Defendant Liming was charged by indictment with two violations of R.C. 2903.06, both arising from the death of Thomas Hawkins, a passenger in Liming's pick-up truck who was killed when it went off the road. Count I of the indictment alleged a violation of R.C. 2903.06(A(1), the version of the offense alleging an underlying DUI offense. Count II alleged a violation of R.C. 2903.06(A)(2), the version founded on reckless conduct. It is undisputed that because the two versions of the same offense are allied offenses of similar import, Liming could be convicted of only one and the State would eventually have to dismiss the other charge. R.C. 2942.25(A).

{¶6} Liming was injured in the accident in which Thomas Hawkins was killed. He was taken to Miami Valley Hospital in Dayton, where his blood was drawn. A subsequent blood-alcohol analysis determined that Liming's blood had a concentration of 0.124 per cent by weight of alcohol. R.C. 4511.19(A)(2) prohibits operating a motor vehicle with a concentration of 0.100 per cent or more.

{¶7} Liming filed a Crim.R. 12(C)(3) motion to suppress evidence of his blood alcohol test results. The trial court conducted an evidentiary hearing and thereafter denied the motion. Liming subsequently entered a plea of guilty to the R.C. 2903.06(A)(2) offense charged in Count II of the indictment, alleging the reckless conduct offense. The State dismissed Count I, which charged the R.C. 2903.06(A)(1) offense based on a DUI violation. The court referred the matter to its probation department for a presentence investigation and report.

{¶8} The sentencing hearing was held on May 16, 2003, approximately two months after Liming had entered his guilty plea. Liming was given the probation officer's written report shortly before the hearing. It contains the following conclusion and recommendation:

{¶9} "It is the recommendation of the Greene County Adult Probation Department that after reviewing Ohio Revised Code §2929.11(A) and 2929.13(B) the offender is not amenable to available community sanctions.

{¶10} "The defendant tested above the legal limit for alcohol and the toxicology report showed the defendant has used marijuana at some point. Although this was an accident and not an intentional crime, one life was lost.

{¶11} "Therefore, it is respectfully recommended the Court sentence the defendant to the Department of Rehabilitation and Correction (Correctional Reception Center) for a period of 4 years for a violation of O.R.C. 2903.06(A)(2), Aggravated Vehicular Homicide, a felony of the third degree in Count II. Count I was dismissed. It is further recommended that no fine be imposed. The defendant is entitled to 1 day jail time credit.[1]

{¶12} "It is also recommended that the defendant's driver's license be revoked pursuant to §4507.16 of the Ohio Revised Code."

{¶13} Liming asked for a continuance to present evidence rebutting the statement in the report concerning the test results indicating an elevated blood alcohol level. His attorney stated that witnesses were available, including a police officer who had stopped Liming about one-half hour before the accident and who would testify that Liming was "completely sober." (T. 5, 6). Liming stated that he'd had nothing at all to drink, and that he and Hawkins had used marijuana the day before the accident.

{¶14} The trial court denied Liming's motion for a continuance. The court did, however, permit Liming to present the testimony of his parents. Each stated that when they saw Liming at the hospital after the accident he did not show symptoms of being under the influence of alcohol. Liming and the State stipulated that, if called, the police officer who had stopped Liming before the accident would ...

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