State v. PersingerState v. Persinger
- Reporters:
- ,
- Before:
- Willamowski, Preston, Rogers
O P I N I O N
WILLAMOWSKI, J.
{¶1} Defendant-appellant, Robert A. Persinger, Jr. (“Persinger”), brings this appeal from the judgment of the Common
Factual and Procedural Background
{¶2} On December 8, 2013, Persinger was involved in an automobile accident. Persinger failed to stop at a stop sign and collided with another vehicle, causing the death of two people and injuries to one person, all passengers in the other vehicle. Persinger was also severely injured. Trooper Jeremy Bice (“Trooper Bice”) and Trooper Keith Smith (“Trooper Smith”), who were dispatched to the accident, smelled an odor of an alcoholic beverage emanating from Persinger and suspected that Persinger was operating a vehicle while under the influence of alcohol. Persinger was transported to Grant Medical Center in Columbus (“Grant Hospital”), where he was interviewed by Trooper Jason Jеffreys from the Columbus Metro Post of the State Highway Patrol. Persinger denied request for a blood draw, but a blood alcohol content test was performed by the hospital as part of the treatment. The police obtained the results of this test in the course of their investigation.1
{¶3} On March 20, 2014, an eight-count indictment was filed in the Marion County Court of Common Pleas, charging Persinger with two counts of aggravated vehicular homicide, a felony of the first degree in violation of
{¶4} On May 22, 2014, Persinger filed a “Motion to Suppress And/or In Limine and Request for Oral Hearing.” (R. at 84.) The motion listed fifty-six various grounds for suppression or exclusion, including unconstitutionality of the blood test (grounds 1-2); failure to comply with the Revised Code and the Administrative Code requirements for alcohol tests (grounds 3-50); violation of Persinger’s right against self-incrimination, right to counsel, and confrontation right (grounds 51 and 56); prejudicial effect of admitting the test results (ground 52); violation of discovery rules and rules against hearsay (grounds 53 and 56); unconstitutionality of the Administrative Code and of
{¶5} The trial court conducted a hearing on the motion to suppress and issued a judgment entry granting the motion in
{¶6} On July 11, 2014, Persinger entered a plea of no contest to counts one and two, each for aggravated vehicular homicide, felonies of the first degree in violation of
{¶7} We allowed a delayed appeal and the following assignments of error are now before us.
Assignments of Error
- THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO SUPPRESS THE RESULTS OF APPELLANT’S BLOOD TEST FROM GRANT HOSPITAL.
- APPELLANT’S CONVICTIONS MUST BE REVERSED BECAUSE THERE SHOULD NOT HAVE BEEN AND WAS INSUFFICIENT EVIDENCE FOR THE TRIAL COURT TO ACCEPT APPELLANT’S NO CONTEST PLEAS.
Analysis
Preliminary Matters
{¶8} Before addressing the assignments of error, we must put the issues in context. Persinger was convicted of violation of
First Assignment of Error—Motion to Suppress
{¶9} Persinger alleges that the trial court erred by denying suppression of the results of the blood test taken at Grant Hospital. An appellate review of the trial court’s decision on a motion to suppress involves a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8; State v. Norman, 136 Ohio App.3d 46, 51, 735 N.E.2d 953 (3d Dist.1999). We will accept the trial court’s factual findings if they are supported by competent, credible evidence, because the “evaluation of evidence and the credibility of witnesses” at the suppression hearing are issues for the trier of fact. State v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992); Norman at 51; Burnside at ¶ 8. But we must independently determine, without deference to the trial court, whether these
{¶10} Persinger raises three issues with respect to the trial court’s denial of his motion to suppress. First, he argues that the trial court wrongly determined that the State was not required to prove compliance with the Ohio Department of Health Regulations. Second, he alleges that the State failed to show the chain of custody for the blood samples. Third, he contends that the trial court improperly assisted the State in establishing foundation for admissibility of the blood test results. Since Persinger does not challenge the trial court’s factual findings on appeal, we review these issues de novo.
1. Compliance with the Ohio Department of Health Regulations
{¶11} Persinger alleges that the test results should have been suppressed because of the failure to comply with regulations promulgated by the Ohio Director of Health (“ODH”). The alcohol-testing regulations, contained in the Ohio Administrative Code, ensure the accuracy of the alcohol-test results. Burnside at ¶ 10, 21. Compliance with these regulations is required by
{¶12} In the instant case, the State conceded that Persinger’s blood test was not conducted in substantial compliance with ODH regulations. It argued, however, that compliance with the regulations was not necessary under the facts at issue. The State focused оn the fact that the blood alcohol content test was performed by the hospital, and not by the law enforcement. Furthermore, the test results were used to show a violation of
{¶13} We acknowledge that in 2005, the Ohio Supreme Court held that blood test results, which were takеn and analyzed by a health care provider, must substantially comply with the administrative requirements of
{¶14} Nearly two years after the Mayl decision was announced,
In any criminal prosecution or juvenile court proceeding for a violation of division (A)(1)(a) of this section or for an equivalent offense, the result of any test of any blood or urine withdrawn and analyzed at any health care provider, as defined in
section 2317.02 of the Revised Code , may be admitted with еxpert testimony to be considered with any other relevant and competent evidence in determining the guilt or innocence of the defendant.
{¶15} In 2009, the Twelfth District Court of Appeals addressed the effect of this amendment in State v. Davenport, 12th Dist. Fayette No. CA2008-04-011, 2009-Ohio-557. The relevant facts in Davenport were the same as in Mayl and the instant case: the defendant caused the death of another while operating under the influence and was taken to a hospital where his blood was tested for alcohol content by the hosрital staff in the course of treatment. Id. at ¶ 2. Based on the test results, Davenport was charged with violating
[T]he General Assembly, by passing Am.Sub.H.B. No. 461 which enacted R.C. 4511.19(D)(1)(a) , chose to create a distinction between prosecutions for “per se” and “under the influence” violations in regard to the use of blood-alcohol test results. Therefore, we find that the Generаl Assembly’s passage of Am.Sub. H.B. No. 461 was made in direct response to Mayl and created a distinction between “per se” violations and the general “under the influence” violation not found in the formerR.C. 4511.19(D)(1) .* * *
Accordingly, appellant’s arguments, pursuant to
R.C. 4511.19(D)(1)(b) , and in regard to the state’s failure to demonstrate substantial compliance with ODH regulations due to the lack of an established chain of custody and the preservation and labeling of his blood sample, are no longer appliсable.
{¶16} The reasoning of Davenport was followed by several of our sister districts. See, e.g., State v. Carr, 11th Dist. Lake No. 2012-L-001, 2013-Ohio-737, ¶ 65; State v. Mendoza, 6th Dist. Wood No. WD-10-008, 2011-Ohio-1971; see also State v. Oliver, 9th Dist. Summit No. 25162, 2010-Ohio-6306, ¶ 16 (recognizing the holding in Davenport, but distinguishing the case because the State did not present evidence that the blood was analyzed at a “health care provider,” as required under
we hold that 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 byR.C. 4511.19(A)(1)(a) in a prosecution for a violation ofR.C. 2903.06 , provided that the administrative requirements ofR.C. 4511.19(D) are substantially complied with and expert testimony is offered.
{¶17} This Ohio Supreme Court decision, announced only several months after the amendment to
{¶18} The Ohio Supreme Court in Hassler did recognize that “[w]hen the legislature amends an existing statute, the presumption is that it is aware of our decisions interpreting it.” Id. at ¶ 16, citing Clark v. Scarpelli, 91 Ohio St.3d 271, 278, 2001-Ohio-39, 744 N.E.2d 719. This statement supports the conclusion that
{¶19} Therefore, we hold that the trial court did not err in determining that the facts of this case did not require proof of substantial compliance with ODH regulations.
2. Chain of Custody
{¶20} The title of Persinger’s second point in this assignment of error suggests the State’s failure to establish a chain of custody. But the argument in this part of the brief challenges the use of hеarsay to establish the chain of custody at the suppression hearing. The Ohio Supreme Court addressed the use of hearsay at a suppression hearing:
Judicial officials at suppression hearings may rely on hearsay and other evidence to determine whether alcohol test results were obtained in compliance with methods approved by the Director of Health, even though that evidence may not be admissiblе at trial. (Evid.R. 101(C)(1)).
State v. Edwards, 107 Ohio St.3d 169, 2005-Ohio-6180, 837 N.E.2d 752 (2005), paragraph two of the syllabus. Based on this holding, we reject Persinger’s argument that the trial court erred by allowing the use of hearsay to establish the chain of custody at the suppression hearing.
{¶21} To the extent that Persinger attempts to challenge the State’s failure to show the chain of custody as required by Ohio Adm.Code 3701-53-05(E),5 we apply our analysis from part (1.) above. Under the facts of this case,
3. The Trial Court’s Involvement
{¶22} Persinger’s last complaint in this assignment of error is about the trial court’s alleged assistance in establishing foundation for admissibility of the blood test results. He specifically complains about the trial court’s questioning of Dr. Martin Kelsten, a physician/pathologist and the Mеdical Director of the laboratory at Grant Medical Center, who testified about the “persons involved in drawing the blood, testing the blood, handling it at the laboratory,” and about the report from his laboratory concerning Persinger’s blood sample. (Tr. of Proceedings, 109-114, June 5, 2014.)
{¶23} We have previously recognized that “[a] court is permitted to question witnesses to develop issues in the interests of justice so long as such prerogative is not abused.” State v. Bennett, 3d Dist. Putnam, No. 12-77-10, 1978 WL 215734, *5 (June 14, 1978).
{¶24} There are no allegations or evidence that the trial court abused its right to “question witnesses to develop issues in the interests of justice.” Bennett at *5. Our review of the hearing transcript fails to show bias against Persinger or partiality toward the State, and Persinger admits that it is possible that the State would have laid proper foundation without the trial court’s assistance. (See App’t Br. at 13.) Therefore, we do not find that the trial court abused its discretion by its involvement at the suppression hearing.
{¶25} For all of the foregoing reasons we overrule the first assignment of error.
Second Assignment of Error—Finding of Guilty Upon No Contest Plea
{¶26} In the second assignment of error Persinger alleges that the trial court erred in finding him guilty because there was insufficient evidence to support the conviction. Hеre, Persinger starts with speculating that “[i]f the trial court had sustained appellant’s motion to suppress appellant’s bloodwork, there would not have been sufficient evidence for the trial court to make findings of guilty.” (App’t Br. at 14.) As we found above, the trial court did not err in overruling the motion to suppress. Therefore, the trial court did not err in considering the results of the blood test in making its finding of guilt.
{¶27} The second part of this assignment of error concerns elements of vehicular homicide under
{¶28} Persinger relies on a case from the Sixth District Court of Appeals, State v. O’Neill, 175 Ohio App.3d 402, 2008-Ohio-818, 887 N.E.2d 394 (6th Dist.). In O’Neil, the trial court denied the defendant’s motion to suppress blood test results. Id. at ¶ 9. After a no contest plea, the trial court found O’Neil guilty of operating a vehicle under the influence of alcohol in violation of
{¶29} Persinger’s case is different. First, as we held above, the trial court was not required to suppress the results of the blood test. Therefore, thе trial court was allowed to use the evidence of the blood test results to determine that Persinger was guilty of vehicular homicide and vehicular assault as a consequence of violating
{¶30} We therefore find that Persinger’s contentions have no merit and we overrule the second assignment of error.
Conclusion
{¶31} Having reviewed the аrguments, the briefs, and the record in this case, we find no error prejudicial to Appellant in the particulars assigned and argued. The judgment of the Common Pleas Court of Marion County, Ohio is therefore affirmed.
Judgment Affirmed
PRESTON, J., concurs.
ROGERS, J., concurs in Judgment Only.
/hls
Notes
In any criminal prosecution or juvenile court proceeding for a violation of division (A)(1)(a) of this section or for an equivalent offense that is vehicle-related, the result of any test of any blood or urine withdrawn and analyzed at any health care provider, as defined in
section 2317.02 of the Revised Code , may be admitted with expert testimony to be considered with any other relevant and competent evidence in determining the guilt or innocence of the defendant.