State v. Marion , 2022 Ohio 2480 ( 2022 )

[Cite as State v. Marion, 2022-Ohio-2480.]
COURT OF APPEALS
COSHOCTON COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P. J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. John W. Wise, J.
-vs-
Case No. 2022 CA 0002
PAMELA D. MARION
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 2020 CR 0133
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: July 18, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
BENJAMIN E. HALL TODD W. BARSTOW
ASSISTANT PROSECUTOR 261 West Johnstown Road
318 Chestnut Street Suite 204
Coshocton, Ohio 43812 Columbus, Ohio 43230
Coshocton County, Case No. 2022 CA 0002 2
Wise, J.
{¶1} Appellant appeals her conviction and sentence on one count of Aggravated
Vehicular Homicide and one count of OVI, entered on December 22, 2021, in the
Coshocton Court of Common Pleas, following pleas of no contest.
{¶2} Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶3} The relevant facts and procedural history are as follows:
{¶4} On August 24, 2020, Appellant Pamela Marion was operating a motor
vehicle on State Route 16 in Coshocton County. At approximately 2:54 p.m., she went
left of center and collided head-on with another vehicle operated by Robert Jacobs.
Deputy Johnson of the Coshocton County Sheriff’s department responded to the scene
along with paramedics. Mr. Jacobs was killed in the collision.
{¶5} Appellant was injured and taken to Genesis Hospital in Zanesville, Ohio.
While at Genesis Hospital, she had her blood and urine collected as part of her treatment.
Appellant was treated for her injuries and released the following day.
{¶6} Appellant was too badly injured at the scene for Deputy Johnson to request
that she perform any field sobriety tests or submit to breath-alcohol testing.
{¶7} On August 26, 2020, Deputy Johnson requested that his supervisor,
Lieutenant Hardway, submit a subpoena to Genesis Hospital pursuant to R.C.
§2317.02(B)(2)(a) and R.C. §2317.022. Specifically, he requested test results that would
show the presence of prohibited substances or alcohol in Appellant's blood or urine.
{¶8} On August 31, Deputy Johnson drove to Genesis Hospital and personally
obtained the subpoenaed blood and urine screens. The urine screen, collected by a
Coshocton County, Case No. 2022 CA 0002 3
catheter, showed the presence of amphetamines, marijuana/THC, and fentanyl. Dep.
Johnson was able to confirm that the fentanyl was provided during Appellant's treatment.
{¶9} By August 31, 2020, Appellant's blood and urine had been destroyed by the
hospital in accordance with its internal policy.
{¶10} On September 23, 2020, Lieutenant Hardway applied for a search warrant
from Coshocton County Municipal Court Judge Timothy France. The search warrant
application directed that Genesis Hospital provide "any and all medical records for the
admission beginning 8/24/20 .... and subsequent treatment at Genesis Hospital .... for
Pamela D. Marion."
{¶11} Judge France issued the search warrant that day.
{¶12} Subsequently, Genesis Hospital provided the records requested, including
the urine toxicology screen obtained from the subpoena issued in August.
{¶13} On October 16, 2020, Appellant was indicted by the Coshocton County
Grand Jury on four counts: Count One - Aggravated Vehicular Homicide with the
predicate OVI being (A)(1)(a), under the influence, in violation of R.C. §2903.06(A)(1)(a),
a second-degree felony; Count Two - Aggravated Vehicular Homicide with the predicate
OVI being (A)(1)(G)(i), over the per se limit of Amphetamines in whole blood, in violation
of R.C. §2903.06(A)(1)(a), a second-degree felony; Count Three – OVI, in violation of
R.C. §4511.19(A)(1)(a), a first-degree misdemeanor; and, Count Four – OVI, in violation
of R.C. §4511.19 (A)(1)G)(i), a first-degree misdemeanor.
{¶14} On April 6, 2021 Appellant filed a Motion to Determine Competency.
{¶15} On May 12, 2021, a competency hearing was held.
Coshocton County, Case No. 2022 CA 0002 4
{¶16} By Judgment Entry filed May 18, 2021, the trial court found Appellant
competent to stand trial.
{¶17} On August 18, 2021, Appellant filed a "Motion to Suppress or in the
Alternative to Exclude" the "Genesis Health Care System presumptive toxicology
screening results dated August 24, 2020" of Appellant.
{¶18} A hearing on the Motion to Suppress was scheduled for September 15,
2021.
{¶19} On August 31, 2021, Appellee filed a Response to Motion to Suppress or in
the Alternative to Exclude.
{¶20} The parties entered into the following written stipulations for purposes of the
Suppression Hearing:
1. Admission of the following exhibits: (1) Subpoena for medical
records dated 8/28/20; (2) Search Warrant dated 9/23/20; (3) Search
Warrant Return dated 9/23/20; (4) Genesis Medical Records of Appellant;
(5) Certificate of Accreditation for Genesis Hospital lab effective February
9, 2019 through February 8, 2021 (CLIA accreditation); and (6) Certificate
of Accreditation for Genesis Hospital for pathology.
2. The vehicle crash that resulted in Robert C. Jacob’s death
occurred on August 24, 2020 which occurred in Coshocton County Ohio;
and
3. As a result of the crash, Defendant was taken to Genesis Hospital
in Zanesville, Ohio on August 24, 2020; and
Coshocton County, Case No. 2022 CA 0002 5
4. That deputy Chris Johnson was the primary investigating officer of
the Coshocton County Sheriff’s Department; and
5. Deputy Johnson requested a subpoena be issued for Defendant's
Medical records at Genesis hospital from the road patrol Lieutenant J.D.
Hardway of the Coshocton County Sheriff’s Department on August 26,
2020. Lieutenant Hardway was responsible for getting the subpoena issued
and served on Genesis Hospital. The subpoena is State's exhibit 1 and was
issued pursuant to R.C. 2317.022; and
6. On August 28, 2020 State's Exhibit 1 was executed and served on
Genesis Hospital; and
7. On August 31, 2020 Deputy Johnson received Appellant's medical
records from Genesis Hospital which is State's exhibit 4; and
8. On September 23, 2020 a search warrant application was
prepared and the Search Warrant was granted for Defendant's medical
records at Genesis Hospital, state's Exhibit 4; and
9. The Search Warrant return is dated September 23, 2020, State's
exhibit 3.
10. Genesis Hospital and its Laboratory is a Healthcare Provider as
defined in R.C. 2317.022; and
11. Genesis Hospital and its Laboratory is Accredited.
{¶21} At the suppression hearing both parties presented testimony and evidence
as to the propriety of the search warrant
Coshocton County, Case No. 2022 CA 0002 6
{¶22} Ultimately the trial court found probable cause for the issuance of the search
warrant that resulted in the State obtaining Genesis Healthcare records of Appellant.
{¶23} The trial court also heard testimony from Pam Perone who testified as to
the records submitted in response to the subpoena. Ms. Perone testified she was
employed by Genesis Hospital in Zanesville, Ohio, as the laboratory manager which
oversees hematology, chemistry, transfusion service, microbiology, and pathology, to
encompass histology and cytology. (Supp. T. at 25-27). She oversees toxicology which
includes testing urine for drugs. Id. at 27. Ms. Perone testified that the lab is certified by
Clinical Laboratory Improvement Amendments (CLIA). Id. The laboratory is also
accredited by the College of American Pathologists (CAP). Id. at 29. The two
accreditations concern quality control standards. Ms. Perone testified that State's exhibit
4 were the Genesis health records for Appellant. The records showed that Appellant was
positive for Amphetamines. This screen was done by urine which is the preferred method
for toxicology. Id. at 30. The hospital discards tested urine after four (4) days and since it
was collected on the 24th it was discarded on the 27th or 28th. Id. at 31. Ms. Perone
testified that the emergency department will collect the urine and send it to the lab for
testing, and that medical decisions are being made based on the results of the screen.
Id. Ms. Perone testified that laboratory results influence more than 80 percent of all care
plans put together for patients. Id. at 31. Urine is poured into an aliquot tube and
introduced to the chemistry instrument. Id. at 32. Each analyte (i.e. barbiturate,
amphetamine, THC, etc.) has a different threshold for a positive test. Id. The lab
generates a qualitative result, not quantitative. Id. The lab test shows whether something
is present or not present in the urine. Id. at 33. For Amphetamines, the cut off for a positive
Coshocton County, Case No. 2022 CA 0002 7
result is 1,000 nanograms per milliliter. Id. This threshold (twice the legal limit) gives the
instrument the most accurate results. When the threshold for the instrument is set at 1,000
nanograms per milliliter, there is a 90% confidence that is correlated with the more specific
gas chromatography method. Id. at 34. Gas chromatography is a "quantitative" method,
not qualitative. Id. at 35. The gas chromatography would further show under the umbrella
of Amphetamines which of the different components it is, such as methamphetamines.
Id. at 43. This is what would be shown if the sample was sent off to a "reference lab". Id.
at 43. Ms. Perone testified that proficiency surveys are provided by the College of
American Pathologists which test the accuracy rate of the results. This is done three times
a year. Id. at 46. It's a blind test that's sent out. The accuracy rate for this Genesis lab for
the past two quarters was 99-plus percent, which included the time Appellant's test was
performed. Id. at 46.
{¶24} By Judgment Entry filed September 30, 2021, the trial court denied the
Motion to Suppress and or Motion to Exclude.
{¶25} On November 22, 2021, Appellant entered a No Contest plea to Counts
One and Three: Aggravated Vehicular Homicide and OVI.
{¶26} On December 20, 2021, a sentencing hearing was held. The trial court
sentenced Appellant to a mandatory indefinite sentence with a mandatory minimum of six
(6) years and a maximum term of nine (9) years for Count One. Appellant was given two
hundred thirty-four (234) days of jail credit.
{¶27} Appellant now appeals, assigning the following errors for review:
Coshocton County, Case No. 2022 CA 0002 8
ASSIGNMENTS OF ERROR
{¶28} “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY
OVERRULING HER MOTION TO SUPPRESS/MOTION TO EXCLUDE EVIDENCE.
{¶29} “II. THE TRIAL COURT SENTENCED APPELLANT TO INDEFINITE
TERMS OF INCARCERATION PURSUANT TO A STATUTORY SCHEME THAT
VIOLATES APPELLANT'S CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW AS
GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS.”
I.
{¶30} In her first Assignment of Error, Appellant argues that the trial court erred
when it denied her motion to suppress. We disagree.
{¶31} There are three methods of challenging a trial court's ruling on a motion to
suppress on appeal. First, an appellant may challenge the trial court's finding of fact. In
reviewing a challenge of this nature, an appellate court must determine whether the trial
court's findings of fact are against the manifest weight of the evidence. See State v.
Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486,
597 N.E.2d 1141 (4th Dist.1991). Second, an appellant may argue the trial court failed to
apply the appropriate test or correct law to the findings of fact. In that case, an appellate
court can reverse the trial court for committing an error of law. See Williams, supra.
Finally, an appellant may argue the trial court has incorrectly decided the ultimate or final
issues raised in a motion to suppress. When reviewing this type of claim, an appellate
court must independently determine, without deference to the trial court's conclusion,
whether the facts meet the appropriate legal standard in any given case. State v. Curry,
95 Ohio App.3d 93, 96, 641 N.E.2d 1172 (8th Dist.1994). As the United States Supreme
Coshocton County, Case No. 2022 CA 0002 9
Court held in Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911(1996), "... as a general matter determinations of reasonable suspicion and probable
cause should be reviewed de novo on appeal."
{¶32} When ruling on a motion to suppress, the trial court assumes the role of trier
of fact and is in the best position to resolve questions of fact and to evaluate the credibility
of witnesses. See State v. Dunlap, 73 Ohio St.3d 308, 314, 1995-Ohio-243, 652 N.E.2d
988; State v. Fanning, 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982).
{¶33} In this case, Appellant argues the trial court incorrectly decided the ultimate
or final issues raised in her motion to suppress.
{¶34} The Fourth Amendment to the United States Constitution states: “The right
of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue,
but upon probable cause, supported by Oath or affirmation, and particularly describing
the place to be searched, and the persons or things to be seized.”
{¶35} In determining the sufficiency of probable cause in an affidavit submitted for
a search warrant, a trial judge or magistrate must make a practical, common-sense
decision whether, given all the circumstances set forth in the affidavit, including the
veracity and basis of knowledge of persons supplying hearsay information, there is a fair
probability that contraband or evidence of a crime will be found in a particular place. State
v. George, 45 Ohio St.3d 325, 544 N.E.2d 640, at paragraph one of the syllabus (1980),
citing Illinois v. Gates, 462 U.S. 213, 238–239, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).
As a reviewing court, we must accord great deference to the issuing judge's determination
of probable cause. See George, at paragraph two of the syllabus. Doubtful or marginal
Coshocton County, Case No. 2022 CA 0002 10
cases should be resolved in favor of upholding the warrant. Id. The totality of the
circumstances must be examined in determining whether probable cause existed for a
search warrant. Illinois v. Gates, supra. “Probable cause” means only the probability and
not a prima facie showing of criminal activity. George, supra, at 644. See, also, Beck v.
Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964).
{¶36} Here, the Affidavit in support of the Search Warrant read as follows:
THAT I am Lt. J.D. Hardway a certified peace officer in the State of
Ohio since 2000 and am currently the Road Patrol Supervisor at the
Coshocton County Sheriff’s Office, Coshocton, Ohio;
THAT on August 24, 2020 at approximately 2:54 pm a traffic crash
was reported on State Route 16 west of State Route 83 in Coshocton
County, State of Ohio;
THAT as a result of the crash Robert C. Jacobs was found deceased
in his vehicle off of the north side of the roadway and that Pamela D. Marion
was found with serious injuries inside of her vehicle still on the traveled
portion of State Route 16;
THAT the investigation to include physical evidence and witness
statements show that the Marion vehicle crossed the centerline and striking
the Jacobs vehicle head-on;
THAT Marion was transported to Genesis Healthcare System
Emergency Department in Zanesville, Ohio with serious injuries;
THAT Genesis Healthcare System is in possession of medical
records pertinent to the investigation into the cause of the crash;
Coshocton County, Case No. 2022 CA 0002 11
THAT I am requesting a Search Warrant to obtain these records from
Genesis Healthcare System, 2951 Maple Ave., Zanesville, Ohio 43701. The
listed crime being investigated is "Vehicular Homicide", a "misdemeanor" of
the "first degree" in violation of "O.R.C. 2903.06".
{¶37} Revised Code §2903.06 states:
(A) No person, while operating or participating in the operation of a
motor vehicle, motorcycle, snowmobile, locomotive, watercraft, or aircraft,
shall cause the death of another or the unlawful termination of another's
pregnancy in any of the following ways:
(1) (a) As the proximate result of committing a violation of division (A)
of section 4511.19 of the Revised Code or of a substantially equivalent
municipal ordinance; (b) As the proximate result of committing a violation of
division (A) of section 1547.11 of the Revised Code or of a substantially
equivalent municipal ordinance; (c) As the proximate result of committing a
violation of division (A)(3) of section 4561.15 of the Revised Code of a
substantially equivalent municipal ordinance.
(2) In one of the following ways: (a) Recklessly; (b) As the proximate
result of committing, while operating or participating in the operation of a
motor vehicle or motorcycle in a construction zone, a reckless operation
offense, provided that this division applies only if the person whose death
is caused or whose pregnancy is unlawfully terminated is in the construction
zone at the time of the offender's commission of the reckless operation
Coshocton County, Case No. 2022 CA 0002 12
offense in the construction zone and does not apply as described in division
(F) of this section.
(3) In one of the following ways:
(a) Negligently;
(b) As the proximate result of committing, while operating or
participating in the operation of a motor vehicle or motorcycle in a
construction zone, a speeding offense, provided that this division applies
only if the person whose death is caused or whose pregnancy is unlawfully
terminated is in the construction zone at the time of the offender's
commission of the speeding offense in the construction zone and does not
apply as described in division (F) of this section.
(4) As the proximate result of committing a violation of any provision
of any section contained in Title XL V of the Revised Code that is a minor
misdemeanor or of a municipal ordinance that, regardless of the penalty set
by ordinance for the violation, is substantially equivalent to any provision of
any section contained in Title XL V of the Revised Code that is a minor
misdemeanor.
{¶38} When oral testimony is not offered in support of a search-warrant affidavit,
the magistrate determines the sufficiency by “evaluating only [the facts alleged within] the
four corners of the affidavit and [applying] an objective reasonableness standard.” United
States v. Richards, 659 F.3d 527, 559 (6th Cir.2011), fn. 11 (Moore, J., concurring in
judgment only), citing United States v. Weaver, 99 F.3d 1372, 1378 (6th Cir.1996). On
appeal, “ ‘the reviewing court is concerned exclusively with the statements contained
Coshocton County, Case No. 2022 CA 0002 13
within the affidavit itself.’ ” Id., quoting Weaver at 1378. Courts have held that affiants may
make reasonable inferences within search-warrant affidavits.
{¶39} Based upon the information provided within the four corners of the affidavit,
we find a substantial basis for the finding of probable cause to issue the warrant in this
case.
{¶40} Here, the police were investigating a fatal automobile accident caused by
Appellant. The accident occurred at approximately 3:00 o’clock in the afternoon when
Appellant went left of center, hitting Mr. Jacobs’s automobile head-on and killing him.
Negligence is one of the elements listed in the Aggravated Vehicular Homicide statute.
Appellant’s medical condition at the time of the accident, be it whether she was having a
medical emergency or was under the influence of drugs and/or alcohol, is relevant to
whether Appellant was negligent in the operation of her vehicle when the accident
occurred. We find that such requests as to her condition and/or any statements she may
have made are relevant as such could indicate culpability.
{¶41} The trial court also denied Appellant’s motion to exclude the medical
records pursuant to Evid.R. 403(A), claiming that the information provided was more
prejudicial than probative.
{¶42} Specifically, Appellant argues that the urine test results are presumptive and
should be confirmed by a reference laboratory. Appellant has not argued that the testing
was not in compliance with the Ohio Administrative Code or Ohio Department of Health
regulations.
{¶43} Initially, we note that the admission or exclusion of relevant evidence rests
within the sound discretion of the trial court. State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d
Coshocton County, Case No. 2022 CA 0002 14
343 (1987). Therefore, we will not disturb a trial court's evidentiary ruling unless we find
said ruling to be an abuse of discretion. In order to find an abuse of discretion, we must
determine that the trial court's decision was unreasonable, arbitrary or unconscionable
and not merely an error of law or judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d
217, 219.
{¶44} Here, we find Pam Perone testified that Appellant’s urine screen was
positive for marijuana, amphetamines and fentanyl. She further testified as to the testing
procedure, the meaning of the test results, and the accuracy of the results. She stated
that accuracy rate for this Genesis lab for the past two quarters was greater than 99
percent.
{¶45} We further find that R.C. §4511.19(D)(1) was amended April 7, 2007,
adding a section (a). R.C. §4511.19(D)(1)(a) states:
In any criminal prosecution or juvenile court proceeding for a violation
of division (A)(1)(a) of this section or for an equivalent offense that is
vehicle-related, the result of any test of any blood or urine withdrawn and
analyzed at any health care provider, as defined in section 2317.02 of the
Revised Code, may be admitted with expert testimony to be considered with
any other relevant and competent evidence in determining the guilt or
innocence of the defendant.
{¶46} See also State v. Davenport, 12th Dist. No. CA208-01-011, 2009-Ohio-557,
wherein the Twelfth District held that a trial court has discretion to admit test results of
any blood draw as contemplated in R.C. §4511.19(D)(1)(a).
Coshocton County, Case No. 2022 CA 0002 15
{¶47} Based on the foregoing, we find that the trial court did nor err in denying
Appellant’s motion to exclude Appellant’s medical records.
{¶48} Appellant’s first assignment of error is overruled.
II.
{¶49} In her second assignment of error, Appellant challenges the presumptive
release feature of R.C. §2967.271, arguing it violates her constitutional rights to trial by
jury and due process of law, and further violates the constitutional requirement of
separation of powers.
{¶50} For the reasons stated in the dissenting opinion of The Honorable W. Scott
Gwin in State v. Wolfe, 5th Dist. Licking No. 2020CA00021, 2020-Ohio-5501, 2020 WL
7054428, we find the Reagan Tokes Law does not violate Appellant's constitutional rights
to trial by jury and due process of law, and does not violate the constitutional requirement
of separation of powers. We hereby adopt the dissenting opinion in Wolfe as the opinion
of this Court. In so holding, we also note the sentencing law has been found constitutional
by the Second, Third, and Twelfth Districts, and also by the Eighth District sitting en banc.
See, e.g., State v. Ferguson, 2nd Dist. Montgomery No. 28644, 2020-Ohio-4153, 2020
WL 4919694; State v. Hacker, 3rd Dist., 2020-Ohio-5048, 161 N.E.3d 112; State v.
Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-Ohio-3837, 2020 WL 4279793; State
v. Delvallie, 8th Dist., 2022-Ohio-470, 185 N.E.3d 536.
Coshocton County, Case No. 2022 CA 0002 16
{¶51} Appellant’s second assignment of error is overruled.
{¶52} For the foregoing reasons, the judgment of the Court of Common Pleas,
Coshocton County, Ohio, is hereby affirmed.
By: Wise, J.
Gwin, P. J., and
Hoffman, J., concur.
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