author: Harsha, J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. John F. WRIGHT, Defendant-Appellant.
    No. 16CA24
    Court of Appeals of Ohio, Fourth District, Lawrence County.
    RELEASED: November 22, 2017
    J. Roger Smith, II, Huntington, West Virginia for appellant.
    Brigham M. Anderson, Lawrence County Prosecuting Attorney, Robert C. Anderson, Assistant Prosecuting Attorney, Ironton, Ohio for appellee.
    DECISION AND JUDGMENT ENTRY
   Harsha, J.

{¶ 1} After a jury convicted John F. Wright of three drug offenses, the trial court sentenced him to prison. Wright raises six assignments of error but we address only the fifth one because that review renders the remaining errors moot.

{¶ 2} Wright asserts because the pills introduced into evidence were not properly tested, the trial court committed reversible error in denying his motion to exclude them as evidence. We agree. The state's expert witness, a forensic scientist, testified that he did not test a sample size large enough to determine the content of the remaining pills with a reasonable degree of scientific certainty. Thus, the remaining pills should have been excluded from evidence. We reverse the trial court's judgment and remand for a new trial.

I. FACTS

{¶ 3} In 2015, a Lawrence County Grand Jury indicted Wright on one count of complicity to aggravated trafficking in drugs in violation of R.C. 2923.03(A)(2) and R.C. 2925.03(A)(1)(C)(1)(d), a second degree felony; one count of trafficking in drugs in violation of R.C. 2925.03(A)(2)(C)(1)(c), a third degree felony; and one count of possession of drugs in violation of R.C. 2925.11(A)(C)(1)(b), a third degree felony.

{¶ 4} At trial the state presented three law enforcement officers who testified about a controlled drug buy where a confidential informant used marked money to purchase oxycodone, a schedule II controlled substance, from Wright. The confidential informant and a woman who assisted Wright during the drug buy also testified about their roles.

{¶ 5} Laura Miller, a grocery store pharmacist, testified that Wright had a prescription for oxycodone and that the prescription drug bottle recovered from Wright after the controlled drug buy was one that she filled. Miller testified that the oxycodone tablets she had provided were 15 mg, green, round, and marked "K8". Miller testified that if the pills in the prescription bottle were marked "A214" instead of "K8", then they would not be the oxycodone pills she used to fill Wright's prescription.

{¶ 6} Stanton Wheasler, a forensic scientist with the Ohio Bureau of Criminal Investigation ("BCI"), testified that he tested the pills and prepared a written report. Wheasler indicated that the evidence consisted of a prescription bottle of 98 pills marked "A214" and a plastic bag containing 95 pills with five different markings: (1) 63 pills marked "M30"; (2) 21 pills marked "A215"; (3) 1 pill marked "224"; (4) 7 pills marked "K8"; (5) 3 pills marked "A214". Wheasler tested six pills in total, one pill from each differently marked group. Wheasler testified that for marked pharmaceuticals, his standard protocol is to test one pill per marked group. Each of the six pills he tested contained oxycodone. Wright testified that after testing one of each marked group of the 95 pills and finding it contained oxycodone, it would be reasonable to infer that the remaining pills in the group also contained oxycodone. However, Wheasler did not testify that he personally made this inference or that he made this inference with a reasonable degree of scientific certainty:

Q. And that's the total of ninety five. And is it your opinion based upon testing one of each that these ninety five pills contained oxycodone?
A. It's my opinion that the five I tested contained oxycodone.
Q. Go ahead.
A. It would be a reasonable inference that um, the remaining ones did as well.

{¶ 7} Wheasler testified that when he tested one of the 98 pills marked "A214" that were in the prescription drug bottle, it contained oxycodone. The state asked him about the inference that could be drawn from that test:

A. That is [sic] was 98 round green tablets marked A214. Which had a reference strength of 15 milligrams of which I tested one. Weighing .10 gram plus or minus 1.04 gram. It was found to contain oxycodone.
Q. And can that lead you to by inference by a reasonable degree of scientific certainty that, all ninety eight were oxycodone's [sic]?
A. That would be in the inference that could be made, yes.

{¶ 8} Although Wheasler stated that an inference about the remaining 97 pills could be made, he clarified that he did not make that inference because he did not test a sufficient number of pills to be able to make the inference with a reasonable degree of scientific certainty.

{¶ 9} In response to questioning from the trial judge, Wheasler testified that he has a reasonable degree of scientific certainty that the six pills he tested were oxycodone, and that it would be unlikely that the remaining pills were not oxycodone. Wheasler testified that he would need to sample a larger population of the pills to make an inference with a reasonable degree of scientific certainty about the remaining untested pills:

A. * * * in order for me to make an inference about a population, the rule in my laboratory is that I have to test a um, statistically back sampling plan of that population, which means I have to test, um, for example in the case of, um, sixty three tablets I'd probably be testing somewhere around twenty of them. * * * and that would be for anything. That would be for demos of heroin, that would be for bags of marijuana. That would be the number I'd have to test to be allowed to infer um, about the entire population. Um, here all I can say is that the one's I tested had oxycodone in them. And they were stored with tablets that were visually identical to me.
COURT: To a degree of scientific certainty?
A. I don't know if I am allowed to have scientific certainty about simply visual examination.
COURT: Alright, that's not something you express an opinion in that form?
A. Yes.

{¶ 10} On re-direct and re-cross, Wheasler explained that the accrediting body imposed requirements on inference populations. When he tests a single pill from a population of marked pills, he cannot use the reasonable degree of scientific certainty standard on the entire population of pills. In order to give an opinion within a reasonable degree of scientific certainty, he would have to test a larger sample to establish a confidence interval. Wheasler testified that for the 63 pills marked "M30", he would need to test approximately 20 pills using "the hypergeometric function" to establish a 95% confidence level that at least 90 percent of the pills in the sample are oxycodone.

{¶ 11} Wheasler's lab report states, "Hypergeometric sampling may be specified in the findings above. The application of hypergeometric sampling establishes a ninety-five percent (95) confidence level that at least ninety percent (90) of the units in the sample are as reported." Wheasler's report was consistent with Wheasler's testimony that only six pills were tested and found to contain oxycodone, three pills with a referenced strength of 30 mg and three pills with a referenced strength of 15 mg. Thus, Wheasler's report identified a total 135 mg of oxycodone. And Wheasler's testimony was that his sample population was insufficient for him to draw inferences about the substance of the remaining pills with a reasonable degree of scientific certainty.

{¶ 12} Wheasler testified that he has had experience with counterfeit marked pills and cannot tell with one-hundred-percent certainty which pills are counterfeit. Wheasler testified that by testing six pills, he did not test enough pills to find enough oxycodone in them to exceed the bulk amount of five times the maximum does of oxycodone :

A. That is correct, I have not with actual analysis positively identified oxycodone in tablets over five times the bulk amount.

{¶ 13} Wheasler testified that it is standard lab protocol to test one of each differently marked group of pills. He visually inspects the remaining untested pills and will test additional pills if they appear to be counterfeit. Counterfeit pills often have a different appearance and may be crumbly, sloppy, different coloring, and varying thicknesses. Wheasler testified that none of the pills he tested here had counterfeit characteristics and they appeared to be legitimate pharmaceuticals. However, because he did not test an adequate sample of the remaining pills, he could not say within a reasonable degree of scientific certainty that they were oxycodone:

Q. Right, is it right to say within a reasonable degree of certainty to say the six you tested were oxycodone, correct?
A. Correct.
Q. And the remainder you can't say within a reasonable degree of scientific certainty, correct?
A. The [sic] is the way crediting body would phrase that, yes.

{¶ 14} Following the second day of trial Wright moved to exclude the pills from evidence based on Wheasler's inability to testify about the content of the remaining pills with a reasonable degree of scientific certainty. Wright argued that the particular charge requires the state to prove that Wright possessed or trafficked oxycodone in five but less than fifty times bulk. Wright argued that the state's evidence established that the six pills tested contained at most 180 mg (6 times 30 mg) of oxycodone-only twice the therapeutic amount of 90 mg whereas bulk is five times the therapeutic amount. Wright asked the court to exclude the evidence or to dismiss the case.

{¶ 15} At the close of the state's case Wright moved for a dismissal under Crim.R. 29 based on his motion to exclude the pills from evidence. Wright argued that Crim.R. 29 provides for a dismissal of the charges if the state has not met the prima facie elements of the case. Wright argued that based on Wheasler's testimony, the state provided evidence that six pills tested positive for 30 mg of oxycodone for a total of 180 mg of oxycodone. Wright argued whether the state has established a prima facie case is not a matter for the jury to evaluate. The trial court addressed Wright's motion to exclude evidence and motion for acquittal together and denied them on the ground that they were questions for the jury to determine.

{¶ 16} The jury found Wright guilty on all three counts (and a forfeiture specification). The trial court sentenced Wright to a combined ten-year prison term.

II. ASSIGNMENTS OF ERROR

{¶ 17} Wright assigns the following errors for our review:

I. THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION AND OTHERWISE COMMITTED REVERSIBLE ERROR IN REFUSING TO GRANT APPELLANT'S REQUEST, HAVING BEEN PREVIOUSLY DECLARED BY THE COURT TO BE INDIGENT, THAT THE STATE OF OHIO PAY FOR A VOICE RECOGNITION EXPERT TO ANALYZE THE VOICES ON ONE OF THE CELL PHONES RECOVERED BY LAW ENFORCEMENT AND TESTIFY AT TRIAL ON BEHALF OF APPELLANT, AS THE COURT ALLOWED THE AUDIO FROM ONE OF THE CELL PHONES TO BE ENTERED INTO EVIDENCE AT TRIAL AND USED BY THE STATE AGAINST THE APPELLANT, WHICH EXPERT TESTIMONY SOUGHT BY APPELLANT WOULD HAVE REVEALED THAT THE APPELLANT'S VOICE IS NOT ON EITHER OF THE RECOVERED CELL PHONES ENGAGING IN CRIMINAL ACTIVITY.
II. TRIAL COUNSELS' FAILURE TO CALL EXPERT WITNESSES, REBUTTAL WITNESSES, FACT WITNESSES, CHARACTER WITNESSES OR ANY WITNESSES AT ALL IN APPELLANT'S DEFENSE AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL TO SUCH EXTENT THAT THE APPELLANT WAS DEPRIVED OF A FAIR TRIAL AND, BUT FOR THE INEFFECTIVE ASSISTANCE OF COUNSEL, THE RESULT OF THE PROCEEDING BELOW WOULD HAVE BEEN DIFFERENT.
III. TRIAL COUNSELS' FAILURE TO FILE A FORMAL MOTION OR EVEN ORALLY MOVE THAT THE JUDGE RECUSE HIMSELF FROM PRESIDING OVER APPELLANT'S TRIAL, AND COUNSELS' FAILURE TO MOVE THAT THE LAWRENCE COUNTY, OHIO PROSECUTOR'S OFFICE RECUSE ITSELF OR BE DISQUALIFIED FROM TRYING THE CASE AGAINST THE APPELLANT, AMOUNTED TO REVERSIBLE ERROR AND IS OTHERWISE INEFFECTIVE ASSISTANCE OF COUNSEL TO SUCH EXTENT THAT THE APPELLANT WAS DEPRIVED OF A FAIR TRIAL CONSIDERING JUDGE W. CHARLES COOPER AND W. MACK
ANDERSON, ESQ., ROBERT C. ANDERSON, ESQ. AND C. MICHAEL GLEICHAUF, ESQ., ALL OF WHOM ARE EMPLOYED AS ASSISTANT PROSECUTORS IN THE LAWRENCE COUNTY PROSECUTOR'S OFFICE, HAVE EACH PREVIOUSLY REPRESENTED THE APPELLANT IN JUVENILE AND/OR CRIMINAL CASES IN LAWRENCE COUNTY, OHIO THUS RAISING A CONFLICT OF INTEREST, OR AT LEAST A POTENTIAL CONFLICT OF INTEREST, TO SUCH EXTENT THAT VENUE SHOULD HAVE BEEN TRANSFERRED OR A VISITING JUDGE AND A SPECIAL PROSECUTOR ASSIGNED TO TRY APPELLANT'S CASE IN LAWRENCE COUNTY.
IV. THE SAME PILLS SEIZED AS EVIDENCE AND INTRODUCED BY THE STATE AT TRIAL ON EACH COUNT AGAINST THE APPELLANT SHOULD HAVE BEEN CONSIDERED BY THE LOWER COURT AS ALLIED OFFENSES AND, BY ALLOWING THE STATE TO USE THE SAME PILLS ON ALL THREE (3) COUNTS UNDER THE INDICTMENT, THE TRIAL COURT ABUSED ITS DISCRETION AND IS OTHERWISE REVERSIBLE ERROR.
V. THE PILLS SEIZED AS EVIDENCE AND INTRODUCED BY THE STATE AT TRIAL WERE NOT PROPERLY TESTED BY THE OHIO BUREAU OF CRIMINAL INVESTIGATION GIVEN THE NUMBER OF PILLS SEIZED WAS IN EXCESS OF NINETY (90) PILLS WHILE THE LIMITED NUMBER OF PILLS ACTUALLY TESTED BY THE STATE WAS ONLY SIX (6) PILLS, WHICH IS REVERSIBLE ERROR AS THE PERCENTAGE OF PILLS TESTED WAS LESS THAN THAT REQUIRED TO OBTAIN A STATISTICAL CONFIDENCE INTERVAL WITHIN A REASONABLE DEGREE OF SCIENTIFIC CERTAINTY, AND IS OTHERWISE REVERSIBLE ERROR IN LIGHT OF THE OHIO SUPREME COURT'S RULING LAST MONTH IN STATE V. GONZALES, 150 OHIO ST.3D 261, 2016-OHIO-8319, 81 N.E.3D 405.
VI. THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION AND OTHERWISE COMMITTED REVERSIBLE ERROR BY SENTENCING THE APPELLANT TO THE MAXIMUM PRISON TERM OF EIGHT (8) YEARS ON HIS F-2 CONVICTION AS THE THREE (3) COUNTS UNDER THE INDICTMENT WERE ALLIED OFFENSES AND THE STATE USED THE SAME PILLS ON EACH COUNT TO CONVICT THE APPELLANT IN DIRECT CONFLICT WITH THE OHIO FOURTH DISTRICT COURT OF APPEALS RULING IN STATE VS. SMITH, 2016-OHIO-5062, 70 N.E.3D 150 (OHIO APP. 2016).

III. LAW AND ANALYSIS

A. Motion to Exclude Evidence

{¶ 18} In his fifth assignment of error Wright argues that because the pills were not properly tested, the trial court erred when it failed to exclude them from evidence. Wright points out that Wheasler testified that he could not identify the statutory threshold of oxycodone with a reasonable degree of scientific certainty. Wright was unable to make an inference about the contents of the remaining untested pills with a reasonable degree of scientific certainty because he did not test a sufficient sample size. Therefore, Wright contends that the untested pills were improperly admitted and, with only six oxycodone pills, the state could not prove that the weight of the actual pills meets the statutory threshold for the charges against him. He argues the trial court committed reversible error when it denied his motion to exclude the pill evidence.

{¶ 19} At trial Wright filed a written motion to exclude evidence of the remaining pills on the morning after Wheasler testified. The parties agreed to argue the motion later in the day. At the close of the state's evidence Wright argued that the charges against him should be dismissed because the remaining untested pills should be excluded.

{¶ 20} Wright contended he did not raise an evidentiary objection sooner because he was not aware until the second day of trial that the state's forensic scientist, Stanton Wheasler, would testify that he did not test a sufficient sampling of pills to be able to identify the content of the remaining pills within a reasonable degree of scientific certainty. Wright argued that Wheasler also testified that there are counterfeit pills on the market and some are difficult to detect. Wright argued that the charges required the state to prove that the drug involved equals or exceeds five times the bulk amount but is less than fifty times the bulk amount. Bulk amount is five times the therapeutic dosage of 90 mg, or 450 mg. Wright argued that state had to prove the drug equals or exceeds five times 450 mg, which is 2250 mg, but less than fifty times the bulk amount; thus the state needed an analysis that proved within a reasonable degree of scientific certainty that there was at least 2250 mg of oxycodone. Wright argued that the state only proved that six pills contained 30 mg of oxycodone, for a total of 180 mg.

{¶ 21} The state responded that Wheasler testified that he follows protocol, works in an accredited lab and no one had complained about his work previously. It argued that this question should be a matter for the jury.

{¶ 22} In response Wright contended that he was not disputing that Wheasler worked in an accredited laboratory nor was he disputing that Wheasler followed the lab protocol when testing the six pills-the state had proven there were at most 180 mg of oxycodone. Wright argued that Wheasler acknowledged that the accreditation process required a testing sample size of at least twenty pills when the quantity of pills was this large and that Wheasler testified that he had not tested enough pills to identify the content of the remaining pills with a reasonable degree of scientific certainty.

{¶ 23} The trial court addressed both the Crim.R. 29 motion for acquittal and the motion to exclude evidence together and found that, setting aside the question of Wheasler's pill sampling method, the remainder of the evidence was sufficient to withstand a Rule 29 motion. Addressing the pill sampling method, the trial court found that Wheasler submitted both a written report and testified, the trial court did not have any evidence about statistical sampling, and therefore the evidence would go to the jury:

* * * I can't consider um, you know what might be in statistical sampling's and, and what percentages to the degree of the universe are necessary. I feel like it is a, at this point, once his certification, his testimony and his opinion is in, in written form first and then orally then it's a jury question and I'll overrule both motions at this time.

1. Standard of Review

{¶ 24} "Decisions involving the admissibility of evidence are reviewed under an abuse-of-discretion standard of review." Estate of Johnson v. Randall Smith, Inc. , 135 Ohio St.3d 440, 2013-Ohio-1507, 989 N.E.2d 35, ¶ 22, citing State v. Hancock , 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032 ; State v. Morris , 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 19 ("It is well established that a trial court's decision to admit evidence is an evidentiary determination within the broad discretion of the trial court and subject to review on an abuse-of-discretion standard."). Thus, an appellate court will not disturb a trial court's ruling regarding the admissibility of evidence absent a clear showing of an abuse of discretion with attendant material prejudice to defendant. State v. Green , 184 Ohio App.3d 406, 2009-Ohio-5199, 921 N.E.2d 276, ¶ 14 (4th Dist.).

{¶ 25} When, however, an appellant alleges that a trial court's evidentiary ruling was " 'based on an erroneous standard or a misconstruction of the law,' " an appellate court reviews the trial court's evidentiary ruling using a de novo standard of review. Wray v. Wessell , 4th Dist. Scioto Nos. 15CA3724 and 15CA3725, 2016-Ohio-8584, 2016 WL 7912885, ¶ 13, citing Morris at ¶ 16, quoting Castlebrook, Ltd. v. Dayton Properties Ltd. Partnership, 78 Ohio App.3d 340, 346, 604 N.E.2d 808 (2d Dist.1992) ; accord Estate of Johnson at ¶ 22 (reviewing admissibility of evidence by first examining whether, as a matter of law, statute applied, and then once threshold question concerning applicability of statute resolved, reviewing whether trial court abused its discretion); Med. Mut. of Ohio v. Schlotterer , 122 Ohio St.3d 181, 2009-Ohio-2496, 909 N.E.2d 1237, ¶ 13 (stating that "[w]hen a court's judgment is based on an erroneous interpretation of the law, an abuse-of-discretion standard is not appropriate"); Painter and Pollis, Ohio Appellate Practice , Appendix G (2015) (stating that although trial court decisions involving the admission of evidence are generally reviewed as a discretionary matter, but they are subject to de novo review if a clear legal rule applies. "For example, a trial court does not have discretion to admit hearsay into evidence").

2. Legal Analysis

{¶ 26} Wright's motion to exclude the remaining pills from evidence was based on Wheasler's testimony that he could not determine the substance of the pills with a reasonable degree of certainty because he failed to test a sufficient sample size. The trial court's rationale for denying the motion was that Wheasler had already testified and submitted his report; therefore, the remaining pills would not be excluded and it was a question for the jury to decide.

{¶ 27} The trial court's terse rationale could imply that Wright's motion was untimely. If so, it misapplies the standard for the timing of such objections. Evidentiary rulings become "ripe for consideration during the course of the trial" "when the issue is actually reached and the context is developed." State v. Grubb , 28 Ohio St.3d 199, 202-203, 503 N.E.2d 142 (1986). Because the trial court's evidentiary ruling was based on an erroneous standard or a misconstruction of the law we apply a de novo standard of review.

{¶ 28} Wright argued that he could not have made the motion any sooner because the issue did not arise until Wheasler testified. We find Wright's motion timely under Evid.R. 103. Wright sought the exclusion of the remaining pills as evidence; he did not seek to strike Wheasler's report or testimony. To the contrary, Wright relied upon Wheasler's testimony to support his motion to exclude the pills as evidence. The state's forensic scientist could not identify the substance of the remaining pills with a reasonable degree of scientific certainty and they should have been excluded because they lacked the necessary foundation.

{¶ 29} We find no legal basis for the trial court's statement that it could not consider the testimony about statistical sampling and whether the expert's opinion was based upon a reasonable degree of scientific certainty. The trial court's decision not to exclude the remaining pills from evidence was contrary to law, which requires a proper scientific foundation. See Evid.R. 702 ; Valentine v. Conrad , 110 Ohio St.3d 42, 2006-Ohio-3561, 850 N.E.2d 683, ¶ 17-18 ("because even a qualified expert is capable of rendering scientifically unreliable testimony, it is imperative for a trial court, as gatekeeper, to examine the principles and methodology that underlie an expert's opinion"). Thus, the remaining pills should have been excluded.

{¶ 30} The state focuses on Wheasler's credentials and his testimony that he followed standard lab protocol to argue that "there was absolutely no basis for the trial court to exclude the testimony or laboratory report of Wheasler." The state argues that it was up to the jury to determine whether the untested pills contained oxycodone and the jury was free to accept or reject Wheasler's testimony. The state contends that Wright is asking us to reject the established protocol of the BCI, which would result in the overturning of countless convictions.

{¶ 31} However, our conclusion that the remaining pills should have been excluded is consistent with decisions in this and other appellate districts. "Hypergeometric" or "random sampling method" is an accepted method of testing. State v. Carroll , 2016-Ohio-374, 47 N.E.3d 198, ¶ 32 (4th Dist.). Evidence tested using this method "is sufficient as a matter of law to support a determination that the entire substance recovered together and similarly packaged is the same controlled substance as that tested." Id. citing State v. Gartrell , 2014-Ohio-5203, 24 N.E.3d 680, ¶ 96 (3d Dist.) (Belfance, J. concurring), and cases cited therein; see also State v. Edwards , 10th Dist. Franklin No. 12AP-992, 2013-Ohio-4342, 2013 WL 5450907, ¶ 40 ; State v. Dixon , 9th Dist. Medina Nos. 11CA0065, 2012-Ohio-4428, 2012 WL 4472094, ¶ 22-23. We are not rejecting the hypergeometric or random sampling method, nor are we requiring that every pill be tested, we are simply holding that where the expert witness testifies that he did not use the hypergeometric or random sampling method and therefore he cannot identify the content of the remaining pill population within a reasonable degree of scientific certainty, the remaining pills should be excluded.

{¶ 32} In Carroll , we found that although the Supreme Court of Ohio has not directly addressed this issue, other courts have concluded that " 'random testing is permissible when the seized samples are sufficiently homogenous so that one may infer beyond a reasonable doubt that the untested samples contain the same substance as those that are conclusively tested.' " (Citation omitted.) Carroll at ¶ 32, citing State v. Garnett , 9th Dist. Medina No. 12CA0088-M, 2013-Ohio-4971, 2013 WL 6021467, ¶ 13 (Belfance, J. concurring), quoting People v. Jones , 174 Ill.2d 427, 429, 221 Ill.Dec. 192, 675 N.E.2d 99 (1996) and citing Annotation, Sufficiency of Random Sampling of Drug or Contraband to Establish Jurisdictional Amount Required for Conviction , 45 A.L.R.5th 1, Section 2[a] (1997) ("As a general rule, courts agree that random sampling of a homogenous substance is sufficient to establish the jurisdictional amount required by conviction * * *. The courts which embrace this view, however, commonly qualify it as a rule of reason and practicality which is not without limitations.").

{¶ 33} In Garnett , the concurring opinion noted that the federal courts have accepted the reliability of the hypergeometric or random sampling method:

In discussing the reliability of using random sampling, the Sixth Circuit has noted that
"[C]ourts have endorsed statistically based drug-quantity extrapolations predicated on random test samples in circumstances where the government was able to demonstrate an 'adequate basis in fact for the extrapolation and that the quantity was determined in a manner consistent with the accepted standards of [reasonable] reliability.' "
United States v. Jackson , 470 F.3d 299, 310-311 (6th Cir.2006), quoting United States v. Scalia , 993 F.2d 984, 989 (1st Cir.1993), quoting United States v. McCutchen, 992 F.2d 22, 25-26 (3d Cir.1993).
Sufficient indicia of reliability may be found where the evidence demonstrates that
"(1) a proper 'random' selection procedure was employed; (2) the chemical testing method conformed with an accepted methodology; (3) the tested and untested samples were sufficiently similar in physical appearance; and (4) the tested and untested samples were contemporaneously seized at the search scene."
Jackson at 311, quoting Scalia at 989. Thus, critical issues with respect to random sampling pertain to the appropriateness of the random selection procedure and the methodology employed in testing for the particular substance.

Id. at ¶ 14 (Belfance, J. concurring).

{¶ 34} Here, Wheasler testified that he tested a total of only six of the pills. Of the 63 pills marked "M30" he tested only one pill. He admitted that to be able to determine the substance of the remaining 62 pills with a reasonable decree of scientific certainty he would "probably be testing somewhere around twenty of them."

{¶ 35} State v. Dixon, supra , has a similar factual scenario involving 106 pills of different colors and markings that allegedly contained N-Benzylpiperazine ("BZP"). Like Wheasler, the forensic scientist divided the pills up into groups of the same color and markings. However, unlike Wheasler, the forensic scientist in Dixon used the established and approved random sampling method to test larger sample sizes in each of her groupings. Notably the forensic scientist also had a grouping of 63 pills from which she tested 19 pills, the "somewhere around twenty" that Wheasler testified would need to be tested from his grouping of 63 pills to reach a reasonable degree of scientific certainty of the substance of the group. Dixon , 2012-Ohio-4428, 2012 WL 4472094, at ¶ 22.

{¶ 36} Coincidentally Stanton Wheasler was also the state's expert witness in Carroll, supra, and testified about the hypergeometric or random sampling method. There he indicated that his testing conformed with the appropriate sample sizes (he tested 21 of the 56 bags), and he was able to conclude within a reasonable degree of scientific certainty that the remaining untested sample was cocaine:

Therefore, Wheasler's uncontroverted testimony as a stipulated expert witness that he could conclude within a reasonable degree of scientific certainty that the 56 plastic baggies in the pill bottle contained cocaine was sufficient to support the jury verdict. That is, his conclusion based on hypergeometric sampling that he had a 95% confidence level that at least 90% of the units in the 56-unit sample were cocaine was sufficient to establish that the 21.31 grams of off-white substance in the baggies was cocaine.

Carroll , 2016-Ohio-374, 47 N.E.3d 198, at ¶ 34.

{¶ 37} Here Wheasler's uncontroverted testimony was that he did not use a hypergeometric or random sampling method to test the pills and therefore he was not able to determine the substance of the remaining pills within a reasonable degree of scientific certainty. See State v. Boyd , 7th Dist. Belmont No. 15BE0032, 2016-Ohio-8560, 2016 WL 7912887, ¶ 37-38 (state's expert witness who testifies concerning the hypergeometric or random sampling method must give opinion "within a reasonable degree of scientific certainty"); State v. Gartrell , 2014-Ohio-5203, 24 N.E.3d 680, ¶ 94-96 (3d Dist.) (state's expert who testifies using the hypergeometric method and gives an opinion within a reasonable degree of scientific certainty does not need to test each individual unit of the drug). The trial court's evidentiary ruling was erroneous as a matter of law. The trial court should have exercised its gate-keeping function under Evid.R. 702 and excluded from evidence all but the six pills Wheasler identified as oxycodone.

{¶ 38} We sustain Wright's fifth assignment of error.

{¶ 39} Wright did not challenge the sufficiency of the evidence or the trial court's ruling on his motion for an acquittal. Therefore he waived any argument that the sum of the evidence offered by the state-whether erroneously admitted or not-was insufficient to sustain a guilty verdict. As a result, the Double Jeopardy Clause of the United States and Ohio Constitutions does not forbid his retrial. See State v. Brewer , 121 Ohio St.3d 202, 2009-Ohio-593, 903 N.E.2d 284, ¶ 20 (a "trial error" such as the erroneous admission of evidence "does not implicate the type of governmental oppression that the Double Jeopardy Clause is intended to prevent"); Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988) (the Double Jeopardy Clause does not preclude the retrial of a defendant who succeeds in getting his conviction set aside for such 'trial errors' as the incorrect receipt or rejection of evidence); see also State v. Kareski, 137 Ohio St.3d 92, 2013-Ohio-4008, 998 N.E.2d 410 (discussing Brewer , Lockhart and State v. Lovejoy, 79 Ohio St.3d 440, 683 N.E.2d 1112 (1997) ). We reverse Wright's conviction and remand this matter to the trial court for a new trial.

{¶ 40} Wright's remaining assignments of error are moot by virtue of our ruling on Wright's fifth assignment or error; and therefore we do not address them. See App.R. 12(A)(1)(c).

IV. CONCLUSION

{¶ 41} Because the state's expert witness could not identify the substance of the remaining pills with a reasonable degree of scientific certainty, the trial court should have excluded them from evidence. The trial court erred in denying Wright's motion to exclude the evidence of the remaining pills. We reverse Wright's conviction and remand this matter for further proceedings consistent with this opinion.

JUDGMENT REVERSED AND CAUSE REMANDED.

Abele, J. & Hoover, J.: Concur in Judgment and Opinion.

      The charge in Count 1 required the state to prove the drug involved, oxycodone, "equals or exceeds five times the bulk amount but is less than fifty times the bulk amount." Counts 2 and 3 required a showing that drug "equals or exceeds the bulk amount but is less than five times the bulk amount."

      Wright does not raise as an assignment of error the trial court's denial of his Crim.R. 29 motion for acquittal, nor does he make challenges based on "insufficiency of the evidence."

      According to Wheasler's report, he tested 3 pills with a referenced strength of 30 mg and 3 pills with a referenced strength of 15 mg for a total quantity of 135 mg of oxycodone.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellant, v. Kennedi WOLTZ, Defendant-Appellee.
    No. 17CA20
    Court of Appeals of Ohio, Fourth District, Athens County.
    RELEASED: November 28, 2017
    Lisa A. Eliason, City Law Director, and Jessica L. Branner, Athens County Prosecutor, Athens, Ohio, for appellant.
    Jeremy J. Masters, Assistant State Public Defender, Columbus, Ohio, for appellee.
    DECISION AND JUDGMENT ENTRY
   Harsha, J.

{¶ 1} The state appeals the trial court's order that suppressed the test results from a urine specimen on the ground that the state failed at the suppression hearing to properly authenticate the urine sample. The arresting male trooper testified that a female dispatcher, who witnessed the accused, Kennedi Woltz, provide the urine sample, gave the sample to him immediately upon leaving the restroom. Woltz argued that the state is required to establish an unbroken chain of custody and that the female dispatcher's testimony was necessary to authenticate the sample.

{¶ 2} The law requires the state to show substantial compliance with the regulations governing the collection and handling of urine specimens, not strict compliance. The arresting trooper's testimony was sufficient to establish at least substantial compliance with the regulation requiring the witnessing of the urine collection. Moreover, objections challenging authenticity/chain of custody based on the Rules of Evidence are not within the scope of the suppression hearing, but are properly raised in a motion in limine and determined with finality at trial. Therefore, we sustain the state's sole assignment of error, reverse the trial court's decision, and remand for further proceedings.

I. FACTS

{¶ 3} Sergeant Nathan Dennis of the Ohio State Highway Patrol stopped Woltz for speeding. After noticing indicators of impairment and performing field sobriety tests, Dennis arrested Woltz for operating a vehicle under the influence in violation of R.C. 4511.19(A)(1)(a). Woltz voluntarily provided a urine sample at the patrol post. The urine toxicology report contained negative results for alcohol but positive results for marijuana, cocaine, and methylenedioxymethamphetamine (MDMA, also known as "ecstasy"). The state amended its charges to include violations of relevant subsections of R.C. 4511.19(A)(1)(j).

{¶ 4} Woltz filed a motion to suppress the urine test results on the grounds that the state failed to substantially comply with eight different provisions of the applicable regulations. Among her challenges, Woltz alleged that the "collection of the urine specimen was not witnessed to assure that the sample can be authenticated, as required by [Ohio Adm.Code] 3701-53-05(D). No discovery has been provided to the defense as to whether the urine was witnessed."

{¶ 5} At the suppression hearing the state presented testimony of Sergeant Dennis, who testified that he and Warren, a female dispatcher working at the patrol post, collected the urine sample from Woltz. Dennis testified that he took a vial collection kit, inspected it, broke the seal, and handed the vial to Warren. Dennis testified that Warren and Woltz immediately entered the restroom and closed the door. Dennis testified that he waited directly outside the door to ensure no one else entered during the collection. After a few minutes Warren and Woltz exited the restroom and Warren handed the urine sample to Dennis in the same vial he gave to her. Dennis testified that after Warren gave him the sample, he placed a sodium chloride capsule in it, placed the cap on it, sealed it with evidence tape across the top, placed it in a box, and mailed it to the lab. Dennis testified that he filled out a property control form on which he wrote that he and Warren collected the urine sample. Dennis testified that Warren accompanied Woltz into the restroom because Woltz is female and it is against the Ohio State Highway Patrol's policy to allow a male to witness a urine collection of a female.

{¶ 6} Because Warren did not testify, Woltz argued that the state did not prove substantial compliance with the regulation requiring that the collection of a urine specimen must be witnessed. The state responded that the rules of evidence do not apply to a suppression hearing and Dennis's testimony established that the collection was witnessed. The trial court concluded that Warren's testimony was necessary to establish the chain of custody to authenticate the sample, and granted Woltz's motion to suppress the urine test results. The trial court found:

The defense motion to suppress specifically challenged, among other items, compliance with OAC 3701-53-05(D), which requires that the collection of the urine specimen be witnessed to assure authentication. The State did not call the person who is believed to have witnessed the collection of the sample to provide testimony on the challenged element of OAC compliance. * * * The State did not present any evidence to rebut the challenge from the defendant that the urine specimen was not witnessed to assure authentication. The State has failed to meet its burden of proof and the defendant's motion to suppress is Granted with regards to the urine results.

{¶ 7} The state appealed as a matter of right. See R.C. 2945.67(A) ; Crim.R. 12(K).

II. ASSIGNMENT OF ERROR

{¶ 8} The state assigns the following error for our review:

THE TRIAL COURT ERRED WHEN IT GRANTED DEFENDANT'S MOTION TO SUPPRESS FINDING THAT THE STATE FAILED TO PROVIDE EVIDENCE THAT THE URINE SAMPLE WAS WITNESSED IN SUBSTANTIAL COMPLIANCE WITH OHIO ADM.CODE 3701-53-05(D).

III. LAW AND ANALYSIS

{¶ 9} Appellate review of a trial court's decision on a motion to suppress raises a mixed question of law and fact.

State v. Crocker , 2015-Ohio-2528, 38 N.E.3d 369, ¶ 60 (4th Dist.) citing State v. Hobbs , 133 Ohio St.3d 43, 2012-Ohio-3886, 975 N.E.2d 965, ¶ 6. Because the trial court acts as the trier of fact in suppression hearings and is in the best position to resolve factual issues and evaluate the credibility of witnesses, we must accept the trial court's findings of fact if they are supported by competent, credible evidence. State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. Accepting these facts as true, we must then "independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard." Hobbs at ¶ 8, citing Burnside at ¶ 8. At a suppression hearing a trial court is not bound by the rules of evidence and can consider evidence not otherwise admissible at trial. State v. Boczar , 113 Ohio St.3d 148, 2007-Ohio-1251, 863 N.E.2d 155, ¶ 17 ("the Rules of Evidence do not apply to suppression hearings"). Evidence at an OVI suppression hearing does not have to be authenticated in compliance with Evid.R. 901 and 902 because "judicial officials at suppression hearings 'may rely on hearsay and other evidence, even though that evidence would not be admissible at trial.' " State v. Edwards , 107 Ohio St.3d 169, 2005-Ohio-6180, 837 N.E.2d 752, ¶ 14.

{¶ 10} "A 'motion to suppress' is defined as a '[d]evice used to eliminate from the trial of a criminal case evidence which has been secured illegally, generally in violation of the Fourth Amendment (search and seizure), the Fifth Amendment (privilege against self incrimination), or the Sixth Amendment (right to assistance of counsel, right of confrontation etc.), of U.S. Constitution.' " State v. French , 72 Ohio St.3d 446, 449, 650 N.E.2d 887 (1995). "An important characteristic of a motion to suppress is that finality attaches so that the ruling of the court at the suppression hearing prevails at trial and is, therefore, automatically appealable by the state." Id. A motion to suppress is the proper pretrial procedure for challenging the state's substantial compliance with regulations concerning the collection and handling of blood and urine specimens because noncompliance with these regulations means that the corresponding breathalyzer, blood or urine test results were "illegally obtained." Edwards at ¶ 11 ; French at 450, 650 N.E.2d 887 (specifically discussing breathalyzer results). Challenges to the state's compliance with statutory and health department regulations must be made in a pretrial motion to suppress or such challenges are considered waived. Edwards at ¶ 11 ; French at 451, 650 N.E.2d 887.

{¶ 11} Although a motion to suppress is used to raise regulatory compliance challenges, a motion in limine is the proper pretrial procedure for determining whether the test results are admissible under the Rules of Evidence. French at 449, 650 N.E.2d 887 ("a ruling on a motion in limine reflects the court's anticipated treatment of an evidentiary issue at trial and, as such, is a tentative, interlocutory, precautionary ruling."); State v. Edwards, 107 Ohio St.3d 169, 2005-Ohio-6180, 837 N.E.2d 752 at ¶ 17 ("A ruling on a motion in limine raising a challenge based on the Rules of Evidence differs from a ruling on a motion to suppress based on alleged failure to comply with the [Health Dept.] director's rules.").

{¶ 12} When a defendant challenges the blood or urine test results in a motion to suppress, the state must show substantial compliance with the relevant provisions of R.C. 4511.19 and Ohio Adm.Code 3701-53. State v. Mayl , 106 Ohio St.3d 207, 2005-Ohio-4629, 833 N.E.2d 1216, ¶ 42. Woltz challenged the state's compliance with the witnessing requirement in Ohio Adm.Code 3701-53-05(D), which provides, "(D) The collection of a urine specimen must be witnessed to assure that the sample can be authenticated. * * *." "Once the state has shown substantial compliance, the burden shifts to the defendant to demonstrate that he would be prejudiced by anything less than technical compliance." State v. Brown , 109 Ohio App.3d 629, 632, 672 N.E.2d 1050 (4th Dist. 1996).

{¶ 13} The state argues that Sergeant Dennis's testimony showed at least substantial compliance with the witnessing requirement under Ohio Adm.Code 3701-53-05(D) because he testified that he and dispatcher Warren witnessed the collection of the urine sample. The state contends that Warren's testimony is unnecessary at the suppression hearing because the Rules of Evidence do not apply. The state contends that Woltz's objection raises an evidentiary chain of custody challenge, not a regulatory compliance issue.

{¶ 14} Woltz agrees with the state's characterization of the legal issue: "[T]he State fairly summarized the issued before this Court as being, in essence, a chain of custody issue." Woltz argues that because the state failed to establish "the first link in its chain of custody," the trial court properly excluded the test results. However, Woltz's argument confuses objections based on regulatory compliance under Ohio Adm.Code 3701-53-05 with objections based on admissibility under the Rules of Evidence, specifically Evid.R. 901 (authenticity/chain of custody). Sergeant Dennis testified that he and Warren witnessed the collection and described the roles each had in the process. His testimony was sufficient to show that the collection was witnessed in substantial compliance with the regulation. Woltz did not present any evidence at the hearing that controverted the state's evidence.

{¶ 15} Granted Warren did not testify at the suppression hearing. But Woltz's objection to Warren's absence is an evidentiary objection challenging the chain of custody-an issue not properly raised in a motion to suppress, rather properly raised in a motion in limine. State v. Richards , 4th Dist. Athens No. 14CA1, 2015-Ohio-669, 2015 WL 782565, ¶ 54 (" 'Evidentiary objections challenging the competency, admissibility, relevancy, authenticity, and credibility of [an alcohol] test,' therefore, are not properly raised in a motion to suppress evidence."); State v. Posey , 4th Dist. Pickaway No. 07CA24, 2008-Ohio-6510, 2008 WL 5191849, ¶ 27 ("evidentiary objections that challenge the authenticity of BAC [blood alcohol concentration] results may still be raised at trial") citing Edwards at ¶ 19.

{¶ 16} "Chain of custody is an aspect of the authentication and identification mandate set forth in Evid.R. 901" and any "breaks in the chain of custody go not to the admissibility of the evidence, but to the weight afforded it." State v. Corder , 2012-Ohio-1995, 969 N.E.2d 787, ¶ 15 (4th Dist.). Woltz retained the right to make a chain of custody challenge at trial. " 'Evidentiary objections challenging the competency, admissibility, relevancy, authenticity and credibility of the chemical test results may still be raised' at trial." Edwards at ¶ 19. If the state fails to present Warren's testimony at trial, Woltz may make an evidentiary objection then. Id. (defendant retained the right to make an evidentiary challenge at trial as opposed to a substantive challenge to the state's compliance with the director's rules).

{¶ 17} Like the defendant the trial court also blurred the distinction between regulatory compliance and evidentiary requirements. Because Sergeant Dennis testified that Warren assisted him and witnessed the collection while he stood outside the door, the trial court determined that that Warren's testimony was needed to properly authenticate the urine sample. Ohio Adm.Code 3701-53-05 requires that the collection "be witnessed to assure that the sample can be authenticated." (Emphasis added.) Authentication is an evidentiary requirement under Evid.R. 901 properly determined at trial. The trial court erred in excluding the test results on the ground that Warren's testimony was needed to authenticate the urine specimen at the pretrial level. Edwards at ¶ 17.

{¶ 18} Instead, as the Supreme Court of Ohio discussed in Edwards supra , the trial court should have treated the chain of custody challenge as a motion in limine and made a tentative precautionary ruling about the need to have Warren's testimony at trial for authentication/chain of custody purposes. "A ruling on a motion in limine raising a challenge based on the Rules of Evidence differs from a ruling on a motion to suppress based on alleged failure to comply with the director's rules. Where a court, in its discretion, chooses to rule on a motion in limine, that ruling is 'tentative and precautionary in nature, reflecting the court's anticipatory treatment of an evidentiary issue at trial. In deciding such motions, the trial court is at liberty to change its ruling on the disputed evidence in its actual context at trial. Finality does not attach when the motion is granted.' " Id. quoting Defiance v. Kretz , 60 Ohio St.3d 1, 4, 573 N.E.2d 32 (1991). The Court in Edwards did not require the state to authenticate its evidence in compliance with Evid.R. 901 and 902 at the suppression hearing. Edwards at ¶ 14 and 15.

{¶ 19} The parties analyze two appellate cases extensively to support their arguments: (1) State v. Vermillion , 7th Dist. Belmont No. 98-VA-16, 1999 WL 436737 (June 24, 1999) and (2) State v. Gordon, 8th Dist. Cuyahoga No. 800079, 2002-Ohio-2140, 2002 WL 962755. The facts of Vermillion are almost identical to the facts here. The male officer who stood outside the door during the collection testified at the suppression hearing, but the female officer who went into the restroom and witnessed the urine collection of the female defendant did not. The only difference is that in Vermillion , the female defendant testified that she gave the urine sample to the female officer. Nevertheless, both cases have a missing link in the chain of custody-the female witnessing officer. The court held that the female officer's testimony was not needed to authenticate the urine sample-direct testimony and inference established the chain of custody such that it is reasonably certain that no alternation, substitution, or tampering of the sample occurred. Vermillion at *2.

{¶ 20} Vermillion addresses the evidentiary question concerning admissibility under Evid.R. 901 (authentication/chain of custody), but it would be premature for our court to render an opinion on the merits of that decision. Challenges to the chain of custody are evidentiary and properly determined by the trial court with finality at trial-not at the suppression hearing. At this stage of the proceeding we will not engage in speculation: The state may present Warren's testimony at trial and render the question moot.

{¶ 21} In Gordon , the witnessing officer stood on the other side of a hospital curtain while the defendant provided a urine sample. No one was on the same side of the curtain with the defendant. The court held that "substantial compliance with the regulation does not require the officer to watch the suspect while he urinates, as long as the sample is otherwise collected under circumstances that do not raise suspicions about the sample's authenticity." Gordon at ¶ 18-19. Gordon is legally distinguishable because the issue in Gordon was whether the collection was properly "witnessed," a regulatory requirement. Here the trial court held that the specimen was not properly "authenticated" by the witness Warren, which is an evidentiary issue. Gordon is factually distinguishable from our case because Sergeant Dennis testified that Warren was inside with Woltz to witness the collection. Woltz was not on the other side of the bathroom door alone, while Dennis stood outside.

{¶ 22} The state argues hypothetically that based on the holding in Gordon , Sergeant Dennis's presence outside the door while Woltz went alone into the restroom would be sufficient for him to be the witnessing officer and to authenticate the urine sample. This requires us to speculate about facts not presently before us on the issue of witnessing, and determine authentication questions not ripe for review.

IV. CONCLUSION

{¶ 23} A motion to suppress is the proper procedural device to challenge the state's substantial compliance with regulations governing the collection and handling of urine samples, but not to challenge admissibility based on evidentiary grounds such as authentication and chain of custody under Evid.R. 901. The state substantially complied with the requirement under Ohio Adm.Code 3701-53-05 that the collection of a urine sample be witnessed. The trial court erred in granting Woltz's motion to suppress the test results on the ground the state failed to properly authenticate the urine sample. We sustain the state's sole assignment of error and reverse the judgment of the trial court.

JUDGMENT REVERSED AND CAUSE REMANDED.

      We take no position on the merits of an evidentiary objection on that ground.


author: Hoover, P.J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Jason Timothy LINK, Defendant-Appellant.
    No. 17CA3602
    Court of Appeals of Ohio, Fourth District, Ross County.
    RELEASED May 2, 2018
    Jason Timothy Link, Chillicothe, Ohio, pro se Appellant.
    Sherri K. Rutherford, City of Chillicothe Law Director, and Carrie L. Charles, City of Chillicothe Assistant Law Director, Chillicothe, Ohio, for Appellee.
    DECISION AND JUDGMENT ENTRY
   Hoover, P.J.

{¶ 1} Defendant-appellant, Jason Timothy Link ("Link"), appeals from a judgment of conviction entered by the Chillicothe Municipal Court pursuant to a bench verdict finding Link guilty of disobeying the instructions of a traffic control device while driving a vehicle. For the reasons that follow, we reverse the judgment of the trial court.

I. Facts and Procedural History

{¶ 2} On May 12, 2017, Link was stopped for allegedly running a stop sign at the intersection of Polk Hollow Road and US-50 in Ross County, Ohio. Link was cited for disobeying the instructions of a traffic control device, i.e., a stop sign, while driving a vehicle, in violation of R.C. 4511.12. The roadway on which Link was operating his vehicle, Polk Hollow Road, was marked with a stop sign but did not have a marked "stop bar" or "crosswalk". The stop sign is set back from the intersection by approximately 28 feet.

{¶ 3} At a bench trial, Trooper Efaw with the Ohio State Highway Patrol and Link apparently provided conflicting testimony as to whether Link stopped at the stop sign. Because the full transcript was not ordered, the record on appeal does not contain a transcript of Efaw or Link's exact testimony. A dashcam video from Trooper Efaw's cruiser was also played for the trial court. The dashcam video was also not provided with the appellate record.

{¶ 4} At the conclusion of the bench trial the trial court found Link guilty, noting as follows :

COURT: Alright, we're back on the record in Case TRD1703962, the State against Jason Link. I've had a chance to review the video a few more times to try to see if it's any better indication of what it shows, and frankly I can't tell for sure much more than what I've already seen. It does appear that the stop sign is back a little ways from the intersection and I'll accept your measurement, Mr. Link, that it's 28 feet. Looks like to be about that far in the video. I don't see a cross walk or a stop bar anywhere marked on the roadway, and it does appear that your car is moving before the stop sign. If you stopped, you didn't stop right at the stop sign, but I can't tell more than a few feet before the stop sign what your car is doing from the video. So, and I can't tell how far the officer saw before the stop sign either, because I don't think she testified to that. She just said that she saw the car rolling up through the stop sign and making a turn, which it does. So I think it's possible that you stopped and I suspect you probably did because I don't think you'd lie to me about it. I won't say I've never heard a lie in the court room before. Alright, so the charge here is a charge of violating a traffic control device in violation of 4511.12, which seems like an odd charge to start with, but that section simply says, "no pedestrian, driver of a vehicle, operator of a streetcar or trackless trolley shall disobey the instruction of any traffic control device placed in accordance with this chapter unless at the time otherwise directed by a police officer." So I assume we're talking about a stop sign and then there is a section of the law that deals with stop signs, which is 4511.43 which says, "except when directed to proceed by a law enforcement officer, every driver of a vehicle or trackless trolley approaching a stop sign shall stop at a clearly marked stop line, but if none, before entering the cross walk on either side of the intersection or if none, at the point nearest the intersection roadway where the driver has a view of approaching traffic on the intersecting roadway before entering it. After having stopped, the driver shall yield the right of way to any vehicle in the intersection or approaching on another roadway so closely as to constitute an immediate hazard during the time the driver is moving across within the intersection or junction of roadways." Frankly, Mr. Link, you're probably in violation of that, technically in violation of that statute because, although the language is a little bit confusing, it says you must stop at the point nearest the intersecting roadway where you have a view of approaching traffic, which means I guess you would have to pull right up the edge and stop there before going. Clearly, you didn't do that. You stopped back prior to the stop sign and if you did that though, you didn't have a clear view of traffic. I'm not sure why the law would require you to stop again, but apparently that's the way the statute is written. So, I guess I have to find you guilty on the charge and I do. But given the situation, I'm not going to impose a fine and in fact, I'll even waive the court costs because I believe that you likely did stop, even though it was a ways, at least 30 feet back from the intersection.
* * *
MR. LINK: With all due respect, obviously you know the law much better than I do. If the law states that you have to have a clear sight line, Polk Hollow Road, is not a road that I travel all that frequently, but there's a very clear sight line at the stop sign to the left. You can see at least a quarter of a mile down the road. If there's no stop line, if there's no cross walk, I'm not sure how the new charge that you're charging me with comes into play[?]
COURT: Well, I guess you're going to quibble with me on that and that's fine. I'm not charging you with a new charge. I am interpreting the charge that you were charged with. You know, I'm interpreting it in the way that the statute is written with respect to stop signs because I find that the stop sign is a traffic control device and specifically, when you stop for a stop sign, you're required to stop at the stop bar, the cross walk, or if those aren't there, at a point nearest the intersection. You didn't. You stopped at least 30 feet before the intersection.
MR. LINK: So, what would the point nearest the intersection be?
COURT: Well, that's a good question. And it's not specified in the statute.
MR. LINK: And that's why I'm asking the questions I'm asking because I'm trying to understand why I'm being charged with something, Number 1 other than what I was charged with by the trooper, and Number 2 trying to understand why you're charging me with that when it's not clear and understandable even to yourself, as you've admitted, what the statute really says or doesn't say.
COURT: Well, I think if you had stopped within a few feet or 10 feet of the intersection, I'd say that's fine. But you stopped at least two car lengths before the intersection.
MR. LINK: I stopped at the stop sign, which is where I always
COURT: No, you didn't stop at the stop sign. You stopped before the stop sign. Because I can see on the video that, I can't judge the distance specifically, but there is a gap between where I can first see your car and the stop sign and your car is moving when I first see it. I can see it moving coming to the stop sign, passing the stop sign, and going out. So, you didn't stop right at the stop sign. You stopped prior to the stop sign and I can't say whether it was 3 feet, 5 feet, 6 feet, or 10 feet. But it was before the stop sign, so you're at least 30 feet from the intersection, if your measurement is correct. If it's 28 feet to the stop sign, you're at least 30 feet before the intersection. You know, obviously you disagree with my decision. That's fine. Frankly, I sort of, I don't like the decision I'm making, but I don't know how else to interpret the statute. I don't think 30 feet is the point nearest the intersection to stop. So technically, as I said, you violated the statute, but taking all that into consideration, as I said, I'm not going to impose a fine. I'll waive the court costs. So you won't owe anything, but I guess you will get a conviction on your record. * * *

Link then filed this appeal.

II. Assignments of Error

{¶ 5} Link, appearing pro se , assigns the following errors for our review:

Assignment of Error I:

There was no audio available for the dashcam video provided by the State during the trial.

Assignment of Error II:

Lack of clear evidence of guilt.

Assignment of Error III:

Application of a different section of the legal code in finding guilt, then defendant was charged with.

Assignment of Error IV:

Verdict of guilty rendered, with fines and court costs being waived.

III. Law and Analysis

{¶ 6} Because determination of Link's third assignment of error is dispositive of this case, we address the assignments of error out of order. In his third assignment of error, Link essentially contends that the trial court erred in finding him guilty of disobeying the instructions of a traffic control device even though it also determined that he had stopped at or just prior to the stop sign. We construe this assignment of error as a challenge to the trial court's interpretation of the revised code.

{¶ 7} Generally, the interpretation of a statute involves a purely legal question. Thus, an appellate court will conduct a de novo review of a trial court's judgment interpreting a statute and will afford no deference whatsoever to a trial court's interpretation. Oliver v. Johnson , 4th Dist. Jackson No. 06CA16, 2007-Ohio-5880, 2007 WL 3227668, ¶ 5. "The primary goal of statutory construction is to ascertain and give effect to the legislature's intent in enacting the statute." State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d 512, ¶ 9. "If the meaning of a statute is unambiguous and definite, it must be applied as written and no further interpretation is necessary." State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn., 74 Ohio St.3d 543, 545, 660 N.E.2d 463 (1996). But, if a statute is ambiguous, "further interpretation is necessary." State v. Chappell, 127 Ohio St.3d 376, 2010-Ohio-5991, 939 N.E.2d 1234, ¶ 16. A statute is ambiguous if its language is susceptible to more than one reasonable interpretation. See State ex rel. Toledo Edison Co. v. Clyde, 76 Ohio St.3d 508, 513, 668 N.E.2d 498 (1996).

{¶ 8} "Only if a statute is unclear and ambiguous, may we interpret it to determine the legislature's intent." State v. Thornsbury , 4th Dist. Lawrence No. 12CA9, 2013-Ohio-1914, 2013 WL 1932938, ¶ 8. R.C. 1.49 provides that if a statute is ambiguous, in determining the intention of the legislature, we "may consider among other matters: (A) The object sought to be attained; (B) The circumstances under which the statute was enacted; (C) The legislative history; (D) The common law or former statutory provisions, including laws upon the same or similar subjects; (E) The consequences of a particular construction; [and] (F) The administrative construction of the statute." Under R.C. 1.42, we must read words and phrases in context and construe them according to the rules of grammar and common usage unless they have acquired a technical or particular meaning.

{¶ 9} Link was charged with violating R.C. 4511.12(A), which provides that no driver of a vehicle "shall disobey the instructions of any traffic control device placed in accordance with [R.C. Chapter 4511], unless at the time otherwise directed by a police officer." Here, the device was a stop sign, and R.C. 4511.43(A) contains the instructions for it that the trial court concluded Link did not follow. R.C. 4511.43(A) states:

Except when directed to proceed by a law enforcement officer, every driver of a vehicle or trackless trolley approaching a stop sign shall stop at a clearly marked stop line, but if none, before entering the crosswalk on the near side of the intersection, or, if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering it. After having stopped, the driver shall yield the right-of-way to any vehicle in the intersection or approaching on another roadway so closely as to constitute an immediate hazard during the time the driver is moving across or within the intersection or junction of roadways.

{¶ 10} The trial court specifically found that there was no "stop bar" or "crosswalk" on the roadway, but that Link disobeyed the instructions of a traffic control device, i.e., a stop sign, because he failed to stop at the point nearest the intersecting roadway.

{¶ 11} There is little guidance available regarding the common, ordinary, and accepted meaning of what it means to stop "at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering it." A review by this writing judge reveals no published case law from the Ohio Supreme Court or any other Ohio court addressing the proper interpretation of what it means to stop at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway. A cursory reading of the language can mean a multitude of things depending on the reader. Accordingly, we conclude that R.C. 4511.43(A)'s requirement that a motorist stop "at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering it" is reasonably susceptible to more than one interpretation.

{¶ 12} Because we conclude that the statute is unclear and ambiguous, we must apply the principles of statutory interpretation to determine what R.C. 4511.43(A) requires of a motorist when a stop sign is not accompanied by a marked stop line or crosswalk. To determine the General Assembly's legislative intent, we will consider the consequences of a particular construction of the statute, and the object sought to be obtained by the statute. R.C. 1.49(A) and (E).

{¶ 13} We conclude that the General Assembly did not intend that motorists stopping well past the marked stop sign and at the point nearest the intersection would constitute compliance with R.C. 4511.43(A). Rather, we hold that when the stop sign is not accompanied by a marked stop line or crosswalk, the motorist must stop his or her vehicle at the point nearest the stop sign where they have a clear view of approaching traffic on the intersecting roadway.

{¶ 14} First, if we were to interpret the statute to require a motorist to stop numerous feet past the stop sign and at the brink of the intersection, the consequence would be to put many motorists and pedestrians in perilous situations. Stopping so close to the intersection could make for unsafe road conditions. It is illogical that the General Assembly would want to establish a stopping point for a motorist that would put them, pedestrians, and other motorists in danger.

{¶ 15} "[T]he object sought to be attained in regulating Ohio's [roadways] is the safety of motorists and pedestrians" State v. Miller , 3d Dist. Marion No. 9-14-50, 2015-Ohio-3529, 2015 WL 5095890, ¶ 22. As previously discussed, interpreting R.C. 4511.43(A) to permit motorists to stop well past a marked stop sign and at the verge of an intersecting roadway does not further that purpose. "[T]he purpose of a stop-sign statute is 'to require a vehicle to stop before it is in position where it could impede or hit pedestrians who might be in a crosswalk, or cross-traffic that could be in an intersection.' " Id. , quoting State v. Daniels , 158 So.3d 629, 631 (Fla.2014). Stop signs are also commonly used to protect other motorists by providing a stopping point at which a vehicle must stop to allow ample room for large vehicles to complete turns at an intersection. Id. Accordingly, we believe our interpretation of R.C. 4511.43(A) most readily furthers the General Assembly's purpose in enacting the statute.

{¶ 16} Again, we conclude that when the stop sign is not accompanied by a marked stop line or crosswalk, the motorist must stop his or her vehicle at the point nearest the stop sign where they have a clear view of approaching traffic on the intersecting roadway.

{¶ 17} Based on that conclusion, we hold that the trial court erred in finding that Link was required to stop well past the stop sign and at the point nearest the intersection. And because the trial court found that Link stopped at or just behind the stop sign, we further conclude that Link did not violate R.C. 4511.12 or R.C. 4511.43.

{¶ 18} We further note that even if our interpretation of the statute is erroneous, Link still cannot be held criminally liable of violating R.C. 4511.12 because the stop sign at issue was not properly placed.

{¶ 19} R.C. 4511.11(D) requires all traffic control devices to conform to the Ohio Manual of Uniform Traffic Control Devices (hereinafter the "OMUTCD"). R.C. 4511.12 prohibits enforcement of an alleged traffic violation "if at the time and place of the alleged violation an official sign is not in proper position and sufficiently legible to be seen by an ordinary observant person." Thus, R.C. 4511.12"creates a legal excuse for the criminal violation." White v. Ohio Dept. of Transp. , 56 Ohio St.3d 39, 43, 564 N.E.2d 462 (1990). The section of the OMUTCD dealing with the proper placement of stop signs states that "the STOP or YIELD sign shall be located as close as practical to the intersection it regulates * * *." OMUTCD, Section 2B.10 (2012 Ed.).

{¶ 20} Here the trial court determined that the stop sign was placed approximately 28 feet from the intersection it regulates. Even though Link stopped at or just prior to the stop sign, the trial court found that he should have stopped within 3 to 10 feet of the intersection in order to comply with R.C. 4511.12 and 4511.43(A). Thus, if the trial court's interpretation of the statute is correct, the stop sign at issue in this case should have been placed much closer to the intersection in order to conform to the OMUTCD. It does not appear from the limited record on appeal that the stop sign could not have been placed much closer to the intersection. Under these particular circumstances, the traffic control laws could not be enforced against Link.

{¶ 21} Having interpreted the relevant statutes, and considered the factual findings of the trial court, it is clear that Link did not disobey a traffic control device, or alternatively, should not be held criminally liable for disobeying a traffic control device because of the improper placement of the device. Therefore, we sustain Link's third assignment of error. Link's remaining assignments of error are rendered moot. See App.R. 12(A)(1)(c).

IV. Conclusion

{¶ 22} Having sustained Link's third assignment of error, the judgment of the trial court is reversed. We further remand this matter to the trial court with instructions to enter a verdict of not guilty.

JUDGMENT REVERSED AND CAUSE REMANDED.

Harsha, J.: Concurs in Judgment Only with Opinion.

McFarland, J.: Dissents.

Harsha, J., concurring in judgment only:

{¶ 23} I agree that the trial court erroneously convicted Mr. Link but base my vote to reverse upon finding merit in Link's second assignment of error.

      The following ruling was provided in the partial transcript transmitted on appeal.


author: HENDRICKSON, P.J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Justin HAWKINS, Defendant-Appellant.
    NO. CA2017-07-013
    Court of Appeals of Ohio, Twelfth District, Fayette County.
    May 21, 2018
    Jess C. Weade, Fayette County Prosecuting Attorney, John M. Scott, Jr., 110 East Court Street, Washington C.H., Ohio 43160, for plaintiff-appellee
    Steven H. Eckstein, 1208 Bramble Avenue, Washington C.H., Ohio 43160, for defendant-appellant
   HENDRICKSON, P.J.

{¶ 1} Defendant-appellant, Justin Hawkins, appeals from his conviction for the failure to comply with an order or signal of a police officer, arguing the Fayette County Court of Common Pleas erred when it denied his motion to suppress. For the reasons stated below, we affirm the trial court's denial of appellant's motion to suppress and uphold his conviction.

{¶ 2} At approximately 3:00 a.m. on May 20, 2016, Patrolman Jeffery Heinz, a 14-year veteran police officer with the city of Washington Court House, was finishing up a traffic stop on Draper Street when a black GMC SUV driven by appellant passed his patrol car. Heinz's onboard license plate reader captured the license plate of the vehicle, and Heinz ran the license plate number through dispatch to obtain the vehicle's registration information. Heinz was advised that the license plate was registered to a 2001 white GMC SUV. Heinz quickly concluded his original traffic stop before locating the black GMC SUV and pulling it over. Heinz initiated the traffic stop of the SUV because he was concerned that the vehicle might have been stolen or had a "fictitious registration."

{¶ 3} After stopping the SUV, Heinz explained to appellant that the color discrepancy was the reason for the stop and asked appellant for his license, registration, and proof of insurance. Appellant did not have any identification on him. While obtaining appellant's personal information, Heinz was able to verify the last six numbers of the GMC's VIN by providing the numbers to dispatch, who verified that the numbers matched the records of the Bureau of Motor Vehicles ("BMV").

{¶ 4} Heinz returned to his patrol car to write appellant a warning and to run the social security number appellant provided. The social security number belonged to a different individual. Heinz again approached appellant's vehicle and verified appellant's name, date of birth, and his social security number. Although Heinz instructed appellant to "sit tight" while Heinz ran the second social security number, appellant began to slowly drive away. Heinz followed in his patrol car.

{¶ 5} While Heinz followed appellant's vehicle, he ran the second social security number provided by appellant. This number also belonged to someone other than appellant. Heinz then ran appellant's name and date of birth through dispatch. He was advised that appellant did not have a valid driver's license and had a warrant for his arrest out of Delaware County. Heinz activated his patrol car's lights and sirens, and appellant pulled over the SUV he was operating. However, after Heinz informed appellant there was a warrant out for his arrest, appellant "gunned the engine and took off at a rapid rate." Heinz called for assistance and set off in pursuit of appellant, with his vehicle's lights and sirens activated.

{¶ 6} After nearly hitting a police cruiser, appellant veered off the road and drove through yards before striking a bush or a small tree. Appellant then abandoned his vehicle and fled on foot. He was apprehended by Heinz and arrested. Appellant's vehicle was inventoried, and two credit cards were found in the glovebox of the SUV. The credit cards were not in appellant's name and had previously been reported stolen.

{¶ 7} On June 3, 2016, appellant was indicted on two counts of receiving stolen property in violation of R.C. 2913.51(A) and (C), felonies of the fifth degree, and one count of failing to comply with an order or signal of a police officer in violation of R.C. 2921.331(B) and (C)(5)(a)(ii), a felony of the third degree as appellant's operation of the motor vehicle caused a substantial risk of serious physical harm to persons or property. Appellant moved to suppress all evidence relating to his traffic stop on the basis that Heinz "lacked reasonable and articulable suspicion to make an investigatory stop." Appellant contended the "mismatch" between the SUV's color and the color listed on the vehicle's registration did not provide reasonable suspicion to justify the stop.

{¶ 8} The only witness to testify at the hearing on appellant's motion was Heinz, who testified as follows regarding the traffic stop:

[Prosecutor]: What if any concern to you have that a plate [sic], cause it sounds like it matched the type of vehicle, but it didn't match the color of the vehicle. What reason would you have for any concern?
Heinz: Yeah typically with my, with my experience when subjects will steal a vehicle and that is why BMV started implementing the colors is, in years past somebody would steal a vehicle.
* * *
In years past, with my experience, if someone would steal a vehicle, they would just go through a parking lot anywhere and find a vehicle that would match the vehicle in which they were driving. Throw that [plate] on there and then drive around.
[Prosecutor]: And have you had that experience personally with vehicles that have been stolen in and around Washington Court House?
Heinz: Me personally, no. However, in our city, yes. We have license plates [that] have been taken off and done that, yes.
* * *
[Defense Counsel]: [You] talked a little bit about your experience investigating. How many car thefts have you investigated in your career?
Heinz: Car thefts?
* * *
I can't put a number, but it's been quite a few.
[Defense Counsel]: As the, have you ever investigated them, or where you the officer on the scene or how did it, how did that work?
Heinz: I have both had investigations of vehicle thefts [sic]. I have also had recovery of stolen vehicles and I have also had recovery of stolen license plates as well.
[Defense Counsel]: You said you've never experienced a situation like this. Where a, where as you said, where a plate may have been switched from a vehicle?
Heinz: Me personally?
[Defense Counsel]: Yes.
Heinz: No.
[Defense Counsel]: Okay.
Heinz: But yes, it is done.
* * *
[Defense Counsel]: [J]ust for clarification purposes, the only reason that [appellant] was stopped was due to the color of the vehicle not matching registration?
Heinz: The, the vehicle did not match the vehicle [sic]. Which at the time I believed was [a] fictitious registration.
[Defense Counsel]: What I asked was the sole reason you stopped Mr. Hawkins was because the color of the vehicle did not match the color that you were told by a dispatcher that the vehicle should have been on the registration?
Heinz: That would be correct.

{¶ 9} When questioned about whether driving a vehicle that is a different color than the color listed on the vehicle's registration is, "in and of itself," a crime, Heinz initially testified he did not know. However, he then clarified that "[w]e have been told by our prosecutors yes, it is. It is. However, we do not charge for the color discrepancy." Heinz testified that a person could, however, be charged with "fictitious registration because the colors [do] not match."

{¶ 10} After considering Heinz's testimony, the trial court denied appellant's motion to suppress, stating that there was "nothing unreasonable or constitutionally infirm with the conduct of Officer Heinz in this case." The court found "reasonable and articulable suspicion sufficient to initiate the initial detention * * * to determine the validity of the * * * registration issue that was raised when * * * he ran the registration through the dispatcher and was notified that it was to a white vehicle."

{¶ 11} Following the denial of his motion to suppress, appellant was tried to a jury. Heinz was the sole witness to testify at trial. Following his testimony, appellant moved for acquittal pursuant to Crim.R. 29, and his motion was denied. The matter was submitted to the jury, who acquitted appellant of both counts of receiving stolen property but found him guilty of failing to comply with the order or signal of a police officer. The jury further found appellant's operation of the motor vehicle caused a substantial risk of serious physical harm. Appellant was sentenced to 36 months in prison.

{¶ 12} Appellant appealed, raising the following as his sole assignment of error:

{¶ 13} THE TRIAL COURT ERRED IN FINDING LAW ENFORCEMENT HAD A REASONABLE AND ARTICULABLE SUSPICION [APPELLANT] WAS ENGAGED IN CRIMINAL ACTIVITY OR OPERATING HIS VEHICLE IN VIOLATION OF THE LAW IN DENYING HIS MOTION TO SUPPRESS AND THEREBY ALLOWING IMPROPER EVIDENCE INTO THE TRIAL IN VIOLATION OF THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTION 14 OF THE OHIO CONSTITUTION.

{¶ 14} In his sole assignment of error, appellant argues the trial court erred in denying his motion to suppress as Patrolman Heinz lacked reasonable articulable suspicion to initiate the traffic stop. He contends the color discrepancy between the paint color of the SUV and the registration for the vehicle did not provide sufficient suspicion to justify the traffic stop. He also argues that because the stop was unlawful, all "derivative evidence" should be suppressed pursuant to the "fruit of the poisonous tree" doctrine and his Crim.R. 29 motion for acquittal should be granted for lack of sufficient evidence.

{¶ 15} Our review of a trial court's denial of a motion to suppress presents a mixed question of law and fact. State v. Cochran , 12th Dist. Preble No. CA2006-10-023, 2007-Ohio-3353, 2007 WL 1880207, ¶ 12. Acting as the trier of fact, the trial court is in the best position to resolve factual questions and evaluate witness credibility. Id. 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. Oatis , 12th Dist. Butler No. CA2005-03-074, 2005-Ohio-6038, 2005 WL 3031883, ¶ 10. "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." Cochran at ¶ 12.

{¶ 16} "The Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution prohibit unreasonable searches and seizures, including unreasonable automobile stops." Bowling Green v. Godwin , 110 Ohio St.3d 58, 2006-Ohio-3563, 850 N.E.2d 698, ¶ 11. "Ohio recognizes two types of lawful traffic stops." State v. Stover , 12th Dist. Clinton No. CA2017-04-005, 2017-Ohio-9097, 2017 WL 6450754, ¶ 8. The first involves a non-investigatory stop in which an officer has probable cause to stop a vehicle because the officer observed a traffic violation. Id. , citing State v. Moore , 12th Dist. Fayette No. CA2010-12-037, 2011-Ohio-4908, 2011 WL 4436647, ¶ 31. "The second type of lawful traffic stop is an investigative stop, also known as a Terry stop, in which the officer has reasonable suspicion based on specific or articulable facts that criminal behavior is imminent or has occurred." Id. , citing State v. Bullock , 12th Dist., 2017-Ohio-497, 85 N.E.3d 133, ¶ 7. See also Moore at ¶ 33, citing Terry v. Ohio , 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The present case involves the latter of the two stops.

{¶ 17} With respect to a Terry stop, the concept of "reasonable and articulable suspicion" has not been precisely defined; it has been described as something more than an undeveloped suspicion or hunch but less than probable cause. State v. Baughman , 192 Ohio App.3d 45, 2011-Ohio-162, 947 N.E.2d 1273, ¶ 15, citing Terry at 20-21, 88 S.Ct. 1868. The "reasonable suspicion standard" under Terry is an objective, not a subjective, one. Stover at ¶ 9, citing State v. McCandlish , 10th Dist. Franklin No. 11AP-913, 2012-Ohio-3765, 2012 WL 3582583, ¶ 7. For this reason, the propriety of an investigative stop must be "viewed in light of the totality of the surrounding circumstances, from the perspective of a reasonably prudent police officer on the scene guided by his experience and training." Baughman at ¶ 15, citing State v. Batchili , 113 Ohio St.3d 403, 2007-Ohio-2204, 865 N.E.2d 1282, paragraph two of the syllabus; and State v. Bobo , 37 Ohio St.3d 177, 524 N.E.2d 489 (1988), paragraph one of the syllabus.

{¶ 18} In the present case, Heinz testified he initiated a traffic stop because appellant was driving a black GMC SUV when the registration indicated the vehicle was white, and this discrepancy led him to believe the vehicle had a fictitious registration or might have been stolen. This court has not previously addressed the issue of whether the discrepancy between the color of a defendant's vehicle and the color listed in registration records accessed by a police officer provides the officer with reasonable suspicion to perform an investigative traffic stop. Courts that have considered the issue are split.

{¶ 19} The Seventh Circuit Court of Appeals, the Arkansas Supreme Court, the Florida Supreme Court, and the Fifth District Court of Appeals have all determined that a discrepancy in an automobile's paint color found via a database check does not amount to reasonable suspicion of criminal activity sufficient to justify a warrantless investigatory stop. See United States v. Uribe , 709 F.3d 646 (7th Cir.2013) ; Schneider v. State , 459 S.W.3d 296 (Ark.2015) ; State v. Teamer , 151 So.3d 421 (Fla.2014) ; State v. Unger , 5th Dist. Stark No. 2016 CA 00148, 2017-Ohio-5553, 2017 WL 2799530. In many of these cases, the courts considering the issue have noted that there was no requirement under state law to update a vehicle registration when an owner changes the color of his or her car. Uribe at 650 (noting "the color discrepancy itself was lawful, because neither Indiana nor Utah requires a driver to update his vehicle registration when he changes the color of his car"); Schneider at 299 (noting Arkansas has no requirement that the owner of a vehicle change the registration to reflect the color of a vehicle in the event it is painted or the color is otherwise altered); Teamer at 427-428 (finding a color discrepancy is not " 'inherently suspicious' or 'unusual enough' or 'so out of the ordinary' as to provide an officer with a reasonable suspicion of criminal activity, especially given the fact that it is not against the law in Florida to change the color of your vehicle without notifying the DHSMV"). The courts concluded that the lawful color discrepancy alone was not probative of wrongdoing and therefore did not authorize a traffic stop. Uribe at 652 ; Schneider at 299-300 ; Teamer at 428 ("to find reasonable suspicion based on this single noncriminal factor would be to license investigatory stops on nothing more than an officer's hunch").

{¶ 20} Other courts that have considered the issue have come out in the other direction. Appellate courts in Georgia, Indiana, and Idaho have all determined that the discrepancy between an automobile's paint color and the color reported on a vehicle's registration amounts to reasonable suspicion of criminal activity to authorize an investigatory stop when the officer believes the vehicle was stolen or has a fictitious plate. See Smith v. State , 713 N.E.2d 338, 342 (Ind.App.1999) (finding that the color discrepancy gave an officer "reasonable suspicion to believe that * * * vehicle had a mismatched plate, and as such, could be stolen or retagged"); Andrews v. State , 289 Ga. App. 679, 681, 658 S.E.2d 126 (2008) (finding the color discrepancy gave an officer reasonable and articulable suspicion for the investigatory stop where the officer had reason to believe the license plate had been improperly switched or transferred in violation of Georgia law); State v. Creel , 2012 WL 9494147, *2 (2012) (finding that the color discrepancy gave the officer reasonable and articulable suspicion to initiate the stop where the officer testified the vehicle "could have had fictitious license plates in violation of I.C. § 49-456(3) or the vehicle could have been stolen and the plates were from another S-10 pickup"). In these cases, the courts noted that the officer "was entitled to draw from the facts in light of his experience" and training. Andrews at 681, 658 S.E.2d 126. See also Creel , 2012 WL 9494147, at *2.

{¶ 21} We are persuaded by the approach taken in Smith, Andrews , and Creel and find that under the facts of the present case, reasonable and articulable suspicion existed to authorize Heinz's stop of appellant's vehicle. The color discrepancy between the vehicle's actual paint color (black) and the BMV's registration (white) gave Heinz reason to believe that the vehicle may have been stolen or the license plate switched from another vehicle. Heinz testified that although he had not personally experienced a situation where a car thief had replaced a vehicle's original license plate with a stolen plate taken from a similar vehicle, from his 14 years of law enforcement experience he knew that this type of criminal behavior occurred. He further testified that such criminal activity had occurred in and around Washington Court House.

{¶ 22} Accordingly, for the reasons set forth above, we find that the trial court did not err in denying appellant's motion to suppress. The discrepancy in the vehicle's color coupled with Heinz's experience and belief that the vehicle or its plates might have been stolen provided reasonable and articulable suspicion to authorize the investigatory stop of appellant's vehicle.

{¶ 23} Therefore, as the traffic stop was lawful, we find no merit to appellant's arguments that the evidence flowing from the stop must be suppressed pursuant to the "fruit of the poisonous tree" doctrine. Heinz trial testimony about the events that occurred leading up to, during, and after the traffic stop was properly admitted. Through Heinz's testimony the state presented sufficient evidence to sustain appellant's conviction for failing to comply with an order or signal of a police officer. Appellant fled from Heinz after being advised there was a warrant for his arrest. He ignored the police cruiser's lights and sirens-visible and audible signals to stop his vehicle-and in fleeing from Heinz, caused a substantial risk of harm to both property and persons. See, e.g., State v. Monnin , 12th Dist. Warren CA2016-07-058, 2017-Ohio-1095, 2017 WL 1131932, ¶ 13-30.

{¶ 24} The arguments set forth in appellant's sole assignment of error are therefore without merit and his assignment of error is overruled.

{¶ 25} Judgment affirmed.

RINGLAND and PIPER, JJ., concur.