[Cite as State v. Dendak, 2013-Ohio-5694.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Sheila G. Farmer, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 2013 CA 00065
ASHLEY L. DENDAK
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Canton Municipal
Court, Case No. 2012 CRB 4634
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 23, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
TYRONE D. HAURITZ GEORGE URBAN
CANTON CITY PROSECUTOR 116 Cleveland Avenue NW
BRANDEN L. DICKERSON Suite 808
ASSISTANT PROSECUTOR Canton, Ohio 44702
218 Cleveland Avenue SW
Canton, Ohio 44702
Stark County, Case No. 2013 CA 00065 2
Wise, J.
{¶1} Appellant Ashley L. Dendak appeals from her conviction, in the Canton
Municipal Court, Stark County, on one count of vehicular manslaughter. Appellee is the
State of Ohio. The relevant facts leading to this appeal are as follows.
{¶2} On the afternoon of August 1, 2012, troopers from the Ohio State Highway
Patrol were dispatched to the scene of a left-of-center motor vehicle crash in the 7400
block of State Route 43 (Waynesburg Drive SE), Sandy Township, Stark County, Ohio.
The two vehicles involved were a white 1994 GMC Safari van, operated by appellant,
and a gray 2000 Jeep Wrangler, operated by Marsha Lowe. When medics arrived, they
determined that Lowe was deceased, having been ejected from the Jeep during the
crash. Neither driver had been wearing a seat belt. The Jeep had come to rest on top of
Ms. Lowe, who died instantly, while appellant’s van had left the roadway after striking
the Jeep and hit a utility pole.
{¶3} Following further investigation, on November 19, 2012, appellant was
arrested on a warrant for one count of vehicular homicide, R.C. 2903.06(A)(3), a
misdemeanor of the first degree, and one count of vehicular manslaughter, R.C.
2903.06(A)(4), a misdemeanor of the second degree, one count of driving on the left
side of the roadway, R.C. 4511.30, a minor misdemeanor, and one count of no seat
belt, 4513.263, a minor misdemeanor. On November 20, 2012, at her arraignment,
appellant pled not guilty to all charges.
{¶4} The case proceeded to a jury trial commencing on March 11, 2013. On
March 12, 2013, the jury returned a verdict of not guilty on the count of vehicular
Stark County, Case No. 2013 CA 00065 3
homicide, but guilty on one count of vehicular manslaughter. Additionally, the trial court
found appellant guilty of the two minor misdemeanor traffic charges.
{¶5} The trial court thereafter sentenced appellant to ninety days in the Stark
County Jail, with credit for one day served and one day suspended on the condition that
appellant pay restitution. Appellant also received six points on her driver's license and a
two year driver's license suspension.
{¶6} On April 3, 2013, appellant filed a notice of appeal. She herein raises the
following two Assignments of Error:
{¶7} “I. THE APPELLANT'S CONVICTION FOR ONE COUNT OF
VEHICULAR MANSLAUGHTER IN VIOLATION OF R.C. 2903.06 WAS AGAINST THE
MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
{¶8} “II. THE APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF
COUNSEL.”
I.
{¶9} In her First Assignment of Error, appellant maintains her conviction for
vehicular manslaughter was not supported by the sufficiency of the evidence and was
against the manifest weight of the evidence. We disagree.
{¶10} In reviewing a claim based on the sufficiency of the evidence, “[t]he
relevant inquiry is whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259,
574 N.E.2d 492, paragraph two of the syllabus.
Stark County, Case No. 2013 CA 00065 4
{¶11} Appellant herein was convicted of violating R.C. 2903.06(A)(4), which
states: “No person, while operating or participating in the operation of a motor vehicle,
motorcycle, snowmobile, locomotive, watercraft, or aircraft, shall cause the death of
another *** [a]s the proximate result of committing a violation of any provision of any
section contained in Title XLV of the Revised Code that is a minor misdemeanor or of a
municipal ordinance that, regardless of the penalty set by ordinance for the violation, is
substantially equivalent to any provision of any section contained in Title XLV of the
Revised Code that is a minor misdemeanor.”
{¶12} Among the witnesses called by the State at trial was Trooper Michelle Fish
of the Ohio State Highway Patrol, who is trained in accident reconstruction. Trooper
Fish determined in her investigation that the collision on August 1, 2012 occurred as a
result of appellant's southbound van crossing approximately eight feet to the left of the
center line and striking Ms. Lowe's Jeep near the rear left tire. Tr. at 116. The Jeep’s
rear axle was thereby damaged, and the Jeep began to skid counterclockwise and
proceeded to go off of the right side of the northbound lane, where it rolled over. Ms.
Lowe, who was not belted in, was ejected from the vehicle, which then came to rest on
top of her. Tr. at 119, 147.
{¶13} The State also called Harry Campbell, an investigator for the Stark County
Coroner's Office, who was summoned to the scene of the crash. His investigation
strongly indicated that Ms. Lowe had suffered from a basal skull fracture resulting in her
immediate death. Tr. at 171-173. The Stark County Coroner, Dr. P. S. Murthy, also took
the stand at trial. Dr. Murthy ruled Ms. Lowe's manner of death as an accident. Tr. at
Stark County, Case No. 2013 CA 00065 5
190. He determined that the cause of death was multiple blunt trauma to the head and
trunk as a result of a motor vehicle crash. Tr. at 189.
{¶14} Although appellant does not dispute that an automobile collision occurred
on the day in question, her argument focuses on the “causation” element and the fact
that Ms. Lowe was determined by the troopers to have not been wearing a seatbelt. In
essence, appellant rather speculatively maintains that had Ms. Lowe been wearing her
seat belt, she would likely not have died, as she would not have been fatally ejected
from the Jeep. However, “it is well settled that any contributory negligence of the
decedent cannot be a defense to vehicular homicide, unless it is the sole proximate
cause of the accident.” State v. Langenkamp (2000), 137 Ohio App.3d 614, 621, 739
N.E.2d 404. Although Langenkamp involved a case of vehicular homicide, we find its
aforesaid holding applicable to the offense of vehicular manslaughter as charged in the
case sub judice. We are unpersuaded that the General Assembly intended that
contributory or comparative negligence should generally be a factor for consideration of
culpability under R.C. 2903.06(A)(4).
{¶15} Accordingly, we find appellant’s conviction for vehicular manslaughter was
supported by sufficient evidence.
{¶16} Our standard of review on a manifest weight challenge to a criminal
conviction is stated as follows: “The court, reviewing the entire record, weighs the
evidence and all reasonable inferences, considers the credibility of witnesses and
determines whether in resolving conflicts in the evidence, the jury 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. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d
Stark County, Case No. 2013 CA 00065 6
717. See, also, State v. Thompkins (1997), 78 Ohio St.3d 380, 678 N.E.2d 541. The
granting of a new trial “should be exercised only in the exceptional case in which the
evidence weighs heavily against the conviction.” Martin at 175, 485 N.E.2d 717.
{¶17} It appears upon our review of the transcript that part of the defense
strategy at trial was to emphasize that appellant had no drugs or alcohol in her system
and to suggest to the jury that a mechanical problem in one of the van’s wheels or tires
may have been an issue. Appellant’s boyfriend, James Stine, recalled during direct
examination that as he rode in the front passenger seat of appellant’s van on the day of
the crash, he noticed that something seemed amiss with one of the tires, what he called
a “sway-in” or a “wheel shimmy.” Tr. at 150, 152. He noted on cross-examination: “Well
it started to [sic], yes, and that’s why I says, ‘We need to pull over right now.’ And as we
said that [appellant] looked at me and the next thing you know it just – we were into the
embankment.” Tr. at 157. However, Stine had told the troopers at the scene that the
van had been traveling “every bit of the speed limit, fifty-five.” Tr. at 151. Appellant
testified in her defense that as she was discussing pulling over to check the tires, “*** I
felt something hit me and I, uh, looked up and all I saw was the telephone pole and then
I was in the embankment.” Tr. at 224.
{¶18} Upon review, we are unpersuaded that the jury lost its way in assessing
the evidence in this case. We find the jury's decision did not create a manifest
miscarriage of justice requiring that appellant's conviction be reversed and a new trial
ordered.
{¶19} Appellant’s First Assignment of Error is therefore overruled.
Stark County, Case No. 2013 CA 00065 7
II.
{¶20} In her Second Assignment of Error, appellant contends she was deprived
of the effective assistance of counsel at trial. We disagree.
{¶21} Our standard of review for ineffective assistance claims is set forth in
Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Ohio
adopted this standard in the case of State v. Bradley (1989), 42 Ohio St.3d 136, 538
N.E.2d 373. These cases require a two-pronged analysis: First, we must determine
whether counsel's assistance was ineffective; whether counsel's performance fell below
an objective standard of reasonable representation and was violative of any of his
essential duties to the client. If we find ineffective assistance of counsel, we must then
determine whether or not the defense was actually prejudiced by counsel's
ineffectiveness such that the reliability of the outcome of the trial is suspect. This
requires a showing that there is a reasonable probability that but for counsel's
unprofessional error, the outcome of the trial would have been different. Id. Trial counsel
is entitled to a strong presumption that all decisions fall within the wide range of
reasonable professional assistance. State v. Sallie (1998), 81 Ohio St.3d 673, 675, 693
N.E.2d 267. Furthermore, both prongs of the Strickland test need not be analyzed if the
claim of ineffective assistance can be resolved under one prong. State v. Doss, 4th Dist.
Gallia No. 09CA20, 2012–Ohio–883, ¶ 16, citing State v. Madrigal (2000), 87 Ohio St.3d
378, 389, 721 N.E.2d 52.
{¶22} Appellant first challenges her trial counsel’s failure to object to alleged
opinion testimony by Trooper Fish. The assistant prosecutor asked Trooper Fish at one
point whether the vehicle driven by appellant was unsafe due to a loose bumper and a
Stark County, Case No. 2013 CA 00065 8
cracked windshield. See Tr. at 128. Trooper Fish was also similarly asked whether
appellant’s vehicle was safe to be driven on the roadway. See Tr. at 137. It is
undisputed that Trooper Fish was not specifically testifying as an expert witness under
the Rules of Evidence. However, because the state of appellant’s van’s bumper and
windshield before the crash was largely irrelevant to the offense for which she was
convicted, we find no demonstration of ineffective assistance on this basis.
{¶23} Appellant secondly challenges her trial counsel’s failure to object to the
introduction of Trooper Fish’s written accident reconstruction report. We note Evid.R.
803(8) states the following are not excluded by the hearsay rule:
{¶24} “Records, reports, statements, or data compilations, in any form, of public
offices or agencies, setting forth (a) the activities of the office or agency, or (b) matters
observed pursuant to duty imposed by law as to which matters there was a duty to
report, excluding, however, in criminal cases matters observed by police officers and
other law enforcement personnel, unless offered by defendant, unless the sources of
information or other circumstances indicate lack of trustworthiness.” (Emphasis added).
{¶25} Thus, police reports are generally recognized as inadmissible hearsay and
should not be submitted to the jury. State v. Hall, 8th Dist. Cuyahoga No. 96680, 2012-
Ohio-266, ¶ 12, citing State v. Leonard, 104 Ohio St.3d 54, 2004–Ohio–6235, 818
N.E.2d 229. However, in light of the overall testimony of Highway Patrol Sergeants
Glennon and Thorne, Troopers Fish and Smith, Investigator Campbell, Coroner Dr.
Murthy, and passenger James Stine, we find appellant has not established that she was
actually prejudiced by the admission of the written accident report, much of which was
cumulative to such oral testimony. Furthermore, as the State suggests, defense
Stark County, Case No. 2013 CA 00065 9
counsel, countering both the vehicular homicide and vehicular manslaughter charges,
may have had strategic reasons for allowing the jury to see the full written details of the
crash investigation. Part of defense counsel’s closing arguments, for example, was the
following: “All accidents are a moment in time that you make a split decision that your
attention drifts from what you were doing *** we’ve all lost attention of the road at some
point in time. And but for [sic] the grace of God we haven’t committed this crime.” Tr. at
251.
{¶26} We therefore find no showing that appellant's trial counsel's performance
prejudiced appellant's defense such that reversal would be warranted. Appellant’s
Second Assignment of Error is overruled.
{¶27} For the reasons stated in the foregoing opinion, the judgment of the
Canton Municipal Court, Stark County, Ohio, is hereby affirmed.
By: Wise, J.
Farmer, P. J., and
Baldwin, J., concur.
___________________________________
HON. JOHN W. WISE
___________________________________
HON. SHEILA G. FARMER
___________________________________
HON. CRAIG R. BALDWIN
JWW/d 1210
Stark County, Case No. 2013 CA 00065 10
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
ASHLEY L. DENDAK :
:
Defendant-Appellant : Case No. 2013 CA 00065
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Canton Municipal Court, Stark County, Ohio, is affirmed.
Costs assessed to appellant.
___________________________________
HON. JOHN W. WISE
___________________________________
HON. SHEILA G. FARMER
___________________________________
HON. CRAIG R. BALDWIN