[Cite as State v. Boyer, 2015-Ohio-4951.]
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff - Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : LESLIE BOYER : Case No. 15-CA-09 : Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield Municipal Court, Case No. TRC 1403710
JUDGMENT: Affirmed
DATE OF JUDGMENT: November 25, 2015
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
DANIEL E. COGLEY AARON CONRAD Assistant Prosecutor Conrad Law Office LLC City of Lancaster 120 1/2 E. Main Street 123 E. Chestnut St. Lancaster, OH 43130 P.O. Box 1008 Lancaster, OH 43130 Fairfield County, Case No. 15-CA-09 2
Baldwin, J.
{¶1} Appellant Leslie Boyer appeals a judgment of the Fairfield Municipal Court
convicting her of operating a vehicle under the influence (R.C. 4511.19(A)(1)(a)), refusal
to submit to a chemical test (R.C. 4511.19(A)(2)), and assured clear distance
(Lancaster Codified Ord. 333.03). Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On April 9, 2014, Officer Matthew Poffenbarger of the Lancaster Police
Department responded to a report of a vehicle leaving the scene of an accident. The
reporting party told Officer Poffenbarger that another driver struck the rear of his
vehicle, then left the scene without exchanging insurance information. The driver
provided the officer with the license plate number of the vehicle that struck him, and
stated that the fleeing driver appeared impaired.
{¶3} Officer Poffenbarger located the other driver, later identified as appellant,
at her home. The officer walked around the vehicle and did not notice any damage.
Appellant acknowledged the crash, but claimed she had stopped and the vehicle in front
of her rolled backwards into her vehicle. The officer noted that appellant's eyes
appeared glossy. He asked her to produce a driver's license and proof of insurance.
She could not find her proof of insurance, and went to the vehicle to search for her
insurance card. During this time, the officer asked appellant if she had consumed drugs
or alcohol prior to driving that evening. She responded that she took Ambien and
Tramadol. Officer Poffenbarger administered field sobriety tests to appellant, and
placed her under arrest for OVI. Fairfield County, Case No. 15-CA-09 3
{¶4} Officer Poffenbarger transported appellant to the Lancaster Police
Department where he read her a BMV 2255 form. Appellant agreed to provide a urine
sample. The officer asked a female dispatcher, Nicki Meadows, to assist in obtaining a
sample from appellant. However, after about five minutes, appellant informed Meadows
that she could not provide a sample. Appellant signed the BMV 2255 form, which
acknowledged that she refused the urine test.
{¶5} Appellant was cited for violating R.C. 4511.19(A)(1)(a) and R.C.
4511.19(A)(2), operating a vehicle under the influence and refusing to submit to a
chemical test with a prior conviction within the last twenty years. She was also cited
with violating Lancaster Codified Ordinance 333.03, assured clear distance, and
Lancaster Codified Ordinance 335.12, leaving the scene of an accident.
{¶6} Appellant moved to suppress evidence. Following a hearing, the court
suppressed the results of the horizontal gaze nystagmus test and her admission to
consuming alcohol, and otherwise overruled appellant's motion.
{¶7} The case proceeded to jury trial. Appellant was acquitted of leaving the
scene of an accident, and convicted of OVI and refusal to submit to chemical testing.
The court found appellant guilty of assured clear distance. She was sentenced to 180
days in the Fairfield County Jail with 160 suspended. She assigns three errors on
appeal to this Court:
{¶8} "I. THE TRIAL COURT ERRED IN FINDING THE OFFICER HAD
REASONABLE SUSPICION TO CONTINUE TO DETAIN DEFENDANT TO CONDUCT
FIELD SOBRIETY TESTS. Fairfield County, Case No. 15-CA-09 4
{¶9} "II. THE COURT COMMITTED REVERSIBLE ERROR BY FAILING TO
ALLOW DEFENDANT TO INTRODUCE MEDICAL RECORDS.
{¶10} "III. THE JURY'S GUILTY VERDICT FOR VIOLATING R.C.
4511.19(A)(2) WAS BOTH AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE
AND SUPPORTED BY INSUFFICIENT EVIDENCE."
I.
{¶11} In her first assignment of error, appellant argues that once the officer had
observed that there was no damage to her vehicle, the suspicions that triggered the
initial investigation for leaving the scene of an accident were dispelled and he had no
authority to detain her for the purpose of checking her driver’s license or proof of
insurance.
{¶12} Appellant relies on State v. Chatton, 11 Ohio St. 3d 59, 63, 463 N.E.2d
1237 (1984), in which the Ohio Supreme Court held that where a police officer stopped
a motor vehicle which displayed neither front nor rear license plates, but upon
approaching the stopped vehicle saw a temporary tag visible through the rear
windshield, the officer could not detain the driver of the vehicle to determine the validity
of his driver's license absent some specific and articulable facts that the detention was
reasonable. Appellant argues that having ascertained at the scene that there was not
damage to the other vehicle or the driver, once the officer noted no damage on
appellant's car and determined that she was not injured, he could not detain her to ask
for her driver's license and her proof of insurance.
{¶13} Lancaster Codified Ordinance 335.12 provides in pertinent part: Fairfield County, Case No. 15-CA-09 5
In case of accident to or collision with persons or
property upon any of the public roads or highways, due to
the driving or operation thereon of any motor vehicle, the
person driving or operating the motor vehicle, having
knowledge of the accident or collision, immediately shall stop
the driver’s or operator’s motor vehicle at the scene of the
accident or collision and shall remain at the scene of the
accident or collision until the driver or operator has given the
driver’s or operator’s name and address and, if the driver or
operator is not the owner, the name and address of the
owner of that motor vehicle, together with the registered
number of that motor vehicle, to any person injured in the
accident or collision or to the operator, occupant, owner, or
attendant of any motor vehicle damaged in the accident or
collision, or to any police officer at the scene of the accident
or collision.
{¶14} In construing R.C. 4549.02, which includes the identical language found in
Lancaster Ord. 335.12 cited above, this Court has held that $1.00 of damage is
sufficient to sustain a conviction for leaving the scene of an accident. State v.
Maioriello, 73 Ohio App.3d 350, 597 N.E.2d 185 (5th Dist. Stark 1992). Officer
Poffenbarger testified that he didn't observe damage to either vehicle. However, as
slight damage is sufficient to establish a violation of the statute, we decline to hold that Fairfield County, Case No. 15-CA-09 6
the officer cannot detain the driver to obtain a driver's license and proof of insurance
simply because there is no obvious damage to either vehicle on a cursory examination.
{¶15} Further, regardless of whether the officer could detain appellant for
violation of the statute concerning leaving the scene of the accident, the driver of the
vehicle told Officer Poffenbarger that the vehicle struck him from behind. Therefore, the
officer had a reasonable suspicion that appellant had committed a violation of the
ordinance or statute concerning assured clear distance, and he could detain her for
purposes of checking her driver's license and proof of insurance.
{¶16} The first assignment of error is overruled.
II.
{¶17} In her second assignment of error, appellant argues that the court erred in
redacting portions of her medical records other than dates of treatment.
{¶18} Appellant contended that she had a knee problem, contributing to her poor
performance on field sobriety tests. She sought to introduce medical records, through
the testimony of the custodian of the records, to demonstrate that she had knee
problems. The trial court allowed the custodian to testify that records exist and indicate
that appellant sought treatment on certain dates, but in the absence of expert testimony,
the court excluded the diagnosis from admission into evidence. The court therefore
redacted any diagnostic information in the records.
{¶19} The admission or exclusion of relevant evidence rests within the sound
discretion of the trial court. State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343,
paragraph 2 of the syllabus (1987). Fairfield County, Case No. 15-CA-09 7
{¶20} Evid. R. 803(6) provides an exception to the hearsay rule for business
records as follows:
(6) Records of regularly conducted activity. A
memorandum, report, record, or data compilation, in any
form, of acts, events, or conditions, made at or near the time
by, or from information transmitted by, a person with
knowledge, if kept in the course of a regularly conducted
business activity, and if it was the regular practice of that
business activity to make the memorandum, report, record,
or data compilation, all as shown by the testimony of the
custodian or other qualified witness or as provided by Rule
901(B)(10), unless the source of information or the method
or circumstances of preparation indicate lack of
trustworthiness. The term 'business' as used in this
paragraph includes business, institution, association,
profession, occupation, and calling of every kind, whether or
not conducted for profit.
{¶21} In determining whether a medical diagnosis included as hearsay in a
business record is admissible, we have previously applied the test set forth by the 10th
District in Hytha v. Schwendeman, 40 Ohio App.2d 478, 320 N.E.2d 312 (1974). In that
case, the Franklin County Court of Appeals set forth seven elements which must be
present before the record of a medical diagnosis made by a physician may be admitted
into evidence: Fairfield County, Case No. 15-CA-09 8
{¶22} “(1) The record must have been a systematic entry kept in the records of
the hospital or physician and made in the regular course of business;
{¶23} “(2) The diagnosis must have been the result of well-known and accepted
objective testing and examining practices and procedures which are not of such a
technical nature as to require cross-examination;
{¶24} “(3) The diagnosis must not have rested solely upon the subjective
complaint of the patient;
{¶25} “(4) The diagnosis must have been made by a qualified person;
{¶26} “(5) The evidence sought to be introduced must be competent and
relevant;
{¶27} “(6) If the use of the record is for the purpose of proving the truth of the
matter asserted at trial, it must be the product of the parties seeking its admission;
{¶28} “(7) It must be properly authenticated.”
{¶29} Overcasher v. Northland Cranberries, Inc., 5th Dist. Stark No. 2003-CA-
00365, 2004-Ohio-4942, ¶¶ 14-21.
{¶30} In the instant case, appellant did not demonstrate that the diagnosis was
the result of well-known and accepted objective testing and examining practices and
procedures which are not of such a technical nature as to require cross-examination,
and she did not demonstrate the qualifications of the person making the diagnosis. We
therefore conclude that the court did not abuse its discretion in excluding the medical
diagnosis from evidence.
{¶31} Further, appellant sought to admit the records to verify her claim that she
suffered from a knee injury. Appellant was permitted to present evidence that she Fairfield County, Case No. 15-CA-09 9
sought treatment from an orthopedic surgeon on February 20, 2014, August 7, 2014,
September 9, 2014, September 19, 2014, and October 6, 2014. There is nothing in the
record to indicate that admission of the diagnosis related directly to her performance on
the field sobriety tests. Rather, appellant sought to admit the records to establish that
she "was not alluding to some false or nonexistent leg or knee issue that was detailed in
the State's video." Tr. 272. The admission of the dates of treatment with the orthopedic
surgeon supported the veracity of her claim that she had problems with her knee. She
has not demonstrated prejudice from the court's exclusion of the precise diagnosis of
the doctor.
{¶32} The second assignment of error is overruled.
III.
{¶33} In her third assignment of error, appellant argues that the judgment finding
her guilty of refusing to submit to a chemical test is against the manifest weight and
sufficiency of the evidence. Specifically, she argues that she did not refuse the test, but
was unable to urinate.
{¶34} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire
record, weighs the evidence and all reasonable inferences, considers the credibility of
witnesses, and determines whether in resolving conflicts in 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, 387,
1997-Ohio-52, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485
N.E.2d 717 (1983). Fairfield County, Case No. 15-CA-09 10
{¶35} An appellate court's function when reviewing the sufficiency of the
evidence is to determine 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. Jenks, 61 Ohio St. 3d 259, 574
N.E.2d 492, paragraph two of the syllabus (1991).
{¶36} R.C. 4511.19(A)(2) states:
{¶37} "(2) No person who, within twenty years of the conduct described in
division (A)(2)(a) of this section, previously has been convicted of or pleaded guilty to a
violation of this division, a violation of division (A)(1) or (B) of this section, or any other
equivalent offense shall do both of the following:
{¶38} "(a) Operate any vehicle, streetcar, or trackless trolley within this state
while under the influence of alcohol, a drug of abuse, or a combination of them;
{¶39} "(b) Subsequent to being arrested for operating the vehicle, streetcar, or
trackless trolley as described in division (A)(2)(a) of this section, being asked by a law
enforcement officer to submit to a chemical test or tests under section 4511.191 of the
Revised Code, and being advised by the officer in accordance with section 4511.192 of
the Revised Code of the consequences of the person's refusal or submission to the test
or tests, refuse to submit to the test or tests."
{¶40} A refusal to submit to a chemical test of the blood, breath or urine will
occur where a person, by his acts, words or general conduct, manifests an
unwillingness to submit to the test. Hoban v. Rice, 25 Ohio St.2d 111, 267 N.E.2d 311,
paragraph 3 of the syllabus (1971). Such refusal need not have been knowingly and
intentionally made. Id. Whether or not a driver refused a test is a factual determination Fairfield County, Case No. 15-CA-09 11
that is to be made by the trial court based upon all of the evidence before it. State v.
Owen, 12th Dist. Warren No. CA97-12-229, 1998 WL 729204 (Oct. 19, 1998).
{¶41} In State v. Brown, 12th Dist. Clermont No. CA2013–04–029, 2013-Ohio-
4981, the 12th District Court of Appeals reversed an administrative license suspension
based on refusal to submit to a urine test where the officer testified that the defendant
agreed to take the urine test, attempted to provide a sample several times, and drank
multiple glasses of water. Id. at ¶12.
{¶42} In the instant case, the dispatcher testified that appellant tried for five
minutes to provide a sample, and then told the dispatcher that she was unable to go to
the restroom. Appellant never indicated to the dispatcher that she wanted to try again
to produce a sample. Officer Poffenbarger testified that appellant attempted to provide
a sample, but could not. Appellant signed a BMV 2255 form, which stated that she
refused the test.
{¶43} The jury could find that by appellant's actions and conduct, she submitted
an unwillingness to submit to the test after initially agreeing to the test. Despite facing a
mandatory two-year license suspension for refusing to submit to the test, appellant
attempted to provide a sample for only five minutes and did not attempt to provide
another sample. The judgment is not against the manifest weight and sufficiency of the
evidence. Fairfield County, Case No. 15-CA-09 12
{¶44} The third assignment of error is overruled. The judgment of the Fairfield
County Municipal Court is affirmed. Costs are assessed to appellant.
By: Baldwin, J.
Delaney, J. concurs.
Hoffman, P.J. concurs in part And dissents in part Fairfield County, Case No. 15-CA-09 13
Hoffman, P.J., concurring in part and dissenting in part
{¶45} I concur in the majority’s analysis and disposition of Appellant’s third
assignment of error.1
{¶46} I further concur in the majority’s disposition of Appellant’s first assignment
of error, but do so for a different reason.
{¶47} The majority reasons because even slight damage is sufficient to establish
violation of the statute [ordinance], the officer can detain the driver to gather additional
information even though there was no obvious damage to either vehicle on cursory
examination. While I agree even slight damage would suffice, the evidence in the case
sub judice shows there was no damage or injury to person or property. The jury’s
verdict of not guilty of the leaving the scene of an accident charge arguably supports the
conclusion there was no damage.
{¶48} Nevertheless, I concur in overruling the first assignment of error because I
find a distinction between “detention” and “investigation.”
{¶49} In State v. Chatton, (1984) 11 Ohio St.3d 59, the Ohio Supreme Court
found a stopped motor vehicle could not be further detained after determining the
temporary license tag was visible. Unlike Chatton, no stop or detainment of a motorist
occurred here. The officer did not “detain” Appellant, but rather was in the process of
investigating an accident and the possibility of the commission of a traffic violation(s). I
find the circumstances which evolved during that investigation gave the officer
reasonable suspicion to conduct the field sobriety tests.
1 I do so despite Officer Poffenbarger’s belief Appellant did not refuse to submit to the urine test. The officer’s subjective opinion does not prevail over the jury’s finding based upon the evidence. Fairfield County, Case No. 15-CA-09 14
{¶50} Accordingly, I concur in the majority’s decision to overrule Appellant’ first
assignment of error.
{¶51} I disagree with the majority’s analysis of Appellant’s second assignment of
error.
{¶52} The majority concludes the trial court did not abuse its discretion in
excluding the medical diagnoses contained within the medical records Dr. Voto, which is
marked as Defendant’s Exhibit 2. It do so for two reasons.
{¶53} First, the trial court determined medical records do not demonstrate the
qualifications of the person making the diagnosis. I disagree.2
{¶54} The medical records reflect the medical treatment and diagnoses were
rendered by Dr. Stephen Voto of the Southeast Ohio Regional Orthopedic Center. The
records demonstrate Dr. Voto is an orthopedic surgeon, which fact was corroborated by
the testimony of the medical records custodian. As such, I find the qualifications of the
person making the diagnoses were established.
{¶55} The other reason the majority relies upon to support the trial court’s
decision is the fact Appellant did not demonstrate the diagnosis was the result of well-
known and accepted objective testing and examining practices as well as procedures
which are not of such a technical nature as to require cross-examination. From my
review of the medical records, I find much, if not all, of the information contained in the
records was not of such a technical nature as to require cross-examination. And, more
2 The majority notes this Court has applied the seven factor test found in Hytha v. Schwendeman (1974), 40 Ohio App. 2d. 478. The majority bases its analysis on only two of those factors. I find the other five factors all support admission of the medical records herein. Fairfield County, Case No. 15-CA-09 15
importantly, I find much of the information contained therein was factual information, not
diagnoses, that was improperly excluded.
{¶56} The trial court made it clear the only testimony admissible from the
medical records would be the date(s) of treatment. The trial court specifically excluded
any testimony regarding which body part was being treated and of what the treatment
consisted. The trial court excluded far more than just diagnoses.
{¶57} The medical records reflect Appellant had a two-view x-ray of her right
knee on September 4, 2013. This is a fact, not diagnosis.
{¶58} The records further reflect Appellant had surgery on her right knee on
September 9, 2014, again a fact, not a diagnosis. While the preoperative and
postoperative diagnoses may have been properly excluded, the fact Appellant had
surgery on her right knee should not have been.
{¶59} Finally, the postoperative examination of Appellant by Dr. Voto noting
swelling of Appellants right knee is not a diagnosis, but rather a physical finding.
{¶60} I find for the trial court to have excluded the factual evidence noted above
as it specifically relates to Appellant’s right knee was error.
{¶61} The question next becomes, whether the exclusion of the evidence
constituted prejudicial or harmless error.
{¶62} The state of Ohio argues even if the medical records should have been
admitted, Appellant was not unfairly prejudiced because the medical records custodian
testified Defendant was being seen for her knee. In support, the state of Ohio cites
page 286 of the record. Fairfield County, Case No. 15-CA-09 16
{¶63} Upon review, I find the state’s assertion disingenuous. While the witness
did respond Dr. Voto was seeing Appellant for her knee, the state of Ohio immediately
objected, which objection was sustained. Further, when Appellant attempted to solicit
testimony concerning her surgery [on her right knee], the state of Ohio again
immediately objected, which objection was also sustained. The state of Ohio made it a
point during closing argument there was no exhibit or testimony to prove Appellant had
any [knee] condition (Tr. at 316). Had the improperly excluded evidence been admitted,
such argument could not have been made.
{¶64} The majority finds Appellant did not demonstrate prejudice from the
exclusion of the diagnosis, in part, because there is nothing in the record to indicate that
admission of the diagnosis related directly to her performance on the field sobriety tests.
I find the fact the medical records reflect Appellant sought treatment for her right knee
on two occasions prior to the date of the offense and had surgery on that knee five
months later, would allow the jury to infer her right knee condition was related directly to
her performance on the field sobriety tests.
{¶65} The majority further concludes no prejudice resulted because the
admission of the dates of treatment with the orthopedic surgeon supported the veracity
of her claim she had problems with her knee. I think such begs the question. Without
being able to establish what those treatments were for, the veracity of her claims about
her knee problem were not properly supported. Hence, the state of Ohio was able to
comment during closing argument as to the lack of evidence of a knee condition, supra. Fairfield County, Case No. 15-CA-09 17
{¶66} While I concede there was other evidence of impairment, I do not find the
weight of such sufficiently overwhelming to conclude the exclusion of the medical
records, in toto, could not have affected the outcome of the trial.