Youngstown Daily Legal News

Conviction affirmed for man who drove vehicle into crowd

ANNIE YAMSON
Special to the Legal News
Published: August 28, 2013

The 8th District Court of Appeals recently affirmed the judgment of the Cuyahoga County Court of Common Pleas when it ruled that a defendant’s consecutive sentences were not contrary to law.

It was the second appeal for Gary Doubrava who was originally indicted in July 2007 on 10 counts of felonious assault.

Doubrava’s case arose out of an incident that took place in the parking lot of Hotties Bar where an individual drove a vehicle through a crowd, injuring five people. Police located the vehicle 15 minutes after the assault and found an intoxicated man, David Cotto, inside. However, based upon eyewitness testimony, the state maintained that Doubrava was the driver of the vehicle at the time of the assault.

Several witnesses testified at Doubrava’s trial that he was arguing with another man inside Hotties when the disagreement began to get physical. The two men went outside to the parking lot and most of the bar patrons followed.

According to the witness testimony, Doubrava was wearing a white shirt and white hat and the bar patrons observed a man dressed in white enter a dark-colored car.

The driver accelerated through the crowd of people, striking three of them. He then backed up, striking two more bar patrons before driving away.

For each of four of the five victims, the Cuyahoga court convicted Doubrava of two counts of felonious assault. He was found guilty of an additional count of felonious assault by means of a deadly weapon and ordered to serve a total of eight years in prison.

Upon his first appeal, the 8th District found that the trial court erred by sentencing Doubrava to allied offenses of similar import because he was convicted of two separate counts of felonious assault for each of four separate victims.

“We held that the trial court should have merged the convictions for each of the two offenses involving the same victim,” wrote Judge Eileen Gallagher on behalf of the appellate panel.

The case was subsequently remanded to the trial court for the state to elect which felonious assault charges to merge for each victim.

On remand, the trial court merged the counts for each of the four victims and then sentenced Doubrava to two years for each of the remaining four counts of assault, to be served consecutively for a total of eight years in prison.

In his second appeal, Doubrava presented the same argument that the trial court failed to merge his offenses. He stated that his multiple convictions for felonious assault should have been further merged into two separate convictions — one for driving through the crowd, and one for backing up.

“We find no merit to appellant’s argument,” wrote Judge Gallagher. “It is well established that res judicata bars the consideration of issues that could have been raised on direct appeal.”

The three-judge appellate panel found that, even if the issue was not barred from appeal, the court would still reject his argument.

“It is well-settled in this district that when an offense is defined in terms of conduct towards another, then there is dissimilar import for each person affected by the conduct,” wrote Judge Gallagher.

In other words, when a defendant commits the same offense against different victims during the same course of conduct, those offenses are not allied.

“A separate animus exists for each victim ... and the defendant can properly be convicted of and sentenced on multiple counts.”

But Doubrava also argued that his eight-year prison sentence was contrary to law and an abuse of the trial court’s discretion because the court’s findings were “not clearly and convincingly supported by the record.”

According to Judge Gallagher, “A sentence is not clearly and convincingly contrary to law where the trial court considers the purposes and principles of sentencing as well as the seriousness and recidivism factors listed in R.C. 2929.12, properly applies post-release control and sentences a defendant within the permissible statutory range.”

Furthermore, the appellate panel determined that R.C. 2929.14 authorizes a court to require an offender to serve multiple prison terms consecutively for convictions on multiple offenses.

As part of his appellate brief, Doubrava contended that his sentence was not proportional to sentences imposed upon other offenders who committed similar crimes; however, the court of appeals stated that he did not advance any specific argument as to why he felt that way.

“This court has previously found that in order to support a contention that a sentence is disproportionate to sentences imposed upon other offenders, the defendant must raise the issue before the trial court and present some evidence, however minimal, in order to provide a starting point for analysis and to preserve the issue for appeal,” stated Judge Gallagher.

After reviewing the record in Doubrava’s case, the appeals court determined that the issue of proportionality was not raised at any time during trial or sentencing, “nor did he present evidence as to what a proportionate sentence might be.”

“The judgment of the trial court is affirmed,” concluded Judge Gallagher.

Presiding Judge Mary Boyle and Judge Kenneth Rocco concurred.

The case is cited State v. Doubrava, 2013-Ohio-3526.

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