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State v. Swiger

Court of Appeals of Ohio, Ninth District

August 14, 2013

STATE OF OHIO Appellee
v.
MELISSA SWIGER Appellant

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 1111 3032

GREGORY A. PRICE, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.

DECISION AND JOURNAL ENTRY

BETH WHITMORE, Judge.

(¶1} Defendant-Appellant, Melissa Swiger, appeals from her convictions in the Summit County Court of Common Pleas. This Court reverses.

I

(¶2} On the morning of August 23, 2011, Swiger stopped her minivan in the middle of Waterloo Road, exited the minivan, and opened the driver's side rear passenger door. She then removed her three-year old son from the minivan, placed him in the middle of the four-lane road, returned to the driver's seat, and drove off A woman who resided on Waterloo Road saw Swiger place her son in the middle of the road and ran into traffic to rescue him.

(¶3} Subsequently, Swiger drove through the intersection of Waterloo Road and South Main Street at an excessive rate of speed. Her minivan collided with two other vehicles. The collision seriously injured one of the other drivers involved, but Swiger only received minor injuries. After her minivan came to a stop, Swiger got out and began to walk down the middle of South Main Street. Officers arrested her on foot on South Main Street. At the time of her arrest, Swiger was mumbling and uncooperative. She later became compliant, but the paramedic who treated her described her as disoriented and unable to respond to questions. Swiger was admitted to Akron General and ultimately spent close to nine days in their psychiatric unit.

(¶4} As a result of the events that occurred on August 23, 2011, a grand jury indicted Swiger on each of the following counts: (1) aggravated vehicular assault, in violation of R.C. 2903.08(A)(1); (2) operating a vehicle under the influence of drugs or alcohol ("OVI"), in violation of R.C. 4511.19(A)(1)(a); (3) red light, in violation of R.C. 4511.13; (4) reckless operation, in violation of R.C. 4511.20; (5) hit skip, in violation of R.C. 4549.02; and (6) endangering children, in violation of R.C. 2919.22(A). Swiger initially pleaded not guilty on all counts, but later filed a notice that she intended to plead not guilty by reason of insanity ("NGRI") on all counts.

(¶5} With the exception of the minor misdemeanor offenses for red light and reckless operation, all of Swiger's counts were tried to a jury. Near the conclusion of the trial, the trial judge informed Swiger's counsel that she would not give the jury an NGRI instruction on either the aggravated vehicular assault count or the OVI count, as the former was a strict liability offense and the latter was both a strict liability offense and a traffic offense. Consequently, the jury only received an NGRI instruction on the counts for hit skip and child endangering. The jury found Swiger guilty on all four counts. The court then found Swiger guilty on the two minor misdemeanor counts. The court sentenced Swiger to a total of four years in prison.

(¶6} Swiger now appeals and raises two assignments of error for our review.

II

Assignment of Error Number One

THE TRIAL COURT'S REFUSAL TO INSTRUCT THE JURY ON A PLEA OF NOT GUILTY BY REASON OF INSANITY VIOLATED THE ...

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