The Akron Legal News

Court affirms man was driver in car accident that killed his girlfriend

JESSICA SHAMBAUGH
Special to the Legal News
Published: November 4, 2013

A 3rd District Court of Appeals panel recently affirmed a man’s conviction for aggravated vehicular homicide stemming from a car accident that killed his girlfriend.

But the court also remanded Joshua Swihart’s case for resentencing after it sustained his argument that the Union County Court of Common Pleas improperly failed to address his objection to an allegation that he laughed during the trial.

Swihart’s case was the result of a car accident that occurred on June 21, 2010 on State Route 47 near York Center.

At the time of the accident Swihart was in a black 1999 Mitsubishi Eclipse with his girlfriend, Ashley Bishop.

It was later disputed who was driving the car.

While the couple was navigating a nearly 90-degree curve in the road, the car lost control and went off the road.

It then turned and struck a tree on the right side, causing it to roll several times.

Swihart and Bishop were both ejected.

Bishop died on impact and Swihart sustained wrist fractures and injuries to his right leg.

James Smith, a paramedic and firefighter with Allen Township, testified that he arrived on the scene the morning of the accident and said the car and its occupants were not visible from the road.

He said he witnessed car parts strewn throughout the area and damage to a tree.

He then found Bishop and described her as on her back with her face smashed, several deformities to her extremities and missing her right foot.

He said he found Swihart further in the wooded area propped against a tree with cuts in the back of his head and bilateral wrist injuries.

Smith said he has responded to more than 100 automobile crashes and, in his opinion, bilateral wrist injuries are usually consistent with someone who was gripping a steering wheel.

Troopers who responded to the scene testified that the right side of the vehicle was extensively damaged, suggesting it was the side that hit the tree.

Shawn Weiss, associate technical director for forensic identification at LabCorp, testified that he analyzed DNA found on both the passenger and driver’s side airbags of the Eclipse.

He said the DNA on from the driver’s side was consistent with Swihart and the passenger’s side was consistent with Bishop.

Ohio State Highway Patrol Sergeant James Highsmith testified that he questioned Swihart in the hospital.

He said Swihart was coherent during the questioning and said he thought he was driving and that he was traveling at 55 mph.

Highsmith said Swihart indicated the odometer read 65 mph, but it was off by 10 so they were going 55 mph.

Sgt. Ty Skaggs also testified that he performed a reconstruction analysis and found that it was a high-speed collision.

He said a car could safely complete the curve at a maximum of 47 mph and that there were signs indicating the curve and a recommended speed of 25 mph.

Skaggs also said Swihart’s injuries were consistent with a driver because his leg would have been injured by the center console.

He explained that Bishop’s extensive injuries to the right side, including the amputation of her foot, were consistent with the severe damage to the right side of the car.

In his defense, Swihart’s father and a friend testified that he was not coherent when Highsmith questioned him.

A jury in the Union County court found Swihart guilty of aggravated vehicular homicide and the matter proceeded to sentencing.

Swihart objected to a portion of the Presentencing Investigation Report that alleged he was laughing during the trial.

His counsel stated that he saw no such behavior and denied that Swihart acted inappropriately during the trial.

Nevertheless, after considering “the record,” the trial court sentenced Swihart to 54 months in prison and he appealed to the 3rd District.

Swihart first argued that Smith’s opinion concerning his wrist injuries was improperly permitted because Smith was not an expert in that area.

The judges found that Smith explained his extensive experience responding to car accidents and gave his opinion only based on that experience.

“Since the opinion related to Smith’s experience and observations, we cannot find that the trial court plainly erred in admitting his testimony regarding the wrist injuries,” Judge Richard Rogers wrote for the court.

Swihart next argued that his conviction was not supported by the sufficiency of the evidence.

Upon review, the judges determined that the state had to show Swihart was driving and acted recklessly to cause the accident.

They found that the DNA evidence, Smith’s testimony about Swihart’s injuries, Skaggs’ opinion after reconstructing the accident all supported that Swihart was driving the car at the time.

“Moreover, at oral argument on appeal, Swihart’s counsel conceded that Swihart was the driver of the Mitsubishi,” Judge Rogers stated.

The judges next determined that, although it was a “close call,” the evidence supported that Swihart was driving recklessly based on his speed.

The record showed that he lived less than a mile from the curve, drove it at least once a week, and should have known of its dangers.

There were also signs indicating a recommended deceleration and the severity of the curve.

“This evidence, taken together and in the light most favorable to the state, suggested that Swihart knew of the curve and its risks, but that he perversely disregarded them by going nearly twice the suggested speed for the curve,” Judge Rogers wrote, dismissing Swihart’s claim.

Finally, the judges considered Swihart’s objection to a statement that he was laughing during the trial.

They held that a trial court “shall” make findings regarding the allegation or decline to consider the statement when a defendant makes a factual objection.

“However, the trial court failed to make such a finding,” Judge Rogers continued.

They ruled that the trial court’s statement that it considered “the record” showed that it included the statement and it must address Swihart’s objection prior to doing so.

“As such, we must vacate Swihart’s sentence and remand this matter for resentencing.”

Judges John Willamowski and Stephen Shaw concurred.

The case is cited State v. Swihart, 2013-Ohio-4645.

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