STATE OF OHIO, PLAINTIFF-APPELLEE, v. KIMBERLY KING, DEFENDANT-APPELLANT.
CASE NO. 16-11-07
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT WYANDOT COUNTY
March 26, 2012
[Cite as State v. King, 2012-Ohio-1281.]
Appeal from Wyandot County Common Pleas Court Trial Court No. 10-CR-0028
Judgment Affirmed
APPEARANCES:
Nicholas Siniff for Appellant
Jonathan K. Miller for Appellee
{1} Defendant-appellant, Kimberly S. King (“King“), appeals the July 15, 2011 judgment of the Wyandot County Court of Common Pleas journalizing her conviction by a jury for one count of felony operating a vehicle while under the influence of alcohol and/or drug of abuse, in violation of
{2} On May 19, 2010, sometime after midnight, the Wyandot County Sheriff‘s Office received a phone call from a witness named, Kelly Wickham, to report that a single car accident had occurred on County Road 96. Wickham recalled that when he first arrived at the scene, the vehicle was flipped-over on its hood with the headlights still illuminated. Wickham approached the vehicle to see if anyone was inside and saw one person moving around between the driver‘s and passenger‘s seats. Shortly, thereafter, the occupant of the vehicle emerged from the passenger‘s side of the vehicle.
{4} Other first responders from the local fire department arrived on the scene while Officer Fawcett continued to investigate the accident. At this time, King informed one of the first responders that someone else was in the vehicle. Based on her inconsistent statements, Officer Fawcett again questioned King about the number of occupants in the vehicle. King subsequently fainted and momentarily lost consciousness without responding to Officer Fawcett. At this time, Deputy McKinnon, the law enforcement officer in charge of the investigation, arrived on the scene. Officer Fawcett relayed his observations indicating that King was under the influence and informed Deputy McKinnon of King‘s inconsistent statements regarding the number of occupants in the vehicle. Deputy McKinnon did not have an opportunity to speak to King at the accident
{5} After fainting, King was transported to a local hospital. While at the hospital, King was secured to a backboard and her neck wаs placed in a “c-collar.”
{6} Deputy McKinnon arrived at the hospital shortly after King. Upon seeing King, he observed her behaving in a belligerent manner toward the hospital staff, yelling that she wanted to go home and refusing treatment. After King had been stabilized, Deputy McKinnon approached King and informed her that he was investigating the accident. Deputy McKinnon recalled that at first King was belligerent and rude to him and refused to cooperate with his investigation. However, King then initiated conversation, asking Deputy McKinnon what had happened with the accident. King then admitted that she had been drinking earlier that night and informed Deputy McKinnon that she had met a man at a bar. King claimed this man was driving the vehicle before the accident. However, King refused to provide any further information to Deputy McKinnon about this man or the events preceding the accident. While speaking to King, Deputy McKinnon noticed a strong odor of alcoholic beverages emitting from King.
{7} Deputy McKinnon subsequently read King the BMV 2255 form and advised her that she was under arrest for operating a vehicle while under the
{8} Later the same day, King left a message for Deputy McKinnon informing him she would be at home. Deputy McKinnon drove to King‘s home and spoke with her there. King invited Deputy McKinnon inside her hоme and
{9} King could also not clearly remember if she was with a man before the accident. King was able to recall being in the passenger‘s seat after the accident. Deputy McKinnon also asked King about her previous convictions for OVI. King could recall some of the details of her prior OVI convictions, specifically whether or not she was represented by an attorney at the time. After their conversation, Deputy McKinnon left King‘s home and did not take her into custody.
{10} On June 9, 2010, King was indicted on the following two counts. Count One alleged that King “did operate a motor vehicle while under the influence of alcohol, a drug of abuse, or a combination of them, and within 20 years of this offense, said offender had previously been convicted of, or pleaded guilty to, five or more violations of [R.C.] 4511.19(A) or (B), Operating a Vehicle
{11} Count Two alleged that King “did operate a motor vehicle while having a concentration of two-hundred four-thousandths of one percent or more by weight per unit volume of alcohol in the person‘s blood serum or plasma; and within 20 years of this offense, said offender had previously been convicted of, or pleaded guilty to, five or more violations of [R.C.] 4511.19(A) or (B), Operating a Vehicle While Under the Influence of Alcohol and/or Drug of Abuse, or other equivalent offenses,” in violation of
{12} On June 16, 2010, King was arraigned and pled not guilty to thе charges. On June 28, 2010, King filed a demand for discovery. The trial court released King on her own recognizance, but imposed a curfew on her from 6:00 p.m. to 6:00 a.m. “with the exception of AA meetings, gainful employment and [Intensive Outpatient Treatment] meetings through Firelands.” (JE, June 21, 2010 at 2). On July 2, 2010, the prosecution complied with King‘s request for discovery and filed a reciprocal demand for discovery.
{14} The hearing on King‘s motion to dismiss/suppress was scheduled to be heard on August 3, 2010.
{15} On July 26, 2010, the prosecution filed a motion for continuance, requesting the trial court to continue the hearing on King‘s motion to dismiss/suppress on the grounds that оne of its witnesses was unavailable for the hearing and that it needed more time to subpoena and prepare its four witnesses for the hearing.
{16} On August 4, 2010, the trial court granted the prosecution‘s motion for continuance and rescheduled the hearing on King‘s motion to dismiss/suppress for September 30, 2010.
{17} On August 31, 2010, King filed a motion for an order modifying her bond conditions, requesting the trial court to extend her curfew from 6:00 p.m. to
{18} On September 30, 2010, the trial court held a hearing on King‘s motion to dismiss/suppress. At the hearing, the prosecution asked that Count Two of the indictment be dismissed due to a flawed procedure at the laboratory which contaminated King‘s blood sample. At this time, King elaborated on a specific ground to support her motion to suppress. King argued that she was in “custody” at the time she made her statements to Deputy McKinnon in the hospital and that Deputy McKinnon failed to advise her of her Miranda rights prior to her making any statements. Therefore, King asserted that her statements to Deputy McKinnon at the hоspital must be suppressed because they were obtained in violation of her Fifth Amendment rights.
{19} King also argued that the prosecution should not be permitted to use her 1995 OVI conviction as an enhancement to raise the degree of her current offense from a misdemeanor to a felony. King argued that her 1995 OVI conviction was constitutionally infirm because it was the result of an uncounseled plea, which was obtained without a valid waiver of her right to counsel. Accordingly, King maintained that Count One of the indictment should be dismissed.
{21} On January 13, 2011, the trial court issued a twelve-page opinion overruling King‘s motion to dismiss/suppress. Prior to outlining its reasons for overruling King‘s motion, the trial court dismissed Count Two of the indictment based on the grounds asserted by the prosecution that King‘s blood sample was contaminated at the laboratory. The trial court then addressed the remaining issues raised in King‘s motion.
{22} In a thorough analysis of the totality of the circumstances, the trial court determined King was not in custody at the accident sсene, at the hospital or at her home when she made statements to Officer Fawcett and Deputy McKinnon. The trial court also determined that King failed to meet her burden of proof to demonstrate by a preponderance of the evidence that her 1995 OVI conviction was constitutionally infirm. Therefore, the trial court determined that King‘s 1995 OVI conviction could be used by the prosecution for enhancement purposes in the current offense.
{23} On February 3, 2011, 216 days after the request was filed, King filed her response to the prosecution‘s reciprocal discovery demand.
{24} On April 18, 2011, King filed a second motion for an order modifying her bond condition, requesting permission to modify her curfew. On
{25} On April 21, 2011, the trial court granted King‘s motion for an order modifying her bond condition. On April, 22, 2011, the trial court overruled King‘s motion to strike the prosecution‘s response to her Notice.
{26} On April 26, 2011, a two-day jury trial commenced. Prior to the empaneling of the jury, King filed a motion to dismiss pursuant to
{27} The case proceeded to trial. Several witnesses testified on behalf of the prosecution. King presented no evidence in her defense. On April 27, 2011, the jury returned its verdict, finding King guilty of felony operating a vehicle while under the influence of alcohol and/or drug of abuse, in violation of
{28} On July 15, 2011, the trial court sentenced King to serve an aggregate prison term of twenty-six months, with sixty days of that sentence being a mandatory prison term.
{29} King subsequently appealed, asserting the following assignments of error.
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT ERRED IN OVERRULING APPELLANT‘S MOTION TO DISMISS BECAUSE APPELLANT‘S 1995 OVI CONVICTION WAS ENTERED WITHOUT THE APPROPRIATE EXPLANATION AND WAIVER OF HER RIGHT TO COUNSEL THEREBY VIOLATING APPELLANT‘S SIXTH AMENDMENT RIGHT TO COUNSEL AND A RIGHT TO A FAIR TRIAL AS GUARANTEED BY THE FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO STATE CONSTITUTION.
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT VIOLATED APPELLANT‘S RIGHT TO A SPEEDY TRIAL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION, AND
THE TRIAL COURT ERRED BY OVERRULING APPELLANT‘S MOTION TO SUPPRESS HER STATEMENTS MADE WHILE SHE WAS IN POLICE CUSTODY THEREBY VIOLATING HER RIGHTS AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE CONSTITUTION OF THE STATE OF OHIO.
ASSIGNMENT OF ERROR NO. IV
APPELLANT‘S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION WAS VIOLATED WHEN TRIAL COUNSEL SUGGESTED THAT APPELLANT‘S ENTIRE DRIVING RECORD, WHICH LISTED A LICENSE SUSPENSION FOR A FELONY DRUG OFFENSE BE ADMITTED INTO EVIDENCE.
ASSIGNMENT OF ERROR NO. V
THE TRIAL COURT VIOLATED APPELLANT‘S RIGHT TO DUE PROCESS AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION BY ENTERING VERDICTS OF GUILTY, AS THE JURY VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
Second Assignment of Error
{30} In her second assignment error, King asserts that the trial court erred when it overruled her motion to dismiss for a violation of her right to a speedy
{31} The Sixth Amendment of the United States Constitution as applied to the States through the Fourteenth Amendment, as well as Article I, Section 10 of the Ohio Constitution dually afford a defendant the right to a speedy trial. In Ohio, the right to a speedy trial is also statutorily defined.
{32} If a defendant who is charged with a felony is not brought to trial within the required time period, the charge against him must be dismissed and the prosecution is barred from pursuing “any further criminal proceedings against [the defendant] based on the same conduct.”
[t]he time within which an accused must be brought to trial, or, in the case of felony, to preliminary hearing and trial, may be extended only by the following:
* * *
(D) Any period of delay occasioned by the neglect or improper act of the accused;
(E) Any period of delay necessitated by reason of a plea in bar or abatement, motion, proceeding, or action made or instituted by the accused;
* * *
(H) The period of any continuance granted on the accused‘s own motion, and the period of any reasonable continuance granted other than upon the accused‘s own motion * * *.
{35} Our review of the record reveals that several tolling events occurred, totaling in excess of 72 days. The largest amount of time tolled during the proceedings was the 178 days from the filing of King‘s motion to dismiss/suppress on July 19, 2010 to the trial court‘s ruling on the motion on January 13, 2011. See
{36} In making this argument, King directs this Court‘s attention to our prior decision in State v. Arrizola, 79 Ohio App.3d 72, 75 (3d Dist. 1992). In Arrizola, we determined that a court must review the complexity of the facts and the legal issues involved as well as the time constraints on the trial judge‘s schedule to assess the reasonableness of the extension of time for a trial court to rule on a defendant‘s motion to suppress. Id. at 76. In this case, the record does not indicate that the facts and legal issues raised by King in her motion to
{37} However, it is clear that the trial court was entitled to some reasonable amount of time to rule on King‘s motion to dismiss/suppress. For example, it would appear to us that 72 days, which constitutes the overage in this case, is not an unreasonable amount of time for the trial court to consider the facts and legal issues presented under these circumstances and make its ruling. By way of compаrison, we note that the Ohio Rules of Superintendence 40(A)(3) establishes a guideline for trial courts to rule on all motions within 120 days of the filing date. The 72 days here is well within those guidelines.
{38} In addition, the record demonstrates that it took King 216 days to file a response to the prosecution‘s request for reciprocal discovery. According to the decision of the Supreme Court of Ohio in State v. Palmer, a defendant‘s failure to respond within a reasonable time to a prosecution‘s request for reciprocal discovery constitutes neglect that tolls the running of speedy-trial time pursuant to
{39} Nevertheless, it would seem that not all of this time should be charged against King because much of this period coincided with the period of delay waiting for the trial court to rule on King‘s motion to dismiss/suppress. However, even assuming arguendo thаt the entire period of 216 days should not be charged against King because it overlapped the 178 days the trial court took to rule on her motion to dismiss/suppress, at least 37 of the 216 days are solely chargeable to King for the delay caused by her neglect in failing to file a response to the prosecution‘s request for reciprocal discovery within a reasonable time.
{40} Finally, we also note that there are other tolling events present in the record which are not disputed by King. Eighteen days were tolled by King filing additional motions, other than the motion to dismiss/suppress, pursuant to
First Assignment of Error
{42} In her first assignment of error, King claims that the trial court erred in overruling her motion to dismiss. Specifically, King argues that her 1995 OVI conviction was constitutionally infirm because it was obtained through an uncounseled plea without a valid waiver of her right to counsel. Thus, King maintains that her 1995 OVI conviction cannot now be used by the prosecution to enhance the degree of her offense from a misdemeanor to a felony.
{43} Count One of the indictment in this case specified that King,
did operate a motor vehicle while under the influence of alcohol, a drug of abuse, or a combination of them, and within 20 years of this offense, said offender had previously been convicted of, or pleaded guilty to, five or more violations of [R.C.] 4511.19(A) or (B), Operating a Vehicle While Under the Influence of Alcohol and/or Drug of Abuse, or other equivalent offenses, to wit:
Upper Sandusky Municipal Court Case No. 1995-TRC-5434, 09/18/1995; and
Franklin County Municipal Court Case No. 6906-TFC-144783, 01/08/1997; and
Upper Sandusky Municipal Court Case No. 2001-TRC-7133A, 01/07/2002; and
Upper Sandusky Municipal Court Case No. 2003-TRC-0535A, 04/30/2003; and
Findlay Municipal Court Case No. 2008-TRC-04675A, 10/01/08,
in violation of [R.C.] 4511.19(A)(1)(a), being a felony of the fourth degree, contrary to the form and the statute in such case made and provided against the peace and dignity of the State of Ohio.
(Indictment, Jun. 9, 2010).
{44} Section 4511.19(G)(1)(d) of the Revised Code states, in pertinent part, that “an offender who, within twenty years of the offense, previously has been convicted of or pleaded guilty to five or more violations of that nature is guilty of a felony of the fourth degree.” In order for the prosecution to convict King of the elevated offense of felony OVI, it had to prove as an essential element of the offense that she had been previously convicted of or pleaded guilty to five or more OVI violations within 20 years of her current offense. See State v. Allen, 29 Ohio St.3d 53, 54 (1987) (stating that when existence of a prior conviction does not simply enhance the penalty but transforms the crime itself by increasing its degree, the prior conviction is an essential element of the crime and must be proved by the state). Thus, as essential elements of the crime, King‘s five prior
OVI convictions must be proved beyond a reasonable doubt. State v. Brooke, 113 Ohio St.3d 119, 2007-Ohio-1533, ¶ 8.
{¶45}
Whenever in any case it is necessary to prove a prior conviction, a certified copy of the entry of judgment in such prior conviction together with evidence sufficient to identify the defendant named in the entry as the offender in the case at bar, is sufficient to prove such prior conviction.
{¶46} At trial, the prosecution complied with the directives of
{¶47} The Supreme Court of Ohio in State v. Thompson, 121 Ohio St.3d 250, 252, 2009-Ohio-314, ¶ 6, summarized the burden of proof a defendant must satisfy to demonstrate his or her prior conviction used to enhance an offense was constitutionally infirm.
(Emphasis added).
{¶48} In addition,
{¶49} King claims that she satisfied her burden by making a prima facie showing to the trial court that her 1995 OVI conviction was unconstitutional. As discussed in Thompson, “it is beyond dispute that a person has a constitutional right to represent him- or herself; therefore it is not possible tо establish a constitutional infirmity merely by showing that a person did not have counsel.” Thompson at 252. Accordingly, to meet her burden, King would be required to show both that she was unrepresented by an attorney and that she did not make a valid waiver of her right to counsel.
{¶50} In determining whether counsel was “properly waived” in a prior case, there is a distinction made between “serious offenses” and “petty offenses.”
{¶51} The Judgment Entry journalizing the 1995 OVI conviction states that “Defendant appeared in open court on 9/18/95 and was advised of the nature of the charge against him [sic], the right to counsel, and the various plea available to him [sic]. Defendant waived counsel. Defendant thereafter entered a plea of No Contest to the charge. The Court entered a finding of GUITLY to the charge.” (JE, Sept. 18, 1995, Pros. Ex. 28). The Judgment Entry of the 1995 OVI conviction also shows that King‘s conviction for this offense resulted in confinement, with her serving 10 days in jail. (Id.).
{¶52} On appeal, King appears to insinuate that her waiver of her right to counsel was invalid because she did not sign a written waiver and further asserts
{¶53} The record demonstrates that there was no written transcript оf the 1995 OVI plea proceedings admitted for the trial court to review in consideration of this issue. Moreover, it is unclear from the record whether a transcript of the 1995 OVI proceedings was even available. The only evidence King offered in support of her contention that her waiver of counsel in her 1995 OVI conviction is invalid was her own testimony at the motion to dismiss/suppress hearing in the current case on September 30, 2010. The following is an excerpt of King‘s testimony on direct examination at the motion to dismiss/suppress hearing.
Q: Do you recall appearing in Upper Sandusky Municipal Court on or about September 18, 1995?
A: Yeah.
Q: And do you recall why you were there?
A: Yes.
Q: Why were you there?
A: Uhm, I believe a second offense OMVI. Q: And do you recall what happened at the appearance?
A: Uhm, just standard procedure. You go in, you set [sic] down and you go through the motions, I guess.
* * *
Q: And when you appeared in court on September 18, 1995, did you have with you an attorney?
A: No, I did not.
Q: And when you, uhm—did you end up serving [10] days in jail?
A: Yes, I did.
Q: And why would you have proceeded without an attorney?
Prosecutor: Objection. Again, if she recalls. I think the first question is do you recall whether?
Trial Court: I agree.
Prosecutor: Okay.
Q: Do you recall why you proceeded without an attorney?
A: I—I knew I could take an attorney with me to court. I honestly didn‘t think I had the option of—I thought I had to choose that day. I thought I had to enter a plea that day. Like I said, I was young and I don‘t—I don‘t even know if I was paying attention to what was going on. I thought I had to enter a plea that day.
Q: Okay. And when you entered your plea of no contest, do you recall, uhm, the Judge having any conversation about your willingness to do that without an attorney? Prosecutor: Objection, leading.
Trial Court: Sustained.
Q: Do you recall any conversation the Judge had with you after you indicated you wanted to enter—you wanted to enter a plea of no contest?
A: Yeah. I remember him explaining what no contest meant.
Q: And then you still entered your plea of no contest?
A: Hm-hmm.
Q: And then was there any conversation between you and the Judge?
A: My sentence.
(Trans. pp. 60-66).
The following testimony was elicited from King on cross-examination.
Q: You—you told us that you got a six month operator‘s license suspension.
A: Yes.
Q: Would it refresh your recollection if I suggested to you that the judgment entry shows that you operator‘s license was suspended from September of ‘95 to September of ‘96.
A: That could be.
Q: Okay? Could be?
A: Hm-hmm. Q: So you remembered that inaccurately?
A: I could have, yes.
Q: How much of a fine did you pay?
A: I‘m gonna say, eight hundred?
Q: Would the judgment entry of five fifty be more accurate?
A: That could be.
Q: Okay. What—what were your court costs?
A: I don‘t know
Q: You told us there was maybe 20 people in the room, you‘re not sure?
A: Uh-huh.
Q: You have to answer yes or no.
A: No.
Q: You can‘t say huh-uh or uh-huh.
A: No, I am not sure.
Q: And you don‘t know to use your words, you don‘t know verbatim what was said?
A: Right.
Q: And to use your own words, you weren‘t paying attention?
A: Right.
Q: But when you were present in court, there was a period of time an explanation of what was going to happen, wasn‘t there? A: Yes.
Q: And you did waive counsel?
A: I don‘t know. I don‘t remember doing that.
(Tr. Trans. pp. 68-69).
{¶54} In overruling King‘s motion to dismiss, the trial court found that King failed to meеt her burden of establishing that her waiver of counsel for the 1995 OVI conviction was invalid. Specifically, the trial court found that the 1995 Judgment Entry of her conviction indicated that King was properly advised of her right in open court and that she validly waived counsel. The trial court determined that this Judgment Entry coupled with King‘s own admissions that she was inattentive at the plea hearing and her incorrectly remembering facts connected with the 1995 case, all prevented her from meeting her burden of proof.
{¶55} After reviewing the record, we conclude that the trial court‘s decision to overrule King‘s motion to dismiss is supported by the evidence in the record. King never made an adequate showing that her waiver of counsel during the 1995 plea proceeding was invalid. Other appellate districts have reached similar conclusions when faced with an appellant‘s inability to establish that a plea was uncounseled or that a valid waiver of the right to counsel was not made. See, e.g., State v. Biazzo, 8th Dist. No. 93792, 2010-Ohio-4485; State v. Mariano, 11th Dist. No. 2008-L-134, 2009-Ohio-5426; State v. Tanner, 9th Dist. No. 24614, 2009-Ohio-3867. Therefore, we find that the trial court did not err in determining that King‘s 1995 OVI conviction could be used by the prosecution tо enhance the degree of King‘s current offense from a misdemeanor to a felony charge. King‘s first assignment of error is overruled.
Third Assignment of Error
{¶56} In her third assignment of error, King argues that the trial court erred when it overruled her motion to suppress the statements she made to Deputy McKinnon at the hospital after the accident. Specifically, King maintains that she was subject to a custodial interrogation at the time she made the statements and that she should have been given her Miranda warnings. Therefore, King asserts that her statements to Deputy McKinnon were inadmissible at trial.
{¶57} A review of the denial of a motion to suppress involves mixed questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8, citing State v. Mills, 62 Ohio St.3d 357, 366 (1992). At a suppression hearing, the trial court assumes the role of trier of fact and, as such, is in the best position to evaluate the evidence and the credibility of witnesses. Id. When reviewing a ruling on a motion to suppress, deference is given to the trial court‘s findings of fact so long as they are supported by competent, credible evidence. Id. With respect to the trial court‘s conclusions of law, however, our standard of
{¶58} In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966), the United States Supreme Court held that the State may not use statements stemming from a defendant‘s custodial interrogation unless it demonstrates the use of procedural safeguards to secure the defendant‘s privilege against self-incrimination. Id. at 444. Police are not required to give Miranda warnings to every person that they question, even if the person being questioned is a suspect. State v. Biros, 78 Ohio St.3d 426, 440 (1997). Instead, Miranda warnings are only required for custodial interrogations. Id.
{¶59} The Supreme Court in Miranda defined “custodial interrogation” as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Id. at 444. In order to determine whether a person is in custody for purposes of receiving Miranda warnings, courts must first inquire into the circumstances surrounding the questioning and, second, given those circumstances, determine whether a reasonable person would have felt that he or she was not at liberty to terminate the interview and leave. Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457 (1995). Onсe the factual circumstances surrounding the interrogation are reconstructed, the court must apply an objective
{¶60} The following testimony was presented at the suppression hearing regarding the circumstances surrounding Deputy McKinnon‘s questioning of King at the hospital and the statements King made during this interview. Deputy McKinnon testified that when he first arrived at the scene of the accident he met with Officer Fawcett, who informed him that King had been identified as the only known occupant of the vehicle and that she appeared to be under the influence. Deputy McKinnon also recalled Officer Fawcett informing him that King had given inconsistent statements regarding how many occupants were in the vehicle. Deputy McKinnon testified that he was not able to talk to King at the scene of the accident because she was being administered first-aid and he did not want to interfere with her welfare. Deputy McKinnon testified that he then took this time to survey the accident scene to determine what had happened that night.
{¶61} Deputy McKinnon subsequently arrived at the hospital, where King had been transported to by first responders. There, Deputy McKinnon observed King behaving in an extremely hostile manner towards the hospital staff who were trying to administer medical treatment. Deputy McKinnon waited to speak with
{¶62} Deputy McKinnon testified that he introduced himself, told King that he was investigating the accident, and asked if he could speak with her. Specifically, Deputy McKinnon testified that he informed King that he needed to get answers about what happened, in particular to verify if there were in fact other people inside the vehicle so that he could ensure their safety. Deputy McKinnon recalled that King did not want to speak to him at first, and that King was initially very hostile and belligerent towards him. However, Deputy McKinnon testified that not even a “long minute” had passed before King then began asking him questions, wanting to know what had happened. Deputy McKinnon informed King of his findings regarding the accident. He then asked her if she had been drinking. King admitted to drinking several beers at Sonny Jack‘s, a bar in New Riegel. Deputy McKinnon testified that he asked King if she was the one driving the vehicle and King responded that she was not driving, but had met a man at the bar with whom she left.
{¶64} Deputy McKinnon recalled that while he was talking to King he noticed a strong odor of alcoholic beverages emitting from her person. Deputy McKinnon testified that this odor, coupled with King‘s behavior and her vagueness regarding whether there was actually another person in the vehicle, led Deputy McKinnon to believe that he had probable cause to arrest King for OVI. Deputy McKinnon testified that upon reaching this determination, he read King the BMV 2255 form and placed her under arrest. Deputy McKinnon testified that the only question he asked King after placing her under arrest was to request she submit to a test to measure the level of alcohol in her system. Deputy McKinnon recalled at that time the hospital staff came into the room to draw King‘s blood and he subsequently left King‘s hospital room.
{¶65} Deputy McKinnon stated that the hospital staff then asked him if King was free to leave the hospital and he responded that he was not going to take King into custody, meaning that he was not going to transport her to the Sheriff‘s
{¶66} On appeal, King argues that her statements were obtained in a custodial interrogation. King appears to focus solely on the fact that she was restrained by a backboard and a “c-collar” and did not feel free to leave. In support of her argument, King cites to a single case State v. Brand, 157 Ohio App.3d 451, 2004-Ohio-1490 (1st Dist.). In that case, Brand was hospitalized after a single car accident and was suspected of OVI. Id. at ¶¶ 2-4. Brand was placed on a backboard and her neck was secured in a neck brace, leaving her unable to move. Id. at ¶ 36. Throughout the interview with law enforcement, Brand expressed an unwillingness to answer questions and complained of pain. Id. at 38. The trial court and the first appellate district concluded that Brand was subject to a custodial interrogation because “a reasonable person in Brand‘s position would have not felt free to leave or free not to answer the police questions.” Id.
{¶67} First, we find there are clear factual distinctions between Brand and the cаse at hand. King never complained of being in pain during the interview with Deputy McKinnon. Moreover, King initiated conversation with the deputy immediately after she expressed that she did not want to speak to him. The only similarity between Brand‘s and King‘s cases is the fact that both defendants were
{¶68} Second, we are not persuaded with the court‘s conclusion in Brand that simply because she was placed in a backboard and a neck brace and could not move “for practical purposes, Brand‘s freedom of movement was restrained as if she had already been placed under formal arrest.” Brand at 38. Instead, in this instance, we believe that one of the critical circumstances to be considered in determining whether King was subject to a custodial interrogation at thе hospital is to examine the reasons for her restraint. King was never restrained by the actions of the State. Rather, her restraints were placed upon her by hospital staff for medical treatment purposes. Thus, King was “restrained” or unable to move solely due to her medical situation. Moreover, we believe the fact that King voluntarily initiated conversation with law enforcement further removes her situation from a custodial interrogation. See State v. Feaster, 9th Dist. No. 24367, 2009-Ohio-2558, ¶ 10 (finding that the defendant was not subject to a custodial interrogation where he was not able to go anywhere due to his own medical situation and where he voluntarily engaged in the interview).
{¶70} Finally, we note even assuming arguendo that King‘s statements at the hospital should have been suppressed, the admission of the statements was harmless error because King made similar incriminating statements to Deputy McKinnon during an interview at her home later that day. Notably, on appeal King has raised no challenge with regard to the statements made at her home. Thus, despite King‘s contentions regarding the statements at the hospital, we find that her statements at her home were consistent with her prior statements at the hospital and did not serve to undermine her credibility to the jury. Moreover, even if we were to find that King‘s statements at the hospital and at her home were inadmissible, there was a substantial amount of circumstantial evidence presented at trial through the testimony of various witnesses for a reasonable factfinder to
{¶71} For all these reasons, we conclude that the trial court did not err in determining that King was not subject to a custodial interrogation when she made statements to Deputy McKinnon at the hospital. Therefore, the fact that she was not Mirandized prior to making those statements was not a violation of her Fifth Amendment rights. King‘s third assignment of error is overruled.
Fourth Assignment of Error
{¶72} In her fourth assignment of error, King argues that she received ineffective assistance from her trial counsel. In particular, King asserts that the decision of her trial counsel to allow an unredacted version of King‘s BMV record to be submitted the jury was highly prejudicial because it contained a suspension of King‘s operator‘s license due to a prior felony drug conviction. King maintains that evidence of this prior felony conviction would otherwise have been inadmissible for the jury to view if was not for her trial counsel‘s decision.
{¶73} Initially, we note that attorneys licensed by the State of Ohio are presumed to provide competent representation. State v. Hoffman, 129 Ohio App.3d 407 (1998). To prevail on a claim of ineffeсtive assistance of counsel, a defendant must prove that trial counsel‘s performance fell below objective standards of reasonable representation and that the defendant was prejudiced as a
{¶74} Also, in order to show that a defendant has been prejudiced by counsel‘s deficient performance, the defendant must prove that there exists a reasonable probability that, but for counsel‘s errors, the outcome at trial or in his legal proceedings would have been different. Bradley, 42 Ohio St.3d at paragraph three of the syllabus. “Reasonable probability” is a probability sufficient to undermine confidence in the result. Id. at 142.
{¶75} When considering a claim of ineffective assistance of counsel, the court “must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. Accordingly, courts are to afford a high level of deference to the performance of trial counsel. Bradley, 42 Ohio St.3d at 142. Tactical or strategic trial decisions, even if unsuccessful, do not generally constitute ineffective assistance. State v. Carter, 72 Ohio St.3d 545, 558, 1995-Ohio-104. Rather, the errors complained of must amount to a substantial violation of counsel‘s essential duties to his client. See Bradley at 141-142.
{¶77} Moreover, King failed to meet her burden in showing that there exists a reasonable probability that, but for counsel‘s errors, the outcome at trial would have been different. As an essential element of the offense charged in this case, the prosecution already had to prove beyond a reasonable doubt that King had previously been convicted of five or more OVI offenses within the past twenty years. The prosecution accomplished this by introducing certified copies of the
Fifth Assignment of Error
{¶78} In her fifth assignment of error, King claims the jury verdict is against the manifest weight of the evidence and argues her conviction must be reversed.
{¶79} An appellate court‘s function when reviewing the weight of the evidence is to determine whether the greater amount of credible evidence supports the verdict. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). In reviewing whether the trial court‘s judgment was against the weight of the evidence, the appellate court sits as a “thirteenth juror” and examines the conflicting testimony. Id. In doing so, this Court must review the entire record, weigh the evidence and all of the reasonable inferences, consider the credibility of witnesses, and determine whether in resolving conflicts in the evidence, the factfinder “clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” State v. Andrews, 3d Dist. No. 1–05–70, 2006-Ohio-3764, ¶ 30, citing State v. Martin, 20 Ohio App.3d 172, 175 (1983); Thompkins, 78 Ohio St.3d at 387.
{¶80} King was convicted of the offense of OVI, in violation of
(1) No person shall operate any vehicle, streetcar, or trackless trolley within this state, if, at the time of the operation, any of the following apply:
(a) The person is under the influence of alcohol, a drug of abuse, or a combination of them * * *.
On appeal, King contends that the jury lost its way in convicting her of OVI because the prosecution failed to present adequate evidence demonstrating that King operated the vehicle or was under the influence of alcohol on the night in question.
{¶81} With regard to her first claim, King argues the jury verdict was against manifest weight of the evidence because no one testified to seeing King operating the vehicle. King overlooks the fact that there was ample circumstantial evidence introduced at trial for the jury to conclude she was the one operating the vehicle. At trial, a recording of King‘s interview with Deputy McKinnon at her home was played for the jury. In this interview, King could not remember if she was the one driving or not. Moreover, King could not definitively remember whether there was another person in the vehicle with her who could have been
{¶82} In additiоn, Kelly Wickham, the witness who discovered the accident and alerted the authorities, testified that King was the only person he saw at the scene. Officer Fawcett testified that upon arriving at the site of the crash, he had the spotlight illuminated on his police cruiser as he searched the accident scene. Officer Fawcett further testified that he believed he would have easily seen another person as he approached the accident site because it was a low populated area surrounded by fields and he was using his spotlight to scan the ditches. Officer Fawcett also recalled that when he first encountered King he asked her whether she was injured and if she was the only occupant in the vehicle. Officer Fawcett testified that King responded stating she was not injured and that she was the only occupant.
{¶83} Officer Fawcett also recalled searching for a second person at the accident site once King began to give inconsistent statements regarding the number of occupants in the vehicle. Officer Fawcett described assisting members of the Carey Fire Deрartment in a search for more occupants to make sure no one else was injured. He explained that they walked up and down road 100 to 150 yards in either direction scanning the fields for footprints or mud paths in the grass berm. Chad Snyder a volunteer firefighter and Chief of his unit testified that he
{¶84} King also challenges the jury verdict is against the manifest weight in arguing that there was inadequate evidence presented at trial demonstrating she was under the influence of alcohol that night. Officer Fawcett testified that he determined King to be under the influence of alcohol based on his observations and interactions with her. Specifically, he recalled that King‘s eyes were bloodshot and glassy, her speech was slurred, and she was wobbly on her feet. Officer Fawcett testified he noticed a crushed beer can near the passenger‘s door of the vehicle. A picture of the aluminum Busch Light beer can was admitted as an exhibit at trial. During her interview with Deputy McKinnon, King stated that Natural Light and Busch Light were her usual beverages of choice. She also told Deputy McKinnon that it was quite possible she was drinking Busch Light that night.
{¶86} After reviewing the record, weighing the evidence and all reasonable inferences, and considering the credibility of witnesses, we conclude that a reasonable factfinder could have found that King was the person operating her vehicle under the influence of alcohol on May 19, 2010. Therefore, we further conclude that the jury did not lose its way and create a manifest miscarriage of justice in reaching this conclusion. Accordingly, we find that King‘s conviction was not against the manifest weight of the evidence. King‘s fifth assignment of error is overruled.
Judgment Affirmed
PRESTON and WILLAMOWSKI, J.J., concur.
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