[Cite as State v. Rozikov , 2020-Ohio-4884.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT WYANDOT COUNTY

STATE OF OHIO, PLAINTIFF-APPELLEE, CASE NO. 16-19-07

v. NORMUROD ROZIKOV, O P I N I O N

DEFENDANT-APPELLANT.

Appeal from Upper Sandusky Municipal Court Trial Court No. CRB 1700499 A Judgment Affirmed Date of Decision: October 13, 2020

APPEARANCES: 

### W. Joseph Edwards for Appellant 

### Richard A. Grafmiller for AppelleeCase No. 16-19-07

-2- ZIMMERMAN, J. {¶1} Defendant-appellant, Normurod Rozikov (“Rozikov”), appeals the judgment entry of sentence of the Upper Sandusky Municipal Cour t’s jury verdict finding Rozikov guilty of vehicular homicide. For the reasons that follow, we

affirm. {¶2} The facts relevant to this appeal are as follows. On July 1, 2 017, Rozikov was making a U-turn of his semi-truck and trailer off o f U.S. Route 23 north onto U.S. Route 23 south, a four-lane-divided highway. A 2010 Ford Edge (“SUV”) driven by Darlene Kujawa (“Kujawa”), was also traveling northbound on U.S. Route 23 at that time. During Rozikov’s U-turn onto U.S. Route 23 south, Kujawa’s vehicle struck the left rear side of Rozikov’s trailer resulting in a crash

and her death. {¶3} As a result of the crash, Rozikov was charged with vehicular ho micide in violation of R.C. 2903.06(A)(3), a first-degree misdemeanor. 1 (Doc. No. 1). Rozikov plead not guilty, and his case was set for a jury trial . (Doc. No. 3, 7, 25). {¶4} On March 12, 2018, Rozikov filed a motion in limine in the tria l court regarding Trooper John R. Banta’s (“Sgt. Banta”) qualifications as an expert witness

1 In other cases, Rozikov was charged with vehicular manslaughte r in violation of R.C. 2903.06(A)(4), a second-degree misdemeanor, and ultimately found not guilty by t he jury. (Aug. 22, 2019 Tr., Vol. II, at 466). Rozikov was also cited under R.C. 4511.39 (Turn and stop signal s) for maneuvering without regard to everyone else’s safety, a minor misdemeanor, and subsequently f ound guilty by the trial court. (Doc. Nos. 35, 36); (Aug. 21, 2019 Tr., Vol. I, at 156, 175); (Aug. 22, 20 19 Tr., Vol. II, at 466, 468).Case No. 16-19-07

-3- and as to the reliability of Sgt. Banta’s accident-reconstructi on report under Evid.R. 702. (Doc. No. 20). The trial court denied Rozikov’s motion p rior to trial. (Doc. No. 29). {¶5} On August 21, 2019, a jury trial commenced in the trial court. On August 22, 2019, the jury found Rozikov guilty of vehicular hom icide. (Doc. Nos. 35, 36); (Aug. 22, 2019 Tr., Vol. II, at 466, 468). After the verdict, the trial court ordered the preparation of a presentence investigation report a nd scheduled a sentencing hearing. (Doc. Nos. 38, 39, 40, 41, 42). {¶6} On October 22, 2019, Rozikov was sentenced to two years of community control sanctions which included a 30-day-jail senten ce; a $750.00 fine; court costs including the cost of the jury trial and interprete r fees; and a one-yearclass-four-license suspension commencing October 25, 2019. 2 {¶7} On November 20, 2019, Rozikov filed his notice to appeal. 3 (Doc. No. 47). Rozikov raises two assignments of error which we will add ress separately. Assignment of Error No. I The Trial Court Abused Its Discretion By Allowing Improper Expert Testimony Regarding The Ultimate Issue Of Negligence Thereby Violating The Ohio Rules Of Evidence While Also Depriving The Defendant Of His Right To A Fair Trial Under The Ohio And Federal Constitutions (Record Reference: Vol. II, PP. 279, 298-300) [sic]

2 Rozikov was advised that his conviction resulted in a six-poin t violation, and the trial court further ordered the imposition of his jail term stayed pending this appeal. (D oc. No. 44). 3 Rozikov did not appeal his minor-misdemeanor conviction under R.C. 4511.39.Case No. 16-19-07

-4- {¶8} In his first assignment of error, Rozikov argues that the trial court abused its discretion by admitting the expert testimony of Sgt. Banta. First, Rozikov argues that Sgt. Banta did not have the requisite specialized k nowledge, skill, experience, training, or education to testify as to the area-of -impact of the crash (leading to the ultimate issue of negligence). Second, he argu es that Sgt. Banta’s testimony is not based on reliable scientific, technical, or ot her specialized information under Evid.R. 702(C), and thus, is inadmissible und er Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993). Standard of Review {¶9} The admissibility of an expert’s testimony is a matter committe d to the sound discretion of the trial court, and the trial court’s ruli ng will not be reversed

absent an abuse of that discretion. State v. Hawkey , 3d Dist. Defiance No. 4-14-03, 2016-Ohio-1292, ¶ 76, citing Valentine v. Conrad , 110 Ohio St.3d 42, 2006-Ohio3561, ¶ 9. A trial court has abused its discretion when its de cision is contrary to law, unreasonable, not supported by the evidence, or grossly un sound. State v.

Boles , 2d Dist. Montgomery No. 23037, 2010-Ohio-278, ¶ 16-18. State v. Waldock , 3d Dist. Seneca No. 13-14-22, 2015-Ohio-1079, ¶ 62, citing Boles at ¶ 16-18. An appellate court may not substitute its judgment for that of the trial court whenCase No. 16-19-07

-5- applying the abuse-of-discretion standard. Waldock at ¶62, citing State v. Slappey , 3d Dist. Marion No. 9-12-58, 2013-Ohio-1939, ¶ 12. Analysis {¶10} In deciding whether Sgt. Banta’s testimony was admissible, we b egin our analysis with a review of Evid.R. 702, which governs admiss ibility of expert testimony. Evid.R. 702 provides: A witness may testify as an expert if all of the following appl y: (A) The witness’ testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons; (B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony; (C) The witness’ testimony is based on reliable scientific, technic al, or other specialized information. To the extent that the testim ony reports the result of a procedure, test, or experiment, the tes timony is reliable only if all of the following apply: (1) The theory upon which the procedure, test, or experiment is based is objectively verifiable or is validly derived from wide ly accepted knowledge, facts, or principles; (2) The design of the procedure, test, or experiment reliably implements the theory; (3) The particular procedure, test, or experiment was conducted in a way that will yield an accurate result.

Evid.R. 702. Rozikov referred to this evidence rule in his mot ion in limine which the trial court ultimately denied. (Doc. Nos. 20, 29).Case No. 16-19-07

-6- {¶11} The nature of a trial court’s ruling on a motion in limine is “ tentative, interlocutory, precautionary” based on anticipated evidentiary issues at trial. State

v. Miller , 3d. Dist. Allen No. 1-18-17, 2018-Ohio-4648, ¶ 8, citing State v. French , 72 Ohio St.3d 446, 450 (1995). In order to preserve a claimed error for review, there must be “‘“a contemporaneous objection at trial.”’” State v. Bagley , 3d Dist. Allen No. 1-13-31, 2014-Ohio-1787, ¶ 53, quoting State v. Hancock , 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 59, quoting State v. Hill , 75 Ohio St.3d 195, 203 (1996). Importantly, at trial Rozikov’s trial counsel failed to renew h is motion in limine, failed to object as to whether Sgt. Banta was qualified to test ify as an expert witness, and failed to object to Sgt. Banta’s expert-opinion testimony. (Aug. 22, 2019 Tr. Vol. II, 277-471). Due to these failures, we will apply the pl ain-error-standard-of review in this assignment of error. {¶12} “Crim.R. 52(B) governs plain-error review in criminal cases.” Bagley at ¶ 55, citing State v. Risner , 73 Ohio App.3d 19, 24 (3d Dist.1991). Under Crim.R. 52(B) for there to be plain error, the trial court must have de viated from a legal rule, the error must have been an obvious defect in the proceeding, a nd the error must have affected a substantial right. Id., citing State v. Barnes , 94 Ohio St.3d 21, 27 (2002). “Under the plain-error standard, the appellant must dem onstrate that the outcome of his trial would clearly have been different but for the trial court’s errors.”

Id. , citing State v. Waddell , 75 Ohio St.3d 163, 166 (1996), citing State v. Moreland ,Case No. 16-19-07

-7- 50 Ohio St.3d 58, 63 (1990). Plain error is recognized “‘with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.’” State v. Landrum , 53 Ohio St.3d 107 , 110 (1990), quoting State v. Long , 53 Ohio St.2d 91 (1978), paragraph three of the syllabus. {¶13} Addressing whether Sgt. Banta was qualified as an expert witnes s by the trial court, our review of the record reveals that the Stat e did not ask the trial court to formally recognize Sgt. Banta as an expert witness pri or to eliciting his opinion testimony. ‘While it is preferable for the trial court to explicitly find that a witness qualifies as an expert, where the testimony of a witness relate s to knowledge beyond the scope of a lay person, we can infer from the record that the trial court found the witness to be an expert, and th e question thus becomes whether the witness was properly qualifie d as an expert.’ (Emphasis added.) LaBounty v. Big 3 Automotive , 6th Dist. Ottawa No. OT-18-022, 2019-Ohio-1919, ¶ 59, quoting State v. Michalek , 5th Dist. Stark No. 2010CA00186, 2011-Ohio-1628, ¶ 34. “In order to qualify as an expert, an expert ‘must demonstrate some knowledge on the particular subject supe rior to that possessed by an ordinary juror.’” Id. , quoting Scott v. Yates , 71 Ohio St.3d 219, 221 (1994), citing State Auto Mut. Ins. Co. v. Chrysler Corp. , 36 Ohio St.2d 151, 160 (1973). See Evid.R. 702(A). {¶14} Importantly, Rozikov never requested that Sgt. Banta be subject ed to

voir dire as to his qualifications, and did not request the trial court engage in aCase No. 16-19-07

-8- Daubert analysis on the record prior to permitting him to testify as an expert witness. (Aug. 22, 2019 Tr., Vol. II, 277-471). {¶15} Here, Sgt. Banta testified that he is the supervisor for the Oh io State Highway Patrol District Post in Bucyrus which covers nine count ies and seven posts, including Wyandot County. ( Id. at 280). He testified that he oversees vehicle-crash-reconstruction investigations as a certified-cras h investigator. ( Id. ). Sgt. Banta detailed his experience in the investigations of fat al- and serious-injury crashes. ( Id. ) Further, he testified that he instructs cadets, trainees, an d outsidelaw-enforcement agencies in crash-investigation courses. ( Id. ). {¶16} In light of Sgt. Banta’s specialized knowledge of the reconstru ction of crash investigations for which he holds a certification and his investigative experience with fatality- and serious-injury crashes, we conclu de that the trial court did not err by permitting Sgt. Banta to testify as an expert un der Evid.R. 702(A) and (B). See LaBounty at ¶ 59. See also Evid.R. 702(A), (B). {¶17} Next, we address the admissibility of Sgt. Banta’s testimony as to the issue of the area-of-impact of the crash and impeding the right -of-way of another vehicle. To be admissible, we must determine such testimony to be both relevant

and reliable. 4 Miller v. Bike Athletic Co. , 80 Ohio St.3d 607, 611 (1998), citing

4 Because Rozikov does not challenge the admissibility of the Sg t. Banta’s expert testimony under Evid.R. 401, 402 and 403, we need only address whether it was reliable under Evid.R. 702. We do, however, note that Rozikov cites State v. Benson , 1st Dist. Hamilton No. C-180128, 2019-Ohio-3255, for the prop osition that expert testimony as to the ultimate issue “violates the te nets of Ohio law regarding expert testimony”.Case No. 16-19-07

-9- Daubert , 509 U.S. at 579, 113 S.Ct. at 2786. “Evid.R. 702 ‘vest[s] th e trial court with the role of gatekeeper’ and part of ‘[t]his gatekeeping fu nction imposes an obligation upon a trial court to assess * * * the reliability o f an expert’s methodology.’” City of Brook Park v. Rodojev , ___ Ohio St.3d ___, 2020-Ohio3253, ¶ 24, (Kennedy, J. dissenting), quoting Terry v. Caputo , 115 Ohio St.3d 351, 2007-Ohio-5023, ¶ 24. {¶18} In evaluating the scientific reliability of an expert, a trial court applies

the factors set forth in Daubert, 509 U.S. 579, 113 S.Ct. 2786:

The trial court should first assess whether the method or theor y relied upon has been tested. [ Daubert ] at 593, 113 S.Ct. 2786, 125 L.Ed.2d 469. Next, it should consider whether the theory has been the s ubject of peer review, and then whether the method has a known or pote ntial error rate. Id. at 593-594, 113 S.Ct. 2786, 125 L.Ed.2d 469. Finally, Daubert instructs trial courts to look at whether the theory has gaine d general acceptance in the scientific community. Id. at 594, 113 S.Ct. 2786, 125 L.Ed.2d 469. None of these factors, of course, is dis positive of the inquiry, and when gauging the reliability of a given exp ert’s testimony, trial courts should focus “solely on principles and methodology, not on the conclusions” generated. Id. at 595, 113 S.Ct. 2786, 125 L.Ed.2d 469.

(Appellant’s Brief at 10). Unlike Benson , Rozikov did not challenge whether Sgt. Banta’s ultimate-issue testimony as to the area-of-impact or the impeding of the right -of-way was appropriate and would carry the risk of being unfairly prejudicial, confusing the issues, or mi sleading the jury under Evid.R. 403. Id. at ¶ 20, citing Schaffer v. Ward , 17 Ohio St.3d 79, 81 (1985). Benson notes that the First District Court of Appeal’s decisions on ultimate-issue testimony have varied depending on a fact-intensive determination as to whether there were conflicting, independent eyewitnesses, or audio/visu al evidence. Id. , (citations omitted.) Here, Rozikov is more likened to Schaffer where there were no independent eyewitnesses to the crash itse lf (a fact Rozikov concedes) as compared with Benson where the crash was recorded by surveillance cameras in the vicinity of the crash. Id. ; (Appellant’s Brief at 14), (“However, no person directly obse rved the accident and [Sgt. ]Banta’s opinion is no more credible than [N.] Marsalek’s testimony referenced above.”)Case No. 16-19-07

-10- Id. , quoting Caputo at ¶ 25, quoting Daubert 509 U.S. at 595, 113 S.Ct. 2786. The Supreme Court of the United States later clarified the Daubert -reliability standard by extending it to all experts and not just those offering scie ntific testimony. Kumho Tire Co., Ltd. v. Carmichael , 526 U.S. 137, 147-149, 119 S.Ct. 1167, 1174-1175 (1999). “The reliability inquiry is a flexible one, and the sp ecific factors enumerated

in Daubert do not all necessarily apply in every instance.” LaBounty , 2019-Ohio1919, at ¶ 59 citing Kumho , 526 U.S. at 150-151, 119 S.Ct. at 1173-1174. “Thus,

scientific studies are not the exclusive means to establish rel iability under Daubert

. Rather, ‘the relevant reliability concerns may focus upon perso nal knowledge or experience.’” Id. at ¶ 64, citing Kumho , 526 U.S. at 150, 119 S.Ct. at 1175. {¶19} Here, the assumptions made by Sgt. Banta as to the area-of-impa ct and to the impeding of the right-of-way were based on facts support ed by the record. Sgt. Banta testified that he was not on duty on July 1, 2017, b ut he was called to the crash scene by Ohio State Highway Patrol Trooper, Sergeant Sean E. Carpenter (“Sgt. Carpenter”) due to the serious nature of the crash. (Au g. 22, 2019 Tr., Vol. II, at 281). Sgt. Banta testified that upon arrival at the cra sh scene he spoke with the first responders present. 5 ( Id. at 282). According to Sgt. Banta, it was brought to his attention that Rozikov was operating a semi-truck and tr ailer and was

5 The first law enforcement agency to respond to the crash scene was the Wyandot County Sheriff’s Department with emergency medical squads followed by the Ohio S tate Highway Patrol. (Aug. 21 Tr., Vol. I, at 152, 190).Case No. 16-19-07

-11- attempting to make a U-turn from U.S. Route 23 north onto U.S. Route 23 South when the accident occurred. ( Id. ). {¶20} Sgt. Banta’s on-the-scene investigation also included walking t he scene taking pictures of the vehicles, roadway, evidence, and t he area leading up to the crash. ( Id. at 282-283). At trial, Sgt. Banta testified to his process fo r taking forensic measurements of the crash scene through the use of a T otal Robotics Station (“TRS”). ( Id. at 283). After obtaining the needed measurements through the use of the TRS, Sgt. Banta checked with the other law-enforcement offi cers at the crash

scene to discover what was known about the crash at that time. ( Id. ). Sgt. Banta

further testified that when he formulated his crash-reconstruct ion report, he considered the evidence he reviewed, including 215 photographs, witness statements, and the Ohio-State-Highway-Patrol-Traffic-Crash Rep ort. ( Id. at 284). {¶21} After consideration of the gouge marks of Kujawa’s vehicle, flu ids discarded from the vehicles, scuff marks of Rozikov’s vehicle, and crash debris, Sgt. Banta testified that the area-of-impact of the vehicles oc curred in the righthand-driving lane of U.S. Route 23 northbound. ( Id. at 289-290). {¶22} Sgt. Banta testified further that he was able to recover the fr ont left headlight of Kujawa’s SUV noting that the coils were evenly spa ced and generally in a straight line indicating that Kujawa’s SUV’s lights were i ncandescent (i.e., illuminated) at the time of the crash. ( Id. at 291-292).Case No. 16-19-07

-12- {¶23} According to Sgt. Banta and in addition to the foregoing, Kujaw a’s SUV had two computer modules (i.e., Powertrain Control Module ( “PCM”) and Restraint Control Module (“RCM”)) that provided precrash inform ation as a result of an algorithm triggered by a sudden change in forward velocit y resulting in the deployment of Kujawa’s air bag. ( Id. at 293-295). (State’s Exs. 2, 7). Sgt. Banta testified that Kujawa’s SUV’s computer modules yielded data poi nts of precrash information including vehicle speed, braking, revolutions per m inutes (“RPMs”), and whether or not the automatic brake system (“ABS”) was activ e leading up to the computer-modules’ decisions regarding deployment of the air bag. 6 ( Id. at 295). Sgt. Banta testified Kujawa’s vehicle reported a speed of 67mph as to the first data point (after the computer-modules’ decisions regarding deployme nt of the airbag) and 55mph as to the last data point (five seconds later). ( Id. at 296). {¶24} Notably, Rozikov offered no expert witness in opposition to Sgt

. Banta’s methodology or theories, no peer-reviewed publications dispelling Sgt. Banta’s methodology or theories, and no witnesses to testify as to whether Sgt. Banta’s methodology or theories had not gained general acceptan ce in the scientific community. See Evid.R. 702. See also Daubert, 509 U.S. at 579, 113 S.Ct. at 2786.

6 Sgt. Banta testified that on the date he wrote the initial-cra sh-reconstruction report that he had taken the training course to obtain the precrash data from the modules, b ut not to interpret the data. (Aug. 22, 2019 Tr., Vol. II, at 313). However, after obtaining the additional training to interpret the data, Sgt. Banta issued a supplemental-crash-reconstruction report. ( Id. at 313-314). Both reports were admitted into evidence in the trial court. (States Exs. 1, 2)Case No. 16-19-07

-13- Moreover, Evid.R. 703 provides that “[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perc eived by the expert or admitted in evidence at the hearing.” Evid.R. 703. “[W]her e an expert bases his opinion, in whole or in major part, on facts or data perceived by him, the requirement

of Evid.R. 703 has been satisfied.” State v. Solomon , 59 Ohio St.3d 124, 126 (1991), citing Evid.R. 703. Additionally, Evid.R. 704 provides that “[ t]estimony in the form of an opinion or inference otherwise admissible is not objectio nable solely because it embraces an ultimate issue to be decided by the trier of fac t.” Evid.R. 704. {¶25} The record reveals that Sgt. Banta obtained information from hi s investigation and data from the computer modules of Kujawa’s ve hicle. (Aug. 22, 2019 Tr., Vol. II, at 293-300). It was from this information a nd data that Sgt. Banta formulated his opinions as to the area-of-impact of the crash a nd whether Rozikov was impeding Kujawa’s SUV’s right-of-way when the crash occurre d. ( See id. at 300). See also Evid.R. 703, 704, 705. Thus, his testimony as to the area-of- impact and as to impeding the right-of-way in a crash is permissible u nder Evid.R. 703 and

704. See Schaffer v. Ward , 17 Ohio St.3d 79, 81 (1985), citing Evid.R. 704. Moreover, based upon the evidence and data collected by Sgt. Ba nta from his crash investigation, his extensive professional-experience investigat ing fatality- and serious-injury crashes, and his certification as a crash invest igator, we conclude thatCase No. 16-19-07

-14- Sgt. Banta’s testimony was based upon reliable technical eviden ce under Evid.R. 702(C). {¶26} Accordingly, by determining Sgt. Banta to be an expert witness, we cannot conclude that the trial court deviated from some legal r ule, with an obvious defect in the proceeding, that affected Rozikov’s substantial r ights. Thus, we find that no plain error exists which has caused a manifest miscarri age of justice in the

case sub judice

. {¶27} Accordingly, we overrule Rozikov’s first assignment of error. Assignment of Error No. II The Jury’s Verdicts [sic] Were Against The Manifest Weight Of The Evidence (Judgment Entry, PP 1-4) [sic] {¶28} In his second assignment of error, Rozikov argues that the jury ’s verdict as to Rozikov’s vehicular-homicide conviction is agains t the manifest weight of the evidence. 7 For the reasons that follow, we disagree. Standard of Review {¶29} An appellate court’s function when reviewing the weight of the evidence is to determine whether the greater amount of credible evidence supports

7 On appeal and in his second assignment of error as to manifest weight of the evidence, Rozikov intertwines sufficiency-of-the-evidence and manifest-weight arguments. (Ap pellant’s Brief at 13-14). The “Assignment of Error” section of his brief and the standard of review in hi s argument both identify manifest weight of the evidence as his focus; however, he concludes his argument by st ating that “the [S]tate failed to present sufficient evidence that the defendant was negligent in this ca se.” The bulk of his argument; nevertheless, relates to the weight that the jury gave Sgt. Banta’s testimony (an expert witness) which he asserts contradicted N. Marsalek’s testimony (a witness present at the scene of the crash immediately following the impact) and photographs introduced into evidence. Taking into account that we are to determine appeals onCase No. 16-19-07

-15- the verdict. Eastley v. Volkman , 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 12; State v. Thompkins , 78 Ohio St.3d 380, 387 (1997), superseded by statute on other grounds , State v. Smith , 80 Ohio St.3d 89 (1997). In doing so, this Court must review the entire record, weigh the evidence and all of the rea sonable inferences, consider the credibility of witnesses, and determine whether in resolving conflicts in the evidence, the factfinder “clearly lost its way and creat ed such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” Thompkins , 78 Ohio St.3d at 387. Analysis {¶30} In this case, Rozikov was convicted of vehicular homicide in vi olation of R.C. 2903.06, which provides in its pertinent parts (A) No person, while operating or participating in the operation of a motor vehicle, * * * shall cause the death of another * * * in any of the following ways:

* * * (3) In one of the following ways: (a) Negligently;

* * * (C) Whoever violates division (A)(3) of this section is guilty of vehicular homicide. Except as otherwise provided in this divisi on, vehicular homicide is a misdemeanor of the first degree. * * *.

the merits of the assignments of error set forth under App.R. 1 6, we will review his second assignment of error as a manifest-weight-of-the-evidence argument consistent with his assignment of error, identified standard of review, and issue he is asking this court to resolv e.Case No. 16-19-07

-16- * * * In addition to any other sanctions imposed pursuant to this div ision, the court shall impose upon the offender a class four suspensio n of the offender’s driver’s license, commercial driver’s license, * * * from the range specified in division (A)(4) of section 4510.02 of th e Revised Code, * * *. R.C. 2903.06(A)(3)(a), (C). {¶31} In order to prove that Rozikov committed the charged offenses, the State called six witnesses. The jury heard evidence from Nicho las D. Marsalek (“N. Marsalek”), an eye witness to the crash scene immediately follo wing the impact. (Aug. 21, 2019 Tr., Vol. I, at 111). N. Marsalek testified tha t while preparing to pass Rozikov’s semi-truck and trailer (because Rozikov was trav eling slower than the posted-speed limited), he observed Rozikov make a left turn from the right lane of U.S. Route 23 north. ( Id. at 112-114). According to N. Marsalek, after Rozikov turned left, he and his father, Daniel F. Marsalek (“D. Marsale k”) observed that a crash had taken place. 8 ( Id. at 114). {¶32} Next the State presented the testimony of D. Marsalek, N. Marsa lek’s father. ( Id. at 122). D. Marsalek testified that he was the front seat pas senger in the vehicle that his son was driving. ( Id. ). He testified that Rozikov’s semi-truck and trailer was “not going the speed limit” when the truck made an abrupt left turn from the right lane of U.S. Route 23 north without a turn signal. ( Id. at 123-124). This

8 N. Marsalek testified that he did not see the crash impact, ju st the aftermath. (Aug. 21, 2019 Tr., Vol I, at 117, 120).Case No. 16-19-07

-17- turn by Rozikov was so abrupt that D. Marsalek testified that h e was concerned there was something on the right side of the road that caused the sem i-truck-and-trailer driver to turn. ( Id. at 128). According to D. Marsalek, as they got closer, he cou ld see that the semi-truck and trailer was stopped in the middle o f the intersection, and there had been a crash. ( Id. at 125). He then instructed his son to pull over, called 911, and attempted to render assistance. ( Id. ). On cross-examination, D. Marsalek testified that Rozikov’s semi-tractor and trailer did not jackk nife, it just made a quick turn. ( Id. at 132). {¶33} The State’s next witness was James R. Patrick, M.D. (“Dr. Patri ck”). Dr. Patrick testified that he is currently retired, but was the coroner and chiefforensic pathologist of Lucas County, Ohio in July 2017 and con ducted the autopsy of Kujawa. ( Id. at 143). Dr. Patrick testified that Kujawa’s manner of deat h was accidental and that her cause of death was multiple-blunt-force trauma. ( Id. at 144- 145, 148). He testified that Kujawa sustained significant ches t injuries including a partial-lung collapse; a fracture of her spine; and lacerations to her liver and spleen as well as a laceration of the kidney. ( Id. at 145). {¶34} On cross-examination, Dr. Patrick testified that even though it is possible for someone (like Kujawa in the instant case) who has coronary-artery disease to have bouts of dizziness or unconsciousness, an autop sy is not designed toCase No. 16-19-07

-18- answer the question of whether Kujawa was suffering from this p rior to the accident. ( Id. at 146-147). {¶35} The State’s next witness was Ohio State Highway Patrol Trooper, Ashley Keller (“Tpr. Keller”). ( Id. at 149-150). Tpr. Keller was dispatched to investigate an injury crash at the intersection of U.S. Route 2 3 and County Road 42, in Salem Township, Wyandot County, Ohio in July 2017. ( Id. at 150-151). While on scene, she took photos and completed a field sketch. ( Id. at 152). After conversing with another law-enforcement officer, Tpr. Keller is sued the driver of the semi-tractor and trailer (Rozikov) a citation (at the crash scene) for a violation of R.C. 4511.39 (i.e., Turn and stop signals) for maneuvering w ithout regard to everyone else’s safety. ( Id. at 152-154, 156). Tpr. Keller testified that after she explained why Rozikov was being cited for the crash “[h]e said that he had pulled

off on the shoulder and then turne d onto Co unty Road 42 to make a wide left turn so he could go through the median to turn southbound” onto U.S. Route 23 south. ( Id. at 155). Tpr. Keller went on to testify that Rozikov relayed to her he was off the traveled portion of the road (i.e. on the shoulder of Count y Road 42). ( Id. ). {¶36} On cross-examination, Tpr. Keller testified that she had been a State Trooper since March 2017, and this was her first crash fatalityinvolving a semitruck and trailer. ( Id. at 158). Importantly, Tpr. Keller testified that she believesCase No. 16-19-07

-19- that the semi-truck and trailer was moved after the crash based on the markings on the road (i.e., two tire scuffs) from Rozikov’s trailer. ( Id. at 177-178). {¶37} On redirect-examination, Tpr. Keller, testified that both the s emi-truck and trailer and the SUV were primarily in the passing lane. ( Id. at 181). Further, Tpr. Keller testified that Rozikov told her that “he drove off the shoulder slightly onto County Road 42 in order to make the turn.” ( Id. at 187). {¶38} Next, the State called Sgt. Carpenter. ( Id. at 189). Sgt. Carpenter testified that on July 1, 2017 he was the supervisor of Ohio St ate Highway Patrol Post in Bucyrus, Ohio for the afternoon shift. ( Id. at 189, 194). According to Sgt. Carpenter, he was dispatched to a two-vehicle crash on U.S. Rou te 23 involving a commercial vehicle and another vehicle. ( Id. at 190). Sgt. Carpenter arrived on the

crash scene 21 minutes after be ing dispatc hed. ( Id. at 190-191). Upon his arrival, Sgt. Carpenter observed Rozikov’s semi-tractor and trailer posi tioned partially in the left-northbound lane of U.S. Route 23 and partially in the left-southbound lane of U.S. Route 23. ( Id. at 192). Sgt. Carpenter testified that he spoke with Rozikov who told him that he had pulled off to the right shoulder of U. S. Route 23 to stop and after permitting several cars to pass by him northbound, he turned the tractor part of his semi-truck over onto County Road 42 (the road inter secting with U.S. Route 23). ( Id. at 192-193, 196-197). Sgt. Carpenter further testified that R ozikov told him that he then made a U-turn across both right and left lanes of northboundCase No. 16-19-07

-20- traffic in U.S. Route 23 traveling two-to-three mph. ( Id. at 193, 197). Sgt. Carpenter testified that after the attempted U-turn, Rozikov st ated that he felt an impact to his trailer. ( Id. at 196, 196-197). Sgt. Carpenter testified that Rozikov did not use due care when operating his commercial vehicle, and that Rozikov should have gone up four exits where he could safely turn aroun d to travel southbound onto U.S. Route 23. ( Id. at 202). {¶39} On cross-examination, Sgt. Carpenter testified he was the lead- crash investigator and not the reconstructionist. ( Id. at 223). He testified that his investigation supports that the semi-truck and trailer was movi ng at the time of impact, and that Kujawa’s SUV was traveling at the posted speed limit and that there were no skid marks from her vehicle. ( Id. at 229-230). On redirectexamination, Sgt. Carpenter testified that Kujawa had the right -of-way. ( Id. at 257- 262). {¶40} The State’s last witness was Sgt. Banta. (Aug. 22, 2019 Tr., V ol. II, at 279). Because we discussed the majority of Sgt. Banta’s tes timony in Rozikov’s first assignment of error, and for the sake of brevity, we need only address evidence elicited during Sgt. Banta’s cross- and redirect-examinations. {¶41} On cross-examination, Sgt. Banta testified that his crashreconstruction report did not consider the weight of the semi-t ractor, the angle of impact, the semi-tractor and trailer’s turning radius or Roziko v’s reaction time toCase No. 16-19-07

-21- impact. ( Id. at 301-302, 303). Nevertheless, Sgt. Banta testified that the re was no need to know the weight differences between the semi-tractor an d trailer and the

SUV because momentum calculations are irrelevant to his investi gation. ( Id. at 334). Further, on redirect-examination, Sgt. Banta testified t hat the weight of the tractor itself would not have made a difference in his report b ecause such weight would not impact the scuff marks. ( Id. at 337). {¶42} Rozikov testified as the only witness for the defense. ( Id. at 355-356). Rozikov testified that he has been driving semi-trucks and trai lers since 2011, and that he had never been involved in a serious accident. ( Id. at 356-358). He testified that at the time of the accident he was driving a semi-truck pu lling a 53-foot trailer that weighed 20,000 pounds, hauling loaded pallets that weighed approximately 9,000 pounds. ( Id. at 358-359). According to Rozikov, he saw a Love’s Truck Stop on U.S. Route 30; however, he missed the turn to the exit and w as forced to merge onto U.S. Route 23. ( Id. at 361). So, after missing his exit, he continued on U.S.

Route 23 northboun d looking for an intersecti on to make a U-tur n onto U.S. Route 23 south. ( Id. ). {¶43} Rozikov testified that just prior to executing his U-turn (from U.S. Route 23 north to U.S. Route 23 south) he was initially in the right lane, but pulled over onto the shoulder of the road for a short time to permit t he cars behind him to pass. ( Id. at 366-367). He testified that five vehicles passed him while waiting toCase No. 16-19-07

-22- turn. ( Id. at 368). Rozikov testified that when he turns the semi-truck and trailer the trailer does not always travel the same path so he turned o nto State Route 42 (an intersecting road with U.S. Route 23) so his trailer would not end up in the median. ( Id. at 368-371). Rozikov testified that before he executed this U -turn he saw only one vehicle on the roadway 500 feet or maybe a mile away, and t hat he did not make a U-turn from the right-hand lane of U.S. Route 23. ( Id. at 376-377). Further, he testified that he could not pull onto U.S. Route 23 southbound because he was waiting for a car to pass by (in the left lane on U.S. Route 23 southbound) when he felt the impact, which he observed through his mirror. ( Id. at 377-378). He testified that after the impact he exited the cab of the semi-tractor and trailer and ran to render assistance because the SUV was smoking. ( Id. at 378). {¶44} Rozikov testified that he attempted to open the driver’s-side d oor, but it would not open, so upon seeing children in Kujawa’s vehicle, he opened their door. ( Id. ). After the children exited the vehicle, he was asked to step aside by passersby. ( Id. at 379). Rozikov testified that he walked to the end of his t railer and called his wife to tell her there had been a crash. ( Id. at 380). {¶45} Rozikov testified that after law enforcement arrived, Sgt. Carp enter put him in the back of his cruiser to write a statement. ( Id. at 387). Rozikov asked Sgt. Carpenter if he could take pictures, but after (his reques t) he observed Sgt. Carpenter and other law enforcement officers sweeping the crash debris into oneCase No. 16-19-07

-23- location. ( Id. at 386-387). Rozikov testified that he was unable to take pho tos of the scene of the crash before the crash debris was swept. ( Id. at 387). Rozikov stated that he was instructed by his company to take “a thousan d pictures”. ( Id. ). Nevertheless, Rozikov was able to take about 30 pictures of the crash scene. ( Id. at 388). Rozikov also testified that the SUV hit the axle of his trailer, and the fluid on the ground was from his semi-tractor-and-trailer axle. ( Id. at 389-390). {¶46} On cross-examination, Rozikov testified that he never moved the semi-tractor and trailer after the crash, and that his semi-tra ctor was protruding into

the left lane of U.S . Route 23 s outhbound . ( Id. at 391-392) . Rozikov t estified that Kujawa’s SUV and its debris was positioned by the semi-tractor and trailer, but not where they were ultimately photographed. ( Id. at 404-405). However, he testified that it was his responsibility, because of the size and weight of his vehicle, to be more careful in the operation of his vehicle. ( Id. at 406). {¶47} On appeal, Rozikov argues that the testimony of N. Marsalek (a lay witness) contradicts Sgt. Banta’s report (that Rozikov’s semi-t ruck and trailer was moved post-crash) rendering Sgt. Banta’s expert opinion suspectas to the area-ofimpact and the impeding of the right-of-way issues. However, t he record contains the following exchange (at trial) between Rozikov’s trial couns el and N. Marsalek,

which addresses this issue:Case No. 16-19-07

-24- [Rozikov’s Trial Counsel]: Okay. Isn’t it true you did not see the truck move after the impact? [N. Marsalek]: I cannot remember. [Rozikov’s Trial Counsel]: Okay. You cannot remember. [N. Marsalek]: If it moved after the impact. [Rozikov’s Trial Counsel]: Okay. And if I were to play that ta pe for you, would you be surprised to say -- or to hear that you testified -- you told the adjustor that you did not see

the truck move after the accident? [N. Marsalek]: I don’t think I would be surprised --. [Rozikov’s Trial Counsel]: Okay. [N. Marsalek]: -- due to how long it’s been since then. [Rozikov’s Trial Counsel]: Okay. So is it fair to say you coul d not

have seen the truck move after the

accident. [N. Marsalek]: I – I can’t say. (Aug. 21, 2019 Tr. Vol. I, at 116). Thus, N. Marsalek’s testim ony did not contradict Sgt. Banta’s expert testimony or the evidence submitted to the jury.Case No. 16-19-07

-25- {¶48} Nevertheless, even if N. Marsalek’s testimony did contradict Sg t. Banta’s expert opinion as to the area-of-impact and the impedin g of the right-ofway, it is within the province of the jury to evaluate the cred ibility of the witnesses in light of any inconsistent or contradictory testimony. See State v. Hernandez , 8th Dist. Cuyahoga No. 104976, 2018-Ohio-738, ¶ 29, (“The jury hear d the direct testimony and cross-examination of all witnesses, thus the memb ers of the jury were in the best position to determine the credibility of each witne ss in light of any inconsistent or contradictory testimony”). Accordingly, based on the facts before us, it was within the province of the jury to determine the Sta te’s witnesses’ testimony to be more credible than Rozikov’s testimony. See State v. Wareham , 3d Dist. Crawford No. 3-12-11, 2013-Ohio-3191, 2013 WL 3832028, ¶ 25, (“jurors are entitled to believe the testimony offered by the State’s witnes ses”). {¶49} After our review of the record and for these reasons, we cannot conclude that the jury lost its way by determining that Rozikov while operating a motor vehicle negligently caused the death of Kujawa and create d such a manifest miscarriage of justice that Rozikov’s vehicular-homicide convic tion must be

reversed and a new trial ordered. {¶50} Accordingly, Rozikov’s second assignment of error is overruled.Case No. 16-19-07

-26- {¶51} Having found no error prejudicial to the appellant herein in th e particulars assigned and argued, we affirm the judgment of the trial court. Judgment Affirmed PRESTON and WILLAMOWSKI, J.J., concur. /jlr