STATE OF OHIO v. JAMES FRANGELLA
Case No. 11 CA 43
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
April 25, 2012
2012-Ohio-1863
Hon. W. Scott Gwin, P. J.; Hon. Sheila G. Farmer, J.; Hon. John W. Wise, J.
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 2010 CR 526D; JUDGMENT: Affirmed
For Plaintiff-Appellee
JAMES J. MAYER, JR. PROSECUTING ATTORNEY DANIEL J. BENOIT ASSISTANT PROSECUTOR 38 South Park Street Mansfield, Ohio 44902
For Defendant-Appellant
PAUL L. WALLACE PAUL L. WALLACE CO., LPA 171 East Livingston Avenue Columbus, Ohio 43215
{¶1} Appellant James Frangella appeals his conviction, in the Court of Common Pleas, Richland County, for OMVI, aggravated vehicular assault, and other offenses. Appellee is the State of Ohio. The relevant facts leading to this appeal are as follows.
{¶2} On January 25, 2010, at about 8:30 PM, Appellant Frangella was driving his Nissan pickup truck eastbound on Route 330 in Richland County. The roads in the area at that time were snow-covered and slippery. As appellant’s truck rounded a slight curve near the intersection of Snodgrass Road, it went left of the center line and struck an oncoming Chevrolet Cavalier with four occupants: Troy Gilliland, Robert Rahm, Brian Hauck and Stanley Rupinski. These four men, as well as appellant, were injured in the collision. Thеy were thereafter transported by paramedics to MedCentral Health Center in Mansfield.
{¶3} Trooper James Baker of the Ohio State Highway Patrol arrived at the scene shortly after the collision took place. He began his investigation at the scene, noting among other things that the debris field from the vehicles and a gouge mark in the pavement were in the westbound lane of travel. Trooper Baker subsequently went to the hospital аnd interviewed the parties involved in the collision, including appellant. In talking with appellant about two hours after the crash, the trooper noticed an odor of alcoholic beverage, slurred speech, and glassy eyes. Trooper Baker also noticed that appellant seemed to be “holding his breath when he was talking.” Tr. at 191. The trooper then went to his cruiser and obtained the forms for requesting a BAC test. When he returned, appellant had vomited on the floor. The trooper proceeded to request the
{¶4} Those test results were suppressed by the trial court. The hospital laboratory records show blood test results, but the patient chart does not show that blood was taken. Appellant was released after several hours. Appellant appeared several weeks later at the Highway Patrol Office, where he was arrested. At that time, Trooper Baker read to him and asked him to sign the form regarding the refusal, with which he complied.
{¶5} In March 2010, appellant was indicted by the Richland County Grand Jury (case number 2010-CR-120D) on four felony cоunts of aggravated vehicular assault, two misdemeanor counts of OMVI, and one count of driving left of center. On March 25, 2010, appellant entered pleas of not guilty to all of these charges. On April 27, 2010, appellant, through counsel, filed a motion in limine and/or to suppress seeking to suppress the blood draw test results conducted by OSHP and MedCentral Mansfield and to suppress all statements made by appellant on the basis they were involuntary.
{¶6} On August 10, 2010, in case number 2010-CR-120D, the trial court issued an order suppressing the use of OSHP‘s blood test results. However, the blood test results from the hospital’s self-initiated draw were not suppressed.
{¶7} The predecessor case, case number 2010-CR-120D, was dismissed on August 12, 2010, and appellant was re-indicted under case number 2010-CR-526D as follows: eight counts of aggravated vehicular assault (
{¶8} On April 13, 2011, in response to a motion to reconsider filed by the State, the trial court issued an order affirming its earlier decision to exclude the OSHP-initiated blood draw on appellant.
{¶9} A jury trial commenced on April 14, 2011, following which appellant was found guilty of all cоunts in the indictment except count six (based on an alleged violation of
{¶10} A sentencing hearing was held on April 25, 2011, following which appellant was sentenced to a total of four years in prison.
{¶11} On May 3, 2011, appellant filed a notice of appeal. He herein raises the following seven Assignments of Error:
{¶12} “I. THE TRIAL COURT ERRED IN ADMITTING THE TESTIMONY OF DR. ROBERT FORNEY, THE STATE‘S FORENSIC TOXICOLOGY EXPERT.
{¶13} “II. THE TRIAL COURT ERRED IN ADMITTING THE TESTIMONY OF DR. STEVEN GREGORY ESCUE, THE DEFENDANT‘S TREATING PHYSICIAN AT THE HOSPITAL ON THE NIGHT OF THE ACCIDENT.
{¶14} “III. THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF THE REFUSAL BY DEFENDANT TO TAKE AN ALCOHOL TEST.
{¶16} “V. THE TRIAL COURT ERRED IN FAILING TO GRANT DEFENDANT‘S MOTION FOR ACQUITTAL PURSUANT TO RULE 29 OF THE OHIO RULES OF CRIMINAL PROCEDURE AT THE CLOSE OF THE STATE‘S CASE.
{¶17} “VI. THE APPELLANT WAS DEPRIVED OF A FAIR TRIAL AS A RESULT OF THE CUMULATIVE ERRORS WHICH OCCURRED AT TRIAL.
{¶18} “VII. THE COURT FAILED TO CONSIDER SENTENCING GUIDELINES IS (SIC) REQUIRED UNDER THE REVISED CODE IN SENTENCING DEFENDANT TO CONSECUTIVE TERMS.”
I.
{¶19} In his First Assignment of Error, appellant contends the trial court erred in admitting the testimony of the State’s forensic toxicology expert. We disagree.
{¶20} The admission or exclusion of relevant evidence rests in the sound discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d 173, 180, 510 N.E.2d 343. As a general rule, all relevant evidence is admissible.
{¶21} In Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177, the United States Supreme Court held that under the Confrontation
{¶22}
{¶23} In addition,
{¶24} “A witness may testify as an expert if all of the following apply:
{¶25} “(A) The witness’ testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons;
{¶26} (B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;
{¶28} “(1) The theory upon which the procedure, test, or experiment is based is objectively verifiable or is validly derived from widely acceptеd knowledge, facts, or principles;
{¶29} “(2) The design of the procedure, test, or experiment reliably implements the theory;
{¶30} “(3) The particular procedure, test, or experiment was conducted in a way that will yield an accurate result.”
{¶31} In the case sub judice, Dr. Robert Forney, the State’s expert toxicologist, testified and submitted a report (State’s Exhibit 50) concerning, inter alia, the tests results regarding the blood draw on appellant. Dr. Forney is the chief toxicologist at the Lucas County Coroner’s Office is an associate professor at the University of Toledo Medical Center. Tr. at 325. At trial, Dr. Forney testified that based on his review of the accident report, the medical records, and the lab records, appellant was “significantly impaired at the time of the crash.” Tr. at 357-358.
{¶32} Appellant essentially faults Dr. Forney’s testimony as simply based on a laboratory report and not being based оn a personal observation of the blood draw or the expert’s own tests on the sample. Appellant simultaneously emphasizes that the testifying lab supervisor, Julie Wilson, had no direct involvement with the blood sample reviewed by Dr. Forney, and that the emergency room nurse manager, Angela Anderson, offered no specific knowledge concerning the sample. Appellant directs us to
{¶33} We note that Syx, supra, did not involve a “health care provider” blood draw under
{¶34} Appellant‘s First Assignment of Error is therefоre overruled.
II.
{¶35} In his Second Assignment of Error, appellant contends the trial court erred in admitting the testimony of the MedCentral physician, Dr. Escue, who treated appellant on the night of the accident. We disagree.
{¶36}
{¶37} However,
{¶38} In the case sub judice, Dr. Steven Escue, the emergency room physician, testified over defense objection that appellant’s diagnosis included “alcohol intoxication,” as well as contusions, abrasions, and back strain. Tr. at 214, 221-222. The findings of appellant‘s medical blood draw had been provided to the doctor, in order to allow for appellant‘s treatment. Appellant first contends that Dr. Escue thus testified beyond the scope of the
{¶39} Appellant secondly contends that Dr. Escue was essentially used as an expert witness, and thus the defеnse should have been supplied with a written report of
{¶40} In the case sub judice, the State does not dispute that there was no formal written report as to Dr. Escue. However, the State responds that as appellant had the medical records that Dr. Escue relied upon during his testimony, there was no need for a written report. However, we need not dwell on this issue, as we are unpersuaded that Dr. Escue was actually testifying as an expert. “It is well established that treating physicians can be called at trial to testify as viewers of their patients’ physical condition and not as experts retained in anticipation of litigation.” Henry v. Richardson, 193 Ohio App.3d 375, 951 N.E.2d 1123, 2011-Ohio-2098, ¶ 33, citing Fischer v. Dairy Mart Convenience Stores, Inc. (1991), 77 Ohio App.3d 543, 602 N.E.2d 1204. Even if we assume arguendo that Dr. Escue had been functioning as an expert witness, we have recognized that
III.
{¶42} In his Third Assignment of Error, appellant contends the trial court erred in admitting evidence of his refusal to permit a BAC test at the hospital. We disagree.
{¶43}
{¶44} This Court has applied the Ohio Supreme Court’s determination that evidence regarding a refusal to submit to a breath or blood test is admissible at trial. See State v. Denney, Fairfield App.No. 03 CA 62, ¶ 24, citing Maumee v. Anistik, 69 Ohio St.3d 339, 1994-Ohio-157. We note the Anistik case, which specifically deаls with the proper jury instruction to be given where evidence is adduced that a defendant has refused to submit to a breath test, involved a driver who had been arrested for suspected DUI. Appellant herein proposes that Anistik, and the jury instruction created within that case, does not apply to his refusal at the hospital, as he was not under arrest at the time. However, we find the Ohio Supreme Court’s earlier ruling in City of Westerville v. Cunningham (1968), 15 Ohio St. 2d 121, 239 N.E.2d 40, which has not been overturned by Anistik, allows for the admission of such evidenсe without regard to the defendant’s arrest status at the time.
{¶45} Upon review, we hold the trial court did not abuse its discretion in allowing the BAC blood draw refusal into evidence, even though the trial court, in so doing, had reconsidered its earlier pre-trial ruling on that issue.
{¶46} Appellant‘s Third Assignment of Error is overruled.
IV.
{¶47} In his Fourth Assignment of Error, appellant contends the trial court erred in admitting evidence of certain cell phone records and calibration logs. We disagree.
{¶48}
{¶49} The United States Supreme Court has recognized that the Constitution is not violated every time the government fails or chooses not to disclose evidence that might prove helpful to the defense. See United States v. Bagley (1985), 473 U.S. 667, 675, 105 S.Ct. 3375, 87 L.Ed.2d 481. A trial court has discretion to determine what sanction is appropriate when the State fails to disclose discoverable material. State v. Wiles (1991), 59 Ohio St.3d 71, 78, 571 N.E.2d 97; State v. Parson (1983), 6 Ohio St.3d 442, 445, 453 N.E.2d 689.
{¶50} Appellant’s specific contention is based on cell phone records, utilized to show appellant was on his phone shortly before the time of the crash, which records
{¶51} Accordingly, appellant‘s Fourth Assignment of Error is overruled.
V.
{¶52} In his Fifth Assignment of Error, appellant contends the trial court erred in declining to grant his motion for acquittal under
{¶53} An appellate court reviews a denial of a
{¶54} Appellant focuses on his convictions for aggravated vehicular assault under
{¶56} ” ***
{¶57} “(2) In one of the following ways:
{¶58} ” ***
{¶59} “(b) Recklessly.”
{¶60} The definition of “recklessness” is located in
{¶61} “(C) A person acts recklessly when, with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, he perversely disregards a known risk that such circumstances are likely to exist.”
{¶62} Appellant herein emphasizes that the weather conditions on the day of the accident were snowy and slippery, and that the trooper’s testimony and report give no specific indication that appellant was speeding or driving rеcklessly. Appellant thus maintains that the State failed to prove that the collision was the proximate result of his OMVI violation or reckless driving. However, as previously referenced herein, the record contains numerous instances of evidentiary support for the allegation that appellant was intoxicated at the time of the collision, and the State also provided expert testimony as to the effects of alcohol on a driver’s motor skills. The jury also heard testimony from four of the other car’s occupants, Mr. Rahm, Mr. Hauck, Mr. Rupinski, and Mr. Gilliland
{¶63} Thus, upon review of the record and transcript in a light most favorable to the prosecution, we find that a reasonаble finder of fact could have found the elements of aggravated vehicular assault, based both on OMVI and reckless driving, beyond a reasonable doubt.
{¶64} Appellant‘s Fifth Assignment of Error is overruled.
VI.
{¶65} In his Sixth Assignment of Error, appellant contends he was deprived of a fair trial based on the existence of cumulative error. We disagree.
{¶66} The doctrine of cumulative error provides that a conviction will be reversed where the cumulative effect of evidentiary errors in a trial deprives a defendant of the constitutional right to a fair trial even though each of numerous instances of trial court error does not singularly constitute cause for reversal. State v. DeMarco (1987), 31 Ohio St.3d 191, 509 N.E.2d 1256, paragraph two of the syllabus.
{¶67} In support of his argument, appellant redirects us to several of the issues referenced earlier in this appeal, including late discovery regarding phone records and calibration logs, medical privilege issues, and the ruling on appellant’s test refusal. Notwithstаnding this Court‘s past reluctance to embrace cumulative error as grounds for reversal (see State v. Mascarella (July 6, 1995), Tuscarawas App.No. 93AP100075), we have reviewed the pertinent parts of the record in this matter, and we find reversible error has not been demonstrated on this basis.
VII.
{¶69} In his Seventh Assignment of Error, appellant contends the trial court erroneously failed to consider the purposes of felony sentencing under
{¶70} We note the Ohio Supreme Court‘s Foster decision [109 Ohio St.3d 1, 2006–Ohio–856] holds that judicial fact finding is not required before a court imposes non-minimum, maximum or consecutive prison terms. See, e.g., State v. Williams, Muskingum App. No. CT2009–0006, 2009–Ohio–5296, ¶ 19, citing State v. Hanning, Licking App.No.2007CA00004, 2007–Ohio–5547, ¶ 9. Subsequent to Foster, in a plurality opinion, the Ohio Supreme Court established a two-step procedure for reviewing a felony sentence. State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912, 896 N.E.2d 124. The first step is to “examine the sentencing court‘s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law.” Kalish at ¶ 4. If this first stеp is satisfied, the second step requires the trial court‘s decision be reviewed under an abuse-of-discretion standard. Id.
{¶71} In the case sub judice, the trial court stated in its written entry that it had considered the purposes of sentencing set forth in
{¶73} Appellant‘s Seventh Assignment of Error is overruled.
{¶74} For the reasons stated in the foregoing opinion, the judgment of the Court of Common Pleas, Richland County, Ohio, is hereby affirmed.
By: Wise, J.
Gwin, P. J., and
Farmer, J., concur.
JUDGES
JWW/d 0412
STATE OF OHIO v. JAMES FRANGELLA
Case No. 11 CA 43
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Richland County, Ohio, is affirmed.
Costs assessed to appellant.
JUDGES