STATE OF OHIO, Appellee, - vs - BRIAN D. CAST, Appellant.
CASE NO. CA2021-09-107
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
11/7/2022
2022-Ohio-3967
S. POWELL, J.
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. 2020-10-1384
Jacob D. Long, for appellant.
OPINION
S. POWELL, J.
{¶ 1} Appellant, Brian D. Cast, appeals his conviction in the Butler County Court of Common Pleas after he was found guilty of single counts of aggravated vehicular assault and vehicular assault following a jury trial and sentenced to serve a mandatory 36-month prison term. For the reasons outlined below, we affirm Cast‘s conviction.
{¶ 2} On February 10, 2021, the Butler County Grand Jury returned an indictment charging Cast with one count of third-degree felony aggravated vehicular assault in violation of
{¶ 3} On August 5, 2021, the trial court held a sentencing hearing. At sentencing, the trial court determined that the third-degree felony aggravated vehicular assault and fourth-degree felony vehicular assault offenses were allied offenses of similar import that would need to merge for purposes of sentencing. Upon the trial court merging the two offenses as allied offenses of similar import, the state elected to proceed with sentencing
{¶ 4} On September 1, 2021, Cast filed a timely notice of appeal. This court issued a scheduling order on September 14, 2021, ordering Cast to file his appellate brief within 20 days of the filing of the complete transcript of proceedings. A notice of the filing of the complete transcript of proceedings was filed with this court on September 24, 2021. Twenty days later, on October 14, 2021, Cast moved this court for an extension of time to file his appellate brief. This court granted Cast‘s motion and ordered Cast to file his brief on or before November 8, 2021. Cast moved this court for another extension of time to file his appellate brief on November 8, 2021. This court granted Cast‘s motion and ordered Cast to file his brief on or before November 29, 2021. Cast did not file an appellate brief as ordered by this court, thereby prompting this court to dismiss Cast‘s appeal. State v. Cast, 12th Dist. Butler CA2021-09-107 (Dec. 14, 2021) (Judgment Entry of Dismissal).
{¶ 5} On March 14, 2022, Cast filed an application to reopen his appeal pursuant to
{¶ 6} On May 4, 2022, this court granted Cast‘s application to reopen the appeal in accordance with
Standard of Review
{¶ 7} Prior to addressing Cast‘s assignments of error, we note the well-established principle that “relevant evidence is admissible and irrelevant evidence is inadmissible.” State v. Geddes, 12th Dist. Fayette No. CA2021-01-001, 2021-Ohio-4115, ¶ 13, citing
Assignment of Error No. 1:
{¶ 8} THE TRIAL COURT ERRED BY ADMITTING THE TOXICOLOGY REPORT BECAUSE THE STATE FAILED TO PRESENT EVIDENCE ABOUT THE IDENTITY OF THE LAB AND WHETHER THE BLOOD TEST WAS FORENSIC OR DIAGNOSTIC.
{¶ 9} In his first assignment of error, Cast argues the trial court erred by admitting a toxicology report into evidence that showed he had blood-alcohol level over twice the legal limit approximately one hour after Cast‘s accident with D.C. To support this claim, Cast argues the trial court erred by admitting the report into evidence because the state failed to lay a proper foundation for the report‘s admission under either
{¶ 10} Pursuant to
{¶ 11} Despite what Cast claims in his appellate brief, the record in this case clearly demonstrates that the toxicology report at issue was generated based upon non-forensic, diagnostic blood-alcohol test conducted by staff at the health care provider where he was taken for treatment following the crash, Fort Hamilton Hospital.3 The report, in fact, includes the phrase “DIAGNOSTIC RESULTS” directly above a notation indicating the report was generated as a result of “orders placed or performed” while Cast was at Fort Hamilton Hospital for treatment, thus demonstrating the test was not done pursuant to a request of a
{¶ 12} Under these circumstances, we find the state presented sufficient evidence to overcome the foundational requirements necessary for the trial court to admit the challenged toxicology report into evidence under
Assignment of Error No. 2:
{¶ 13} THE TRIAL COURT ERRED BY ADMITTING THE HOSPITAL RECORDS, INCLUDING THE TOXICOLOGY REPORT, WHERE NO RECORD CUSTODIAN TESTIFIED THE DOCUMENTS WERE AUTHENTIC AND ADMISSIBLE BUSINESS RECORDS, AND THE
{¶ 14} In his second assignment of error, Cast argues the trial court erred by admitting the medical records generated by Fort Hamilton Hospital when treating him for the injuries he sustained in the crash that indicated he was suffering from acute alcoholic intoxication after having consumed five or six beers prior to the crash with D.C. To support this claim, Cast argues the medical records were not admissible because they were not properly authenticated under
{¶ 16} Cast initially argues that his medical records were not properly authenticated under
{¶ 17} Cast also argues that his medical records were not properly authenticated under
{¶ 18} Pursuant to a plain reading of
{¶ 19} The term “verified” means “supported by an affidavit as to the truth of the matters set forth; sworn to.” State ex rel. Clink v. Smith, 16 Ohio St.2d 1, 2 (1968), citing Osborn v. Whittier, 103 Cal. App. 2d 609, 230 P.2d 132 (1951); and Agricultural Bond & Credit Corp. v. Courtenay Farmers Co-op. Assn., 64 N.D. 253, 251 N.W. 881 (1933). The term “verification” means a “‘formal declaration made in the presence of an authorized officer, such as a notary public, by which one swears to the truth of the statements in the document.‘” Chari v. Vore, 91 Ohio St.3d 323, 327 (2001), quoting Black‘s Law Dictionary 1556 (7th Ed.1999); Jordan v. Johnson, 12th Dist. Madison No. CA2013-03-007, 2013-Ohio-3679, ¶ 16. “The term ‘certify’ means ‘[t]o authenticate or verify in writing’ or ‘[t]o attest as being true or as meeting certain criteria.‘” State ex rel. Orange Twp. Bd. of Trustees v. Delaware Cty. Bd. of Elections, 135 Ohio St.3d 162, 2013-Ohio-36, ¶ 37, quoting Black‘s Law Dictionary 258 (9th Ed.2009). The term “certify” also means “to confirm or attest often by a document under hand or seal as being true, meeting a standard, or being as represented.” State ex rel. Stoll v. Logan Cty. Bd. of Elections, 117 Ohio St.3d 76, 2008-Ohio-333, ¶ 43, quoting Webster‘s Third New International Dictionary 367 (1986). “A certification means that the statement certified is claimed to be true as of the time it is made.” Sinmast of Ohio, Inc. v. Central Trust Co., N.A., 1st Dist. Hamilton No. C-790433, 1980 Ohio App. LEXIS 10033, *11 (Dec. 24, 1980). The term “certification” has also been defined to mean “[t]he act of attesting,” “[t]he state of having been attested,” and “[a]n attested statement.” Black‘s Law Dictionary 241 (8th Ed.2004).
{¶ 20} Given the frequent use of the word “attest” or “attesting” when defining the terms “certify” and “certification,” the definition “attest” is also relevant. The same is true as it relates to the definition of “attested copy.” The term “attest” means “‘to certify to the verity of a copy of a public document formally by signature‘” and an “attested copy” of a document is “‘one which has been examined and compared with the original, with a certificate or memorandum of its correctness, signed by the persons who have examined it.‘” State ex rel. Steele v. Morrissey, 103 Ohio St.3d 355, 2004-Ohio-4960, ¶ 22, quoting Black‘s Law Dictionary 127-128 (6th Ed.1990). “These definitions are consistent with common usage.”
{¶ 21} When considering the various definitions set forth above, it should be no surprise that the Ohio Supreme Court has found the phrase “verified certification” as used in
{¶ 22} In this case, the certification page accompanying Cast‘s medical records was not “verified” given that the records’ custodian who endorsed the certification and attested to the records’ authenticity was not sworn to. The records’ custodian‘s endorsement contained on the certification page was, in fact, not even notarized. Under these circumstances, we find it was error for the trial court to admit Cast‘s medical records into evidence because the records were not properly authenticated under
{¶ 23} But, as previously noted, although we believe it was error for the trial court to admit Cast‘s medical records into evidence under
Assignment of Error No. 3:
{¶ 24} THE TRIAL COURT ERRED BY ADMITTING THE ACM DATA BECAUSE THE DEPUTY THAT OBTAINED IT WAS UNAVAILABLE AND THE TESTIFYING DEPUTY LACKED KNOWLEDGE ABOUT THE PROGRAM USED TO DOWNLOAD THE ACM DATA FROM VEHICLES, IF THE DOWNLOADED ACM DATA WAS ACCURATE, AND WHETHER THE ACM DATA WAS PROPERLY STORED TO PRESERVE ITS ACCURACY.
{¶ 25} In his third assignment of error, Cast argues the trial court erred by admitting into evidence the event recorder data downloaded from both his and D.C.‘s airbag control modules (“ACM“) that showed how fast their respective vehicles were traveling in half second intervals in each of the five seconds prior to when their vehicles collided (herein
{¶ 26} Pursuant to
{¶ 27} After a thorough review of the record, we find no error in the trial court‘s decision to admit the ACM data into evidence even though it was Sergeant Poff, not Deputy Ellcessor, who testified about the data‘s authenticity at trial. Sergeant Poff was a supervisor in the Butler County Sheriff‘s Office‘s traffic investigation unit who oversaw Deputy Ellcessor activities. This would include, for instance, overseeing Deputy Ellcessor‘s downloading the ACM data at issue in this case. The record also indicates that, based on Sergeant Poff‘s testimony, once the ACM data had been downloaded by Deputy Ellcessor that the data could not, and was not, manipulated or changed in any way. The record further indicates that the ACM data, which was kept by the Butler County Sheriff‘s Office in its regularly conducted activity as a law enforcement agency, was verified by Sergeant Poff to be the same data that the sheriff‘s office provided to the state. Therefore, while Sergeant Poff was not himself a records custodian with the Butler County Sheriff‘s Office, Sergeant Poff was certainly a qualified witness who could testify regarding the authenticity of the ACM data being presented by the state at trial. The extent to which Sergeant Poff was purportedly unfamiliar with the program used to download the ACM data, as well as Sergeant Poff‘s supposed lack of knowledge regarding whether the program‘s requirements in downloading and storing the ACM data were followed, goes to the weight of the evidence rather than to its admissibility. Cast‘s first argument lacks merit.
{¶ 29} Cast also argues the trial court erred by admitting the ACM data into evidence because the data constitutes inadmissible hearsay under
[T]he CAD device is not a person. The results were not the consequence of a search of database of information created by a person, the accuracy of which would depend upon the accuracy and completeness of the database. * * * Rather, the result was a scientific analysis conducted by a computer which performed a series of complex mathematical calculations based upon detailed information it drew from an x-ray. Therefore, we do not find the computer analysis to be hearsay.
(Emphasis sic.)
{¶ 30} The Eighth District also cited to another of its prior decisions, wherein it found testimony relating to information a witness received from the Google Maps application on his cell phone was not hearsay. Dickerson v. Miller‘s TLC, Inc., 8th Dist. Cuyahoga No. 96995, 2012-Ohio-2493, ¶ 12-13. In that case, the Eighth District stated:
By its very nature, calculation of distance, or of weight, volume, speed, and the like, is impossible without the use of a tool that has been calibrated to show a relevant unit of measure, e.g. a ruler, a tape measure, a wheel, a scale, or, at a more sophisticated level, a radar gun, a breathalyzer, or a blood test. When employed to measure something, none of those tools makes a “statement.” * * * Instead, the only “statement” is the testimony of a witness about observations of distance, speed, weight, percentage, or volume he made as a result of using the tool.
(Internal citation omitted.)
{¶ 31} To further support their decision, the Eighth District then cited to several other cases from around the country setting forth similar holdings. See State v. Kandutsch, 336 Wis.2d 478, 507, 2011 WI 78, ¶ 66 (2011) (“a computer-generated report is not hearsay
{¶ 32} We agree with the Eighth District‘s decision in Thompson and adopt its rationale as if it were our own. Cast‘s second argument is therefore also without merit. In so holding, we note a recent decision issued by the Court of Appeals of Texas, Fifth District, which also found data taken from a vehicle‘s ACM does not constitute inadmissible hearsay. Nguyen v. State, Tex.App. No. 05-20-00241-CR, 2022 Tex. App. LEXIS 6533 (Aug. 29, 2022). Specifically, as that Texas court found:
We conclude the crash data report constitutes computer generated data containing objectively recorded facts. The black box of appellant‘s vehicle is a computer and, by definition, cannot be a declarant for purposes of the rule against hearsay. * * * Further, to the extent appellant argues that the report constitutes hearsay because it records inputs from the driver, we conclude that such inputs are not “statements” within the
meaning of the hearsay rule. The types of inputs the black box records, such whether the brake or accelerator pedals were depressed or whether the steering wheel was being turned, do not constitute the driver‘s “oral or written verbal expression, or nonverbal conduct that [the driver] intended as a substitute for verbal expression.” Tex. R. Evid. 801(a).
(Internal citation omitted.)
Assignment of Error No. 4:
{¶ 33} IT WAS DEFECTIVE PERFORMANCE TO FAIL TO FILE A TIMELY BRIEF AND THERE WAS PREJUDICE BECAUSE THE DIRECT APPEAL WAS DEFAULTED, AND THE MERITORIOUS ASSIGNMENTS OF ERROR WOULD HAVE BEEN SUSTAINED FOR A NEW TRIAL.
{¶ 34} In his fourth assignment of error, Cast argues he was provided with ineffective assistance of appellate counsel when his original appellate counsel failed to file an appellate brief in accordance with this court‘s initial scheduling order, thus prompting this court to dismiss the appeal. See State v. Cast, 12th Dist. Butler CA2021-09-107 (Dec. 14, 2021) (Judgment Entry of Dismissal). However, given this court‘s decision granting Cast‘s application to reopen the appeal pursuant to
{¶ 35} Judgment affirmed.
M. POWELL, P.J., and HENDRICKSON, J., concur.