After reviewing additional evidence from the Aug. 29 auto accident that killed 14-year-old Alexis Pollock, the Fayette County Prosecutor’s Office made the decision to dismiss the aggravated vehicular homicide charge against Charles R. Scerba.
Scerba, 53, pleaded guilty recently in Fayette County Common Pleas Court to leaving the scene after an accident, a felony of the third degree, and operating a vehicle under the influence of alcohol, a misdemeanor of the first degree. He will be sentenced on Dec. 21.
A grand jury indicted Scerba Oct. 9 after the vehicle he was driving struck Pollock, who was riding a bicycle, on Aug. 29 at approximately 8:39 p.m. near the Delaware Street/Rose Avenue intersection in Washington C.H. When officers arrived at the scene, Scerba had left the area on foot.
Pollock, an eighth grader at Washington Middle School, was transported to Fayette County Memorial Hospital for treatment, but later died from injuries sustained in the accident, according to police.
Scerba was taken into custody after he fled the scene, reportedly to find his wife at Save-A-Lot, 1151 Columbus Ave. He and his wife were both found there by police shortly after the crash occurred.
Scerba then failed the field sobriety tests and submitted to a urinalysis sample. The results of urinalysis are not immediate and were not received from the lab by the Washington Police Department and Fayette County Prosecutor’s Office until Oct. 15. The Washington Police Department also had T-M Accident Reconstruction, LLC, a professional and outside crash reconstructionist, complete a crash reconstruction of the incident. That was also received by the prosecutor’s office on Oct. 15, according to Fayette County Prosecutor Jess Weade.
“Mr. Scerba, as does anyone charged with an offense, has a right to a speedy trial,” said Weade. “That right requires the State of Ohio to present the case to a grand jury within 60 days of his preliminary hearing and bring him to trial within 90 days of his arrest. As a result of the time constraints involved with when the Fayette County grand jury meets, in order to properly afford Mr. Scerba of his rights, and to not later have the case dismissed or overturned for failing to follow those rights, the state presented the case to the grand jury on October 9th. At that time, the grand jury, based upon the information available, which included a failure of field sobriety tests, and his leaving of the scene, indicted Mr. Scerba on one count of aggravated vehicular homicide.”
Once the crash reconstruction was received and reviewed, Weade said it became apparent that there were problems associated with this charge.
“First, the urinalysis results came in within the margin of error for per se intoxication, meaning his alcohol content at the time of the crash was in doubt, and he was certainly not heavily intoxicated,” said Weade. “In short, Mr. Scerba’s alcohol content could have been below the legal threshold for intoxication. Secondly, and more importantly, the crash reconstruction indicated that due to the time of day, and other attendant circumstances surrounding the crash, not involving the driver, his vehicle, or his level of intoxication, this driver, or any driver, would not have perceived the bicyclist or the need to brake until the time of impact. Further, the driver of the vehicle was determined to be traveling between 26 and 33 miles per hour in the 25 mph zone. While slightly over the speed limit, this again was not determined by the expert to be the cause of the crash.”
Scerba’s blood alcohol level per the urinalysis was 0.116 with a plus/minus of 0.007, according to Weade, so the range of alcohol in his urine stream was anywhere from 0.109 to 0.123. The legal blood alcohol level limit for urine is 0.110.
In order to prove aggravated vehicular homicide, the state must prove that the defendant caused the death of the victim as the “proximate result of committing a violation of division (A) of section 4511.19 of the Ohio Revised Code, also known as Operating a Vehicle Under the Influence of Alcohol.”
”Proximate,” under the law, is much more than just “but for,” meaning that the simple fact that “but for” the defendant operating the vehicle after drinking, the victim would not have died. In this case, alcohol would have had to cause the crash, according to Weade.
“In other words, a driver that was completely sober in Mr. Scerba’s position at that exact time would have brought about the same result,” said Weade. “Thus, while Mr. Scerba ultimately will be convicted of operating a vehicle under the influence of alcohol in this case, that fact was not the proximate cause of the death of the victim here.”
As a result of this evidence and information, an assistant county prosecutor, a victim’s advocate, and Weade met with the family of the victim and “made the difficult, but appropriate ethical and legal decision to dismiss the aggravated vehicular homicide charge earlier this month,” Weade said.
“The family was permitted to ask any and all questions that they might have had at the time to the attorneys about their decision,” Weade explained. “The dismissal of this charge was not part of any plea negotiation, but it was simply a charge that the state realized it could not prove beyond a reasonable doubt after receipt of the crash reconstruction. The state and the defense have no agreement on sentencing.”
The state is seeking the maximum penalty on the felony of the third degree, which is three years in prison.
“Ultimately, the job of the prosecutor is to seek justice. Many times seeking justice is seen as fighting for victims and going after defendants, but prosecutors are also charged with ethically enforcing the laws with evidence that is discovered and available to them,” said Weade. “Prosecutors cannot make evidence fit a result that a victim or their representative desires. Likewise, it would not have been appropriate to include the dismissal of a charge that could not be made as part of getting more in a plea negotiation.”
Weade further explained, “In this case, the loss of Alexis Pollock is a tragedy. The fact that the defendant did not stick around at the scene of the crash certainly seemed suspect at the time, and he is going to be punished for that. The state is also aware that there were many rumors about where the defendant had consumed alcohol, how much alcohol he consumed, and whether this had happened before with him. Those rumors were investigated, and they were simply that – rumors.
“Ultimately, because of the urinalysis results, we know how much alcohol was in his system. Therefore, while we at the prosecutor’s office know that this result will frustrate and anger many people, based upon the evidence and the facts of the case, this is the only result that was and is appropriate.”
Reach Record-Herald Editor Ryan Carter at 740-313-0352.