“Operation” and “Reckless” in Aggravated Vehicular Assault/Homicide Case

Last week (Dec. 2, 2010), the
Franklin County Court of Appeals in Columbus, Ohio affirmed the conviction of Syrita Lindsey
for vehicular assault arising out of a suspected DUI accident on April
18, 2007. The collision occurred when Ms. Lindsey’s vehicle went left
of center and struck a pickup truck head on resulting in serious physical
harm to its occupants. The defendant refused a chemical test and due to
a technicality, the jury never heard any evidence of that refusal.

The State of Ohio alleged that DUI and/or reckless operation of her vehicle
was the proximate cause of the collision. The jury deadlocked on the DUI
specification but convicted on the lesser reckless specification. The
defendant argued that there was insufficient evidence that she was the
operator of the at fault vehicle, that there was insufficient evidence
she was impaired by alcohol, that there was insufficient evidence that
DUI was the proximate cause of the collision, and that there was insufficient
evidence that she was “reckless” as defined under Ohio law.

I’ve found 2 pieces of this case noteworthy. First, the trial judge
gave the wrong jury instruction on the definition of “Operation”.
The defendant’s trial attorney failed to object. The court of appeals
ruled that since the trial attorney didn’t object to the error and
the error did not rise to the level of causing a manifest miscarriage
of justice, the error was harmless. The actual definition of “Operation”
in these types of cases is found in R.C. 4511.01(HHH).

Secondly, the defendant argued on appeal that there was insufficient evidence
that her driving was “reckless” as defined in R.C. 2901.22(C)
which states, “a person acts recklessly when, with heedless indifference
to the consequences, he perversely disregards a known risk that his conduct
is likely to cause a certain result or is likely to be of a certain nature.
A person is reckless with respect to circumstances when, with heedless
indifference to the consequences, he perversely disregards a known risk
that such circumstances are likely to exist”. The court found that
consuming alcohol prior to driving, driving at a high rate of speed, going
left of center, and going completely into the oncoming lane is reckless.
The defendant’s position was that she was simply going beyond the
posted limit which is, by itself, not reckless. However, the Franklin
County Court of Appeals has found speed only to be sufficient to support
a conviction based upon
reckless driving (State v. Wasson, 02AP-211, 2002).