State v. Hollis

[Cite as State v. Hollis, 2013-Ohio-2586.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. W. Scott Gwin, J.
: Hon. John W. Wise, J.
-vs- :
: Case No. 12CA34
MATTHEW HOLLIS :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of
Common Pleas, Case No. 2011CR0181 D
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: June 17, 2013
APPEARANCES:
For Appellant: For Appellee:
ROBERT E. CALESARIC JAMES J. MAYER, JR.
35 South Park Place, Suite 150 RICHLAND CO. PROSECUTOR
Newark, OH 43055 JOHN C. NIEFT
38 South Park St.
Mansfield, OH 44902
[Cite as State v. Hollis, 2013-Ohio-2586.]
Delaney, P.J.
{¶1} Appellant Matthew Hollis appeals from the January 3, 2012 decision of
the Richland County Court of Common Pleas overruling his motion to suppress.
Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} The following facts are adduced from the indictment, bill of particulars
and evidence presented by both parties at the hearings on appellant’s motion to
suppress.
{¶3} This case arose on September 12, 2010, a few minutes after midnight,
when troopers of the Mansfield post of the Ohio State Highway Patrol were dispatched
to a fatal traffic crash at the intersection of Reed Road and Route 30. Upon arrival,
troopers discovered an overturned white Ford Ranger pickup truck in the median and
a number of witnesses at the scene.
{¶4} Upon investigation, troopers discovered appellant had driven the pickup
truck from Reed Road onto Route 30 at a high rate of speed, failed to negotiate a
curve, lost control, left the roadway, overcorrected, and overturned the vehicle.
{¶5} In addition to appellant, the truck contained three passengers: Michelle
Antonelli was in the right-front passenger seat, and Matthew Oprean and Allen Shirer
were in the bed of the truck. Oprean and Shirer were ejected during the crash and
landed in the roadway, exposed to oncoming traffic. Oprean was either killed during
the crash, ejection, and impact, or was struck and killed by oncoming traffic; he was
pronounced dead at the scene. Shirer and Antonelli sustained serious injuries.
Richland County, Case No. 12CA34 3
{¶6} Troopers on the scene of the crash observed alcoholic beverage
containers in and around the vehicle and the roadway, and detected an odor of an
alcoholic beverage permeating the entire scene. The victims had already been
transported by EMS, although appellant was briefly still present and spoke with a
trooper who described him as “emotionally shooken up (sic).” Appellant was soon
transported to MedCentral Hospital in Mansfield for treatment.
{¶7} Trooper Aaron Doerfler made contact with appellant in the MedCentral
emergency room. Appellant was laying on a hospital bed covered with a blanket, and
the trooper did not note any apparent visible injuries. He noticed the odor of alcohol
about appellant’s person and intended to read him the BMV 2255 form. Doerfler was
unable to read the form, however, because appellant would not respond to his
questions. Doerfler described appellant crying and wailing, conscious but
unresponsive to Doerfler’s questions and statements. Doerfler said he spent several
minutes attempting to communicate with appellant, who said nothing or cried and
“toss[ed] his head back and forth.” Doerfler filled out the BMV 2255 but noted
appellant was unable to sign because he was unresponsive.
{¶8} Doerfler testified that if appellant had been responsive, he would have
read the 2255 form to him and asked him to submit to a blood test. Doerfler
determined appellant was unresponsive and therefore asked a nurse to draw
appellant’s blood, providing her with a kit he kept in his patrol car for the purpose of
chemical testing. The kit contained two vials for appellant’s blood. The nurse drew
the blood at 0154 hours and gave the vials to Doerfler, who sealed them with evidence
tape. Both Doerfler and the nurse signed labels on the vials, Doerfler returned them to
Richland County, Case No. 12CA34 4
the kit, sealed it, and placed the kit in a mailbox outside the hospital at 0212 hours,
addressed to the Ohio State Highway Patrol Crime Lab.
{¶9} Investigating troopers testified the decision was made to request the
blood draw based upon “informed consent” and did not seek a search warrant for
appellant’s blood. Blood was also drawn for medical alcohol testing purposes by
MedCentral personnel.
{¶10} Subsequent testing of appellant’s blood samples by the Ohio State
Highway Patrol Crime Lab and MedCentral Hospital Laboratory found a whole blood
alcohol concentration of .197 grams by weight of alcohol per one hundred milliliters
(grams percent) and a blood serum concentration of .239 grams by weight of alcohol
per one hundred milliliters.
Indictment, Motion to Suppress, and Plea
{¶11} Appellant was charged by indictment with one count of aggravated
vehicular homicide pursuant to R.C. 2903.06(A)(1)(a), a felony of the second degree;
one count of aggravated vehicular homicide pursuant to R.C. 2903.06(A)(2), a felony
of the third degree; two counts of aggravated vehicular assault pursuant to R.C.
2903.08(A)(1)(a), felonies of the third degree; two counts of aggravated vehicular
assault pursuant to R.C. 2903.08(A)(2)(b), felonies of the fourth degree; one count of
O.V.I. pursuant to R.C. 4511.19(A)(1)(f), a misdemeanor of the first degree; one count
of O.V.I pursuant to R.C. 4511.19(A)(1)(c), a misdemeanor of the first degree; and one
count of O.V.I pursuant to R.C. 4511.19(A)(1)(a), a misdemeanor of the first degree.
{¶12} Appellant entered pleas of not guilty and filed a motion to suppress all
evidence obtained from his arrest, including the chemical tests of his blood. A series
Richland County, Case No. 12CA34 5
of evidentiary hearings were held. Appellee conceded the hospital medical blood
draw was not legally sufficient to support an indictment under R.C. 4511.19(A)(1)(c)
[plasma], but indicated its intent to use the test with expert testimony to establish a
violation of R.C. 4511.19(A)(1)(a).
{¶13} The trial court overruled appellant’s motion to suppress on January 3,
2012. Thereafter, appellant entered pleas of no contest as charged and on April 16,
2012, was sentenced to an aggregate prison term of 6 years, in addition to a
mandatory term of 3 years post-release control, a lifetime drivers-license suspension,
and restitution.
{¶14} Appellant now appeals from the trial court’s decision overruling his
motion to suppress.
{¶15} Appellant raises three Assignments of Error:
{¶16} “I. THE TRIAL COURT ERRED TO THE PREJUDICE OF
DEFENDANT-APPELLANT BY DENYING HIS MOTION TO SUPPRESS THE LEGAL
WHOLE BLOOD DRAW EVIDENCE OBTAINED BY LAW ENFORCEMENT IN
VIOLATION OF THE FOURTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES AND RC 4511.19 AND RC 4511.191(sic).”
{¶17} “II. THE TRIAL COURT ERRED TO THE PREJUDICE OF
DEFENDANT-APPELLANT BY DENYING HIS MOTION TO SUPPRESS THE
MEDICAL PLASMA BLOOD DRAW EVIDENCE OBTAINED BY LAW
ENFORCEMENT IN VIOLATION OF THE FOURTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES AND RC 4511.19 AND RC 4511.191
(sic).”
Richland County, Case No. 12CA34 6
{¶18} “III. THE TRIAL COURT ERRED TO THE PREJUDICE OF
DEFENDANT-APPELLANT BY ALLOWING THE STATE TO PUT ON EXPERT
TESTIMONY WITHOUT COMPLYING WITH CRIMINAL RULE 16 DENYING
APPELLANT DUE PROCESS OF LAW.”
I., II.
{¶19} Appellant’s first two assignments of error arise from the trial court’s
rulings upon the motion to suppress and will be addressed together.
Standard of Review
Appellate review of a trial court’s decision to deny a motion to suppress
involves a mixed question of law and fact. State v. Long, 127 Ohio App.3d 328, 332,
713 N.E.2d 1 (4th Dist. 1998). During a suppression hearing, the trial court assumes
the role of trier of fact and, as such, is in the best position to resolve questions of fact
and to evaluate witness credibility. State v. Brooks, 75 Ohio St.3d 148, 154, 661
N.E.2d 1030 (1996). A reviewing court is bound to accept the trial court’s findings of
fact if they are supported by competent, credible evidence. State v. Medcalf, 111 Ohio
App.3d 142, 145, 675 N.E.2d 1268 (4th Dist.1996). Accepting these facts as true, the
appellate court must independently determine as a matter of law, without deference to
the trial court’s conclusion, whether the trial court’s decision meets the applicable legal
standard. State v. Williams, 86 Ohio App.3d 37, 42, 619 N.E.2d 1141 (4th Dist.1993),
overruled on other grounds.
{¶20} There are three methods of challenging a trial court’s ruling on a motion
to suppress on appeal. First, an appellant may challenge the trial court’s finding of
fact. In reviewing a challenge of this nature, an appellate court must determine
Richland County, Case No. 12CA34 7
whether the trial court’s findings of fact are against the manifest weight of the
evidence. See, State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v.
Klein, 73 Ohio App.3d 486, 597 N.E.2d 1141 (1991). Second, an appellant may argue
the trial court failed to apply the appropriate test or correct law to the findings of fact.
In that case, an appellate court can reverse the trial court for committing an error of
law. See, Williams, supra. Finally, an appellant may argue the trial court has
incorrectly decided the ultimate or final issues raised in a motion to suppress. When
reviewing this type of claim, an appellate court must independently determine, without
deference to the trial court’s conclusion, whether the facts meet the appropriate legal
standard in any given case. State v. Curry, 95 Ohio App.3d 93, 96,620 N.E.2d 906(8th Dist.1994).
Probable Cause and Arrest
{¶21} First, appellant contends troopers had no probable cause to arrest him
and that he was not the subject of a valid arrest which would trigger the provisions of
implied consent. We disagree.
{¶22} The Fourth Amendment to the United States Constitution and Section
14, Article I of the Ohio Constitution prohibit the government from conducting
unreasonable searches and seizures of persons or their property. Terry v. Ohio, 392
U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Specifically, the Fourth Amendment
protects persons against unjustified or improper intrusions into a person's privacy,
including bodily intrusion. See State v. Gross, 5th Dist. No. CT 96-055 (May 24, 1999),
citing Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).
Richland County, Case No. 12CA34 8
{¶23} It is well-established that “searches conducted outside the judicial
process, without prior approval by judge or magistrate, are per se unreasonable under
the Fourth Amendment-subject only to a few specifically established and well-
delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19
L.Ed.2d 576 (1967). The United States Supreme Court has recognized that the Fourth
Amendment's “proper function is to constrain, not against all intrusions as such, but
against intrusions which are not justified in the circumstances, or which are made in
an improper manner.” Winston v. Lee, 470 U.S. 753, 760, 105 S.Ct. 1611, 84 L.Ed.2d
662(1985), quoting Schmerber, supra, at 768. However, “a suspect, upon request of a
police officer, may voluntarily consent to submit to a blood test to determine the
concentration of alcohol in his or her blood. Such consent constitutes actual consent *
* *.” Fairfield v. Regner, 23 Ohio App.3d 79, 85, 491 N.E.2d 333 (12th Dist.1985).
{¶24} Ohio’s statutory implied consent law is found in R.C. 4511.191(A)(2),
which states in pertinent part:
Any person who operates a vehicle * * * upon a highway or any
public or private property used by the public for vehicular travel or
parking within this state or who is in physical control of a vehicle *
* * shall be deemed to have given consent to a chemical test or
tests of the person's whole blood, blood serum or plasma, breath,
or urine to determine the alcohol, drug of abuse, controlled
substance, metabolite of a controlled substance, or combination
content of the person's whole blood, blood serum or plasma,
breath, or urine if arrested for a violation of division (A) or (B) of
Richland County, Case No. 12CA34 9
section 4511.19 of the Revised Code, section 4511.194 of the
Revised Code or a substantially equivalent municipal ordinance,
or a municipal OVI ordinance. (Emphasis added).
{¶25} Appellant argues here that the “implied consent to testing” provisions of
R.C. 4511.191 are not applicable because he was not arrested. In State v. Whitt, we
reiterated the principle that an arrest occurs when four elements are present: (1) an
intent to arrest, (2) under real or pretended authority, (3) accompanied by actual or
constructive seizure or detention of the person, and (4) which is so understood by the
person arrested. 5th Dist. No. 10-CA-3, 2010-Ohio-3761at ¶ 14, citing State v. Darrah,
64 Ohio St.2d 22, 412 N.E.2d 1328 (1980).1 We also referenced our decision in State
v. Kirschner, 5th Dist. No.2001 CA00107, 2001-Ohio-1915, for the proposition that “ ‘a
valid arrest must precede the seizure of a bodily substance, including a blood draw,
and must precede an implied consent given based upon Form 2255.’“ Id. at ¶ 18,
quoting State v. Rice, 129 Ohio App.3d 91, 98, 717 N.E.2d 351 (1998).
{¶26} We have also recognized, however, the reality of constructive arrest,
particularly in cases such as the one sub judice in which the subject of the drunken
driving investigation is hospitalized or undergoing treatment and arrest per se is not
feasible. That doesn’t mean the investigation stops. In the instant case, the trial court
applied the rationale of our decision in State v. Groves, which we also find to be
applicable. 5th Dist. No. 10CA18, 2010-Ohio-5089. In that case, the driver was
hospitalized when he was questioned by the officer and read the BMV 2255; the driver
1
Judge Hoffman concurred separately in Whitt.
Richland County, Case No. 12CA34 10
was never taken into “custody” as such because he was undergoing medical treatment
and there was no time for a citation to be issued. Nevertheless, we found as follows:
Despite this court's holding in State v. Kirschner, [5th Dist.]
No.2001CA00107, 2001-Ohio-1915, the administrative regulations
in the case sub judice were fulfilled. Appellant was told he was
under arrest. A citation would have been issued at the hospital but
for appellant's medical emergency. To disallow the results of the
blood draw because of the intervening urgent circumstances
would place form over substance. The purpose of the mandatory
language of the implied consent law is to inform the suspect of his
various rights under 4511.191 and the administrative license
provisions for non-consent. The language contained in the BMV
2250 form was sufficient to establish an “arrest.”
State v. Groves, 5th Dist. No. 10CA18, 2010-Ohio-5089, ¶ 19.
{¶27} We find the trooper’s interaction with appellant at the hospital in
obtaining the blood sample after his constructive arrest complied with R.C.
4511.191(A)(2) and is reasonable under the Fourth Amendment. See, State v. May,
5th Dist. No. 2010CA1, 2010-Ohio-4594, ¶ 22, appeal not allowed, 127 Ohio St.3d
1547, 2011-Ohio-647, 941 N.E.2d 803.
{¶28} Appellant further argues, though, that no probable cause existed to
arrest him for O.V.I., and we disagree. A police officer has probable cause for an
arrest if the facts and circumstances within his knowledge are sufficient to cause a
reasonably prudent person to believe that the defendant has committed the offense.
Richland County, Case No. 12CA34 11
State v. Cummings, 5th Dist.No.2005–CA–00295, 2006–Ohio–2431, ¶ 15, citing State
v. Heston, 29 Ohio St.2d 152, 280 N.E.2d 376 (1972). In making this determination,
the trial court must examine the totality of facts and circumstances surrounding the
arrest. See State v. Miller, 117 Ohio App.3d 750, 761, 691 N.E.2d 703 (1997); State v.
Brandenburg, 41 Ohio App.3d 109, 111, 534 N.E.2d 906 (2nd Dist.1987). When
evaluating probable cause to arrest for OVI, the totality of the facts and circumstances
can support a finding of probable cause to arrest even where no field sobriety tests
were administered. See State v. Homan, 89 Ohio St.3d 421, 427, 732 N.E.2d 952(2000). Furthermore, a police officer does not have to observe poor driving
performance in order to effect an arrest for driving under the influence of alcohol if all
the facts and circumstances lead to the conclusion that the driver was impaired. See
State v. Harrop, 5th Dist. No. CT2000–0026 (July 2, 2001), citing Atwell v. State, 35
Ohio App.2d 221, 301 N.E.2d 709 (8th Dist.1973).
{¶29} The tragic facts and circumstances of the instant case are replete with
probable cause for appellant’s constructive arrest for O.V.I. The circumstances of the
crash, which include appellant losing control and overturning the vehicle at a high rate
of speed, combined with the alcoholic beverage containers scattered throughout the
scene, plus the odor of an alcoholic beverage emanating from appellant’s person in
the MedCentral E.R., constitute probable cause. We also note appellant’s demeanor
of moaning, wailing, and failing to respond to the trooper despite his responsiveness
to hospital personnel.
Richland County, Case No. 12CA34 12
Exigent Circumstances
{¶30} Appellant next argues appellee did not prove exigent circumstances
existed which would permit his blood to be drawn absent a search warrant. We note
that if there are exigent circumstances and “an officer has probable cause to arrest a
driver for DUI, the result of an analysis of a blood sample taken over the driver's
objection and without consent is admissible in evidence, even if no warrant had been
obtained.” State v. Hoover, 123 Ohio St.3d 418, 2009–Ohio–4993, 916 N.E.2d 1056, ¶
19, citing Schmerber v. California, 384 U.S. 757, 770–771, 86 S.Ct. 1826, 16 L.Ed.2d
908 (1966). The issues are whether exigent circumstances existed along with
probable cause to arrest appellant for OVI prior to the evidentiary blood draw, and
whether a reasonable procedure was used to extract the blood. Schmerber at 770–
772; State v. Capehart, 12th Dist. No. CA2010–12–035, 2011–Ohio–2602, ¶ 10. If all
of these elements are present, then appellant’s consent was unnecessary for the
blood draw results to be admissible. State v. Carr, 11th Dist. No. 2012-L-001, 2013-
Ohio-737, ¶ 43.
{¶31} We have already determined probable cause existed to arrest appellant
for O.V.I. Turning to the question of exigent circumstances, we have recognized that
the potential for alcohol to dissipate within a suspect’s blood system constitutes
exigent circumstances. State v. Anderson, 5th Dist. No. 00CAA12039, 2001 WL
967900, *2, appeal not allowed, 94 Ohio St.3d 1410, 759 N.E.2d 787. Other courts
have held likewise. “It is beyond cavil that alcohol in an individual's system
progressively dissipates over a short period of time.” Willoughby v. Dunham, 11th
Dist. No. 2010-L-068, 2011-Ohio-2586, ¶ 37; Schmerber at 770 (“the percentage of
Richland County, Case No. 12CA34 13
alcohol in the blood begins to diminish shortly after drinking stops, as the body
functions to eliminate it from the system”). Exigent circumstances have also been
found to justify ordering a blood sample without consent under Schmerber when a
defendant was in an accident approximately two hours prior to the blood draw and
“there was a risk that evidence would be destroyed as appellant's system began to
eliminate the alcohol.” State v. Schulte, 11th Dist. No. 94-L-186, 1996 WL 660880, *8,
appeal not allowed, 78 Ohio St.3d 1428, 676 N.E.2d 533 (1997); Schmerber at 770–
771 (in cases where the defendant had to be taken to a hospital and police had to
investigate the scene of the accident, time is limited to secure a warrant and exigent
circumstances exist).
{¶32} In the instant case, troopers had probable cause to suspect appellant
was under the influence of alcohol after encountering him at the scene of the accident.
Appellee presented evidence through Morrow’s testimony that a search warrant would
have taken “hours” to obtain. We find exigent circumstances existed.
{¶33} Finally, the Schmerber court also required that, provided exigent
circumstances and probable cause exist, the blood must also be drawn in a
reasonable manner. Here, the blood was drawn by a nurse who used gloves, used the
non-alcoholic iodine swab in the trooper’s kit to clean the area, used a sterile needle
from stock, and collected the sample into a grey-topped vacuum tube in the kit
containing preservative and anticoagulant materials. No evidence exists this was not
done using the typical, reasonable procedures used for extracting blood and,
therefore, this element of Schmerber was met. See State v. Capehart, 12th Dist. No.
CA2010-12-035, 2011–Ohio–2602, at ¶ 13 (“because the blood sample was drawn by
Richland County, Case No. 12CA34 14
trained medical personnel using medically acceptable procedures, it is clear that the
method used to extract the evidence was reasonable and performed in a reasonable
manner”).
Timely Blood Draw
{¶34} Appellant next argues appellee failed to show the blood draw was
requested within two hours and drawn within three hours of operation, and did not
establish substantial compliance with Chapter 3701-53-05 of the Ohio Administrative
Code in terms of the method of collection and retention of the sample. These issues
present mixed questions of law and fact. During a suppression hearing, the trial court
assumes the role of the 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, 582 N.E.2d 972 (1992); State v. Hopfer, 112 Ohio App.3d 521, 548,
679 N.E.2d 321 (2nd Dist.1996). As a result, an appellate court must accept the trial
court's findings of fact if they are supported by competent, credible evidence. State v.
Guysinger, 86 Ohio App.3d 592, 594, 621 N.E.2d 726 (4th Dist.1993). An appellate
court must then independently determine without deference to the trial court's legal
conclusions whether, as a matter of law, evidence should be suppressed. State v.
Waters, 181 Ohio App.3d 424, 430, 909 N.E.2d 183 (5th Dist.2009).
{¶35} Appellant insists throughout his argument that the time of the crash was
merely speculative, but this assertion is not borne out by the record. The trial court
found the crash occurred at midnight, and this finding is supported by competent
credible evidence. Trooper Beringo testified the time of dispatch was 12:04 and it is
reasonable to conclude from the circumstantial evidence that the crash had occurred
Richland County, Case No. 12CA34 15
shortly before it was called in. Appellant was still on the scene and admitted to
Trooper Morrow, who arrived at 12:10, that he was the driver. Tragically, witnesses
were still a short distance away at a rest stop on the highway who thought they had
struck one of the victims as he lay in the roadway.
{¶36} The trial court’s conclusion that the blood was drawn within two hours of
the crash is supported by competent, credible evidence. Appellant was immediately
transported to MedCentral by the EMS squad, where Trooper Doerfler later made
contact with him. Doerfler testified that he read the BMV 2255 form at 0120 hours, the
blood was drawn at 0154 hours, and he placed the sealed kit containing the samples
into the mailbox near the hospital at 0212 hours.
{¶37} Appellant also argues appellee did not establish that a solid
anticoagulant was used because two witnesses testified the tubes appeared to be
empty. Appellant’s assertion is belied by the fact that the lab was able to obtain a
sample from the tubes, in other words, the blood samples were still in liquid form upon
testing. As appellee points out, if the anticoagulant was missing, the samples would
have been solid and unable to be tested.
Blood Plasma Issues
{¶38} Appellant further argues the trial court should have suppressed the blood
plasma evidence because the testing procedure was “tainted” and does not comply
with the Rules of Evidence. We note, however, that the trial court found the hospital
blood alcohol test “may only be used in evidence to prove alcohol impaired driving if it
is offered with expert testimony.” While we have already concluded that the testing
was performed within three hours of operation, supra, appellant is charged with a
Richland County, Case No. 12CA34 16
violation of R.C. 4511.19(A)(1)(a) and evidence of a blood sample taken outside the
time frame set out in R.C. 4511.19(D) is admissible to prove that a person is under the
influence of alcohol as proscribed by R.C. 4511.19(A)(1)(a) in the prosecution for a
violation of R.C. 2903.06, provided that the administrative requirements of R.C.
4511.19(D) are substantially complied with and expert testimony is offered. State v.
Hassler, 115 Ohio St.3d 322, 2007-Ohio-4947, 875 N.E.2d 46, syllabus.
{¶39} The evidence in this case established a MedCentral phlebotomist made
a separate blood draw pursuant to medical orders. Appellant’s arm was cleaned with
water and gauze, and blood was drawn into a tube labeled and bar-coded specifically
for appellant, labeled with the technician’s initials and time of draw. The blood tube
was placed in a “bio-bag” and sent directly to the hospital lab through the hospital’s
pneumatic tube system. Upon receipt in the lab, another technician centrifuged the
sample to separate the blood plasma and tested the sample on the Siemens Advia
1800 instrument by means of the alcohol dehydrogenase enzymatic method at 1:47
a.m.
{¶40} We find the trial court’s findings of fact to be supported by competent,
credible evidence. The trial court did not err in overruling appellant’s motion to
suppress.
{¶41} Appellant’s first and second assignments of error are overruled.
III.
{¶42} In his third assignment of error, appellant summarily argues the trial
court should not have permitted appellee to present the testimony of two “experts”
Richland County, Case No. 12CA34 17
without providing those experts’ reports and qualifications prior to their testimony. We
disagree.
{¶43} We note the “experts” appellant complains of, employees of the
MedCentral lab, did not testify as experts within the meaning of Crim.R. 16(K).
Instead, they were merely fact witnesses who testified to their procedures and the
testing performed on appellant’s sample in response to arguments raised in what
appellee characterizes as a “shotgun motion to suppress.” Moreover, these witnesses
testified at a suppression hearing and not at trial.
{¶44} The trial court did not err in permitting the witnesses to testify and
appellant’s third assignment of error is without merit.
{¶45} Having overruled appellant’s three assignments of error, the judgment of
the Richland County Court of Common Pleas is affirmed.
By: Delaney, P.J.
Gwin, J. and
Wise, J. concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. JOHN W. WISE
PAD:kgb
[Cite as State v. Hollis, 2013-Ohio-2586.]
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
MATTHEW HOLLIS :
:
: Case No. 12CA34
Defendant-Appellant :
For the reasons stated in our accompanying Opinion on file, the judgment of the
Richland County Court of Common Pleas is affirmed. Costs assessed to Appellant.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. JOHN W. WISE