[Cite as State v. Sperry,
2025-Ohio-2626.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2024-12-087
: OPINION AND
- vs - JUDGMENT ENTRY
: 7/28/2025
SAMUEL CHRISTIAN SPERRY, :
Appellant. :
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
Case No. 23CR40847
David P. Fornshell, Warren County Prosecuting Attorney, and Kirsten A. Brandt, Assistant
Prosecuting Attorney, for appellee.
Gary A. Rosenhoffer and R. Scott Croswell, for appellant.
____________
OPINION
M. POWELL, J.
{¶ 1} Appellant, Samuel Christian Perry, appeals his conviction in the Warren
County Court of Common Pleas for aggravated vehicular homicide and aggravated
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vehicular assault.
{¶ 2} This case involves a two-vehicle collision on the morning of April 2, 2023,
during which appellant's Hyundai Genesis struck the left rear of a Chevrolet Trax, killing
the driver, Shirley Coletta, and seriously injuring the passenger, Patricia Jump. At the time
of the crash, both vehicles were travelling northbound on I-71. Appellant was in the far
left lane, travelling at 124 m.p.h., and Coletta was in the process of changing lanes from
the left center lane to the far left lane, travelling at 75 m.p.h. A subsequent test of
appellant's blood revealed the presence of alcohol, marijuana, and marijuana metabolite.
The blood test also revealed the presence of clonazepam and clonazepam metabolite.
{¶ 3} On August 7, 2023, appellant was charged in a seven-count indictment with
aggravated vehicular homicide in violation of R.C. 2903.06(A)(1)(a), a second-degree
felony, for causing death as the proximate result of committing an OVI offense (Count 1);
aggravated vehicular homicide in violation of R.C. 2903.06(A)(2)(a), a third-degree felony,
for causing death in a reckless manner (Count 2); aggravated vehicular assault in
violation of R.C. 2903.08(A)(1)(a), a third-degree felony (proximate result of OVI) (Count
3); aggravated vehicular assault in violation of R.C. 2903.08(A)(2)(b), a fourth-degree
felony (recklessly) (Count 4); and three counts of operating a vehicle under the influence
of alcohol or drugs, all misdemeanors of the first degree, in violation of R.C.
4511.19(A)(1)(a) (OVI), R.C. 4511.19(A)(1)(j)(vii) (prohibited concentration of marijuana),
and R.C. 4511.19(A)(1)(j)(viii)(II) (prohibited concentration of marijuana metabolite).
{¶ 4} Appellant waived his right to a jury trial and the matter proceeded to a bench
trial on September 6, 2024. The State presented the testimony of Michael Kirk and Sean
Gifford, two motorists who were travelling northbound on I-71 at the time of the crash,
Ohio State Highway Patrol Sergeant Jacob Kunka, Hamilton County Coroner's Office
Chief of Toxicology Robert Topmiller, and Ohio State Trooper Christopher Krantz.
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{¶ 5} Kirk testified he was entering northbound I-71 from the Fields Ertel entrance
ramp when he observed appellant's Genesis "flying" in the far left lane, "passing people
like they were still." Kirk believed appellant was likely travelling at 120 m.p.h. As Coletta
was moving from the left center lane into the far left lane to pass another vehicle, Kirk
observed the Genesis hit Coletta's Trax "full force," causing the Trax to flip and roll into a
ditch. Kirk testified that he saw Coletta use her turn signal to change lanes, that he did
not see appellant brake before the collision, and that appellant was trying to change lanes
when he struck Coletta. Kirk testified the collision between the Genesis and the Trax was
very violent.
{¶ 6} Gifford was travelling northbound on I-71 in a center lane at the time of the
crash. The weather was sunny and the traffic was relatively heavy on that Sunday
morning. Gifford testified that soon after appellant passed him at a high rate of speed, he
observed an explosion in front of him and the Trax rolling multiple times across the
highway, from the left lanes into a ditch on the right hand side of I-71 north. Gifford did
not witness the collision. Gifford testified that appellant's significant high speed was a
safety concern for the amount of traffic on the highway that day, and that appellant passed
him "at a speed so quick that it jostled [his] car."
{¶ 7} Sergeant Kunka, a certified Drug Recognition Expert, responded to the
crash scene. Sergeant Kunka talked to appellant inside an ambulance where the latter
was being treated. The sergeant noticed an odor of an alcoholic beverage inside the
ambulance and observed that appellant's speech was "slow, slurred, thick," that his
movements were "slow and lethargic at times," and that he appeared to be sedate, staring
ahead "with his mouth kind of agape." Sergeant Kunka believed the foregoing indicated
that appellant was impaired by drugs and/or alcohol. After the doctor on the scene
confirmed that appellant was "cleared medically" and "was good to go," Sergeant Kunka
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administered several field sobriety tests. The sergeant noticed that appellant was
unsteady on his feet while walking from the ambulance to the patrol car and that he was
swaying during some of the field sobriety tests.
{¶ 8} On the horizontal gaze nystagmus test, Sergeant Kunka observed six out
of six clues in each eye. During a Lack of Convergence Test, the sergeant observed a
lack of convergence in appellant's right eye, indicating the presence of alcohol or drugs.
The walk-and-turn test and the one-leg stand test further revealed several clues of
impairment. The sergeant also observed eyelid tremors, which he testified were
commonly associated and very prominent in marijuana usage. Based upon his
observations while interacting with appellant and administering the field sobriety tests,
Sergeant Kunka concluded that appellant was appreciably impaired by drugs and/or
alcohol and that he was unsafe to drive. The sergeant arrested appellant. In a search of
appellant's person incident to his arrest, a marijuana pipe was found in his pocket.
{¶ 9} Sergeant Kunka transported appellant to the Ohio State Patrol Lebanon
post where appellant refused to provide breath and urine samples. Sergeant Kunka then
obtained a sample of appellant's blood pursuant to a search warrant. The record indicates
that appellant's blood was drawn almost three hours after the crash. Analysis of
appellant's blood sample revealed a concentration of alcohol of 0.029 grams per 100
milliliters, a concentration of marijuana of 12.47 nanograms per 100 milliliters—over six
time the legal limit, and a concentration of marijuana metabolite of 369.75 nanograms per
100 milliliters—over seven times the legal limit. Analysis of the blood sample also
revealed the presence of clonazepam and clonazepam metabolite. In a written statement
provided while he was in the ambulance, appellant stated he "was in the left lane, went
to merge into the right lane and Boom! I came to after a bunch of bangs." Appellant stated
he was travelling at 75 m.p.h. He denied drinking alcohol, smoking marijuana, or using
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illicit drugs that day.
{¶ 10} Toxicologist Topmiller testified concerning the dissipation of marijuana and
marijuana metabolites from an individual's blood and the combined effect of marijuana,
marijuana metabolite, clonazepam, clonazepam metabolite, and alcohol on an
individual's ability to operate a vehicle. His report was admitted into evidence by
stipulation. Topmiller testified that the concentration of marijuana in appellant's blood
three hours after the crash suggested recent usage because marijuana dissipates from
someone's blood fairly quickly whereas marijuana metabolite stays in the person's blood
for a long period of time. Topmiller stated that appellant's marijuana concentration would
have been higher at the time of the collision. Relying upon three assumptions discussed
below, Topmiller calculated that appellant's blood ethyl alcohol concentration at the time
of the collision was in the range of 0.056-0.101 grams per 100 milliliters.
{¶ 11} Topmiller explained that effects associated with marijuana usage include
relaxation, lack of concentration, altered time and space perception, sedation, and
disorientation, and that effects associated with clonazepam usage include sedation,
drowsiness, poor coordination, blurred or double vision, and confusion. Regarding how
marijuana affects and impairs a person's ability to operate a vehicle, Topmiller explained
that there is deterioration in a driver's ability to maintain headway travel and an increase
in lateral movement of the vehicle within and outside the lane of travel, and that the driver
will process visual information more slowly than normal resulting in prolonged reaction
time when responding to situations. Topmiller further explained that marijuana disrupts a
driver's ability to concentrate and maintain continuous attention, distorts the driver's
perception of time and distance, and decreases the driver's ability to shift attention quickly
between various tasks.
{¶ 12} Topmiller also explained that a person with a blood ethyl alcohol
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concentration between 0.056 g/100mL and 0.101 g/mL "will have diminished divided
attention skills, judgments, and control when operating a motor vehicle" because the
driver will process visual information more slowly than normal resulting in prolonged
reaction time, which in turn decreases the driver's ability to control and maintain the
vehicle within the lane of travel and slows down the driver's ability to monitor and respond
to situations both inside and outside the vehicle, including the likelihood of incorrect
decision making.
{¶ 13} Topmiller testified that the combination of substances in appellant's blood
would have adversely affected appellant's ability to drive and that he would have been
experiencing some degree of cognitive impairment, including an inability to think clearly
and react and respond quickly to situations outside of the vehicle.
{¶ 14} Trooper Krantz testified as an accident reconstruction expert. His report was
admitted into evidence by stipulation. His investigation included reviewing an ODOT video
depicting the Trax's near complete lane change at the time it was struck by the Genesis,
and retrieving information from the vehicles' event data recorders ("EDR"). The vehicles'
respective EDR indicated that in the five seconds leading up to the collision, appellant
accelerated from 121 m.p.h. to 124 m.p.h. while Coletta drove at a constant speed of 74-
75 m.p.h. The Genesis' EDR also indicated that appellant did not brake, slow down, or
take other evasive actions in the few seconds leading up to the collision. Trooper Krantz
expressed the opinion that the collision occurred as Coletta was making a lane change
and resulted from appellant striking the left rear side of Coletta's vehicle at a speed of 124
m.p.h. The trooper's testimony and his report both noted the presence of alcohol and
drugs of abuse in appellant's system at the time of the collision.
{¶ 15} At the close of the State's case-in-chief, appellant moved for acquittal
pursuant to Crim.R. 29, arguing that the State failed to prove his impairment was the
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proximate cause of the collision, Coletta's death, and Jump's serious physical harm. The
trial court denied the motion. Appellant then presented the testimony of Neal Gilreath, a
traffic crash reconstruction expert. Gilreath authenticated his report and was cross-
examined by the State. Gilreath's report was stipulated into evidence at the onset of the
trial. The report noted that (1) the Trax was only partially in the far left lane at the time of
the collision, (2) the investigation did not reveal whether Coletta had activated the left turn
signal before the attempted lane change, (3) Coletta moved directly into the Genesis' path
of travel, (4) it did not appear that Coletta tried to avert the collision by either rapid
acceleration or returning to the left center lane, (5) Coletta erred by not determining
whether it was safe to change lanes, and (6) "[a]n average driver at regular highway
speeds would not have had enough time to perceive, react, and respond to the [Trax's]
presence and avoid the collision once it departed its travel lane and began to enter the
left lane."
{¶ 16} Upon comparing the actions of appellant and Coletta and considering the
Genesis' speed, Gilreath opined that Coletta's decision to change lanes, thereby placing
her vehicle directly in the travel path of the Genesis, was the proximate cause of the
collision: "The short reaction time for oncoming drivers meant a collision would have
occurred even with a significantly smaller speed difference. In other words, [Coletta's]
actions in the natural and continuous sequence of events directly produced the impact,
and without her lane change, this crash would not have occurred." The report does not
mention appellant's impairment or the presence of alcohol and drugs in his system. When
asked on cross-examination whether appellant's "cognitive functions were less because
of the fact he was under the influence of marijuana or making bad judgments," Gilreath
replied, "I wasn't asked to analyze those specific portions. All I was asked to do was
analyze the facts surrounding the impact between the two vehicles."
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{¶ 17} The trial court found appellant guilty as charged and sentenced him on
November 13, 2024. At sentencing and pursuant to R.C. 2941.25, the trial court merged
several of the offenses, including Count 2 (aggravated vehicular homicide—
recklessness) into Count 1, and Count 4 (aggravated vehicular assault—recklessness)
into Count 3. The trial court sentenced appellant to a mandatory 6-9-year prison term on
Count 1 (aggravated vehicular homicide—OVI) and a consecutive 36-month prison term
on Count 3 (aggravated vehicular assault—OVI), for an aggregate prison term of 9-12
years. The trial court also imposed a lifetime driver's license suspension.
{¶ 18} Appellant now appeals, raising five assignments of error. Appellant's first,
third, and fifth assignments of error will be considered together; his fourth assignment of
error will be addressed out of order.
{¶ 19} Assignment of Error No. 1:
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR
WHEN IT FAILED TO GRANT THE DEFENSE MOTION TO
DISMISS WHEN THE PROSECUTION RESTED ITS CASE
IN CHIEF.
{¶ 20} Assignment of Error No. 3:
IN ORDER TO BE CONVICTED AS CHARGED, THE
PROSECUTION WAS REQUIRED TO PROVE BEYOND A
REASONABLE DOUBT THAT SPERRY'S IMPAIRMENT
PROXIMATELY RESULTED IN THE CRASH.
{¶ 21} Assignment of Error No. 5:
THE FINDING OF GUILTY AS TO ALL COUNTS IS
AGAINST THE MANIFEST WEIGHT AND THERE IS
INSUFFICIENT EVIDENCE TO SUPPORT GUILT.
{¶ 22} In his first, third, and fifth assignments of error, appellant argues that the
trial court erred in denying his Crim.R. 29 motion for acquittal, that his convictions for
aggravated vehicular homicide in violation of R.C. 2903.06(A)(1)(a) and aggravated
vehicular assault in violation of R.C. 2903.08(A)(1)(a) were not supported by sufficient
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evidence, and that these convictions were against the manifest weight of the evidence.
Specifically, appellant asserts that the State failed to prove that his impairment was the
proximate cause of the collision and thus of Coletta's death and Jump's injuries.
{¶ 23} Crim.R. 29(A) provides that "[t]he court on motion of a defendant or on its
own motion, after the evidence on either side is closed, shall order the entry of a judgment
of acquittal . . . if the evidence is insufficient to sustain a conviction of such offense or
offenses." An appellate court reviews the denial of a Crim.R. 29(A) motion under the same
standard as that used to review a sufficiency-of-the evidence claim. State v. Wells, 2017-
Ohio-420, ¶ 29.
{¶ 24} Whether the evidence presented at trial is legally sufficient to sustain a
verdict is a question of law. State v. Thompkins, 1997-Ohio-52, ¶ 23. When reviewing the
sufficiency of the evidence underlying a criminal conviction, an appellate court examines
the evidence in order to determine whether such evidence, if believed, would convince
the average mind of the defendant's guilt beyond a reasonable doubt. Wells at ¶ 30. "The
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,
61 Ohio St.3d 259 (1991), paragraph
two of the syllabus.
{¶ 25} On the other hand, a manifest weight of the evidence challenge examines
the "inclination of the greater amount of credible evidence, offered at a trial, to support
one side of the issue rather than the other." Wells, 2017-Ohio-420 at ¶ 31. To determine
whether a conviction is against the manifest weight of the evidence, the reviewing court
must look at the entire record, weigh the evidence and all reasonable inferences, consider
the credibility of the witnesses, and determine whether in resolving the conflicts in the
evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of
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justice that the conviction must be reversed and a new trial ordered. Id. In reviewing the
evidence, an appellate court must be mindful that the trier of fact was in the best position
to judge the credibility of witnesses and determine the weight to be given to the evidence.
Id. Therefore, an appellate court will overturn a conviction due to the manifest weight of
the evidence "only in the exceptional case in which the evidence weighs heavily against
the conviction."
Id., citing Thompkins,
1997-Ohio-52 at ¶ 25.
{¶ 26} Appellant was convicted of aggravated vehicular homicide in violation of
R.C. 2903.06(A)(1)(a), which provides, "No person, while operating . . . a motor vehicle .
. . shall cause the death of another . . . [a]s the proximate result of committing an OVI
offense." Appellant was also convicted of aggravated vehicular assault in violation of R.C.
2903.08(A)(1)(a), which provides in relevant part, "No person, while operating . . . a motor
vehicle shall cause serious physical harm to another person . . . [a]s the proximate result
of committing a violation of division (A) of section 4511.19 of the Revised Code."
{¶ 27} Thus, the State was required to present evidence that (1) appellant was
operating the Genesis, (2) his operation of the vehicle caused Coletta's death and serious
physical harm to Jump, (3) he committed a violation of R.C. 4511.19(A), and (4) Coletta's
death and Jump's serious physical harm proximately resulted from appellant's violation
of R.C. 4511.19(A). R.C. 4511.19 outlines OVI offenses. Appellant's convictions for
aggravated vehicular homicide under R.C. 2903.06(A)(1)(a) and aggravated vehicular
assault under R.C. 2903.08(A)(1)(a) were predicated on appellant's violation of R.C.
4511.19(A)(1)(a), 4511.19(A)(1)(j)(vii), and 4511.19(A)(1)(j)(viii)(II).
{¶ 28} R.C. 4511.19(A)(1)(a) prohibits driving "under the influence of alcohol, a
drug of abuse, or a combination of them." "Under the influence of alcohol covers . . . any
abnormal mental or physical condition which is the result of indulging in any degree in the
consumption of alcohol and which tends to deprive the one so using it of the clearness of
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intellect and control of himself which he would otherwise possess." State v. Hardy, 28
Ohio St.2d 89, 90 (1971). R.C. 4511.19(A)(1)(a) does not require a specific concentration
of alcohol or drug of abuse, and a defendant's behavior is a primary consideration. State
v. Naylor,
2024-Ohio-1648, ¶ 45 (11th Dist.).
{¶ 29} By contrast, R.C. 4511.19(A)(1)(j) prohibits driving with a certain
concentration of a controlled substance or metabolites of a controlled substance in one's
urine or blood. As relevant here, R.C. 4511.19(A)(1)(j)(vii) prohibits driving with at least
two nanograms of marijuana by blood. R.C. 4511.19(A)(1)(j)(viii)(II) prohibits driving with
at least 50 nanograms of marijuana metabolite by blood. In light of appellant's blood test
results showing a concentration of marijuana of 12.47 nanograms per 100 milliliters and
a concentration of marijuana metabolite of 369.75 nanograms per 100 milliliters, the State
proved appellant had a proscribed amount of marijuana and marijuana metabolite in his
system at the time of the collision.
{¶ 30} It is well established that the definition of cause or "proximate cause" in
criminal cases is identical to the definition of "proximate cause" in civil negligence cases.
State v. Hall, 2017-Ohio-879, ¶ 72, fn. 4 (12th Dist.); Naylor,
2024-Ohio-1648 at ¶ 51. The
general rule is that a defendant's conduct is the proximate cause of injury or death to
another if the defendant's conduct (1) is a "substantial factor" in bringing about the harm
and (2) there is no other rule of law relieving the defendant of liability.
Naylor at ¶ 51.
"Proximate cause does not require that the conduct of one defendant be the sole cause
of a legal injury. As a matter of law, there may be more than one proximate cause of an
injury." State v. Dunham,
2014-Ohio-1042, ¶ 48 (5th Dist.), citing Taylor v. Webster,
12
Ohio St.2d 53 (1967). A defendant "will not escape liability merely because factors other
than his own acts contributed to the death, so long as those factors were not the sole
cause." State v. Quinn,
2025-Ohio-158, ¶ 54 (6th Dist.).
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{¶ 31} We find that the State presented sufficient evidence that appellant's
violation of R.C. 4511.19(A) caused the collision that led to Coletta's death and Jump's
serious physical harm. The fact that Coletta was changing lanes and moving into
appellant's path of travel when appellant struck her vehicle does not prevent appellant's
impairment and violation of R.C. 4511.19(A) from being a proximate cause of Coletta's
death and Jump's injuries. See State v. Stanley, 2004-Ohio-3040 (7th Dist.). Through
Topmiller's testimony and report, the State presented evidence regarding the manner in
which the various substances in appellant's system would adversely affect a person's
ability to drive, including prolonged reaction time, distortion of time and distance,
disruption of concentration and attention, and the synergistic effect of the various
substances found in appellant's system. Topmiller noted that appellant's blood sample
was obtained almost three hours after the crash, suggesting the concentrations would
likely have been greater at the time of the collision. Based upon appellant's driving, his
behavior at the scene of the crash, his performance on the field sobriety tests, and the
concentration of substances in his system, Topmiller expressed the opinion that appellant
"would have been experiencing some degree of cognitive impairment at the time of the
motor vehicle crash, adversely affecting his ability to safely operate a motor vehicle."
{¶ 32} Topmiller's opinion was corroborated by other evidence. The Genesis' EDR
data indicated that appellant did not react to Coletta's vehicle being in front of him as
appellant neither slowed down or braked, nor took evasive action prior to the collision.
Rather, the EDR data showed that appellant accelerated to 124 m.p.h. in the five seconds
leading up to the collision. Sergeant Kunka's observations of appellant at the scene of the
crash and his performance on the field sobriety tests indicated that appellant was
impaired. The State therefore proved that appellant, while operating the Genesis, caused
Coletta's death and Jump's injuries as a proximate result of committing a violation of R.C.
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4511.19(A).
{¶ 33} Our conclusion is not changed by the Sixth District Court of Appeals'
decision in State v. Moore, 2019-Ohio-3705 (6th Dist.), a case appellant cites in support
of his argument. In that case, the defendant was convicted of, inter alia, aggravated
vehicular homicide in violation of R.C. 2903.06(A)(1)(a). The predicate offense was R.C.
4511.19(A)(1)(j)(ii), which prohibits driving with certain concentrations of cocaine in one's
urine or blood. A blood test found cocaine metabolite in the defendant's blood, which an
expert testified was inactive. On appeal, the defendant argued that the State presented
insufficient evidence that her violation of R.C. 4511.19(A)(1)(j)(ii) was the proximate
cause of the victim's death because the State did not ask the expert whether anything in
her blood would have affected her ability to operate a vehicle.
{¶ 34} The court of appeals agreed. The court found there was insufficient
evidence to prove aggravated vehicular homicide because there was no evidence that
the defendant's act of driving with a prohibited concentration of cocaine in her blood was
the direct cause of the victim's death, and without which, his death would not have
occurred. Id. at ¶ 27. Specifically, "The state furnished no evidence regarding the potential
effects that a prohibited concentration of cocaine in a person's blood would have on a
person, or on a person's ability to operate a vehicle. Without such evidence, the state
failed to prove that as the proximate result of [the defendant] driving with a prohibited
concentration of cocaine in her blood, [the defendant] caused [the victim's] death." Id.
{¶ 35} We find that Moore is inapplicable here. Unlike Moore, the State presented
evidence in the case at bar, as summarized above, regarding the effects alcohol
impairment and a concentration of marijuana both have on a person's ability to operate a
vehicle. In light of Topmiller's testimony, Sergeant Kunka's observations of appellant at
the scene of the crash and during the field sobriety tests, and the Genesis' EDR data, the
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trial court did not err in finding that appellant's impairment was a proximate cause of the
collision, Coletta's death, and Jump's injuries. See Quinn, 2025-Ohio-158; State v.
Massucci,
2021-Ohio-88 (6th Dist.).
{¶ 36} Appellant, however, challenges Topmiller's calculation of appellant's blood
alcohol level at the time of the collision because Topmiller relied on assumptions that if
faulty would render such calculation incorrect. Topmiller calculated appellant's blood ethyl
alcohol concentration at the time of the collision by making the following assumptions: (1)
appellant had absorbed into his bloodstream all consumed alcohol by the time of the
collision, i.e., appellant had not consumed any alcohol shortly before the collision, (2)
appellant eliminated the alcohol from his bloodstream at a rate of between 0.010 g/100
mL/hour and 0.025 g/100mL/hour, and (3) appellant did not consume any alcohol
between the time of the collision and the time his blood was drawn. Topmiller testified
that the second assumption was based on multiple toxicology articles and that it was the
widest range possible that included the greatest number of people. On cross-examination,
Topmiller admitted that the assumptions may or may not be true, were generic in nature,
and were not based on information or knowledge specific to appellant. Relying upon
Topmiller's admission on cross-examination, appellant now challenges Topmiller's
calculation. However, the fact that Topmiller relied on certain assumptions in conducting
his analysis goes to the weight, and not the admissibility of his testimony. State v. Barrett,
2004-Ohio-5530, ¶ 27 (12th Dist.).
{¶ 37} In light of the foregoing, we find that appellant's conviction for aggravated
vehicular homicide in violation of R.C. 2903.06(A)(1)(a) and aggravated vehicular assault
in violation of R.C. 2903.08(A)(1)(a) were supported by sufficient evidence and were not
against the manifest weight of the evidence.
{¶ 38} Appellant was also convicted of aggravated vehicular homicide in violation
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of R.C. 2903.06(A)(2)(a) (Count 2) and aggravated vehicular assault in violation of R.C.
2903.08(A)(2)(b) (Count 4). Both offenses require the mental state of recklessness. In his
fifth assignment of error, appellant ostensibly argues that these convictions are not
supported by sufficient evidence and are against the manifest weight of the evidence
because the State failed to prove he operated the Genesis recklessly.
{¶ 39} We need not review appellant's sufficiency and weight of the evidence
argument regarding Counts 2 and 4. At sentencing, Count 2 was merged into Count 1,
Count 4 was merged into Count 3, and the trial court sentenced appellant on Counts 1
and 3. The Ohio Supreme Court has held that a "'conviction' consists of a guilty verdict
and the imposition of a sentence or penalty." (Emphasis in original.) State v. Whitfield,
2010-Ohio-2, ¶ 12. "Therefore, if a guilty verdict is merged with another count for purposes
of sentencing pursuant to R.C. 2941.25, that guilty verdict remains unsentenced and does
not constitute a 'conviction' subject to appellate review." State v. Kinney,
2025-Ohio-1620,
¶ 82 (6th Dist.). "Put simply, in cases where separate counts are merged and the state
elects the count on which the trial court will impose sentence, only the count that includes
both a guilty verdict and sentence is subject to this court's review."
Id. See also State v.
Powell,
49 Ohio St.3d 255, 263 (1990) (because the trial court merged convictions with
one another, the defendant received only one sentence, and an erroneous verdict on the
merged count would be harmless beyond a reasonable doubt).
{¶ 40} In light of the foregoing, appellant's first, third, and fifth assignments of error
are overruled.
{¶ 41} Assignment of Error No. 4:
{¶ 42} CONVICTION OF A PREDICATE OFFENSE IS INSUFFICIENT TO
SATISFY THE PROXIMATE RESULT REQUIREMENT OF THE AGGRAVATED
VEHICULAR HOMICIDE AND AGGRAVATED VEHICULAR ASSAULT STATUTES.
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{¶ 43} In appellant's words, "This Assigned Error is the First Proposition of Law in
a case that has been accepted for review by the Supreme Court of Ohio, State of Ohio v.
Balmert, Supreme Court Case No. 2024-0699." As appellant correctly states, the Ohio
Supreme Court has accepted State v. Balmert, 2024-Ohio-1207 (9th Dist.), for review,
including Proposition of Law No. I: "In an aggravated vehicular assault or homicide case,
proximate cause is its own separate and distinct element that must be proven. A mere
OVI violation, by itself, is not sufficient to satisfy the proximate cause requirement of
aggravated vehicular assault or homicide." The Supreme Court heard oral arguments on
April 23, 2025. The case is currently awaiting decision, and unless and until the Supreme
Court issues a decision in that case adopting that proposition of law, we decline to adopt
such proposition of law or apply it to the case at bar.
{¶ 44} Appellant's fourth assignment of error is overruled.
{¶ 45} Assignment of Error No. 2:
THE TRIAL JUDGE COMMITTED PREJUDICIAL ERROR BY
POSING QUESTIONS DURING THE TRIAL WHEREIN THE
QUESTIONS WERE TO BE ANSWERED "TO A
REASONABLE DEGREE OF CERTAINTY."
{¶ 46} Appellant argues that the trial court abandoned its impartial role and
engaged in advocacy when it questioned Trooper Krantz over defense objection.
{¶ 47} At the outset, we note that contrary to appellant's suggestion, he never
objected to the trial court's questioning of Trooper Krantz. Rather, appellant objected only
when Trooper Krantz testified he believed Coletta looked into her side-view mirror before
changing lanes. Therefore, "our review is for plain error only." State v. West, 2022-Ohio-
1556, ¶ 28. Under the plain error standard, "the defendant bears the burden of 'showing
that but for a plain or obvious error, the outcome of the proceeding would have been
otherwise, and reversal must be necessary to correct a manifest miscarriage of justice.'"
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Id. at ¶ 22. Notice of plain error is taken with the utmost caution, under exceptional
circumstances, and only to prevent a manifest miscarriage of justice. State v. Baker,
2024-Ohio-2856, ¶ 39 (12th Dist.).
{¶ 48} Evid.R. 614(B) expressly authorizes a trial court to "interrogate witnesses,
in an impartial manner, whether called by itself or by a party." Absent any showing of bias,
prejudice, or prodding of a witness to elicit partisan testimony, it will be presumed that the
trial court interrogated the witness in an impartial manner in an attempt to ascertain a
material fact or develop the truth. State v. Batson, 1999-Ohio-280, ¶ 41. The trial court
"may question a witness concerning matters that are 'clearly relevant to the independent
determinations which the court is called upon to make.'" State v. Daugherty, 2002-Ohio-
1183, ¶ 6 (11th Dist.). Thus, impartial questions that attempt to clarify the testimony and
are directed to relevant factual issues are permitted under Evid.R. 614(B). State v. Sloan,
2005-Ohio-2932, ¶ 14 (7th Dist.). A trial court's questioning of a witness is not deemed
partial for purposes of Evid.R. 614(B) merely because the evidence elicited during the
questioning is damaging to one of the parties. State v. Hough,
2024-Ohio-2430, ¶ 31
(10th Dist.).
{¶ 49} Following Trooper Krantz's cross-examination, the trial court first advised
him to let the court know "if this is outside of your area of expertise or if it's a question you
can't answer." The court then proceeded to ask the following questions:
THE COURT: So, my question for you is assuming for the
sake of argument that [Coletta] sees Mr. Sperry's vehicle,
either in her-I guess it would be in her mirror. Assuming that
she sees him, and she [begins] her turn, assuming that he is
making - or assuming that he's traveling seventy-five miles an
hour, same as she is. If that's true, then how far back is he
going to be [a]way from her, instead of traveling one hundred
and twenty-four miles an hour and hitting her, traveling
seventy-five miles an hour-how far back is he going to be?
A: He's going to be whatever distance they are apart, they will
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remain a constant distance because she was traveling
seventy-five, so if he was going seventy-five, they're just going
to remain that equal distant part. He has to be going faster
than her to gain on her. For her to make that lane change,
she was - they say partially - I'm going to say she was mostly,
mostly, all but one foot and even if you want to argue that, it's
less than that, because the Ohio Supreme Court rule that you
can actually drive on your pavement marking and still be
within your lane of travel, so for her to make that lane change,
nobody will know what she saw, what she perceived, nobody
can tell you that. I think she looked in her mirror –
MR. CROSWELL (Defense counsel): Objection.
THE COURT: Overruled. As long as what you're going to tell
me is to a reasonable degree of certainty. Is what you're going
to tell me going to be to a reasonable degree of certainty?
A: Yes, I believe so.
THE COURT: Okay. Go ahead.
A: I believe that she looked in her mirror and she saw, who
knows what she saw, but the time that it took her to make her
lane change, Mr. Sperry's approaching her at one hundred
twenty-four miles per hour-the average person when they
would look in their side mirror, would not know that a vehicle
was approaching them at that speed. Most people check their
mirror, make sure it's safe to make the lane change, check
back ahead to make sure traffic isn't slowing and then they
proceed to make their lane change. I mean, I make my living
on the interstate. I see this all the time.
THE COURT: So, my follow up question to you would be, and,
this is the question that I don't know if you can answer or not,
is how much time is - I want to say lost, by him traveling the
difference between one hundred and seventy - I'm sorry - the
difference between going seventy-five miles an hour and a
hundred and twenty-four miles an hour?
A: I would have to do the math, but whatever the distance is,
that's how many feet per second he's traveling faster, from
one speed to the other.
THE COURT: And, without some distance, it's a formula that
you can't calculate, right?
A: Yeah, you would need some type of distance to throw into
that calculation.
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THE COURT: And, nothing in the evidence that you have
seen so far suggest that we have any kind of distance, right?
A: Correct. The best that I could do in my analysis of the
collision, was there's five seconds of pre-crash data within that
event, the data recorders in those vehicles, so I did a timedistance analysis, based off where the vehicles were in
relationship to impact and where they were in relationship to
each other, based within those five seconds.
{¶ 50} We find no error, plain or otherwise. Appellant does not identify the manner
in which he was prejudiced by the trial court's questioning, and simply asserts the trial
court crossed the line into advocacy. The trial court's questioning was limited and was
neither excessive nor prejudicial. In fulfilling its duty to see that the truth was developed,
the trial court simply asked certain questions for purposes of clarification, and did not
demonstrate bias or prejudice in the manner it conducted the trial. Rather, the trial court
demonstrated its desire to develop all the pertinent facts necessary for its determination.
There is no showing that the trial court was acting partially or was doing anything more
than ascertaining the facts in the case. Furthermore, this was a bench trial. The trial court
is therefore accorded greater flexibility in questioning witnesses because where there is
no jury, there is no one to be prejudicially influenced by the judge's demeanor. Sloan,
2005-Ohio-2932 at ¶ 14; Bartells v. Bertel,
2018-Ohio-21, ¶ 47 (12th Dist.).
{¶ 51} Appellant's second assignment of error is overruled.
{¶ 52} Judgment affirmed.
PIPER, P.J., and SIEBERT, J., concur.
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JUDGMENT ENTRY
The assignments of error properly before this court having been ruled upon, it is
the order of this court that the judgment or final order appealed from be, and the same
hereby is, affirmed.
It is further ordered that a mandate be sent to the Warren County Court of Common
Pleas for execution upon this judgment and that a certified copy of this Opinion and
Judgment Entry shall constitute the mandate pursuant to App.R. 27.
Costs to be taxed in compliance with App.R. 24.
/s/ Robin N. Piper, Presiding Judge
/s/ Mike Powell, Judge
/s/ Melena S. Siebert, Judge
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