[Cite as State v. Gerth, 2013-Ohio-1751.] 

Criminal Appeal From: Hamilton County Court of Common Pleas 

 

Judgment Appealed From Is: Affirmed 

Date of Judgment Entry on Appeal: May 1, 2013 

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip Cummings, 

Assistant Prosecuting Attorney, for Plaintiff-Appellee, 

Bruce Hust, for Defendant-Appellant. 

Please note: this case has been removed from the accelerated calendar. 

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

STATE OF OHIO, 

 Plaintiff-Appellee, 

 vs. 

MARK GERTH, 

 Defendant-Appellant. 

 

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: 

: 

APPEAL NO. C-120392 

TRIAL NO. B-1101792 

 

 O P I N I O N.
OHIO FIRST DISTRICT COURT OF APPEALS

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DEWINE, Judge. 

{¶1} While fleeing from police in a stolen vehicle at high speeds, Mark Gerth 

crashed into a taxicab, killing its driver and passenger. He appeals his convictions, 

following a jury trial, for the felony murder of the taxicab driver and passenger and for 

receiving stolen property. His felony-murder convictions were predicated on the 

underlying offense of felonious assault, which required the state to show that he 

“knowingly” caused serious physical harm. He argues that because he was intoxicated 

he did not act knowingly. He, also, challenges his conviction for receiving stolen 

property, arguing the state failed to present evidence that he knew or had reasonable 

cause to believe the vehicle he was driving was stolen. We find neither argument 

persuasive, and affirm his convictions. 

{¶2} Officer Mark McChristian was on routine patrol in Over-the-Rhine, 

when he saw a red Toyota Rav4. He ran the plates for the Rav4, and discovered it had 

been reported stolen two days earlier. He followed the vehicle, while awaiting additional 

units to respond to the area. When he activated his emergency lights, the driver of the 

Rav4 pulled over to the curb. As Officer McChristian stepped out of his cruiser, the Rav4 

took off. 

{¶3} A high-speed chase ensued. Police in marked cruisers, with their 

emergency lights activated, chased the Rav4 at speeds ranging from 50 to 60 m.p.h. 

through residential streets with posted speed limits of 25 to 35 m.p.h. The pursuit lasted 

several minutes. During that time, the Rav4 sped through every stop sign and every red 

light, crossed left of center, and weaved in and out of cars. 

{¶4} Ultimately, the Rav4, which had accelerated its speed and was traveling 

in excess of 75 m.p.h., ran a red light and crashed into two vehicles at the intersection of 
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Eighth and Sycamore Streets in downtown Cincinnati. The Rav4 hit the front end of the 

first vehicle before crushing a taxicab. It then hit a parking meter and caught fire. The 

driver, later identified as Mr. Gerth, rolled out of the Rav4 and attempted to flee from 

police on foot. But he was quickly apprehended and taken into custody. After being 

placed in custody, Mr. Gerth volunteered that his passenger did not know that the 

vehicle had been stolen. 

{¶5} In the meantime, police had found the cab driver, Mohamed Ould 

Mohamed Sidi, who was still wearing his seat-belt, dead behind the wheel. His 

passenger, Tonya Hairston, had been ejected from the cab by the force of the impact. 

She was lying on the street underneath the cab. Ms. Hairston was transported from the 

scene by ambulance, but she died enroute to the hospital. 

{¶6} Mr. Gerth’s passenger in the Rav4, Donald Evans, was injured and 

slumped over in the Rav4. He was pulled out of the vehicle and transported by 

ambulance to the hospital. Mr. Evans sustained fractures to his leg requiring surgery 

during his eight-day hospitalization. 

{¶7} Mr. Gerth, who had sustained injuries to his forehead, was also 

transported to the hospital. A blood test revealed he had alcohol, marijuana, and 

cocaine in his system. A forensic toxicologist with the Hamilton County Coroner’s Office 

testified that the amount of cocaine in Mr. Gerth’s system would have affected his ability 

to drive. He noted that studies had shown that individuals with cocaine in their systems 

similar to the amount of cocaine in Mr. Gerth’s system had been linked to high-risk 

driving behavior, including speeding, cutting off other drivers, and darting in and out of 

traffic. 

{¶8} Mr. Gerth was charged with two counts of felony murder and four counts 

of aggravated vehicular homicide in connection with the deaths of Mr. Sidi and Ms. 
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Hairston, one count each of aggravated vehicular assault and vehicular assault in 

connection with the injuries to Mr. Evans, two counts of leaving the scene of the 

accident, and one count of failure to comply with the order or signal of a police officer. A 

jury convicted him of all the charges. The trial court sentenced Mr. Gerth to 48 and onehalf years to life in prison. 

{¶9} In a single assignment of error, Mr. Gerth argues that his convictions 

for felony murder and receiving stolen property were not supported by sufficient 

evidence. 

{¶10} Mr. Gerth was convicted of felony murder for knowingly causing the 

death of another while committing an offense of violence, in this case felonious assault. 

See R.C. 2903.02(B). A defendant commits felonious assault when he knowingly 

“cause[s] serious physical harm to another * * *.” R.C. 2903.11(A)(1). Mr. Gerth argues 

that the state failed to show he acted “knowingly.” R.C. 2901.22(B) provides that “[a] 

person acts knowingly, regardless of his purpose when he is aware that his conduct will 

probably cause a certain result or will probably be of a certain nature. A person has 

knowledge of circumstances when is aware that such circumstances probably exist.” 

Whether a defendant acts knowingly, absent his admission, can only be determined 

from all the surrounding facts and circumstances. State v. Huff, 145 Ohio App.3d 555, 

563, 763 N.E.2d 695 (1st Dist.2001). 

{¶11} Mr. Gerth argues that because he was under the influence of drugs and 

alcohol, there is no way he could have known that he would cause serious physical harm 

to someone. R.C. 2901.21(C), however, provides that “[v]oluntary intoxication may not 

be taken into consideration in determining the existence of a mental state that is an 

element of a criminal offense.” “ ‘Intoxication’ includes, but is not limited to, 
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intoxication resulting from the ingestion of alcohol, a drug, or alcohol and a drug.” R.C. 

2901.21(D)(4). 

{¶12} Here, the state presented cruiser-cam videos of the high-speed chase, 

and a surveillance video of the crash. Those videos show Mr. Gerth refusing to stop for 

police, and then engaging in a high-speed chase. For approximately six minutes, Mr. 

Gerth was driving at speeds of 50 to 60 m.p.h. through residential streets with posted 

speed limits of 25 to 35 m.p.h. He ran multiple stop signs and stop lights, crossed the 

center line, and wove in and out of cars at certain points in time. Officers testified that 

they had tried to employ stop sticks, but in one instance they did not work, and in 

another, Mr. Gerth had been driving so quickly that they could not get them set up. An 

accident reconstructionist testified that Mr. Gerth was traveling at 77.78 m.p.h. at the 

intersection of Ninth and Sycamore Streets, and that he was traveling 57 m.p.h. when he 

hit the taxicab. The jury could infer from these facts that Mr. Gerth had acted 

knowingly. See State v. Israel, 12th Dist. No. CA2011-11-115, 2012-Ohio-4876, ¶ 88 

(holding that a defendant’s conviction for felony murder, with the underlying felony of 

felonious assault, was supported by sufficient evidence that the defendant had acted 

“knowingly,” where the defendant had led police on an extensive high-speed chase, 

disregarding stop signs and red lights, forcing other motorists and police officers off the 

road, and had, despite testimony from an accident reconstruction expert that he had 

ample time to slow down or stop his vehicle for a police cruiser in the roadway in front of 

him, refused to slow down, ultimately striking the police officer’s vehicle and killing 

him). 

{¶13} With respect to his conviction for receiving stolen property, the state 

had to show that Mr. Gerth had “receiv[ed], retain[ed], or dispos[ed] of [a motor 

vehicle] of another” that he knew or had “reasonable cause to believe ha[d] been 
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obtained through the commission of a theft offense.” R.C. 2913.51(A). Mr. Gerth 

argues that the state failed to prove that he knew or had reasonable cause to believe 

that the Rav4 had been stolen. 

{¶14} There was ample evidence, however, from which the jury could 

conclude that Mr. Gerth knew the Rav4 was stolen. The vehicle had been reported 

stolen two days earlier by its owner, Ms. Hoffman. When police signaled Mr. Gerth 

to pull over, he initially complied, but then sped off. When he was apprehended, the 

first thing Mr. Gerth told police was that his passenger did not know the Rav4 had 

been stolen. Police recovered two blank checkbooks inside the Rav4 with Ms. 

Hoffman’s name on them. Ms. Hoffman testified that she had not given Mr. Gerth or 

anyone else permission to use the vehicle. Contrary to Mr. Gerth’s arguments, his 

statement to police, his attempt to flee, and the circumstances surrounding his 

possession of the vehicle indicated that he had knowledge that the Rav4 had been 

stolen. See State v. Arthur, 42 Ohio St.2d 67, 325 N.E.2d 888 (1975); State v. Davis, 

49 Ohio App.3d 109, 112, 550 N.E.2d 966 (8th Dist.1988). 

{¶15} Because the state presented sufficient evidence to sustain Mr. Gerth’s 

convictions for felony murder and receiving stolen property, we overrule his sole 

assignment of error and affirm the judgment of the trial court. 

Judgment affirmed. 

HENDON, P.J, and CUNNINGHAM, J. concur.

Please note: 

 The court has recorded its own entry this date.