State v. Jones , 2013 Ohio 4114 ( 2013 )

[Cite as State v. Jones, 2013-Ohio-4114.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellant, :
CASE NO. 2012-P-0107
- vs - :
KYLE R. JONES, :
Defendant-Appellee. :
Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No.
R2011 TRC 14638.
Judgment: Reversed and remanded.
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, 241 South
Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellant).
Joseph C. Patituce, Patituce & Associates, LLC, 26777 Lorain Road, Suite 708, North
Olmsted, OH 44070 (For Defendant-Appellee).
CYNTHIA WESTCOTT RICE, J.
{¶1} The state of Ohio appeals the judgment of the Portage County Municipal
Court, Ravenna Division, which granted appellee Kyle R. Jones’ motion to suppress the
results of his Intoxilyzer 8000 test. Jones asserted a general challenge to the reliability
of the Intoxilyzer 8000. He also challenged the specific testing procedure used for his
test. For the reasons that follow, we reverse and remand.
{¶2} On November 14, 2011, Jones was cited for speeding, in violation of R.C.
4511.21(C). He was also cited for operating his vehicle under the influence of alcohol
(“OVI”) and driving with a prohibited blood-alcohol concentration, in violation of R.C.
4511.19(A)(1)(a) and 4511.19(A)(1)(d), respectively. Jones pled not guilty.
{¶3} Subsequently, Jones filed a motion to suppress, challenging his breath-
test results. He argued the specific Intoxilyzer 8000 device used to test his breath is not
reliable due to prior errors it has allegedly made. He also argued his test was not
administered in compliance with Ohio Adm.Code 3701-53-04(B), which requires a dry
gas control be automatically performed before and after every subject test, and that the
Ohio Department of Health altered records of his test results.
{¶4} The state filed a brief in opposition, arguing that Jones’ motion to suppress
constituted a general challenge to the reliability of the Intoxilyzer 8000. The state
argued it was not required to present evidence that the Intoxilyzer 8000 is reliable
because the legislature had delegated this determination to the Director of Health and
the Supreme Court of Ohio upheld this delegation of authority in State v. Vega, 12 Ohio
St.3d 185 (1984).
{¶5} At the outset of the suppression hearing, defense counsel stated Jones
was not making a general attack on the Intoxilyzer 8000. Instead, he argued that the
specific machine used in this case is not reliable and that the state was required to
show this machine is in proper working order.
{¶6} In the early morning hours of November 12, 2011, State Trooper Thomas
Hermann clocked Jones driving 58 mph in a 45 mph zone. The trooper stopped Jones.
Upon approaching Jones’ vehicle, the trooper detected an odor of an alcoholic
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beverage. The trooper noticed Jones’ eyes were glassy and bloodshot and his speech
was slurred. Based on these observations, the trooper asked Jones to exit his vehicle
for field sobriety tests. The trooper noticed a strong odor of alcohol on Jones’ breath.
Jones failed each of the field sobriety tests, and the trooper arrested him for OVI. Jones
submitted to an Intoxilyzer 8000 breath test, which resulted in a reading of .129.
{¶7} Mary Martin, the Ohio Department of Health Program Administrator for
Alcohol and Drug Testing, testified she is responsible for reviewing and revising the
Department’s rules and regulations. She is familiar with all Department-approved
breath-testing instruments. She has been trained regarding the construction and
operation of the Intoxilyzer 8000 by its manufacturer. She said that as part of her job,
she trains judges, prosecutors, and defense attorneys regarding the Intoxilyzer 8000.
{¶8} Ms. Martin said that upon completion of a breath test by the Intoxilyzer
8000, the instrument prints out a report of the defendant’s test called a “Subject Test
Report,” which includes the offender’s personal information, his arrest information, and
his test information.
{¶9} Ms. Martin said that a “subject test” is not defined in the Administrative
Code or the Revised Code. However, she said a “subject test” is the entire breath test
as reported in the “Subject Test Report.” She said that is what was meant by the
phrase “subject test” when Ohio Adm.Code 3701-53-04 was adopted. She said a
subject test requires two breath samples to be a valid subject test. She said the
Department uses the lower of the two readings as the chargeable per-se level.
{¶10} Ms. Martin said that, pursuant to Ohio Adm.Code 3701-53-04(B), one dry
gas control is performed at the beginning of the subject test and one dry gas control is
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performed at the end of the subject test. She said the study guide printed by the
Department for police officers trained on the Intoxilyzer 8000 references two dry gas
controls, one before the subject test and one after it.
{¶11} Ms. Martin identified Jones’ Subject Test Report printed by the Intoxilyzer
8000. The report shows that the instrument took two breath samples from Jones.
Before Jones gave his first breath sample, the Intoxilyzer 8000 conducted a dry gas
control test as part of its calibration process. The machine ran another dry gas control
test after Jones gave his second breath sample.
{¶12} Ms. Martin said the original Subject Test Report form, which was used for
Jones’ test, referred to the two breath samples that are blown into the Intoxilyzer 8000
as “Subject Test 1” and “Subject Test 2.” She said the original form and Ohio
Adm.Code 3701-53-04(B), which also references the phrase “subject test,” were drafted
by her predecessor at the Department. She said that using the phrase “Subject Test 1”
and “Subject Test 2” on the original form to refer to the two breath samples caused
confusion because the phrase “subject test” is also used in the title of the test report.
As a result, in November 2011, she revised the Subject Test Report form to refer to the
two breath samples as “Subject Sample 1” and “Subject Sample 2.” This change was
made with the approval of the Director of Health. Ms. Martin said that when she
changed the Subject Test Report form, the change had no effect on prior tests. She
said that Jones was tested on the Intoxilyzer 8000 before this change to the form, and
that the Subject Test Report printed by the Intoxilyzer 8000 in connection with Jones’
test remains the same.
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{¶13} Ms. Martin said that all Intoxilyzer 8000 instruments in Ohio are connected
to the Department’s database, which is referred to as COBRA. She said all data on the
Subject Test Report forms is uploaded to the database in a read-only format so that the
data cannot be changed. The completed form itself is not uploaded to the Department’s
database; only the data contained in the form is uploaded. The server retrieves the
data, which is included on a spreadsheet in rows and blocks of information.
{¶14} In contrast to the database, the Department has also created a website,
which contains all test results uploaded to the Department’s database. While the data
uploaded by the Intoxilyzer 8000 instruments from the Subject Test Reports cannot be
changed, the forms used by the Department’s website to report the data can be and
occasionally are changed to, e.g., include or exclude certain data in the database, to
change the order in which data is included, to increase the size of certain fields to allow
additional data to be included to correctly reflect the data in the database, or to change
the title of a field.
{¶15} Ms. Martin said that when the Department changed the language on the
Subject Test Report form in November 2011 from “Subject Test 1” and “Subject Test 2”
to “Subject Sample 1” and “Subject Sample 2,” this change was reflected on all Subject
Test Report forms printed by the Intoxilyzer 8000 after that date. This change was also
reflected on the Department’s website. This change did not, however, alter the actual
test results or any data contained in the Subject Test Reports.
{¶16} Ms. Martin said the website is not meant to provide evidence. The breath
instrument itself prints a Subject Test Report of a defendant’s breath test, which is used
as evidence in court. In contrast, the purpose of the website is to provide information
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that can be easily accessed by prosecutors and defense counsel so they do not have to
travel to the police department to obtain breath-test results.
{¶17} Ms. Martin said that the data in all Subject Test Reports is uploaded to the
Department’s database and that the Department retains the data contained in the
database indefinitely.
{¶18} Finally, Patrick Sullivan, Breath-Testing Inspector for the Department,
testified he instructs on the proper operation of the Intoxilyzer 8000. He said he certified
the subject Intoxilyzer 8000 used to test Jones’ breath as working properly as of the
date of Jones’ test. Following Mr. Sullivan’s testimony, Jones’ attorney withdrew his
challenge to the reliability of this specific instrument.
{¶19} Following the presentation of the evidence, the court entered judgment
granting Jones’ motion to suppress the results of his breath test. The court found that
Jones made a general attack on the reliability of the Intoxilyzer 8000, which placed the
burden on the state to prove the instrument is reliable. The court concluded that,
because the state did not produce such evidence, Jones’ motion to suppress was
granted and the per-se violation was dismissed.
{¶20} The court further found that, pursuant to the express language of the Ohio
Administrative Code, a dry gas control must be performed before and after every
subject test and that, since a dry gas control was not run between Subject Test 1 and
Subject Test 2, Jones’ test did not comply with the Administrative Code and the test
results were inadmissible.
{¶21} Further, the court found that by changing the terms used to refer to Jones’
breath samples from “Subject Test 1” and “Subject Test 2” to “Subject Sample 1” and
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“Subject Sample 2” on the Department’s website, it had changed the records of Jones’
breath test. The court found that Ms. Martin’s testimony that the Department only
changed the forms on its website, not the records of Jones’ test results, was “faulty and
wrong.” The court found that, because the Department’s website maintains records of
breath-test results, not forms, the records of Jones’ test results were changed by the
Department.
{¶22} The trial court granted the state’s motion to stay execution of the judgment
pending appeal.
{¶23} The state appeals the trial court’s judgment, asserting three assignments
of error. For its first assigned error, the state alleges:
{¶24} “The Portage County Municipal Court erred in permitting a general attack
on the scientific reliability of the Intoxilyzer 8000 contrary to Ohio statutes and well-
established case law.”
{¶25} We review a trial court’s legal determinations at a suppression hearing de
novo. State v. Dijsheff, 11th Dist. No. 2005-T-0001, 2006-Ohio-6201, ¶19.
{¶26} Jones argued below that he was not making a general challenge to the
reliability of the Intoxilyzer 8000. Instead, he argued the specific device used to test his
breath samples was not reliable due to its prior alleged errors. However, this court has
held that a challenge to a breath-test result on the ground that the specific device has
previously malfunctioned is prohibited as a general challenge to the reliability of the
instrument. State v. Urso, 195 Ohio App.3d 665, 2011-Ohio-4702, ¶91 (11th Dist.). As
a result, we agree with the trial court’s finding that Jones made a general attack on the
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reliability of the Intoxilyzer 8000. We do not, however, agree with the trial court’s ruling
that Jones was entitled to make such a challenge.
{¶27} In State v. Carter, 11th Dist. No. 2012-P-0027, 2012-Ohio-5583, this court
followed the Supreme Court of Ohio’s decision in Vega, supra, in acknowledging that
the General Assembly in R.C. 3701.143 authorized the Director of Health to determine
techniques for chemically analyzing the amount of alcohol contained in a person’s
breath. Carter at ¶16-17. Further, this court recognized that R.C. 4511.19(D)(1)(b)
requires breath samples be analyzed for alcohol content in accord with methods
approved by the Director of Health pursuant to R.C. 3701.143. Carter at ¶20. This court
noted that the Director of Health, at Ohio Adm.Code 3701-53-02(A)(3), approved the
Intoxilyzer 8000 as an evidential breath-testing instrument. Carter at ¶21.
{¶28} Further following Vega, this court in Carter stated that R.C. 4511.19
represented a legislative determination that breath-testing devices adopted by the
Director of Health are generally reliable. Carter at ¶24, citing Vega at 188. This court
stated that, “‘in light of R.C. 4511.19, an accused may not make a general attack upon
the reliability * * * of a breath testing instrument.’” Carter at ¶25, quoting Vega at 190.
{¶29} This court held that since the General Assembly has legislatively
determined that the Intoxilyzer 8000 is reliable, it must be presumed this device is
reliable. Carter at ¶37. Therefore, this court held that the state did not have the burden
to produce evidence of the machine’s reliability in order for the defendant’s breath-test
results to be admissible at trial. Id. at ¶39.
{¶30} This court in Carter held that, although the Intoxilyzer 8000 is presumed
reliable, a defendant is entitled to make specific challenges to the general reliability of
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the Intoxilyzer 8000. Carter at ¶43, citing Vega. However, because the Intoxilyzer 8000
is presumed reliable, the defendant has the burden of production to present evidence
that the instrument is not reliable. Carter, supra.
{¶31} Pursuant to Carter, we hold the trial court erred in requiring the state to
produce evidence of the Intoxilyzer 8000’s general reliability; in granting Jones’ motion;
and in excluding the results of his breath test.
{¶32} Therefore, on remand, the trial court is instructed to reinstate Jones’ per-
se charge. The state’s first assignment of error is sustained.
{¶33} For its second assignment of error, the state alleges:
{¶34} “The Portage County Municipal Court erred in finding the testing protocol
for the Intoxilyzer 8000 did not comply with Ohio Adm.Code 3701-53-04(B), rendering
the test results inadmissible at trial.”
{¶35} “Appellate review of a motion to suppress presents a mixed question of
law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶8. The
appellate court must accept the trial court’s factual findings, provided they are supported
by competent, credible evidence. Id. Thereafter, the appellate court must determine,
without deference to the trial court, whether the applicable legal standard has been met.
Id. Thus, we review the trial court’s application of the law to the facts de novo. Id.{¶36} Pursuant to the burden-shifting procedure that governs the admissibility of
breathalyzer test results, the defendant must first challenge the validity of the test in a
pretrial motion to suppress. Urso, supra, at ¶33. The state then has the burden to show
the test was administered in substantial compliance with regulations prescribed by the
Director of Health. Id. After the state satisfies this burden, the burden then shifts to the
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defendant to demonstrate he was prejudiced by anything less than strict compliance. Id.
We consider whether the facts in the instant case demonstrate substantial compliance
with the Department of Health regulations under a de novo standard of review.
Burnside, supra.
{¶37} Pursuant to R.C. 3701.143, the Director of Health is authorized to issue
regulations regarding blood, breath, and urine testing for drugs and alcohol. The
approved methods for chemically analyzing a person’s breath are set forth in Ohio
Adm.Code 3701-53-01, et seq. Pertinent to this appeal is Ohio Adm.Code 3701-53-04,
which specifies the “instrument check,” or calibration requirements for approved breath-
testing machines. Ohio Adm.Code 3701-53-04(B) provides: “Instruments listed under
paragraph (A)(3) of rule 3701-53-02 of the Administrative Code [i.e., the Intoxilyzer
8000] shall automatically perform a dry gas control test before and after every subject
test * * * using a dry gas standard traceable to the national institute of standards and
technology (NIST).” (Emphasis added.)
{¶38} “Calibration is the process by which a breathalyzer machine is tested for
its range of accuracy.” See State v. Booth, 151 Ohio App.3d 635, 638 (9th Dist.2003).
The calibration sequence for the Intoxilyzer 8000 is documented in a form prepared by
the Director of Health called the “Subject Test Report.” As of the date of Jones’ test, the
report set forth the actual calibration procedure as follows:
{¶39} “[1.] Air Blank
{¶40} “[2.] Diagnostic
{¶41} “[3.] Air Blank
{¶42} “[4.] Dry Gas Control
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{¶43} “[5.] Air Blank
{¶44} “[6.] Subject Test 1
{¶45} “[7.] Air Blank
{¶46} “[8.] Air Blank
{¶47} “[9.] Subject Test 2
{¶48} “[10.] Air Blank
{¶49} “[11.] Dry Gas Control
{¶50} “[12.] Air Blank”
{¶51} “Air Blanks” ensure that the previous breath sample has been purged from
the machine. “Subject Test 1” and “Subject Test 2” indicate each time an individual
blows into the machine. "Dry Gas Control” tests check the calibration of the instrument
to ensure its results are accurate. Id.{¶52} Jones argues that, since the Subject Test Report refers to the breath
samples as “Subject Test 1” and “Subject Test 2,” a subject test occurs each time an
accused blows into the machine. He argues that, because Ohio Adm.Code 3701-53-
04(B) requires a dry gas control test before and after every subject test, a dry gas
control had to be performed before and after each blow into the machine. He argues
the Intoxilyzer 8000 used to test his breath samples did not run a dry gas control before
and after each time he blew into the instrument, as required by Ohio Adm.Code 3701-
53-04(B), and the results are therefore inadmissible.
{¶53} In contrast, the state argues the term “subject test” as used in Ohio
Adm.Code 3701-53-04(B) refers to the breath test as a whole so that a dry gas control
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was only required before the first breath sample was blown and after the second sample
was blown.
{¶54} Resolution of this issue requires us to interpret Ohio Adm.Code 3701-53-
04(B). Interpretation of an administrative regulation presents a question of law that we
review de novo without deference to the ruling of the trial court. State v. Consilio, 114
Ohio St.3d 295, 2007-Ohio-4163, ¶18. In determining what is meant by the phrase
“subject test,” we first look to the plain language of the regulation. Provident Bank v.
Wood, 36 Ohio St.2d 101, 105-106 (1973). If a regulation conveys a clear meaning, the
interpretive effort is at an end. Id. at 106.
{¶55} In addressing the identical issue before us, the Twelfth District recently
interpreted Ohio Adm.Code 3701-53-04(B) in State v. Kormos, 12th Dist. No. CA2011-
08-059, 2012-Ohio-3128, discretionary appeal not allowed by the Supreme Court of
Ohio at 2012-Ohio-5459, 2012 Ohio LEXIS 2957.
{¶56} In determining the common meaning of the phrase “subject test,” the
Twelfth District relied on the definition of the word “subject” in Webster’s Dictionary, i.e.,
“one that is placed under the authority * * * of someone * * * an individual whose
reactions or responses are studied.” Kormos at ¶16, citing Webster’s Third New
International Dictionary 2275 (1993). Applying this definition to Ohio Adm.Code 3701-
53-04(B), the Twelfth District held that “a ‘subject test’ is synonymous with running the
Intoxilyzer 8000 on a single ‘subject,’ i.e., ‘individual’ under law enforcement’s control.”
Kormos, supra. Consequently, the court held that there is only one “subject test” and
“Subject Test 1” and “Subject Test 2” are simply components of the same breath test.
Kormos, supra.
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{¶57} The Twelfth District in Kormos noted that its holding is consistent with the
Health Department’s interpretation of Ohio Adm.Code 3701-53-04(B), as explained by
Ms. Martin, who also testified in that case. Id. at ¶17. As in the instant case, Ms. Martin
testified in Kormos that, pursuant to Ohio Adm.Code 3701-53-04(B), a dry gas control is
required before the first blow and after the last blow, but not between a person’s
consecutive blows. She said that what is labeled as “Subject Test 1” and “Subject Test
2” merely refer to the breath samples blown into the machine. As in the present case,
Ms. Martin said that, to avoid confusion, the Health Department had since changed the
wording on the Subject Test Report form in November 2011 from “Subject Test 1” and
“Subject Test 2” to “Subject Sample 1” and “Subject Sample 2.” The court in Kormos
noted that courts must give due deference to the Department’s reasonable
interpretation of administrative regulations. Id., citing State ex rel. Turner v. Eberlin, 117
Ohio St.3d 381, 2008-Ohio-1117, ¶17.
{¶58} Further, in support of its holding, the Twelfth District noted that Ohio
Adm.Code 3701-53-04(B) does not refer to a dry gas control before, after, and in
between every subject test. Kormos at ¶20. As a result, the court said it could not
expound on this silence to construe the phrase “subject test” beyond its common
meaning to find that the code section requiring dry gas controls before and after every
subject test requires them before and after every separate blow. Id.{¶59} It is noteworthy that, while the state relies on Kormos, Jones does not
address it. He therefore makes no attempt to challenge or distinguish it. We also note
that the First District in Cincinnati v. Nicholson, 1st Dist. No. C-120332, 2013-Ohio-708,
¶8, recently adopted the Twelfth District’s analysis and decision in Kormos. Further, our
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research has not disclosed any countervailing appellate case law authority, and Jones
has not referenced any such authority.
{¶60} We find the analysis adopted by the First and Twelfth Districts to be
persuasive. However, we find additional support from the title of the report itself. We
note that both the original and revised versions of the report approved by the Director
are entitled, “Subject Test Report,” thus indicating it is the report of a single subject test.
In both versions, the entire test procedure is set forth, which includes twelve steps,
including a reference to both breath samples blown by the defendant. There is nothing
in the report to indicate that it is meant to be the report of two separate tests for each
breath sample. To the contrary, these breath samples are simply listed as two
component parts of a single test procedure. If the Director intended the report to be a
report of two separate breath tests, he would have called it “Subject Tests Report.”
Since the title of the report is stated in the singular, the Director clearly intended the
report to be the report of one test, which includes two breath samples.
{¶61} It does not escape our attention that, throughout his brief, Jones
misrepresents the record. For example, he repeatedly suggests that Ms. Martin testified
the Administrative Code was written to require a dry gas control before and after each
breath sample. In fact, she testified the Code only requires a dry gas control before the
first blow and after the second. Further, he argues that Ms Martin testified the
Department is able to manipulate and alter data from the Subject Test Reports. In fact,
she testified the Department cannot change any data from these reports.
{¶62} We therefore hold the plain language of Ohio Adm.Code 3701-53-04(B)
requires a dry gas control before and after a subject, i.e., a defendant, is tested. Thus,
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the Code section requires a dry gas control before a subject’s first breath sample and
after his second sample, but not between the two samples as they are merely two
breath samples taken during one test. That is exactly what occurred here. The state
thus demonstrated substantial compliance with Ohio Adm.Code 3715-53-04(B).
Further, Jones failed to demonstrate prejudice resulting from anything less than strict
compliance, i.e., that the absence of a dry gas control between the two blows resulted in
an incorrect test result. Thus, the trial court erred in interpreting Ohio Adm.Code 5701-
53-04(B) to require a dry gas control between the two breath samples.
{¶63} The state’s second assignment of error is sustained.
{¶64} For its third and final assigned error, the state alleges:
{¶65} “The Portage County Municipal court erred in excluding the results of the
Intoxilyzer 8000 test based on the court’s finding that the records of Jones’ breath test
results had been changed by the Ohio Department of Health.”
{¶66} The trial court found that the Department of Health had changed the
records of Jones’ breath test apparently because it changed the phrase “Subject Test 1”
and “Subject Test 2” on the Department’s website to “Subject Sample 1” and “Subject
Sample 2” to describe the two breath samples Jones blew into the machine. For this
additional reason, the court held that Jones’ test results were inadmissible. We do not
agree.
{¶67} First, the court did not state that the Department’s change to its website
resulted in the violation of any regulation. Because there is no requirement that the
Department establish a website making available to the public all breath test results, the
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Department’s choice as to how it refers to breath samples on its website cannot be
grounds to challenge the admissibility of Jones’ test results.
{¶68} Second, Jones generally alleged a violation of Ohio Adm.Code 3701-53-
01(A), which provides: “The results of the tests shall be retained for not less than three
years.” However, Ms. Martin’s testimony that the Department retains all test results
indefinitely in its database demonstrated it substantially complied with the three-year
record retention requirement. Despite this showing, Jones failed to demonstrate
prejudice resulting from any failure to strictly comply with the retention requirement, i.e.,
that the Department’s change in how it refers to the breath samples on its website
resulted in an incorrect test result. On nearly identical facts, the Twelfth District in State
v. Dugan, 12th Dist. No. CA2012-04-081, 2013-Ohio-447, ¶38, held the state proved
substantial compliance with Ohio Adm.Code 3701-53-01(A). To the extent the trial
court found a violation of this Code section, we hold the trial court erred.
{¶69} The state’s third assignment of error is sustained.
{¶70} For the reasons stated in the opinion of this court, it is the judgment and
order of this court that the judgment of the Portage County Municipal Court, Ravenna
Division, is reversed, and the matter is remanded to the trial court for further
proceedings consistent with this opinion.
DIANE V. GRENDELL, J., concurs in judgment only with a Concurring Opinion,
THOMAS R. WRIGHT, J., concurs in part, dissents in part with a Concurring/Dissenting
Opinion.
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____________________
DIANE V. GRENDELL, J., concurs in judgment only with a Concurring Opinion.
{¶71} I concur in the judgment and opinion of this court with respect to the
second and third assignments of error. With respect to the first assignment of error, I
concur in judgment only for the reasons stated in my concurring/dissenting opinions in
State v. Carter, 11th Dist. No. 2012-P-0027, 2012-Ohio-5583, and State v. Rouse, 11th
Dist. No. 2012-P-0030, 2012-Ohio-5584.
____________________
THOMAS R. WRIGHT, J., concurs in part, dissents in part with a Concurring/Dissenting
Opinion.
{¶72} I concur with the disposition of assignments of error two and three.
However, I dissent regarding the disposition of assignment of error one for the reasons
stated in my dissenting opinion in State v. Lucarelli, 11th Dist. No. 2012-P-0065, 2013-
Ohio-1606.
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