Ohio Appellate Reports

Unpublished

STATE v. DALY, Unpublished Decision (12-22-2006)
2006-Ohio-6817 STATE OF OHIO, Plaintiff-Appellee, v. RYAN
DALY, Defendant-Appellant. No. 06-CA-18. Court of Appeals
of Ohio, Second District, Clark County. December 22, 2006.

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] Trial Court Case No. 05-CR-471.

(Criminal Appeal from Common Pleas Court).

WILLIAM H. LAMB, Atty. Reg. #51808, Clark County
Prosecuting Attorney, Springfield, Ohio 45502, Attorney for
Plaintiff-Appellee.

JON PAUL RION, Atty. Reg. #0067020, Rion, Rion & Rion,
L.P.A., Inc., Suite 2150, Dayton, Ohio 45402. Attorney for
Defendant-Appellant.

OPINION

FAIN, J.

{¶ 1} Defendant-appellant Ryan Daly appeals from his
conviction and sentence, following a bench trial, for
Negligently Causing the Death of Another While Operating a
Vehicle, and for Causing the Death of Another While
Operating a Motor Vehicle as a Proximate Result of
Committing a Minor Misdemeanor Traffic Violation. The trial
court also found that Ryan, at the time of the offense, was
driving with a license suspended under a provision of the
Ohio Revised Code, thereby enhancing the penalties for each
offense.

{¶ 2} Ryan contends that the evidence does not
support the trial court’s finding that his license was
suspended under a provision of the Ohio Revised Code. We
conclude that the testimony of the magistrate who suspended
Ryan’s license supports the trial court’s finding in this
regard.

{¶ 3} Ryan also contends that the two offenses of
which he was convicted are allied offenses of similar
import, so that he could not be convicted of both. We
conclude that each of the offenses of which he was
convicted can be committed without committing the other, so
that they are not allied offenses of similar import.

{¶ 4} Because we reject both of Ryan’s contentions,
the judgment of the trial court is Affirmed.

{¶ 5} In 2004, Daly was driving a car when he was
involved in a collision with a tree in the median. As a
result of the collision, one passenger in the car was
killed.

{¶ 6} Daly was charged with one count of Negligently
Causing the Death of Another While Operating a Vehicle, in
violation of R.C. 2903.06(A)(3), and one count of Causing
the Death of Another While Operating a Motor Vehicle as a
Proximate Result of Committing a Minor Misdemeanor Traffic
Violation, in violation of R.C. 2903.06(A)(4). Each count
included the additional allegation that at the time of the
collision Ryan was driving with a license suspended under
any provision of the Ohio Revised Code, which enhanced the
penalty for each offense.

{¶ 7} After Daly’s motion to suppress was overruled,
he negotiated an agreement with the State, the terms of
which included his pleading guilty to the basic offenses,
but submitting to the trial court, without a jury, the
allegation that at the time of the collision he was driving
with a license suspended under any provision of the Ohio
Revised Code. It appears that there was no dispute that
Ryan’s license was suspended, the only factual dispute
between the parties was whether it had been suspended
pursuant to a provision of the Ohio Revised Code, or
otherwise.

{¶ 8} The trial court, after initially indicating
its willingness to go along with the agreement, came to
doubt whether it could properly accept a “partial” guilty
plea. After some discussion, the parties and the trial
court agreed to a procedure whereby Ryan would waive his
right to a jury trial, stipulate that he was driving
negligently, and that his negligence caused the collision
that caused the death of his passenger, and further
stipulate that he was driving over the 35 miles-per-hour
speed limit, and that there were wet road conditions at the
time. The net effect of these stipulations was that the
only remaining factual issue for trial was whether, at the
time of the collision, Ryan’s driver’s license was
suspended under any provision of the Ohio Revised Code.

{¶ 9} Ryan offered an expert witness who testified
that his license was suspended otherwise than under a
provision of the Ohio Revised Code. The State called the
magistrate who had suspended Ryan’s license, who testified
that he had suspended it under the Ohio Revised Code. The
entry suspending Ryan’s license was silent as to the basis
for the suspension.

{¶ 10} At the conclusion of the trial, the trial
court found Ryan guilty of both offenses, and found that
Ryan was, in fact, under a license suspension pursuant to a
provision of the Ohio Revised Code. Judgments of conviction
were entered as to both offenses, and Ryan was sentenced
accordingly. From his conviction and sentence, Ryan appeals.

II

{¶ 11} Ryan’s First Assignment of Error is as
follows:

{¶ 12} “BECAUSE THE EVIDENCE WAS INSUFFICIENT TO
SUPPORT THE TRUE FINDING ON THE ENHANCEMENTS, THE SENTENCES
MUST BE VACATED.”

{¶ 13} There is no dispute that Ryan’s driver’s
license was suspended at the time of the collision; the
sole dispute is under what authority his license had been
suspended. The entry suspending the license, filed in the
Clark County Common Pleas Court, Juvenile Division, at a
time when Ryan was a juvenile, does not indicate under what
authority the license was suspended. Although it would be
good practice for the authority for a license suspension to
be reflected in the entry, we agree with the State that it
is not essential, so long as there is, in fact, some
authority for the suspension.

{¶ 14} The State called the magistrate who ordered
the suspension. The magistrate, Thomas Wilson, testified
that he suspended the license pursuant to R.C. 2152.21,
which does, in fact, authorize the juvenile court to
suspend a juvenile’s driver’s license.

{¶ 15} Ryan argues that it is not credible that his
license was suspended pursuant to the Ohio Revised Code,
because the magistrate allowed him the privilege,
notwithstanding the suspension, to drive to and from work.
Ryan contends that the statute under the authority of which
the magistrate purported to have suspended his license
specifically provides that: “A child whose license or permit
is so suspended is ineligible for issuance of a license or
permit during the period of suspension,” and that this
provision would have precluded the magistrate from having
allowed him the privilege to have driven to and from work,
so that this must not, in fact, have been the statutory
provision under the authority of which the suspension was
ordered.

{¶ 16} The magistrate, Thomas Wilson, testified that
it was his view that he has the authority, notwithstanding
the statutory limitation quoted in the preceding paragraph,
to allow driving privileges to and from work if it is in
the best interests of the child. We question whether the
“permit” referred to in the statutory limitation includes,
as Ryan contends, the allowance of driving privileges to and
from work. It seems more likely that it refers to the
“temporary instruction permit” referred to earlier in R.C.
2152.21(A)(2).

{¶ 17} We need not resolve these conundra. Let us
assume, for purposes of analysis, that magistrate Wilson
had no authority to grant any exceptions to the license
suspension he ordered. That would render the exception
void, or voidable, but it would not invalidate the
suspension, itself.

{¶ 18} That leaves us with the factual issue of
whether magistrate Wilson suspended Ryan’s license under
the authority of R.C. 2152.21(A)(2). He testified that he
did. The trial court chose to credit magistrate Wilson’s
testimony. We find no fault with the trial court’s decision
to credit magistrate Wilson’s testimony.

{¶ 19} Ryan called Donald Bailey, who testified that
the license suspension was not under the authority of the
Ohio Revised Code. The trial court found this testimony to
have no weight:

{¶ 20} “The Court gives no weight to the testimony
of defense witness Donald Bailey. The Court does conclude
that under Evidentiary Rule 702, a witness can be deemed an
expert witness by a Court even where that witness has no
formal training, education, or degree.

{¶ 21} “However, the Court finds that the Ohio
Revised Code BMV regulations, Ohio driver’s license law,
and Ohio traffic law are complex and, therefore, one should
receive formal training, education, or a degree prior to
coming into a court of law to render opinions on those
matters.

{¶ 22} “Perhaps an undergraduate degree in political
science, a law degree, and formal training in statutory
construction and legislative intent would be prudent prior
to delving into complex areas of the law. The most
compelling deficiency, however, in Mr. Bailey’s testimony
is that he failed to review all of the documentary
evidence, specifically the LEADS tape marked as State’s
Exhibit 3. And accordingly, this Court does not recognize
Mr. Bailey as an expert witness.”

{¶ 23} We cannot fault the trial court’s reasoning.
The issue of what weight to give conflicting testimony is
primarily for the finder of fact. Ryan’s First Assignment
of Error is overruled.

III

{¶ 24} Ryan’s Second Assignment of Error is as
follows:

{¶ 25} “THE TRIAL COURT VIOLATED THE DOUBLE JEOPARDY
CLAUSE OF THE OHIO AND U.S. CONSTITUTIONS WHEN IT FOUND
APPELLANT GUILTY OF ONE COUNT OF VEHICULAR HOMICIDE AND ONE
COUNT OF VEHICULAR MANSLAUGHTER SINCE THERE WAS ONLY ONE
VICTIM AND ONLY ONE DISCREET [sic, “discrete” appears to
have been intended] ACT.”

{¶ 26} Ryan acknowledges that Blockburger v. United
States (1932), 284 U.S. 299, 304, upon which he relies, is
codified in Ohio by the statutory provision relating to
allied offenses of similar import — R.C. 2941.25
— which provides:

{¶ 27} “(A) Where the same conduct by defendant can
be construed to constitute two or more allied offenses of
similar import, the indictment or information may contain
counts for all such offenses, but the defendant may be
convicted of only one.

{¶ 28} “(B) Where the defendant’s conduct
constitutes two or more offenses of dissimilar import, or
where his conduct results in two or more offenses of the
same or similar kind committed separately or with a
separate animus as to each, the indictment or information
may contain counts for all such offenses, and the defendant
may be convicted of all of them.”

{¶ 29} The first step in the analysis is to
determine whether, when the elements of the two offenses
are compared, one of the offenses cannot be committed
without also committing the other, in which event they are
allied offenses of similar import requiring merger unless
they are committed separately or with a separate animus as
to each. Conversely, if each of two offenses contains at
least one essential element that is not contained within
the other, then they are not allied offenses of similar
import. Another way of stating this is that if each offense
can be committed in some way that would not also involve
committing the other offense, then they are not allied
offenses of similar import. In performing this analysis,
the court is to examine the statutory elements in the
abstract, not with regard to the particular facts of the
case before it. State v. Rance (1999), 85 Ohio St.3d 632,
636-639.

{¶ 30} The elements of the two offenses of which
Ryan was convicted can be summarized as follows:

{¶ 31} Offense 1: No person, while operating a motor
vehicle, shall cause the death of another negligently.

{¶ 32} Offense 2: No person, while operating a motor
vehicle, shall cause the death of another as the proximate
result of committing a violation of any provision of any
section contained in Title 45 of the Revised Code that is a
minor misdemeanor or a violation of a municipal ordinance
that is substantially equivalent to a minor misdemeanor
contained in Title 45 of the Revised Code.

{¶ 33} Clearly, Offense 1 can be committed without
committing Offense 2. Driving while under the influence of
alcohol is not a minor misdemeanor offense. If a person
gets behind the wheel of a car and sets out on the road
while dangerously intoxicated, and kills another as a
result, he has caused the death of another negligently, but
he has not caused the death of another as a proximate
result of committing a minor misdemeanor; he is guilty of
Offense 1, but not of Offense 2.

{¶ 34} At first thought, it might appear that
Offense 2 cannot be committed without also committing
Offense 1. It might be thought that the commission of a
minor misdemeanor under Title 45 is per se negligence, and,
if the result is the death of another, then both offenses
have necessarily been committed. But negligence, or, more
precisely, acting negligently, is a defined culpable mental
state under R.C. 2901.22(D), which provides as follows:

{¶ 35} “A person acts negligently when, because of
a substantial lapse from due care, he fails to perceive or
avoid a risk that his conduct may cause a certain result or
be of a certain nature.” (Emphasis added.)

{¶ 36} The inclusion of the word “substantial” means
that not every lapse from due care is a “negligent” act for
purposes of the criminal provisions of the Ohio Revised
Code. For example, going 56 miles per hour in a 55
mile-per-hour zone is a minor misdemeanor-speeding —
under R.C. 4511.21(B)(5), but it would hardly be a
substantial lapse from due care, as evidenced by the
ubiquity with which motorists exceed 55 mile-per-hour speed
limits by slight amounts. Admittedly, it might be difficult
to prove that driving 56 miles per hour in a 55
mile-per-hour speed zone proximately caused a collision,
but it is theoretically possible that an expert accident
reconstructionist might offer sufficient proof of that
fact. If that collision caused the death of another, then
Offense 2 would be committed, but not Offense 1, because
the offender’s lapse from due care, while leading to tragic
results, would not have been substantial.

{¶ 37} We conclude that the requirement, for
commission of Offense 1, of a substantial lapse from due
care must add something to the definition of the offense.
If not, then every commission of Offense 2 would
necessarily also constitute a commission of Offense 1, and
yet the General Assembly has clearly made Offense 2 a
lesser offense, with a lesser penalty. There may be a logic
to including a lesser offense within a greater, so that
every commission of the greater offense necessarily
involves committing the lesser offense, but not vice versa;
but we see no logic that would lie behind including a
greater offense within a lesser offense, so that every time
the lesser offense is committed, the greater offense is
necessarily also committed.

{¶ 38} Because we conclude, employing the analysis
prescribed by State v. Rance, supra, that each of the
offenses of which Ryan was convicted can be committed
without necessarily committing the other, they are not
allied offenses of similar import, and the Double Jeopardy
clauses of the Ohio and United States constitutions are not
implicated. Ryan’s Second Assignment of Error is overruled.

IV

{¶ 39} Both of Ryan’s assignments of error having
been overruled, the judgment of the trial court is
Affirmed.

GRADY, P.J., and WOLFF, J., concur.