STATE OF OHIO, Appellee, - vs - TOMMY EUGENE ABNER, Appellant.
CASE NO. CA2021-05-048
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO WARREN COUNTY
12/27/2021
[Cite as State v. Abner, 2021-Ohio-4549.]
S. POWELL, J.
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 20CR37193
William F. Oswall, Jr., for appellant.
O P I N I O N
S. POWELL, J.
{¶ 1} Appellant, Tommy Eugene Abner, appeals his conviction in the Warren County Court of Common Pleas after he entered a no contest plea to two counts of aggravated vehicular homicide and three counts of operating a vehicle while under the influence of drugs (“OVI“). For the reasons outlined below, we affirm Abner‘s conviction.
{¶ 2} On August 31, 2020, the Warren County Grand Jury returned an indictment charging Abner with one count of aggravated vehicular homicide in violation of
{¶ 3} The charges arose as a result of a tragic automobile accident on State Route 73 in Clearcreek Township, Warren County, Ohio at approximately 7:45 p.m. on the evening of Jun 18, 2020 that resulted in the death of Jeri Beth Murray. There is no dispute that at the time of the accident Abner was operating his vehicle with a suspended driver‘s license. There is also no dispute that test results of Abner‘s blood and urine specimens taken at the hospital shortly after the accident occurred revealed that Abner was under the influence of methamphetamine and amphetamines at the time of the accident. A subsequent examination of Abner‘s blood and urine specimens conducted at the state crime lab confirmed these test results.
{¶ 4} On December 17, 2020, Abner filed a general, boilerplate motion seeking to suppress the test results of his blood and urine specimens taken at the hospital shortly after the accident occurred. The trial court held a suppression hearing on February 22, 2021. During this hearing, the trial court heard testimony from several witnesses. This includes testimony from the registered nurse who collected Abner‘s first blood specimen and the clinical lab assistant who collected Abner‘s second blood specimen, both of which occurred at the hospital shortly after the accident occurred.
{¶ 5} Following this hearing, on April 5, 2021, the trial court issued a decision
With regard to the urine test, [the registered nurse who collected Abner‘s urine sample] testified that he collected the urine directly from a sterile catheter into a clean glass screw top container, which was sealed and delivered to the lab in accordance with laboratory protocol.
The trial court then noted its finding that “this evidence demonstrates substantial compliance with the [Ohio Administrative Code] regulations.” The trial court also found Abner had not “produced sufficient rebutting evidence to demonstrate that he has been prejudiced in any way by the manner of urine collection in this case.”
{¶ 6} The trial court then stated regarding the test of Abner‘s blood specimen:
With regard to the blood test, both [the registered nurse who collected Abner‘s first blood sample and the clinical lab assistant who collected Abner‘s second blood sample] testified that the blood was collected with sterile needles into a self-sealing tube and labeled appropriately. The solution used to clean the skin was not alcohol-based. The tubes contained anticoagulants. Each sample was transported to the lab and tested within an hour and then refrigerated. From there, [a sergeant with the Ohio State Highway Patrol] testified that she transported the blood and urine to the state crime lab.
Therefore, just like it did with the test of Abner‘s urine specimen, the trial court found “this evidence also demonstrates substantial compliance with the [Ohio Administrative Code] regulations.” This was in addition to the trial court finding Abner had failed to produce “sufficient rebutting evidence to demonstrate that he has been prejudiced in any way by the manner of blood collection in this case.”
{¶ 7} On April 15, 2021, Abner entered a no contest plea to the five charged offenses set forth above, i.e., two counts of aggravated vehicular homicide and three counts of OVI. Finding allied offenses of similar import, the trial court merged together the two aggravated vehicular homicide offenses and merged together the three OVI offenses for
{¶ 8} Abner now appeals his conviction, raising two assignments of error for review. For ease of discussion, Abner‘s two assignments of error will be addressed out of order.
{¶ 9} Assignment of Error No. 2:
{¶ 10} THE TRIAL COURT ERRED WHEN IT DENIED ABNER‘S MOTION TO SUPPRESS.
{¶ 11} In his second assignment of error, Abner argues the trial court erred by denying his motion to suppress the test results of his blood and urine specimens taken at the hospital shortly after the accident occurred. We disagree.
{¶ 12} “Appellate review of a ruling on a motion to suppress presents a mixed question of law and fact.” State v. Turner, 163 Ohio St.3d 421, 2020-Ohio-6773, ¶ 14, citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. When considering a motion to suppress, the trial court, as the trier of fact, is in the best position to weigh the evidence to resolve factual questions and evaluate witness credibility. State v. Vaughn, 12th Dist. Fayette No. CA2014-05-012, 2015-Ohio-828, ¶ 8. “Therefore, when reviewing the denial of a motion to suppress, this court is bound to accept the trial court‘s findings of fact if they are supported by competent, credible evidence.” State v. Leder, 12th Dist. Clermont No. CA2018-10-072, 2019-Ohio-2866, ¶ 17, citing State v. Durham, 12th Dist. Warren No. CA2013-03-023, 2013-Ohio-4764, ¶ 14. “An appellate court, however, independently
{¶ 13} Pursuant to Crim.R. 47, in filing a motion to suppress in a criminal proceeding, the defendant “shall state with particularity the grounds upon which it is made and shall set forth the relief or order sought.” “This requires [the] defendant to ‘state the motion‘s legal and factual bases with sufficient particularity to place the prosecutor and the court on notice of the issues to be decided.‘” State v. Miller, 12th Dist. Warren No. CA2020-01-003, 2021-Ohio-277, ¶ 24, quoting State v. Shindler, 70 Ohio St.3d 54 (1994), syllabus. After the defendant meets this burden, the burden then shifts to the state to show substantial compliance with the applicable standards. State v. Plunkett, 12th Dist. Warren No. CA2007-01-012, 2008-Ohio-1014, ¶ 11, citing Xenia v. Wallace, 37 Ohio St.3d 216, 220 (1988). The extent of the state‘s burden of proof establishing substantial compliance, however, “only extends to the level with which the defendant takes issue with the legality of the test.” State v. Nicholson, 12th Dist. Warren No. CA2003-10-106, 2004-Ohio-6666, ¶ 10, citing State v. Johnson, 137 Ohio App.3d 847, 852 (12th Dist.2000) (“the evidence produced at the hearing addressed the issue * * * to the degree of specificity required by the motion to suppress“). “Therefore, when a defendant‘s motion only raises issues in general terms,” such as the case here, “the state is only required to demonstrate compliance in general terms.” Id.
{¶ 14} This means “[s]pecific evidence is not required unless the defendant raises a specific issue in his [or her] motion [to suppress].” Id. For example, “[w]hen a defendant
Collection and Handling of Blood and Urine Specimens
{¶ 15} “The Director of Health promulgated certain regulations in
(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, or according to the laboratory protocol as written in the laboratory procedure manual based on the type of specimen being tested.
(D) The collection of a urine specimen must be witnessed to assure that the sample can be authenticated. Urine shall be
deposited into a clean glass or plastic screw top container which shall be capped, or collected according to the laboratory protocol as written in the laboratory procedure manual. * * *
(F) While not in transit or under examination, all blood and urine specimens shall be refrigerated.
Ohio Adm.Code 3701-53-05(B)
{¶ 16} Abner initially argues the trial court erred by denying his motion to suppress because the record suggests the “possible use of alcohol as an antiseptic” in the collection of his blood and urine specimens in violation of
{¶ 17} The record also reveals that Chlorhexidine would not affect the results of a blood specimen, like Abner‘s blood specimen at issue here, as it relates to the presence or absence of controlled substances like methamphetamine or amphetamines. This is to say nothing of the fact that even assuming alcohol was used on Abner‘s skin, which the record indicates there was not, the results of Abner‘s blood test did not detect the presence of alcohol. Therefore, given the above, we find the state met its slight burden requiring it to establish substantial compliance with the requirements set forth in
Ohio Adm.Code 3701-53-05(D)
{¶ 18} Abner next argues the trial court erred by denying his motion to suppress because the record is unclear whether “the blood and urine draws were witnessed by anyone other than the individuals who did the draws” in violation of
Ohio Adm.Code 3701-53-05(F)
{¶ 19} Abner additionally argues the trial court erred by denying his motion to suppress because “it is not clear that the samples were properly refrigerated until after the testing has already occurred” in violation of
“Permit” to Conduct Testing on Blood and Urine Specimens
{¶ 20} Abner lastly argues the trial court erred by denying his motion to suppress because the state failed to prove the hospital where his blood and urine specimens were collected and originally examined had the “proper permit” to conduct “testing for cases involving impaired drivers.” Abner claims this constitutes a violation of
Admissibility of Abner‘s Blood and Urine Test Results Under R.C. 4511.19(D)(1)(a)
{¶ 21} That said, even assuming Abner could establish a violation of
{¶ 22} This court does not stand alone in reaching such a decision. See, e.g., State v. Williams, 1st Dist. Hamilton No. C-180574, 2020-Ohio-1367, ¶ 29 (“[u]nder the plain language of
{¶ 23} Assignment of Error No. 1:
{¶ 24} ABNER WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL COUNSEL FAILED TO OBJECT TO THE IMPOSITION OF AN INDETERMINATE SENTENCE UNDER
{¶ 25} In his first assignment of error, Abner argues his trial counsel provided ineffective assistance by not challenging the constitutionality of the Reagan Tokes Law, Ohio‘s indefinite sentencing structure as set forth in
{¶ 26} Judgment affirmed.
PIPER, P.J., and HENDRICKSON, J., concur.