author: SEAN C. GALLAGHER, J.:

text:
    STATE of Ohio, Plaintiff-Appellee v. Alijah K. LEE, Defendant-Appellant
    No. 105894
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: May 10, 2018
    J. Philip Calabrese, Porter Wright Morris & Arthur, L.L.P., 950 Main Avenue, Suite 500, Cleveland, Ohio 44113, ATTORNEY FOR APPELLANT
    Michael C. O'Malley, Cuyahoga County Prosecutor, By: Timothy R. Troup, Assistant Prosecuting Attorney, Justice Center-8th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE
    BEFORE: S. Gallagher, J., E.T. Gallagher, P.J., and Stewart, J.
    JOURNAL ENTRY AND OPINION
   SEAN C. GALLAGHER, J.:

{¶ 1} Alijah Lee appeals his 14-year, aggregate sentence that was imposed by the trial court upon the parties' recommendation. Lee's convictions are affirmed.

{¶ 2} The sentences imposed in this case are not ones that can be reviewed under R.C. 2953.08(D)(1). R.C. 2953.08(D)(1) states as follows:

A sentence imposed upon a defendant is not subject to review under this section if the sentence is authorized by law, has been recommended jointly by the defendant and the prosecution in the case, and is imposed by a sentencing judge.

In that statutory section, the legislature limited appellate jurisdiction with respect to agreed sentences. State v. Noling , 136 Ohio St.3d 163, 2013-Ohio-1764, 992 N.E.2d 1095, ¶ 22 (" R.C. 2953.08(D)(1) is another example of a statutory limit on a court of appeals' jurisdiction to hear an appeal.").

{¶ 3} Lee agreed to serve an aggregate term of 14 years in prison through the imposition of minimum terms on all counts to be served consecutive to each other. Tr. 19:7-11 (confirming that the defendant's plea agreement and jointly recommended sentence included the understanding that all minimum-termed sentences would be consecutively served). A defendant has no right to appeal his sentences if they are jointly recommended by the parties, the trial court imposes the agreed sentences, and the sentences are "authorized by law." R.C. 2953.08(D)(1). State v. Underwood , 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, paragraph two of the syllabus.

{¶ 4} Lee neither claims, nor even remotely suggests, that his sentences are not authorized by law. Lee simply discusses the merits of his sentences without regard to his ability to appeal them under R.C. 2953.08. A defendant's right to appeal a sentence is derived from R.C. 2953.08. Underwood at ¶ 10. "[I]f a jointly recommended sentence imposed by a court is 'authorized by law,' then the sentence 'is not subject to review.' " State v. Sergent , 148 Ohio St.3d 94, 2016-Ohio-2696, 69 N.E.3d 627, ¶ 15. There is no dispute from the record that the trial court imposed the sentence that was jointly recommended. R.C. 2953.08(D)(1). Thus, the only question is whether the sentences imposed are authorized by law.

{¶ 5} Underwood stands for the proposition that "[a] sentence is 'authorized by law' and is not appealable within the meaning of R.C. 2953.08(D)(1) only if it comports with all mandatory sentencing provisions." (Emphasis sic.) Sergent at ¶ 26, quoting Underwood at paragraph two of the syllabus. One of those mandatory provisions is R.C. 2941.25(A). Underwood recognized that "when a sentence is imposed on multiple counts that are allied offenses of similar import in violation of R.C. 2941.25(A), R.C. 2953.08(D) does not bar appellate review of that sentence even though it was jointly recommended by the parties and imposed by the court." (Emphasis added.) Underwood at ¶ 26. Thus, that statutory section prohibits sentencing on multiple offenses only if the trial court determines or the parties concede that the offenses are allied and subject to merger. State v. Williams , 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, ¶ 27-28 ; State v. Rogers , 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860 ; see also Underwood at ¶ 21. If a trial court sentences a defendant on separate counts deemed to be allied offenses, the sentence is both contrary to law and not authorized by law, and a trial court plainly errs in imposing such sentences. Underwood at ¶ 21, 31.

{¶ 6} Often overlooked is the fact that Underwood did not involve an agreement on the merger issue implicating R.C. 2953.08(D)(1). State v. Underwood , 2d Dist. Montgomery No. 22454, 2008-Ohio-4748, 2008 WL 4278145, ¶ 24. After the defendant pleaded guilty, the state prepared a sentencing memorandum conceding that the two counts merged for the purposes of sentencing. Id. The trial court nonetheless imposed concurrent sentences on both counts. Id. at ¶ 27. The error in Underwood was that the court imposed separate sentences on counts deemed to be allied offenses of similar import at the sentencing hearing. No court has authority to impose such sentences, which are void as a matter of law. Williams at ¶ 28. Regardless of R.C. 2953.08(D)(1), an appellate court has authority to review sentences that are void. Id. , citing State v. Singleton , 124 Ohio St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, ¶ 25 (when a sentence is contrary to law, and thus void, it is a nullity-it is as though it never occurred).

{¶ 7} Underwood nevertheless acknowledged the possibility that an agreed sentence that involves a discretionary sentencing decision is unreviewable. Sergent at ¶ 29, citing State v. Porterfield , 106 Ohio St.3d 5, 2005-Ohio-3095, 829 N.E.2d 690. Accordingly, defendants can waive application of R.C. 2941.25. State v. Cunningham , 8th Dist. Cuyahoga No. 104520, 2017-Ohio-4069, 2017 WL 2378124, ¶ 8, citing State v. Booker , 8th Dist. Cuyahoga No. 101886, 2015-Ohio-2515, 2015 WL 3899217, ¶ 18-19. Waiving rights under R.C. 2941.25 arises in a variety of ways and is not limited to an agreement expressly referencing R.C. 2941.25. State v. Black , 2016-Ohio-383, 58 N.E.3d 561, ¶ 16 (8th Dist.), citing Rogers at ¶ 20. Black noted that in Rogers , the Ohio Supreme Court indicated that "[i]t is possible for an accused to expressly waive the protection afforded by R.C. 2941.25, such as by 'stipulating in the plea agreement that the offenses were committed with separate animus.' " (Emphasis sic.) Id., quoting Underwood at ¶ 29. Thus, expressly stipulating that the offenses were committed with a separate animus is not the exclusive method of waiving rights under R.C. 2941.25.

{¶ 8} Agreeing to serve consecutive sentences is equivalent to agreeing that multiple offenses are separate under R.C. 2941.25. The result is the same. The trial court is authorized to impose separate sentences on each count irrespective of the lack of R.C. 2929.14(C)(4) findings that ordinarily render the consecutive sentence as being contrary to law. Sergent, 148 Ohio St.3d 94, 2016-Ohio-2696, 69 N.E.3d 627, at ¶ 29.

{¶ 9} A defendant cannot agree to consecutively serve sentences without agreeing that the court has authority to impose the individual sentences on each count. Stated another way, agreeing to the imposition of multiple sentences is a necessary prerequisite to agreeing to consecutive service, for it is "[o]nly after the judge has imposed a separate prison term for each offense may the judge then consider in his discretion whether the offender should serve those terms concurrently or consecutively." State v. Saxon , 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 9. Therefore, agreeing to consecutively serve multiple sentences includes the defendant's agreement that the sentences are separate for the purposes of R.C. 2941.25.

{¶ 10} In this case, Lee agreed that consecutively serving the minimum prison terms on all counts was part of his plea agreement. Tr. 19:7-11. Lee necessarily waived the argument that the underlying offenses were allied ones of similar import through his agreement to serve all counts consecutively; otherwise, consecutive sentences would not have been possible. See, e.g., Black at ¶ 17. Since Lee waived the merger issue, his sentences are authorized by law. Sergent ; State v. Johnson , 8th Dist. Cuyahoga No. 105904, 2018-Ohio-102, 2018 WL 386587, ¶ 11. This ends the appellate inquiry in this case. We have no authority to review the sentence. R.C. 2953.08(D)(1).

{¶ 11} For the sake of discussion, and in light of the concurring opinion's misplaced focus on Rogers , even if Lee had not waived his right to challenge his sentences under R.C. 2941.25 by agreeing to consecutively serve the separate sentences, he at the least forfeited the merger argument by failing to object to the imposition of multiple sentences at the sentencing hearing. The trial court did not consider R.C. 2941.25 at sentencing because Lee failed to object to his sentences. It is only once the allied-offense issue is raised by the defendant that the mandatory sentencing provision under R.C. 2941.25 may be implicated, but only in situations in which the trial court concludes or the parties concede that the offenses are allied ones of similar import. Williams at ¶ 25-28. Accordingly, the sentences in this case comport with all mandatory sentencing provisions as contemplated under Underwood and R.C. 2953.08(D)(1), even if Lee had not negotiated the question of merger out of the sentencing equation.

{¶ 12} The concurring opinion suggests the existence of a paradox that permits appellate review of the sentences in this case, that under Rogers the appellate court must review the validity of the imposed sentences under the plain-error standard of review in order to determine whether the sentences are "authorized by law" under R.C. 2953.08(D)(1). The existence of plain error, a standard of appellate review, does not resolve or even impact the threshold question of whether a sentence is "authorized by law" under R.C. 2953.08(D)(1), a legal determination focusing on the trial court's mandatory sentencing obligations. The plain-error standard of review necessarily assumes that appellate review of a sentence is authorized under R.C. 2953.08. If an imposed agreed sentence is "authorized by law," we lack jurisdiction to review for plain error. Noling , 136 Ohio St.3d 163, 2013-Ohio-1764, 992 N.E.2d 1095, at ¶ 22. Rogers does not provide a basis to circumvent the R.C. 2953.08(D)(1) limitation on appellate jurisdiction.

{¶ 13} The Ohio Supreme Court has held that when a trial court "finds that convictions are not allied offenses of similar import, or when it fails to make any finding regarding whether the offenses are allied," imposing separate sentences is not contrary to law and any allegations of error must be asserted through a direct appeal. (Emphasis added.) Williams , 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, at ¶ 26, citing Rogers . In other words, there is no mandatory duty for a trial court to sua sponte consider R.C. 2941.25 at sentencing. At one time there could have been. Underwood expressly recognized that "when the plea agreement is silent on the issue of allied offenses of similar import, * * * the trial court is obligated under R.C. 2941.25 to determine whether the offenses are allied." (Emphasis added.) Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, at ¶ 29.

{¶ 14} However, that proposition is no longer valid, if it ever was. See generally Rogers , 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860. In Rogers , it was determined that the burden to raise R.C. 2941.25 at sentencing falls on the defendant and only then does the trial court have an obligation under R.C. 2941.25. Rogers at ¶ 21 ("Thus, by failing to seek the merger of his convictions as allied offenses of similar import in the trial court, Rogers forfeited his allied offenses claim for appellate review."). As a result, there is no mandatory sentencing provision that includes the requirement for the trial court to consider R.C. 2941.25 of its own volition to implicate Underwood .

{¶ 15} Notwithstanding, the concurring opinion concludes that "[a]lthough Lee failed to raise the issue of allied offenses in the trial court, we are required to review his claim for plain error in order to determine whether or not it is reviewable under R.C. 2953.08(D)(1) * * *." If we take this analysis to its logical conclusion, all imposed agreed sentences are subject to the plain-error standard of appellate review because if plain error exists for any reason, the sentences are not "authorized by law" and are thereby subject to appellate review under R.C. 2953.08(D)(1). This circular reasoning unilaterally expands the definition of "authorized by law" and is at the expense of the Ohio Supreme Court's admonition-that even if plain error in the sentencing exists, "an appellate court is not required to correct it" and should only do so with the "utmost caution." Rogers at ¶ 23.

{¶ 16} The resolution of the plain error inquiry does not impact the determination of whether a sentence is "authorized by law." A sentence is "authorized by law" if it comports with all mandatory sentencing provisions because "[a] trial court does not have the discretion to exercise its jurisdiction in a manner that ignores mandatory statutory provisions." Underwood at ¶ 20. R.C. 2941.25 does not include a mandatory obligation for the trial court to consider the allied offense issue in the absence of an objection or agreement. Williams at ¶ 26. Thus, although a sentence that is not "authorized by law" could be considered "plain error" under the right circumstances, the opposite is not necessarily true-these terms are distinct legal concepts. Appellate courts may consider the existence of plain error only if appellate review of the sentence is authorized under R.C. 2953.08(D)(1). We cannot put the proverbial cart before the horse and review to determine whether reversible error exists in determining whether we have jurisdiction to review for error.

{¶ 17} Further, any reliance on R.C. 2953.08(D)(1) as the basis for reviewing the type of sentences imposed in Underwood has been limited by implication. In Williams , 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, the Ohio Supreme Court held that any violation of the mandatory obligation under R.C. 2941.25 through imposing sentences for allied offenses renders those sentences as being contrary to law, and further, any such sentence is void as a matter of law. Id. In the proceedings at issue in Underwood , in its sentencing memorandum, the state had conceded that the some of the offenses were allied under R.C. 2941.25. Underwood , 2d Dist. Montgomery No. 22454, 2008-Ohio-4748, at ¶ 24. The trial court in that case was advised that only one sentence could result on two of the theft offenses, but separate sentences were nonetheless imposed to be served concurrently. Id. at ¶ 27. In Underwood , the Ohio Supreme Court relied on R.C. 2953.08(D)(1) for its authority to review the sentence, concluding that because the sentences were not authorized by law, appellate review was permissible.

{¶ 18} In Williams , the trial court deemed two counts to be allied offenses of similar import, but nonetheless imposed separate sentences to be served concurrently in the sentencing entry. Williams at ¶ 7. The Ohio Supreme Court concluded that those sentences were void and subject to attack irrespective of R.C. 2953.08. A void sentence is always reviewable. Williams at ¶ 22, citing State v. Fischer , 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332 (a sentence that is contrary to law may be reviewed at any time).

{¶ 19} According to Williams , the Underwood analysis interpreting R.C. 2953.08(D)(1) was unnecessary because appellate review was necessarily permitted through the inherent power of the court to correct void judgments. In Rogers , on the other hand, the sentences were not contrary to law or void, and were otherwise authorized by law. The sentences were voidable under the plain error analysis if the defendant could demonstrate such error in the direct appeal. Williams at ¶ 29. However, a defendant's agreement to the imposed sentences, which subsumes issues that could ordinarily be challenged on a direct appeal, divests this court of jurisdiction to review the sentence to determine whether the sentences are voidable under Rogers. R.C. 2953.08(D)(1).

{¶ 20} In consideration of the foregoing, the only review permitted at this juncture is to determine whether we have jurisdiction to review the imposed agreed sentence. Noling, 136 Ohio St.3d 163, 2013-Ohio-1764, 992 N.E.2d 1095. Under R.C. 2953.08(D)(1), we must determine whether the sentences are "authorized by law." See, e.g. , State v. Daniels , 1st Dist. Hamilton No. C-160203, 2017-Ohio-548, 2017 WL 657574, ¶ 12 (forfeiting the merger issue limits the discussion regarding merger to plain error review for the purposes of determining whether a sentence is authorized by law); State v. Fleischer , 7th Dist. Jefferson No. 16 JE 0011, 2017-Ohio-7762, 2017 WL 4220475, ¶ 23 (asserting the same); see also Black , 2016-Ohio-383, 58 N.E.3d 561, at ¶ 19 (8th Dist.). A sentence is authorized by law if it comports with all mandatory sentencing provisions. Underwood at ¶ 23.

{¶ 21} Lee advanced a single claim that permeated every appellate argument-that the imposition of multiple sentences was plain error under R.C. 2941.25 because the crimes were committed with the same conduct. According to Lee, however, the trial court failed to consider R.C. 2941.25 at sentencing. R.C. 2941.25 does not contain a mandatory provision for the court to sua sponte consider the merger issue at sentencing. Williams at ¶ 26, citing Mosely v. Echols , 62 Ohio St.3d 75, 76, 578 N.E.2d 454 (1991) ; State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 8 ; Rogers at ¶ 21. The statutory section only contains an inapplicable, mandatory provision prohibiting the imposition of multiple sentences for offenses that are allied ones of similar import. Id. at ¶ 28.

{¶ 22} Lee's sentence is not contrary to law as contemplated in Underwood , through the lens of Williams -the aggregate sentence is not comprised of sentences for offenses the trial court determined or the parties conceded to be allied ones of similar import. And his sentences comport with all mandatory sentencing provisions-when the plea agreement is silent on the issue of allied offenses of similar import, the trial court is not obligated under R.C. 2941.25 to determine whether the offenses are allied. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, at ¶ 25-26 ; see also Rogers at ¶ 21 (the defendant bears the burden of raising R.C. 2941.25 at sentencing). Further, by agreeing to consecutively serve the sentences imposed on all counts, his sentences are "authorized by law" irrespective of the findings under R.C. 2929.14(C)(4) that the trial court made in the abundance of caution. See generally Sergent, 148 Ohio St.3d 94, 2016-Ohio-2696, 69 N.E.3d 627. Whether we consider Lee to have waived or forfeited his rights under R.C. 2941.25, the same conclusion is reached-we lack the statutory authority to review the sentences imposed.

{¶ 23} It would be simple to consider the merits of Lee's sentencing arguments in this case. Under Rogers, we review the failure to consider R.C. 2941.25 at sentencing for plain error. Plain error exists if the defendant can demonstrate the reasonable probability that he has been convicted of allied offenses from within the appellate record. Rogers at ¶ 25. Lee concedes there are no facts underlying the criminal conduct in the record. Instead, additional information describing the underlying criminal conduct was appended for our consideration. The defendant bears the burden of demonstrating plain error from the record. Rogers , 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, at ¶ 22, citing State v. Quarterman , 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 16. We could not decide the appeal on, let alone consider, facts outside the record. State v. Wittine , 8th Dist. Cuyahoga No. 90747, 2008-Ohio-5745, 2008 WL 4813830, ¶ 4, citing State v. Ishmail , 54 Ohio St.2d 402, 377 N.E.2d 500 (1978), paragraph one of the syllabus ; and State v. Hill , 90 Ohio St.3d 571, 573, 2001-Ohio-20, 740 N.E.2d 282. And even if we could determine that plain error existed, the Ohio Supreme Court has admonished appellate courts for freely invoking the plain error doctrine. Rogers at ¶ 22. If plain error is demonstrated, the doctrine should only be invoked in the "utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." (Emphasis sic.) Rogers at ¶ 23. This is an extremely high burden.

{¶ 24} The practice of reviewing sentences such as the underlying ones in this case, would condone the review of an otherwise unreviewable sentence, nullifying the statutory limitation on appellate jurisdiction to review sentences. Noling , 136 Ohio St.3d 163, 2013-Ohio-1764, 992 N.E.2d 1095, at ¶ 22. The concern is not necessarily this case, but the long-term impact of such a holding. Freely reviewing sentences in such cases would only serve to undermine the state's incentive to entertain plea bargains in the first place. As has been recognized,

[A] plea bargain is, after all, a bargain. In the bargain, the prosecutor achieves certain benefits: a foregoing of the risk that the defendant will be found not guilty, relief from the burden of trying the case and a concomitant ability to devote prosecutorial resources to other cases, and limitations on the defendant's right to appeal an agreed sentence , see R.C. 2953.08(D)(1). In return, the prosecutor is able to offer the defendant certain sentencing considerations. Both sides exchange risk about the outcome for an enhanced degree of certainty.

(Emphasis added.) State v. Rahab , 150 Ohio St.3d 152, 2017-Ohio-1401, 80 N.E.3d 431, ¶ 17.

{¶ 25} Finally, Lee argues that his plea was invalid because his trial counsel's assistance fell below the objective standards of reasonableness in rendering advice regarding the sentencing agreement. Generally the validity of the plea is separate from the sentencing review precluded under R.C. 2953.08(D)(1). State v. Billiter , 4th Dist. Scioto, 2018-Ohio-733, 106 N.E.3d 785, ¶ 14, citing State v. Royles , 1st Dist. Hamilton Nos. C060875 and C060876, 2007-Ohio-5348, 2007 WL 2892017, ¶ 10. However, Lee's argument is entirely based on the sentencing aspect of his case. The merger of allied offenses occurs at sentencing, a subsequent stage of the proceedings. Rogers at ¶ 19, citing State v. Whitfield , 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 8.

{¶ 26} According to Lee, he would not have pleaded guilty to such a long sentence had he been advised that the various offenses "constitute allied offenses under Ohio Law." Setting aside his circular logic, it is not entirely clear how that knowledge would have altered Lee's decision-making process. His appellate argument fails to elaborate on that point. There is no dispute that the trial court notified Lee of the maximum sentences he faced on the individual offenses during the plea colloquy (14 years alone on the aggravated robbery that included a mandatory consecutive three-year firearm specification on top of the maximum 11-year sentence for the first-degree felony) and that no promises had been given in exchange for the plea agreement. Without providing any analytical framework, he summarily states that the plea was not knowingly, voluntarily, or intelligently entered because it was plain error to impose sentences on allied offenses, citing State v. Cook , 8th Dist. Cuyahoga No. 95987, 2011-Ohio-5156, 2011 WL 4600409, ¶ 23.

{¶ 27} Lee cannot challenge his attorney's failure to object to aspects of the sentences to which Lee agreed. See, e.g., State v. Anthony , 2015-Ohio-2267, 37 N.E.3d 751, ¶ 66 (8th Dist.) (attorney cannot be deemed ineffective for failing to object to an agreed sentence). Without any demonstration that his sentences are not authorized by law or are contrary to law, his ineffective assistance of counsel argument is disregarded pursuant to R.C. 2953.08(D)(1). If Lee cannot appeal his sentence based on his agreement to serve the sentences imposed, he cannot challenge his attorney's failure to object to those sentences or to advise Lee of the possibility that the sentences could merge either.

{¶ 28} Lee's sentences are authorized by law and are ones that were both jointly recommended by the parties and imposed by the trial court. There was no mandatory duty for the court to address R.C. 2941.25, and thus, the sentences were authorized by law as contemplated in Underwood. The sentences are also not contrary to law. Lee confirmed his understanding of the agreement included aggregating the minimum terms on all counts through consecutive sentencing and, thereby, waived any merger arguments his counsel could have raised at sentencing. We cannot review the assignments of error as presented, and thus, we affirm.

MELODY J. STEWART, J., CONCURS;

EILEEN T. GALLAGHER, P.J., CONCURS IN JUDGMENT ONLY WITH SEPARATE OPINION

{¶ 29} I concur with the majority's conclusion that Lee's sentence is not reviewable. However, in contrast to the majority's view, I believe we must review Lee's sentence in order to determine that it is, in fact, not reviewable.

{¶ 30} R.C. 2953.08(D)(1) provides, in relevant part, that a sentence is not reviewable if (1) it was jointly recommended by the defendant and the state, (2) it is authorized by law, and (3) imposed by the court. This is a paradox. How can we determine whether a sentence is illegal or authorized by law without reviewing it?

{¶ 31} A sentence is "authorized by law" and not appealable within the meaning of R.C. 2953.08(D)(1)"only if it comports with all mandatory sentencing provisions." State v. Underwood , 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 20. R.C. 2941.25, which governs the sentencing of allied offenses, is a mandatory sentencing provision. That is, a sentencing court's duty to merge allied offenses is " 'mandatory, not discretionary.' " State v. Williams , 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, ¶ 27, quoting Underwood at ¶ 26.

{¶ 32} Lee's first assignment of error states: "The trial court erred by accepting and imposing a sentence for allied offenses that merge for purposes of sentencing." Within this assigned error, Lee argues his aggravated robbery and kidnapping convictions "are allied offenses that constitute a single offense for sentencing purposes." (Appellant's brief p. 8.) He also asserts that "these offenses were not committed separately" and that "they were not committed with a separate animus or motivation." Thus, Lee argues he was illegally subjected to multiple punishments for the same conduct in violation of R.C. 2941.25. He contends his jointly agreed sentence is not authorized by law.

{¶ 33} R.C. 2941.25 codifies the protections of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution, which prohibit multiple punishments for the same offense. The majority acknowledges that Lee never expressly stipulated that the offenses were committed with a separate animus, but asserts that his agreement to serve consecutive prison sentences is equivalent to agreeing that his multiple convictions are dissimilar in import and not subject to merger under R.C. 2941.25. (Majority opinion at ¶ 8.) Indeed, the agreed 14-year sentence cannot be reached without imposing separate sentences on multiple counts and running the sentences consecutively to one another since the maximum prison term on each individual offense is less than 14 years. Thus, the majority believes Lee waived any claim of error with regard to allied offenses and that his sentence is not reviewable because it was an agreed consecutive sentence. I respectfully disagree.

{¶ 34} The dissenting justices in Underwood made arguments similar to that put forth by the majority. Justice O'Donnell argued that Underwood's sentence was not reviewable because it was jointly recommended, and Underwood received the benefit of his plea bargain. Id. at ¶ 60. Justice Cupp argued that Underwood's agreement to the sentence "should be characterized as a specific waiver of the ability to challenge the sentence." Id. at ¶ 73. However, the majority in Underwood rejected these arguments, explaining that a defendant is prejudiced by having more convictions than are authorized by law regardless of his plea bargain. Id. at ¶ 31.

{¶ 35} The majority in Underwood also observed that courts indulge every reasonable presumption against the waiver of fundamental constitutional rights and that they do not presume acquiescence in the loss of fundamental rights. Id. ¶ 32. Moreover, " '[a] waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.' " Id. , quoting State v. Adams , 43 Ohio St.3d 67, 69, 538 N.E.2d 1025 (1989). Thus, the majority in Underwood suggested that a defendant could waive the issue of allied offenses by "stipulating in the plea agreement that the offenses were committed with separate animus, thus subjecting the defendant to more than one conviction and sentence." Id. at ¶ 29. Lee neither stipulated that his offenses were committed with a separate animus nor did he indicate a specific intent to relinquish his right to be free from Double Jeopardy.

{¶ 36} Nevertheless, the majority maintains, citing State v. Rogers , 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, that Lee forfeited his allied offenses claim by failing to raise the issue in the trial court. But a forfeited error is not unreviewable; it is reviewable for plain error. Rogers at ¶ 22. Moreover, the "imposition of multiple sentences for allied offenses of similar import is plain error." Underwood at ¶ 31, citing State v. Yarbrough , 104 Ohio St.3d 1, 2004-Ohio-6087, 817 N.E.2d 845, ¶ 96-102. Although Lee failed to raise the issue of allied offenses in the trial court, we are required to review his claim for plain error in order to determine whether or not it is reviewable under R.C. 2953.08(D)(1) because, again, " 'a trial court is prohibited from imposing individual sentences for counts that constitute allied offenses of similar import.' " State v. Williams , 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, at ¶ 27, quoting Underwood at ¶ 26.

{¶ 37} The majority further asserts, citing State v. Sergent , 148 Ohio St.3d 94, 2016-Ohio-2696, 69 N.E.3d 627, that "by agreeing to consecutively serve the sentences imposed on all counts, his sentences are 'authorized by law' irrespective of the finding under R.C. 2929.14(C)(4) * * *." (Majority opinion at ¶ 22.) However, in Sergent, the trial court's failure to make statutory findings for the imposition of an agreed consecutive sentence was not reviewable because the consecutive sentence statute, R.C. 2929.14(C), is a discretionary sentencing provision. Id. at ¶ 26-29. By contrast, the merger of allied offenses of similar import is constitutionally mandated. Underwood at ¶ 26-27 ; Williams at ¶ 27 ; Sergent at ¶ 27. Therefore, I believe Sergent is inapplicable to the allied offenses argument raised in Lee's appeal.

{¶ 38} Finally, the majority maintains that the practice of reviewing sentences such as the one at issue in this case "would condone the review of an otherwise unreviewable sentence" and thereby "nullify[ ] the statutory limitation on appellate jurisdiction to review sentences." (Majority opinion at ¶ 21.) But that is the paradox set forth in R.C. 2953.08(D)(1) : we have to review a claimed error in order to determine that it is not reviewable.

{¶ 39} I share the majority's sentiment that an agreed sentence should constitute a waiver of sentencing errors, including the alleged failure to merge allied offenses. Unfortunately instead of providing such a waiver, R.C. 2953.08(D)(1) directs us to examine jointly recommended sentences for violations of mandatory sentencing provisions. Having examined Lee's sentence for plain error and concluded that Lee's sentence is authorized by law, I agree with the majority's conclusion that his sentence is not reviewable.

      All references to Underwood refer to State v. Underwood , 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923.


source: Caselaw Access Project

author: KATHLEEN ANN KEOUGH, J.:

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee v. Cecil W. MOORE, Defendant-Appellant
    No. 105285
    Court of Appeals of Ohio, Eighth District, Cuyahoga County.
    RELEASED AND JOURNALIZED: May 10, 2018
    Tyresha Brown-O'Neal, 614 West Superior Avenue, Suite 1144, Cleveland, Ohio 44113, Allison F. Hibbard, 1200 West 3rd Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLANT
    Michael C. O'Malley, Cuyahoga County Prosecutor, By: Carl Mazzone, Assistant County Prosecutor, The Justice Center, 9th Floor, 1200 Ontario Street, Cleveland, Ohio 44113, ATTORNEYS FOR APPELLEE
    BEFORE: Keough, J., Kilbane, P.J., and Laster Mays, J.
    JOURNAL ENTRY AND OPINION
   KATHLEEN ANN KEOUGH, J.:

{¶ 1} Defendant-appellant, Cecil Moore appeals his conviction for sexual battery. Finding merit to the appeal, we reverse and remand for further proceedings.

{¶ 2} In March 2016, Moore was charged rape, sexual battery, and kidnapping; the kidnapping offense contained a sexual motivation specification. The case proceeded to a jury trial where the following evidence was presented.

{¶ 3} During a lunch hour in the summer of 2015, the victim first met Moore in line at a Wendy's restaurant on the west side of Cleveland. Moore bought her lunch, and the two ate their lunches together, discussed jobs, and exchanged contact information.

{¶ 4} They spoke a few days later and agreed to meet again. Moore picked the victim up at her apartment, and during the ride to a bar on Euclid Avenue, advised her that he had his firearm on him and showed her his concealed carry license. He stated he told her about the firearm because he did not know if she was comfortable being around a firearm or if she was legally allowed to be around firearms. According to Moore, the victim indicated she had no problem being around the firearm; this was not disputed by the victim.

{¶ 5} Once at the bar, however, the evening turned out poorly. Moore attempted to purchase the victim a specific drink she wanted. When the victim received her drink, she indicated that it was not the drink she wanted. She attempted to return the drink to the bar, and the victim admittedly got into a verbal altercation with the bartender and manager. When Moore attempted to calm her down and order her another drink, the victim indicated that a new drink was unacceptable and left the establishment. Although the victim called her brother to pick her up, she ultimately agreed to let Moore take her home. Once at her apartment building, the victim was insistent that they go somewhere else because it was still early. However, Moore did not want to go anywhere else, and instead tried to calm her down by telling her she should just go home. Annoyed, the victim exited Moore's car and drove off in her own car.

{¶ 6} The victim testified that she subsequently felt bad about how the evening went. On Sunday, August 18, 2015, she contacted Moore to apologize to him and asked him to come over. Moore agreed and arrived at her apartment late that evening. They went to a local store where the victim bought some personal household items, and they each purchased alcoholic beverages. Both testified that a disagreement occurred over purchasing light bulbs-the victim did not want or need Moore to pay for them.

{¶ 7} Once they arrived back at her apartment, they talked at the kitchen table. Moore was legally carrying his firearm on his hip, and after asking the victim if he could take it off, he placed his gun on the counter. The conversation then continued on the couch. At this point, the version of events is in dispute.

{¶ 8} According to the victim, the conversation turned to flattery and then sexual. They began kissing and getting undressed. When she asked Moore if he had a condom, he said "no." The victim told him that she would not have unprotected sex with him. According to the victim, Moore became irate and hostile, telling her that unprotected sex was not a big deal. She suggested that he go to the store to purchase a condom.

{¶ 9} The victim testified that instead of leaving, Moore refused to go to the store and began cursing at her about her philosophy of safe sex. She stated that Moore became more hostile, refusing to leave, yelling that he would leave when he was ready to leave, and that he was not going anywhere. The victim testified that she felt fearful because he was yelling and because she knew he had a gun. Although she said that Moore did not threaten her with the gun, she felt that if she made him angrier, "something [could] happen." (Tr. 186.)

{¶ 10} The victim stated that she tried to calm Moore down but he became more verbally aggressive toward her, calling her names and berating her about not having condoms herself. Not wanting things to escalate further, she went into her bedroom, disrobed, and offered to perform oral sex on Moore. She testified that she felt that if Moore was sexually gratified, he would leave. Although she did not want to perform oral sex on Moore, she did so out of fear. She stated that Moore was not satisfied by fellatio, critiqued her ability, and wanted sexual intercourse. Unable to get aroused and becoming more fearful, she suggested that they watch pornography on her cell phone. On cross-examination, the victim testified for the first time that following oral sex, Moore digitally penetrated her vagina, causing her pain.

{¶ 11} The victim testified that Moore, without consent, engaged in sexual intercourse with her. She stated she did not want to have sex with him, but did not say anything and did not fight him off her; however, she testified that she did say "no" at some point. She stated she was "just numb" and kept thinking that Moore had a gun. Therefore, she felt that if Moore "get[s] what he want[s]," he would leave, and she would be alive. (Tr. 191.) When asked why she did not call for help on her phone instead of viewing pornography, she stated she was too scared-she was afraid he would use his gun.

{¶ 12} The victim stated that after Moore removed himself from on top of her, he continued to berate her about her sexual abilities and belittle her in general. When Moore went to the bathroom to wash up, the victim repeatedly asked him to leave. Moore eventually left her apartment, but not before he threw bottles of wine coolers at her door and at her. The content of the bottles spilled on the floor and all over her. The victim stated that the entire incident lasted until 3 a.m. on August 19, 2015. Once Moore left, she called her cousin and told her what had happened. Following her conversation with her cousin, she went to bed because she had to go to work that morning.

{¶ 13} The next morning, the victim took a shower and readied herself for work. She stated that she just wanted to get out of her apartment because of what had happened the night before; she did not want to be there. After working the entire day, she called her brother and her cousin. Based on those conversations, the victim decided to report the incident to Euclid police. At the suggestion of the investigating officer, she also went to Hillcrest Hospital for an examination. The victim testified that she deleted all of Moore's information from her phone, including call history and text messages.

{¶ 14} Moore testified in his defense. He told the jury he was never convicted of a crime and currently employed by the city of Cleveland, Department of Aging. Moore did not dispute how he and the victim met. He testified that he bought her lunch, trying to be a gentleman, but then after learning she worked for Cuyahoga County, he believed this connection could "open up a few doors" for him. (Tr. 419.) Moore thought the victim could help him get full-time employment with the county. He stated her connections were the primary reason he went to the bar with her, and why he agreed to go to her apartment even after she acted irrationally at the bar. Moore stated that the victim apologized for her behavior and told him that her job was stressful.

{¶ 15} Moore also told the jury what occurred at the victim's apartment on August 18, 2015. According to Moore, the victim became sexually aggressive toward him by putting her hand on his leg, rubbing his crotch, and stating she wanted to have sex with him. Moore told her that he was not attracted to her, that he did not want to have sex with her, and that this was not his reason for being there that evening.

{¶ 16} The victim removed her clothing and used her cell phone to view pornography. Moore testified that he became increasingly uncomfortable when the victim stated that she wanted to see him masturbate. She went into the bathroom, and Moore started putting on his shoes to leave her apartment. The victim came out of the bathroom with a bottle of lotion and requested that he use it to masturbate. According to Moore, he told her she was sick and had mental health issues, and that he was leaving.

{¶ 17} This caused the victim to become angry and start cursing at him. She started throwing the items he purchased earlier that evening into the hallway, causing Moore to grab the wine coolers she purchased and throwing them as well. Moore testified that he was upset and admitted that they exchanged vulgarities. He told the jury that he told the victim that he regretted meeting her and that based on her behavior during the first incident at the bar, he should known better than to have agreed to see her again. He said he was present in her apartment for about 30 minutes, and after he left, he deleted her contact information and blocked her from his phone. Moore denied that he had sexual contact or conduct with the victim.

{¶ 18} On cross-examination, Moore admitted that he had no romantic interest in the victim, but only an interest in her helping him obtain employment with the county. He further admitted that once the victim started becoming sexually aggressive and disrobing, he did not instantly get up from the table and leave the apartment. Moore stated that he did not attempt to leave until she went into the bathroom, and even afterward, he engaged in a verbal altercation with her rather than leaving immediately.

{¶ 19} Euclid police officer Joseph Parkin testified that he responded on August 19, 2015, to a call regarding a sexual assault. He met the victim at her apartment where she described the details surrounding the incident. Officer Parkin collected a wine glass, a wash cloth from the bathroom, bed sheets, and the clothing the victim was wearing that evening. He recommended to the victim that she visit a sexual assault nurse examiner ("SANE") at Hillcrest Hospital to be examined and for a rape kit to be performed. Officer Parkin admitted that he did not attempt to speak with Moore or the victim's neighbors as part of the investigation.

{¶ 20} Angelita Olowu, a Hillcrest Hospital SANE nurse, testified that she supervised and oversaw the nurse who examined the victim on August 19-20, 2015. At trial, Olowu identified the victim's medical records, and testified regarding the examination itself, her interactions with the victim, the victim's demeanor, and the findings the examination revealed. Olowu also read to the jury the narrative about the sexual assault that the victim provided during the examination.

{¶ 21} According to the narrative, the victim stated that Moore began kissing her and tried to remove her clothes, to which she said "no." She stated that he was forceful when he digitally penetrated her vagina, but that they continued to engaged in consensual masturbation. When the victim asked Moore if he had a condom and he said he did not, she told him that she did not engage in unprotected sex. According to the narrative, Moore became angry, hostile, and agitated. The victim told the nurse that they argued about the use of a condom until 2 a.m. and knowing that she needed to work that morning, she offered that Moore could stay on her couch. The victim went to her bedroom, with Moore following. She said they got into bed and Moore was touching her, trying to stimulate her. She told him she did not want to have unprotected sex. Moore then stuck his penis in her vagina and finger in her anus. She stated she became agitated and asked him why he would do those things, and Moore became more agitated and argumentative. The victim stated in the narrative that she thought if they watched pornography he would finish and leave, or she would just perform oral sex on him so that he would leave. She stated she performed oral sex on him because she felt threatened "because it was late." Afterwards, he cleaned himself up, was verbally aggressive with her, threw alcoholic beverages at her, and ransacked her apartment before leaving.

{¶ 22} Olowu also testified regarding the various exams that were performed and the collection of evidence from the victim. According to Olowu, the evidence that was collected is part of the sexual assault evidence kit. She identified that swabs were taken from various parts of the victim's body, including her mouth, inner thighs, vagina, anus, breasts, neck, and fingernails. Additionally, various hair clippings were collected.

{¶ 23} Regarding the physical examination, Olowu stated that the victim had abraded areas to both sides of the vaginal vestibule, or the entryway to the vagina, likely caused by some kind of friction. According to Olowu, the abraded area appears bilateral and symmetrical within the vestibule, revealing that the cause of the friction would have to be something that was centrally located and hitting both sides of the vestibule simultaneously. Olowu admitted, however, that the injury does not reveal when it occurred or whether it was caused by a consensual or nonconsensual act.

{¶ 24} Sara Horst, forensic scientist at the Bureau of Criminal Identification and Investigation, testified that she conducted forensic analysis on the rape kit, the victim's clothing, a washcloth, and bedding from the victim's bed. She testified that no semen was identified on the clothing, washcloth, or sheets. She further testified that no DNA profiles foreign to the victim were detected from the samples that were submitted for DNA testing. Additionally, no male-specific DNA was present.

{¶ 25} Euclid police detective Phil Tschetter testified that he was assigned to investigate the incident. He testified that as part of his investigation, he spoke with one of the victim's neighbors attempting to find out if they heard anything that evening. He stated that he was unable to gather any information from anyone from the apartment building that assisted his investigation.

{¶ 26} On cross-examination, Detective Tschetter admitted that his report reflected that the victim showed "significant reluctance to participate in this investigation to this point" by failing to return phone calls, and her reluctance to speak with him when contact was made. He found this significant because prior to him speaking with her, the victim had called his lieutenant stating she was upset that no one had contacted her. Detective Tschetter further admitted that there was no information or evidence that any DNA linked Moore to the alleged incident.

{¶ 27} After extensive arguments and consideration, the trial court denied Moore's Crim.R. 29 motion for judgment of acquittal. The defense set forth its case, with Moore testifying in his own defense and Michelle Grande, Moore's girlfriend, testifying as a character witness.

{¶ 28} The jury found Moore not guilty of rape and kidnapping, but guilty of sexual battery. The court sentenced him to two years of community control sanctions, and classified him as a Tier III sex offender, requiring that he register and report his address with the county sheriff every 90 days for life.

{¶ 29} Moore appeals, raising two assignments of error, which will be addressed together.

{¶ 30} In his first and second assignments of error, Moore contends that his conviction for sexual battery is not supported by sufficient evidence and is against the manifest weight of the evidence. The basis for the sexual battery charge was that Moore coerced the victim into performing the act of fellatio.

{¶ 31} The test for sufficiency requires a determination of whether the prosecution met its burden of production at trial. State v. Bowden , 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, 2009 WL 2186608, ¶ 12. An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Murphy , 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001). " 'The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.' " State v. Walker , 150 Ohio St.3d 409, 2016-Ohio-8295, 82 N.E.3d 1124, ¶ 12, quoting State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

{¶ 32} In this case, Moore was convicted of sexual battery in violation of R.C. 2907.03(A)(1), which prohibits a person from engaging in sexual conduct with another when the offender knowingly coerces the other to submit by any means that would prevent resistance by a person of ordinary resolution. Moore challenges on appeal that the state failed to prove the elements of "knowingly coerce."

{¶ 33} "A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist." R.C. 2901.22(B).

{¶ 34} In this case, the jury was instructed that because it could not look into the mind of another, knowledge is determined from all the facts and circumstances in evidence "whether there existed at the time in the mind of [Moore] an awareness of the probability that he would coerce [the victim] to submit by any means that would have prevented resistance by a person of ordinary resolution." (Tr. 548.)

{¶ 35} The Revised Code does not define "coercion," but the commentary to R.C. 2907.03 provides that sexual conduct by coercion is somewhat broader than sexual conduct by force. State v. Ndoji , 8th Dist. Cuyahoga No. 90181, 2008-Ohio-3551, 2008 WL 2766282, ¶ 15 ; State v. Wilkins , 64 Ohio St.2d, 382, 386, 415 N.E.2d 303 (1980) ("coercion for purposes of sexual battery is broader than the force required to prove rape and necessarily includes all uses of force. Force is not required to prove coercion.").

{¶ 36} In State v. Woods , 48 Ohio St.2d 127, 357 N.E.2d 1059 (1976), the Ohio Supreme Court described the term "coercion" as follows:

"Coercion" may include a compulsion brought about by moral force or in some other manner with or without physical force. * * *
These judicial definitions of coercion correspond to the common use of the word. Webster's Third New International Dictionary defines coercion as "the act of coercing: use of physical or moral force to compel to act or assent," and to coerce as "to restrain, control or dominate, nullifying individual will or desire (as by force, power, violence, or intimidation)."
The essential characteristic of coercion which emerges from these definitions is that force, threat of force, strong persuasion or domination by another, necessitous circumstances, or some combination of those, has overcome the mind or volition of the [victim] so that [s]he acted other than [s]he ordinarily would have acted in the absence of those influences.

Id. at 136-137, 357 N.E.2d 1059.

{¶ 37} Additionally, in State v. Brooks , 8th Dist. Cuyahoga No. 96552, 2011-Ohio-6643, 2011 WL 6774466, this court reiterated the Twelfth District's explanation of the element of coercion:

"Coercion for purposes of sexual battery has been defined as 'to compel by pressure.' See In re Jordan , [9th Dist. Lorain No. 01 CA007804 [2001 WL 1044080], 2001 Ohio App. LEXIS 4013 (Sept. 12, 2001) ]. Webster's Third New International Dictionary (1993) defines 'to coerce' in relevant part as 'to restrain, control, or dominate, nullifying the individual will or desire,' 'to compel to an act of force, threat, or other pressure,' and 'to bring about * * * by force, threat, or other pressure.' Id. at 439. Black's Law Dictionary (5th Ed.1979), in turn states that coercion 'may be actual, direct, or positive, as where physical force is used to compel act[s] against one's will, or implied, legal, or constructive, as an where one party is constrained by subjugation to [an]other to do what his free will would refuse.' Id. at 234."

Id. at ¶ 34, quoting In re J.A.S. , 12th Dist. Warren No. CA2007-04-046, 2007-Ohio-6746, 2007 WL 4376218, ¶ 19.

{¶ 38} Moore contends on appeal that the evidence was insufficient to support his conviction for sexual battery because no evidence was presented that he knowingly coerced the victim into engaging in sexual conduct. Specifically, he maintains that he never asked the victim to perform oral sex on him, insinuated he wanted oral sex from her, or that he ever threatened or pressured her into performing oral sex on him.

Moore's assertions are correct. However, according to the victim, Moore repeatedly told her that he wanted sexual intercourse, insisted on sexual intercourse, and pressured her for sexual intercourse, despite her not wanting to engage in sexual intercourse.

{¶ 39} The victim testified that after she refused to have sex with Moore without a condom, Moore became very hostile. She told him to go to the store to get a condom, but he refused. He also refused to leave the apartment despite being asked several times to do so. She stated she then became fearful because he was yelling and, even though he did not threaten her with his firearm, she felt threatened due to its presence on the table and because Moore had been drinking. The victim maintained that Moore continued to be verbally aggressive towards her, calling her names, and repeating that unprotected sex was not "a big deal." She said that based on her unsuccessful attempts to calm him down, she felt that if she offered to perform oral sex on him, that would satisfy him and he would leave. She testified that even after she performed oral sex on Moore, he criticized her and stated that he wanted sexual intercourse. When questioned why she performed oral sex on Moore, the victim testified that she did it out of fear and felt pressured to cooperate. She stated that she was trained in crises to deescalate the situation, and she did not feel safe to try to leave-she stated that she was going to do whatever it took for Moore not to pick up the gun. She stated her thoughts were to get Moore out of her apartment and for her to remain alive and unharmed.

{¶ 40} Accordingly, because the victim testified that she decided to perform oral sex on Moore as a means of escape, survival, or compromise, the fact that Moore did not ask, insinuate, threaten, or pressure her for the specific act of oral sex becomes irrelevant. The victim's testimony about Moore's constant refusal to leave, pacing throughout her apartment, verbal aggression, and persistence if believed by the trier of fact, is sufficient to prove that he acted knowingly.

{¶ 41} Mindful of the inquiry and standard that this court must apply when reviewing a sufficiency of the evidence challenge, we review the evidence in the light most favorable to the prosecution and ask whether a reasonable juror, who believed the state's evidence could find the essential elements of an offense proven beyond reasonable doubt. We find that a reasonable juror could find that Moore knowingly coerced the victim to engage in sexual conduct, if the jury believed the victim in this case. Accordingly, we find that sufficient evidence was presented to the jury that Moore committed the act of sexual battery, and the first assignment of error is overruled.

{¶ 42} We find, however, that the Moore's conviction for sexual battery is against the manifest weight of the evidence. In contrast to a sufficiency argument, a manifest weight challenge questions whether the state met its burden of persuasion. Bowden , 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, 2009 WL 2186608, ¶ 12. A manifest weight challenge is a much broader test. State v. Martin , 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983). The court, sitting as a "thirteenth juror" and reviewing the entire record, "weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury 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. Thompkins , 78 Ohio St.3d 380, 388, 678 N.E.2d 541 (1997). A conviction should be reversed as against the manifest weight of the evidence only in the most "exceptional case in which the evidence weighs heavily against the conviction." Id.

{¶ 43} In this case, the victim's testimony regarding the entire evening was inconsistent and contradictory. Specifically as it related to the sexual battery count, she gave conflicting testimony regarding when and where oral sex was offered and performed. The victim initially testified that she offered to perform oral sex on Moore in the bedroom on the floor, prior to the alleged rape. (Tr. 234-235.) Later, she testified it was on the bed. (Tr. 235.) When it was suggested that she did not offer to perform oral sex on Moore until after the alleged rape, she responded that she did not remember that, "I mean right now." (Tr. 241.)

{¶ 44} Moreover, the victim's testimony was vastly different than the details she provided to the SANE nurse a day after the alleged rape. According to the narrative in her medical records, the victim told the nurse that after the alleged rape, she thought that maybe if she performed oral sex on him, he would go to sleep. She told the nurse that she "did this because she felt threatened because it was late." (Tr. 309.) And at trial, the victim testified that she offered Moore oral sex because (1) she thought that if she could just "get [Moore] off" he would leave and (2) he had a gun. (Tr. 188, 231.) However, in the victim's medical notes, it was indicated that "patient consented to oral with assailant earlier in the evening prior to the sexual assault."

{¶ 45} The victim's inability to remember the nature of events surrounding the sexual assault makes her testimony even more problematic. When it was suggested that she gave conflicting version of events to the investigating officer, the SANE nurse, and then at trial, she stated, "But you're asking me to recall every single detail of something that happened a year ago. * * * I'm just trying to tell you the truth to what I do remember right now, which may be a little different from that time." (Tr. 236.) However, the victim was able to vividly, clearly, and concisely recall and testify to the exact words and phrases Moore used the entire evening, yet could not remember simple details surrounding the sexual assault or recollect the sequence of events surrounding the sexual assault.

{¶ 46} Finally, despite the victim testifying that Moore was naked throughout her apartment and in her bed, used her bathroom to clean up following intercourse, and that he vaginally penetrated her with his penis, no DNA evidence was found substantiating the victim's testimony or linking Moore to the alleged offenses.

{¶ 47} Under a manifest weight challenge, this court does not have to view the evidence in the light most favorable to the prosecution. And after weighing the evidence and all reasonable inferences, considering the credibility of witnesses, and resolving conflicts in the evidence, we find that the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The evidence presented at trial renders this case the exceptional case in which the evidence weighs heavily against conviction. Accordingly, Moore's conviction is reversed; the second assignment of error is sustained.

{¶ 48} Judgment reversed and remanded for further proceedings.

MARY EILEEN KILBANE, P.J., and ANITA LASTER MAYS, J., CONCUR


author: WELBAUM, P.J.

text:
    STATE of Ohio, Plaintiff-Appellee v. John F. AICHER, Defendant-Appellant
    No. 27570
    Court of Appeals of Ohio, Second District, Montgomery County.
    Rendered May 11, 2018
    NOLAN C. THOMAS, Atty. Reg. No. 0078255, City of Kettering Prosecuting Attorney, 2325 Wilmington Pike, Kettering, Ohio, 45420, Attorney for Plaintiff-Appellee.
    BROCK A. SCHOENLEIN, Atty. Reg. No. 0084707, 371 West First Street, Dayton, Ohio, 45402, Attorney for Defendant-Appellant.
   WELBAUM, P.J.

{¶ 1} Defendant-appellant, John F. Aicher, appeals from the decision of the Kettering Municipal Court overruling his motion to suppress evidence flowing from field sobriety tests and a breath sample taken following a traffic stop for expired license plates. In support of his appeal, Aicher contends that the officer on duty lacked a reasonable, articulable suspicion that he was driving under the influence of alcohol to justify performing field sobriety tests. Aicher also contends that the breath sample he provided was not tested in compliance with the Ohio Department of Health's regulations and therefore should not have been deemed admissible for trial. For the following reasons, the judgment of the trial court will be affirmed.

Facts and Course of Proceedings

{¶ 2} On August 6, 2016, Aicher was arrested and charged with two counts of operating a vehicle while under the influence of alcohol ("OVI") in violation of R.C. 4511.19(A)(1)(a) and R.C. 4511.19(A)(1)(d). Aicher was also charged with improper display of license plates in violation of Kettering Local Ordinance 436.09, possession of drug paraphernalia in violation of R.C. 2925.14, and possession of an open container in violation of R.C. 4301.62. The charges arose after Aicher was pulled over by Officer Bradley Lambert of the Kettering Police Department for driving with expired license plates. The traffic stop expanded into an OVI investigation after Lambert made certain observations that led him to believe Aicher was driving under the influence of alcohol. After conducting various field sobriety tests, Lambert arrested Aicher for driving under the influence and conducted an inventory search of Aicher's vehicle. During the inventory search, Lambert discovered an open container of alcohol and drug paraphernalia. Aicher later submitted to an alcohol breath test that confirmed he had been operating his vehicle while over the legal limit.

{¶ 3} Following his arrest, Aicher pled not guilty to all the charges. Thereafter, Aicher filed a motion to suppress the evidence flowing from the field sobriety tests and his breath sample. In support of his motion, Aicher argued that he was unlawfully detained during the field sobriety tests because Officer Lambert did not have a reasonable, articulable suspicion to believe that he was driving under the influence of alcohol. Aicher also argued that his breath sample was inadmissible because it was not tested in compliance with the Ohio Department of Health's regulations.

{¶ 4} On December 14, 2016, the trial court held a hearing on Aicher's motion to suppress. At the hearing, Officer Lambert testified that he has been a Kettering police officer for over 15 years and that he has made over 300 OVI arrests during his tenure as an officer. Lambert also indicated that he received alcohol detection training based on National Highway Traffic Safety Administration ("NHTSA") standards while he was at the Ohio State Basic Peace Officer Training Academy. Lambert further testified that he has since received regular updates on his training by attending drug and alcohol recognition courses through Advanced Roadside Impaired Driving Enforcement ("ARIDE") and Alcohol Detection and Prosecution ("ADAP").

{¶ 5} Regarding the incident in question, Officer Lambert testified that at 1:05 a.m. on August 6, 2016, he observed a gray Volkswagen with expired license plates driving near the intersection of Wilmington Pike and Ansel Drive in Kettering, Ohio. Lambert testified that he conducted a traffic stop based on the expired plates and made contact with the driver, later identified as Aicher. Upon approaching Aicher and speaking with him, Lambert testified that he smelled "a moderate odor of an alcohol beverage upon [Aicher's] breath as he would speak." Suppression Hearing Trans. (Dec. 14, 2016), p. 53. Lambert also testified that he detected a faint odor of burnt marijuana and noticed that Aicher's eyes were glassy and that some of his words "would become a little bit slurred at times." Id. Lambert further testified that Aicher informed him that he was coming from the Oregon District, which he explained is a bar district in downtown Dayton. Lambert also testified that Aicher admitted to having "a couple" alcoholic beverages to drink that night. Id. at p. 54.

{¶ 6} Based on these observations, Officer Lambert expanded the scope of the traffic stop to perform field sobriety testing. According to Lambert, Aicher's performance on the field sobriety tests confirmed his belief that Aicher was driving under the influence of alcohol. As a result, Lambert testified that he arrested Aicher at 1:22 a.m. Following Aicher's arrest, Lambert testified that he and the other officer on duty, Officer Spinks, performed an inventory search of Aicher's vehicle, which yielded an open flask containing a small amount of whiskey and a "one hitter" pipe that contained marijuana residue.

{¶ 7} Continuing, Officer Lambert testified that Aicher was transported to jail by Officer Spinks and that Lambert made contact with Aicher at the jail approximately 20 minutes later. Lambert testified that Aicher was placed in a holding cell and was monitored by jailer Peter Morris prior to his arrival. Lambert testified that when he made contact with Aicher in jail, Aicher agreed to take a breath test, which Lambert performed at 2:07 a.m.

{¶ 8} With regard to the breath test, Officer Lambert testified that he was certified by the Ohio Department of Health to perform breath tests using an Intoxilyzer 8000. Lambert testified that the Intoxilyzer 8000 used to test Aicher was in proper working condition at the time he conducted the test. Specifically, Lambert testified that the Intoxilyzer 8000 conducts internal checks and that it would not have performed the breath test on Aicher had it not been working properly. Lambert testified that the results of the breath test showed that Aicher's breath alcohol content was 0.16 grams of alcohol per 210 liters of breath, an amount that is twice the legal limit.

{¶ 9} In addition to Officer Lambert's testimony, the State presented testimony from Ohio Department of Health inspector Robert Norbeck. Norbeck testified that on September 9, 2015, he certified the Intoxilyzer 8000 that was used to test Aicher's breath sample. Norbeck thereafter explained the certification process in detail and further testified that all of the tests he performed on the Intoxilyzer 8000 indicated that the instrument was in proper working condition and was in compliance with the Ohio Department of Health's regulations.

Norbeck also confirmed that the Intoxilyzer 8000 was working properly on the day of Aicher's breath test. Norbeck also identified various documents and test reports confirming his testimony that the instrument was properly certified and in working order.

{¶ 10} Following the suppression hearing, the trial court issued a written decision overruling Aicher's motion to suppress. In so holding, the trial court found that the State provided sufficient evidence that the Intoxilyzer 8000 at issue met all of the Ohio Department of Health's regulations to provide an admissible breath sample. The trial court further found that Lambert's observations of Aicher during the traffic stop provided Lambert with a reasonable, articulable suspicion that Aicher was driving under the influence of alcohol to justify performing field sobriety tests.

{¶ 11} After his motion to suppress was overruled, Aicher entered a no contest plea to all the charges against him. The trial court then accepted Aicher's plea and found him guilty as charged. At sentencing, the trial court merged the two OVI offenses and sentenced Aicher to 180 days in jail with 176 days suspended. The trial court also imposed a $1,000 fine with $600 suspended, suspended his driver's license for 90 days, and placed him on two years of probation. The trial court further ordered Aicher to pay a $10 fine for improper display of license plates, a $25 fine for possessing an open container, and a $25 fine for possessing drug paraphernalia.

{¶ 12} Aicher now appeals from the trial court's decision overruling his motion to suppress, raising two assignments of error for review.

Standard of Review

{¶ 13} "In ruling on a motion to suppress, the trial court 'assumes the role of the trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate the credibility of the witnesses.' " State v. Prater , 2012-Ohio-5105, 984 N.E.2d 36, ¶ 7 (2d Dist.), quoting State v. Retherford , 93 Ohio App.3d 586, 592, 639 N.E.2d 498 (2d Dist.1994). "As a result, when we review suppression decisions, 'we are bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. Accepting those facts as true, we must independently determine as a matter of law, without deference to the trial court's conclusion, whether they meet the applicable legal standard.' " Id. , quoting Retherford .

First Assignment of Error

{¶ 14} Aicher's First Assignment of Error is as follows:

THE TRIAL COURT ERRED IN FINDING THAT A REASONABLE ARTICULABLE SUSPICION OF IMPAIRED DRIVING EXISTED FOR THE IMPOSITION OF FIELD SOBRIETY TESTING.

{¶ 15} Under his First Assignment of Error, Aicher contends that in overruling his motion to suppress the trial court erroneously concluded that Officer Lambert had a reasonable, articulable suspicion that he was driving under the influence of alcohol to justify prolonging the traffic stop for field sobriety testing. Accordingly, Aicher maintains that he was unlawfully detained by Lambert in violation of his Fourth Amendment rights.

{¶ 16} "The Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution guarantee the right to be free from unreasonable searches and seizures." (Citation omitted.) State v. Mays , 119 Ohio St.3d 406, 2008-Ohio-4539, 894 N.E.2d 1204, ¶ 7. "Stopping an automobile is reasonable if an officer has probable cause to believe that a traffic violation has occurred." State v. Brown , 2d Dist. Greene No. 2011 CA 52, 2012-Ohio-3099, 2012 WL 2628720, ¶ 13, citing Whren v. United States , 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). However, "[a]n officer cannot continue to detain a suspect past the time necessary for investigating and completing the initial traffic stop merely to conduct a 'fishing expedition' for other criminal activity." Id. , quoting State v. Jones , 2d Dist. Montgomery No. 23920, 2010-Ohio-5522, 2010 WL 4615418, ¶ 16. To justify further detention for the administration of field sobriety tests, "the officer must have a reasonable, articulable suspicion that a person is driving under the influence[.]" Id. , citing State v. Santiago , 195 Ohio App.3d 649, 2011-Ohio-5292, 961 N.E.2d 264, ¶ 11 (2d Dist.).

{¶ 17} "Whether an officer had a reasonable, articulable suspicion to administer field sobriety tests is a 'very fact-intensive' determination." Santiago at ¶ 13, quoting State v. Wells , 2d Dist. Montgomery No. 20798, 2005-Ohio-5008, 2005 WL 2327125, ¶ 9. In determining whether there was a reasonable, articulable suspicion, the court must evaluate the totality of the circumstances. (Citation omitted.) State v. Gladman , 2d Dist. Clark No. 2013 CA 99, 2014-Ohio-2554, 2014 WL 2700660, ¶ 14. These circumstances must be considered " 'through the eyes of the reasonable and prudent police officer on the scene who must react to events as they unfold.' " Id. , quoting State v. Heard , 2d Dist. Montgomery No. 19323, 2003-Ohio-1047, 2003 WL 860692, ¶ 14. If there are no articulable facts that give rise to a suspicion of illegal activity, then the continued detention constitutes an illegal seizure. State v. Robinson , 2d Dist. Greene No. 2001 CA 118, 2002 WL 1332589, *2 (June 14, 2002), citing State v. Robinette , 80 Ohio St.3d 234, 240, 685 N.E.2d 762 (1997).

{¶ 18} As this court has stated previously, "[m]any observations can satisfy this reasonable, articulable suspicion, including the odor of an alcoholic beverage emanating from the vehicle, glassy bloodshot eyes, * * * and slow or slurred speech." (Citation omitted.) Brown at ¶ 13. However, this court has "not required any specific number of indicators, nor have we adopted a balancing test." State v. Adams , 2017-Ohio-7743, 97 N.E.3d 1137, ¶ 33 (2d Dist.).

{¶ 19} It is well established by this court that traffic violations of a de minimus nature, combined with a slight odor of an alcoholic beverage, and an admission of having consumed "a couple of beers," are insufficient to support a reasonable, articulable suspicion of driving under the influence. State v. Spillers , 2d Dist. Darke No. 1504, 2000 WL 299550, *3 (Mar. 24, 2000). See also State v. Morgan , 2d Dist. Clark No. 07-CA-67, 2007-Ohio-6691, 2007 WL 4372961, ¶ 9 (one de minimus marked-lane violation, the odor of alcohol of unspecified intensity, and an admission of consuming alcohol earlier in the day did not provide reasonable, articulable suspicion of driving under the influence).

{¶ 20} On the other hand, this court has found a reasonable, articulable suspicion of driving under the influence where a moderate odor of alcohol is detected in conjunction with multiple other factors, such as glassy or bloodshot eyes, slurred speech, a flush face, fumbling, or unresponsiveness. See Gladman, 2d Dist. Clark No. 2013 CA 99, 2014-Ohio-2554, at ¶ 17-18 (moderate odor of alcohol about motorist's person, glassy and bloodshot eyes, slurred speech, unresponsiveness to request for registration and proof of insurance, and admission of consuming three beers in the last hour provided a reasonable, articulable suspicion of driving under the influence); Adams at ¶ 8, 9, and 34 (moderate odor of alcohol emanating from the defendant's vehicle, glassy eyes, a flush face, fumbling with insurance card, minor traffic violation, and admission of consuming one drink three hours earlier provided a reasonable, articulable suspicion of driving under the influence); State v. Criswell , 162 Ohio App.3d 391, 2005-Ohio-3876, 833 N.E.2d 786, ¶ 2-3 and 10 (2d Dist.) (moderate odor of alcohol on defendant's breath, bloodshot and glassy eyes, driving 23 mph over the speed limit, and admission to having a few beers justified conducting field sobriety tests).

{¶ 21} However, in State v. Nelson , 2d Dist. Montgomery No. 27324, 2017-Ohio-2884, 2017 WL 2228559, this court recently affirmed the trial court's finding that no reasonable, articulable suspicion of intoxication existed under circumstances where: (1) the investigating officer detected a moderate odor of an alcoholic beverage emanating from the defendant's vehicle; (2) the odor of alcohol intensified as defendant spoke; (3) the officer observed that the defendant had bloodshot and somewhat watery eyes; and (4) the defendant was pulled over for a de minimus moving violation. Id. at ¶ 10 and 21. In that case, although the investigating officer testified that the defendant advised him that she "had been drinking last night," the trial court found this testimony did not establish that the defendant admitted to drinking on the night of the traffic stop. Id. at ¶ 10 and 13. The officer in that case also testified that the defendant exhibited surprise or confusion as to what day of the week it was, but the trial court found that this testimony was improper to consider given that the defendant exhibited such confusion after the investigating officer had already decided to conduct the field sobriety tests. Id.

{¶ 22} In deferring to the trial court's findings of fact in Nelson , we found that the moderate odor of alcohol that intensified as the defendant spoke, the defendant's bloodshot and watery eyes, and the de minimus moving violation did not provide the officer with a reasonable, articulable suspicion of intoxication for purposes of justifying field sobriety testing. Id. at ¶ 21. But see id. at ¶ 25 (Tucker, J. dissenting.) ("[T]he trial court's factual conclusions regarding Nelson's excursions into the opposite lane of travel and, on the second occasion, driving across her lane of travel nearly striking the curb on the right side of the road coupled with the moderate odor of alcohol emanating from Nelson and Nelson's denial of recent alcohol consumption in the face of a moderate odor of alcohol are specific and articulable facts which, I suggest, compel the conclusion there existed a reasonable, articulable suspicion Nelson was impaired.").

{¶ 23} Additionally, in State v. Dixon , 2d Dist. Greene No. 2000-CA-30, 2000 WL 1760664 (Dec. 1, 2000), this court held that there was no reasonable, articulable suspicion of driving under the influence where an officer stopped a motorist for a window tint violation and noticed the motorist had glassy, bloodshot eyes, detected the odor of alcohol on the motorist's person, and the motorist admitted to consuming "one or two beers." Id. In so holding, this court considered the fact that the traffic violation did not involve erratic driving and that the motorist's glassy, bloodshot eyes were "readily explained by the lateness of the hour, 2:20 a.m." Id. at *2. We further explained that "the mere detection of an odor of alcohol, unaccompanied by any basis, drawn from the officer's experience or expertise, for correlating that odor with a level of intoxication that would likely impair the subject's driving ability, is not enough to establish that the subject was driving under the influence." Id.

{¶ 24} Although not binding on this court, in State v. Montelauro , 10th Dist. Franklin No. 11AP-413, 2011-Ohio-6568, 2011 WL 6650328, the Tenth District Court of Appeals found that a reasonable, articulable suspicion of driving under the influence existed under circumstances very similar to the instant case. In Montelauro , the investigating officer conducted a traffic stop due to the defendant having expired license plates. Id. at ¶ 9. Thereafter, upon approaching the defendant's vehicle, the officer noticed that the defendant had glassy, bloodshot eyes and immediately detected an obvious odor of an alcoholic beverage emitting from the vehicle. Id. at ¶ 10. During his testimony, the officer acknowledged that he did not "feel comfortable saying strong, moderate or light" with respect to the intensity of the odor of alcohol, but he explained that it was "just obviously an odor of alcoholic beverage, something I've come to detect and I find difficult to quantify," and that "it's just an obvious odor, that's what it is, and it's obvious and apparent to me." Id. Moreover, when the officer asked the defendant if he had been drinking the defendant indicated that he had consumed a Long Island Iced Tea. Id. at ¶ 11. The defendant further advised the officer that he was coming from a billiards bar that the officer knew was having a half-price drink special that night. Id. at ¶ 12.

{¶ 25} In analyzing whether the officer had a reasonable, articulable suspicion of intoxication to justify field sobriety testing, the court in Montelauro discussed our holding in Dixon and found it distinguishable. The court explained that:

[T]he facts here are sufficient to provide reasonable suspicion to conduct field sobriety tests. Although the issue is less clear than it might otherwise be if the officer had characterized the odor of alcohol as either slight, moderate or strong, the officer nonetheless noted an obvious odor of alcohol, which the trial court concluded was more than slight, defendant's admission to drinking Long Island Iced Tea, not one or two beers, the officer knew drinks were half price that night, and defendant had glassy, bloodshot eyes, all giving the officer a reasonable, articulable suspicion to conduct field sobriety tests.

Montelauro at ¶ 19. See also State v. Dierkes , 11th Dist. Portage No. 2008-P-0085, 2009-Ohio-2530, 2009 WL 1515012, ¶ 3-6, 25, and 33 (finding that a reasonable, articulable suspicion of driving under the influence existed under circumstances where the officer pulled the defendant over at 4 a.m. for a license plate violation and where the officer noticed a moderate odor of alcohol emanating from the vehicle and the defendant's breath and the defendant admitted to consuming four or five beers seven hours prior).

{¶ 26} Admittedly, there are some aspects of this case that are analogous to Nelson and Dixon . Nevertheless, upon a thorough review of the record, we find those cases are distinguishable and that the present case is more akin to Montelauro and Dierkes . Unlike Nelson , Officer Lambert testified that Aicher admitted to having a couple of alcoholic beverages and to having come from a known bar district in downtown Dayton. Unlike Dixon , Lambert quantified the odor of alcohol he smelled on Aicher's breath as moderate. Unlike both Nelson and Dixon , Lambert testified that he detected a faint odor of burnt marijuana coming from Aicher and noticed that Aicher was slurring some of his words slightly. While the video evidence indicates that Aicher's speech was not overly impaired, his speech was nevertheless slow and slightly slurred at certain times.

{¶ 27} Therefore, considering the hour of the traffic stop, the moderate odor of alcohol coming from Aicher's breath, the faint odor of burnt marijuana emanating from Aicher's person, Aicher's admission to drinking a couple of alcoholic beverages at a known bar district, and Aicher's slightly slurred speech and glassy eyes, we find that the totality of the circumstances indicate that Officer Lambert had a reasonable, articulable suspicion that Aicher was driving under the influence to justify field sobriety testing. Accordingly, the trial court did not err in overruling Aicher's motion to suppress on that basis.

{¶ 28} Aicher's First Assignment of Error is overruled.

Second Assignment of Error

{¶ 29} Aicher's Second Assignment of Error is as follows:

THE TRIAL COURT ERRED IN ADMITTING THE BREATH SAMPLE.

{¶ 30} Under his Second Assignment of Error, Aicher contends that the trial court should have suppressed the evidence obtained from his breath sample because the State failed to demonstrate that the sample was tested in compliance with the Ohio Department of Health's regulations, which are codified under Chapter 3701-53 of the Ohio Administrative Code. Specifically, Aicher argues the State failed to establish that: (1) he was observed for 20 minutes prior to the breath test as required by Ohio Adm.Code 3701-53-02 ; (2) the Intoxilyzer 8000 at issue was checked for radio frequency interference as required by Ohio Adm.Code 3701-53-04(A)(1) ; (3) the ethyl alcohol solution used to certify the Intoxilyzer 8000 was refrigerated as required by Ohio Adm.Code 3701-53-04(E) ; and (4) the dry gas control check conducted during the certification of the Intoxilyzer 8000 tested within the target value at variance greater than 0.005 in compliance with Ohio Adm.Code 3701-53-04(B) and (C).

{¶ 31} Before addressing each of Aicher's claims, we note that "[a]fter a defendant files a motion to suppress the admission of alcohol test results, 'the state has the burden to show that the test was administered in substantial compliance with the regulations prescribed by the Director of Health.' " Columbus v. Hutchison , 10th Dist. Franklin No. 15AP-667, 2016-Ohio-3186, 2016 WL 3018817, ¶ 28, quoting State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 24. Accord State v. Flege , 2d Dist. Greene No. 06-CA-113, 2007-Ohio-2134, 2007 WL 1299169, ¶ 18, citing State v. Plummer , 22 Ohio St.3d 292, 490 N.E.2d 902 (1986). "Substantial compliance creates a 'presumption of admissibility' that the defendant can only rebut 'by demonstrating that he was prejudiced by anything less than strict compliance' with the regulations." Hutchison at ¶ 28, quoting Burnside at ¶ 24, citing State v. Brown , 109 Ohio App.3d 629, 632, 672 N.E.2d 1050 (4th Dist.1996).

The 20 Minute Observation Period

{¶ 32} For his first argument, Aicher contends that the State failed to demonstrate that he was observed for 20 minutes prior to his breath test as required by Ohio Adm.Code 3701-53-02.

{¶ 33} As a preliminary matter, we note that the appropriate procedure to follow when testing a breath sample depends on which approved breath-testing instrument is used. See Ohio Adm.Code 3701-53-02(D) and (E). There is no dispute that Aicher was tested using an Intoxilyzer model 8000 (OH-5) ("Intoxilyzer 8000"), which is approved as an evidence breath testing instrument under Ohio Adm.Code 3701-53-02(A)(3). According to Ohio Adm.Code 3701-53-02(E), breath samples tested with the Intoxilyzer 8000 "shall be analyzed according to the instrument display for the instrument being used." In contrast, breath samples tested with the other authorized breath testing instruments "shall be analyzed according to the operational checklist for the instrument being used[.]" Ohio Adm.Code 3701-53-02(D).

{¶ 34} None of the relevant Ohio Administrative Code provisions specifically provide for a 20 minute observation period; however, we recognize that there is a plethora of case law indicating that the "operational checklist" used for the other types of breath-testing instruments includes a 20 minute observation period before testing. See Bolivar v. Dick, 76 Ohio St.3d 216, 218, 667 N.E.2d 18 (1996) ; State v. Tenney, 2d Dist. Montgomery No. 24999, 2012-Ohio-3290, 2012 WL 2948498, ¶ 6. Because an Intoxilyzer 8000 was used in this case, Aicher's breath sample was required to be tested in accordance with the machine's "instrument display," not an "operational checklist." The record, however, does not indicate whether the instrument display included a 20 minute observation period. Nevertheless, even if we were to assume that a 20 minute observation period was required, the evidence presented by the State indicates that it substantially complied with such a requirement.

{¶ 35} "Substantial compliance only requires evidence that during the 20 minutes before the breath test the defendant did not ingest anything that might skew the test result." Tenney at ¶ 7, citing State v. Adams , 73 Ohio App.3d 735, 740, 598 N.E.2d 176 (2d Dist.1992), citing State v. Steele , 52 Ohio St.2d 187, 370 N.E.2d 740 (1977). " 'A witness who testifies to that foundational fact is not required to show that the subject was constantly in his gaze, but only that during the relevant period the subject was kept in such a location or condition or under such circumstances that one may reasonably infer that his ingestion of any material without the knowledge of the witness is unlikely or improbable.' " Id. , quoting Adams at 740, 598 N.E.2d 176. It is therefore immaterial whether a subject was observed by several different officers. See Bolivar at 218, 667 N.E.2d 18 ("[W]hen two or more officers, one of whom is a certified operator of the BAC Verifier, observe a defendant continuously for twenty-minutes or more prior to the administration of a breath-alcohol test, the twenty-minute observation requirement of the BAC Verifier operational checklist has been satisfied.").

{¶ 36} In this case, Officer Lambert testified that he arrested Aicher at 1:22 a.m. and that at the time of the arrest Aicher had nothing in his mouth and had no ability to put anything in his mouth because he was handcuffed. From there, Lambert testified that Officer Spinks transported Aicher to jail. Lambert testified that he saw Aicher approximately 20 minutes later in jail where Aicher was kept in a holding cell and monitored by jailer Peter Morris. Lambert testified that Morris did not report that Aicher ingested anything during his observation of him. Lambert further testified that between the time he first made contact with Aicher at jail and the time he took the breath test at 2:07 a.m., he did not observe Aicher ingest anything.

{¶ 37} From the foregoing testimony, it can be inferred that Aicher was kept in conditions making it unlikely or improbable that he ingested anything 20 minutes prior to the breath test. This court has stated that once the inference of unlikely or improbable ingestion is shown, "[t]o overcome that inference, the accused must show that he or she did, in fact, ingest some material during the twenty-minute period." Adams at 740, 598 N.E.2d 176. Here, Aicher never presented any evidence demonstrating that he did, in fact, ingest something. Accordingly, Aicher's first argument challenging the admission of his breath sample lacks merit.

Radio Frequency Interference

{¶ 38} For his second argument, Aicher contends that the State failed to present evidence showing that the Intoxilyzer 8000 used to administer his breath test was checked for radio frequency interference ("RFI") as required by Ohio Adm.Code 3701-53-04(A)(1). Pursuant to that administrative code section:

(A) A senior operator shall perform an instrument check on approved evidential breath testing instruments listed under paragraphs (A)(1), (A)(2), and (B) of rule 3701-53-02 no less frequently than once every seven days in accordance with the appropriate instrument checklist for the instrument being used. The instrument check may be performed anytime up to one hundred and ninety-two hours after the last instrument check.
(1) The instrument shall be checked to detect radio frequency interference (RFI) using a hand-held radio normally used by the law enforcement agency performing the instrument check. The RFI detector check is valid when the evidential breath testing instrument detects RFI or aborts a subject test. If the RFI detector check is not valid, the instrument shall not be used until the instrument is serviced.

(Emphasis added.)

{¶ 39} As noted above, section (A)(1) of Ohio Adm.Code 3701-53-04 applies to "the testing instruments listed under paragraphs (A)(1), (A)(2), and (B) of rule 3701-53-02." The Intoxilyzer 8000 at issue in this case, however, is listed under paragraph (A)(3). As a result, the provision of the code requiring an RFI check does not apply to the Intoxilyzer 8000 at issue. Accordingly, Aicher's second argument challenging the admission of his breath sample lacks merit.

Refrigeration of Ethyl Alcohol Solution

{¶ 40} For his third argument, Aicher contends that the State failed to present evidence showing the that the ethyl alcohol solution used to certify the Intoxilyzer 8000 at issue was refrigerated as required by Ohio Adm.Code 3701-53-04(E).

{¶ 41} Pursuant to Ohio Adm.Code 3701-53-04(C) :

Representatives of the director shall perform an instrument certification on approved evidential breath testing instruments listed under paragraph (A)(3) of rule 3701-53-02 [i.e., the Intoxilyzer model 8000 (OH-5) ] * * * using a solution containing ethyl alcohol approved by the director of health according to the instrument display for the instrument being certified. * * *

(Emphasis added.)

{¶ 42} With regard to the ethyl alcohol solution, Ohio Adm.Code 3701-53-04(E) provides that:

A bottle of approved solution containing ethyl alcohol shall not be used more than three months after its date of first use, or after the manufacturer's expiration date on the approved solution certificate, whichever comes first. After first use, a bottle of approved solution shall be kept under refrigeration when not being used. The approved solution bottle shall be retained for reference until that bottle of approved solution is discarded.

(Emphasis added.)

{¶ 43} In this case, Ohio Department of Health inspector Robert Norbeck testified that on September 9, 2015, he performed the certification of the Intoxilyzer 8000 that was used on Aicher. Norbeck also identified a copy of his signed certification statement, which was admitted into evidence and read as follows:

On the date I performed the certification, I opened a new bottle of solution. When I was done using the solution I disposed of the solution and the bottle, thus there was no need to refrigerate the solution. The bottle and solution was discarded the same day it was open and thus not retained for future reference. This bottle was not used more than three months after its date of first use, or after the manufacturer's expiration date on the approved solution certificate.

(Emphasis added.) State's Exhibit D.

{¶ 44} Based on the foregoing statement, it is clear that Norbeck complied with Ohio Adm.Code 3701-53-04(E) when he certified the breath-test instrument at issue. Based on Norbeck's statement, refrigeration of the ethyl alcohol solution was not required since he used a new bottle of solution during the certification process. Accordingly, Aicher's third argument challenging the admission of his breath sample lacks merit.

Dry Gas Standard

{¶ 45} For his final argument, Aicher contends that Norbeck's testimony regarding the certification of the Intoxilyzer 8000 at issue indicated that the dry gas control check performed during the certification tested beyond the target value at variance greater than 0.005 in violation of Ohio Adm.Code 3701-53-04(B) and (C). We disagree.

{¶ 46} Pursuant to Ohio Adm.Code 3701-53-04(B) :

Instruments listed under paragraph (A)(3) of rule 3701-53-02 of the Administrative Code [i.e., the Intoxilyzer model 8000 (OH-S),] shall automatically perform a dry gas control using a dry gas standard traceable to the national institute of standards and technology (NIST) before and after every subject test. For purposes of an instrument listed under paragraph (A)(3) of rule 3701-53-02 of the Administrative Code, a subject test shall include the collection of two breath samples. * * * Dry gas control results are valid when the results are at or within five one-thousandths (0.005) grams per two hundred ten liters of the alcohol concentration on the manufacturer's certificate of analysis for that dry gas standard. A dry gas control result which is outside the range specified in this paragraph will abort the subject test or instrument certification process.

(Emphasis added.)

{¶ 47} Pursuant to Ohio Adm.Code 3701-53-04(C) :

* * * A dry gas control using a dry gas standard traceable to the national institute of standards and technology (NIST) shall also be used when a certification is performed. An instrument shall be certified no less frequently than once every calendar year or when the dry gas standard on the instrument is replaced, whichever comes first. * * * Instrument certifications are valid when the certification results are at or within five one-thousandths grams per two hundred ten liters of target value for that approved solution. Instruments with certification results outside the range specified in this paragraph will require the instrument be removed from service until the instrument is serviced or repaired. * * *

(Emphasis added.)

{¶ 48} Here, Aicher claims that Norbeck testified that one of the dry gas control checks conducted during the certification of the Intoxilyzer 8000 at issue tested at 0.011 grams when the target value was 0.100, and that said result is beyond the 0.005 variance permitted by the Ohio Administrative Code. The record, however, does not support Aicher's claim. A review of the record indicates Norbeck actually testified that the two dry gas control checks conducted during the certification process resulted in a reading of 0.101 grams, which is within the allowable .005 variance of the 0.100 target value. See Suppression Hearing Trans. (Dec. 14, 2016), p. 14-15. Norbeck's Certification Report, which he identified at trial and was admitted as State's Exhibit A, also indicates that the two dry gas control checks both resulted in readings of 0.101 grams.

{¶ 49} In arguing that the dry gas control tested at 0.011 grams, Aicher relies on the following discussion between the trial court and Norbeck:

COURT: The, if I understand your testimony, you said that you had variances from .99 to, I'm sorry, .099 to .011 on this, this series you've ran, is that correct?
NORBECK: Yes, yes your Honor.
COURT: So you had a swing of three, three thousandths, and your tolerance is five thousands, is that correct?
NORBECK: Yes sir.

(Emphasis added.) Id. at 16.

{¶ 50} Aicher points to the fact that Norbeck agreed with the trial court's statement that one of the readings was 0.011. However, while Norbeck may have agreed with the trial court's numbers at first, he later corrected the mistake when he testified: "I didn't, I didn't testify that it was .011." Id. at 33. Norbeck's correction is in line with his prior testimony and the documentary evidence admitted at the suppression hearing. See State's Exhibit A. Furthermore, it is clear that the trial court misspoke when it said 0.011, as a 0.011 reading would not have amounted to "a swing of three thousandths," but would have amounted to a variance of 0.088. Therefore, because the record indicates that the dry gas control check was 0.101 grams, thereby falling within the allowed 0.005 variance, Aicher's fourth argument challenging the admission of his breath sample lacks merit.

{¶ 51} Having concluded that all of Aicher's arguments challenging the admission of his breath sample are without merit, we find that the trial court did not err in overruling Aicher's motion to suppress. Accordingly, Aicher's Second Assignment of Error is overruled.

Conclusion

{¶ 52} Having overruled both assignments of error raised by Aicher, the judgment of the trial court is affirmed.

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