[Cite as State v. Fetter, 2013-Ohio-4640.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT AUGLAIZE COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 2-13-12
v.
BRANDON R. FETTER, OPINION
DEFENDANT-APPELLANT.
Appeal from Auglaize County Common Pleas Court Trial Court No. 2012-CR-141
Judgment Affirmed
Date of Decision: October 21, 2013
APPEARANCES:
S. Mark Weller for Appellant
R. Andrew Augsburger for Appellee Case No. 2-13-12
ROGERS, J.
{¶1} Defendant-Appellant, Brandon Fetter, appeals the judgment of the
Court of Common Pleas of Auglaize County convicting him of aggravated
vehicular homicide and sentencing him to a seven-year prison term. On appeal,
Fetter argues that the trial court improperly excluded evidence that the victim,
Michael Ford, was not wearing a seatbelt at the time of the automobile accident
that took his life. For the reasons that follow, we affirm the trial court’s judgment.
{¶2} On August 9, 2012, the Auglaize County Grand Jury indicted Fetter
with the following: (1) Count I – aggravated vehicular homicide in violation of
R.C. 2903.06(A)(1)(a), (B)(2)(a), a felony of the second degree; (2) Count II –
operating a vehicle under the influence of alcohol in violation of R.C.
4511.19(A)(1)(a), a misdemeanor of the first degree; and (3) Count III – operating
a motor vehicle under the influence of alcohol in violation of R.C.
4511.19(A)(1)(b), a misdemeanor of the first degree. The indictment arose from a
February 1, 2012 automobile accident on State Route 117 in eastern Auglaize
County. Fetter was driving his automobile northbound around 10:25 p.m. when
his car went into the southbound lane and struck Ford’s vehicle. As a result of the
accident, Ford sustained fatal injuries and subsequently died while Fetter sustained
less serious injuries.
-2- Case No. 2-13-12
{¶3} The trial of this matter commenced on January 7, 2013 and continued
through January 10, 2013. At trial, the following relevant evidence was adduced.
{¶4} Jeb Sheidler, an off-duty trained paramedic, testified regarding his
treatment of Ford at the accident scene. Sheidler found Ford slumped over the
front seat of the vehicle. When Sheidler first arrived, he felt a carotid pulse, but
after several resuscitation attempts, Ford’s pulse was non-existent before being
placed into an ambulance.
{¶5} On cross-examination, Sheidler discussed the placement of the
seatbelt in Ford’s automobile:
Q: Do you know if somebody took his seatbelt off or do you know if he was wearing his seatbelt?
A: I have no idea.
Q: It just wasn’t in place when you got there?
A: Correct.
Trial Tr., p. 57.
{¶6} Cheryl Jerew, the Wayne Township EMS chief, testified regarding her
response to the accident scene. She was involved in removing Fetter from his
automobile. In doing so, Chief Jerew asked Fetter whether he had been drinking
alcoholic beverages before the accident. According to her, Fetter “indicated that
he had been drinking and he had quite a bit to drink.” Id. at p. 67.
-3- Case No. 2-13-12
{¶7} Sergeant John Westerfield of the Ohio State Highway Patrol testified
regarding his response to the accident scene. He indicated that he interviewed
Fetter about the accident. Sergeant Westerfield generally described Fetter’s
responses during the interview as follows:
There were a lot of incidents where he couldn’t recall. There was some that he could. Basically, he left his uncle’s house, was on State Route 117 going to his residence on Fairmount Road. That he did make the left turn. He was aware there were headlights coming towards him, but there were other questions that I asked that he couldn’t recall specifics to.
Id. at p. 76. When asked about the distance of the oncoming headlights, Fetter
told Sergeant Westerfield that “[i]t was either twenty (20) to fifty feet (50’) or
thirty (30) to fifth feet (50’).” Id. at p. 77. Sergeant Westerfield also asked Fetter
whether he had consumed alcoholic beverages before the accident:
Q: What was his comment about consuming alcohol?
A: That he did consume alcohol. I believe he had four (4), he said standard size cups of I believe eighty (80) proof rum that was mixed with some other Ginger Ale, some other nonalcoholic beverages.
Q: Did he make any comments to you about being under the influence?
A: Yes, he did.
Q: What did he say?
A: He said he was slightly buzzed. I don’t know exact wording without my statement, but basically that he was slightly buzzed or slightly impaired. But, he wasn’t seeing double or things weren’t spinning.
-4- Case No. 2-13-12
Id.
{¶8} Sergeant Westerfield explained that he took the statement when Fetter
was receiving treatment in the Lima Memorial Hospital’s emergency department.
At the time, Fetter was strapped onto a backboard with a c-collar around his neck.
Sergeant Westerfield testified that during the course of the interview, he could
smell the odor of alcoholic beverage on Fetter’s breath. After the interview and
recording Fetter’s responses to his questions, Sergeant Westerfield gave Fetter the
opportunity to review his statements. Fetter reviewed the statements and agreed
that they were accurately recorded. Sergeant Westerfield additionally indicated
that he obtained a blood sample with Fetter’s consent from hospital staff at
approximately 1:30 a.m., three hours after the accident.
{¶9} Mark Hiatt, the laboratory supervisor for the Ohio State Highway
Patrol Crime Lab’s drug chemistry division, testified regarding the tests he
performed on the blood sample collected from Fetter. The tests revealed a blood
alcohol content of 0.155 grams by weight of alcohol per 100 milliliters of whole
blood. Dr. Robert Forney then offered his expert opinion that the results of the
blood tests indicated that Fetter was “significantly impaired by the alcohol in his
system” around the time of the accident. Id. at p. 134. Dr. Forney testified that
the alcohol would particularly affect his depth perception while driving.
-5- Case No. 2-13-12
{¶10} Dr. Thomas Freytag, the Auglaize County Coroner, testified that he
declared Ford dead at the accident scene around 10:50 p.m. He identified the
cause of death as multiple blunt force trauma occurring from the accident.
{¶11} Sergeant Ed Magoto of the Ohio State Highway Patrol, an accident
scene reconstructionist, testified regarding his investigation of the accident scene
and resultant conclusions. He determined that the accident occurred when Fetter
was turning left onto Fairmount Road. During the turn, Fetter’s automobile
collided with Ford’s automobile at a 29 degree angle. Sergeant Magoto estimated
that at the time of impact, Fetter’s car was traveling approximately 18 miles per
hour while Ford’s automobile was traveling approximately 43 to 48 miles per
hour. Based on these calculations and observations, Sergeant Magoto testified that
Fetter’s failure to yield the right of way when turning left caused the accident.
After Sergeant Magoto’s testimony, the State rested.
{¶12} After the State rested, Fetter moved for an acquittal pursuant to
Crim.R. 29. During the course of arguing his position, Fetter’s defense counsel
asserted that the evidence established that Ford was not wearing a seatbelt at the
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[Cite as State v. Fetter, 2013-Ohio-4640.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT AUGLAIZE COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 2-13-12
v.
BRANDON R. FETTER, OPINION
DEFENDANT-APPELLANT.
Appeal from Auglaize County Common Pleas Court Trial Court No. 2012-CR-141
Judgment Affirmed
Date of Decision: October 21, 2013
APPEARANCES:
S. Mark Weller for Appellant
R. Andrew Augsburger for Appellee Case No. 2-13-12
ROGERS, J.
{¶1} Defendant-Appellant, Brandon Fetter, appeals the judgment of the
Court of Common Pleas of Auglaize County convicting him of aggravated
vehicular homicide and sentencing him to a seven-year prison term. On appeal,
Fetter argues that the trial court improperly excluded evidence that the victim,
Michael Ford, was not wearing a seatbelt at the time of the automobile accident
that took his life. For the reasons that follow, we affirm the trial court’s judgment.
{¶2} On August 9, 2012, the Auglaize County Grand Jury indicted Fetter
with the following: (1) Count I – aggravated vehicular homicide in violation of
R.C. 2903.06(A)(1)(a), (B)(2)(a), a felony of the second degree; (2) Count II –
operating a vehicle under the influence of alcohol in violation of R.C.
4511.19(A)(1)(a), a misdemeanor of the first degree; and (3) Count III – operating
a motor vehicle under the influence of alcohol in violation of R.C.
4511.19(A)(1)(b), a misdemeanor of the first degree. The indictment arose from a
February 1, 2012 automobile accident on State Route 117 in eastern Auglaize
County. Fetter was driving his automobile northbound around 10:25 p.m. when
his car went into the southbound lane and struck Ford’s vehicle. As a result of the
accident, Ford sustained fatal injuries and subsequently died while Fetter sustained
less serious injuries.
-2- Case No. 2-13-12
{¶3} The trial of this matter commenced on January 7, 2013 and continued
through January 10, 2013. At trial, the following relevant evidence was adduced.
{¶4} Jeb Sheidler, an off-duty trained paramedic, testified regarding his
treatment of Ford at the accident scene. Sheidler found Ford slumped over the
front seat of the vehicle. When Sheidler first arrived, he felt a carotid pulse, but
after several resuscitation attempts, Ford’s pulse was non-existent before being
placed into an ambulance.
{¶5} On cross-examination, Sheidler discussed the placement of the
seatbelt in Ford’s automobile:
Q: Do you know if somebody took his seatbelt off or do you know if he was wearing his seatbelt?
A: I have no idea.
Q: It just wasn’t in place when you got there?
A: Correct.
Trial Tr., p. 57.
{¶6} Cheryl Jerew, the Wayne Township EMS chief, testified regarding her
response to the accident scene. She was involved in removing Fetter from his
automobile. In doing so, Chief Jerew asked Fetter whether he had been drinking
alcoholic beverages before the accident. According to her, Fetter “indicated that
he had been drinking and he had quite a bit to drink.” Id. at p. 67.
-3- Case No. 2-13-12
{¶7} Sergeant John Westerfield of the Ohio State Highway Patrol testified
regarding his response to the accident scene. He indicated that he interviewed
Fetter about the accident. Sergeant Westerfield generally described Fetter’s
responses during the interview as follows:
There were a lot of incidents where he couldn’t recall. There was some that he could. Basically, he left his uncle’s house, was on State Route 117 going to his residence on Fairmount Road. That he did make the left turn. He was aware there were headlights coming towards him, but there were other questions that I asked that he couldn’t recall specifics to.
Id. at p. 76. When asked about the distance of the oncoming headlights, Fetter
told Sergeant Westerfield that “[i]t was either twenty (20) to fifty feet (50’) or
thirty (30) to fifth feet (50’).” Id. at p. 77. Sergeant Westerfield also asked Fetter
whether he had consumed alcoholic beverages before the accident:
Q: What was his comment about consuming alcohol?
A: That he did consume alcohol. I believe he had four (4), he said standard size cups of I believe eighty (80) proof rum that was mixed with some other Ginger Ale, some other nonalcoholic beverages.
Q: Did he make any comments to you about being under the influence?
A: Yes, he did.
Q: What did he say?
A: He said he was slightly buzzed. I don’t know exact wording without my statement, but basically that he was slightly buzzed or slightly impaired. But, he wasn’t seeing double or things weren’t spinning.
-4- Case No. 2-13-12
Id.
{¶8} Sergeant Westerfield explained that he took the statement when Fetter
was receiving treatment in the Lima Memorial Hospital’s emergency department.
At the time, Fetter was strapped onto a backboard with a c-collar around his neck.
Sergeant Westerfield testified that during the course of the interview, he could
smell the odor of alcoholic beverage on Fetter’s breath. After the interview and
recording Fetter’s responses to his questions, Sergeant Westerfield gave Fetter the
opportunity to review his statements. Fetter reviewed the statements and agreed
that they were accurately recorded. Sergeant Westerfield additionally indicated
that he obtained a blood sample with Fetter’s consent from hospital staff at
approximately 1:30 a.m., three hours after the accident.
{¶9} Mark Hiatt, the laboratory supervisor for the Ohio State Highway
Patrol Crime Lab’s drug chemistry division, testified regarding the tests he
performed on the blood sample collected from Fetter. The tests revealed a blood
alcohol content of 0.155 grams by weight of alcohol per 100 milliliters of whole
blood. Dr. Robert Forney then offered his expert opinion that the results of the
blood tests indicated that Fetter was “significantly impaired by the alcohol in his
system” around the time of the accident. Id. at p. 134. Dr. Forney testified that
the alcohol would particularly affect his depth perception while driving.
-5- Case No. 2-13-12
{¶10} Dr. Thomas Freytag, the Auglaize County Coroner, testified that he
declared Ford dead at the accident scene around 10:50 p.m. He identified the
cause of death as multiple blunt force trauma occurring from the accident.
{¶11} Sergeant Ed Magoto of the Ohio State Highway Patrol, an accident
scene reconstructionist, testified regarding his investigation of the accident scene
and resultant conclusions. He determined that the accident occurred when Fetter
was turning left onto Fairmount Road. During the turn, Fetter’s automobile
collided with Ford’s automobile at a 29 degree angle. Sergeant Magoto estimated
that at the time of impact, Fetter’s car was traveling approximately 18 miles per
hour while Ford’s automobile was traveling approximately 43 to 48 miles per
hour. Based on these calculations and observations, Sergeant Magoto testified that
Fetter’s failure to yield the right of way when turning left caused the accident.
After Sergeant Magoto’s testimony, the State rested.
{¶12} After the State rested, Fetter moved for an acquittal pursuant to
Crim.R. 29. During the course of arguing his position, Fetter’s defense counsel
asserted that the evidence established that Ford was not wearing a seatbelt at the
time of the accident, which broke the causal connection between Fetter’s conduct
and Ford’s death. The trial court denied Fetter’s motion.
{¶13} The trial court subsequently heard more argument regarding the
introduction of evidence that Ford was not wearing his seatbelt at the time of the
-6- Case No. 2-13-12
accident. Based on its consideration of the case, the trial court ordered “that all
evidence concerning the decedent maybe having failed to wear a seat belt restraint
is stricken.” Id. at p. 389. Subsequently, the trial court instructed the jurors as
follows:
[I]n this case there has been some evidence that the decedent may have failed to wear a seatbelt restraint at the time of the crash. Ohio Revised Code Section 4513.263(F)(1) specifies that evidence of that failure shall not be admissible as evidence in a criminal action with one exception that does not apply here. Therefore, you are instructed that the court has stricken all evidence concerning that matter and you must treat it as though you never heard it and you must not consider it for any reason. You are so instructed.
Id. at p. 395-96.
{¶14} In his defense, Fetter called his uncle, Todd Fetter (“Todd”), who
testified that he did not see Fetter drinking alcoholic beverages on the night of the
accident. Todd also indicated that he did not perceive Fetter to be under the
influence of alcohol before leaving his residence.
{¶15} Fetter also called Bryce Adams, an expert accident scene
reconstructionist. He concluded that Ford was driving 65 miles per hour before
the accident, which meant that Ford had about 1.6 seconds to react to Fetter’s
vehicle coming into the southbound lane. Adams additionally concluded that Ford
had 38 feet to avoid the collision.
{¶16} After presenting his evidence, Fetter rested and renewed his Crim.R.
29 motion, which was again denied. The parties then addressed jury instructions.
-7- Case No. 2-13-12
Fetter again objected to a jury instruction that precluded consideration of the
evidence relating to Ford’s seatbelt. The trial court, however, overruled the
objection.
{¶17} The jury returned guilty verdicts on all three counts alleged in the
indictment. This matter then proceeded to sentencing. At the sentencing hearing
on February 28, 2013, the State elected to proceed with sentencing on the one
count of aggravated vehicular homicide. Meanwhile, the two OVI counts were
merged into the aggravated vehicular homicide count for the purposes of
sentencing. The trial court subsequently sentenced Fetter to a seven-year prison
term. On March 4, 2013, the trial court issued a judgment entry journalizing
Fetter’s conviction and sentence.
{¶18} Fetter timely appealed this judgment, presenting the following
assignment of error for our review.
Assignment of Error
THE APPELLANT WAS DENIED HIS RIGHT TO PRESENT A FULL DEFENSE WHEN THE TRIAL COURT WOULD NOT ALLOW HIM TO PRESENT EVIDENCE THAT THE VICTIM WAS NOT WEARING A SEATBELT AT THE TIME OF THE ACCIDENT.
{¶19} In his sole assignment of error, Fetter argues that the trial court erred
in precluding him from introducing evidence that Ford was not wearing his seat
belt at the time of the accident. We disagree.
-8- Case No. 2-13-12
{¶20} Although this matter involves the admission of evidence, the
purported admissibility of Ford’s seat belt use is intertwined with the
interpretation and application of R.C. 4513.263(F)(1). As such, this matter
presents a question of law that we review de novo. E.g., Washington Cty. Home v.
Ohio Dept. of Health, 178 Ohio App.3d 78, 2008-Ohio-4342, ¶ 27 (4th Dist.)
(“The interpretation of a statute involves a purely legal question. Thus, we
conduct a de novo review of a trial court’s judgment interpreting a statute * * *.”).
When employing a de novo standard of review, we conduct an independent review
of the record and grant no deference to the trial court’s determination. Twigg v.
Trapp, 3d Dist. Seneca No. 13-05-44, 2006-Ohio-3236, ¶ 5.
{¶21} We have previously noted that the General Assembly “has created
standards for the admissibility of evidence in many instances.” State v. Phipps, 3d
Dist. Auglaize No. 2-03-39, 2004-Ohio-4400, ¶ 12. One such instance of a
statutorily-created evidentiary rule is found in R.C. 4513.263(F)(1). See State v.
Lucarelli, 11th Dist. Portage No. 2012-P-0065, 2013-Ohio-1606, ¶ 34, fn. 2
(identifying R.C. 4513.263(F) as an example of a legislatively-defined evidentiary
rule); Phipps at ¶ 12, fn. 4 (identifying R.C. 4513.263(F)’s prior version as an
example of a legislatively-defined evidentiary rule); Crum v. Walters, 10th Dist.
Franklin No. 02AP-818, 2003-Ohio-1789, ¶ 15 (“The admissibility of evidence
regarding the use of a seat belt is governed by R.C. 4513.263(F).”). The statute
-9- Case No. 2-13-12
provides, in pertinent part, that evidence of an individual’s failure to wear a seat
belt “shall not be admissible as evidence in a criminal action involving the person
other than a prosecution for a violation of this section.” R.C. 4513.263(F)(1).
{¶22} It is well-established that when the language of a statute is
unambiguous, we need not resort to additional rules of statutory interpretation,
State v. Siferd, 151 Ohio App.3d 103, 2002-Ohio-6801, ¶ 33 (3d Dist.), including
the rule of lenity, State v. Banks, 10th Dist. Franklin No. 11AP-69, 2011-Ohio-
4252, ¶ 15. Rather, when faced with a statute that is plain on its face, we must
merely read the words and phrases in context and give them their usual, normal,
and customary meanings. R.C. 1.42; Proctor v. Kardassilaris, 115 Ohio St.3d 71,
2007-Ohio-4838, ¶ 12.
{¶23} R.C. 4513.263(F)(1) is plain on its face and it “bars evidence of the
failure to [wear a seatbelt], except for the limited purpose of obtaining a
conviction for [failure to wear a seatbelt].” Phipps at ¶ 12, fn. 4. This matter
involved Fetter’s prosecution for aggravated vehicular homicide and OVI, not
Ford’s prosecution for failure to wear a seatbelt. As a result, R.C. 4513.263(F)(1)
explicitly and unambiguously precludes Fetter from offering evidence that Ford
was not wearing his seatbelt before the crash.
{¶24} Accordingly, we overrule Fetter’s sole assignment of error.
-10- Case No. 2-13-12
{¶25} Having found no error prejudicial to Fetter in the particulars assigned
and argued, we affirm the trial court’s judgment.
WILLAMOWSKI and SHAW, J.J., concur.
/jlr
-11-