By jeanne starmack
Dave Muslovski was out for his usual walk as the day dawned June 17.
The 55-year-old businessman, owner of Iron City Wood Products in Campbell, walked often near his Springfield Township home to keep in shape.
He’d lost 160 pounds since September 2009, and he was serious about his healthy new lifestyle.
He wore a fluorescent green shirt with stripes of reflective tape. He walked along the side of rural Middletown Road, facing oncoming traffic. The sun had risen, and he was on his way back to his Unity Road home.
Another Unity Road resident, Whitney Yaeger, 19, was on Middletown Road that morning too. As she was driving — she would later tell an Ohio State Highway Patrol trooper — she was texting on her phone.
“She veers off the side of the road just in time to RUN OVER my dad,” Tina Yanssens would later write in a letter to Gov. Ted Strickland, appealing for his help in banning texting while driving in Ohio.
“That is right; she didn’t hit him, she ran over him,” Yanssens continued. “She left tire tracks up his right leg, across his pelvis and up his right arm. He didn’t stand a chance because she fractured his pelvis, pulverized multiple major branches of his right femoral artery, and bruised over 25 percent of his liver.”
He died early that afternoon in St. Elizabeth Health Center.
Yaeger pleaded not guilty June 28; her case is set for a pretrial Jan. 12.
As the case proceeded in Struthers Municipal Court, it raised questions for Muslovski’s family, Yanssens said, including: Why didn’t the Struthers prosecutor, Carol Clemente-Wagner, charge her with a felony for reckless driving instead of a misdemeanor for negligent driving?
Texting while driving is not illegal in Ohio. Yanssens points out, though, that there are two cases in which other prosecutors took a more aggressive track and went for the higher penalty — a maximum of 18 months versus a maximum of six months:
In Washington County, the prosecutor got a felony indictment from a grand jury in July after a man crossed the center line while texting and hit another car. No deaths or disabling injuries resulted from that accident.
In Lucas County, a woman was convicted of a felony after she killed a kindergartner getting off a school bus while groping on the floor of her car for her phone. She appealed that conviction, but she lost.
Along with her questions, there is a quest. Yanssens is working for a ban on
texting while driving in Ohio, believing it will prevent other families from having to go through what hers did.
Her family has formed the David S. Muslovski Charitable Foundation “to educate Ohioans about the dangers of distracted driving,” she said.
“My father had a right to be out there that day, and he had a right to live,” she said. She challenged Yaeger to “give back” by speaking at local schools.
“She should volunteer,” Yanssens said. “Acknowledge what she’s done is wrong, and prevent it from happening to others.”
A relative at the Yaeger residence said Yaeger would not comment.
The foundation is also collecting signatures and lobbying legislators to pass Senate Bill 164, which would ban texting while driving.
However, two local officials said the bill and several others like it in the House and Senate would not affect the change that Yanssen would like to see in cases like Yaeger’s – the filing of the more serious charge of recklessness versus negligence.
Jay Macejko, Youngtown’s prosecutor, is a member of the Ohio Criminal Sentencing Commission and analyzes bills and the impact they’d have.
All the pending bills make texting – and in some cases talking on a cell phone while driving – illegal. But the penalties would be misdemeanors, not felonies, Macejko said.
Complicating the task of raising texting to the level of recklessness is the law’s definition of what recklessness is — a conscious disregard for safety.
“When you think of negligence, it’s the equivalent of an accident, and sometimes things are just horrible accidents,” he said.
Depending on a person’s state of mind, texting while driving could rise to the level of recklessness, he said.
“It’s a debate we have every day,” he said.
Adding to the complication, said state Sen. Joe Schiavoni, D-33rd of Canfield, is the difficulty a police officer would have in proving someone was
If the driver didn’t admit to it, he said, there would have to be a witness – or a phone record.
What about those felony charges in Washington and Lucas counties? The charge in the Lucas County case, in which the woman was groping for her phone on the car floor when she hit a child, was proper, Macejko said. The fact that the woman disregarded a school bus made that an easier call, he contends.
As for the Washington County felony indictment of a 19-year-old man who crossed the center line while texting? Macejko has his doubts about it.
“It’s easier to get an indictment than a conviction,” he said.
Jim Schneider, the Washington County prosecutor who got the indictment, agrees.
“I just decided to present it as a felony because of the ever-increasing problem of texting,” he said. “I may not win that case.”
Schneider says he understands why Struthers Prosecutor Clemente-Wagner would choose not to charge Yaeger with a felony.
Clemente-Wagner said she will not comment on the case because it is pending.
If Yaeger had been driving under the influence of alcohol or drugs, the law would have called for her to be charged with a felony for Muslovski’s death.
Though Yanssens maintains Yaeger should have been tested to determine whether she was under the influence of alcohol or drugs, OSHP trooper Jason Fantone saw no reason for it, said Lt. Chris Heverly of the Canfield Post.
“They’re trained to detect, by looking and talking to them,” Heverly said. “Trooper Fantone’s opinion, after speaking to her at length, was she wasn’t under the influence.”
Could texting while driving ever be considered as serious an offense as driving under the influence?
Yes, and that may be the way to go for Ohio, say Macejko and Schiavoni.
DUI is a misdemeanor until a driver’s fourth offense — or unless he kills or injures someone, Macejko said. Then, a separate statute calls for a felony charge.
“I would be comfortable seeing [texting while driving] at the misdemeanor level for the simple offense,” he said. “If someone is hurt or killed, a separate statute.”
The prevalence of
texting in society, he agreed, speaks to the need for such a statute.
Schiavoni said he doesn’t see any new bills coming out before July, when the state budget is due.
Meanwhile, he said, the Muslovski family is doing a good job getting the word out that texting while driving can cost someone a life.
To donate to the David S. Muslovski Charitable Foundation, stop at any Huntington Bank branch or mail a check to Tina Yanssens at Iron City Wood Products, 3125 Wilson Ave., Campbell, OH 44405. Make checks out to the foundation.