Kevin Simons, 48, of 9541 E. Pixie Parkway, Cromwell, was found guilty on count I: operating a vehicle as a habitual traffic violator, a class C felony; count II: battery, a class D felony; and count III: operating a vehicle while intoxicated, a class A misdemeanor, with count IIIA, a class D felony enhancement. The latter charge is a felony because Simons was charged with OWI previously, on Dec. 2, 2010, and because his second OWI occurred within five years of the first. Count IV was resisting law enforcement, a class A misdemeanor.
The two-day trial Tuesday and Wednesday lasted approximately 19 hours, with Simons representing himself on the second day.
His pre-sentencing investigation will begin within the next week and his sentencing is scheduled for Feb. 23 at 10 a.m.
On the night of Feb. 4, 2014, Steven Fields made a 911 phone call as he was traveling home from work, Fields told the court Tuesday. He had seen a vehicle stuck in a snow bank and said the driver appeared to be drunk. County dispatch then contacted Syracuse Police Department, and Patrolman Joseph Keene arrived at the scene.
The central question in the case was whether or not Simons was operating the vehicle. By definition, operating means to navigate, or be in actual, physical control of the vehicle, Deputy Prosecuting Attorney Karin McGrath told the jury.
Simons’ attorney, Matthew J. Buehler of Kolbe Law Firm, argued that you cannot operate a vehicle that cannot move. He told the jury they were going to hear a lot of circumstancial evidencet, or evidence where inferences can be made, but not direct evidence.
McGrath argued if the vehicle is running and in gear, then you are operating it and in control.
Patrolman Keene recalled seeing Simons still in the vehicle in the driver’s seat with the driver door open when he arrived at the scene. Keene said the left rear tire of the vehicle was still in the roadway and that he could hear the tires spinning in the snow, and he could smell a strong odor of alcohol coming from the vehicle and from Simons’ breath.
He said Simons struggled to get his I.D. and he lacked balance. When Keene tried to have Simons take the field sobriety test, Simons refused. Keene proceeded to get a search warrant for Simons’ blood and arrested Simons, then they went to Kosciusko Community Hospital for a blood draw.
Linnia Woods, a certified nursing assistant at KCH, testified that Simons “wasn’t so nice” and he was combative when he arrived at the hospital. Simons also kicked Woods in the wrist when an attempt to draw his blood was made.
Sheree Sisk, a diagnostic assistant in the laboratory at KCH, said she thought Simons was intoxicated due to his slurred speech when he refused a blood draw at 1:45 a.m. Simons’ blood was drawn after 10 minutes of attempts. His BAC was determined to be .25 percent two hours after the incident McGrath said.
On the second day of the trial, Simons wanted to represent himself and finish the trail pro se, with Buehler as his standby counsel, or “law library,” if he had any questions.
Simons continued questioning Patrolman Keene and then testified himself. He said he was not the driver of the vehicle that night, and that his fear of needles caused his combative actions at the hospital.
Superiror Court III Judge Sutton allowed Buehler to be reinstated as his attorney, at Simons’ request, for closing arguments.
The 12-member jury deliberated for more than an hour before handing down the verdict around 9 p.m. Wednesday, over 12 hours after that day’s hearing began.
Simons remains at the Kosciusko County Jail without bond.
(Story By The Times Union)