Columbus v. Zimmerman

[Cite as Columbus v. Zimmerman, 2015-Ohio-3488.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
City of Columbus, :
Plaintiff-Appellee, : No. 14AP-963
(M.C. No. 2014 TRC 137789)
v. : No. 14AP-964
(M.C. No. 2014 CRB 10806)
Haley L. Zimmerman, :
(REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on August 27, 2015
Richard C. Pfeiffer, Jr., City Attorney; Lara N. Baker, City
Prosecutor, and Orly Ahroni, for appellee.
Phillip L. Harmon, for appellant.
APPEALS from the Franklin County Municipal Court
KLATT, J.
{¶ 1} In these cases, defendant-appellant, Haley L. Zimmerman, appeals from
two judgments of convictions entered by the Franklin County Municipal Court. For the
following reasons, we affirm appellant's convictions.
I. Factual and Procedural Background
{¶ 2} Shortly after midnight on May 8, 2014, Columbus police officers stopped
appellant after observing her driving out of her lane several times. The officers suspected
her of operating a vehicle while under the influence ("OVI"). During the stop, the officers
arrested her. One of the officers read to appellant the BMV Form 2255, which provides a
person suspected of OVI of the consequences for refusing to take a chemical alcohol test
when requested. The officers then asked appellant to take an alcohol breath test. She
Nos. 14AP-963 and 14AP-964 2
refused. Accordingly, pursuant to R.C. 4511.191, the officers took her drivers license and
placed her on an administrative license suspension ("ALS").
{¶ 3} As a result, in case No. 14AP-963, the officers charged her with OVI in
violation of Columbus City Code ("C.C.C.") 2133.01, as well as a marked lanes violation of
C.C.C. 2131.08(A)(1) and a failure to display violation of C.C.C. 2135.07(A). In case No.
14AP-964, a complaint charged her with an open container violation of C.C.C. 2325.62.
{¶ 4} After her initial appearance in the Franklin County Municipal Court,
appellant filed an appeal of the ALS pursuant to R.C. 4511.197 as well as a motion to
terminate the ALS.1 She argued that certain procedural steps found in R.C. 4511.191 and
4511.192 had not been complied with and that such noncompliance warranted the
vacation of her ALS.
{¶ 5} Subsequently, appellant also filed a motion in limine or, in the alternative,
to suppress evidence. Specifically, as the motion related to suppression of evidence,
appellant argued that the officers did not have probable cause to stop or arrest her. In
regards to the motion in limine, appellant argued that the arresting officer did not read
her the BMV Form 2255 and that the officer's certification that he did so was false.2 As a
result, appellant sought to have the form excluded from evidence at trial and the trial
court to instruct the jury that the form would not be introduced into evidence because the
arresting officer filed statements that were not true.
{¶ 6} After a hearing to resolve the motions and the ALS appeal, the trial court
orally denied the motion to suppress, concluding that the officers had probable cause to
stop appellant. The trial court made no other rulings. Appellant subsequently filed a
motion for reconsideration that requested the trial court to reconsider its oral decision.
The motion also requested the trial court to enter written findings of fact and conclusions
of law for both the motion in limine and the ALS appeal. Appellant again argued that the
arresting officer himself did not read her the BMV Form 2255 and that, as a result, her
1 An ALS proceeding is a separate civil matter that is unrelated to the criminal OVI prosecution. State v.
Clark, 3d Dist. No. 6-95-10 (Jan. 18, 1996), citing Hoban v. Rice, 25 Ohio St.2d 111 (1971).
2R.C. 4511.192(A) provides that "the arresting law enforcement officer" shall give the advice set forth in
BMV Form 2255 and "shall read the advice to the person."
Nos. 14AP-963 and 14AP-964 3
ALS was void as a matter of law and her ALS appeal should be granted.3 On October 16,
2014, the trial court denied the motion to reconsider. In so doing, the trial court also
addressed and rejected appellant's arguments concerning her ALS appeal. Specifically,
the trial court was "unconvinced" that only the arresting officer may read the BMV Form
2255 to a defendant.
{¶ 7} Subsequently, on October 22, 2014, appellant entered no contest pleas to all
of the charges in both cases. The trial court accepted those pleas, found appellant guilty,
and sentenced her accordingly.
II. Appellant's Appeal
{¶ 8} Appellant now appeals and assigns the following error:
The trial judge erred as a matter of law by denying the motion
in limine and motion for reconsideration filed by defendant-
appellant Zimmerman.
A. Decisions on Motions in Limine are not Appealable
{¶ 9} Appellant attempts to appeal the trial court's denial of her motion in
limine,4 which sought rulings pertaining to issues that might arise at trial over the BMV
Form 2255. Such a decision is not a final appealable order. Gable v. Gates Mills, 103
Ohio St.3d 449, 2004-Ohio-5719, ¶ 35. As a pretrial, preliminary, anticipatory ruling,
finality does not attach when a motion in limine is decided, because such a decision is a
procedural step prior to the offer of evidence at trial that does not preserve the record for
appellate review. Id.; see also State v. Simpson, 5th Dist. No. 06CA27, 2007-Ohio-1959,
¶ 15. A ruling on a motion in limine normally reflects the court's anticipated treatment of
an evidentiary issue. Therefore, should circumstances subsequently develop at trial, the
trial court is certainly at liberty to again consider the admissibility of the disputed
evidence in its actual context. State v. Grubb, 28 Ohio St.3d 199, 201-02 (1986). For
those reasons, a motion in limine does not preserve for purposes of appeal any error in
3 R.C. 4511.197(C) provides that the scope of an ALS appeal is limited to determining whether certain
conditions have been met, including whether, under circumstances here, "the arresting officer informed
the arrested person of the consequences of refusing to be tested or of submitting to the test or tests." R.C.
4511.197(C)(3).
4 We do not address appellant's assignment of error as it relates to the trial court's decision denying her
motion to reconsider its decision denying her motion to suppress. Appellant does not set forth any
argument concerning that decision.
Nos. 14AP-963 and 14AP-964 4
the disposition of the motion in limine. " 'An appellate court need not review the propriety
of such an order unless the claimed error is preserved by a timely objection when the issue
is actually reached during the trial.' " Grubb at 203, quoting State v. Leslie, 14 Ohio
App.3d 343, 344 (1984).
{¶ 10} Appellant entered a no contest plea and did not proceed to trial. Therefore,
the issues she raised in her motion in limine were not reached during trial, and we have
no basis to consider them on appeal. State v. Stoyer, 9th Dist. No. 24010, 2008-Ohio-
2964, ¶ 9. Accordingly, we overrule appellant's assignment of error.
B. Appellant's ALS Terminated After her Conviction Pursuant to
her No Contest Plea
{¶ 11} Appellant does not present any other arguments about her convictions or
the trial court's decision to deny her motion to suppress. Her only arguments in these
appeals deal with the propriety of her ALS. Her ALS terminated, however, when she was
convicted after entering a no contest plea to the OVI offense. R.C. 4511.191(B)(2); State v.
Gonzaliz, 5th Dist. No. 2013CA00077, 2013-Ohio-5309, ¶ 19. Thus, appellant's
arguments, which do not address her convictions, are moot. Id.; State v. Kanavel, 5th
Dist. No. 2010-CA-131, 2011-Ohio-1711, ¶ 43; State v. Clark, 3d Dist. No. 6-95-10 (Jan. 18,
1996).
III. Conclusion
{¶ 12} Appellant's arguments in this appeal all relate to the ALS appeal, not her
convictions. The ALS, however, terminated upon her conviction for OVI. R.C.
4511.191(B)(2). Because she has not substantively challenged her convictions in these
appeals, we have no option but to affirm those convictions, rendering her challenge to the
ALS moot.
{¶ 13} Accordingly, we overrule appellant's assignment of error and affirm the
judgments of the Franklin County Municipal Court.
Judgments affirmed.
BROWN, P.J., and HORTON, J., concur.