State v. Persinger, 9–15–10.

60 N.E.3d 831

STATE of Ohio, Plaintiff–Appellee,

v.Robert Allan PERSINGER, Jr., Defendant–Appellant.

No. 9–15–10.

Court of Appeals of Ohio, Third District, Marion County.

March 7, 2016.

Robert C. Nemo, Marion, for Appellant.

David J. Stamolis for Appellee.

OPINION

WILLAMOWSKI, J.

{¶ 1} Defendant-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

{¶ 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 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 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 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.)

{¶ 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 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., 2014-Ohio-4873, 23 N.E.3d 218, and State v. Little, 3d Dist., 2014-Ohio-4871, 23 N.E.3d 237.

{¶ 5} The trial court conducted a hearing on the motion to suppress and 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.)

{¶ 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 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.

{¶ 7} 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

{¶ 8} 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 influence 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

{¶ 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, 735 N.E.2d 953 ; Burnside at ¶ 8. But we must independently determine, without deference to the trial court, whether these factual findings satisfy the legal standard as a matter of law, because “the application of the law to the trial court's findings of fact is subject to a de novo standard of review.” Norman at 52, 735 N.E.2d 953 ; Burnside at ¶ 8.

{¶ 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 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.

{¶ 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 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 alcohol 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.

{¶ 13} We acknowledge that in 2005, the Ohio Supreme Court held that blood test results, which were taken and...