State v. Clark

2018 Ohio 1046

Opinion

[Cite as State v. Clark, 2018-Ohio-1046.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. John W. Wise, P.J. Plaintiff - Appellee : Hon. W. Scott Gwin, J. : Hon. Craig R. Baldwin, J. -vs- : : MATTEO J. CLARK : Case No. 17 CAA 08 0057 : Defendant - Appellant : OPINION

NUNC PRO TUNC

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 17 CR 1 02 0064

JUDGMENT: Affirmed

DATE OF JUDGMENT: April 24, 2018

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CAROL HAMILTON O'BRIEN SHAWN R. DOMINY Delaware County Prosecuting Attorney 1900 Polaris Parkway, Suite 450 Columbus, Ohio 43240 By: CORY J. GOE Assistant Prosecuting Attorney 140 North Sandusky Street Delaware, Ohio 43015 Delaware County, Case No. 17 CAA 08 0057 2

Baldwin, J.

{¶1} Appellant, Matteo J. Clark, appeals the decision of the Delaware County

Court of Common denying his motion to suppress the results of a urine test. Appellee is

the state of Ohio.

STATEMENT OF FACTS AND THE CASE

{¶2} Trooper Scott Tallman responded to the scene of an accident on November

2, 2016 and encountered appellant. The Trooper noted a strong odor of alcohol about

appellant while he was in the Trooper’s vehicle. Appellant admitted to consuming alcohol.

Appellant did not complain of any injuries but his eyes were glassy and blood shot and

he was stumbling over his words.

{¶3} The Trooper administered the Horizontal Gaze Nystagmus Test, Walk and

Turn Test, and asked appellant to recite the alphabet backward between the letters D and

Q and count backward between the numbers 58 and 73.

{¶4} The appellant was transported to a hospital and lost consciousness en-

route. The Trooper read the terms of Form 2255 to appellant at the scene, but did not

ask for appellant’s consent for testing until he had been admitted to the hospital.

Appellant was asked to provide a urine sample at the hospital and he expressly

consented. The trial court found that timing of the collection of the urine sample fulfilled

all requirements.

{¶5} The Ohio State Patrol Crime Lab received the urine sample on November

10, 2016 at 1:29 PM. Criminalist Jeffrey Turnau, removed the sample from refrigerated

storage on November 16, 2016 and performed gas chromatography to discover the Delaware County, Case No. 17 CAA 08 0057 3

alcohol content. Criminalist Turnau discovered the alcohol content to be 0.177 grams per

100 milliliters of urine, an amount in excess of the limit described in R.C. 4511.19(A)(1)(e).

{¶6} The Delaware County Grand Jury indicted appellant on February 3, 2017

for five offenses: two counts of Aggravated Vehicular Assault, under R.C.

2903.08(A)(1)(a), two counts of Aggravated Vehicular Assault, under R.C.

2903.08(A)(2)(b) and one charge of Operating a Vehicle While Under the Influence of

Alcohol or Drugs, R.C. 4511.19(A)(1). Appellant plead not guilty to all charges.

{¶7} On February 21, 2017 appellant filed motions to suppress the results of the

field sobriety tests and the urine alcohol test. The state filed its responses on March 6

and 7, 2017. The trial court conducted a hearing beginning April 17, 2017 and finishing

May 18, 2017. Trooper Tallman and forensic scientist Turnau testified as stated above.

Mr. Turnau also testified that he was trained and certified and described how he

completed the testing. He testified that the equipment had been properly calibrated, the

lab was certified and that the records were maintained for three years. State regulations

were on the lab bench and all testing was done in accordance with Department of Health

regulations.

{¶8} The trial court suppressed the HGN test, but overruled the appellant’s

motion to suppress the results of the remaining field sobriety tests and the urine test in its

entry dated May 31, 2017. On June 26, 2017, the Appellant entered a plea of no contest

to all charges and was found guilty on all counts. A pre-sentence investigation was

ordered and a sentencing hearing was scheduled for July 31, 2017. Delaware County, Case No. 17 CAA 08 0057 4

{¶9} On July 31, 2017 the trial court sentenced appellant to eighteen months in

prison on Count One and Count Two and sixty days for Count Five. No sentence was

issued for Counts Three and Four. All sentences were ordered to be served concurrently.

{¶10} The Appellant filed a Notice of Appeal and a Motion to Suspend the

Execution of Sentence on August 7, 2017. The sentence in this case was ordered to be

suspended during the pendency of this appeal.

{¶11} The Appellant submits one assignment of error:

{¶12} THE TRIAL COURT ERRED BY OVERRULING THE DEFENDANT’S

MOTION TO SUPPRESS THE URINE TEST BECAUSE THE STATE DID NOT PROVE

THE URINE TEST SUBSTANTIALLY COMPLIED WITH REGULATIONS ISSUED BY

THE OHIO DEPARTMENT OF HEALTH.

STANDARD OF REVIEW

{¶13} There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress. First, an appellant may challenge the trial court's findings of fact. In

reviewing a challenge of this nature, an appellate court must determine whether the

findings of fact are against the manifest weight of the evidence. State v. Fanning 1 Ohio

St.3d 19, 437 N.E.2d 583 (1982). Second, an appellant may argue that the trial court

failed to apply the appropriate test or correct law to the findings of fact. See State v.

Williams, 86 Ohio App.3d 37, 619 N.E.2d 1141, (4th Dist.1993), overruled on other

grounds. Finally, assuming the trial court's findings of fact are not against the manifest

weight of the evidence and it has properly identified the law to be applied, an appellant

may argue that the trial court incorrectly decided the ultimate or final issue raised in the

motion to suppress. When reviewing this type of claim, an appellate court must Delaware County, Case No. 17 CAA 08 0057 5

independently determine, without deference to the trial court's conclusion, whether the

facts meet the appropriate legal standard in any given case. State v. Curry, 95 Ohio

App.3d 93, 96, 641 N.E.2d 1172 (8th Dist. 1994); State v. Claytor (1993), 85 Ohio App.3d

623, 627, 620 N.E.2d 906 (4th Dist. 1993).

{¶14} Judicial officials at suppression hearings may rely on hearsay and other

evidence to determine whether alcohol test results were obtained in compliance with

methods approved by the Director of Health, even though that evidence may not be

admissible at trial. State v. Edwards, 107 Ohio St.3d 169, 2005-Ohio-6180, 837 N.E.2d

752 at paragraph 2 of the syllabus. [Citing Evid.R. 101(C)(1)].

{¶15} The Supreme Court of Ohio has held that rigid compliance with ODH

regulations is not required as such compliance is not always humanly or realistically

possible. State v. Plummer, 22 Ohio St.3d 292, 294, 490 N.E.2d 902 (1986). See, also,

State v. Morton, Warren App. No. CA98-10-131, 1999 WL 296700 (May 10, 1999).

Rather, if the state shows substantial compliance with the regulations, absent prejudice

to the defendant, alcohol tests results can be admitted in a prosecution under R.C.

4511.19. In State v. Burnside, 100 Ohio St.3d 152,159, 2003 -Ohio- 5372, 797 N.E.2d 71,

the Ohio Supreme Court limited the substantial-compliance standard set forth in Plummer

to “excusing only errors that are clearly de minimis.” The Court continued: “Consistent

with this limitation, we have characterized those errors that are excusable under the

substantial-compliance standard as ‘minor procedural deviations.’” Id., citing State v.

Homan, 89 Ohio St.3d 421, 426, 732 N.E.2d 952 (2000).

{¶16} The burden to establish substantial compliance, however, only extends to

the level with which the defendant takes issue with the legality of the test. State v. Delaware County, Case No. 17 CAA 08 0057 6

Johnson, 137 Ohio App.3d 847, 851, 739 N.E.2d 1249 (12th Dist.2000). When the

defendant's motion to suppress merely raises a generalized claim of inadmissibility and

identifies the section(s) of the Administrative Code implicated in that claim, the burden on

the state is slight. State v. Bissaillon, 2nd Dist. Greene No. 06-CA-130, 2007-Ohio-2349,

¶ 12; See also State v. Embry, 12th Dist. Warren No. CA2003-11-110, 2004-Ohio-6324,

at ¶ 24 (simply reiterating Administrative Code provisions creates a burden on the State

to respond only in general to the issues raised). The State is only required to present

general testimony that there was substantial compliance with the requirements of the

regulations; specific evidence is not required unless the defendant raises a specific issue

in the motion to suppress. State v. Bissaillon, 2nd Dist. Greene App. No. 06-CA-130,

2007-Ohio-2349, at ¶ 12.

{¶17} Appellant filed a motion to suppress on February 21, 2017 and listed

eighteen grounds for suppression of the urine test in very general terms by reiterating the

relevant Administrative Code provisions. Appellant has abandoned all but the following

three allegations:

In the instant case, the results of the urine test must be suppressed

unless the state can disprove the:

***

8. Results of controls, certifications, calibration checks and records of

service and repairs were not retained in accordance with OAC 3701-53-01

as required by OAC 3701-53-04.

*** Delaware County, Case No. 17 CAA 08 0057 7

14. The laboratory did not successfully complete a national proficiency

testing program as required by OAC 3701-53-06 and OAC 3701-53-09.

18. The laboratory director and/or laboratory technician were not subject to

surveys and proficiency examinations by representatives of the director of

health as required by OAC 3701-53-07 and OAC 3701-53-09.

{¶18} Appellant did not include any factual basis for these allegations in his

motion, but relied on these general assertions and contended the state failed to

substantially comply with the requirements described in the cited sections of the Ohio

Administrative Code.

{¶19} The state offered the testimony of Criminalist Jeffrey Turnau regarding the

completion of the urine test and compliance with the above cited Code Sections. When

asked whether the records were maintained for three years (with Ohio Adm.Code 3701-

53-01 as required by Ohio Adm.Code 3701-53-04) Mr. Turnau answered in the

affirmative. When asked if the laboratory had completed a national proficiency testing

program, Mr. Turnau confirmed that it had completed the required testing and met all the

applicable requirements for testing (Ohio Adm.Code 3701-53-06 and Ohio Adm.Code

3701-53-09). Mr. Turnau confirmed that he has a laboratory director’s permit and that it

was valid at the time the test was completed. (Ohio Adm.Code 3701-53-07 and Ohio

Adm.Code 3701-53-09).

{¶20} Appellant’s argument is more focused upon the quality of the evidence, not

the absence of evidence. Appellant argues that the testimony of Mr. Turnau was

insufficient because he did not present documentation to support his assertions, because Delaware County, Case No. 17 CAA 08 0057 8

he was not the keeper of records and because he did not personally review the records.

Appellant cites to our holdings in State v. Schlupp, 5th Dist. Coshocton No. 2012 CA

0007, 2012-Ohio-6072, and State v. Troyer, 5th Dist. Stark No. 2013CA00038, 2013-

Ohio-3697 in support of his argument. Those cases are inapposite. In Schlupp we found

that the state failed to present any testimony regarding the qualifications of the person

conducting the test or the procedures followed by the lab to complete the test. Schlupp,

supra at ¶ 68. In the case sub judice, Criminalist Turnau testified regarding his

qualifications and the procedures followed by the lab. In Troyer, the facts revealed a

violation of the relevant Ohio Administrative Code Sections regarding chain of custody

and preservation of the blood sample. Further, the state was unable to provide any

evidence that the lab completed a proficiency test or that the director reviewed, signed

and dated the procedure manual to certify its compliance with the Rules. Troyer, supra

at ¶ 22. Criminalist Turnau provided testimony that all of these requirements were

satisfied. The evidence in Schlupp and Troyer reflected significant defects that are not

present in the record before us.

{¶21} The facts in this case are analogous to the facts in State v. Lentz, where we

held that “[b]ecause of the very general nature of appellant's motion to suppress, specific

evidence in response is not necessary, and general testimony of compliance is sufficient.”

State v. Lentz, 5th Dist. Delaware No. 09CAC070065, 2010-Ohio-762, ¶ 16. We noted

that:

“*** record keeping, including maintenance and repair records, is important

so that defendants may conduct complete and relevant discovery

concerning the instrument that was used to conduct their test. However, Delaware County, Case No. 17 CAA 08 0057 9

rigid compliance with the three-year specification in the ODH record-

keeping regulation is not required where the records themselves are not

shown to be misleading, inaccurate, or incomplete.

{¶22} Lentz, supra at ¶ 19

{¶23} The appellant did not provide any evidence that would show that the records

were misleading, inaccurate or incomplete. Appellant had the opportunity to obtain and

review the records but elected not to do so. “Appellant's failure to attempt to discover

factual support for his motion to suppress relating to the state's compliance [with the

relevant administrative code sections] relieved the state of any burden to respond to

appellant's allegations with greater specificity. State v. Hernandez-Rodriguez, 11th Dist.

Portage No. 2006-P-0121, 2007-Ohio-5200, ¶ 53

{¶24} The appellee presented sufficient evidence to address the general

assertions of the appellant and establish substantial compliance with the regulations,

triggering the presumption of admissibility and shifting the burden to appellant to rebut

the presumption by a showing of prejudice. Lentz, supra at ¶ 20. Appellant has not offered

any evidence of prejudice and, in fact, restricts his argument to his contention that the

appellee has not substantially complied. Delaware County, Case No. 17 CAA 08 0057 10

{¶25} For the forgoing reasons, the decision of the Delaware County Court of

Common Pleas is affirmed. Costs assessed to appellant.

By: Baldwin, J.

John Wise, P.J. and

Gwin, J. concur.