State v. Love ( 2014 )

[Cite as State v. Love, 2014-Ohio-4287.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2013-A-0062
- vs - :
KARIN L. LOVE, :
Defendant-Appellant. :
Criminal Appeal from the Ashtabula County Court of Common Pleas.
Case No. 2011 CR 131.
Judgment: Affirmed.
Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047-1092 (For Plaintiff-Appellee).
Michael A. Hiener, P.O. Box 1, Jefferson, OH 44047 (For Defendant-Appellant).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, Karin L. Love, appeals the judgment entered by the Ashtabula
County Court of Common Pleas. The trial court sentenced Love to a prison term of six
years for aggravated vehicular homicide.
{¶2} On April 3, 2011, Michael Totora and his two sons were returning from an
evening with family and friends celebrating his parents’ 50th wedding anniversary. On
their drive home, the car they were driving broke down along U.S. Route 20 in
Ashtabula County, near the Geneva City line. While waiting for assistance, Mr. Totora
was struck by a vehicle operated by Love. Mr. Totora died at the scene.
{¶3} On May 6, 2011, Love was indicted by the Ashtabula County Grand Jury
on three counts. The charges consisted of: Count 1, aggravated vehicular homicide in
violation of R.C. 2903.06(A)(1)(a); Count 2, operating a vehicle while under the
influence (“OVI”) in violation of R.C. 4511.19(A)(1)(a); and Count 3, OVI in violation of
R.C. 4511.19(A)(1)(d). Love initially pled not guilty to these charges.
{¶4} On June 1, 2011, Love filed a motion to suppress the results from her
breath test. Appellee, the state of Ohio, responded to Love’s motion to suppress on
October 5, 2011. Love then filed a supplemental motion to suppress, and multiple
responses and replies were subsequently filed through July 24, 2012.
{¶5} On February 19, 2013, the trial court indicated in a judgment entry that it
would not permit Love to challenge the general reliability of the Intoxilyzer 8000
breathalyzer machine. The trial court found that the issue of the Intoxilyzer 8000’s
general reliability had already been decided by this court and that allowing a general
challenge would be inappropriate given existing precedent.
{¶6} On March 15, 2013, following the trial court’s judgment entry prohibiting a
general challenge to the reliability of Love’s breath test, Love filed a motion listing seven
specific challenges to her breath test. Appellee responded in opposition to Love’s
specific challenges on April 26, 2013.
{¶7} On May 22, 2013, the trial court, in a 12-page judgment entry, overruled
Love’s motion to suppress. Distilling the trial court’s judgment entry to its essence, the
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trial court found no reason to suppress the evidence from the breath test administered
at the Ohio State Highway Patrol Post following the crash.
{¶8} On May 28, 2013, Love withdrew her not guilty plea and pled no contest to
the three charged counts.
{¶9} On September 26, 2013, the trial court filed its judgment entry of
sentence. The trial court found Counts 2 and 3 to be of similar import to Count 1, the
aggravated vehicular homicide count and, for the purposes of sentencing, merged
Counts 2 and 3 into Count 1. Love was sentenced to a mandatory prison term of six
years for aggravated vehicular homicide. The trial court also sentenced Love to three
years of post-release control, a lifetime driver’s license suspension, and restitution to
Mr. Totora’s family for his funeral expenses.
{¶10} Love timely appeals, setting forth two assignments of error.
{¶11} In her first assignment of error, Love argues:
{¶12} “The trial court erred when it denied Appellant’s motion to suppress.”
{¶13} Appellate review of a trial court’s ruling on a motion to suppress evidence
presents a mixed question of law and fact. State v. Burnside, 100 Ohio St. 3d 152,
2003-Ohio-5372, ¶8. We accept the trial court’s findings of fact when they are
supported by competent, credible evidence. State v. Guysinger, 86 Ohio App. 3d 592,
594 (4th Dist.1993). If the trial court’s findings of fact are supported by the record, we
review the trial court’s application of the law to those facts de novo. State v. Djisheff,
11th Dist. Trumbull No. 2005-T-0001, 2006-Ohio-6201, ¶19.
{¶14} Under this assignment of error, Love sets forth three issues for review. In
her first issue for review, Love asserts the trial court improperly overruled her motion to
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suppress because the requirements of Ohio Adm.Code 3701-53-04(B) were not
“substantially complied with when a dry gas control test was not run between the two
samples taken from appellant.” Under this issue, Love asks us to revisit our decision in
State v. Jones, 11th Dist. Portage No. 2012-P-0107, 2013-Ohio-4114, ¶36. We decline
to do so and, instead, choose to follow the precedent of this court.
{¶15} The version of Ohio Adm.Code 3701-53-04(B) in effect at the time of
Love’s arrest required that the Intoxilyzer 8000 automatically perform a dry gas control
test before and after each subject test. Specifically, “[i]nstruments 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).” Ohio Adm.Code 3701-53-04(B) (emphasis added).
{¶16} “Calibration is the process by which a breathalyzer machine is tested for
its range of accuracy.” State v. Booth, 151 Ohio App. 3d 635, 638 (9th Dist.2003). The
calibration sequence for the Intoxilyzer 8000 is documented in a form called “Subject
Test Report.” As of the date of Love’s test, the report set forth the actual calibration
procedure as follows:
[1.] Air Blank
[2.] Diagnostic
[3.] Air Blank
[4.] Dry Gas Control
[5.] Air Blank
[6.] Subject Test 1
[7.] Air Blank
[8.] Air Blank
[9.] Subject Test 2
[10.] Air Blank
[11.] Dry Gas Control
[12.] Air Blank
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{¶17} “Air Blanks” ensure that the previous sample has been fully 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. Jones, supra, at ¶51.
{¶18} Love asserts that, because 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. She further 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. She
argues that because the Intoxilyzer 8000 used to test her breath samples did not run a
dry gas control before and after each time she blew into the instrument, as required by
Ohio Adm.Code 3701-53-04(B), the results are inadmissible.
{¶19} This court faced the same issue and the same type of “Subject Test
Report” form in Jones, supra. In that case, we determined that each breath sample is
simply a component part of a single test procedure. Id. at ¶60. Other appellate districts
have also reached the same result. For example, the Twelfth Appellate District
determined that the plain language of Ohio Adm.Code 3701-53-04(B) required a dry gas
control before “Subject Test 1” and after “Subject Test 2,” as those terms were used on
the “Subject Test Form,” but that no dry gas control was required between them. State
v. Kormos, 12th Dist. Clermont No. CA2011-08-059, 2012-Ohio-3128, ¶16. Likewise,
the First Appellate District reached the same conclusion, holding that the plain language
of Ohio Adm.Code 3701-53-04(B) requires a dry gas control test before a subject’s first
breath sample and after the subject’s second breath sample, but not between the two
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samples. Cincinnati v. Nicholson, 1st Dist. Hamilton No. C-120332, 2013-Ohio-708,
¶11.
{¶20} Accordingly, we decline to revisit our holding in Jones and find that Love’s
first issue for review, under her first assignment of error, is without merit.
{¶21} In her second issue for review, Love asserts that Trooper Emery was not
properly authorized to operate the Intoxilyzer 8000 because he possessed a permit
instead of an operator card.
{¶22} At the time of Love’s arrest, Ohio Adm.Code 3701-53-09(D) stated that
“[i]ndividuals desiring to function as operators using [the Intoxilyzer 8000] shall apply to
the director of health for operator access cards on forms prescribed and provided by the
director of health.” The same provision now reads: “Individuals desiring to function as
operators using [the Intoxilyzer 8000] shall apply to the director of health for a permit,
which shall be in the form of an operator access card, on forms prescribed and provided
by the director of health.”
{¶23} Under this issue for review, Love asks us to revisit our decision in State v.
Walsky, 11th Dist. Portage No. 2012-P-0109, 2013-Ohio-4115. In Walsky, we held that
“the difference between an ‘access card’ and a ‘permit,’ for operator certification
purposes, is merely nominal.” Id. at ¶27. We decline to revisit that decision and instead
choose to follow the precedent of this court as set forth in Walsky. Love’s second issue
for review is without merit.
{¶24} In her third issue for review, Love asserts the trial court erred when it ruled
that it would not allow a general challenge to the Intoxilyzer 8000. The trial court’s
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ruling prohibiting a general challenge was based on this court’s decision in State v.
Bergman, 11th Dist. Portage 2012-P-0124, 2013-Ohio-5811.
{¶25} In Bergman, this court stated that, “[w]here the breath testing device at
issue has been approved by the Director of the Ohio Department of Health, there is no
need for the state to prove the general reliability of the device itself.” Id. at ¶3. In this
case, the trial court properly prohibited general challenges to the reliability of the
Intoxilyzer 8000. Love does not make any argument as to why this court should change
its position. Accordingly, appellant’s third issue for review under her first assignment of
error is without merit.
{¶26} As each of the three issues presented for review within Love’s first
assignment of error are without merit, Love’s first assignment of error is not well taken.
{¶27} In her second assignment of error, Love argues:
{¶28} “Appellant’s trial counsel was ineffective.”
{¶29} Specifically, Love argues her trial counsel was ineffective when he refused
to complete the suppression hearing. In order to prevail on an ineffective assistance of
counsel claim, the appellant must demonstrate from the record that trial counsel’s
performance fell below an objective standard of reasonable representation and that
there is a reasonable probability that, but for counsel’s error, the result of the
proceeding would have been different. State v. Bradley, 42 Ohio St. 3d 136 (1989),
paragraph two of the syllabus, applying the test set forth in Strickland v. Washington,
466 U.S. 668 (1984). If a claim of ineffective assistance can be disposed of by showing
a lack of sufficient prejudice, there is no need to consider the first prong, i.e., whether
trial counsel’s performance was deficient. Bradley at 143, citing Strickland at 697.
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There is a general presumption that trial counsel’s conduct is within the broad range of
competent professional assistance. Id. at 142.
{¶30} Furthermore, decisions on strategy and trial tactics are generally granted
wide latitude in professional judgment, and it is not the duty of a reviewing court to
analyze trial counsel’s legal tactics and maneuvers. State v. Gau, 11th Dist. Ashtabula
No. 2005-A-0082, 2006-Ohio-6531, ¶35, citing Strickland at 689. Debatable trial tactics
and strategies do not constitute ineffective assistance of counsel. State v. Phillips, 74
Ohio St. 3d 72, 85 (1995), citing State v. Clayton, 62 Ohio St. 2d 45, 49 (1980).
{¶31} First, Love argues that trial counsel was ineffective for declining to cross-
examine Mary Martin, Program Administrator for Alcohol and Drug Testing for the Ohio
Department of Health. Love fails to demonstrate how she was prejudiced by her trial
counsel’s failure to cross-examine Martin. Indeed, at the hearing on Love’s motion to
suppress, her trial attorney explained that he had “cross-examined Mary Martin many
times. I don’t believe that she will enter into evidence anything additional that is
important to my motion to suppress. So for those reasons, Your Honor, I am going to
not cross-examine Ms. Martin.” There is nothing in the record to indicate how cross-
examination of Martin would have benefitted the arguments raised in the motion to
suppress. Accordingly, Love fails to establish prejudice for her trial counsel’s failure to
cross-examine Martin.
{¶32} Next, Love states that trial counsel failed to “point out deficiencies in the
regulations or the operation of the machine in question.” However, Love fails to state
what these deficiencies were and how they prejudiced her. Indeed, appellant’s trial
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counsel made seven specific challenges to her breath test. Each of these was
overruled.
{¶33} Finally, Love claims her trial counsel was ineffective for failing to preserve
a general challenge to the Intoxilyzer 8000. Love argues that the issue of whether the
state needs to prove the general scientific reliability of a breath testing device that has
been approved by the Director of the Ohio Department of Health is not yet settled. This
court has held in an en banc proceeding that “[w]here the breath testing device at issue
has been approved by the Director of the Ohio Department of Health, there is no need
for the state to prove the general reliability of the device itself.” State v. Bergman, 11th
Dist. Portage No. 2012-P-0124, 2013-Ohio-5811, ¶3. Our decision in Bergman
comports with that of other Ohio appellate districts that have considered the issue. See,
e.g., State v. Dugan, 12th Dist. Butler No. CA2012-04-081, 2013-Ohio-447, ¶22. Love
argues that until the Ohio Supreme Court rules on this issue, it was ineffective
assistance of trial counsel not to preserve the issue for appeal. We disagree.
{¶34} At the hearing on Love’s motion to suppress, Love’s trial attorney stated:
“I did have two witnesses available or who were prepared to testify to the scientific
reliability and the workings of the Intoxilyzer 8000; specifically, the Intoxilyzer 8000 and
specifically this machine here in question.” Love’s counsel did not call these witnesses
because the trial court’s February 19, 2013 docket entry prohibited an attack on the
general reliability of the Intoxilyzer 8000. However, the testimony of these two possible
witnesses is not in the record. As a result, we cannot definitively say whether Love’s
trial counsel was ineffective for not calling them to testify. These claims are often better
suited for postconviction proceedings. Addressing them in a postconviction proceeding
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would allow testimony in the record as to what the witnesses would have testified, and
also allow the state to explore whether the failure to request suppression was legitimate
trial strategy. See State v. Cooperrider, 4 Ohio St. 3d 226, 228 (1983).
{¶35} Accordingly, Love’s second assignment of error is without merit.
{¶36} For the reasons stated above, the judgment of the Ashtabula County
Court of Common Pleas is hereby affirmed.
CYNTHIA WESTCOTT RICE, J., concurs,
COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.
____________________
COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.
{¶37} Finding merit in appellant’s first issue presented under the first assignment
of error, I would reverse and remand. I agree with appellant that former Ohio
Adm.Code 3701-53-04(B) was ambiguous, and would decline to apply this court’s prior
decision in Jones, 11th Dist. Portage No. 2012-P-0107, 2013-Ohio-4114.
{¶38} As the majority recounts, in Jones appellant raised essentially the same
argument: that former Ohio Adm.Code 3701-53-04(B) required dry gas control tests be
run before and after each subject test; that the protocol for the machine indicates two
subject tests must be run on each person being tested; and, that the procedure actually
used was to run dry gas controls at the beginning and end of the entire session – but
not between the two individual tests comprising the whole test.
{¶39} In Jones, this court concluded the term “subject test” as used in former
Ohio Adm.Code 3701-53-04(B) referred to the whole testing procedure, not the taking of
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the individual breath samples, even though the protocol for the machine terms these
subject tests. Jones at ¶34-62. The majority correctly points out the same conclusion
has been reached by the Twelfth and First Districts. Kormos, 12th Dist. Clermont No.
CA2011-08-059, 2012-Ohio-3128; Nicholson, 1st Dist. Hamilton No. C-120332, 2013-
Ohio-708. However, as appellant points out, Ohio Adm.Code 3701-53-04(B) has been
amended to add the phrase, “a subject test shall include the collection of two breath
samples.” Presumably, the Director of Health has done this to bring the regulation in
line with the decisions.
{¶40} Statutes – and administrative regulations having the force of statutes – are
ambiguous “‘if the language is susceptible of more than one reasonable interpretation.’”
State v. Swidas, 11th Dist. Lake No. 2009-L-104, 2010-Ohio-6436, ¶17, quoting State v.
Evankovich, 7th Dist. Mahoning No. 09 MA 168, 2010-Ohio-3157, ¶8.
{¶41} I agree with appellant that amendment of the regulation would have been
superfluous if the former version had been clear and unambiguous. That it was not is
indicated by the fact the issue was presented to at least three Ohio appellate courts.
Consequently, I would find former Ohio Adm.Code 3701-53-04(B) was ambiguous, and
would reverse and remand on that basis.
{¶42} I respectfully dissent.
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