State v. Moore ( 2019 )

[Cite as State v. Moore, 2019-Ohio-3705.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals No. WD-18-030
Appellee Trial Court No. 2016CR0553
v.
Carolyn Rose Moore DECISION AND JUDGMENT
Appellant Decided: September 13, 2019
*****
Paul A. Dobson, Wood County Prosecuting Attorney, and
David T. Harold, Assistant Prosecuting Attorney, for appellee.
Michael H. Stahl, for appellant.
*****
SINGER, J.
{¶ 1} Appellant, Carolyn Rose Moore, appeals the March 14, 2018 judgment
entered in the Wood County Court of Common Pleas, after she was found guilty of six
offenses and sentenced to five years in prison. For the reasons that follow, we affirm the
judgment of the trial court, in part, and reverse, in part.
{¶ 2} Appellant sets forth eight assignments of error:
First Assignment of Error: The Trial Court erred when it denied
Moore’s Motion to Suppress evidence obtained from her blood which was
seized pursuant to a search warrant that lacked any indicia of probable
cause and from which the affiant omitted material facts.
Second Assignment of Error: Ms. Moore was denied due process of
law and a fair trial under the Ohio and United States Constitutions when the
State failed to present sufficient evidence, or any evidence at all, that any
culpable act or mental state of Carolyn Moore was the proximate cause of
the accident, an element of all [of] the homicide charges against her.
Third Assignment of Error: The Trial Court erred when it failed to
dismiss Count [Four] by operation of law after it dismissed the predicate
charge of possession of drugs.
Fourth Assignment of Error: The Trial Court erred when it denied
Ms. Moore’s Motion to Suppress the results of the testing done on her
blood because the State failed to prove substantial compliance with
required Ohio Department of Health regulations.
Fifth Assignment of Error: Ms. Moore was denied due process of
law and a fair trial under the Ohio and United States Constitutions when the
State failed to present sufficient evidence of a violation of R.C. 4511.19.
Sixth Assignment of Error: Ms. Moore was denied her rights to due
process of law and a trial before a fair and impartial jury under the Ohio
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and United States Constitutions when the State engaged in prejudicial
behavior of such severity that it cumulatively and specifically resulted in
Plain Error by the Trial Judge in not declaring an immediate mistrial.
Seventh Assignment of Error: The cumulative effective of errors by
the Trial Court, prejudicial evidence admitted over objection, and ongoing
animosity between the Trial Judge and defense counsel denied Ms. Moore
due process of law and a fair trial under the Ohio and United States
Constitutions[.]
Eighth Assignment of Error: Ms. Moore’s conviction on all charges
was against the manifest weight of the evidence[.]
Background
{¶ 3} On the evening of August 3, 2016, appellant was driving a vehicle, owned
by her mother, with her boyfriend, John Etzinger, as a front-seat passenger, when they
were involved in a single vehicle accident in Bowling Green, Wood County, Ohio. A
woman who lived near the scene of the accident called 911. A police officer arrived in
the vicinity of the accident at approximately 9:15 p.m., and he encountered appellant,
who was hysterical and repeatedly asking “is he dead” and “who was driving.” The
officer located the vehicle in a small wooded area and discovered Etzinger, deceased, in
the driver’s seat. Emergency medical technicians (“EMTs”) responded to the scene and
transported appellant to the hospital for treatment.
{¶ 4} Following an investigation, appellant was indicted, on November 3, 2016,
on seven counts: (1) driving under financial responsibility law suspension or cancellation
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(“DUS”), in violation of R.C. 4510.16(A) and (D)(1), an unclassified misdemeanor, (2)
operating a vehicle under the influence (“OVI”) of a listed controlled substance or a listed
metabolite, in violation of R.C. 4511.19(A)(1)(j)(ii) and (G)(1)(a), a first degree
misdemeanor, (3) possession of drugs, in violation of R.C. 2925.11(C)(4)(a), a fifth
degree felony, (4) involuntary manslaughter, in violation of R.C. 2903.04(A) and (C), a
first degree felony, (5) involuntary manslaughter, in violation of R.C. 2903.04(B) and
(C), a third degree felony, (6) reckless homicide, in violation of R.C. 2903.041(A) and
(B), a third degree felony, and (7) aggravated vehicular homicide, in violation of R.C.
2903.06(A)(1)(a) and (B)(2)(b)(i), a first degree felony. Appellant pled not guilty.
{¶ 5} Appellant filed numerous pretrial motions, including three motions to
suppress regarding evidence seized pursuant to a number of search warrants.
Suppression hearings were held on October 5 and November 20, 2017. On January 4,
2018, the trial court denied the motions to suppress which are the subject of this appeal.1
{¶ 6} A five-day jury trial began on January 8, 2018, and ended on January 12,
2018. At the close of the state’s case, the court granted appellant’s Crim.R. 29 motion as
to Count 3 of the indictment. Thereafter, the jury found appellant guilty of the remaining
counts in the indictment.
{¶ 7} A sentencing hearing was held on March 13, 2018. The court, without
objection, merged Counts 4 through 7. The state elected for appellant to be sentenced on
1
Appellant argues, in her first and fourth assignments of error, that the trial court erred in
denying her first and third motions to suppress, filed September 12 and 22, 2017,
respectively. We will limit our analysis accordingly.
4.
Count 7, and the court imposed a mandatory five-year prison term. With respect to
Counts 1 and 2, the court imposed a $1,000 fine and a 180-day jail sentence, respectively,
with the sentence to run concurrently with the prison term imposed in Count 7. Appellant
also received a lifetime driver’s license suspension. Appellant timely appealed.
First Assignment of Error
{¶ 8} Appellant argues the trial court erred in denying her third motion to suppress
evidence obtained from her blood, which was seized pursuant to a search warrant that
lacked probable cause, and from which the affiant omitted material facts. Appellant
notes her blood was drawn at the hospital for medical purposes.
{¶ 9} In the August 4, 2016 affidavit for search warrant, Bowling Green Police
Officer Andy Mulinix averred, inter alia, the following: (1) upon his arrival at the
accident scene, he observed appellant near the street, covered in blood and talking about
her boyfriend; (2) upon finding the crashed vehicle behind a tree line, “[i]t was evident
from impact marks, damage to the vehicle and blood splatter[,] the vehicle had struck a
large tree * * * [and] it was clear the point of impact to the tree was the passenger side
door area. The roof and the front passenger side door were collapsed in toward the
passenger side seat”; (3) on the tree there “appeared to be a large blood stain and what
also appeared to be brain matter from [Etzinger]. At the base of the tree was also an
almost completely intact human brain * * *. It was evident from the injury [suffered by
Etzinger] the human brain next to the tree was [Etzinger’s]”; (4) Etzinger was in the
driver’s seat but had broken blood vessels on his upper right shoulder which is consistent
with a seatbelt injury, and the passenger’s side seat belt was pulled out a significant
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amount “which led me to believe [Etzinger] was in the front passenger side seat during
the crash with his seatbelt on”; (5) there was an empty case of beer in the back seat of the
vehicle but no open beer cans; (6) there was a small amount of marijuana in a bag on the
passenger side of the vehicle; (7) there was a can of computer duster (“duster”) on the
driver’s floor and “[f]rom my training and experience I know that * * * duster * * * is
used as a drug and is a highly abused inhalant”; (8) at the hospital, appellant had a
seatbelt injury on her left collarbone and shoulder and she “admitted to being the driver
of the vehicle but also stated [Etzinger] had been choking her around the neck prior to the
crash* * * [and] she may have passed out as a result. * * * [She] denied she was
intoxicated but she admitted [Etzinger] had been smoking marijuana in the vehicle prior
to the crash”; and, (9) “[b]ased on my training, experience, and information collected
during the course of the investigation, I believe there maybe [sic] additional evidence of
Aggravated Vehicular Homicide * * * and [OVI], Drug Abuse * * *[at the hospital in
blood samples taken from appellant].”
{¶ 10} Appellant submits the search warrant affidavit did not articulate probable
cause to seize her blood, and likewise, the court, in denying her motion to suppress, did
not articulate probable cause of intoxication or any other probable cause to seize her
blood. Appellant further claims “[t]he affidavit fails to answer the key question of
probable cause, why [the officer] had cause to believe he would find incriminating
evidence.” Appellant observes the affidavit averred that she denied being intoxicated,
rather than stating that “none of the police officers involved in the accident made any
statement that Ms. Moore was under the influence of anything.” Appellant contends the
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presence of innocuous items, like duster, “‘used by many innocent people-cannot,
without more, transform a “bare bones” affidavit into one with a “substantial basis” for
probable cause.’ [State v. Riley, 6th Dist. Lucas No. L-07-1379, 2009-Ohio-3493] at ¶
31.”
{¶ 11} The state counters the evidence in appellant’s vehicle that suggested
substance abuse was enough to create probable cause for the warrant to secure appellant’s
blood and urine, which was drawn by the hospital following the accident. The state
asserts the affidavit for search warrant to test appellant’s blood indicated that the officer,
based upon his investigation, had probable cause to believe appellant had committed
aggravated vehicular homicide, OVI or drug abuse. The state notes the officer stated in
the affidavit that he observed an empty case of beer, marijuana and can of duster in the
vehicle. The state further contends it aroused the officer’s suspicions that appellant
moved Etzinger’s dead body to the driver’s seat as Etzinger’s injuries and the damage to
the vehicle confirmed that Etzinger was the passenger, not the driver.
{¶ 12} The Fourth Amendment to the United States Constitution protects against
unreasonable searches and seizures. State v. Brown, 183 Ohio App.3d 337, 2009-Ohio-
3804, 916 N.E.2d 1138, ¶ 9 (6th Dist.). A person has a legitimate expectation of privacy
in his or her bodily fluids. Schmerber v. California, 384 U.S. 757, 770, 86 S.Ct. 1826, 16
L.Ed.2d 908 (1966). A search warrant may only be issued upon a showing of probable
cause. Illinois v. Gates, 462 U.S. 213, 238-239, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).
Probable cause for a search warrant exists when there is a “fair probability that
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contraband or evidence of a crime will be found in a particular place.” Id. at 238. Courts
view the totality of the circumstances in making probable cause determinations. Id.{¶ 13} A court reviewing the sufficiency of probable cause in an affidavit in
support of a search warrant, should not substitute its judgment for that of the judge who
issued the search warrant. State v. George, 45 Ohio St.3d 325, 544 N.E.2d 640 (1989),
paragraph two of the syllabus. The task of the reviewing court is to determine whether
the issuing judge “had a substantial basis for concluding that probable cause existed.” Id.Trial courts and appellate courts should give great deference to the issuing judge’s
probable cause determination. Id.{¶ 14} 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, 797 N.E.2d 71, ¶ 8.
With respect to factual matters, the trial court occupies the best position to evaluate the
credibility of witnesses and weigh the evidence. State v. Roberts, 110 Ohio St.3d 71,
2006-Ohio-3665, 850 N.E.2d 1168, ¶ 100. Therefore, on appeal, we must accept the trial
court’s findings of facts so long as they are supported by competent, credible evidence.
Id. We must then undertake a de novo review to determine whether the facts satisfy the
applicable legal standard. Burnside at ¶ 8.
{¶ 15} Here, a review of the record shows the trial court did not err in denying
appellant’s motion to suppress evidence obtained from her blood. In its January 4, 2018
order on motions, the court referenced State v. George and Illinois v. Gates, for the
proposition that the reviewing court’s duty is to ensure the issuing judge had a substantial
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basis for concluding that probable cause existed. The court then determined the search
warrant for appellant’s blood was issued upon probable cause.
{¶ 16} Upon review, the August 4, 2016 search warrant for appellant’s blood
sample and urine sample, stated it sought evidence “which [is] in violation of * * *
Aggravated Vehicular Homicide * * * and [OVI].” The search warrant affidavit
identified certain objects and circumstances found in the vehicle following the accident,
some of which were incriminating in nature. We find, considering the facts in the search
warrant affidavit, as a whole, there is competent, credible evidence to support the trial
court’s determination that the search warrant seeking evidence in appellant’s blood was
issued upon probable cause. Accordingly, appellant’s first assignment of error is not
well-taken.
Second Assignment of Error
{¶ 17} Appellant contends “[a]ll of the homicide charges against [her] require the
State to prove that some sort of culpable conduct, or the mens rea of recklessness[,] was
the proximate cause of the death,” but the state did not present sufficient evidence, or any
evidence, as to what caused the accident. Appellant claims there was no testimony that
she was under the influence of anything at the time of the accident which would impair
her ability to operate a vehicle.
{¶ 18} The state counters that since R.C. 4511.19(A)(1)(a) is a strict liability
statute, the state only had to prove that appellant was under the influence while operating
a vehicle. The state further contends since appellant’s OVI conviction is a strict liability
offense, her conviction for aggravated vehicular homicide, which is predicated on her
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violation of R.C. 4511.19(A)(1), is a strict liability offense as well. The state references
the trial testimony of Dr. Robert Forney, chief toxicologist at the Lucas County Coroner’s
(“coroner”) Office, who stated appellant’s blood tested positive for, inter alia,
“cocaine/metabolites * * * and we identified benzoylecgonine, which is inactive - that
does not produce the effect of cocaine - and we found it at .052 milligrams per liter.”
{¶ 19} “A sufficiency of the evidence argument challenges whether the State has
presented adequate evidence on each element of the offense to allow the case to go to the
jury or to sustain the verdict as a matter of law.” State v. Shaw, 2d Dist. Montgomery
No. 21880, 2008-Ohio-1317, ¶ 28, citing State v. Thompkins, 78 Ohio St.3d 380, 387,
678 N.E.2d 541 (1997). During a sufficiency of the evidence review, an appellate court’s
function is determine “whether, after viewing the evidence in a light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d
492 (1991), paragraph two of the syllabus.
{¶ 20} Here, appellant was found guilty of the homicide crimes of involuntary
manslaughter (Counts 4 and 5), reckless homicide (Count 6) and aggravated vehicular
homicide (Count 7). The court merged Counts 4 through 7, and appellant was sentenced
on Count 7. We will consider the sufficiency of the evidence as to Count 7 first.
Aggravated Vehicular Homicide
Count 7
{¶ 21} The crime of aggravated vehicular homicide is defined in R.C.
2903.06(A)(1)(a) as “[n]o person, while operating * * * a motor vehicle, shall cause the
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death of another * * * [a]s the proximate result of committing a violation of [R.C.
4511.19(A)].” R.C. 2903.06(A)(1) is a strict liability offense which requires no culpable
mental state. See State v. Gagnon, 6th Dist. Lucas No. L-08-1235, 2009-Ohio-5185, ¶
17.
{¶ 22} Appellant was charged with and convicted of a violation of R.C.
4511.19(A)(1)(j)(ii), which provides that no person shall drive if “[t]he person * * * has a
concentration of cocaine in the person’s whole blood or blood serum or plasma of at least
fifty nanograms of cocaine per milliliter of the person’s whole blood or blood serum or
plasma.” R.C. 4511.19(A)(1)(j)(ii) is a strict liability statute. See City of Defiance v.
Kretz, 60 Ohio St.3d 1, 3, 573 N.E.2d 32 (1991). When determining whether a defendant
committed this strict liability offense, the trier of fact is not required to find the defendant
operated a motor vehicle while under the influence of drugs. Id. Rather, the trier of fact
must only find the defendant’s chemical test result was at the proscribed level and the
defendant operated a motor vehicle within the state. Id.{¶ 23} Here, appellant notes R.C. 4511.19 provides for a per se violation, and
argues “it is possible for a per se violation of R.C. 4511.19 to constitute the predicate
offense for a violation [of] R.C. 2903.06 and or R.C. 2903.04, the State must still prove
that the predicate offense was the proximate cause of the accident.” Appellant contends
the predicate offense is based on a per se violation involving cocaine metabolite, which
the state’s expert, Dr. Forney, acknowledged was inactive. Appellant asserts the state did
not ask Dr. Forney whether or not anything in her blood would have affected her ability
to operate a vehicle.
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{¶ 24} Since appellant challenges the proximate cause or result element of the
offense of aggravated vehicular homicide, we will limit our analysis accordingly.
{¶ 25} In State v. Filchock, 166 Ohio App.3d 611, 2006-Ohio-2242, 852 N.E.2d
759 (11th Dist.), Filchock argued the evidence was not sufficient to sustain the conviction
of aggravated vehicular homicide because the victim’s death “was not caused by * * *
impaired driving, but from some other cause.” Id. at ¶ 76. The appellate court held “‘the
definition of “cause” in criminal cases is identical to the definition of “proximate cause”
in civil cases * * * [and] [t]he general rule is that a defendant’s conduct is the proximate
cause of * * * death to another if the defendant’s conduct is a “substantial factor” in
bringing about the harm.’” (Citation omitted.) Id. at ¶ 77. The court noted that the trial
testimony revealed there could have been several causes of the victim’s death, including
Filchock operating a motor vehicle under the influence of alcohol; Filchock’s reckless or
negligent operation of a motor vehicle; the victim’s slow speed; or Filchock’s “monkey
business” with another vehicle. Id. at ¶ 56.
{¶ 26} The court observed “the question for the jury was whether there was
evidence beyond a reasonable doubt that Filchock’s act of [operating] of a motor vehicle
under the influence of alcohol was the direct cause of [the victim’s] death, and without
which [the death] would not have happened.” Id. at ¶ 56. The court noted the evidence
revealed Filchock “was observed to be swerving in and out of traffic, * * * was driving at
a high rate of speed, * * * fled the scene without calling the police, * * * had a strong
odor of alcohol on his person, * * * had bloodshot eyes * * * refused field-sobriety tests,
and * * * [had a] blood-alcohol content * * * above the legal limit.” Id. at ¶ 80. The
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court found the evidence, when viewed in the light most favorable to the prosecution,
showed that “reasonable minds could conclude beyond a reasonable doubt that Filchock’s
operation of his motor vehicle under the influence of alcohol was the cause of [the
victim’s] death.” Id. at ¶ 81. See also State v. Lennox, 11th Dist. Lake No. 2010-L-104,
2011-Ohio-5103.
{¶ 27} Here, a review of the record shows there is no evidence that appellant’s act
of driving with a prohibited concentration of cocaine in her blood was the direct cause of
Etzinger’s death, and without which, his death would not have occurred. The state
furnished no evidence regarding the potential effects that a prohibited concentration of
cocaine in a person’s blood would have on a person, or on a person’s ability to operate a
vehicle. Without such evidence, the state failed to prove that as the proximate result of
appellant driving with a prohibited concentration of cocaine in her blood, appellant
caused Etzinger’s death. As such, there was insufficient evidence to prove each element
of the crime of aggravated vehicular homicide. Accordingly, appellant’s second
assignment of error with respect to Count 7 is well-taken.
{¶ 28} We will next consider the sufficiency of the evidence with respect to
Counts 4 and 5, the involuntary manslaughter offenses.
Involuntary Manslaughter
Count 4
{¶ 29} Appellant was charged with and convicted of violating R.C. 2903.04(A)
and (C), which states “[n]o person shall cause the death of another * * * as a proximate
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result of the offender’s committing or attempting to commit a felony. * * * [A]
[v]iolation * * * is a felony of the first degree.”
{¶ 30} Appellant was initially charged with involuntary manslaughter while
possessing cocaine in her system. The charge was later amended to indicate appellant
was in possession of drugs, a violation of R.C. 2925.11(A), which states “[n]o person
shall knowingly obtain, possess, or use a controlled substance or a controlled substance
analog.”
{¶ 31} In State v. Hamrick, 6th Dist. Lucas No. L-96-059, 1997 WL 796455, *4
(Dec. 19, 1997), we analyzed a former version of R.C. 2903.04(A)2 and found “we must
construe ‘proximate result’ to include a direct nexus between a defendant’s unlawful act
and someone’s death.” We further found:
The ‘proximate result’ phrase in R.C. 2903.04(A) means that, in
order to commit involuntary manslaughter under this section, the
defendant’s felonious acts not only resulted in the death of another but that
the criminal act was a proximate cause of the death. * * * Jackson v. State
(1920), 101 Ohio St. 152, 127 N.E. 870, paragraph one of the syllabus;
State v. Schaeffer (1917), 96 Ohio St. 215, 117 N.E. 220, paragraph seven
of the syllabus.
2
For purposes of this appeal, there is no meaningful difference between the former and
current versions of R.C. 2903.04(A).
14.
{¶ 32} Here, the record shows appellant was driving a vehicle on the evening of
August 3, 2016, with Etzinger as the passenger, when the vehicle crashed into a tree and
Etzinger was killed. Testimony was presented that appellant may have been speeding,
about ten m.p.h. over the speed limit, prior to the crash. After the accident, police found
an empty case of beer in the back seat of the vehicle, a small amount of marijuana in a
bag on the passenger side, and a can of duster on the driver’s floor.
{¶ 33} The state produced the test result report for appellant’s blood and urine
samples, which revealed the presence of several controlled substances. Appellant
admitted using illegal drugs several days prior to the accident, but denied using any
illegal drugs on the day of the accident. Texts messages sent by appellant hours before
the accident indicate she was seeking to buy pills from someone. Dr. Forney testified
regarding the particular controlled substances found in appellant’s blood and urine
samples and specifically noted Xanax, or alprazolam, was found in appellant’s system,
which has a tranquilizing, calming result and it was “still having its effect” even though it
had “been awhile since the Xanax or the generic alprazolam was ingested.”
{¶ 34} The state also presented evidence that the can of duster found in the vehicle
was missing its safety tab and was approximately 20 percent lighter by weight than a full
can of duster. Dr. Forney was shown the test result report for appellant’s blood and urine
samples, which showed a positive finding in the blood for diflouroethane. The doctor
testified diflouroethane is a chemical, in particular a propellant, found in products like
duster. In addition, Officer Darin Reinhart testified that duster is a well-known abused
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inhalant which causes an instant high, lasting for a short period of time, and huffing, or
abusing an inhalant, can also cause a person to pass out and lose consciousness.
{¶ 35} A review of the evidence, in a light most favorable to the state, shows any
rational trier of fact could have found appellant caused Etzinger’s death as a proximate
result of knowingly using alprazolam (Xanax) and/or diflouroethane (duster chemical).
We therefore find the state presented sufficient evidence to prove each element of Count
4, involuntary manslaughter, in violation of R.C. 2903.04(A) and (C). Accordingly,
appellant’s second assignment of error with respect to Count 4 is not well-taken.
Count 5
{¶ 36} Appellant was charged with and convicted of violations of R.C. 2903.04(B)
and (C), which state “[n]o person shall cause the death of another * * * as a proximate
result of the offender’s committing or attempting to commit a misdemeanor of any
degree, a regulatory offense, or a minor misdemeanor * * *. [A] [v]iolation * * * is a
felony of the third degree.”
{¶ 37} Appellant was initially charged with involuntary manslaughter while DUS,
as well as involuntary manslaughter while OVI, in violation of R.C. 4511.19(A)(1)(j) and
(G). The charge was later amended to indicate a violation of R.C. 4511.19(A)(1)(a),
which states ‘[n]o person shall operate any vehicle * * * within this state, if, at the time of
the operation * * * [t]he person is under the influence of * * * a drug of abuse.”
Involuntary Manslaughter - OVI
{¶ 38} A person is under the influence as a “result of a consumption of a substance
which tends to deprive one of the clearness of intellect and control that he or she would
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otherwise possess. State v. Hardy (1971), 28 Ohio St.2d 89, 276 N.E.2d 247.” State v.
Smith, 6th Dist. Ottawa No. OT-97-037, 1998 WL 102143, *3 (Feb. 27, 1998). A “drug
of abuse” is defined in R.C. 4506.01(M) as “any controlled substance, dangerous drug as
defined in section 4729.01 of the Revised Code, or over-the-counter medication that,
when taken in quantities exceeding the recommended dosage, can result in impairment of
judgment or reflexes.” A person can be under the influence of a drug of abuse if the drug
or medication “impairs the person’s ability to operate a motor vehicle.” Smith at *3.
{¶ 39} Here, a review of the record shows the state produced test results of
appellant’s blood and urine samples which revealed the presence of controlled substances
or drugs of abuse. In addition, the state presented the testimony of Dr. Forney and
Officer Reinhart regarding certain effects that drugs like alprazolam and diflouroethane
can have on a person. We find after viewing this evidence in a light most favorable to the
state, any rational trier of fact could have found appellant caused Etzinger’s death as a
proximate result of operating a vehicle within this state under the influence of a drug of
abuse (alprazolam and/or diflouroethane). We therefore find the state offered sufficient
evidence to prove each element of Count 5, involuntary manslaughter OVI.
Involuntary Manslaughter - DUS
{¶ 40} Driving a vehicle under financial responsibility law suspension is a
violation of R.C. 4510.16(A) and (D)(1), which is an unclassified misdemeanor. A
review of the record shows appellant admitted her driver’s license was suspended at the
time of the accident.
17.
{¶ 41} In order for appellant to be found guilty of the crime of involuntary
manslaughter DUS, the state had to prove that appellant caused Etzinger’s death as a
proximate result of appellant driving with a suspended driver’s license.
{¶ 42} In Hamrick, 6th Dist. Lucas No. L-96-059, 1997 WL 796455, *4, we held
“when a defendant’s unlawful act is driving under suspension * * * [that act] cannot
constitute the basis for an involuntary manslaughter conviction when there is no causative
connection between the criminal act and the death of another.”
{¶ 43} Here, a review of the record shows there is no evidence that Etzinger’s
death was a proximate result of appellant’s status of driving while under a license
suspension. We therefore find the state’s evidence was insufficient to prove each element
of Count 5, involuntary manslaughter while driving under suspension, in violation of
R.C. 2903.04(A) and (C). Accordingly, appellant’s second assignment of error with
respect to Count 5, involuntary manslaughter DUS, is well-taken.
{¶ 44} Last, we will consider the sufficiency of the evidence with respect to Count
6, reckless homicide.
Reckless Homicide
Count 6
{¶ 45} Appellant was charged with and convicted of violations of R.C.
2903.041(A) and (B), which state “[n]o person shall recklessly cause the death of another
* * *. [A] [v]iolation * * * is a felony of the third degree.”
A person acts recklessly when, with heedless indifference to the
consequences, the person disregards a substantial and unjustifiable risk that
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the person’s conduct is likely to cause a certain result or is likely to be of a
certain nature. A person is reckless with respect to circumstances when,
with heedless indifference to the consequences, the person disregards a
substantial and unjustifiable risk that such circumstances are likely to exist.
R.C. 2901.22(C).
{¶ 46} Here, the record shows appellant and Etzinger were arguing on the evening
of August 3, 2016, prior to getting into the vehicle. In fact, they were told to leave
appellant’s parents’ home because they were “very loud * * * [v]ery aggressive * * *
there was screaming.” Appellant testified she and Etzinger got into the vehicle and she
was driving because he was mad. The arguing continued and Etzinger hit appellant,
which caused her to swerve and hit a garbage can. She stated, “[a]fter I hit it, I remember
being pissed off. * * * I just bought the car and I was mad because I hit the trash can.”
Appellant testified Etzinger then started choking her and grabbing her by the throat.
Appellant did not remember going off of the road or striking the tree.
{¶ 47} The record also reveals appellant may have been speeding before she lost
control of the vehicle crashed into the tree, and controlled substances were found in blood
and urine samples taken from appellant shortly after the accident.
{¶ 48} Evidence establishing recklessness when operating a vehicle includes the
consumption of an excessive amount of a controlled substance, speeding and having
toxicology test results consistent with impairment. See State v. Yates, 6th Dist. Lucas No.
L-13-1266, 2015-Ohio-708, ¶ 16.
19.
{¶ 49} Here, there was sufficient evidence that appellant acted recklessly prior to
the accident, as she was driving while arguing with Etzinger, she was mad at him, she
had controlled substances in her system, she may have been speeding and she lost control
of the vehicle. We therefore find the state presented sufficient evidence to prove
appellant recklessly caused Etzinger’s death. Accordingly, appellant’s second
assignment of error with respect to Count 6 is not well-taken.
Third Assignment of Error
{¶ 50} Appellant argues the trial court erred when it failed to dismiss Count 4 of the
indictment, involuntary manslaughter, in violation of R.C. 2903.04(A) and (C), by
operation of law, after dismissing Count 3, the predicate charge of possession of drugs.
{¶ 51} Count 3 charged appellant with possession of cocaine, in violation of R.C.
2925.11(C)(4)(a). This charge was dismissed by the trial court on appellant’s Crim.R. 29
motion. The court found State v. Lowe, 86 Ohio App.3d 749, 621 N.E.2d 1244 (4th
Dist.1993), controlling. The issue presented in Lowe was “whether the presence of cocaine
metabolites in a person’s urine constitutes sufficient circumstantial evidence to prove
beyond a reasonable doubt that the person knowingly obtained, possessed, or used a
controlled substance in violation of R.C. 2925.11(A).” Id. at 753. The Lowe court found
“the fact that a person’s urine contains cocaine metabolites does not, standing alone,
constitute sufficient evidence that the person knowingly ingested the controlled substance.”
Id. at 756.
{¶ 52} Here, although Count 3, possession of cocaine, was dismissed, its dismissal
had no impact on the involuntary manslaughter offense in Count 4, which charged
20.
appellant with violating R.C. 2903.04(A) That statute provides “[n]o person shall cause
the death of another * * * as a proximate result of the offender’s committing or
attempting to commit a felony.” Appellant was initially charged with involuntary
manslaughter while possessing cocaine in her system but the charge was amended to
possession of drugs, a violation of R.C. 2925.11(A), which states “[n]o person shall
knowingly obtain, possess, or use a controlled substance or a controlled substance
analog.” As we found above, there was sufficient evidence to prove each element of the
involuntary manslaughter offense in Count 4. Accordingly, appellant’s third assignment
of error is not well-taken.
Fourth Assignment of Error
{¶ 53} Appellant argues her first motion to suppress should have been granted and
the test results on her blood should have been suppressed because the state failed to prove
substantial compliance with required Ohio Department of Health (“DOH”) regulations, as
required by R.C. 3701.143. Appellant contends substantial compliance requires that
there be, at most, de minimus deviations, but in this case there were serious deviations,
including (1) no evidence that any procedures existed to prevent tampering with blood
samples; (2) no testimony that the samples were sealed so that tampering would be
indicated; (3) no chain of custody proven for the unsecured blood from the time it was
drawn until Det. Mulinix seized it; (4) no testimony to verify there was no tampering with
the blood samples while they were in the refrigerator in police custody from August 4
until August 9, 2016; and (5) insufficient testimony to determine what type of
21.
anticoagulant was used. Appellant also claims during the suppression hearing defense
counsel was not permitted to question Dr. Forney about “the margin of error, or the
reliability of the test at those specific levels.”
{¶ 54} When the validity of a drug test is challenged by the defendant, the state
has the burden of establishing the testing procedures substantially complied with DOH
regulations. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71 at ¶ 24. The
substantial compliance standard is limited “to excusing only errors that are clearly de
minimis,” which include irregularities amounting to “‘minor procedural deviations.’” Id.
at ¶ 34, quoting State v. Homan, 89 Ohio St.3d 421, 426, 732 N.E.2d 952 (2000). If the
state shows substantial compliance with the regulations, the test result is presumptively
admissible, and the burden shifts to the defendant to show prejudice resulting from
“anything less than strict compliance.” Burnside at ¶ 24.
{¶ 55} As set forth above, appellate review of a motion to suppress presents a
mixed question of law and fact. Id. at ¶ 8. We must then undertake a de novo review to
determine whether the facts satisfy the applicable legal standard. Id.
{¶ 56} Here, we must determine whether or not there was substantial compliance
with R.C. 4511.19(D)(1)(b), which states in relevant part:
In any criminal prosecution * * * for a violation of division (A) * * *
of this section * * * that is vehicle-related, the court may admit evidence on
the concentration of * * * drugs of abuse, controlled substances,
metabolites of a controlled substance, or a combination of them in the
defendant’s whole blood, blood serum or plasma * * * at the time of the
22.
alleged violation as shown by chemical analysis of the substance withdrawn
within three hours of the time of the alleged violation. * * * The court may
admit evidence on the concentration of * * * drugs of abuse * * * when * *
* a blood or urine sample is obtained pursuant to a search warrant. * * *
The bodily substance withdrawn under division (D)(1)(b) of this
section shall be analyzed in accordance with methods approved by the
director of health by an individual possessing a valid permit issued by the
director pursuant to section 3701.143 of the Revised Code.
{¶ 57} R.C. 3701.143 requires the director of health to “determine, or cause to be
determined, techniques or methods for chemically analyzing a person’s whole blood.”
Then, the director must “approve satisfactory techniques or methods, ascertain the
qualifications of individuals to conduct such analyses, and issue permits to qualified
persons authorizing them to perform such analyses.” DOH, pursuant to this mandate,
promulgated regulations which are set forth in Ohio Adm.Code 3701-53-01 et seq.
{¶ 58} At the suppression hearings, several witnesses were called to testify. The
relevant testimony follows.
{¶ 59} Dalibor Tomljenovic testified he is a registered nurse and worked at the
Wood County Hospital (“hospital”) emergency room (“ER”). He stated the hospital has
policies and procedures in effect for obtaining venipuncture specimen, and he received
training on them when he was hired.
{¶ 60} On the evening of August 3, 2016, Tomljenovic was working at the
hospital and assigned to the trauma rooms when appellant became his patient. At
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approximately 9:55 p.m., shortly after appellant’s arrival, he obtained a blood sample
from appellant, which was standard hospital procedure.
{¶ 61} Tomljenovic testified he used an IV start kit, which is a prepackaged,
sterile unit, and a non-alcohol type swab to obtain the blood sample. The blood was
collected in vials, which were properly sealed. There were five or six vials, some had
solid anticoagulant and some had liquid anticoagulant. Tomljenovic put the time of the
blood draw and his initials on the patient identifying labels, which have the patient’s
name, date of birth and medical record number. He placed the vials in a Ziplock-type bag
and passed the bag to his charge nurse or a fellow employee to take to the lab, as he did
not want to leave appellant unattended. Tomljenovic testified the manner in which he
obtained the blood was in accordance with the hospital’s policies and procedures.
{¶ 62} Judy Ubben testified that she is a medical technologist and is the Outreach
and Phlebotomy Supervisor in the laboratory at the hospital. She started working at the
hospital in 1995 and has worked in the lab the entire time. The lab has a permit to
operate from the Ohio director of health. Ubben stated the hospital has written policies
and procedures for blood testing and urine samples. Specimens are drawn for testing and
brought to the lab by a member of the ER, where the specimens are prepared for testing
and tested on analyzers. After testing, the samples are placed in racks and the racks are
placed in the refrigerator at the end of the third shift, which is midnight. Ubben was not
personally involved in appellant’s case.
{¶ 63} Bowling Green Police Department Detective Andy Mulinix testified he was
called into work on August 3, 2016, in reference to a fatal crash. He assisted Officer
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Reinhart in creating the search warrant for appellant’s blood and urine samples at the
hospital. Detective Mulinix executed the search warrant at the hospital, obtained the
evidence and took it to “our property officer.” The detective was shown a property
control form from the coroner for the property he picked up at the hospital, which
ultimately was relayed to the coroner’s office.
{¶ 64} Dr. Robert Forney testified he is the chief toxicologist in the coroner’s
office, and appellant’s blood samples were received in vials which, to his knowledge,
were sterile and vacuum sealed when the blood was collected. The doctor explained the
internal and external chains of custody of the specimen, which included examining the
material for its integrity, to ensure it was being properly sealed and labeled. The doctor
had no personal knowledge of the chain of custody at the hospital or police department.
{¶ 65} Dr. Forney testified the vials of appellant’s blood, which contained a solid
anticoagulant, were properly sealed and labeled and also refrigerated when not under
examination. He stated refrigeration slows down bacterial growth, although “[w]e are not
really that worried about bacterial growth, but it’s a standard laboratory practice” to
refrigerate blood samples, although the vials of blood have a preservative in them. The
doctor maintained records of refrigerant control and monitored temperatures at the lab,
but he had no personal knowledge of the refrigerant conditions of the samples prior to
receiving them.
{¶ 66} Dr. Forney noted blood or blood serum tests in the lab are conducted per
DOH standards, which is his responsibility to oversee. He stated he is certified, as are the
laboratory personnel, which means they have valid permits issued by the director of
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health pursuant to R.C. 3701.143. The doctor testified the coroner’s office maintains a
chain of custody of test results on samples for not less than three years, and with respect
to positive blood and urine samples, they are retained for not less than one year, in
accordance with Ohio Adm.Code 3701-53-05. He also stated the lab successfully
completes a national proficiency testing program using techniques or methods for which
the laboratory personnel obtain permits under Ohio Adm.Code 3701-53-09. The
coroner’s office has a written procedure manual, which is updated periodically, for
techniques or methods used for testing for alcohol or drugs of abuse in bodily substances,
which is in compliance with Ohio Adm.Code 3701-53-06. Dr. Forney, as lab director,
also ensures certain procedures are followed, including maintaining documents, and
supervising and monitoring laboratory technicians, who are adequately trained and
experienced to perform testing on bodily substances for alcohol and drugs of abuse.
{¶ 67} Dr. Forney testified on October 21, 2016, he signed a report of the analyses
for Bowling Green Police on appellant’s specimens, to certify the results.
{¶ 68} Megan Meyer testified she works at the coroner’s office forensic
toxicology lab. Meyer signed for appellant’s blood vials and samples when they were
received into the lab on August 9, 2016. She was shown the property control form which
showed two vials of appellant’s blood were received. She conducted the screening on
appellant’s blood, in accordance with the methods and techniques used the procedural
manual for the coroner’s office. Ms. Meyer was shown and identified the lab report
containing the results of the tests of appellant’s blood.
26.
{¶ 69} In its January 4, 2018 order, the trial court found appellant’s blood was
drawn as a matter of medical treatment, within three hours of the alleged violation, as
required by R.C. 4511.19(D)(1)(b), and the blood sample was obtained pursuant to a
search warrant.
{¶ 70} The court noted it was argued that the blood was not collected and handled
as required by DOH, which is set forth in Ohio Adm.Code 3701-53-05. The court
explained the circumstances under which the nurse drew appellant’s blood using
Betadine, which is a non-volative antiseptic. The court then addressed the argument that
the laboratory that analyzed the blood failed to comply with DOH requirements as set
forth in Ohio Adm.Code 3701-53-06. The court stated ‘[t]he blood that was tested in this
case went from the Wood County Hospital to The Lucas County Coroner then to a
reference lab. All properly credentialed facilities, as discussed above.” The court denied
the motion to suppress.
{¶ 71} Ohio Adm.Code 3701-53-05 states the requirements for the collection and
handling of blood and urine specimens, as follows:
(A) All samples shall be collected in accordance with section
4511.19 * * *.
(B) When collecting a blood sample, an aqueous solution of a non-
volatile antiseptic shall be used on the skin. No alcohols shall be used as a
skin antiseptic.
(C) Blood shall be drawn with a sterile dry needle into a vacuum
container with a solid anticoagulant * * *.
27.
***
(E) Blood and urine containers shall be sealed in a manner such that
tampering can be detected and have a label which contains at least the
following information:
(1) Name of suspect;
(2) Date and time of collection;
(3) Name or initials of person collecting the sample; and
(4) Name or initials of person sealing the sample.
(F) While not in transit or under examination, all blood and urine
specimens shall be refrigerated.
{¶ 72} Ohio Adm.Code 3701-53-06 sets forth the requirements for laboratories.
{¶ 73} Here, appellant raises no arguments that the state did not comply with Ohio
Adm.Code 3701-53-06. Therefore, we will limit our analysis to appellant’s assertion that
the state failed to prove substantial compliance with DOH regulations, and violated Ohio
Adm.Code 3701-53-05.
{¶ 74} A review of the record shows the state presented the testimony of several
witnesses to establish its compliance with the regulations for obtaining, handling and
testing appellant’s blood sample. The state also submitted exhibits in support of its
position.
{¶ 75} We find the state offered evidence that the nurse drew appellant’s blood,
using a non-alcohol swab, within three hours of the accident. The blood was collected in
vials, which were properly sealed and labeled, and some of which contained a solid
28.
anticoagulant. The vials were obtained by police, pursuant to a search warrant, and
forwarded to the coroner’s office for testing. When the vials of appellant’s blood were
received by the coroner’s office, the vials were examined for their integrity, and were
found to be properly sealed and labeled, and containing a solid anticoagulant.
{¶ 76} While there was no testimony that the vials were sealed in a manner that
tampering would be indicated, there was also no testimony that any tampering had
occurred or been attempted with the vials. Rather, the testimony that was presented
clearly indicates the vials received by the coroner’s office for testing were properly
sealed and labeled. We therefore find the state demonstrated it substantially complied
with Ohio Adm.Code 3701-53-05(A), (B), (C) and (D).
{¶ 77} With respect to the refrigeration of appellant’s blood specimen, we find the
state did not present evidence that appellant’s blood was always refrigerated while not in
transit or under examination, as required by Ohio Adm.Code 3701-53-05(F). However,
the state did offer testimony that the blood was refrigerated a considerable portion of the
time when it was not in transit or being tested. In addition, Dr. Forney’s testimony
indicated refrigeration slows down bacterial growth, but “[w]e are not really that worried
about bacterial growth.” The doctor also noted the vials of blood had a preservative in
them. We find, based on the foregoing, the state’s failure to meet the refrigeration of
blood requirement is de minimis. We therefore find the state substantially complied with
Ohio Adm.Code 3701-53-05(F).
{¶ 78} Since the state demonstrated substantial compliance with the regulations,
the test results were presumptively admissible, so the burden shifted to appellant to show
29.
she was prejudiced by the state’s less than strict compliance. Appellant failed to sustain
this burden as she offered no evidence that she was adversely affected. We therefore find
the trial court did not err in denying appellant’s motion to suppress. Accordingly,
appellant’s fourth assignment of error is not well-taken.
Fifth Assignment of Error
{¶ 79} Appellant contends the state failed to present sufficient evidence of a
violation of R.C. 4511.19, the general OVI statute. As we found in appellant’s second
assignment of error, there was sufficient evidence to prove each element of involuntary
manslaughter while operating a vehicle under the influence, in Count 5, as amended.
Accordingly, appellant’s fifth assignment of error is not well-taken.
Sixth Assignment of Error
{¶ 80} Appellant asserts the state engaged in severe prejudicial behavior which
“cumulatively and specifically resulted in Plain Error by the Trial Judge in not declaring
an immediate mistrial.” Appellant contends the state referred to the jury as “John’s jury”
when introducing Etzinger’s mother and the mother of his children to the jury, which
appellant claims, “is unacceptable.” In addition, during closing argument, appellant
argues the state: repeatedly referenced facts not in evidence (that appellant was stoned
while driving even though there was no testimony appellant was under the influence);
presumed the testimony of witnesses who did not testify (ER doctor, Dr. Ashraf, and
EMTs); denigrated the defense and its expert witnesses; told the jury recklessness should
be a foregone conclusion; asked the jury to imagine what the deceased would say and
envision his hands rising from the grave; and misrepresented reasonable doubt.
30.
Appellant observes defense counsel did not object to these remarks nor did the judge
comment on them. Appellant submits “[t]aken as a whole, and when weighed against the
weak evidence presented by the State, [appellant] was deprived of a fair trial, and the
outcome would have been different but for these statements.”
{¶ 81} The test for prosecutorial misconduct is whether the statements complained
of deprived the defendant of a fair trial. State v. Apanovitch, 33 Ohio St.3d 19, 24, 514
N.E.2d 394 (1987); State v. Roughton, 132 Ohio App.3d 268, 286, 724 N.E.2d 1193 (6th
Dist.1999). The prosecutor’s remarks must be considered in the context of the entire
trial. State v. Keenan, 66 Ohio St.3d 402, 410, 613 N.E.2d 203 (1993). Since appellant
failed to object to the prosecutor’s statements throughout the trial and during closing
argument, she forfeited of all but plain error on appeal. See State v. Jackson, 92 Ohio
St.3d 436, 438, 751 N.E.2d 946 (2001).
{¶ 82} Crim.R. 52(B), plain error, states “[p]lain errors or defects affecting
substantial rights may be noticed although they were not brought to the attention of the
court.”
By its very terms, the rule places three limitations on a reviewing
court’s decision to correct an error despite the absence of a timely objection
at trial. First, there must be an error, i.e., a deviation from a legal rule. * *
* Second, the error must be plain * * * within the meaning of Crim.R.
52(B), an error must be an “obvious” defect in the trial proceedings. * * *
Third, the error must have affected “substantial rights.” We have
interpreted this aspect of the rule to mean that the trial court's error must
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have affected the outcome of the trial. State v. Barnes, 94 Ohio St.3d 21,
27, 759 N.E.2d 1240 (2002).
{¶ 83} The standard of review under plain error “is a strict one.” State v.
Murphy, 91 Ohio St.3d 516, 532, 747 N.E.2d 765 (2001). Under the plain error
standard, “the defendant bears the burden of demonstrating that a plain error
affected his substantial rights.” State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-
297, 802 N.E.2d 643, ¶ 14.
{¶ 84} Here, appellant did not cite to any authority in support of her position that
the prosecutor’s statements were improper or that the prosecutor engaged in severely
prejudicial behavior or misconduct by making the statements. “It is the duty of the
appellant, not this court, to demonstrate his assigned error through an argument that is
supported by citations to legal authority and facts in the record.” State v. Taylor, 9th
Dist. Medina No. 2783-M, 1999 WL 61619, * 3 (Feb. 9, 1999). An appellant has the
burden of demonstrating error on appeal. See App.R. 16(A)(7), which states “[t]he
appellant shall include in its brief * * *[a]n argument containing the contentions of the
appellant with respect to each assignment of error presented for review and the reasons in
support of the contentions, with citations to the authorities, statutes, and parts of the
record on which appellant relies.” This basis alone is sufficient to dispose of appellant’s
assignment of error. Nevertheless, we will address the assigned error.
{¶ 85} Upon review of the over 1,400 pages of the trial transcript, and paying
particular attention to the challenged prejudicial behavior of the prosecutor, we find the
prosecutor’s statements did not deprive appellant of a fair trial. Although we find some
32.
of the prosecutor’s comments were inappropriate, when we consider the comments in the
context of the entire trial, as we are required to do, and in light of the plain-error standard,
we cannot say that but for the prosecutor’s comments, appellant would have been
acquitted. We therefore we find appellant has not demonstrated plain error in the trial
court’s decision to not immediately declare a mistrial based on the prosecutor’s behavior.
Accordingly, appellant’s sixth assignment of error is not well-taken.
Seventh Assignment of Error
{¶ 86} Appellant contends she was denied due process of law and a fair trial due
to the cumulative effect of errors by the trial court. Appellant argues the errors included
the admission of prejudicial evidence over objection, repeated testimony about the
gruesome nature of Etzinger’s injuries over objection and irrelevant testimony, as well as
animosity between the trial court and defense counsel and the timing of when the case
was given to the jury.
{¶ 87} The cumulative error doctrine provides that, “a conviction will be reversed
when the cumulative effect of errors in a trial deprives a defendant of a fair trial even
though each of the numerous instances of trial court error does not individually constitute
cause for reversal.” State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987),
paragraph two of the syllabus. Thus, “[s]eparately harmless errors may violate a
defendant’s right to a fair trial when the errors are considered together.” State v.
Madrigal, 87 Ohio St.3d 378, 397, 721 N.E.2d 52 (2000). In order to determine whether
the cumulative error doctrine applies, there must first be a finding that multiple errors
were committed at trial. Id. Then, there must be a finding that there is a reasonable
33.
probability the outcome of the trial would have been different but for the combination of
the separately harmless errors. State v. Moreland, 50 Ohio St.3d 58, 69, 552 N.E.2d 894(1990).
{¶ 88} Here, other than the standard for the cumulative error doctrine, appellant
cites to no legal authority in support of her position. As noted above, appellant has the
burden of demonstrating error on appeal. App.R. 16(A)(7). This basis alone is sufficient
to dispose of appellant’s assignment of error. However, we will consider the assigned
error.
{¶ 89} Appellant references the following two instances of Etzinger’s mother’s
testimony in support of her argument that the trial court erroneously allowed repeated
testimony about the gruesome nature of Etzinger’s injuries: Etzinger’s mother was not
permitted to see her son’s body due to his head injury and a closed casket was required.
{¶ 90} “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 343 (1987),
paragraph two of the syllabus. An abuse of discretion constitutes more than an error of
law or judgment, it implies the trial court acted unreasonably, arbitrarily, or
unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140(1983). Relevant evidence is generally admissible under Evid.R. 402, if it has “any
tendency to make the existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without the evidence.”
Evid.R. 401. Yet, evidence must be excluded when its “probative value is substantially
outweighed by the danger of unfair prejudice.” Evid.R. 403(A).
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{¶ 91} Here, upon review, we find nothing gruesome, unfairly repetitive or
prejudicial in Etzinger’s mother’s testimony. Thus, the court did not abuse its discretion
in allowing this testimony.
{¶ 92} Appellant further claims the court allowed testimony which had no
relevance to whether appellant’s having inactive cocaine metabolite in her system at the
time of the crash was the proximate cause of the accident. In particular, appellant cites to
Etzinger’s mother’s testimony that a closed casket was required and that appellant did not
attend the funeral.
{¶ 93} Upon review, we find the court acted within its discretion in allowing the
challenged testimony, as the testimony concerning the closed casket was relevant and
probative as to the nature, in general, of Etzinger’s injuries, and appellant’s failure to
attend Etzinger’s funeral was arguably relevant to indicate consciousness of guilt.
{¶ 94} Appellant also asserts there was obvious animosity between the trial court
and defense counsel “that was on display to the Jury,” including the court making a joke
at defense counsel’s expense. Appellant claims there were “many examples of this sort
of bickering and hostility.”
{¶ 95} The only instance of animosity between the trial court and defense counsel
mentioned by appellant was a comment uttered by the judge, which appellant describes as
a joke made at defense counsel’s expense. Upon review, the challenged statement was
the judge’s attempt at humor, and was neither nasty nor hostile. We do not find this one
comment establishes obvious animosity between the judge and defense counsel, nor do
we find this comment prejudicial to appellant.
35.
{¶ 96} With respect to the timing of when the case was given to the jury, appellant
notes the court charged the jury at 5:00 p.m. on Friday, before a three day weekend, in
the midst of a snowstorm, with no indication how long the jury would be held. Appellant
submits “[u]nsurprisingly, the Jury returned a verdict by 7:16 following 5 days of trial.”
{¶ 97} Upon review, appellant has not demonstrated how the trial court committed
error by submitting the case to the jury when it did. The court had no control over the
weather and had limited control over when the trial ended. Moreover, appellant has not
shown how she was prejudiced by the timing of the case going to the jury.
{¶ 98} In light of the foregoing, the record does not support a finding that there
were multiple errors at appellant’s trial such that the cumulative error doctrine would be
applicable. Accordingly, appellant’s seventh assignment of error is not well-taken.
Eighth Assignment of Error
{¶ 99} Appellant asserts her convictions are against the manifest weight of the
evidence. The standard of review for manifest weight is the same in a criminal case as
in a civil case, and an appellate court’s function is to determine whether the greater
amount of credible evidence supports the verdict. Eastley v. Volkman, 132 Ohio St.3d
328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 12; State v. Thompkins, 78 Ohio St.3d at 387,
678 N.E.2d 541. “A manifest weight of the evidence challenge contests the believability
of the evidence presented.” (Citation omitted.) State v. Wynder, 11th Dist. Ashtabula
No. 2001-A-0063, 2003-Ohio-5978, ¶ 23. When determining whether a conviction is
against the manifest weight, the appellate court must review the record, weigh the
evidence and all reasonable inferences drawn from it, consider the witnesses' credibility
36.
and decide, in resolving any conflicts in the evidence, whether the trier of fact “clearly
lost its way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered.” State v. Prescott, 190 Ohio App.3d 702, 2010-Ohio
6048, 943 N.E.2d 1092, ¶ 48 (6th Dist.), citing Thompkins at 387.
{¶ 100} It has long been held that the weight to be given to the evidence and the
credibility of the witnesses is primarily for the trier of fact to decide. State v. Thomas, 70
Ohio St.2d 79, 80, 434 N.E.2d 1356 (1982). When reviewing a manifest weight of the
evidence challenge, an appellate court sits as the “thirteenth juror.” Prescott at ¶ 48,
citing Thompkins at 387.
{¶ 101} Here, appellant argues that she offered a credible reason for the accident:
she was attacked by Etzinger, who had a history of domestic violence. Appellant
maintains the state never presented a good reason why her version of the accident was
unacceptable. Appellant submits the jury lost its way and forgot that they needed facts to
convict, not outrage by the prosecutor.
{¶ 102} Since we have already determined there was insufficient evidence to
support appellant’s convictions with respect to Count 5, involuntary manslaughter DUS
(“5-IM-DUS”) and Count 7, aggravated vehicular homicide, we will undertake a manifest
weight of the evidence analysis as to her remaining convictions: Counts 1; 2; 4; 5,
involuntary manslaughter OVI (“5-IM-OVI”); and 6.
{¶ 103} A review of the record shows appellant testified that while she was
driving prior to the accident, Etzinger hit her, grabbed her throat and choked her. The
next thing appellant recalled was that it was really dark, she looked to the right and
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Etzinger was leaning on her. Appellant described where on her face and throat she was
hit, grabbed and choked, and she explained how and with what hand Etzinger attacked
her. Appellant also offered evidence of Etzinger’s violent past with his ex-girlfriend.
{¶ 104} The state presented evidence that prior to the accident, appellant was
driving, she and Etzinger were arguing, she was mad at Etzinger, she had controlled
substances in her system and she may have been speeding when she lost control of the
vehicle. The state provided evidence that after the accident, several items were found in
the vehicle, including: an empty case of beer, in the back seat, but no open beer cans; a
small amount of marijuana in a bag on the passenger side; and a can of duster on the
driver’s side floor. The state also offered evidence that appellant: moved Etzinger’s dead
body to the driver’s seat of the vehicle and placed his hand on the gear shift; told lies on
several occasions concerning being pregnant and using drugs; and gave a number of
inconsistent accounts and explanations regarding where Etzinger hit or punched her
before the accident, whether Etzinger was a violent person, and for what purpose the
duster was purchased.
{¶ 105} The state further offered testimony that appellant was a drug addict, yet
she denied using drugs on the day of the accident. The state presented evidence as to the
particular controlled substances found in appellant’s blood and urine samples, as well as
the effects that drugs like alprazolam and diflouroethane can have on a person. In
addition, the stated provided evidence that the can of duster found in the vehicle after the
accident was missing its safety tab and was approximately 20 percent lighter by weight
38.
than a full can of duster, which indicated that it had been used from the time it was
purchased, which was immediately before the accident.
{¶ 106} After reviewing the entire record and weighing the evidence and all
reasonable inferences, we cannot say the jury lost its way and created a manifest
miscarriage of justice, with respect to Counts 1, 2, 4, 5-IM-OVI and 6. The jury was able
to view the witnesses and observe their demeanors, consider the witnesses’ credibility
and resolve conflicts in the evidence, as to Counts 1, 2, 4, 5-IM-OVI and 6. Appellant’s
convictions as to Counts 1, 2, 4, 5-IM-OVI and 6 are not against the manifest weight of
the evidence. Accordingly, appellant’s eighth assignment of error is not well-taken as to
Counts 1, 2, 4, 5-IM-OVI and 6.
Summary
{¶ 107} We find appellant’s first, third, fourth, fifth, six and seventh assignments
of error not well-taken.
{¶ 108} We find appellant’s second assignment of error not well-taken as to
Counts 1, 2, 4, 5-IM-OVI and 6, but we find appellant’s second assignment of error well-
taken as to Count 5-IM-DUS and Count 7.
{¶ 109} We find appellant’s eighth assignment of error not well-taken as to Counts
1, 2, 4, 5-IM-OVI and 6, but we find appellant’s eighth assignment of error well-taken as
to Count 5-IM-DUS and Count 7.
{¶ 110} We affirm appellant’s convictions as to Counts 1, 2, 4, 5-IM-OVI and 6.
{¶ 111} We reverse and vacate appellant’s convictions as to Count 5-IM-DUS and
Count 7.
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Conclusion
{¶ 112} On consideration whereof, the judgment of the Wood County Common
Pleas Court is affirmed, in part, and reversed, in part. We reverse and vacate appellant’s
convictions for involuntary manslaughter while driving under suspension, and for
aggravated vehicular homicide. We affirm the remainder of appellant’s convictions. The
bail granted to appellant pending appeal is ordered terminated. This matter is remanded
for further proceedings consistent with this opinion. The parties are ordered to split the
costs of this appeal pursuant to App.R. 24.
{¶ 113} Judgment affirmed, in part, and reversed and vacated, in part.
Judgment affirmed, in part,
and reversed, in part.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________
JUDGE
Christine E. Mayle, P.J.
_______________________________
Gene A. Zmuda, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
40.