State v. Fridley

93 N.E.3d 10

2017 Ohio 4368

STATE of Ohio, Plaintiff–Appellee,

v.Barry A. FRIDLEY, Defendant–Appellant.

CASE NO. CA2016–05–030

Court of Appeals of Ohio, Twelfth District, Clermont County.

June 19, 2017

D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee

Kura, Wilford & Schredgardus Co., L.P.A., Sarah M. Schregardus, 492 City Park Avenue, Columbus, Ohio 43215 and D. Timothy Huey, 1985 West Henderson Road, Suite 204, Upper Arlington, Ohio 43220, for defendant-appellant

OPINION

RINGLAND, J.

{¶ 1} Defendant–appellant, Barry Fridley, appeals his conviction and sentence in the Clermont County Court of Common Pleas. For the reasons outlined below, we affirm in part, reverse in part and remand this matter to the trial court for the limited purpose of issuing a nunc pro tunc sentencing entry.

{¶ 2} On November 19, 2014, appellant was driving northbound on State Route 132 when he failed to negotiate a curve and drove left-of-center, causing him to strike and kill the oncoming driver. The passenger of that vehicle also sustained serious injuries.

{¶ 3} Emergency medical personnel responded to the scene. Initially, appellant did not appear to be breathing and was "unarousable" until emergency personnel applied a sternal rub. While appellant was still at the scene of the collision, but while he was receiving care in an ambulance, Trooper Disbennett made contact with appellant. Trooper Disbennett noted a strong odor of an alcoholic beverage on appellant's person. When questioned about whether he had consumed any alcohol that day, appellant replied "not enough."

{¶ 4} Appellant was ultimately transported by helicopter to the University of Cincinnati Hospital. At the hospital, Nurse Megan Heck drew appellant's blood at approximately 6:00 p.m., one hour after the wreck. Nurse Heck testified that she used the hospital's standard kit to prepare the site and draw the blood. Nurse Heck further explained that she prepared the blood samples in accordance with hospital policies and procedures and she testified about those procedures. The results from the initial blood test revealed that appellant's blood alcohol content was .239.

{¶ 5} While the crash scene was still being processed and appellant was receiving medical care, a search warrant was authorized for appellant's medical records and any blood samples taken by the hospital. Additionally, the warrant included a request for a separate blood draw to be done at the request of the Ohio State Highway Patrol.

{¶ 6} The clinical nursing supervisor, Marlene Parker, accompanied three state troopers to appellant's hospital room. Nurse Parker advised that appellant was lucid, but may have a lacerated liver. No other injuries were specified to Trooper Disbennett. When Trooper Disbennett entered appellant's hospital room, he asked appellant if he remembered what had happened and if he had anything to drink that day. Appellant responded that he had no memory of the crash and stated that he had consumed two beers. Later, appellant stated that he had consumed "two vodkas." Trooper Disbennett then read the search warrant and Nurse Parker performed the blood draw. The blood draw, taken approximately four hours after the collision, revealed that appellant's blood alcohol content was .139.

{¶ 7} Following the blood draw, Trooper Disbennett proceeded to administer the horizontal gaze nystagmus (HGN) test while appellant was seated and partially reclined in his hospital bed. Trooper Disbennett testified that appellant displayed four of six clues of intoxication.

{¶ 8} Appellant was indicted for one count of aggravated vehicular manslaughter, one count of aggravated vehicular assault, one count of vehicular assault, two counts of operating a vehicle under the influence, and one count for failure to control. Appellant moved to suppress evidence of the HGN test, evidence of the blood tests, and statements made to police. Following a suppression hearing, the trial court granted portions of appellant's motion to suppress, but denied the request relating to the errors addressed in this opinion.

{¶ 9} On October 27, 2015, appellant pled no contest to aggravated vehicular homicide in violation of R.C. 2903.06, a second-degree felony, and aggravated vehicular assault in violation of R.C. 2903.08, a third-degree felony. The trial court imposed a five-year prison term for aggravated vehicular homicide and a two-year prison term on the aggravated vehicular assault to be served consecutively for an aggregate prison term of seven years. Appellant now appeals the decision of the trial court, raising three assignments of error for review.

{¶ 10} Assignment of Error No. 1:

{¶ 11} THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S MOTION TO SUPPRESS (10/7/2015 DECISION/ENTRY).

{¶ 12} In his first assignment of error, appellant argues the trial court erred by denying his motion to suppress. Appellant separately challenges the admissibility of the HGN test, the blood tests, and certain statements made to Trooper Disbennett. We address each issue in turn, but find his arguments lack merit.

{¶ 13} Appellate review of a trial court's decision to grant or deny a motion to suppress is a mixed question of law and fact. State v. Bell , 12th Dist. Clermont No. CA2008-05-044, 2009-Ohio-2335, 2009 WL 1395857, ¶ 8. Acting as the trier of fact, the trial court is in the best position to resolve factual questions and evaluate witness credibility. State v. Harsh , 12th Dist. Madison No. CA2013-07-025, 2014-Ohio-251, 2014 WL 287889, ¶ 9. Therefore, when reviewing the denial of a motion to suppress, a reviewing court is bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. State v. Durham , 2013-Ohio-4764, 999 N.E.2d 1233, ¶ 14. "An appellate court, however, independently reviews the trial court's legal conclusions based on those facts and determines, without deference to the trial court's decision, whether as a matter of law, the facts satisfy the appropriate legal standard." Id.

Admissibility of HGN test

{¶ 14} Appellant challenges the admissibility of the HGN test administered by Trooper Disbennett. Specifically, appellant claims (1) Trooper Disbennett was trained on an earlier NHTSA manual and not the manual in effect at the time of the HGN test, (2) it was improper to conduct the HGN test while in a reclined hospital bed, (3) the HGN test was unreliable because hospital personnel had treated him with narcotics, namely, fentanyl and dilaudid, and (4) he was suffering from a head injury when the HGN test was administered.

{¶ 15} In order for field sobriety testing evidence to be admissible, the state is not required to show strict compliance with testing standards, but must instead demonstrate that the officer substantially complied with NHTSA standards. R.C. 4511.19(D)(4)(b) ; State v. Selvage , 12th Dist. Clermont No. CA2011-08-058, 2012-Ohio-2149, 2012 WL 1682040, ¶ 12. "A determination of whether the facts satisfy the substantial compliance standard is made on a case-by-case basis." State v. Fink , 12th Dist. Warren Nos. CA2008–10–118 and CA2008-10-119, 2009-Ohio-3538, 2009 WL 2140156, ¶ 26.

{¶ 16} As stated by the Ohio Supreme Court, "HGN test results are admissible in Ohio without expert testimony so long as the proper foundation has been shown both as to the administering officer's training and ability to administer the test and as to the actual technique used by the officer in administering the test." State v. Boczar , 113 Ohio St.3d 148, 2007-Ohio-1251, 863 N.E.2d 155, ¶ 28. In this case, Trooper Disbennett testified about his training and experience in the administration of HGN testing and the technique used in the administration of the test. Immediately following the blood draw, Trooper Disbennett spoke with appellant in his hospital room. Trooper Disbennett explained that he asked appellant if he had suffered a head injury during the accident and appellant denied that he had experienced any such injury. Trooper Disbennet was aware that appellant possibly suffered a lacerated liver, and therefore would need to remain in his hospital bed, but was otherwise unaware of any symptoms of head trauma. Because of appellant's possible lacerated liver, Trooper Disbennett performed the HGN test while appellant was reclined in his hospital bed. Trooper Disbennett concluded that appellant displayed four of six clues of intoxication: lack of smooth pursuit and distinctive nystagmus at maximum deviation in both eyes.

{¶ 17} As to appellant's first argument, it is irrelevant that Trooper Disbennett was trained on an earlier manual, as the test is whether he substantially complied with NHTSA standards.

{¶ 18} As to appellant's second argument, the NHTSA standards do not prohibit the administration of the HGN test while the subject is reclined, or even if the subject was lying down. Accordingly, the fact that appellant was in a reclined position does not violate NHTSA or otherwise indicate that the HGN test was not conducted in substantial compliance.

{¶ 19} Appellant's next claim is in response to the medication that he was given prior to Trooper Disbennett's arrival, namely the drugs dilaudid and fentanyl. Appellant claims that Trooper Disbennett incorrectly testified that those drugs have no effect on the results of an HGN test. In support, appellant cites to secondary sources to support his claim that those drugs affect horizontal nystagmus. However, contrary to appellant's claims, the NHTSA manual states that narcotic analgesics, such as fentanyl and dilaudid, do not affect horizontal nystagmus. Therefore, while appellant may argue otherwise, his claim must fail. Consistent with NHSTA standards, the consumption of fentanyl and dilaudid did not affect the results of the HGN test.

{¶ 20} Finally, appellant argues that he was suffering from a serious head injury at the time that Trooper Disbennett...