State v. Jones , 2019 Ohio 60 ( 2019 )

[Cite as State v. Jones, 2019-Ohio-60.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 17CA0070-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
ERIN Y. JONES COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellant CASE No. 16CR0339
DECISION AND JOURNAL ENTRY
Dated: January 14, 2019
CALLAHAN, Judge.
{¶1} Appellant, Erin Jones, appeals her conviction in the Medina County Court of
Common Pleas. This Court affirms.
I.
{¶2} On December 27, 2015, a multi-car accident in the northbound lanes of Interstate
71 in Medina County claimed the life of a grandfather who was returning home from Christmas
celebrations with his young grandson. At the scene, law enforcement officers identified Ms.
Jones as another individual involved in the crash. During their initial contact with Ms. Jones, the
officers noted an odor of alcohol on her person. Because a downpour made the administration of
field sobriety tests at the scene impractical, Ohio State Highway Patrol troopers transported Ms.
Jones to Medina General Hospital, where they administered the tests under the portico attached
to the emergency room entrance. The officers then obtained a urine sample with the assistance
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of hospital staff. Subsequent testing by the Ohio State Highway Patrol’s crime lab identified the
concentration of alcohol in Ms. Jones’ urine as .205 grams by weight percent alcohol.
{¶3} Ms. Jones was charged with aggravated vehicular homicide in violation of R.C.
2903.06(A)(1)(a) and R.C. 2903.06(A)(2)(a), aggravated vehicular assault in violation of R.C.
2903.08(A)(1)(a), and vehicular assault in violation of R.C. 2903.08(A)(2)(b). She moved to
suppress the results of the urine test and field sobriety tests in a short motion, arguing that the
officers lacked reasonable, articulable suspicion to administer the field sobriety tests; that they
did not conduct the tests in substantial compliance with the National Highway Transportation
and Safety Administration (“NHTSA”) guidelines; and that the collection of the urine tests did
not substantially comply with testing requirements. Ms. Jones did not articulate any specific
arguments related to the trooper’s alleged failure to substantially comply with the relevant
guidelines, nor did she file a posthearing brief on the issues raised in her motion. The trial court
denied the motion to suppress.
{¶4} A jury found Ms. Jones guilty of each charge. The trial court merged the two
counts of aggravated vehicular homicide and the counts of aggravated vehicular assault and
vehicular assault and sentenced Ms. Jones to prison terms of five years and thirty-six months,
respectively. The trial court also suspended her driver’s license for life as a consequence of her
conviction for aggravated vehicular homicide. Ms. Jones filed this appeal.
II.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED IN DENYING THE MOTION TO SUPPRESS
WHERE THE OFFICER FAILED TO SUBSTANTIALLY COMPLY WITH
FIELD SOBRIETY TESTING STANDARDS AND INSERTED A
CONTAMINANT INTO THE URINE SPECIMEN.
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{¶5} In her first assignment of error, Ms. Jones argues that the trial court erred by
denying the motion to suppress because the trooper who performed the field sobriety tests failed
to substantially comply with the NHTSA guidelines regarding the horizontal gaze nystagmus
(“HGN”), walk-and-turn, and one legged stand tests. She has also argued that the trial court
should have suppressed the results of her urine sample because the trooper testified that he added
a sulfate mixture to the sample.
{¶6} These issues are properly raised in a motion to suppress. See State v. Spees, 9th
Dist. Medina No. 17CA0061-M, 2018-Ohio-2568, ¶ 16-28. Compare State v. Baker, 146 Ohio
St.3d 456, 2016-Ohio-451, ¶ 23, citing State v. French, 72 Ohio St. 3d 446 (1995), paragraph one
of the syllabus (a defendant who fails to raise substantial compliance with the procedures for
collecting a sample for a breathalyzer test in a motion to suppress waives the requirement that the
state lay a foundation for admissibility at trial.) See also Defiance v. Kretz, 60 Ohio St. 3d 1, 3-4
(1991) (concluding that the admissibility of breathalyzer tests is properly raised in a motion to
suppress). Therefore, this Court’s review of the trial court’s ruling on the motion to suppress
presents a mixed question of law and fact. State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-
5372, ¶ 8. The trial court acts as the trier of fact during a suppression hearing and is best
equipped to evaluate the credibility of witnesses and resolve questions of fact. Id.; State v.
Hopfer, 112 Ohio App. 3d 521, 548 (2d Dist.1996), quoting State v. Venham, 96 Ohio App. 3d
649, 653 (4th Dist.1994). Consequently, this Court accepts a trial court’s findings of fact if
supported by competent, credible evidence. Burnside at ¶ 8. Once this Court has determined
that the trial court’s factual findings are supported by the evidence, we consider the trial court’s
legal conclusions de novo. In other words, this Court accepts the trial court’s findings of fact as
true, and “must then independently determine, without deference to the conclusion of the trial
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court, whether the facts satisfy the applicable legal standard.” Id., citing State v. McNamara, 124
Ohio App. 3d 706, 710 (4th Dist.1997).
{¶7} Ms. Jones has not challenged the trial court’s findings of fact. Instead, her
argument maintains that the trial court’s ultimate conclusion that the trooper substantially
complied with the NHTSA guidelines is not supported by competent, credible evidence.
Because this is a challenge to the trial court’s legal conclusion, this Court’s review is de novo.
See Burnside at ¶ 8.
{¶8} Under R.C. 4511.19(D)(4)(b), an officer may testify about the results of field
sobriety tests and the state may introduce the results as evidence in any criminal prosecution for
a violation of R.C. 4511.19(A) or (B)1:
if it is shown by clear and convincing evidence that the officer administered the
test in substantial compliance with the testing standards for any reliable, credible,
and generally accepted field sobriety tests that were in effect at the time the tests
were administered, including * * * any testing standards then in effect that were
set by the national highway traffic safety administration[.]
The State must demonstrate substantial compliance by clear and convincing evidence. State v.
Reddington, 9th Dist. Medina No. 14CA0064-M, 2015-Ohio-2890, ¶ 19; R.C. 4511.19(D)(4)(b).
{¶9} Ms. Jones did not develop any specific arguments related to the trooper’s alleged
failure to substantially comply with the NHTSA guidelines. Nonetheless, the trial court
reviewed the testimony from the suppression hearing as well as the video of the field sobriety
tests and concluded that Trooper Bissonnette substantially complied in their administration. This
Court agrees.
1
Although Ms. Jones was not charged with violating R.C. 4511.19(A) or (B), she was
charged with aggravated vehicular homicide in violation of R.C. 2903.06(A)(1)(a), which
incorporates R.C. 4511.19(A) as an element of the offense.
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{¶10} With respect to the HGN test, Ms. Jones argues that Trooper Bissonnette failed to
properly administer the test because he improperly held the stimulus ten to twelve inches from
Ms. Jones’ face instead of twelve to fifteen inches away, held the stimulus below eye level
instead of slightly above eye level, and moved the stimulus forty-five degrees in determining
lack of smooth pursuit.
{¶11} Trooper Bissonnette used his finger as the stimulus for the HGN. He did not
testify about the distance that he held his finger away from Ms. Jones’ face, but he did note at
one point during his testimony that standard practice is to hold the stimulus ten to twelve inches
away from the subject. During the balance of his testimony, however, Trooper Bissonnette
consistently referred to the twelve-to-fifteen inch range, and it appears from the dash cam video
that the State introduced into evidence that Trooper Bissonnette substantially complied with that
standard.
{¶12} With regard to the vertical position of the stimulus, the NHTSA guidelines
instruct officers to place the stimulus “approximately 12-15 inches (30-38 cm) in front of [the]
subject's nose, and slightly above eye level to commence the test,” but it does not set forth a
standard for the height at which the stimulus must be maintained. Compare Spees, 2018-Ohio-
2568, at ¶ 24. In any event, it is apparent from the dash cam video of the HGN test that Trooper
Bissonnette did, in fact, maintain his fingertip slightly above Ms. Jones’ eye level throughout the
test.
{¶13} The dash cam video also demonstrates that while administering the HGN test,
Trooper Bissonnette swept his arm to both the far left and far right relative to Ms. Jones’ face
until, at one point, he held his arm in position nearer to her face. The NHTSA manual
contemplates this motion, however, noting that officers should be alert for the “[o]nset of
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nystagmus prior to 45 degrees,” which may indicate the level of the subject’s intoxication.
Finally, the dash cam video demonstrates that Trooper Bissonnette swept his arm from center to
right and then left during each administration of the HGN test with the exception of one
occurrence, which was followed by repetition of the instructions to Ms. Jones. He therefore
substantially complied with the NHTSA manual’s guidance to “[m]ove the stimulus all the way
out to the right * * * then move the stimulus smoothly all the way across the subject’s face to the
left * * * then back to center” while maintaining the manual’s emphasis that the subject should
“[k]eep looking at the stimulus until told the test is over.”
{¶14} With respect to the walk-and-turn and one legged stand tests, Ms. Jones maintains
that Trooper Bissonnette “performed the tests on a wet, slippery asphalt surface[.]” There is no
testimony in the record indicating that the ground where Ms. Jones performed the tests was either
wet or slippery. His testimony, moreover, demonstrates that Trooper Bissonnette moved Ms.
Jones from an inappropriate environment for conducting the tests to a covered portico. Ms.
Jones also argues that Trooper Bissonnette did not provide complete instructions for the walk-
and-turn test, did not ask whether she understood the instructions, failed to advise her to maintain
the stance during the instruction phase, and did not offer adequate instruction about turning. The
dash cam video, however, confirms that Trooper Bissonnette substantially complied with the
NHTSA manual in administering the test: He demonstrated the stance for the instruction phase
and instructed Ms. Jones to maintain it during his demonstration and asked whether Ms. Jones
understood the instructions. He demonstrated a proper turn while stating, “series of small
steps—turn around.”
{¶15} In her brief on appeal, Ms. Jones has also argued that Trooper Bissonnette did not
have probable cause to arrest her and that her urine sample should be suppressed because
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Trooper Bissonnette added a “‘sulfate mixture’” to the sample. Ms. Jones did not raise these
arguments in the trial court, so she cannot raise them for the first time in this appeal. See State v.
Tyburski, 9th Dist. Lorain No. 18CA011291, 2018-Ohio-4248, ¶ 14, citing State v. Gegia, 157
Ohio App. 3d 112, 2004-Ohio-2124, ¶ 26 and State v. Nelson, 9th Dist. Summit No. 20808, 2002-
Ohio-3745, ¶ 6.
{¶16} The trial court did not err by concluding that Trooper Bissonnette substantially
complied with the NHTSA guidelines regarding administration of field sobriety tests. Ms. Jones
forfeited her arguments that her urine sample should have been suppressed and that there was no
probable cause for her arrest. Her first assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 2
THE JURY’S VERDICTS FOR AGGRAVATED VEHICULAR HOMICIDE
AND AGGRAVATED VEHICULAR ASSAULT ARE NOT SUPPORTED BY
SUFFICIENT EVIDENCE ABSENT THE URINE TEST RESULT AND MUST
BE REVERSED.
{¶17} Ms. Jones’ only argument in her second assignment of error is that without the
results of her urine test, there was insufficient evidence to support her convictions. In other
words, Ms. Jones’ second assignment of error is premised on the assumption that this Court
would sustain her first assignment of error. Because this Court has overruled her first
assignment of error and Ms. Jones has not articulated another basis for her sufficiency argument,
our resolution of her first assignment of error renders her second assignment of error moot. See
App.R. 12(A)(1)(c).2
2
The basis for concluding that Ms. Jones’ second assignment of error is moot is that it
presumes success on her first assignment of error. It is therefore distinguishable from cases in
which this Court must address an independent sufficiency argument after sustaining an
assignment of error related to trial error. Compare State v. Dixon, 9th Dist. Medina Nos.
11CA0065-M, 11CA0087-M, 2012-Ohio-4428, ¶ 17-18.
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ASSIGNMENT OF ERROR NO. 3
THE JURY VERDICTS FOR COUNTS ONE AND TWO, AGGRAVATED
VEHICULAR HOMICIDE, AND COUNTS THREE AND FOUR,
AGGRAVATED VEHICULAR ASSAULT AND VEHICULAR ASSAULT,
FAIL TO SPECIFY THE DEGREE OF THE OFFENSE OR THE
ADDITIONAL ELEMENT THAT MAKES AN OFFENSE ONE OF MORE
SERIOUS DEGREE. THE TRIAL COURT ERRED IN SENTENCING
APPELLANT FOR A FELONY OF THE SECOND DEGREE AND FELONY
OF THE THIRD DEGREE.
{¶18} Ms. Jones’ final assignment of error argues that because the jury verdicts for two
sets of her offenses were identical, they improperly failed to specify the degree of her offense
and the trial court erred by sentencing her to an offense higher than the lowest possible degree.
This Court disagrees.
{¶19} In State v. Pelfrey, 112 Ohio St. 3d 422, 2007-Ohio-256, the Ohio Supreme Court
held that when a defendant can be convicted of different degrees of the same offense, “a verdict
form signed by a jury must include either the degree of the offense of which the defendant is
convicted or a statement that an aggravating element has been found to justify convicting a
defendant of a greater degree of a criminal offense.” Id. at syllabus, citing R.C. 2945.75. Pelfrey
interpreted the requirements of R.C. 2945.75(A)(2), which relate specifically to different degrees
of the same offense. Id. at ¶ 13. R.C. 2945.75(A)(2) “applies to different degree levels within
‘an offense,’ not to different offenses altogether.” (Emphasis in original.) State v. Evans, 2d
Dist. Montgomery No. 26574, 2015-Ohio-3161, ¶ 11.
{¶20} Ms. Jones was charged with aggravated vehicular homicide in violation of R.C.
2903.06(A)(1)(a) and R.C. 2903.06(A)(2)(a). R.C. 2903.06(A)(1)(a) provides that “[n]o person,
while operating or participating in the operation of a motor vehicle * * * shall cause the death of
another * * * [a]s 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.” R.C.
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2903.06(A)(2)(a) provides that “[n]o person, while operating or participating in the operation of
a motor vehicle * * * shall cause the death of another * * * [r]ecklessly.” Both describe
aggravated vehicular homicide. R.C. 2903.06(B)(1). The difference between the two is not a
matter of different degree levels within an offense, but of two different ways of committing the
same offense: one is premised on a violation R.C. 4511.19 without specifying the requisite
mental state, while the other includes reckless operation without reference to R.C. 4511.19.
{¶21} Ms. Jones was also charged with aggravated vehicular assault in violation of R.C.
2903.08(A)(1)(a) and vehicular assault in violation of R.C. 2903.08(A)(2)(b). As is the case
with her convictions for aggravated vehicular homicide, R.C. 2903.08(A)(1)(a) provides that
“[n]o person, while operating or participating in the operation of a motor vehicle * * * shall
cause serious physical harm to another * * * [a]s 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.” R.C. 2903.08(A)(2)(b), then, provides that “[n]o person, while operating or
participating in the operation of a motor vehicle * * * shall cause serious physical harm to
another * * * [r]ecklessly.” A violation of R.C. 2903.08(A)(1)(a) constitutes aggravated
vehicular assault. R.C. 2903.08(B)(1). A violation of R.C. 2903.08(A)(2)(b) constitutes
vehicular assault. R.C. 2903.08(C)(1). The difference between the two is not a matter of
different degree levels within an offense, but of two different offenses with differing elements:
one is premised on a violation R.C. 4511.19 without specifying the requisite mental state; the
other includes reckless operation without reference to R.C. 4511.19.
{¶22} “R.C. 2945.75(A)(2) and Pelfrey apply when additional elements contained
within a particular criminal statute enhance the penalty.” State v. Wrage, 4th Dist. Scioto No.
08CA3237, 2009-Ohio-3390, ¶ 47. They do not apply when, as in this case, the defendant is
10
charged with different mechanisms of committing the same offense or with different offenses
altogether. Evans, 2015-Ohio-3161, at ¶ 11. Ms. Jones’ third assignment of error is overruled.
III.
{¶23} Ms. Jones’ first and third assignments of error are overruled. Her second
assignment of error is moot. The judgment of the Medina County Court of Common Pleas is
affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
LYNNE S. CALLAHAN
FOR THE COURT
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SCHAFER, P. J.
HENSAL, J.
CONCUR.
APPEARANCES:
DAVID C. SHELDON, Attorney at Law, for Appellant.
S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant
Prosecuting Attorney, for Appellee.