author: TUCKER, J.

text:
    STATE of Ohio, Plaintiff-Appellee v. Paul P. IVKOVICH, Defendant-Appellant
    No. 27465
    Court of Appeals of Ohio, Second District, Montgomery County.
    Rendered February 16, 2018
    MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422, Attorney for Plaintiff-Appellee
    BROCK SCHOENLEIN, Atty. Reg. No. 0084707, 371 West First Street, Dayton, Ohio 45402, Attorney for Defendant-Appellant
   TUCKER, J.

{¶ 1} Defendant-appellant, Paul P. Ivkovich, appeals from his convictions for two counts of aggravated vehicular homicide under R.C. 2903.06(A). In four assignments of error, Ivkovich argues that the trial court erred by overruling his motion to suppress the results of a chemical analysis of his blood ; by failing to comply fully with Crim.R. 11(C) when it accepted his pleas of no contest; and by improperly sentencing him to a term of imprisonment greater than the mandatory minimum in reliance on findings of fact that were irrelevant or unsupported by the record. We find that the trial court did not err, and we therefore affirm.

I. Facts and Procedural History

{¶ 2} Early in the morning of April 30, 2015, Ivkovich was driving in the vicinity of the intersection of East Third Street and McDonough Street in Dayton, accompanied by Sharon M. Crawford. See Tr. of Proceedings 185-186; Appellant's Br. 3. At approximately 2:25 a.m., Ivkovich's vehicle collided with one of the pillars supporting the railroad overpass spanning Third Street. See Tr. of Proceedings 185-186; Pl.'s Mem. in Opp'n to Def.'s Mot. to Suppress 3, Apr. 18, 2016; see also Def's Mot. to Suppress 3, Nov. 30, 2015. Ivkovich and Crawford were taken to Miami Valley Hospital, where Crawford was pronounced dead. Appellant's Br. 3; Appellee's Br. 2.

{¶ 3} A uniformed officer with the Dayton Police Department reported to the hospital's trauma center between 2:45 and 3:00 a.m. to speak with Ivkovich. Tr. of Proceedings 64-65. In response to the officer's inquiry, Ivkovich acknowledged that he was driving when his vehicle struck the pillar and told the officer that he and Crawford had left a bar shortly beforehand. Id. at 68. Prompted by an odor of alcohol, the officer asked Ivkovich whether he had been drinking at the bar. Ivkovich answered that he had had six or seven beers and two or three shots, and the officer requested Ivkovich's consent to a blood draw for toxicological analysis. Id. at 68-72. Ivkovich consented. Id. at 71-72. The analysis of Ivkovich's blood revealed an alcohol content well in excess of the legal limit for the operator of a motor vehicle. Id. at 165-168 and 235; R.C. 4511.19(A)(1)(b) and (f).

{¶ 4} On October 20, 2015, a Montgomery County grand jury issued a two-count indictment charging Ivkovich with: (1) aggravated vehicular homicide under R.C. 2903.06(A)(1)(a) for causing the death of Sharon Crawford as a proximate result of his operation of a motor vehicle in violation of R.C. 4511.19(A) ; and (2) aggravated vehicular homicide under R.C. 2903.06(A)(2)(a) for causing Crawford's death by operating a motor vehicle recklessly. Ivkovich appeared for arraignment on November 3, 2015, and pleaded not guilty.

{¶ 5} On November 30, 2015, Ivkovich moved to suppress the results of the analysis of his blood as well as the statements he made while in Miami Valley Hospital. Following a hearing, the court overruled Ivkovich's motion with respect to this evidence in a decision docketed on May 16, 2016, and on December 12, 2016, Ivkovich pleaded no contest to both of the charges set forth in the indictment. The State did not agree to make a sentencing recommendation in exchange for Ivkovich's pleas. Tr. of Proceedings 226.

{¶ 6} At Ivkovich's sentencing hearing on January 17, 2017, the court merged the two counts of the indictment, and the State elected to proceed on Count 1 (aggravated vehicular homicide under R.C. 2903.06(A)(1)(a) for causing the death of another as a proximate result of the operation of a motor vehicle in violation of R.C. 4511.19(A) ). The court ordered that Ivkovich serve a mandatory term of imprisonment of four years and advised him that he would be subject to mandatory post-release control for a period of three years after his release from prison. On January 19, 2017, the court docketed a termination entry, and Ivkovich timely filed a notice of appeal on February 16, 2017.

II. Analysis

{¶ 7} Ivkovich's first and second assignments of error relate to the trial court's ruling on his motion to suppress. Appellate "review of a motion to suppress presents a mixed question of law and fact." State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. As the trier of fact, a trial court "is in the best position to weigh * * * evidence * * * and evaluate [the credibility of] witness[es]," so an "appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence." Id. , citing State v. Fanning , 1 Ohio St.3d 19, 437 N.E.2d 583 (1982) ; State v. Graves , 12th Dist. Clermont No. CA2015-03-022, 2015-Ohio-3936, 2015 WL 5671910, ¶ 9, citing State v. Cruz , 12th Dist. Preble No. CA2013-10-008, 2014-Ohio-4280, 2014 WL 4802860, ¶ 12. Accepting the trial court's findings of fact as true, "the appellate court must then independently determine, without deference to the [trial court's legal] conclusion[s]," whether the "facts satisfy the applicable * * * standard." Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8, citing Fanning , 1 Ohio St.3d 19, 437 N.E.2d 583, and State v. McNamara , 124 Ohio App.3d 706, 707 N.E.2d 539 (4th Dist.1997).

{¶ 8} For his first assignment of error, Ivkovich contends that:

THE TRIAL COURT ERRED IN DETERMINING THAT THE BLOOD DRAW WAS CONDUCTED IN SUBSTANTIAL COMPLIANCE WITH THE OHIO ADMINISTRATIVE CODE.

{¶ 9} Ivkovich presents a quadripartite argument that the trial court should have suppressed the results of the analysis of his blood. First, he posits that because the State did not establish the expiration date of the test kit used to obtain specimens, it failed to demonstrate that the results of the analysis were reliable. Second, he challenges the authenticity of the specimens introduced into evidence by the State at the hearing on his motion to suppress. Third, he insists the State failed to prove that the analysis of his blood comported with the requirements of Ohio Adm.Code 3701-53-03 and 3701-53-04, and fourth, he maintains similarly that the State failed to demonstrate that it retained the specimens of his blood for one year after completion of testing as required by Ohio Adm.Code 3701-53-06(A).

{¶ 10} Regarding the first part of Ivkovich's argument, when a defendant moves to suppress the results of a blood test "in an aggravated vehicular homicide prosecution that depends upon proof of driving under the influence in violation of R.C. 4511.19(A), the [prosecution] must show substantial compliance with R.C. 4511.19(D)(1) and Ohio Adm.Code Chapter 3701-53 before the test results [may be] admi[tted]." State v. Bruce , 2d Dist. Montgomery No. 22612, 2008-Ohio-5514, 2008 WL 4684368, ¶ 8, citing State v. Mayl , 106 Ohio St.3d 207, 2005-Ohio-4629, 833 N.E.2d 1216, ¶ 48. The defendant, however, must " 'state with particularity the legal and factual issues to be resolved.' " State v. Tyner , 2d Dist. Montgomery No. 25405, 2014-Ohio-2809, 2014 WL 2943065, ¶ 13, quoting State v. Shindler , 70 Ohio St.3d 54, 58, 636 N.E.2d 319 (1994) ; see also State v. Bissaillon , 2d Dist. Greene No. 06-CA-130, 2007-Ohio-2349, 2007 WL 1429626, ¶ 11. If the defendant provides a sufficiently particular statement, then "the burden shifts to the [prosecution] to show that it substantially complied" with the relevant regulations. Bissaillon , 2007-Ohio-2349, 2007 WL 1429626, ¶ 12, citing State v. Plummer , 22 Ohio St.3d 292, 490 N.E.2d 902 (1986), syllabus. The weight of the prosecution's "burden to establish substantial compliance," in other words, is directly proportional to the extent of the defendant's specificity; a motion to suppress that raises merely a generalized claim of non-compliance imposes only a "fairly slight" burden on the prosecution. (Citations omitted.) See id.

{¶ 11} In his motion to suppress, Ivkovich argued that the "manner of the blood draw, and the handling and [the] testing of the blood, was done in violation of the regulations [appearing in Ohio Adm.Code] 3701-53-01, et seq." Def's Mot. to Suppress 1 and 3. The motion made no mention of the test kit or of the expiration date of any of the kit's components, although during the hearing on the motion, Ivkovich's counsel referred to the kit's expiration date in the following exchange with the phlebotomist who drew Ivkovich's blood:

DEFENSE COUNSEL: This expiration [date] on the [test kit] is a sticker, is that correct?
WITNESS: Correct.
DEFENSE COUNSEL: Is there any way to tell when that was placed there?
WITNESS: I would have no clue.

Tr. of Proceedings 58-59. Ivkovich nevertheless offered no argument related to the test kit's expiration date in his subsequent memoranda in support of suppression, which focused on lack of consent, the mechanics of the blood draw itself, the storage of the samples and unrelated Fourth Amendment issues. See Def.'s Post-Hearing Mem. in Supp. of Mot. to Suppress 2-6, Apr. 4, 2016; Def.'s Post-Hearing Reply Mem. in Supp. of Mot. to Suppress 1-2, Apr. 25, 2016. Thus, Ivkovich did not provide the State with notice that he intended to seek suppression of the analysis of his blood based upon the possible expiration of the test kit, and he thereby forfeited this issue for review on appeal. See State v. Quarterman , 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15 ; State v. Tyner , 2d Dist. Montgomery No. 25405, 2014-Ohio-2809, 2014 WL 2943065, ¶ 12-16 ; State v. Bissaillon , 2d Dist. Greene No. 06-CA-130, 2007-Ohio-2349, 2007 WL 1429626, ¶ 11-15.

{¶ 12} Even if the issue had been raised in the trial court, Ivkovich suggested only in the most general terms that the test kit might have been expired, meaning that the State would have had only a "fairly slight" burden to "establish substantial compliance" with the applicable regulations. Bissaillon , 2007-Ohio-2349, 2007 WL 1429626, ¶ 12 ; see also State v. Johnson , 137 Ohio App.3d 847, 851-853, 739 N.E.2d 1249 (12th Dist.2000). In this respect, the phlebotomist testified on direct examination that checking the expiration date of a test kit is standard procedure, and when shown the kit he used to obtain a specimen from Ivkovich, he verified that the kit's expiration date had not yet passed at the time he used it. Tr. of Proceedings 19-23 and 29-34. The State accordingly demonstrated that the analysis of Ivkovich's blood substantially complied with regulatory requirements to the extent of the test kit's expiration date.

{¶ 13} Regarding the second part of Ivkovich's argument, Ivkovich notes that the Dayton Police officer tasked with transporting his blood samples from Miami Valley Hospital to the Miami Valley Regional Crime Laboratory made revisions to the documentation attached to the samples. Appellant's Br. 6-7. Ivkovich contends that "[t]hese changes * * * raise significant questions about the authenticity of the * * * blood sample[s]" introduced at the hearing on his motion to suppress. Id. at 7. Like the expiration date of the test kit, Ivkovich did not address the authentication of the blood samples in his motion to suppress or in his subsequent memoranda in support, and he has accordingly also forfeited this issue for appellate review. Quarterman , 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15 ; Tyner , 2014-Ohio-2809, 2014 WL 2943065, ¶ 12-16 ; Bissaillon , 2007-Ohio-2349, 2007 WL 1429626, ¶ 11-16 ; Def.'s Mot. to Suppress 3-4; Def.'s Post-Hearing Mem. in Supp. of Mot. to Suppress 2-5; Def.'s Post-Hearing Reply Mem. in Supp. of Mot. to Suppress 1-2.

{¶ 14} Assuming for sake of analysis that Ivkovich did raise the issue in the trial court, thereby preserving it for appeal, the testimony adduced by the State at the hearing on his motion to suppress sufficed to establish the authenticity of the samples. The phlebotomist testified that the sample vials entered into evidence by the State were the same vials he had used to draw Ivkovich's blood, and the officer who revised the attached documentation indicated that he simply "corrected" a "couple of items," including changing the "offense location" from the hospital's address to the address at which the accident occurred, and adding the name of the Dayton Police officer in charge of the investigation of the accident. Tr. of Proceedings 29-32 and 111-116. As well, the officer who asked Ivkovich to consent to the blood draw testified that he personally witnessed the phlebotomist fill and label the sample vials, and while on the stand, he authenticated the vials-among other things, pointing to the presence of his own initials and those of the phlebotomist. Tr. of Proceedings 71-76. The toxicologist who analyzed the samples testified likewise to the vials' authenticity. Id. at 124, 130-132 and 138-148.

{¶ 15} Regarding the third part of Ivkovich's argument, Ivkovich claims the State did not meet its burden to demonstrate that the analysis of his blood satisfied the requirements of Ohio Adm.Code 3701-53-03, observing that the toxicologist "did not testify to any extent [about] the manner in which [his] blood sample[s] [were tested] for alcohol [or] identify and illustrate [a] second and dissimilar form of analytical confirmation." Appellant's Br. 8. Ivkovich claims further that the State did not show that the equipment used to analyze his blood was checked and certified pursuant to Ohio Adm.Code 3701-53-04. Id. at 9. Once again, Ivkovich forfeited appellate review of these issues by failing to address them in the trial court. Quarterman , 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15 ; Tyner , 2014-Ohio-2809, 2014 WL 2943065, ¶ 12-16 ; Bissaillon , 2007-Ohio-2349, 2007 WL 1429626, ¶ 11-16 ; Def.'s Mot. to Suppress 3-4; Def.'s Post-Hearing Mem. in Supp. of Mot. to Suppress 2-3; Def.'s Post-Hearing Reply Mem. in Supp. of Mot. to Suppress 1-2.

{¶ 16} Irrespective of forfeiture, however, Ivkovich's argument lacks merit. Under Ohio Adm.Code 3701-53-03(A)(1), "[a]lcohol in blood, urine and other bodily substances * * * shall be analyzed based on approved techniques or methods," one of which is "[g]as chromatography." The toxicologist who analyzed Ivkovich's blood testified that he performed the analysis using "a headspace gas chromatographymass spectrometer," or in other words, that the method used to test Ivkovich's blood satisfied the requirements of Ohio Adm.Code 3701-53-03(A). Tr. of Proceedings 149-152. Furthermore, Ivkovich's assertion that "confirmation [testing was] required by [Ohio Adm.Code] 3701-53-03" is incorrect; the requirement that "[a]ll positive results of tests" be confirmed applies only to tests for "[c]ontrolled substances or [their] metabolites [and] drugs of abuse." Ohio Adm.Code 3701-53-03(A)-(B). Even so, the toxicologist testified that he did, in fact, conduct a second chromatographic analysis to confirm the first result. Tr. of Proceedings 152-153.

{¶ 17} Similarly, though Ivkovich claims that the State did not meet its burden to show that the equipment used "was calibrated on the schedule required by Ohio Adm.Code 3701-53-04(D)," the State had no such burden. Appellant's Br. 9. Ohio Adm.Code 3701-53-04(D) mandates that an "instrument check or certification * * * be made in accordance with [ Ohio Adm.Code 3701-53-04(A) and (C) ] before a new evidential breath testing instrument is placed in service" or an existing "instrument is placed in service following repairs." (Emphasis added.) The provisions of Ohio Adm.Code 3701-53-04(D), then, do not apply to gas chromatographs. Although Ivkovich did not cite Ohio Adm.Code 3701-53-04(F), which does apply to gas chromatographs, the toxicologist testified that he calibrated the equipment used to analyze Ivkovich's blood as directed by the regulation. See Tr. of Proceedings 178-180.

{¶ 18} Regarding the fourth part of Ivkovich's argument, he characterizes the record as insufficient to show that the samples of his blood were retained for a minimum of one year as required by the Ohio Administrative Code; he contended in his motion to suppress that the State "improperly stored and maintained" the samples of his blood, meaning that he has not clearly forfeited this issue on appeal. Appellant's Br. 11-12; Def.'s Mot. to Suppress 4. At the same time, in his brief he never squarely accuses the State of failing to retain the samples for the one-year period required by Ohio Adm.Code 3701-53-06(A) and instead remarks merely that "no testimony was taken on this [point] from anyone who had any first-hand knowledge." Appellant's Br. 11. Yet, as the State rejoins, the phlebotomist obtained samples of Ivkovich's blood on April 30, 2015, and the samples were introduced into evidence at the hearing on Ivkovich's motion to suppress on March 21, 2016, after which they were stored in the trial court's property room. Appellee's Br. 13-14. The record thus demonstrates that the samples were stored for at least one year.

{¶ 19} We find that the issues presented by Ivkovich in support of his first assignment of error either lack merit or have been forfeited as a result of his failure to raise them before the trial court. Consequently, Ivkovich's first assignment of error is overruled.

{¶ 20} In his second assignment of error, Ivkovich contends that:

THE TRIAL COURT ERRED IN FINDING THAT APPELLANT'S BLOOD SAMPLE WAS KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY OFFERED.

{¶ 21} Here, Ivkovich argues that he did not genuinely consent to provide samples of his blood to the Dayton Police. See Appellant's Br. 12. He insists that under the circumstances, true consent "would [have] be[en] nearly impossible" owing to his "severe injuries, the medication being administered to him" and "his obvious level of impairment." See id. at 15-16. At the time in question, Ivkovich had not been arrested. Tr. of Proceedings 67.

{¶ 22} Prior to his arrest, a suspect "may voluntarily * * * submit to a blood test to determine the concentration of alcohol in [his] blood." City of Fairfield v. Regner , 23 Ohio App.3d 79, 491 N.E.2d 333 (12th Dist.1985), paragraph one of the syllabus; see also State v. Hill , 2d Dist. Montgomery No. 25717, 2014-Ohio-1447, 2014 WL 1384092, ¶ 12 (citing Regner with approval). Whether the suspect consents "voluntarily" is a question of fact and should be evaluated in light of the circumstances. See , e.g. , State v. Black , 2d Dist. Montgomery No. 23524, 2010-Ohio-2916, 2010 WL 2546501, ¶ 34 ; State v. Cooper , 6th Dist. Lucas No. L-15-1083, 2016-Ohio-3093, 2016 WL 2945144, ¶ 21. As part of its evaluation, a court should generally consider:

1. Whether the suspect was in custody against his will;
2. Whether " 'coercive police procedures were used' " to obtain consent;
3. The " 'extent and level of the [suspect]'s cooperation with police,' " if any;
4. The suspect's " 'awareness of his * * * right to refuse consent' ";
5. The suspect's " 'education and intelligence' "; and
6. Whether the suspect believed " 'that no incriminating evidence [would] be found.' "

See Black , 2010-Ohio-2916, 2010 WL 2546501, ¶ 35-41, quoting State v. Loyer , 8th Dist. Cuyahoga No. 87995, 2007-Ohio-716, 2007 WL 534549, ¶ 9. As noted above, Ivkovich presents this assignment of error as a challenge to the trial court's ruling on his motion to suppress; on review, we must accordingly accept the trial court's findings of fact if they are supported by the record and independently determine whether the court correctly applied the law. State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.

{¶ 23} In the instant case, the trial court found that although Ivkovich "was on a gurney" when he consented to the blood draw, he was "not in custody at the time" because he was neither under arrest nor in handcuffs; was "free to ignore the questions" posed by the Dayton Police officer; and was theoretically "free to leave." Decision, Order & Entry Overruling Def.'s Mot. to Suppress in Part 11, May 16, 2016. It determined that the officer did not employ coercive tactics or make threats to obtain Ivkovich's consent, noting that "numerous hospital staff [were] in the trauma room with [Ivkovich] while [the officer] was there," and it credited the officer's testimony that Ivkovich "was very cooperative, did not have slurred speech, * * * responded to * * * questions appropriately and had a normal demeanor." Id. at 11-12; compare with Tr. of Proceedings 65-72. Based upon these findings of fact, the court held that Ivkovich's "consent for the blood draw was freely and voluntarily given." Decision, Order & Entry Overruling Def.'s Mot. to Suppress in Part 12.

{¶ 24} We concur with the trial court. Ivkovich was not in custody when he consented to provide samples of his blood, and the officer's testimony, as well as that of the phlebotomist, indicate that Ivkovich appeared coherent and able to respond intelligently to inquiries. Absent any evidence of coercion, we find that the first, second and third of the foregoing six factors favor the trial court's conclusion.

{¶ 25} Despite the fact that the officer intentionally did not advise Ivkovich of his right to refuse, the officer did not have a legal obligation to provide such advice because Ivkovich had not been arrested. Hence, application of the fourth factor is either inconclusive or supports the finding that Ivkovich voluntarily consented.

{¶ 26} The parties have offered little or no evidence of Ivkovich's education and intelligence, but Ivkovich himself indicated at his plea hearing that he holds a master's degree. Tr. of Proceedings 227. Given that Ivkovich was therefore fully capable of understanding the significance of the officer's request, the fifth factor also supports a finding of voluntariness. The sixth factor, on the other hand, favors Ivkovich's position-he must have known that the results of the blood analysis would likely incriminate him. See Tr. of Proceedings 69.

{¶ 27} On balance, however, consideration of the six factors supports the trial court's conclusion that Ivkovich consented voluntarily to the blood draw. Ivkovich's second assignment of error is overruled.

{¶ 28} For his third assignment of error, Ivkovich contends that:

APPELLANT'S PLEA COULD NOT HAVE BEEN ENTERED KNOWINGLY AND INTELLIGENTLY BECAUSE THE TRIAL COURT DID NOT APPRISE APPELLANT ABOUT THE MANDATORY NATURE OF THE REQUIRED PRISON TERMS.

{¶ 29} Ivkovich claims that at his plea hearing, the trial court failed to inform him that "his conviction [under R.C. 2903.06(A)(1)(a) ] required a mandatory prison term," rendering his plea involuntary. The transcript says otherwise.

{¶ 30} After the bailiff called Ivkovich's plea hearing to order, the parties notified the court that they had reached a plea agreement, and the court questioned Ivkovich about his personal background. The court then discussed the nature of the offenses to which Ivkovich intended to plead no contest, leading to the following discussion:

THE COURT: * * *. Count 1 is classified as a felony of the second degree. With that classification the maximum penalty in terms of incarceration is eight years in prison. Do you understand that?
IVKOVICH: Yes.
THE COURT: The maximum penalty in terms of a fine for that offense is $15,000. Do you understand that?
IVKOVICH: Yes.
THE COURT: Count 2 is classified as a felony of the third degree. With that classification the maximum penalty in terms of incarceration is-we have different types of felony 3s. I believe with this one it's probably[ ] the maximum, five years.
THE STATE: It is, Your Honor.
THE COURT: Counsel agree. Okay. Maximum penalty in terms of incarceration is five years. Do you understand that?
IVKOVICH: Yes.
THE COURT: Maximum penalty in terms of fine is $10,000. Do you understand that?
IVKOVICH: Yes.
* * *
THE STATE: And, Your Honor, also when you indicated on Count Number 1 that it was a felony of the second degree, a maximum of eight years in prison, that is a mandatory sentence.
THE COURT: Do you understand that with regarding to Count 1, Mr. Ivkovich-
IVKOVICH: Yes.
THE COURT:-that the [c]ourt cannot consider community control sanctions or probation? There will be a prison sentence. You understand that?
IVKOVICH: M-hum. Yes.

Tr. of Proceedings 228-230. As this exchange illustrates, the court did inform Ivkovich that his sentence pursuant to R.C. 2903.06(A)(1)(a) would be mandatory.

{¶ 31} In the argument accompanying his third assignment of error, Ivkovich relies entirely on the fact that the trial court did not speak the word "mandatory" in its remarks. This argument is without merit. Ivkovich's third assignment of error is overruled.

{¶ 32} For his fourth assignment of error, Ivkovich contends that:

THE TRIAL COURT IMPROPERLY ENHANCED APPELLANT'S SENTENCE BY MAKING FACTUAL FINDINGS THAT WERE EITHER IMPROPER OR INCONSISTENT WITH THE EVIDENCE.

{¶ 33} Although the trial court did not impose any sentence "enhancement," Ivkovich insists that the court erred to his prejudice in its application of R.C. 2929.12 by referring to "finding[s] [of fact] contrary to the [record]." See Appellant's Br. 19. Specifically, he faults the court for imposing a longer than minimum sentence based upon the provisions of R.C. 2929.12(B)(2) and (6). See id.

{¶ 34} On review of a felony sentence, "an appellate court may vacate or modify [the] sentence * * * only if it determines by clear and convincing evidence that the record does not support the trial court's findings under relevant statutes or that the sentence is otherwise contrary to law." State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1 ; see also R.C. 2953.08(G)(2). A sentence "is not contrary to law [if it falls] within the statutory range [and the trial court] expressly state[s] that it * * * considered the purposes and principles of sentencing [under] R.C. 2929.11 [and] 2929.12." State v. Rodeffer , 2013-Ohio-5759, 5 N.E.3d 1069, ¶ 32 (2d Dist.), citing State v. Kalish , 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 18.

{¶ 35} Here, the termination entry reflects that the trial court merged Count 1 and Count 2 of the indictment for sentencing purposes, and the State elected to proceed on Count 1, which charged Ivkovich with violating R.C. 2903.06(A)(1)(a). According to R.C. 2903.06(B)(1)-(2) and (E), a violation of R.C. 2903.06(A)(1)(a) is a second degree felony requiring a mandatory term of imprisonment. Under R.C. 2929.14(A)(2), a court may impose a term of imprisonment from two to eight years for a second degree felony; the court in this case sentenced Ivkovich to a term of four years. Tr. of Proceedings 252.

{¶ 36} The trial court expressly stated during Ivkovich's sentencing hearing that it had considered the provisions of R.C. 2929.11 -12. Id. at 250-251. Referring by implication to R.C. 2929.12(B)(2), the court remarked that the victim, Sharon Crawford, "suffered serious physical * * * harm as a result of the offense, naturally the most serious physical harm [a person] can suffer, loss of life."Id. at 251. Ivkovich argues that because "the death of another" is an element of aggravated vehicular homicide under R.C. 2903.06(A)(1)(a), the court's finding that Crawford's death made the offense "more serious" was "simply improper." Appellant's Br. 19.

{¶ 37} Although this argument has merit to the extent that the trial court considered Crawford's death as a factor indicating that Ivkovich's conduct was more serious than conduct normally constituting a violation of R.C. 2903.06(A)(1)(a), the sentence imposed by the court falls within the permissible statutory range of two to eight years. R.C. 2929.14(A)(2) ; Tr. of Proceedings 252. The sentence, in other words, was not contrary to law. See Rodeffer , 2013-Ohio-5759, 5 N.E.3d 1069, ¶ 32.

{¶ 38} Ivkovich also faults the trial court for its determination "that [his] relationship with [Crawford] facilitated the offense." Tr. of Proceedings 251; see also R.C. 2929.12(B)(6). In his brief, he suggests that his relationship with Crawford "could in theory constitute an exacerbation if there [were] evidence that [she] was, for example, initially unwilling to ride in the car with [him] [because of] his intoxication" and "agreed to ride with him [only] under coercion, deception, or through force, if any of which were facilitated by their relationship." Appellant's Br. 19. Similarly, he suggests that a "scenario could * * * be imagined wherein [Crawford] was unconscious" and was carried to his car, "removing her choice in the matter." Id. at 19, fn.6

{¶ 39} The premise underlying these suggestions is an obvious straw man. That is, Ivkovich presupposes that his relationship with Crawford, his "longtime girlfriend," could not have made his offense more serious for purposes of R.C. 2929.12(B) if she willingly chose to allow him to drive her home. Appellant's Br. 3. Yet, Crawford's choice to ride home with Ivkovich can hardly be considered outside of the context of their romantic involvement, and her choice would seem likely to have been prompted at least in part by the familiarity, if not confidence and trust, that would naturally have arisen in the course of their long-term relationship.

{¶ 40} Having reviewed the record, we find that it supports the trial court's findings for purposes of R.C. 2929.12(B). Irrespective of the trial court's reference to Crawford's death as a factor indicative of greater seriousness pursuant to R.C. 2929.12(B)(2), the sentence imposed fell within the statutory range for a second degree felony and was not otherwise contrary to law. Ivkovich's fourth assignment of error is overruled.

III. Conclusion

{¶ 41} We find that the securing, testing and retention of Ivkovich's blood substantially complied with the requirements established by the Ohio Administrative Code; that Ivkovich voluntarily consented to provide samples of his blood for toxicological analysis; that the trial court informed him that he would have to serve a mandatory period of incarceration; and that the sentence imposed by the trial court was not contrary to law. Therefore, we overrule Ivkovich's assignments of error and affirm the trial court's ruling on his motion to suppress, the acceptance of his plea agreement and the sentence imposed.

HALL, J., concurs.

DONOVAN, J., concurring in judgment only.

      Ivkovich does not appeal the trial court's decision to admit the statements he made while in Miami Valley Hospital. These statements, standing alone, would seem to have been sufficient to support a conviction under R.C. 2903.06(A)(1)(a) and 4511.19(A)(1)(a), given that Ivkovich admitted that he had consumed six to seven beers plus two to three shots. His challenge to the admission of the analysis of his blood is arguably moot as a result. See State v. Barger , 2017-Ohio-4008, 91 N.E.3d 277 (2d Dist.). We have not addressed this issue because it has not been raised or briefed by either of the parties.

      Before the trial court, however, most or all of Ivkovich's argument on this point related to the question of whether the blood samples were refrigerated as required by Ohio Adm.Code 3701-53-05(F). See , e.g. , Decision, Order & Entry Overruling Def.'s Mot. to Suppress in Part 5-7, May 16, 2016.

      When the trial court held the hearing on Ivkovich's motion, the samples had been retained for approximately 326 days, and the entry indicating that the samples were transferred to the property room is dated June 9, 2016. The record does not indicate where the samples were kept between March 21st and June 9th, but they were certainly not discarded. Ivkovich, for that matter, did not request a re-analysis of the samples and has not claimed that he was prejudiced by an inability to have the samples re-analyzed between April 30, 2015 and April 30, 2016.

      In roughly comparable circumstances, advising a suspect of the right to refuse consent is often deemed to be more consistent with a custodial interrogation or an arrest than with a consensual encounter. See , e.g. , State v. Whitt , 5th Dist. Licking No. 10-CA-3, 2010-Ohio-3761, 2010 WL 3190788, ¶ 14-16 (noting appellate decisions in which the reading of the administrative license suspension form was found to vitiate consent); State v. King , 1st Dist. Hamilton No. C-010778, 2003-Ohio-1541, 2003 WL 1571549, ¶ 20-24 (discussing the same issue).


source: Caselaw Access Project

license: Public Domain

text:
    Ladonna M. WILLIAMS, Plaintiff-Appellant v. John M. WILLIAMS, Sr., Defendant-Appellee
    No. 2017-CA-47
    Court of Appeals of Ohio, Second District, Clark County.
    Rendered on February 16, 2018
    GREGORY K. LIND, Atty. Reg. No. 0055227, 20 South Limestone Street, Suite 340, Springfield, Ohio 45502, Attorney for Plaintiff-Appellant
    STACEY R. PAVLATOS, Atty. Reg. No. 0012392, 700 East High Street, Springfield, Ohio 45505, Attorney for Defendant-Appellee
   TUCKER, J.

{¶ 1} Plaintiff-appellant LaDonna Williams appeals from a Final Judgment and Decree of Divorce entered by the Clark County Court of Common Pleas, Domestic Relations Division. She challenges the trial court's distribution of marital assets and its award of attorney fees to John Williams. For the following reasons, the judgment of the trial court will be affirmed.

I. Facts and Procedural History

{¶ 2} The parties were married in November 1993. They have no children as a result of their marriage. Ms. Williams filed a complaint for divorce on August 10, 2015 and Mr. Williams filed an answer. Hearings were conducted over the course of six days beginning in September 2016 and concluding in April 2017.

{¶ 3} Of relevance hereto, the trial court awarded a vacation timeshare membership with Globequest Travel Club to Ms. Williams. The trial court ordered her to reimburse Mr. Williams for his one-half share of that membership. The trial court also awarded Mr. Williams a portion of Ms. Williams' retirement annuity. Finally, the trial court ordered Ms. Williams to pay Mr. Williams' attorney's fees in the amount of $24,308.23.

{¶ 4} Ms. Williams appeals.

II. Globequest Timeshare

{¶ 5} Ms. Williams' first assignment of error states:

THE TRIAL COURT ABUSED ITS DISCRETION BY AWARDING THE DEFENDANT HALF INTEREST IN THE PARTIES' TRAVEL CLUB WITH GLOBEQUEST

{¶ 6} Ms. Williams contends that the trial court erred in awarding Mr. Williams any interest in the Globequest timeshare. In support, she contends Mr. Williams signed a waiver of his interests thereto. Alternatively, she contends that he should be awarded no more than one-third of the timeshare as her daughter, Pamela Mahaney, is also a one-third owner of the timeshare.

{¶ 7} "In Ohio, marital property is defined as any real property, personal property, or interest therein that is owned by either or both spouses that [was] acquired by either or both spouses during the course of their marriage." Smith v. Smith , 182 Ohio App. 3d 375, 2009-Ohio-2326, 912 N.E.2d 1170, ¶ 15 (2d Dist.), citing R.C. 3105.171(A)(3)(a). A trial court has broad discretion when dividing marital property. Bisker v. Bisker , 69 Ohio St.3d 608, 609, 635 N.E.2d 308 (1994), citing Berish v. Berish , 69 Ohio St.2d 318, 432 N.E.2d 183 (1982). Thus, absent an abuse of that discretion, a reviewing court will uphold the trial court's division of that property. Smith at ¶ 16. An abuse of discretion occurs when the trial court's judgment is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 8} As noted, the trial court awarded the timeshare to Ms. Williams. The trial court, however, determined that Mr. Williams was entitled to one-half of the equity in the timeshare as Mahaney did not contribute to the purchase thereof and as all payments were made from marital funds. The trial court further found that Mr. Williams did not release any interest in this timeshare

{¶ 9} The evidence submitted during the hearing demonstrates that in October 2010, Ms. Williams, Mr. Williams and Mahaney executed a membership application with Globequest Travel Club for the purchase of an interest in a vacation timeshare. The purchase price was $12,750, and a down payment was made in the sum of $3,825. In conjunction with the application, all three executed a promissory note in the amount of $8,925.

{¶ 10} Ms. Williams claims that her Exhibit 15 demonstrates that Mr. Williams relinquished all rights to the timeshare. That document purports to be a copy of a memorandum regarding a transfer of equity wherein Mr. Williams indicates he desires to transfer his equity in a Smoky Mountain timeshare to a Nevada timeshare being purchased by Mahaney and Ms. Williams. The memorandum further states that Mr. Williams did not want his "name on file as owner" of the Nevada timeshare.

{¶ 11} We agree with the trial court that the evidence does not support a finding of waiver as to the Globequest timeshare. The Exhibit 15 memorandum, dated April 26, 2005, was executed more than five years prior to the purchase of the Globequest timeshare. Further, from our reading of the memorandum, Mr. Williams did not waive his equity interest in the Nevada timeshare. Instead, he merely stated that he did not want his name on the title to the timeshare. In any event, the memorandum has no connection to the subsequent Globequest purchase.

{¶ 12} We also note Ms. Williams admitted that the down payment and all installment payments on the promissory note were made from joint marital funds. Ms. Williams further admitted that Mahaney did not contribute any funds to the purchase of the timeshare, nor did she make any payments to compensate Mr. or Ms. Williams for her share of the purchase. Thus, we cannot say that the trial court abused its discretion with regard to the requirement that Ms. Williams reimburse Mr. Williams for his one-half share of the monies paid for the timeshare.

{¶ 13} The first assignment of error is overruled.

III. Pension Distribution

{¶ 14} The second assignment of error asserted by Ms. Williams states as follows:

THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING THE DEFENDANT AN AMORTIZED DISTRIBUTION OF THE PLAINTIFF's ASSURANT PENSION PLAN.

{¶ 15} Ms. Williams contends that the trial court erred by awarding Mr. Williams an interest in her pension plan. In support, she contends that he waived his right to that interest. She alternatively argues that the trial court erred with regard to the appropriate amount of his interest.

{¶ 16} We first reject the claim of waiver. Upon her retirement, Ms. Williams had to elect how her pension benefits would be paid. She could elect either a single life annuity or a joint and survivor annuity under which Mr. Williams would receive a percentage of the pension after her death, for the remainder of his life. Election of survivorship benefits would have reduced the monthly pension payments. In order to elect the higher paying, single life annuity, Ms. Williams was required to obtain the signed consent of Mr. Williams. A clear reading of the consent form indicates that it is not a waiver of all interests in the pension, but rather a waiver of survivor benefits.

{¶ 17} We next address the division of the pension. A pension acquired during the marriage is considered to be marital property and is subject to equitable division. Sprankle v. Sprankle , 87 Ohio App. 3d 129, 132, 621 N.E.2d 1310 (9th Dist. 1993) ; R.C. 3105.171(A)(3)(a). "A trial court has broad discretion when considering retirement benefits; flexibility is necessary for the court to make an equitable decision based upon factors relevant to the situation before it." Id. "When distributing retirement benefits in a divorce, a "trial court must apply its discretion based upon the circumstances of the case, the status of the parties, the nature, terms and conditions of the * * * retirement plan, and the reasonableness of the result." Hoyt v. Hoyt , 53 Ohio St.3d 177, 179, 559 N.E.2d 1292 (1990). Further, the trial court must attempt to accomplish two goals: (1) preserve the value of the retirement asset and (2) disentangle the parties' economic affairs to bring finality to the marriage. Id.

{¶ 18} Ohio courts have recognized several methods for the equitable distribution of a spousal interest in a pension fund. 46 Ohio Jurisprudence 3d, Family Law, Section 444. One such method is to "[d]etermine the present value of the fund, calculate the nonemployee spouse's proportionate share, and offset that amount with other marital assets or with a lump sum payment or installment payments from the employee spouse." Id. , citing Sprankle at 132, 621 N.E.2d 1310.

{¶ 19} In this case, there is no dispute that the entire Assurant pension was earned during the marriage. Nor does Ms. Williams contest the use of the present value method for valuation. Instead, she challenges the use of her life expectancy, rather than that of Mr. Williams, in determining the present value of the pension.

{¶ 20} Carter Feltner, a CPA, testified on behalf of Mr. Williams. Ms. Williams stipulated to his qualifications as an expert. Feltner testified as to the method for calculating the present value of the pension. He further testified that because there was no survivor benefit provision in the pension, it was proper to utilize Ms. William's life expectancy in the calculation. Ms. Williams did not present any testimony, expert or otherwise, to contest Feltner's calculations or conclusions.

{¶ 21} Given the evidence before the trial court, we cannot conclude that it abused its discretion in the division of the pension. The second assignment of error is overruled.

IV. Attorney Fees

{¶ 22} Ms. Williams's third assignment of error is as follows:

THE TRIAL COURT ABUSED ITS DISCRETION BY AWARDING THE DEFENDANT HIS ATTORNEY FEES IN THEIR ENTIRETY.

{¶ 23} Ms. Williams contends that the award of attorney fees to Mr. Williams is not equitable. In support, she contends that the trial court made a finding that both parties caused delays in the litigation.

{¶ 24} A divorce court "may award all or part of reasonable attorney's fees and litigation expenses to either party if the court finds the award equitable." R.C. 3105.73(A). In determining whether an award of fees is equitable, "the court may consider the parties' marital assets and income, any award of temporary spousal support, the conduct of the parties, and any other relevant factors the court deems appropriate." Id. The decision whether to award attorney fees is within the trial court's sound discretion and will not be reversed absent an abuse of that discretion.

Janis v. Janis , 2d Dist. Montgomery No. 23898, 2011-Ohio-3731, 2011 WL 3242013, ¶ 78, citing Kapadia v. Kapadia , 8th Dist. Cuyahoga No. 94456, 2011-Ohio-2255, 2011 WL 1849407, ¶ 93.

{¶ 25} It is true that the trial court found both parties displayed a lack of respect toward each other, counsel and the court. However, the trial court went on to note that Ms. Williams was "obstructive, evasive and generally non-compliant through the course of this entire litigation. As mentioned previously, it was not until this Court reminded her of her burden of proof to establish her claimed separate property that she began to cooperate. This case took much longer in terms of discovery efforts and trial time that [sic] it ever should have all of which was a direct and proximate result of Ms. Williams' lack of cooperation."

{¶ 26} From our review of the transcript, we agree with the trial court that, while both parties were obstreperous, the matter was drawn out due to Ms. Williams' failure to cooperate. She clearly did not comply with discovery requests prior to the hearing, and she continued that pattern even after the hearing commenced. Indeed, we note that at the conclusion of the third day of trial, held on February 1, 2017, the trial court admonished Ms. Williams and her counsel to comply with the prior discovery requests. It appears from the record that Ms. Williams did not provide the discovery until the week of the next hearing which was conducted on March 20, 2017.

{¶ 27} While Ms. Williams contends that Mr. Williams, likewise, did not comply with discovery, we find no evidence to support such a claim. The record indicates that Mr. Williams was not in possession of any documentation regarding the parties' marital finances and property as all such evidence remained in the marital residence to which he did not have access.

{¶ 28} The parties were living on limited, fixed incomes consisting of Social Security benefits and pension benefits. Mr. Williams was 79 at the time of the hearings and Ms. Williams was 73. The trial court made an almost equal division of the parties' marital assets with each party receiving a little over $100,000 in assets. The trial court noted that Ms. Williams had other "considerable assets accessible to her" from an inheritance. The record shows that Ms. Williams received an inheritance of well over $500,000 during the marriage which was determined to be her separate property. Thus, the trial court found it equitable for her to pay Mr. Williams' legal fees.

{¶ 29} A review of the record shows that both parties stipulated that the hourly rate, time spent, and total attorney fees of the other party were reasonable. The hourly billing and total fees of both attorneys was submitted on the record. We conclude that the award of attorney fees is supported by the trial court's finding that Ms. Williams caused Mr. Williams to incur unnecessary attorney fees. We cannot say, based upon this record, that the trial court abused its discretion regarding the award of attorney fees. Accordingly, the third assignment of error is overruled.

V. Conclusion

{¶ 30} All of Ms. Williams' assignments of error being overruled, the judgment of the trial court is affirmed.

FROELICH, J. and HALL, J., concur.

      Ms. Williams received approximately $4,000 more in assets as she had pre-marital equity in the marital residence.


author: MAYLE, P.J.

text:
    STATE of Ohio, Appellee v. Omar Hassen SATCHEL, Appellant
    No. S-17-011
    Court of Appeals of Ohio, Sixth District, Sandusky County.
    Decided: February 16, 2018
    Julia R. Bates and Alyssa Breyman, Special Prosecutors, for appellee.
    Brett A. Klimkowsky, Martin, for appellant.
    DECISION AND JUDGMENT
   MAYLE, P.J.

{¶ 1} Appellant, Omar Satchel, appeals the March 23, 2016 judgment of the Sandusky County Court of Common Pleas sentencing him to 36 months in prison. Because Satchel's sentence is not contrary to law, we affirm.

I. Background and Facts

{¶ 2} On May 21, 2015, Satchel was indicted on one count of grand theft in violation of R.C. 2913.02(A)(1) and one count of possessing a firearm while under a disability in violation of R.C. 2923.13(A)(2), both third-degree felonies. The indictment alleges that, on April 4, 2015, Satchel stole and possessed a Cobra .380 caliber handgun belonging to Margaret Sims.

{¶ 3} The possessing a firearm while under a disability charge was tried to a jury on March 22, 2016. There was pretrial publicity in Sandusky County related to Satchel, the gun he allegedly possessed in this case, and an ongoing homicide investigation. As a result, the court and counsel conducted individual voir dire of the prospective jurors who had seen something about Satchel or this case in the media. This resulted in extended voir dire of 12 prospective jurors, five of whom were ultimately excused for cause. Nevertheless, the trial court was able to seat a panel of 12 jurors and one alternate.

{¶ 4} The state's first witness was Diane Tiseo, a parole agent for the Michigan Department of Corrections. She testified that Satchel has been on parole in Michigan since December 2010, and that she is his parole officer. The state admitted into evidence certified copies of Satchel's Michigan convictions and sentence. Tiseo confirmed that Satchel was placed on parole following his prison term for home invasion and domestic violence convictions in 2008.

{¶ 5} As part of her parole orientation with Satchel, Tiseo explained Michigan's zero-tolerance weapons policy, which prohibits a convicted felon from using or possessing any gun or imitation gun and any ammunition. The policy also prohibits a convicted felon from knowingly being in the company of a person who possesses a weapon. Satchel signed and received a copy of Michigan's conditions of parole, which included the weapons policy. Tiseo said that Satchel stopped reporting to her in January 2014. As a result, Tiseo placed him on absconder status and issued a warrant for his arrest.

{¶ 6} The state's next witness was Lawrence Shields. He testified that he sold a working .380 caliber Cobra handgun and some .380 ammunition to Margaret Sims in February 2015. He identified state's exhibit J-a box for a Cobra .380 handgun and a box of .380 bullets-as the items that he sold to Sims.

{¶ 7} On cross, Shields identified two receipts that he created when he sold handguns to Sims. Both were for Cobra .32 caliber handguns. One was sold in June 2014 and the other in January 2015. On redirect, Shields clarified that the January 2015 receipt contained a typographical error; he had, in fact, sold Sims a .380 handgun, not a .32. He also agreed that he sold the .380 handgun to Sims in January 2015, not February 2015.

{¶ 8} Sims was the state's third witness. She testified that she purchased a Cobra .380 caliber handgun from Shields in January 2015. She identified the box the gun came in and the box of ammunition in state's exhibit J as the items that she purchased from Shields. She kept the gun and bullets in the drawer of the dresser in her bedroom.

{¶ 9} Sims said that she had known Satchel for approximately a year-and-a-half and he occasionally lived with her. Satchel was living with Sims in early April 2015, when they took a trip to Detroit.

{¶ 10} At some point between January and April 2015, Sims showed Satchel the .380 handgun. She said that he looked at it and handed it back to her. She also testified about a time when she picked up Satchel's coat when he was not around. She noticed that the coat was heavier than normal and found the gun in the pocket. She took the gun out of the coat and put it back in the box in her dresser drawer.

{¶ 11} In late April or early May 2015, Detective Sean O'Connell of the Sandusky County Sheriff's Office came to Sims's home to ask her about the .380 handgun. Sims already knew that the gun was missing, but she showed O'Connell the gun box and bullets in her dresser drawer. Sims was unsure when the gun had been taken and did not know who had taken it. Even so, she did not report it stolen.

{¶ 12} On cross-examination, Sims testified that she was not absolutely sure about the caliber of the guns she purchased from Shields. She agreed that the receipt Shields prepared in January 2015 said that she purchased a .32 caliber handgun and that the box the gun came in said it was a .380 caliber handgun.

{¶ 13} When asked about the trip to Detroit, Sims said that she did not recall Satchel having possession of the gun that day and did not think that the gun came to Detroit with her and Satchel.

{¶ 14} Sims confirmed that she did not know when the gun had disappeared and did not know what happened to the gun. She claimed that any number of people could have entered her house and taken the gun because there are four to six people who have copies of her house key.

{¶ 15} Finally, the state called O'Connell. He testified that he was investigating a homicide case in 2015 and had information that Satchel might have had the gun involved in the murder. He went to Sims's house on May 4, 2015, to ask about the gun, which Sims admitted to owning. She took O'Connell to her bedroom where she kept the gun, but when she opened the gun box, the gun was not in it. He identified the box of .380 ammunition and the empty Cobra .380 handgun box in state's exhibit J as the items he took from Sims's home on May 4.

{¶ 16} On May 5, 2015, Satchel was arrested. O'Connell interviewed him while he was in custody. During the interview, Satchel admitted to taking the Cobra .380 handgun from Sims on April 4 and selling it to someone on the street during their trip to Detroit a day or two later.

{¶ 17} On cross, O'Connell admitted that he was not investigating Satchel for a weapons under disability violation in May 2015. Rather, he was conducting a murder investigation. O'Connell believed that Sims's .380 caliber handgun had been used in a murder and he went to her house looking for a murder weapon. O'Connell did not find the gun at Sims's house, nor had he found it at the time of the trial. He said that the investigation of the murder case (including the whereabouts of the gun) was ongoing. O'Connell agreed that Satchel was cooperative with the investigation and freely provided his fingerprints, a DNA sample, and his cellphone to O'Connell.

{¶ 18} O'Connell also admitted that he did not find a witness who placed the missing gun in Satchel's hand on April 4. In fact, the only evidence that Satchel ever possessed the gun on April 4 was Satchel's statement during his interview with O'Connell.

{¶ 19} After hearing the testimony, the jury convicted Satchel of possessing a firearm while under a disability. The court immediately proceeded to sentencing. After hearing from counsel and Satchel, the court made the following statements:

I believe that the jury made a proper decision. I don't see a great mystery here. By your own confession admitted possession of the gun and admitted or-and through the testimony of Margaret, you-you clearly knew where the gun was located. It came up missing, and-and then by your testimony through the interrogation admitted that you took it and you sold it conveniently some time before April 9th.
We took 40 people off the street to come and hear your case. I think that all I can judge you on is your-your history and conduct in this case, and I think the appropriate punishment is you clearly knew that guns were off limits, and you put yourself in possession of one, so I would impose the maximum sentence, which is three years prison.

{¶ 20} Satchel objects to his sentence, raising one assignment of error:

Whether the Trial Court erred by imposing an unconstitutional trial tax on Appellant at the time of sentencing for Appellant having exercised Appellant's constitutional right to a jury trial.

II. Law and Analysis

{¶ 21} In Satchel's assignment of error, he argues that the trial court violated his due process rights by imposing a "trial tax" on him. That is, Satchel contends that the trial court sentenced him more harshly than it would have if he had not exercised his right to a jury trial. The state counters that Satchel's sentence is lawful because he fails to show that the trial court acted with actual vindictiveness.

{¶ 22} We review sentencing challenges under R.C. 2953.08(G)(2). The statute allows an appellate court to increase, reduce, or otherwise modify a sentence or vacate the sentence and remand the matter for resentencing only if it clearly and convincingly finds either of the following:

(a) That the record does not support the sentencing court's findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law. R.C. 2953.08(G)(2).

{¶ 23} We note that Satchel does not challenge the trial court's compliance with any of the sentencing statutes in R.C. 2953.08(G)(2)(a). Rather, he claims that the trial court's sentence is contrary to law because the trial court punished him for exercising his right to a jury trial. This argument is without merit.

{¶ 24} "[A] sentence vindictively imposed on a defendant for exercising his constitutional right to a jury trial is contrary to law." State v. Rahab , 150 Ohio St.3d 152, 2017-Ohio-1401, 80 N.E.3d 431, ¶ 8. To determine whether the trial court acted with vindictiveness when it sentenced the defendant, we review the entire record-including the court's statements, the evidence presented at trial, and the information presented at sentencing-to see if there is evidence of actual vindictiveness. Id. at ¶ 19. "We will reverse the sentence only if we clearly and convincingly find the sentence is contrary to law because it was imposed as a result of actual vindictiveness on the part of the trial court." Id. An "intemperate" statement that gives the "appearance that [the trial court] is chiding a defendant for exercising his constitutional right to a jury trial"-without more-is not evidence of actual vindictiveness. See id. at ¶ 27.

{¶ 25} The entire basis of Satchel's argument is the trial court's statement that "[w]e took 40 people off the street to come and hear your case." He characterizes this as evidence that the court was "obviously frustrated that its time was being wasted despite the existence of the confession * * *." He claims that the statement, when combined with the trial court's immediate sentencing and failure to order a presentence investigation, "unequivocally demonstrates" that the court considered Satchel's exercise of his right to a jury trial when it decided what sentence to impose on Satchel. Although we believe that the trial court's statement was inappropriate, when read in context and in conjunction with the rest of the trial and sentencing hearing, we do not believe that this isolated comment shows actual vindictiveness.

{¶ 26} The record shows that the trial court had before it evidence of Satchel's criminal history, his confession that he took Sims's gun and sold it in Detroit, and his failure to report to his Michigan parole officer after January 2014. The trial court evidently took all of this into consideration when it determined that three years was the appropriate punishment for Satchel's conduct. Moreover, the trial court was not required to postpone the sentencing or order a presentence investigation. R.C. 2947.06(A)(1) ("The court shall determine whether sentence should immediately be imposed. The court on its own motion may direct the department of probation * * * to make any inquiries and presentence investigation reports that the court requires concerning the defendant.") (Emphasis added.); State v. Tunison , 6th Dist. Wood No. WD-13-046, 2014-Ohio-2692, 2014 WL 2854212, ¶ 17, quoting State v. Adams , 37 Ohio St.3d 295, 525 N.E.2d 1361 (1988), paragraph four of the syllabus (" 'The decision to order a presentence report lies within the sound discretion of the trial court.' "). Based on our review of the record, we do not find clear and convincing evidence that the trial court sentenced Satchel out of actual vindictiveness. We therefore find that Satchel's sentence is not contrary to law, and his assignment of error is not well-taken.

III. Conclusion

{¶ 27} Based on the foregoing, the March 23, 2016 judgment of the Sandusky County Court of Common Pleas is affirmed. Satchel is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

Mark L. Pietrykowski, J.

Thomas J. Osowik, J.

CONCUR.

      The state dismissed the grand theft charge following opening statements.


author: FROELICH, J.

text:
    James A. HEARD, Plaintiff-Appellant v. DAYTON VIEW COMMONS HOMES, Defendant-Appellee
    No. 27706
    Court of Appeals of Ohio, Second District, Montgomery County.
    Rendered February 16, 2018
    JAMES A. HEARD, 100 Audubon Park, Dayton, Ohio 45402, Plaintiff-Appellant, Pro Se
    WILLIAM H. KOTAR III, Atty. Reg. No. 0073462, 7550 Lucerne Drive, Suite 408, Middleburg Heights, Ohio 44130, Attorney for Defendant-Appellee
   FROELICH, J.

{¶ 1} James A. Heard appeals from a judgment of the Montgomery County Court of Common Pleas, which granted summary judgment in favor of Dayton View Commons Homes and Oberer Management Services (collectively "Dayton View") on Heard's claim for personal injury. For the following reasons, the judgment of the trial court will be affirmed.

{¶ 2} Heard's pro se complaint was filed on November 17, 2016. The complaint had several attachments and alleged that, on November 24, 2014, he had fallen at the threshold of his apartment because of water that had seeped under the exterior door, a problem about which he had previously complained to management. He stated that he hit his back, neck, and head on the ground, that the fall caused him to have surgery on his "cervical," and that treatment was ongoing. He sought $5 million in compensatory and punitive damages. No specific medical records or expert opinions were attached to the complaint.

{¶ 3} Dayton View filed an answer denying Heard's allegations and raising affirmative defenses. It also filed a notice disclosing its expert witness, a notice to take a medical examination (of Heard), and a notice to take Heard's deposition.

{¶ 4} On May 25, 2017, Dayton View filed a motion for summary judgment. The motion stated that Heard alleged that he had neck surgery as a result of his fall, but that his medical records indicated that his physicians had been recommending neck surgery for a couple of years prior to the fall. Dayton View's motion also asserted that Heard presented "no expert testimony to establish that the neck surgery was in any way proximately related to the alleged slip and fall." The motion relied on Heard's deposition testimony.

{¶ 5} Heard did not file a response to the motion for summary judgment. On July 28, 2017, the trial court granted Dayton View's motion.

{¶ 6} Heard filed a notice of appeal and a pro se brief. The brief does not set forth assignments of error or otherwise comply with App.R. 16(A), but it does demonstrate that Heard disagrees with the trial court's award of summary judgment.

Summary Judgment Standard

{¶ 7} Pursuant to Civ.R. 56(C), summary judgment is proper when (1) there is no genuine issue as to any material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds, after construing the evidence most strongly in favor of the nonmoving party, can only conclude adversely to that party. Zivich v. Mentor Soccer Club, Inc., 82 Ohio St.3d 367, 369-370, 696 N.E.2d 201 (1998). The moving party carries the initial burden of affirmatively demonstrating that no genuine issue of material fact remains to be litigated. Mitseff v. Wheeler, 38 Ohio St.3d 112, 115, 526 N.E.2d 798 (1988). To this end, the movant must be able to point to evidentiary materials of the type listed in Civ.R. 56(C) that a court is to consider in rendering summary judgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996).

{¶ 8} Once the moving party satisfies its burden, the nonmoving party may not rest upon the mere allegations or denials of the party's pleadings. Dresher at 293, 662 N.E.2d 264 ; Civ.R. 56(E). Rather, the burden then shifts to the nonmoving party to respond, with affidavits or as otherwise permitted by Civ.R. 56, setting forth specific facts that show that there is a genuine issue of material fact for trial. Id. The non-moving party has the burden "to produce evidence on any issue for which that party bears the burden of production at trial" and may not rest upon unsworn or unsupported allegations in the pleadings. Parker v. Bank One, N.A. , 2d Dist. Montgomery No. 18573, 2001 WL 303284, * 3, citing Leibreich v. A.J. Refrigeration, Inc. , 67 Ohio St.3d 266, 269, 617 N.E.2d 1068 (1993), Wing v. Anchor Media, Ltd. , 59 Ohio St.3d 108, 111, 570 N.E.2d 1095 (1991), and others. Throughout, the evidence must be construed in favor of the nonmoving party. Dresher at 293, 662 N.E.2d 264.

{¶ 9} In its motion for summary judgment, Dayton View misstated the standard for summary judgment. Citing Wing , it argued that the party moving for summary judgment "is not required to present evidence negating elements of the Plaintiff's claim. Rather, the party opposing summary judgment has the burden of producing specific evidence to establish each element of each claim for which he bears the burden of production at trial." Actually, it is only once the moving party had met its burden of pointing to evidentiary material that shows there is no genuine issue of material fact that the non-moving party has to do anything. Regardless, the trial court utilized the correct standard, i.e., that the moving party bears the initial burden of showing that no genuine issue of material fact exists for trial.

{¶ 10} We review the trial court's ruling on a motion for summary judgment de novo. Schroeder v. Henness, 2d Dist. Miami No. 2012 CA 18, 2013-Ohio-2767, 2013 WL 3356564, ¶ 42. De novo review means that this court uses the same standard that the trial court should have used, and we examine the evidence, without deference to the trial court, to determine whether, as a matter of law, no genuine issues exist for trial. Ward v. Bond, 2d Dist. Champaign No. 2015-CA-2, 2015-Ohio-4297, 2015 WL 6110247, ¶ 8.

Proximate Causation

{¶ 11} In order to prevail on a negligence claim, "one seeking recovery must show the existence of a duty, the breach of the duty, and injury resulting proximately therefrom." Strother v. Hutchinson , 67 Ohio St.2d 282, 285, 423 N.E.2d 467 (1981) ; Long v. Speedway, L.L.C., 2d Dist. Montgomery No. 26851, 2016-Ohio-3358, 2016 WL 3219642, ¶ 7. In Heard's case, the trial court found that there was no genuine issue of material fact as to proximate causation and did not specifically address the other elements.

{¶ 12} Proximate cause is generally established " 'where an original act is wrongful or negligent and, in a natural and continuous sequence, produces a result [that] would not have taken place without the act.' " Vlcek v. Brogee , 2d Dist. Montgomery No. 25499, 2013-Ohio-4250, 2013 WL 5436930, ¶ 24, citing Innovative Technologies Corp. v. Advanced Mgt. Technology, Inc., 2d Dist. Montgomery No. 23819, 2011-Ohio-5544, 2011 WL 5137204, ¶ 31. The issue of proximate cause is not open to speculation; as a matter of law, conjecture as to whether the breach of duty caused the particular damage is not sufficient. Id.

{¶ 13} " 'Except as to questions of cause and effect which are so apparent as to be matters of common knowledge, the issue of causal connection between an injury and a specific subsequent physical disability involves a scientific inquiry and must be established by the opinion of medical witnesses competent to express such opinion.' " Lane v. Bur. of Workers' Comp. , 2d Dist. Montgomery No. 24618, 2012-Ohio-209, 2012 WL 175418, ¶ 60, citing Wright v. Columbus , 10th Dist. Franklin No. 05AP-432, 2006-Ohio-759, 2006 WL 391823, ¶ 6. Soft-tissue injuries like neck and back strains and sprains require expert testimony to establish a causal connection, because they are injuries that are "internal and elusive, and are not sufficiently observable, understandable, and comprehensible" to be matters of common knowledge. Id. , citing Wright at ¶ 19.

Analysis

{¶ 14} In support of its motion for summary judgment, Dayton View relied on Heard's deposition testimony. In his deposition, Heard, age 59, testified that he had experienced back pain for many years prior to his fall, had been on disability since 2005 for back pain, and had been treated for pain management for "a very long time" with injections and physical therapy. Heard was advised by his doctor in 2012 to get a spinal cord stimulator implant, but he refused.

{¶ 15} Heard further testified that, in 2013, he began experiencing neck pain and tingling in his left arm following a motor vehicle accident, and he continued to have lower back pain; he again refused to consider a spinal cord stimulator. His medical records, about which he was questioned during the deposition, indicated that his chief complaint at that time was neck pain. Heard was also advised by his doctor that he should have surgery to decompress his spine to prevent further damage, symptoms, or loss of function in his limbs, including possible paralysis. Although Heard refused to have the surgery at that time, he acknowledged that he had been informed that surgery might be needed in the future if his condition deteriorated. Heard also acknowledged that his discussion with his doctor in 2013 included discussion of whether surgery on his back and neck could be done at the same time.

{¶ 16} In January 2014, several months before Heard's fall at his apartment, he had an MRI, which his doctors compared with an MRI he had had in 2012. According to Heard, the doctor told him that his spine "was compressed worse" than it had been previously.

{¶ 17} Heard testified that, when he fell, his neighbor immediately called for an ambulance and he was taken to a hospital; he got a "pain shot" and x-rays were taken, but the nurse or technician "didn't see anything in the X rays." He was released the same day, and he "hadn't followed up with anybody" for medical care. However, Heard's neck and shoulder "got to hurting really, really bad where [he] was starting to lose mobility," so he eventually called his "orthopedic," who again recommended that he have surgery for "severity of the cervical." The time that had elapsed is unclear, but Heard's testimony about his medical records indicates that he saw a doctor on January 16, 2015, at which time he reported numbness and tingling in his hand. Another MRI was scheduled for June 2015. Heard had surgery on his neck in July 2015.

{¶ 18} When Heard was asked during his deposition how he had gotten the idea that his fall created the need for surgery, he answered, "Because I was having no problems with my neck until after the fall." But he acknowledged that he had been told in 2013 that he might need an operation on his neck in the future; Heard told the doctor at that time that surgery "wasn't necessary" because he "wasn't having any complications." Heard testified in his deposition that his pain had worsened after his fall, but he also testified that such a deterioration of his condition had been anticipated by and discussed with his physicians prior to the fall. Heard could not remember whether anyone had ever told him that the need for surgery was related to his November 2014 fall. Heard stated that he had not hired an expert to evaluate this issue, because he could not afford one.

{¶ 19} Based on Heard's deposition testimony, the trial court found that he had experienced neck and back pain prior to his fall. He had discussed with his doctor the option of surgery at that time to decompress his spinal cord, the possible need to have surgery in the future, and the potential for further deterioration of his condition. The trial court found that Dayton View had presented evidence that Heard had neck issues prior to the fall. Heard did not present an expert opinion as to the existence of a different injury after the fall, the aggravation of a pre-existing condition, or the reason for the July 2015 surgery. The trial court concluded that his own lay opinion could not create a genuine issue of material fact that would refute the medical evidence that there were other causes of Heard's neck pain, as presented by Dayton View through Heard's testimony about his medical records. Thus, the court concluded that, even construing the evidence in the light most favorable to Heard, Heard had not met his burden of showing that there was a genuine issue of material fact on proximate causation, i.e., that his fall had created a neck injury and/or the need for surgery on Heard's neck.

{¶ 20} This case is closely analogous to Jacobs v. Gateway Property Mgt. , 8th Dist. Cuyahoga No. 84973, 2005-Ohio-1983, 2005 WL 991902, where a tenant fell in his apartment after water leaked from a pipe onto the floor. The tenant alleged that he suffered back injuries as a result of his fall, but he did not produce medical records documenting treatment for the fall or an expert opinion regarding the cause of his injury. His medical records did, however, document a "prior existing back injury." In affirming the trial court's decision granting summary judgment to the landlord, the Eighth District observed that "expert testimony and * * * treatment records for the instant slip and fall [were] especially crucial" because of the pre-existing injury and that, in the absence of such evidence, the tenant "did not meet his burden of establishing a direct and proximate causal relationship between the claimed injury and the slip and fall." Id. at ¶ 13. (The court also found that the water on the floor was an open and obvious hazard about which the tenant was "fully aware," such that he failed to establish that the landlord had a duty to protect him from the hazard. Id. at ¶ 15.)

{¶ 21} The trial court did not err in granting summary judgment in favor of Dayton View. Dayton View pointed to evidentiary material-Heard's medical records-that tended to prove that the fall was not the cause of the injury and surgery. Although Heard stated at one point that he "was having no problems with his neck until after the fall," his specific testimony about his medical records and history contradicted this statement; his deposition testimony about his medical records clearly indicated that he suffered from neck pain before the fall. No expert testimony or medical records linked the subsequent treatment to the fall, as opposed to his pre-existing neck problems. Under the circumstances presented in this case, where pre-existing neck pain and a likely need for surgery were documented in Heard's medical records, he was required to provide expert medical testimony or other evidentiary material to support his assertion that the fall was the cause of some or all of his neck pain, and thus to create a genuine issue of material fact. In the absence of such evidence, summary judgment was appropriate.

{¶ 22} The judgment of the trial court will be affirmed.

HALL, J. and TUCKER, J., concur.

      A letter from United Healthcare to Heard was attached to the complaint, along with other non-medical documents. The letter referenced "treatment" on June 2, 2016 (more than 18 months after Heard's fall), but it contained no information about the nature of the treatment or the specific provider; rather, it sought information about the cause of Heard's "accident or injury" which led him to seek that treatment.


author: HALL, J.

text:
    STATE of Ohio, Plaintiff-Appellee v. Matthew A. NORRIS, Defendant-Appellant
    No. 2017-CA-7
    Court of Appeals of Ohio, Second District, Miami County.
    Rendered on February 16, 2018
    STACY M. WALL, Atty. Reg. No. 0070114, 201 W. Water Street, Piqua, Ohio 45356, Attorney for Plaintiff-Appellee
    SEAN BRINKMAN, Atty. Reg. No. 0088253, 10 W. Monument Avenue, Dayton, Ohio 45402, Attorney for Defendant-Appellant
   HALL, J.

{¶ 1} Matthew Norris appeals his conviction for unauthorized use of a vehicle. Finding no error, we affirm.

I. Background

{¶ 2} Norris was charged with unauthorized use of a vehicle under R.C. 2913.03(A), which prohibits a person from using or operating a vehicle "without the consent of the owner or person authorized to give consent." He had been caught using a van belonging to his employer, Hemm's Glass, after he drove home to Miami County one evening from a jobsite in the Cincinnati area and then took his son to school the next morning, both of which violate the employer's written vehicle-use policy. At a bench trial, Norris did not dispute either use. Nor did he dispute that he had received a copy of the vehicle-use policy, which does not allow an employee to drive a company vehicle home and does not allow non-employees to ride in a company vehicle. Rather, Norris sought to establish that he "reasonably believed" he was allowed to use the van for personal matters, an affirmative defense under R.C. 2913.03(C)(1).

{¶ 3} The trial court concluded that Norris failed to establish the affirmative defense and found him guilty. The court imposed a 180-day suspended jail sentence and a fine.

{¶ 4} Norris appealed.

II. Analysis

{¶ 5} In his sole assignment of error, Norris argues that his conviction is against the manifest weight of the evidence.

{¶ 6} "A manifest-weight challenge requires us to consider the entire record, including the credibility of the witnesses, the weight of the evidence, and any reasonable inferences and determine whether ' "the [trier of fact] clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." ' " State v. Montgomery , 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶ 75, quoting State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). " 'The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.' " Thompkins at 387, 678 N.E.2d 541, quoting Martin at 175, 485 N.E.2d 717.

{¶ 7} At trial, Norris and several other company employees testified. The testimony shows that Hemm's Glass is based in Piqua, which is also where Norris lived. In October 2016, the company had a job in Cincinnati and Norris was on the work crew. The job was expected to last several months, and the crew would meet in Piqua on Monday mornings and then drive to the jobsite. They would spend the week down there, sleeping in a hotel. Norris was authorized to drive a company van for this job. Randy Kidder was the jobsite foreman, which meant that he ran the work crew and generally oversaw the job. He was Norris's immediate supervisor.

{¶ 8} After work on Monday October 17, Kidder called the crew at the hotel and told them that they would not be needed on the jobsite the next day. He told them that they could either go back to Piqua and work in the shop or stay in the hotel and take the day off. Norris asked Kidder if he could go home for the day. Norris testified that Kidder told him that he could go home but not to do anything stupid and not to get caught. Kidder denied giving Norris permission to drive home. Kidder testified that he did not have authority to allow an employee to use a company vehicle for personal matters. And he said he told the crew that if they stayed, they were not allowed to use the company vehicles for personal matters. Kidder admitted, though, that he also told Norris especially not to use the company vehicle if he was going to drink.

{¶ 9} Corey Kemp, another crew member, testified that he was in the hotel room when Kidder called and heard Norris ask Kidder if they could go home. Kemp said that Kidder responded, "don't get caught." (Tr. 53). Kemp said that he understood Kidder's response to mean that they had permission to use the company van to drive home on the day off. Kemp also testified that Kidder never told them that they were not allowed to drive the company van outside of work time.

{¶ 10} Norris testified that the crew had used the company vehicles after work before for personal matters. He said that the first time occurred when he first started the job and forgot to bring clothes. So they drove to Goodwill to buy some. Norris said that they drove to Dollar General to buy eating utensils and then to the grocery store to buy food. On another occasion, said Norris, he drove home to Piqua to pick up batteries for his tools, which had been delivered to his house. Kemp testified about personal trips home too. He said that Kidder knew about them because they would tell Kidder that they were going home and would be back for work the next morning. Kemp also said that they sometimes drove the van after work to meet Kidder for dinner or drinks. Kidder testified that the crew was allowed to use the company vehicles for things like getting dinner. This history of using the company vehicles for personal matters, Norris testified, gave him further reason to believe that he had permission to drive the van home.

{¶ 11} The parties stipulated to Hemm's Glass's vehicle-use policy and it was admitted into evidence. Eric Swingle, the Director of Operations at the company, testified that Norris was not authorized to use the company van in Piqua. Swingle said that the van should have been at the job site in Cincinnati. And he testified that, based on his investigation, there was no reason that Norris would have been permitted to drive the company van to his home. Swingle also testified that only company employees are permitted to ride in company vehicles. He said that there is no exception for employees' children.

{¶ 12} The vehicle-use policy and the testimony establish that Norris violated the unauthorized-use-of-a-vehicle statute by driving the company van home "without the consent of the owner or person authorized to give consent." The question is whether the evidence establishes the affirmative defense that Norris "reasonably believed" that he was authorized to drive the van home and to give his son a ride to school. Norris argues that the evidence shows that he had such a reasonable belief, citing the previous uses of company vehicles for personal matters, that Kidder knew about these personal uses, and that Kidder told him he could drive the company van home.

{¶ 13} The trial court found that there was a "wink and a nod" policy about using company vehicles for reasons outside the company's vehicle-use policy. But the court said that it is unclear whether the person who gave the "wink and nod" had the authority to do so. Although Kidder was the jobsite supervisor, said the court, the testimony does not establish that he was responsible for enforcing the vehicle-use policy, though the court acknowledged that he does appear to have been the person in control of the vehicles that were used on the Cincinnati job. The court evidently did not give Kidder's testimony much weight, calling it "suspect and self-serving." The trial court said that when Kidder told Norris to "go ahead but don't get caught" using the van, he was not giving him permission but was rather warning Norris that using the vehicle was contrary to company policy. The court pointed out that even though the past personal uses of company vehicles about which Norris testified violated a strict reading of the vehicle-use policy, the uses were at least tangentially related to work. Which, said the court, cannot be said of Norris's use here. His use of the company van to drive his son to school, said the court, is a clear violation. The policy expressly prohibits transporting an unauthorized person in a company vehicle.

{¶ 14} "[T]he burden of proof, by a preponderance of the evidence, for an affirmative defense, is upon the accused." R.C. 2901.05(A). The evidence here regarding authorization for use of the vehicle was in dispute. We cannot say that the trial court "clearly lost its way" by failing to accept Norris' contention that he had a reasonable belief that he was authorized to drive the company van to his home. Moreover, we conclude the trial court did not lose its way by finding that Norris did not prove that he had a reasonable belief that he was authorized to use the van to drive his son to school. This is not one of those "exceptional case[s] in which the evidence weighs heavily against conviction."

III. Conclusion

{¶ 15} The sole assignment of error is overruled. The trial court's judgment is affirmed.

FROELICH, J. and TUCKER, J., concur.

      After dropping off his son, Norris hit a child on a bicycle. The police were called, and Norris was charged.


author: Myers, Presiding Judge. Miller, J., dissenting.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Lakisha HOWELL, Defendant-Appellant.
    NO. C-170158
    Court of Appeals of Ohio, First District, Hamilton County.
    February 16, 2018
    Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
    Raymond T. Faller, Hamilton County Public Defender, and Carrie Wood, Assistant Public Defender, for Defendant-Appellant.
   Myers, Presiding Judge.

{¶ 1} Defendant-appellant Lakisha Howell has appealed from the trial court's entry convicting her upon a no-contest plea to operating a vehicle while under the influence of alcohol in violation of R.C. 4511.19(A)(1)(a).

{¶ 2} In two assignments of error, Howell argues that the trial court erred in denying her motion to suppress based on both the alleged unlawful stop of her automobile and the alleged unlawful administration of field-sobriety tests. Because the stop of Howell's vehicle was not supported by probable cause or reasonable suspicion, we hold that the trial court erred in failing to grant her motion to suppress.

Factual and Procedural Background

{¶ 3} On August 6, 2014, Ohio State Highway Patrol Trooper Aaron Shade conducted a traffic stop of a vehicle driven by Howell. Following the stop, Howell was cited for failure to dim headlights in violation of R.C. 4513.15 and placed under arrest for operating a vehicle while under the influence of alcohol in violation of R.C. 4511.19(A)(1)(a) and 4511.19(A)(1)(d).

{¶ 4} Howell filed a motion to suppress challenging the traffic stop, the administration of field-sobriety tests, and her arrest. At a hearing on the motion, Trooper Shade testified that he had been patrolling westbound on Interstate 275 at approximately 2:30 a.m., when Howell's vehicle approached him from behind. Howell had her high beams on as she approached, but dimmed them when she got close to the trooper's vehicle. Trooper Shade observed Howell "bouncing" a little back and forth in her lane while she was behind him. He testified that she had not committed a lane violation and had not been driving erratically. He explained that the bouncing did not constitute a marked-lanes violation, but it had raised his suspicion because it was "abnormal." Trooper Shade slowed down to allow Howell to pass him, but she continued to stay behind his vehicle. As Howell exited from the interstate, Trooper Shade moved behind her and followed her for a short distance. She did not commit any traffic violations during this time. Trooper Shade testified that the sole reason he stopped Howell was because she had committed a traffic violation by failing to dim her headlights on the interstate.

{¶ 5} Upon approaching Howell's vehicle, Trooper Shade detected an odor of alcohol coming from within the vehicle, and he asked Howell if she had had anything to drink. Howell stated that she had drunk one margarita. Trooper Shade removed her from the vehicle and administered three field-sobriety tests. Based on Howell's performance on the field-sobriety tests, the odor of alcohol that he had detected from within Howell's vehicle, Howell's failure to dim her headlights, and the bouncing within her lane on the interstate, Trooper Shade placed Howell under arrest.

{¶ 6} The trial court denied Howell's motion to suppress, finding that the initial traffic stop had been legal and based upon probable cause. It further found that the field-sobriety tests had been properly administered. As relevant to the traffic stop of Howell's vehicle, the trial court found as a fact that Howell had operated her motor vehicle behind Trooper Shade on Interstate 275 with her high beams illuminated, and that Trooper Shade had stopped Howell's vehicle based on her failure to dim her headlights. The court specifically found that the stop had been a noninvestigatory stop. The trial court denied Howell's motion to suppress upon its conclusion that Trooper Shade had probable cause to conduct a noninvestigatory stop of Howell's vehicle based on her failure to dim her headlights.

{¶ 7} Howell subsequently pled no contest to a violation of R.C. 4511.19(A)(1)(a) and was found guilty. She appealed, but her appeal was dismissed by this court because the trial court had not imposed a sentence, and therefore, the order appealed from was not final and appealable.

{¶ 8} After her appeal was dismissed, the trial court sentenced Howell. She now appeals from the trial court's final entry finding her guilty and imposing sentence. In two assignments of error, she challenges the trial court's denial of her motion to suppress.

Standard of Review

{¶ 9} Our review of a trial court's ruling on a motion to suppress presents a mixed question of law and fact. State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. We must accept the trial court's findings of fact if they are supported by competent and credible evidence, but we review de novo the trial court's application of the relevant law to those facts. Id.

Automobile Stop

{¶ 10} In her first assignment of error, Howell argues that the trial court erred in denying her motion to suppress the stop of her automobile and all evidence gathered following the unlawful stop.

{¶ 11} Because a traffic stop constitutes a seizure within the meaning of the Fourth Amendment to the United States Constitution, the traffic stop must comply with the Fourth Amendment's reasonableness requirement. State v. Slaughter , 1st Dist. Hamilton Nos. C-170110, C-170111 and C-170112, 2018-Ohio-105, 2018 WL 387268, ¶ 10, citing Whren v. United States , 517 U.S. 806, 809-810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). When an officer witnesses a specific violation of the traffic code, a stop of the vehicle in which the violation is committed is supported by probable cause. State v. Johnson , 1st Dist. Hamilton Nos. C-010621 and C-010622, 2002-Ohio-2884, 2002 WL 1300263, ¶ 7.

{¶ 12} In addition, even in the absence of probable cause, an officer may initiate a traffic stop when the officer has a reasonable articulable suspicion that a crime has been, or is being, committed. State v. Foster , 1st Dist. Hamilton No. C-160424, 2017-Ohio-4036, 90 N.E.3d 1282, ¶ 16, citing State v. Mays , 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 7.

An investigatory traffic stop is permitted in such a situation in order for the officer to confirm or refute her or his suspicion. Johnson at ¶ 6. The totality of the circumstances must be examined to determine whether an officer had a reasonable articulable suspicion to initiate a traffic stop. Slaughter at ¶ 12.

{¶ 13} Here, the officer testified, and the court found, that his stop was based on probable cause for the failure to dim, and not an investigatory stop for another violation such as driving under the influence. Trooper Shade testified that he had stopped Howell because she had committed a violation of R.C. 4513.15(A)(1) by failing to dim her headlights as she approached him from behind on the interstate. R.C. 4513.15(A)(1) provides that:

(A) Whenever a motor vehicle is being operated on a roadway or shoulder adjacent thereto during the times specified in section 4513.03 of the Revised Code, the driver shall use a distribution of light, or composite beam, directed high enough and of sufficient intensity to reveal persons, vehicles, and substantial objects at a safe distance in advance of the vehicle, subject to the following requirements;
(1) Whenever the driver of a vehicle approaches an oncoming vehicle, such driver shall use a distribution of light, or composite beam, so aimed that the glaring rays are not projected into the eyes of the oncoming driver.

{¶ 14} Howell argues that she could not have violated R.C. 4513.15(A)(1), because she had been driving in the same direction as Trooper Shade and had not projected her high beams into the eyes of an oncoming driver. She is correct. The plain language of the statute provides that a driver must use a distribution of light that does not project glaring rays when she or he "approaches an oncoming vehicle." In this context, the term "oncoming" unambiguously refers to a vehicle approaching from the opposite direction. Trooper Shade testified that he had been traveling in the same direction as Howell. And the record is devoid of evidence that there was any oncoming traffic at the time that Howell was using her high beams. Consequently, Trooper Shade was mistaken in his determination that Howell had committed a violation of R.C. 4513.15.

{¶ 15} But "[p]robable cause can exist even if the officer incorrectly determines that a traffic violation has occurred or if the officer misunderstands the law that the driver is allegedly violating. The test is whether an objectively reasonable police officer would believe that a traffic violation has occurred based upon the totality of the circumstances." State v. Cronin , 1st Dist. Hamilton No. C-100266, 2011-Ohio-1479, 2011 WL 1195818, ¶ 11. Given the plain language of the statute regulating the distribution of light to be used when "the driver of a vehicle approaches an oncoming vehicle," we cannot find that an objectively reasonable police officer would have believed that a violation of R.C. 4513.15 had occurred in this situation. Trooper Shade's mistake of law was not reasonable. Consequently, we hold that Trooper Shade did not have probable cause to stop Howell's vehicle for a violation of R.C. 4513.15.

{¶ 16} The state argues that even if Trooper Shade lacked probable cause to stop Howell for the headlight violation, he still had a reasonable suspicion under the totality of the circumstances to conduct an investigatory stop to determine if Howell was engaged in criminal activity. The state cites to Trooper Shade's testimony that the traffic stop occurred at 2:30 a.m., that Howell had initially failed to dim her headlights upon coming up behind the trooper's vehicle, that Howell had bounced within her lane, and that she had refused to pass the trooper when he slowed his speed. We find this testimony insufficient to establish a reasonable suspicion that Howell had been engaged in criminal activity. See Cincinnati v. Stringer , 1st Dist. Hamilton Nos. C-070392 and C-070393, 2008-Ohio-2056, 2008 WL 1913377, ¶ 10. While the record indicates that Howell committed minimal weaving within her lane, it is void of evidence that she had been driving erratically. State v. Luckett , 1st Dist. Hamilton Nos. C-070359, C-070360 and C-070361, 2008-Ohio-1441, 2008 WL 821750, ¶ 15 (holding that weaving within one's own lane must be significant or erratic to justify a traffic stop, and that "[m]odest weaving within one's lane, without more, is insufficient"); State v. Brown , 11th Dist. Trumbull No. 2006-T-0077, 2007-Ohio-4626, 2007 WL 2579442, ¶ 15 (holding that modest or minimal weaving within one's lane is insufficient to justify an investigative stop for a violation of R.C. 4511.33(A)(1) ). We further note that the trial court specifically found that Trooper Shade had not been conducting an investigatory stop. And the record contains no evidence that Trooper Shade suspected impaired driving prior to pulling Howell over.

{¶ 17} Because Trooper Shade lacked both probable cause to stop Howell for a violation of R.C. 4513.15, and a reasonable suspicion that she had been engaged in criminal activity, we hold that the trial court erred in failing to grant her motion to suppress. The first assignment of error is sustained. And we do not reach Howell's second assignment of error challenging the trial court's failure to suppress the unlawful administration of field-sobriety tests, because it is rendered moot by our resolution of the first assignment of error.

{¶ 18} The trial court's judgment denying Howell's motion to suppress is reversed, and this cause is remanded for further proceedings consistent with the law and this opinion.

Judgment reversed and cause remanded.

Deters, J., concurs.

Miller, J., dissents.

Miller, J., dissenting.

{¶ 19} The trooper testified he initiated a traffic stop because of his mistake of law regarding the use of bright headlights. But the trooper's subjective mistake of that law is not dispositive of whether the stop was reasonable. "An action is 'reasonable' under the Fourth Amendment, regardless of the individual officer's state of mind, as long as the circumstances, viewed objectively , justify the action." (Citations omitted.) Brigham City, Utah v. Stuart , 547 U.S. 398, 404, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) ; Dayton v. Erickson , 76 Ohio St.3d 3, 665 N.E.2d 1091 (1996) (if the traffic stop is objectively reasonable, the officer's subjective motive for making the stop is irrelevant); State v. Salvato , 1st Dist. Hamilton No. C-980939, 1999 WL 636557 (Aug. 13, 1999) ("Whether probable cause to search existed depends on the objective factors articulated by the officer. If the search is objectively reasonable, the officer's stated reason or motive for the search is irrelevant."). Thus our focus should be whether the stop was reasonable under the totality of the circumstances.

{¶ 20} The trooper also testified that the use of the high beams and the vehicle's bouncing within the marked lane "just raised suspicion." He also testified that he viewed her failure to pass him when he slowed to 55 m.p.h. as unusual. Once the trooper did get behind the vehicle, he "continued to follow her just to see if there were any other signs." He indicated these facts were part of the justification for asking the driver to perform a field-sobriety test, and for arresting her. The facts articulated by the trooper, in my mind, demonstrate that he subjectively possessed a reasonable articulable suspicion of impaired driving when he initiated the stop. And regardless of the trooper's thoughts, these facts objectively justify the stop, which is all the Fourth Amendment requires. Accordingly, I respectfully dissent.