State v. Witwer - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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The State of Ohio, Appellant, v. Witwer, Appellee.
[Cite as State v. Witwer (1992), Ohio St.3d .]
Criminal procedure -- Penalties and sentencing -- Court of
common pleas may impose indefinite term of incarceration
prescribed by R.C. 2929.11(B)(7), when.
A court of common pleas may impose the indefinite term of
incarceration prescribed by R.C. 2929.11(B)(7) where an
accused has been convicted of a fourth degree felony the
commission of which caused physical harm to any person,
provided the indictment which initiated the criminal
proceeding contains the specification contained in R.C.
2941.143 and the accused was convicted thereon.
(No. 91-1052 -- Submitted July 8, 1992 -- Decided August
19, 1992.)
Certified by the Court of Appeals for Licking County, No.
CA-3587.
At approximately 2:00 p.m. on March 20, 1989,
defendant-appellee, John Witwer, departed from his home in
Lexington, Ohio, operating a 1988 Dodge Dakota pickup truck.
Appellee was accompanied by his wife and daughter, who were
passengers in the vehicle. Their destination was Lithopolis,
Ohio, where they planned to visit Mrs. Witwer's parents. Under
usual circumstances, appellee would have travelled Interstate
Route 71 as far as Columbus, but because road repairs were
underway on that stretch of highway, appellee chose to proceed
from Lexington through Mount Vernon on Ohio Route 13 to Ohio
Route 661 southbound. Ohio Route 661 southbound terminates in
Granville, Ohio. (See Appendix.) [* The Appendix is a map and
is not available through electronic transmission *].
At approximately 1:30 p.m. on May 20, 1989, Rebecca
Roberts was engaged in her employment as a waitress for the
Alladin Restaurant in Granville when she was visited by her
daughter, Gail Durham, and Gail's friend, Joan Howard, who had
travelled from Columbus to Granville to visit Mrs. Roberts. At
2:30 p.m., Mrs. Roberts completed her work schedule and decided
to accompany Durham and Howard on visits to garage sales held
around the Granville area. Thereafter, they returned to the
restaurant, where Mrs. Roberts retrieved her automobile and
followed the Chevrolet Cavalier driven by Durham toward the

home of Mr. and Mrs. Roberts. The route to the Roberts
residence involved a left turn from College Street to Route 661
northbound.
Route 661 southbound immediately north of Granville is a
two-lane road traversing rolling terrain in Licking County.
The road ascends from where it is intersected by Dry Creek Road
from the east to a high point at Cambria Mill Road, which also
intersects Route 661 from the east. South of Dry Creek Road,
Route 661 southbound descends from Cambria Mill Road toward the
village of Granville. (See Appendix.) A passing zone extends
from Dry Creek Road southbound on Route 661 for approximately
one-tenth of a mile. Thereafter, for the succeeding four
miles, Route 661 southbound is a no-passing zone. For at least
one-quarter of a mile north of Dry Creek Road, Route 661
southbound is also a no-passing zone.
At approximately 4:00 p.m. on May 20, 1989, Maxine Hull
was driving her automobile southbound on Route 661. Her
husband and two granddaughters were passengers in the vehicle.
During this time she was following a truck which was pulling a
horse trailer. The truck was operated by Theodore Current. As
she proceeded along Route 661, Mrs. Hull noticed that the blue
pickup truck driven by appellee had passed a gray automobile
travelling behind her despite the fact that a double yellow
line on the pavement indicated that the area was a no-passing
zone. Thereafter, the pickup truck passed the Hull vehicle in
the no-passing zone and pulled between it and the horse trailer.
Immediately after entering the right lane, appellee
reemerged into the left lane to pass the horse trailer as both
vehicles approached Dry Creek Road. Stopped at the
intersection at Route 661 on Dry Creek Road was a vehicle
operated by Lori Kinman. While the pickup truck operated by
appellee and the horse trailer operated by Current occupied
both lanes of Route 661, Kinman made a left turn from Dry Creek
Road to southbound Route 661 approximately one-quarter of a
mile south of the approaching vehicles. After Kinman's entry
onto Route 661 southbound, appellee briefly pulled behind the
Kinman vehicle. Thereafter, appellee pulled out across a
double yellow line into the left lane and collided head-on with
the Cavalier operated by Durham in the northbound lane of Route
661. Although appellee applied his brakes prior to impact, his
speed at that time was estimated to be between fifty-seven and
sixty-two miles per hour. As a result of the collision, Durham
suffered severe trauma to her heart and brain, resulting in her
death.
On October 13, 1989, appellee was indicted by the Licking
County Grand Jury on one count of aggravated vehicular homicide
in violation of R.C. 2903.06. The indictment further included,
pursuant to R.C. 2941.143, a specification that, during the
commission of the offense, appellee caused physical harm to
Gail Durham. A jury trial commenced in the Licking County
Common Pleas Court on July 19, 1990. Following trial, the jury
returned a verdict of guilty on the underlying offense of
aggravated vehicular homicide. Thereafter, the trial court
found appellee guilty on the specification. Appellee was
subsequently sentenced to a term of incarceration of two and
one-half to five years.
Upon appeal, the court of appeals reversed the trial court

-- concluding that, inasmuch as the specification was subsumed
within the underlying offense, a conviction predicated thereon
constituted a violation of due process of law. Finding its
decision to be in conflict with the decisions of the Court of
Appeals for Cuyahoga County in State v. Kavlich (1986), 33 Ohio
App.3d 240, 515 N.E.2d 652, and State v. Runnels (1989), 56
Ohio App.3d 120, 565 N.E.2d 610, the appellate court certified
the record of the case to this court for review and final
determination.

Robert L. Becker, Prosecuting Attorney, and Kenneth W.
Oswalt, for appellant.
John W. Witwer, pro se.

Sweeney, J. Appellee herein was convicted of a violation
of R.C. 2903.06. At the time of the offense, this section
provided in relevant part:
"(A) No person, while operating or participating in the
operation of a motor vehicle, motorcycle, snowmobile,
locomotive, watercraft, or aircraft, shall recklessly cause the
death of another.
"(B) Whoever violates this section is guilty of aggravated
vehicular homicide, a felony of the fourth degree.1 If the
offender has previously been convicted of an offense under this
section or section 2903.07 of the Revised Code, aggravated
vehicular homicide is a felony of the third degree." (Footnote
added.)
The penalties for commission of a fourth degree felony are
set forth in R.C. 2929.11. R.C. 2929.11(D) provides as follows:
"(D) Whoever is convicted of or pleads guilty to a felony
of the third or fourth degree and did not, during the
commission of that offense, cause physical harm to any person
or make an actual threat of physical harm to any person with a
deadly weapon, as defined in section 2923.11 of the Revised
Code, and who has not previously been convicted of an offense
of violence shall be imprisoned for a definite term, and, in
addition, may be fined or required to make restitution. The
restitution shall be fixed by the court as provided in this
section. If a person is convicted of or pleads guilty to
committing, attempting to commit, or complicity in committing a
violation of section 2909.03 of the Revised Code that is a
felony of the third or fourth degree and is sentenced pursuant
to this division, he shall be required to reimburse agencies
for their investigation or prosecution costs in accordance with
section 2929.28 of the Revised Code.
"The terms of imprisonment shall be imposed as follows:
"(1) For a felony of the third degree, the term shall be
one, one and one-half, or two years;
"(2) For a felony of the fourth degree, the term shall be
six months, one year, or eighteen months." (Emphasis added.)
Thus, R.C. 2929.11(D), as relevant here,2 provides that
one convicted of a fourth degree felony during which he does
not "cause physical harm to any person" is to be sentenced to
the definite term of incarceration set forth in subsection
(D)(2) thereof. R.C. 2929.11(D) therefore implicitly provides
that the commission of a fourth degree felony which does "cause
physical harm" will subject a convicted defendant to the

indefinite term of incarceration provided in R.C.
2929.11(B)(7). This interpretation of R.C. 2929.11(D) is
underscored by reference to R.C. 2929.11(B)(7), which provided:
"(B) Except as provided in division (D) of this section,
section 2929.71, and Chapter 2925. of the Revised Code, terms
of imprisonment for felony shall be imposed as follows:
"***
"(7) For a felony of the fourth degree, the minimum term
shall be eighteen months, two years, thirty months, or three
years, and the maximum term shall be five years." (Emphasis
added.)
Accordingly, where an accused commits a fourth degree
felony causing physical harm he is eligible to be sentenced
pursuant to R.C. 2929.11(B)(7). However, R.C. 2941.143, as
relevant here, prescribes that, before one may be sentenced to
the term of incarceration provided in R.C. 2929.11(B)(7), the
indictment must have contained a specification stating that the
accused caused physical harm in the course of committing a
fourth decree felony. In this regard R.C. 2941.143 provides:
"Imposition of an indefinite term pursuant to division
(B)(6) or (7) of section 2929.11 of the Revised Code is
precluded unless the indictment, count in the indictment, or
information charging the offense specifies either that, during
the commission of the offense, the offender caused physical
harm to any person or made an actual threat of physical harm to
any person with a deadly weapon, as defined in section 2923.11
of the Revised Code, or that the offender has previously been
convicted of or pleaded guilty to an offense of violence. Such
a specification shall be stated at the end of the body of the
indictment, count, or information and shall be in substantially
the following form:
"'Specification (or, Specification to the First Count).
The grand jurors (or insert the person's or the prosecuting
attorney's name when appropriate) further find and specify that
(set forth the allegation either that, during the commission of
the offense, the offender caused physical harm to any person,
or made an actual threat of physical harm to any person with a
deadly weapon, or that the offender has previously been
convicted of or pleaded guilty to an offense of violence).'"
(Emphasis added.)
Accordingly, an accused may be sentenced to the indefinite
term of incarceration provided by R.C. 2929.11(B)(7) only where
he has been convicted pursuant to an indictment which charges
him with a fourth degree felony the commission of which caused
physical harm to a person and which also includes a
specification that the accused caused physical harm to a person
while committing the underlying felony.3 Conversely, where an
accused is indicted, tried and convicted of a fourth degree
felony the commission of which did not cause physical harm to a
person or where an accused is indicted, tried and convicted of
a fourth degree felony the commission of which did cause
physical harm to a person but where the indictment did not
include the specification contained in R.C. 2941.143 or the
jury refused to convict thereon, the accused is to be sentenced
to the definite term of incarceration prescribed in R.C.
2929.11(D)(2).
Thus, a conviction on the specification contained in R.C.

2941.143 compels a trial court to impose an indefinite term of
incarceration provided in R.C. 2929.11(B)(7) instead of a
definite term of incarceration provided in R.C. 2929.11(D)(2).
Therefore, R.C. 2941.143 merely directs the selection of a
sentencing scheme for the underlying felony which differs from
that which would otherwise have been imposed.4
Accordingly, we conclude that a court of common pleas may
impose the indefinite term of incarceration prescribed by R.C.
2929.11(B)(7) where an accused has been convicted of a fourth
degree felony the commission of which caused physical harm to
any person, provided the indictment which initiated the
criminal proceeding contains the specification contained in
R.C. 2941.143 and the accused is convicted thereon.
After his conviction on the underlying felony, appellee
was convicted of the specification by the trial court. The
parties had previously stipulated that the guilt determination
on the specification would be made by the court rather than the
jury.
Appellee was thereafter sentenced to a term of
incarceration of from two and one-half to five years. On
August 21, 1990, a journal entry was filed by the common pleas
court, which reflected that appellee had been sentenced to a
term of two and one-half to five years for violation of R.C.
2903.06. Nevertheless, in his brief to the court of appeals,
appellee set forth the following assignment of error:
"Assignment of Error No. Four: The indeterminate sentence
imposed by the trial court subjected appellant to double
jeopardy contrary to the United States Constitution and the
Constitution of Ohio."
His brief explained the assignment of error as follows:
"The Double Jeopardy Clause of the Fifth Amendment to the
United States Constitution and Section 10, Article I of the
Ohio Constitution prohibits cumulative punishments for the same
offense. Brown v. Ohio (1977), 432 U.S 161. It is clear that
the trial court imposed two punishments upon Appellant for one
offense." (Emphasis added.)
The court of appeals entertained the appeal on this basis
and, while rejecting the double jeopardy argument, concluded
that the imposition of the penalty under R.C. 2941.143
constituted a denial of liberty to appellee without due process
of law. In this regard, the appellate court stated:
"Obviously cognizant of our decision in [State v.] Patton
(Feb. 11, 1991), Stark App. No. CA-8236, unreported, cited
supra, this court holds that it is redundant and unwarranted to
include the physical harm specification in the offense of
aggravated vehicular homicide, notwithstanding whether there
were injuries caused from the event which subsequently caused
death (as in Kavlich and Runnels) or whether death was
immediate as in the case sub judice.
"Death being the ultimate physical harm any offender can
cause, we believe that 'tacking on' the physical harm
specification (at the discretion of the prosecution) is
improper, inconsistent, and violative of due process. We
conclude that the crime itself for aggravated vehicular
homicide subsumes the physical harm specification.
"Appellant's third assignment of error is sustained. See
our disposition of this cause as to certification infra and in

the judgment entry." (Emphasis added.)
The case was thereafter certified to this court as being
in conflict with the decisions of the Eighth District Court of
Appeals in State v. Kavlich (1986), 33 Ohio App.3d 240, 515
N.E.2d 652, and State v. Runnels (1984), 56 Ohio App.3d 100,
565 N.E.2d 610.
Appellee has appeared pro se before this court. The
substance of the arguments made for both parties to this court
is that R.C. 2941.143 authorizes imposition of a sentence in
addition to that imposed for a felony of the fourth degree
where the specification is in the indictment and the accused is
convicted thereon. The difference in the positions of the
parties concerns whether such a practice is constitutional.
We decline to resolve the present controversy on this
basis. As reflected by the record, appellee was sentenced to
an indefinite term of incarceration of from two and one-half to
five years on the underlying felony. No separate penalty has
been imposed for the specification. Unlike R.C. 2929.71, R.C.
2929.11(B) does not provide for the imposition of an additional
sentence. R.C. 2941.143 merely sets forth the procedure which
must be followed in order to sentence one convicted of a fourth
degree felony to the indefinite term of incarceration imposed
by R.C. 2929.11(B)(7), as R.C. 2941.141 does for the additional
term prescribed by R.C. 2929.71. Moreover, the sentence
imposed upon appellee does not constitute an enhancement of a
penalty he would have otherwise received for commission of the
same act. Rather, the sentence is dependent upon the nature of
the felony which he committed and compliance with the
procedural requisites of R.C. 2929.11 and R.C. 2941.143.
In order for the penalty to be imposed, the indictment
must include the specification as well as a count referring to
the underlying felony. Inclusion of the specification in the
indictment accomplishes a twofold purpose. It alerts an
accused that the fourth degree felony of which he has been
charged constitutes a felony the commission of which caused
physical harm to a person. The specification further apprises
the accused that commission of the underlying felony subjects
him to the indefinite term of incarceration prescribed by R.C.
2929.11(B)(7). Furthermore, appellee may be sentenced to the
indefinite term of incarceration provided in R.C. 2929.11(B)(7)
only where he has been convicted of a fourth degree felony the
commission of which would cause physical harm to a person
(e.g., R.C. 2903.06) and has been further convicted of a
specification which charged that he did, in fact, cause
physical harm to a person in the commission of the fourth
degree felony.
While appellee challenges this procedure on a
constitutional basis, a close analysis of the provisions of
R.C. 2929.11 and R.C. 2941.143 reveals no constitutional
defect. It can hardly be disputed that it is well within the
province of the Ohio General Assembly to impose a more severe
sentence for felonies of the fourth degree which cause physical
harm (R.C. 2929.11[B][7]) than for felonies of the fourth
degree which do not cause physical harm (R.C. 2929.11[D][2]).
However, the General Assembly further provided, pursuant to
R.C. 2941.143, that a person subject to the indefinite term of
incarceration prescribed by R.C. 2929.11(B)(7) must be apprised

of that fact by a specification contained in the indictment and
must be convicted of that specification. In this regard, R.C.
2941.143, rather than constituting a violation of due process
of law or double jeopardy, provides additional procedural
safeguards which are purely statutory in nature. The fact that
a failure on the part of the state to include the specification
in the indictment or to obtain a conviction thereon will result
in the imposition of a definite sentence pursuant to R.C.
2929.11(D)(2) does not render compliance with such procedural
requirements an enhancement of a sentence which an accused
would otherwise receive. What subjects the accused to the more
severe sentence is the nature of the felony which has been
committed, not the specification. The specification merely
provides notice to the accused of this fact. It is for this
reason that the General Assembly has mandated the inclusion of
the specification in the indictment.
The determination below that imposition of the indefinite
term of incarceration constituted separate punishment depriving
appellee of his liberty without due process of law is
unsupported by the law or the record of the trial court
proceedings imposing sentence. Accordingly, the judgment of
the court of appeals is reversed and the cause is remanded to
the trial court for reimposition and execution of the original
sentence.
Judgment reversed
and cause remanded.
Moyer, C.J., Douglas, Wright and Resnick, JJ., concur.
Holmes and H. Brown, JJ., dissent.
FOOTNOTES:
1 The subsequent amendment of R.C. 2903.06(B) has
elevated this offense to a felony of the third degree.
2 Our discussion herein is limited to the circumstances
presented by the instant cause which authorize the imposition
of the indefinite term of incarceration provided by R.C.
2929.11(B)(7) (i.e., commission of a fourth degree felony which
causes physical harm). In the interests of clarity, we have
omitted reference to the alternate circumstances under which
imposition of the indefinite term is permitted [e.g., the
actual threat of physical harm with a deadly weapon).
3 While this requirement may appear, on first impression,
to involve a redundancy, it is clearly intended to apprise a
criminal defendant of the charges against which he must defend
and the potential penalty he faces upon conviction. Likewise,
requiring a separate jury specification assures that, in the
unlikely event that the defendant is charged with the
commission of a fourth degree felony which does not involve
physical harm and a specification to the contrary is contained
in the indictment, the specification can be stricken by the
trial court or a jury verdict thereon which is unsupported by
any evidence of physical harm can be set aside.
4 In this regard, the specification to which R.C.
2941.143 relates differs from the specification contained in
R.C. 2941.141. Unlike the latter specification, the former
specification does not authorize the imposition of a term of
incarceration in addition to that imposed for the underlying
felony. R.C. 2929.71 provides that persons who have a firearm
while committing a felony are subject to three years' actual

incarceration in addition to the term of incarceration for the
underlying felony. R.C. 2941.141 accomplishes this purpose by
referring to R.C. 2929.71, which prescribes the three-year
additional sentence. In contrast, R.C. 2941.143 does not
prescribe a term of incarceration in addition to the term on
the underlying felony, but permits an indefinite term of
incarceration to be imposed on the underlying felony where the
defendant has been indicted, tried and convicted of the
specification. R.C. 2941.143 accomplishes this purpose by
referring to R.C. 2929.11(B)(7). Thus, conviction on the
specification under R.C. 2941.143 permits the imposition of a
greater but not additional term of incarceration.
However, as is the case with all specifications, the
specification in R.C. 2941.143 (as well as in R.C. 2941.141)
must be included in the indictment and the defendant must be
convicted thereon in order for the particular consequences
arising therefrom to transpire.
Holmes, J., dissenting. I must dissent from the majority
opinion because I do not believe that the conclusions reached
comport with the legislative intent of the statute construed.
R.C. 2941.143 is intended by the General Assembly to
enhance the penalty of felonies of the third and fourth degree
in which the offender, while committing the underlying violent
offense, also injures or threatens to injure any person with a
deadly weapon. This point was emphasized in the state's brief
as follows: "*** it should be assumed that the legislature
enacted Revised Code 2941.143 for its obvious purpose: to
punish those offenders who commit what are necessarily violent
offenses at least as severe[ly] if not more severe[ly] than
other non-violent offenders. Any other interpretation of
Revised Code 2941.143 renders it all but ineffective in
accomplishing the clear legislative intent behind it." The
offense of aggravated vehicular homicide is not an "offense of
violence" as the term is defined within the Criminal Code of
Ohio. Under the definition section of R.C. Chapter 29, at R.C.
2901.01(I), "offense of violence" means any of the following:
"(1) ***5
"***
"(3) An offense, other than a traffic offense, under an
existing or former municipal ordinance or law of this or any
other state of the United States, committed purposely or
knowingly, and involving physical harm to persons or a risk of
serious physical harm to persons[.]" (Footnote added.)
The crimes listed in R.C. 2901.01(I)(1) as offenses of
violence are homicide (not including aggravated vehicular
homicide), assault, menacing, kidnapping, abduction, extortion,
rape, sexual battery, felonious sexual penetration, arson,
disrupting public services, vandalism, robbery, burglary,
inciting to violence, riot, inducing panic, domestic violence,
intimidation, escape, aiding escape, carrying concealed
weapons, and having weapons under disability.
In addition to these enumerated crimes, the legislature
has also provided that an offense committed purposely or
knowingly, and involving physical harm to persons or a risk of
serious physical harm to persons is also an "offense of
violence." R.C. 2901.01(I)(3). Under this portion of the
definition, in order for the offense to be one of "violence,"

there must be knowledge, intent or scienter, which is obviously
absent in the charge of vehicular homicide or aggravated
vehicular homicide.
The culpable mental state of the crime of aggravated
vehicular homicide is recklessness, not a higher degree of
mental culpability required for crimes of violence, which, in
my view, would be required to consider an individual guilty of
a specification of physical harm under R.C. 2941.143.
I conclude that the legislature intended that in order for
R.C. 2941.143 to be applicable, there must be an offense that
had an animus separate from the enhancement criteria of harm or
threat of harm. The underlying offense here, the crime of
aggravated vehicular homicide, could not have been committed
without causing physical harm. As noted by the appellee in his
brief, the essential element of an offense of aggravated
vehicular homicide is physical harm, and any additional charges
based on physical harm without a change in elements or animus
would therefore, as concluded by the court of appeals, be
subsumed within the original charge.
There are situations under the criminal laws where the
legislature has clearly manifested an intention to allow the
"tacking on" of elements of an offense to enhance the
punishment of offenders involved in violent offenses. Our
courts have properly recognized this justifiable legislative
public policy determination. Accordingly, in State v. Jenkins
(1984), 15 Ohio St.3d 164, 177-178, 15 OBR 311, 322-323, 473
N.E.2d 264, 279-280, this court held the aggravated murder
statute constitutional even assuming that some aggravating
factors that may be "tacked on" to an indictment for aggravated
murder would simply duplicate an element of the offense, since
similar factors are used to elevate the offense from murder to
aggravated murder. R.C. 2923.13, commonly referred to as the
weapons under disability statute, prohibits certain persons,
including fugitives from justice, persons convicted of any
felony of violence, and persons who are drug dependent or
chronic alcoholics, from acquiring, carrying or using a
firearm. The violation of this section could reasonably be
added to the violation of another section of criminal law;
also, the firearm specification of R.C. 2929.71 may be properly
added as an enhancement to the underlying crime.
Unfortunately, I must admit that R.C. 2941.143 may
conceivably be interpreted as the majority has done here, but
as expressed within my dissent I conclude that the General
Assembly intended otherwise. In that the majority has so
determined that R.C. 2941.143 does apply to aggravated
vehicular homicide, I must dissent therefrom, and strongly
suggest that the General Assembly needs to review the public
policy issues within this section of law as interpreted by this
majority.
H. Brown, J., concurs in the foregoing dissenting opinion.
FOOTNOTE:
5 Paragraph (1) sets forth the following list of violent
offenses, which does not include aggravated vehicular homicide:
"A violation of sections 2903.01, 2903.02, 2903.03,
2903.04, 2903.11, 2903.12, 2903.13, 2903.21, 2903.22, 2905.01,
2905.02, 2905.11, 2907.02, 2907.03, 2907.12, 2909.02, 2909.03,
2909.04, 2909.05, 2911.01, 2911.02, 2911.11, 2911.12, 2917.01,

2917.02, 2917.03, 2917.31, 2919.25, 2921.03, 2921.34, 2921.35,
2923.12, and 2923.13 of the Revised Code[.]"