Case Information
*1
[Cite as
State v. Persinger
,
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY
STATE OF OHIO,
CASE NO. 9-15-10 PLAINTIFF-APPELLEE,
v.
ROBERT ALLAN PERSINGER, JR., O P I N I O N DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court
Trial Court No. 2014-CR-0124 Judgment Affirmed
Date of Decision: March 7, 2016 APPEARANCES:
Robert C. Nemo for Appellant
David J. Stamolis for Appellee
WILLAMOWSKI, J.
Dеfendant-appellant, Robert A. Persinger, Jr. (“Persinger”), brings
this appeal from the judgment of the Common Pleas Court of Marion County, Ohio, which denied in part his motion to suppress and found him guilty of two counts of aggravated vehicular homicide and one count of aggravated vehicular assault, upon his entry of a no contest plea to these charges. For the reasons that follow we affirm the trial court’s judgment.
Factual and Procedural Background On December 8, 2013, Persinger was involved in an automobilе
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 Jeffreys 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 obtainеd the results of this test in the course of their investigation. [1] 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 R.C. 2903.06(A)(1)(a); two counts of aggravated vehicular homicide, a felony of the second degree in violation of R.C. 2903.06(A)(2)(a); one count of aggravated vehicular assault, a felony of the second degree in violation of R.C. 2903.08(A)(1)(a); one count of aggravated vehicular assault, a felony of the third degree in violation of R.C. 2903.08(A)(2)(b); one count of operating a vehicle under the influence, a misdemeanor of the first degree in violation of R.C. 4511.19(A)(1)(a); and one count of operating a vehicle under the influence, a misdemeanor of the first degree in violation of R.C. 4511.19(A)(1)(f). (R. at 1.) Persinger pled not guilty. (R. at 5.) On May 22, 2014, Persinger filed a “Motion to Suppress And/or In
Limine and Request for Oral Hearing.” (R. at 84.) The mоtion 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 R.C. 4511.19 (ground 54);
and a demand for retrograde extrapolation to the time of the offense as a
prerequisite of admissibility (ground 55). Of note, the motion did not challenge
the search or seizure of Persinger’s medical records—an issue we addressed in
State v. Clark
, 3d Dist. No. 5-13-34,
issued a judgment entry granting the motion in part and denying it in part. The trial court prohibited the introduction of statements made by Persinger to law enforcement officers while at the hospital, but allowed the State to introduce the results of the blood test performed at the hospital, with appropriate expert testimony and subject to “demonstrating the reliability of the results.” (R. at 146.) 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 R.C. 2903.06(A)(1)(a), and count five: aggravated vehicular assault, a felony of the second degree in violation of R.C. 2903.08(A)(1)(a). The remaining counts of the indictment were dismissed. The trial court found Persinger guilty and sentenced him to a total of nine years in prison. We allowed a delayed appeal and the following assignments of error
are now before us.
Assignments of Error
1. THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO SUPPRESS THE RESULTS OF APPELLANT’S BLOOD TEST FROM GRANT HOSPITAL.
2. 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 Before addressing the assignments of error, we must put the issues in context. Persinger was convicted of violation of R.C. 2903.06(A)(1)(a) and 2903.08(A)(1)(a). The misdemeanor charges for operating a vehicle under the influencе in violation of R.C. 4511.19(A)(1)(a) and R.C. 4511.19(A)(1)(f) have been dismissed. But these parts of the statute are still at issue on appeal because a conviction under R.C. 2903.06(A)(1)(a) requires proof that the defendant caused the death of another “[a]s the proximate result of committing a violation of division (A) of section 4511.19 of the Revised Code or of a substantially equivalent municipal ordinance.” Similarly, a conviction under R.C. 2903.08(A)(1)(a) requires proof that the defendant caused serious physical harm to another “[a]s the proximate result of committing a violation of division (A) of section 4511.19 of the Revised Code or of a substantially equivalent municipal ordinance.” Therefore, the issues raised by Persinger and our discussion below concern a violation of R.C. 4511.19, even though the charges against Persinger under this section of the Revised Code have been dismissed.
First Assignment of Error—Motion to Suppress Persinger alleges that the trial court erred by denying suppression of
the results of thе 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
,
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 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 R.C. 4511.19(D)(1)(b), which states that “[t]he bodily substance withdrawn under division (D)(1)(b) of this section shall be analyzed in accordance with methods approved by the director of health by an individual possessing a valid permit issued by the director pursuant to section 3701.143 of the Revised Code.” The state must establish substantial compliance with these regulations before the tests could be admitted in a criminal prosecution for operation of a vehicle under the influence. Burnside at ¶ 27. In the instant case, the State conceded that Persinger’s blood test was
not conducted in substantial compliance with ODH regulations. It argued, howevеr, that compliance with the regulations was not necessary under the facts at issue. The State focused on 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 R.C. 4511.19(A)(1)(a) (operating a vehicle while under the influence), and not a violation of R.C. 4511.19(A)(1)(f) (operation of a vehicle with a prohibited concentration of аlcohol in the person’s blood—so-called “per se” violation). The State argued that because proof of violation of R.C. 4511.19(A)(1)(a) does not depend on the concentration of alcohol in the person’s blood, substantial compliance is not required in the limited circumstances when the blood is drawn and the test is performed by a hospital. The trial court agreed with this argument and Persinger contends that this was contrary to law. We acknоwledge that in 2005, the Ohio Supreme Court held that
blood test results, which were taken and analyzed by a health care provider, must
substantially comply with the administrative requirements of R.C. 4511.19(D) in
order to be admissible as evidence in prosecution for a vehicular homicide in
violation of R.C. 2903.06(A), which alleges a violation of operating under the
influence pursuant to R.C. 4511.19(A).
State v. Mayl
,
4511.19 was amended and a new division (D)(1)(a) was added. It then read:
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 оf 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.
4511.19(D)(1)(a) (2007). [3] 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,
[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 thе influence” violations in regard to the use of blood-alcohol test results. Therefore, we find that the General 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 former R.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 thе lack of an established chain of custody and the preservation and labeling of his blood sample, are no longer applicable.
Id. at ¶ 15-16. 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,
we hold that a blоod 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 by R.C. 4511.19(A)(1)(a) in a prosecution for a violation of R.C. 2903.06, provided that the administrative requirements of R.C. 4511.19(D) are substantially complied with and expert testimony is offered. This Ohio Supreme Court decision, announced only several months
after the amendment to R.C. 4511.19(D)(1)(a), seems to reaffirm the principle of Mayl to the extent that substantial compliance with the ODH regulations is required to ensure the accuracy of the test results. See id. at ¶ 15. Hassler , however, did not address an issue of tests performed by the hospital staff as opposed to law enforcement. The discussion in Hassler was focused on the substantial compliance with the prescribed time frame for withdrawing blood, not on who drew the blood and performed the test at issue. Id. at ¶ 5, 18-19. Indeed, the facts of Hassler indicated that the blood samples were tested by the law enforсement. [4] Id. at ¶ 3. 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
,
the facts of this case did not require proof of substantial compliance with ODH regulations.
2. Chain of Custody 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 hearsay to establish the chain of custody at the suppression hearing. The Ohio Supreme Court addressed the use of hearsay at a suppression hearing:
Judiсial 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 admissible at trial. (Evid.R. 101(C)(1)).
State v. Edwards
, 107 Ohio St.3d 169,
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, R.C.
4511.19(D)(1)(a) did not require proof of substantial compliance with ODH
regulations, including Ohio Adm.Code 3701-53-05(E).
See Davenport
, 12th Dist.
Fayette No. CA2008-04-011,
3. The Trial Court’s Involvement 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 Medical 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 samplе. (Tr. of Proceedings, 109- 114, June 5, 2014.)
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). R.C. 2945.03, which governs a judge’s control
of a trial, states that “[t]he judge of the trial court shall control all proceedings
during a criminal trial, and shall limit the introduction of evidence and the
argument of counsel to relevant and material matters with a view to expeditious
and effective ascertainment of the truth regarding the matters in issue.” In
addition, Evid.R. 611(A) provides that “[t]he court shall exercise reasonable
control over the mode and order of interrogating witnesses and presenting
evidence so as to (1) make the interrogation and presentation effective for the
ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect
witnesses from harassment or undue embarrassment.” Evid.R. 614 further permits
the court to “interrogate witnesses, in an impartial manner, whether called by itself
or by a party.” Generally, an appellate court reviewing a trial court’s interrogation
of witnesses must determine whether the trial court abused its discretion.
State v.
Davis
,
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 Persingеr 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 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. Here, 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 rеsults of the blood test in making its finding of guilt. The second part of this assignment of error concerns elements of
vehicular homicide under R.C. 2903.06(A)(1)(a), and elements of vehicular assault under R.C. 2903.08(A)(1)(a). Since the counts alleging violation of R.C. 4511.19 had been dismissed, Persinger alleges that the trial court erred in finding him guilty of violation of R.C. 2903.06(A)(1)(a) and R.C. 2903.08(A)(1)(a), which required proof of violation of “division (A) of section 4511.19 of the Revised Code or of a substantially equivalent municipal ordinance.” R.C. 2903.06; R.C. 2903.08. Persinger relies on a case from the Sixth District Court of Appeals,
State v. O’Neill
, 175 Ohio App.3d 402,
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, the trial court
was allowed to use the evidence of the blоod test results to determine that
Persinger was guilty of vehicular homicide and vehicular assault as a consequence
of violating R.C. 4511.19(A). It is immaterial that the counts alleging violation of
R.C. 4511.19(A) had been dismissed. The dismissal did not mean that Persinger
was not guilty of violating R.C. 4511.19(A).
See State v. Grillo
, 5th Dist.
Richland No. 14CA51,
overrule the second assignment of error.
Conclusion Having reviewed the arguments, the briefs, and the record in this
cаse, 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
[1] Persinger does not raise any challenges as to the method of obtaining the results of the blood test by the police.
[2] While division (A) of R.C. 4511.19 has been amended since 2005, the portions of this division relevant to our discussion remain the same.
[3] The statute had substantially similar language in 2013, when the offense at issue in the instant case occurred. The only change is emphasized in the excerpt below: 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. R.C. 4511.19(D)(1)(a) (2013).
[4] We further note that the facts that gave rise to Hassler occurred prior to the amendment of R.C. 4511.19, which added subdivision (D)(1)(a).
[5] “Ohio Admin. Code 3701–53–05(E) requires that containers with blood or urine samples be sealed such
that tampering can be detected, and that they have a label indicating (1) the ‘name of suspect,’ (2) the date
and time of collection, and (3) the name or initials of the person collecting and/or sealing the sample.”
State v. Wells
, 2d Dist. Greene No. 2003 CA 68,
[6] O’Neil was also found guilty of other charges that are not relevant to our discussion herein.