Sitting as the “13th juror,” a divided appeals court found surveillance video evidence did not show a man intentionally tried to run over a woman in the Lakewood Giant Eagle parking lot.

The Eighth District Court of Appeals ruled Thursday that William Andre deserves a new trial on the felonious assault charges against him. The court conducted an independent review of the surveillance video and determined it contradicted the testimony of the victim and two Lakewood police officers who investigated the February 2013 incident.

Andre was parked in the handicapped parking space closest to the store entrance when Rosemary Candow and her son were returning to their car from the store. Candow said as the two walked past Andre’s car, he started backing out of his space, nearly hitting them. She said she yelled at Andre to stop, but his tinted windows were rolled up and she did not know if he could see or hear her. She hit the back of the car with her hand, and when she walked up to the window to tell Andre he almost hit them, he made an obscene gesture.

Candow testified that when she got to her car, Andre pulled out, pointed his car at her and accelerated. She said she caught the side window of his car and that it dragged her a few feet before he sped off.

Lakewood Detective Brian Beradi, who was working an off-duty security shift at the store, was called to the area of the incident. He was able to ascertain that Andre used a motorized shopping cart in the store and was using the parking space, and sent Lakewood police to Andre’s home to confront him. Officer Gennaro Romanello went to the home, took photos of the car and questioned Andre, who said he did not think he hit anyone, but was upset that Candow hit his car.

The officer reviewed the Giant Eagle surveillance video and found that when Andre’s car approached Candow’s, she stepped about two feet away from her car and into Andre’s path. While Candow said Andre “floored the car,” the video showed his brake lights illuminated intermittently as he left. Romanello testified that someone hitting the brake is generally not “flooring a car.”

Andre requested a bench trial and Judge Brendan Shannon found Andre guilty of R.C. 2903.11(A)(2) second-degree felonious assault. He sentenced him to one year of home detention, two years of community control, suspended his driver’s license for two years and ordered him to pay $4,112 in restitution to Candow for injuries she suffered.

Andre appealed the decision, arguing, among other things, that the ruling was against the manifest weight of the evidence and there was no “competent credible evidence that he knowingly did anything with criminal culpability.”

Writing for the court, Judge Eileen A. Gallagher cited the Ohio Supreme Court’s State v. Thompkins (1997) decision that indicated when a conviction is claimed to be against the manifest weight of the evidence, the court of appeals sits as a  ‘13th juror’’ and may disagree with the trial judge’s resolution of conflicting testimony.

In order to convict for second-degree felonious assault, Judge Gallagher said the trial court must determine that “Andre knowingly caused or attempted to cause physical harm to Candow beyond a reasonable doubt.”

The judge noted that Detective Beradi’s review of the video indicated Andre did not make a sudden jerk of his car toward Candow that would indicate intent to hit her, but rather his vehicle made a smooth arc and pulled out at an even pace. The detective did point out that Andre’s car was extremely close to Candow’s vehicle when it pulled out.

“The events at issue occurred in a matter of seconds. Although we agree that Andre was driving very close to Candow and her son and in the exercise of caution should have avoided doing so, our review of the record and the surveillance video, in particular – leaves us with considerable doubt that Andre knowingly caused or attempted to cause physical harm to Candow with his vehicle,” Judge Gallagher wrote.

Judge Patricia A. Blackmon concurred in the decision.

In her dissent, Judge Mary J. Boyle, noted that it was Detective Beradi’s opinion that Andre’s action appeared intentional to threaten to hit Candow with his car. She argued that Beradi was a veteran officer with eight years of experience as an accident investigator before becoming a detective and completed several specialized classes in accident investigations. She found the video shows Andre came dangerously close to Candow’s vehicle and, in her opinion, he was aiming at Candow.

Judge Boyle said the concept of the appeals court acting as the 13th juror applies to “exceptional cases,” and that because only the trial judge heard the testimony and saw the physical reactions of the witnesses, his ruling should stand.

“Because of this and in light of the fact that the video does not ‘persuasively undermine’ the state’s evidence (as the majority finds), I cannot agree with the majority that the factfinder – the trial court judge – ‘clearly lost its way’ in convicting Andre of felonious assault,’’ she wrote.

State v. Andre, 2015-Ohio-17
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/8/2015/2015-ohio-17.pdf
Criminal Appeal From: Cuyahoga County Court of Common Pleas
Judgment Appealed From Is: Reversed
Date of Judgment Entry on Appeal: Jan. 8, 2015

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