[Cite as State v. Ruth , 2020-Ohio-4506.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

FAYETTE COUNTY

STATE OF OHIO, Appellee,

- vs -

TERRI L. RUTH, Appellant. :

:

:

:

:

: CASE NO. CA2019-08-018

O P I N I O N

9/21/2020

CRIMINAL APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS Case No. CRI20180387

Jess C. Weade, Fayette County Prosecuting Attorney, Rachel S. M artin, 110 East Court Street, Washington Court House, Ohio 43160, for appellee Harris Law Firm, LLC, Felice Harris, 6031 E. Main Street, #187, Columbus, Ohio 43213, for appellant

S. POWELL, J. {¶ 1} Appellant, Terri L. Ruth, appeals her conviction in the Fayette County Court of Common Pleas after a jury found her guilty of one count of a ggravated vehicular assault. For the reasons outlined below, we affirm Ruth's conviction. {¶ 2} On October 5, 2018, the Fayette County Grand Jury returned an i ndictmentFayette CA2019-08-018

- 2 - charging Ruth with one count of aggravated vehicular assault in violation of R.C. 2903.08(A)(1)(a), a third-degree felony. 1 According to the bill of particulars, the charge arose after Ruth, while operating a vehicle while under the inf luence of alcohol ("OVI"), caused serious physical harm to the victim, R.H., as a result o f an automobile accident between the two. There is no dispute that the accident occurre d on May 6, 2018 in Fayette County at the intersection of State Route 753 and Robinson Road . There is also no dispute that, as a result of this accident, Ruth pled guilty to OVI in the Washington Court House Municipal Court. {¶ 3} On July 18, 2019, the matter proceeded to a one-day jury trial. At trial, R.H.

testified that he and Ruth were involved in an automobile accid ent that caused him to suffer a serious injury to his right shoulder. Explaining this injury , R.H. testified that the accident caused him to suffer a constant, dull pain in his right shoulde r for over a year, limited the range of motion in his right arm, and required him to receive p hysical therapy and eventually shoulder surgery. R.H. also testified that the accident result ed in pain in his chest, an injury to his leg, and soreness to his "whole body." Following delibe rations, the jury returned a verdict finding Ruth guilty as charged. The trial court then h eld a sentencing hearing and sentenced Ruth to 60 months in prison. Ruth now appeals her co nviction, raising four assignments of error for review. {¶ 4} Assignment of Error No. 1: {¶ 5} THE TRIAL COURT ERRED IN ADMITTING THE TESTIMONY OF DR.

BAGDASCHEWSKYI. {¶ 6} In her first assignment of error, Ruth argues the trial court e rred by allowing Dr. Bagdaschewskyi, R.H.'s primary care physician at the time o f the accident, to testify as

1. Ruth was also charged with one count of operating a vehicle while under the influence of alcohol in violation of R.C. 4511.19(A)(1)(i), a first-degree misdemeanor. This cha rge was later dismissed by the state.Fayette CA2019-08-018

- 3 - an expert witness regarding the cause, diagnosis, and "explanat ion of diagnosis" of R.H.'s shoulder injury, i.e., that R.H.'s shoulder injury was a type o f "impingement syndrome" that was caused by the automobile accident. We disagree. {¶ 7} Contrary to Ruth's claim, Dr. Bagdaschewskyi did not testify as an expert witness. The record instead indicates Dr. Bagdaschewskyi testi fied as a lay witness regarding the treatment he provided to R.H. during a routine ch eck-up on May 1, 2018, five days prior to the accident, as well as the treatment he recomme nded for R.H. on May 8, 2018, two days after the accident. Dr. Bagdaschewskyi in fact specifically testified that he was not providing any opinion as to what may have caused R.H.'s shoulder injury. Dr. Bagdaschewskyi instead testified that he was "just going by wha t [R.H. had] tol d [him ]" had occurred; that R.H. was suffering from "muscular discomfort" in his neck, shoulder, right arm, and "right lower extremity" after he had reported being in volved in an automobile accident two days earlier. Therefore, considering Dr. Bagdasch ewskyi specifically testified that he was not offering any opinion as to what may have caused R.H.'s shoulder injury, Dr. Bagdaschewskyi's testimony was admissible lay witness testimony . Accordingly, finding no error in the trial court's decision to allow Dr. Bagdaschewskyi to testify in the manner in which he did, Ruth's first assign ment of error lacks merit and is overruled. {¶ 8} Assignment of Error No. 2: {¶ 9} THE TRIAL COURT ERRED IN ADMITTING TESTIMONY AND

PHOTOGRAPHS WHICH WERE IN VIOLATION OF OHIO EVID.R. 802 AND 403 (A). {¶ 10} In her second assignment of error, Ruth argues it was plain err or for the trial court to admit certain testimony and evidence offered by Deputy Travis Burden, a deputy with the Fayette County Sheriff's Office who was dispatched to the scene of the automobile accident between Ruth and the victim, R.H. We disagree. {¶ 11} When properly objected to, this court reviews a trial court's d ecision to admitFayette CA2019-08-018

- 4 - or exclude evidence under an abuse of discretion standard. State v. Gerde , 12th Dist. Clermont No. CA2016-11-077, 2017-Ohio-7464, ¶ 8. Ruth, however , did not object to any of the testimony and evidence for which she now complains. By failing to object, Ruth has waived all but plain error on appeal. State v. Grimm , 12th Dist. Clermont No. CA2018-10- 071, 2019-Ohio-2961, ¶ 21. Pursuant to Crim.R. 52(B), "[p]lain errors or defects affecting substantial rights may be noticed although they were not brough t to the attention of the court." An error does not rise to the level of a plain error u nless, but for the error, the

outcome of the trial would have been different. State v. Palmer , 12th Dist. Butler Nos. CA2013-12-243 and CA2014-01-014, 2014-Ohio-5491, ¶ 21. "'Notic e of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under exc eptional circumstances and only to prevent a manifest miscarriage of justice.'" State v. Harner , 12th Dist. Brown No. CA2019-10-012, 2020-Ohio-3071, ¶ 24, quoting State v. Landrum , 53 Ohio St.3d 107, 111 (1990). {¶ 12} Ruth initially argues that it was plain error for the trial cou rt to admit Deputy Burden's testimony about the statement she gave to him at the h ospital shortly after the accident occurred; specifically, that "another vehicle pulled i n front of her causing the accident." Ruth claims this testimony was inadmissible hearsay under Evid.R. 802. However, contrary to Ruth's claim, Deputy Burden's testimony wa s admissible as a nonhearsay admission by a party-opponent in accordance with Evid.R . 801(D)(2). Pursuan t to that rule, "'any prior statement of a party is admissible provi ding it is offered against the party at trial.'" State v. Gerde , 12th Dist. Clermont No. CA2016-11-077, 2017-Ohio-7464, ¶ 10, quoting State v. Baker , 137 Ohio App.3d 628, 652 (12th Dist.2000), quoting Weissenberger, Ohio Evidence Treatise , Section 801.33 at 367 (1988). Such is the case here. Therefore, because a party's own statement is not hearsa y if the statement is offered against that party, Ruth's claim alleging Deputy Burden's testi mony about the statementFayette CA2019-08-018

- 5 - she gave to him at the hospital shortly after the accident occu rred was inadmissible hearsay

under Evid.R. 802 lacks merit. {¶ 13} Ruth also argues that Deputy Burden's testimony should have bee n excluded under Evid.R. 403(A) because it confused the issues and unfairl y prejudiced the jury against her by implying she was "a bad person who attempted to shift th e blame for the collision." However, despite Ruth's assertions, we find nothing about Deput y Burden's testimony confusing or unfairly prejudicial. Deputy Burden was merely re peating the statement Ruth gave him at the hospital shortly after the accident occurred. Considering neither party disputed the fact that Ruth and R.H. were involved in an automo bile accident, this testimony had little, if any, impact on the jury's ultimate finding of gu ilt. This holds true even though the challenged testimony did not go directly to either of the t wo main issues in dispute; causation and whether R.H. suffered serious physical harm. The refore, because it is only unfairly prejudicial evidence that Evid.R. 403(A) prohibits, Ru th's claim that Deputy Burden's testimony should have been excluded under Evid.R. 403(A) also l acks merit. {¶ 14} Ruth further argues that it was plain error for the trial court to admit Deputy Burden's testimony regarding the "scene of the accident," the " position of the cars," the "severe injury" sustained by a passenger in Ruth's vehicle, as well as five photographs of the scene of the accident taken shortly after the accident occu rred. Ruth claims this evidence was not relevant, confused the issues, was unfairly pr ejudicial to her, and used by the state to "enflame the emotions of the jury" since she ha d already admitted to being

under the influence of alcohol at the time of the accident. Ho wever, contrary to Ruth's claims, this evidence was relevant, straightforward, and not un fairly prejudicial to her. This is because, as noted by the state, this testimony and evidence was used to establish the nature and the circumstances of the crime charged in relation t o the testimony offered by the victim, R.H. Therefore, finding no error, let alone plain error, in the trial court's decisionFayette CA2019-08-018

- 6 - to admit any of challenged testimony and evidence at issue, Rut h's second assignment of

error lacks me rit and is overruled. {¶ 15} Assignment of Error No. 3: {¶ 16} THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT RUTH'S CRIM.R. 29 MOTION FOR JUDGMENT OF ACQUITTAL. {¶ 17} In her third assignment of error, Ruth argues the trial court e rred by denying her Crim.R. 29(A) motion for acquittal. We disagree. {¶ 18} The standard of review for a denial of a Crim.R. 29(A) motion f or acquittal is the same as the standard of review for a sufficiency of the evi dence claim. State v.

Robinson , 12th Dist. Butler No. CA2015-01-013, 2015-Ohio-4533, ¶ 37. W hether the evidence presented is legally sufficient to sustain a verdict i s a question of law. State v.

Grinstead , 194 Ohio App.3d 755, 2011-Ohio-3018, ¶ 10 (12th Dist.). When reviewing the sufficiency of the evidence underlying a criminal conviction, a n appellate court examines the evidence to determine whether such evidence, if believed, w ould convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Intihar , 12th Dist. Warren No. CA2015-05-046, 2015-Ohio-5507, ¶ 9. The relevant inquiry i s "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 reaso nable doubt." State v.

Jenks , 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. Thi s test "requires a determination as to whether the state has met its burden of pro duction at trial." State v.

Boles , 12th Dist. Brown No. CA2012-06-012, 2013-Ohio-5202, ¶ 34, cit ing State v. Wilson , 12th Dist. Warren No. CA2006-01-007, 2007-Ohio-2298, ¶ 33. {¶ 19} As noted above, Ruth was convicted of aggravated vehicular assa ult in violation of R.C. 2903.08(A)(1)(a). Pursuant to that statute, no person, while operating or participating in the operation of a motor vehicle, shall cause "serious physical harm" toFayette CA2019-08-018

- 7 - another person while under the influence of alcohol. State v. Phelps , 12th Dist. Butler No. CA2009-09-243, 2010-Ohio-3257, ¶ 12. As defined by R.C. 2901.0 1(A)(5)(c) and (e), the phrase "serious physical harm" includes: (c) Any physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary, substantial incapacity;

* * * (e) Any physical harm that involves acute pain of such duration as to result in substantial suffering or that involves any degr ee of prolonged or intractable pain. Thus, as it relates to R.C. 2901.01(A)(5)(e), there are "three categories of pain that constitute serious physical harm: 'acute pain of such duration as to result in substantial suffering,' any degree of 'prolonged pain,' and any degree of ' intractable pain.'" State v. Fitzgerald , 12th Dist. Clermont No. CA2016-06-044, 2017-Ohio-2717, ¶ 21. {¶ 20} As stated previously, Ruth does not dispute that she was under the influence of alcohol at the time of the accident. Ruth instead argues th at the state failed to prove she caused the victim, R.H., to suffe r serious physical harm. Howe ver, after a thorough review of the record, we find the state offered extensive evidence to prove Ruth caused serious physical harm to the victim. This includes, most notably, R.H. 's testimony that the accident had caused him to suffer pain in his chest, an injury to his le g, soreness to his "whole body," and a serious injury to his right shoulder. R.H. testified tha t his shoulder injury limited his range of motion and resulted in him living with a constant, dul l pain for over a year. R.H. testified that this pain, which he characterized as an eight to nine out of ten two days after the accident, would then increase "into a sharper pain" the hig her he raised his arm. R.H. also testified that he received physical therapy and eventually shoulder surgery, but that nothing helped until one day his arm and shoulder returned to n ormal after he "felt it pop," his arm "actually popped."Fayette CA2019-08-018

- 8 - {¶ 21} The degree of harm that rises to the level of "serious" physica l harm is not an

exact science. State v. Sharp , 12th Dist. Butler No. CA2009-09-236, 2010-Ohio-3470, ¶ 11. "'[W]here injuries to the victim are serious enough to cau se him or her to seek medical treatment, the finder of fact may reasonably infer that the for ce exerted on the victim caused serious physical harm as defined by R.C. 2901.01(A)(5).'" State v. Church , 12th Dist. Butler No. CA2011-04-070, 2012-Ohio-3877, ¶ 18, quoting State v. Lee , 8th Dist. Cuyahoga No. 82326, 2003-Ohio-5640, ¶ 24; State v. Lanier, 6th Dist. Ottawa No. OT-19-025, 2020-Ohio3394, ¶ 25 ("the element of serious physical harm [is] met wher e a victim's injuries require medical treatment"). Such is the case here. See, e.g., State v. Beaver , 3d Dist. Union No. 14-13-15, 2014-Ohio-4995, ¶ 38 (victim suffered serious physica l harm where the victim's "injuries caused her to seek medical treatment, and ultimately required surgery" after she "rated her pain as a nine out of ten when she first sought medi cal treatment for her injuries"). Therefore, while not an exact science, because the state provid ed extensive evidence to prove Ruth caused the victim, R.H., to suffer serious physical harm, the trial court did not err by denying Ruth's Crim.R. 29(A) motion for acquittal. Acco rdingly, because we find no error in the trial court's decision, Ruth's third assignment of error lacks merit and is

overruled. {¶ 22} Assignment of Error No. 4: {¶ 23} TERRI RUTH'S CONVICTION FOR AGGRAVATED VEHICULAR ASSAULT

IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. {¶ 24} In her fourth assignment of error, Ruth argues her conviction w as against the manifest weight of the evidence. In support, Ruth makes the sa me basic arguments that she advanced under her third assignment of error wherein she ad vanced a challenge to the sufficiency of the evidence presented at trial. "Although a ve rdict is supported by sufficient evidence, an appellate court may nevertheless conclude that the verdict is against theFayette CA2019-08-018

- 9 - manifest weight of the evidence because the test under the mani fest weight standard is much broader than that for sufficiency of the evidence." State v. Davidson , 12th Dist. Preble No. CA2009-05-014, 2009-Ohio-6750, ¶ 5, citing State v. Mathews , 4th Dist. Lawrence No. 94CA42, 1995 Ohio App. LEXIS 4939, *11 (Oct. 27, 1995). {¶ 25} However, while the test may be broader, "[a]n appellate court w ill overturn a conviction due to the manifest weight of the evidence only in e xtraordinary circumstances when the evidence presented at trial weighs heavily in favor of acquittal." State v. Blair , 12th Dist. Butler No. CA2014-01-023, 2015-Ohio-818, ¶ 43, citin g State v. Barnes , 12th Dist. Brown No. CA2010-06-009, 2011-Ohio-5226, ¶ 81, citing State v. Thompkins , 78 Ohio St.3d 380, 387 (1997). This is not one of those cases. Theref ore, because this is not one of those extraordinary cases when the evidence presented at tri al weighs heavily in favor of acquittal, but rather a case in which there exists extensive evidence to support the jury's guilt finding, Ruth's conviction was not against the manifest w eight of the evidence. Accordingly, finding no merit to any of Ruth's arguments raised herein, Ruth's fourth assignment of error is overruled. {¶ 26} Judgment affirmed.

M. POWELL, P.J., and PIPER, J., concur.