State v. Thompson

[Cite as State v. Thompson, 2012-Ohio-2559.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA )
STATE OF OHIO C.A. No. 11CA0112-M
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
KRISTEN L. THOMPSON COURT OF COMMON PLEAS
COUNTY OF MEDINA, OHIO
Appellant CASE No. 10CR0579
DECISION AND JOURNAL ENTRY
Dated: June 11, 2012
WHITMORE, Presiding Judge.
{¶1} Defendant-Appellant, Kristen Thompson, appeals from her conviction in the
Medina County Court of Common Pleas. This Court affirms.
I
{¶2} Thompson’s car collided with another car on Bear Swamp Road, and the other
driver was seriously injured as a result of the collision. Thompson was crying when a state
trooper arrived and appeared to be intoxicated. She was taken to Summa Wadsworth-Rittman
Hospital where she consented to a blood draw for purposes of blood alcohol content testing.
Thompson admitted at the hospital that she had consumed several beers. The test results
revealed that Thompson had a blood alcohol level of .310; almost four times the legal limit.
{¶3} A grand jury indicted Thompson on three counts of aggravated vehicular assault.
Thompson filed two motions to suppress in which she argued that the State did not substantially
comply with various provisions of the Ohio Administrative Code when it tested her blood. The
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trial court held a hearing and permitted Thompson and the State to file written closing arguments
after the hearing. The court ultimately determined that the State proved substantial compliance
and denied Thompson’s motions.
{¶4} After the court denied her motions, Thompson pleaded no contest to the three
charges in her indictment. The trial court determined that two of the offenses were allied
offenses of similar import, and the State elected to have Thompson sentenced on one count of
aggravated vehicular assault, in violation of R.C. 2903.08(A)(1)(a). The court sentenced
Thompson to two years in prison.
{¶5} Thompson now appeals from her conviction and raises four assignments of error
for our review. For ease of analysis, we consolidate several of the assignments of error.
II
Assignment of Error Number One
THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO
SUPPRESS EVIDENCE OF THE BLOOD TEST WHEN THE STATE FAILED
TO SUBSTANTIALLY COMPLY WITH THE RELEVANT MANDATORY
REQUIREMENTS.
Assignment of Error Number Two
THE TESTIMONY OF MS. KOZLOWSKY SHOULD NOT BE CONSIDERED
AND SHOULD NOT BE PERSUASIVE.
Assignment of Error Number Three
THE TESTIMONY OF MS. ADELMAN SHOULD NOT BE CONSIDERED
AND SHOULD NOT BE PERSUASIVE.
{¶6} In her first three assignments of error, Thompson argues that the trial court erred
by denying her motion to suppress. She argues that the State did not substantially comply with
numerous provisions of the Ohio Administrative Code in conducting her blood alcohol test and
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the court should have disregarded the testimony of two of the State’s witnesses at the
suppression hearing.
{¶7} The Ohio Supreme Court has held that:
[a]ppellate review of a motion to suppress presents a mixed question of law and
fact. When considering a motion to suppress, the trial court assumes the role of
trier of fact and is therefore in the best position to resolve factual questions and
evaluate the credibility of witnesses. State v. Mills, 62 Ohio St.3d 357, 366
(1992). Consequently, an appellate court must accept the trial court’s findings of
fact if they are supported by competent, credible evidence. State v. Fanning, 1
Ohio St.3d 19 (1982). Accepting these facts as true, the appellate court must then
independently determine, without deference to the conclusion of the trial court,
whether the facts satisfy the applicable legal standard. State v. McNamara, 124
Ohio App.3d 706 (4th Dist.1997).
State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. Accordingly, this Court reviews
the trial court’s factual findings for competent, credible evidence and considers the court’s legal
conclusions de novo. State v. Conley, 9th Dist. No. 08CA009454, 2009-Ohio-910, ¶ 6, citing
Burnside at ¶ 8.
{¶8} Chapter 3701-53 of the Ohio Administrative Code contains Ohio’s alcohol and
drug testing regulations. If a defendant challenges the admissibility of a blood test in light of the
regulations, the State bears the burden of showing that it substantially complied with the
regulations in performing the test. State v. Cutlip, 9th Dist. No. 08CA009353, 2008-Ohio-4999,
¶ 10, quoting Burnside at ¶ 24. “A presumption of admissibility arises if the [S]tate satisfies this
burden.” State v. Hoder, 9th Dist. No. 08CA0026, 2009-Ohio-1647, ¶ 10. “[T]he burden then
shifts to the defendant to rebut that presumption by demonstrating that he was prejudiced by
anything less than strict compliance.” Burnside at ¶ 24. “[M]inor procedural deviations” from
the regulations are excusable under the substantial compliance standard. Id. at ¶ 34, quoting
State v. Homan, 89 Ohio St.3d 421, 426 (2000).
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{¶9} The blood-testing procedure set forth in Ohio Adm.Code 3701-53-05:
requires the [S]tate to (1) use an aqueous solution of a nonvolatile antiseptic on
the skin, (2) use a sterile dry needle to draw blood into a vacuum container with a
solid anticoagulant, (3) seal the blood container in accordance with the
appropriate procedure, and (4) refrigerate the blood specimen when it is not in
transit or under examination. The purpose of these regulations is to ensure the
accuracy of the alcohol-test results.
Burnside at ¶ 21.
“Unless an accused, either through discovery or cross-examination at the hearing,
points to facts to support the allegations that specific health regulations have been
violated in some specific way, the burden on the state to show substantial
compliance with those regulations remains general and slight.” State v. Embry,
12th Dist. No. CA2003-11-110, 2004-Ohio-6324, ¶ 29.
State v. Slates, 9th Dist. No. 25019, 2011-Ohio-295, ¶ 10. In those instances, the State may
satisfy its burden through testimony describing how the regulations were followed. Id. at ¶ 11-
17.
{¶10} Trooper John Beeler testified that he arrived at the scene of the accident shortly
after 8:30 p.m. and saw Thompson sitting in the grass at the side of the road. Thompson was
crying, her eyes were glassy, her breath had a very strong odor of alcohol, and she had difficulty
maintaining her balance once she stood. Trooper Beeler accompanied Thompson to the hospital
where she admitted that she had been drinking and consented to a blood draw. Trooper Beeler
provided the nurse at the hospital with a blood draw kit and witnessed the draw after the two
opened the blood draw kit together. He testified that the nurse, Linda Kozlowsky, used a non-
alcoholic iodine prep pad to swab Thompson’s arm, opened a package containing a fresh needle,
withdrew the blood with the needle and deposited it into two tubes from the kit, and placed an
evidence seal over each tube before handing them to Trooper Beeler. Trooper Beeler specified
that the seal Kozlowsky used was tamper-proof and that they both signed the seal after the draw
along with the date and time of the draw. The draw took place at 10:08 p.m. on August 14,
5
2010, and Trooper Beeler took possession of the tubes at 10:12 p.m. He then mailed the tubes to
the Ohio State Highway Patrol Crime Lab at about 11:30 p.m.
{¶11} Kozlowsky could not remember the blood draw she performed on Thompson, but
testified to the procedures she regularly uses in practice. Kozlowsky estimated that she had
performed approximately three to four blood draws for the police per year over the course of her
20 years with the hospital. She testified that she uses a Povidone iodine prep swab on the crook
of a patient’s arm before drawing his or her blood because the iodine swab does not contain any
alcohol. She then removes one needle from a supply box to which she has access. Kozlowsky
confirmed that the needles she uses are dry, sterile, and kept in individually sealed packages.
Kozlowsky then described the tubes she customarily receives from the blood draw kits provided
by the Ohio State Highway Patrol. She explained that the tubes are glass or plastic, have a gray
stopper at the end, and contain sodium chloride. Kozlowsky testified that the sodium chloride is
a dry, white powder anticoagulant that preserves the blood she draws into the tubes and prevents
it from clotting. Once she draws a patient’s blood into a tube, Kozlowsky testified, she seals the
tube over the top of the stopper with a tamper-proof evidence seal that she and the officer
involved have signed. Kozlowsky identified her handwriting on the tubes containing
Thompson’s blood.
{¶12} Emily Adelman, a criminalist in the toxicology unit of the Ohio State Highway
Patrol Crime Lab, testified that she tested Thompson’s blood samples. She testified that her lab
is certified by the Ohio Department of Health and her individual permit from the Health
Department was issued on February 20, 2010. Adelman stated that the Health Department
routinely surveys her lab for compliance purposes and that the most recent survey indicated the
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lab was compliant. She further verified that she keeps an alcohol procedural manual and
toxicology procedural manual at her work station and is familiar with both books.
{¶13} Adelman testified that the blood samples her lab receives are immediately placed
in secure refrigeration upon their arrival and remain there until testing can occur. The lab issues
each sample a unique identifier code so that each person who handles the sample in the lab can
scan the code and the lab can track the whereabouts of the sample at all times. Adelman testified
that the lab received Thompson’s blood sample on August 19, 2010, and she removed it from
refrigeration on August 20, 2010.
{¶14} Adelman identified her initials on the first tube of Thompson’s blood and testified
that she initials tubes after she cuts them open to evidence that she was the one to break the
tamper-proof seal. Adelman verified that the gray stopper tubes from the Ohio State Highway
Patrol kits are vacuum sealed and contain an anticoagulant that prevents clotting. Adelman
removed a portion of Thompson’s blood, placed the blood into a vial, returned the remaining
blood in the tube to refrigeration, and placed the vial into an instrument for purposes of gas
chromatography testing. Adelman explained that she is required to verify that the instrument she
uses for gas chromatography testing is properly calibrated and that she verifies the calibration
with every ten samples. Adelman had to perform two tests on Thompson’s blood because after
she performed the first test Adelman conducted one of her required calibrations and determined
that the instrument was not properly calibrated. The second test revealed that Thompson had a
blood alcohol content level of .310. Aldeman indicated that after she performs a test on a blood
sample from one of her vials, she discards the vials. She also testified, however, that after
testing, her lab retains the blood that remains in the tubes for semi-permanent storage in secure
refrigeration.
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{¶15} In two of her assignments of error, Thompson argues that the trial court should
have disregarded the testimony of Kozlowsky and Adelman because neither could recall
Thompson’s particular case. Instead, both testified about their customary practices and identified
certain evidence that specifically related to Thompson’s case, such as Kozlowsky’s initials on the
tubes of Thompson’s blood and Adelman’s reported results of the tests she performed on
Thompson’s blood. Thompson argues that the court could not consider their testimony because
(1) neither woman testified as an expert, and (2) testimony offered in the absence of personal
knowledge amounts to inadmissible hearsay.
{¶16} Thompson fails to cite any authority in support of her argument. See App.R.
16(A)(7). She also makes no attempt to explain why Kozlowsky and Adelman could not have
testified pursuant to Evid.R. 406. See Evid.R. 406 (habit evidence relevant “to prove that the
conduct of the person or organization on a particular occasion was in conformity with the habit
or routine practice.”); Brunswick v. Dove, 9th Dist. No. 02CA0059-M, 2003-Ohio-2424, ¶ 6-7;
State v. Fazzone, 9th Dist. No. 19115, 1999 WL 194495, *2 (Mar. 31, 1999). Even assuming
that the State introduced hearsay evidence through Kozlowsky and Adelman, however, “judicial
officials at suppression hearings ‘may rely on hearsay and other evidence, even though that
evidence would not be admissible at trial.’” State v. Edwards, 107 Ohio St.3d 169, 2005-Ohio-
6180, ¶ 14, quoting United States v. Raddatz, 447 U.S. 667, 679 (1980). The trial court did not
err by relying on the testimony and evidence the State introduced through Kozlowsky and
Adelman. Accordingly, Thompson’s second and third assignments of error lack merit.
{¶17} In her first assignment of error, Thompson argues that the State did not
substantially comply with numerous provisions of the Ohio Administrative Code. She argues
that the State failed to prove: (1) Adelman’s lab maintained at least one copy of the written
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procedure manual (Ohio Adm.Code 3701-53-01(B)); (2) Adelman confirmed her positive test
result through a dissimilar analytical technique (Ohio Adm.Code 3701-53-03(A)); (3)
Kozlowsky collected Thompson’s sample using an aqueous solution of a non-volatile antiseptic
(Ohio Adm.Code 3701-53-05(B)); (4) Kozlowsky used a sterile, dry needle (Ohio Adm.Code
3701-53-05(C)); (5) Kozlowsky deposited her blood into a vacuum container with a solid
anticoagulant (Ohio Adm.Code 3701-53-05(C)); (6) Kozlowsky sealed the container with a
tamper-proof seal (Ohio Adm.Code 3701-53-05(E)); (7) Thompson’s blood was properly kept
refrigerated (Ohio Adm.Code 3701-53-05(F)); (8) Adelman’s lab retained the samples she tested
(Ohio Adm.Code 3701-53-06(A)); (9) Adelman’s lab successfully completed a national
proficiency testing program (Ohio Adm.Code 3701-53-06(B)); (10) Adelman’s lab maintained a
written procedural manual of all analytical techniques (Ohio Adm.Code 3701-53-06(C)); and
(11) Adelman was operating under the general direction of an individual with a laboratory
director’s permit (Ohio Adm.Code 3701-53-07(A)).
{¶18} As the State correctly notes, Adelman was not required to confirm her positive
test result through a dissimilar analytical technique because that requirement only applies to tests
of controlled substances. Ohio Adm.Code 3701-53-03(B). Alcohol may be analyzed through
gas chromatography alone, which is the method Adelman employed here. See Ohio Adm.Code
3701-53-03(A). As to Thompson’s remaining arguments, she never pointed to any facts to show
that the State violated any of the foregoing regulations in any specific way. Thus, the State’s
burden to demonstrate substantial compliance here was “general and slight” and could be
satisfied through testimony. Embry, 2004-Ohio-6324, at ¶ 29; Slates, 2011-Ohio-295, at ¶ 11-17.
{¶19} The testimony in the record supports the conclusion that the State demonstrated
substantial compliance. Kozlowsky testified that she used an iodine-based, non-alcohol solution
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and sterile, dry needle on Thompson before she then transferred Thompson’s blood to two
vacuum sealed tubes containing a solid anticoagulant and closed the tubes with a tamper-proof
seal. Trooper Beeler witnessed the blood draw and corroborated Kozlowsky’s testimony.
Adelman testified that she had alcohol and toxicology procedural manuals authored by the
director of toxicology at her work station, her lab was certified by the Health Department, she
was certified by the Health Department, and her direct supervisor reviews all the results of her
testing. She also testified that her lab refrigerates all samples at all times, except when the
samples are being tested, and retains the remainder of positive blood samples after testing in
semi-permanent storage. The samples were transferred directly from Kozlowsky to Trooper
Beeler to the Ohio State Highway Patrol Crime Lab where they were logged into evidence with
unique identifiers and immediately refrigerated.
{¶20} The trial court determined from the foregoing testimony that the State proved
substantial compliance. In her eleven separate challenges to the State’s compliance, Thompson
did not set forth a single citation to any case law. See App.R. 16(A)(7); Cardone v. Cardone, 9th
Dist. No. 18349, 1998 WL 224934, *8 (May 6, 1998). Her argument only consists of
unsupported allegations. For instance, she argues that the State failed to show substantial
compliance because Adelman did not sufficiently describe the manuals in her work station, the
manufacturer of the needle Kozlowsky used might not have properly sterilized it, sodium
chloride might not be a “solid” anticoagulant, and Kozlowsky could not have known if the seals
she used were tamper-proof because she never tried to remove such a seal without breaking it.
Thompson’s speculative, unsupported arguments are unavailing. Upon our review of the record,
we conclude that the trial court did not err in concluding that the State established substantial
requirements. See Slates at ¶ 11-17. As such, the success of Thompson’s motion depended upon
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her proving that she “was prejudiced by anything less than strict compliance.” Burnside, 100
Ohio St.3d 152, 2003-Ohio-5372, at ¶ 24. Thompson limited her argument on appeal to
substantial compliance. She did not go on to discuss prejudice. Accordingly, this Court will not
engage in a prejudice analysis on her behalf. Cardone at *8.
{¶21} The trial court properly relied upon the testimony of Kozlowsky and Adelman,
and did not err by denying Thompson’s motion to suppress. Thompson’s first, second, and third
assignments of error are overruled.
Assignment of Error Number Four
MANDATORY MINIMUM SENTENCES ARE A VIOLATION OF
APPELLANT’S CONSTITUTIONALLY PROTECTED RIGHTS.
{¶22} In her fourth assignment of error, Thompson argues that the court violated her
constitutional rights by imposing a mandatory minimum sentence. She raises both a facial and
as-applied challenge to the constitutionality of mandatory minimum sentences issued in
accordance with R.C. 2903.08(D)(1). Specifically, she argues that mandatory minimum
sentences violate the separation of powers doctrine, ignore proportionality, violate notions of due
process, and amount to cruel and unusual punishment.
{¶23} At the outset, we note that “[a]n enactment of the General Assembly is presumed
to be constitutional, and before a court may declare it unconstitutional it must appear beyond a
reasonable doubt that the legislation and constitutional provisions are clearly incompatible.”
State v. Cook, 83 Ohio St.3d 404, 409 (1998), quoting State ex rel. Dickman v. Defenbacher, 164
Ohio St. 142 (1955), paragraph one of the syllabus. Thompson pleaded no contest to a violation
of R.C. 2903.08(A)(1)(a). R.C. 2903.08 provides that a trial court “shall impose a mandatory
prison term on an offender who is convicted of or pleads guilty to a violation of division (A)(1)
of this section.” R.C. 2903.08(D)(1).
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{¶24} This Court recently considered a constitutional challenge to a mandatory
minimum sentence in State v. Banks, 9th Dist. No. 25279, 2011-Ohio-1039. In upholding the
mandatory minimum sentence imposed in Banks, we held as follows:
It is well settled that the General Assembly has the plenary power to prescribe
crimes and fix penalties. Mandatory sentencing laws enacted pursuant to this
authority do not usurp the judiciary’s power to determine the sentence of
individual offenders. There is no federal constitutional impediment to mandatory
minimum prison terms. Such minimum sentences are properly within the scope
of the power of the General Assembly.
(Internal citations and quotations omitted.) Banks at ¶ 48. Banks recognized that the legislature
has the authority to prescribe mandatory prison terms for offenses it finds to be particularly
severe or dangerous. Id. While the statute in Banks involved the inherently dangerous assembly
of methamphetamine, the plain language of R.C. 2903.08(D)(1) supports the conclusion that the
legislature is equally troubled by the idea of a person who operates a vehicle while intoxicated
and proximately causes serious physical harm to another person in the process. “Driving under
the influence of alcohol is an activity which carries with it a substantial danger of damage to
property and serious injury, even death, for innocent bystanders. It is wholly reasonable that, in
seeking to deter these serious consequences, the legislature enact serious penalties.” State v.
Knisely, 6th Dist. No. H-94-044, 1995 WL 490937, *3 (Aug. 18, 1995), rev’d on other grounds,
In re Adm. License Suspension Cases, 76 Ohio St.3d 597 (1996). We, therefore, reject
Thompson’s facial challenge to the mandatory minimum sentence the court imposed pursuant to
R.C. 2903.08(D)(1).
{¶25} Further, this Court rejects Thompson’s challenge that her mandatory minimum of
two years is unconstitutional as applied. Thompson’s blood alcohol level was almost four times
the legal limit when she struck the victim in this case. The victim suffered significant injuries,
including a broken femur and shattered heel. She also incurred severe financial difficulties
12
because her injuries affected her ability to work and Thompson did not have insurance when she
caused the collision. Moreover, in sentencing Thompson to two years, the trial court noted that it
revoked Thompson’s bond during the course of the proceedings because she violated one of her
bond conditions. Specifically, she was photographed consuming alcohol while attending a
concert at Blossom Music Center. Thompson’s mandatory two-year term “[does] not run afoul
of constitutional principles.” Banks at ¶ 48. Her fourth assignment of error is overruled.
III
{¶26} Thompson’s assignments of error are overruled. 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.
BETH WHITMORE
FOR THE COURT
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MOORE, J.
DICKINSON, J.
CONCUR.
APPEARANCES:
MICHAEL J. CALLOW, Attorney at Law, for Appellant.
DEAN HOLMAN, Prosecuting Attorney, and Matthew Kern, Assistant Prosecuting Attorney,
for Appellee.