APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 11 09 2404.
SCOT A. STEVENSON, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
CARLA MOORE, Presiding Judge.
(¶1} Defendant-Appellant, James R. Klein, III, appeals from his sentence and conviction as set forth in the August 2, 2012 judgment entry of the Summit County Court of Common Pleas. This Court affirms.
(¶2} In August of 2011, Mr. Klein and his girlfriend, Nikole Perrine, were involved in a one-car accident causing multiple injuries to both persons in the vehicle. At the hospital, Mr. Klein admitted to driving Ms. Perrine's vehicle at the time of the accident. Mr. Klein was indicted for two counts of operating under the influence of alcohol or drugs, in violation of R.C. 4511.19(A)(1)(a)/(g), felonies of the fourth degree, one count of aggravated vehicular assault, in violation of R.C. 2903.08(A)(1), a felony of the second degree, and one count of driving under suspension, in violation of RC. 4510.11, a misdemeanor of the first degree.
(¶3} Mr. Klein pleaded not guilty to all charges, and the matter proceeded to jury trial. The jury returned a verdict of guilty on all four counts, and counts one and two merged into count three for sentencing purposes. The trial court sentenced Mr. Klein to a mandatory term of five years of imprisonment for aggravated vehicular assault, to run concurrently with a term of six months in the Summit County Jail for driving under suspension. Additionally, the trial court ordered that Mr. Klein's driver's license and all driving privileges be suspended for a definite period of fifteen years. The trial court also issued a fine in the amount of $2, 000, but later waived it based upon Mr. Klein's indigent status.
(¶4} Mr. Klein appealed, setting forth three assignments of error for our consideration.
ASSIGNMENT OF ERROR I
THE FINDING THAT MR. KLEIN WAS GUILTY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
(¶5} In his first assignment of error, Mr. Klein argues that his convictions are against the manifest weight of the evidence. Specifically, Mr. Klein argues that the evidence does not prove beyond a reasonable doubt that he was the driver of the vehicle because (1) there was no clear DNA evidence, (2) his statement at the hospital about driving the vehicle was not credible due to being under the influence of powerful pain pills, (3) Ms. Perrine's testimony was not credible due to her memory loss and past incidents of lying, and (4) both he and Ms. Perrine suffered leg injuries consistent with being the driver of the vehicle.
In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). A weight of evidence challenge indicates that a greater amount of credible evidence supports one side of the issue than supports the other. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). "When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a 'thirteenth juror' and disagrees with the factfinder's resolution of the conflicting testimony." Id. The Court's "discretionary power to grant a new trial should be exercised only in exceptional cases where the evidence weighs heavily against the conviction." Otten at 340. See also State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
(¶6} Here, the jury heard testimony from witnesses for the State, including paramedic/firefighter Michael Lester, paramedic/firefighter Ronald Boryk, Officers Scott Dressler and Robert Gilbert, and Ms. Perrine. Additionally, Mr. Klein called his sister, Jennifer Klein, to testify upon his behalf.
(¶7} Mr. Lester testified that when he arrived at the scene of the accident he saw a car turned over onto its driver's side. There was one person inside the car and one person lying outside on the ground. Mr. Lester indicated that Mr. Klein was inside of the car, in the driver's seat, with his feet down by the gas pedal. Further, Mr. Lester stated that he had to cut out the car's front windshield, along with the front pillar that was resting on the ground, in order for Mr. Klein to be able to exit the car. Mr. Lester also testified that he smelled alcohol on Mr. Klein's breath, and that Mr. Klein admitted to consuming alcohol that evening.
(¶8} Officer Dressler testified that Mr. Klein was "[s]eated in a normal position in the vehicle as a driver would be [sitting] in the seat."
(¶9} Officer Gilbert testified that the fire department cut out the front windshield of the car in order to remove Mr. Klein who was seated in front of the steering wheel. After securing the scene, Officer Gilbert stated that he went to the hospital to speak with Mr. Klein and Ms. Perrine about the accident. At the hospital, Officer Gilbert heard Mr. Klein tell a doctor that he was driving the car at the time of the accident. Further, Ms. Perrine told Officer Gilbert that she was not driving the car. In addition, Officer Gilbert testified that Mr. Klein's DNA ...