Youngstown Daily Legal News

Man who went berserk in minivan has appeal denied

ANNIE YAMSON
Special to the Legal News
Published: June 18, 2014

The judgment of the Cuyahoga County Court of Common Pleas was recently affirmed when the 8th District Court of Appeals ruled Michael Kacmarik was properly found guilty of felonious assault and vandalism.

Kacmarik argued in his appeal that his convictions were against the manifest weight of the evidence, his defense attorney rendered ineffective assistance of counsel and the trial court should have ordered a competency evaluation prior to sentencing.

“After a thorough review of the record, this court cannot conclude that Kacmarik’s convictions are against the manifest weight of the evidence,” wrote Judge Kenneth Rocco on behalf of the court of appeals. “In addition, the record does not support his claim that his attorneys were ineffective ... Finally, the trial court had neither a duty nor a reason to question Kacmarik’s competency before the court imposed sentence.”

Kacmarik’s convictions stemmed from an incident that occurred at a used car dealership on the afternoon of Sept. 10, 2012.

In July of that year, Kacmarik had purchased a 1997 Dodge Caravan from Thomas McCutcheon, the owner and operator of the business located in Lorain.

The men were acquainted and McCutcheon permitted Kacmarik to purchase the vehicle for $1,400 in cash along with a promise to pay the remaining $600 within three weeks. In the interim, McCutcheon kept the title to the car.

As the third week approached, Kacmarik brought the Caravan back and requested that McCutcheon place it back on the lot for sale.

McCutcheon agreed and the men entered into a contract that provided McCutcheon would refund Kacmarik his down payment when the vehicle had been resold.

In the following two months, McCutcheon’s multiple attempts to sell the vehicle fell through, so when Kacmarik showed up in September asking for payment, McCutcheon had to inform him that he could not make a sale.

Additionally, several catalytic converters had recently been stolen from some of the vehicles on the lot and the Caravan was one of them. McCutcheon explained that the business would cover the replacement.

As case summary states, Kacmarik was unhappy with this news.

A loud argument ensued and attracted the attention of the owner of the tavern next to McCutcheon’s lot.

When Maureen, McCutcheon’s wife arrived, she noticed that Kacmarik was yelling and angry.

Her husband ran over to her and instructed her to leave the lot, so she observed the interaction from a store across the street.

After pacing for a while, Kacmarik entered the Caravan and started it, revving the engine.

Without the catalytic converter, the noise drew even more attention from employees and patrons in the next-door tavern.

From the driver’s seat, Kacmarik began shouting that the Caravan was “malfunctioning” and then put the vehicle into reverse, almost running into the tavern door.

He then put the vehicle into drive and smashed into another car on the lot before reversing again.

For a while, Kacmarik repeated this process of backing up and driving forward, hitting multiple cars on the lot and seemingly, according to witnesses, aiming for McCutcheon.

At trial, one of the witnesses described the incident as “a demolition derby.”

Several people, including McCutcheon and Kacmarik, called the police. Kacmarik was arrested upon their arrival.

Following a jury trial, he was found guilty of felonious assault with a clause specifying that he used a motor vehicle as a deadly weapon, and vandalism with property damage valued between $7,500 and $150,000.

Prior to conducting a sentencing hearing, the trial court ordered the preparation of a presentence report and Kacmarik was referred to the court psychiatric clinic for a disposition assessment.

The court found that Kacmarik was suffering from “bipolar disorder not otherwise specified” but determined that it was not a factor in the crime.

Kacmarik then expressed a desire to proceed pro se so the trial court decided that an additional referral to the psychiatric clinic would be appropriate in order to determine if he was capable of representing himself.

The state was also granted a motion for an independent evaluation of Kacmarik’s competency.

Eventually, he was found competent to proceed but then informed the court that he had changed his mind about representing himself.

Ultimately, Kacmarik was sentenced to a prison term of four years and proceeded to appeal his convictions.

The court of appeals first determined that that there was sufficient weight to the evidence supporting the convictions.

It noted that several witnesses corroborated McCutcheon’s version of events and testified that Kacmarik was deliberately targeting the dealership owner.

“Kacmarik’s testimony, on the other hand, was confusing; his recollection of dates relevant to his ownership of the Caravan was contrary to his documentary evidence,” wrote Judge Rocco. “Moreover, on cross-examination, he contradicted not only his own witnesses, but also his own direct testimony.”

The appellate panel proceeded to overrule Kacmarik’s remaining assignments of error, finding that a fourth competency evaluation was unnecessary and that defense counsel was not ineffective for failing to request one.

“Kacmarik contends that his competence should have been an issue before sentencing based on his interactions with the trial court, his counsel’s awareness of his health issues and his prior mental health history,” wrote Judge Rocco.

However, the court of appeals’ review of the record, with a focus on Kacmarik’s interactions with his attorneys and the court, failed to “display sufficient indicia of incompetence that would either require his defense counsel to ask for a competency assessment or lead the court to inquire into the matter.”

The appellate panel stated that Kacmarik’s bipolar disorder was “obviously well managed” and there was nothing to indicate that the judge should have made any further inquiry into Kacmarik’s mental state, especially after the three psychiatric evaluations that had already been conducted.

Judge Rocco concluded by affirming the judgment of the Cuyahoga County court with Presiding Judge Sean Gallagher and Judge Tim McCormack concurring.

The case is cited State v. Kacmarik, 2014-Ohio-2264.

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