State v. Montecalvo

Per Curiam.

Michael Montecalvo, a certified paramedic and ambulance driver, appeals his convictions for failing to proceed cautiously past a red or stop signal in violation of R.C. 4511.03 and for *367involuntary manslaughter, R.C. 2903.04(B). We affirm.

Montecalvo while driving an ambulance in response to an emergency call, drove through a red light and struck an automobile at the intersection of Broadway Avenue and Cooper Foster Park Road. Neither Montecalvo nor his fellow paramedic assistant were injured, however, the driver of the automobile, Angela Robinson, who was pregnant at the time, died as a result of the accident.

Montecalvo was indicted on six separate counts as follows:

Count 1 Aggravated vehicular homicide, R.C. 2903.06(A), with a physical harm specification;

Count 2 Involuntary manslaughter, R.C. 2903.04(B);

Count 3 Reckless operation, R.C. 4511.20;

Count 4 Emergency vehicles to proceed cautiously past red or stop signal, R.C. 4511.03;

Count 5 Obeying traffic control devices, R.C. 4511.12:

Count 6 Assured clear distance; R.C. 4511.21(A).

During trial, the court dismissed count five of the indictment finding the charge was not supported by the evidence. The jury found Montecalvo not guilty of aggravated vehicular homicide, reckless operation and assured clear distance However, Montecalvo was found guilty of involuntary manslaughter and failing to proceed with due regard in an emergency vehicle past a red or stop signal as found in counts two and four of the indictment.

Assignment of Error 1.

"The court erred to the prejudice of the defendant in denying the defendant's multiple rule 29 motions to dismiss the involuntary manslaughter charge (Count 2) made before, during, following the trial of a traffic fatality, where the indictment also included the charge of aggravated vehicular homicide (Count 1), which was based upon the identical factual circumstances."

On the authority of State v. Chippendale (1990), 52 Ohio St. 3d 118, this assignment of error is overruled.

Assignments of Error

"II. The Court erred to the prejudice of the defendant in denying the defendant's multiple rule 29 motions to dismiss the involuntary manslaughter charge, R.C. Section 2903.04(B), (Count 2) made before, during, and following the trial of a traffic fatality, where the indictment purports to identify the underlying requisite misdemeanor as a minor traffic offense, the mere violation of which would serve as the only condition for conviction. This is of particular consequence in view of the legislative limitations on the jurisdiction of the common pleas courts under Ohio Revised Code Section 2931.03."

"III. The court erred to the prejudice of the defendant in sustaining a verdict that was not supported by sufficient evidence, was contrary to law, and violated the due process clause of the constitution applicable to the states by the 14th amendment."

These two assignments of error are interrelated to a single issue and will be considered together.

R.C. 2903.04(B) provides that no person shall cause the death of another as a proximate result of committing or attempting to commit a misdemeanor. Appellant contends that misdemeanor as used in the statute does not include minor misdemeanor. However, there is no support from case law or the legislative history to suggest the exclusion of vehicular minor misdemeanors from the operation of the statute. Chippendale, supra. Most traffic offenses are minor misdemeanors.

A claim of insufficient evidence requires a determination that any rational trier of fact could find all the essential elements of the offense beyond a reasonable doubt after viewing, but not weighing, the probative evidence and construing reasonable inferences most favorable to the prosecution. State v. Martin (1983), 20 Ohio App. 3d 172, 175. In this case, there was sufficient probative evidence to support the defendant's conviction. Therefore, appellant's second and third assignments; of error are overruled.

Assignment of Error IV.

"The court committed error prejudicial to this defendant by instructing the jury on involuntary manslaughter, reckless operation, emergency vehicles to proceed, and assured clear distance and in refusing the defendant's proposed instructions requesting the court to charge on: (1) a specific criminal mens rea, (2) emergency, and (3) accident; the court, in addition, abused its discretion and denied the defendant a fair trial.

Montecalvo argues that the court's instruction to the jury was prejudicial.

*368A defendant has a right to expect that the trial court will give complete jury instructions on all issues raised by the evidence. State v. Williford (1990), 49 Ohio St. 3d 247, 251; State v. Murray (April 18, 1990), Lorain App. No. 4648, unreported. However, when the general charge does not contain the precise language requested by counsel, but sufficiently contains the substance of the law requested by the special instruction, no prejudice results from a failure to give the exact wording of the request. State v. Guster (1981), 66 Ohio St. 2d 266; State v. Cecil (March 25, 1987), Summit App. No. 12850, unreported.

Defendant's counsel requested an instruction on the mens rea of recklessness for the charge of involuntary manslaughter. It is not necessary that an instruction on the mens rea of recklessness be given when the involuntary manslaughter statute does not require that the culpable mental state of reckless be proven to support a conviction of involuntary manslaughter under R.C. 2903.04(B). The state must prove the mens rea of the supporting misdemeanor offense.

Counsel for defendant requested an instruction on the word emergency. In reviewing the defendant's proposed instruction on an emergency, the trial court noted:

"THE COURT: Then we will - I think that in this case, after under emergency call, we add the first two lines of your charge, which says, 'an emergency is a serious and urgent situation which demands immediate use of a public safety vehicle,' period.

"Then we go to the second or we go to the Charge that says, 'if a driver proceeds with no reasonable grounds for believing that an emergency exists, even though he is using a siren and flashing, rotating lights when he approaches the intersection he forfeits or gives up his rights of an emergency vehicle.'

"MR. STERNBERG: You are making it better, Your Honor. No question about it. I don't know if I could start with a negative, the answer is better and more point to the law."

At defendant's urging, and without further objection the trial court modified the proposed instruction. The claim of error is not well taken.

In reviewing defendant's proposed instruction on accident, the trial court reasoned.

"THE COURT: In reviewing this particular Charge, I feel that this goes to argument rather than to what is appropriately charged and I don't think that it is appropriate in the Charge.

"Certainly, it goes to argument and certainly Counsel can argue that there are accidents that are beyond the control and so on and so forth."

The defendant suffered no material prejudice from the exclusion of the proposed instruction.

In our review of the court's instruction to the jury as a whole, we find that the charge adequately covered the law and issues presented by the evidence. Thus, the fourth assignment of error is overruled and the judgment of the trial court is affirmed.

The Court finds that there were reasonable grounds for this appeal.

Exceptions.

BAIRD, J., concurs.