State v. Thompson

167 N.E.3d 1072

STATE of Ohio, Plaintiff-Appellee,

v.Wimberly THOMPSON, Defendant-Appellant.

No. 109253

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

RELEASED AND JOURNALIZED: February 11, 2021

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and James Gallagher, Assistant Prosecuting Attorney, for appellee.

J. Charles Ruiz-Bueno, for appellant.

JOURNAL ENTRY AND OPINION

LISA B. FORBES, J.:

{¶ 1} Wimberly Thompson ("Thompson") appeals his convictions for felonious assault, aggravated vehicular assault, violating a protection order, and operating a vehicle while under the influence, as well as his 11-year prison term. After reviewing the facts of the case and pertinent law, we affirm the trial court's judgment based on the overwhelming evidence in the record supporting Thompson's guilt.

I. Facts and Procedural History

{¶ 2} This case involves significant injuries sustained by the victim, D.Q., when she was thrown off the hood of Thompson's car on the night of November 4, 2018. That evening, Thompson ran his vehicle into a fire hydrant and a tree, pulling the hydrant out of the ground and disabling the car. D.Q.’s injuries, sustained when she hit the pavement, include brain damage and a broken pelvis.

{¶ 3} On November 14, 2018, Thompson was indicted for two counts of felonious assault in violation of R.C. 2903.11(A)(1) and (A)(2), two counts of aggravated vehicular assault in violation of R.C. 2903.08(A)(1)(a) and (A)(2)(b), violating a protection order in violation of R.C. 2919.27(A)(1), and operating a vehicle under the influence of alcohol in violation of R.C. 4511.19(A)(1)(a). On October 7, 2019, the case proceeded to a jury trial with Thompson representing himself pro se. On October 10, 2019, the jury found Thompson guilty as charged.

{¶ 4} On October 17, 2019, the court held a sentencing hearing and merged the felonious assault and aggravated vehicular assault counts into one felonious assault conviction. The court sentenced Thompson to eight years in prison for this second-degree felony conviction, three years in prison for violating a protection order, and "six days" for operating a vehicle under the influence. The court ordered the 8-year and 3-year prison terms to be served consecutively for a total sentence of 11 years in prison.

{¶ 5} The parties presented the following testimony and evidence pertinent to this appeal at Thompson's jury trial.

{¶ 6} Kevin Dominic ("Dominic") testified that he is a paramedic for the City of Cleveland, Division of EMS. Dominic was working the night shift on November 4, 2018, when he responded to a motor vehicle accident call on Erin Avenue in Cleveland. According to Dominic, the victim, later identified as D.Q., was laying in the middle of the street, breathing, but not speaking or moving. The vehicle, later identified as Thompson's Malibu, was "heavily damaged." Dominic testified that it was a "[p]retty frantic scene. A lot of people around. There was a fire hydrant that was significantly displaced. Also looks like car parts in the middle of the street." According to Dominic, D.Q. was in a "critical state" with a "serious head injury," and he transported her to MetroHealth Medical Center ("MetroHealth").

{¶ 7} T.Q. testified that she is D.Q.’s mother. On November 5, 2018, T.Q. received a call from MetroHealth that D.Q. "was in a bad car accident, that she was intubated, [and that] she had a lot of frontal lobe damage and swelling on the brain." D.Q. was in a medically induced coma for approximately one to one-and-a-half weeks before she could breathe on her own. She did not recognize T.Q. until "maybe six, seven weeks after" the incident. D.Q. was incontinent, unable to walk, and unable to eat solid foods. "At that point she was like my two-year-old again. She had to learn how to walk, she had to learn how to — we had to get her back talking. She couldn't shower herself. She was non-weight bearing. She was wearing briefs, we had to change her. I mean, you name it, she was back to infantile at that time." D.Q. was 18 years old at the time she sustained these injuries.

{¶ 8} D.Q. went from MetroHealth's intensive care unit, to a rehabilitation facility, and to a nursing home, before being released into her mother's care in March 2019. At the time of trial, D.Q. was still in therapy and had a home health aide that assisted her Monday through Friday from 7:00 a.m. to 3:00 p.m.

{¶ 9} D.Q. testified that she met Thompson in the summer of 2018, and he is her ex-boyfriend. Their relationship involved "a lot of fighting, arguing, and just back and forth." On the night of November 4, 2018, D.Q. "met up" with Thompson. They were sitting in his car when they started arguing. D.Q. testified that Thompson "started driving towards the west side," and she noticed that there was alcohol in the car. D.Q. testified as follows about what happened next: "So I grabbed the liquor once he stopped the car and put it in park, I grabbed the liquor bottle, poured it out and I broke the glass. And I got on top of the car and started arguing more and louder." D.Q. does not remember what happened after that. "The next thing I remember is I started having therapy." D.Q. testified that the injuries she sustained that night included "traumatic frontal lobe damage, brain injuries."

{¶ 10} City of Cleveland Police Officer Joseph Matt ("Officer Matt") testified that he and his partner responded to a call regarding a car crash on Erin Avenue on the night of November 4, 2018. He was wearing a body camera at the time, and the state introduced the video footage from this camera into evidence at Thompson's trial. Officer Matt testified that when he arrived on scene, D.Q. was "laying on the ground at the feet of the officers" who were already there, "at least three houses to the east of where the car was" found.

{¶ 11} Officer Matt testified that Thompson exhibited "a strong odor of alcohol and slurred speech." Officer Matt administered the standard field sobriety tests to Thompson. Thompson missed various parts of the tests, and the officer "observed clues" indicating Thompson's impairment, such as swaying, not counting out loud, stepping off the line, and not touching his heel-to-toe. Officer Matt arrested Thompson for operating a vehicle under the influence and transported him to jail. Thompson refused to sign a form authorizing a blood, urine, or breathalyzer test, which would have indicated the alcohol or drug content in his system.

{¶ 12} Cleveland Police Officer David Cornett ("Officer Cornett") testified that he works in the accident investigation unit, and he responded to the crash on Erin Avenue on the night of November 4, 2018. When he arrived, the street was flooded "because of the fire hydrant," and Thompson's car was "positioned near a tree." Officer Cornett took pictures and measurements from the scene, so he could "put it in somewhat of a scale drawing." This drawing was introduced into evidence at Thompson's trial.

{¶ 13} Officer Cornett testified that, based on "interviews [he] did on scene and what [he] observed with [his] own eyes," the following is his understanding of what occurred that evening:

At this point the vehicle is traveling down Erin. * * * This is the vehicle coming westbound with supposedly the young lady on the vehicle hood. Continuing the progression at this point is where the blood is on the ground, so that's where they found her. As the vehicle continues, now it started to come in toward that curb, actually goes up to the curb, hits the fire hydrant, continues to spin around off of the fire hydrant and then impacts the tree, comes to final rest.

{¶ 14} Officer Cornett testified that the vehicle was "fishtailing. * * * So as he's coming in, now the back end is starting to kick out and he's starting to lose control and spin around." Additionally, Thompson's vehicle sustained "pretty significant damage all the way around" as a result of the incident at issue in this case, including "severe back end damage."

{¶ 15} Officer Cornett testified that hitting the fire hydrant caused "enough damage to basically disable the front axle assembly" of the vehicle, "which is pretty significant." According to Officer Cornett, the speed limit is 25 m.p.h. at site of the crash, and "I know on an impact like that you're not doing 25 miles an hour."

{¶ 16} Fern Gutwein ("Gutwein"), who lives at 2705 Erin Avenue, testified as follows about what happened outside of her house on the night of November 4, 2018:

I was out in my driveway and I heard yelling, and I went out to the front and I saw a car, like, across the street. * * * I seen a woman standing by the car and then she was on the hood. [There was] a person in the driver's seat. And he put the car in reverse and took off down the street like really, really fast. * * * She was on the hood holding on the hood of it screaming. And then a short time later I heard a boom and it just scared me really bad, because I knew she was on the front of the car.

{¶ 17} Asked how she could tell the car travelled in reverse, Gutwein testified, "I was standing there. And the car backed up and then went forward, because there was a car in front, so it couldn't just go straight." According to Gutwein, after the car backed up, the driver "took off very fast" when D.Q., who was screaming, "was still on the hood of the car." Gutwein testified that D.Q. was "[l]aying like this (indicating) with her legs out."

{¶ 18} On cross-examination, Thompson, who represented himself at trial, asked Gutwein, "How fast is really fast, 10, 20 miles per hour, 30 miles per hour?" Gutwein replied, "I'd say like 70."

{¶ 19} Cleveland Police Detective Charles Moten ("Det. Moten") testified that he has been a police officer for 19 years, and he has been assigned to the accident investigation unit for ten years. Det. Moten has had "extensive" specialized training as an "accident reconstructionist."

{¶ 20} As part of the investigation in this case, Det. Moten got a search warrant to...