[Cite as State v. Guth, 2016-Ohio-8221.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, : CASE NO. 2015-P-0083 - vs - :
BRANDON J. GUTH, :
Defendant-Appellant. :
Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2014 CR 0233.
Judgment: Affirmed.
Victor V. Vigluicci, Portage County Prosecutor, and Kristina Reilly, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266. (For Plaintiff-Appellee).
Benjamin R. Sorber, and Thomas M. DiCaudo, DiCaudo, Pritchard & Yoder, LLC, 209 South Main Street, Third Floor, Akron, OH 44308 (For Defendant-Appellant).
THOMAS R. WRIGHT, J.
{¶1} Appellant, Brandon J. Guth, appeals his conviction and sentence on three
counts of aggravated vehicular assault, three counts of vehicular assault, and one count
of operating a motor vehicle while intoxicated. He challenges the denial of his motions
in limine regarding the admissibility of “blood test” evidence and imposition of
consecutive prison terms. We affirm.
{¶2} On September 30, 2013, appellant was involved in a two-car accident on Mogadore Road in Brimfield Township, Portage County, Ohio. While travelling south,
appellant drove into the northbound lane to pass a semi tractor-trailer. Before
completion, he hit a northbound car head-on pushing it off the side of the road.
{¶3} A mother and her two adult daughters were in the northbound vehicle.
The daughter driving suffered broken ribs. The other passengers sustained more
serious injuries. Besides fracturing her back, both legs, and each of her ribs, the mother
suffered a stroke leaving her unable to care for herself. The injuries to the passenger
daughter were so severe that she was unable to care for her newborn child for a year.
{¶4} Appellant also suffered serious injuries and was immediately transported
to the Akron General Medical Center for treatment. Since appellant had to be taken into
surgery soon after his arrival, no police officer was able to test him for his blood-alcohol
concentration. However, hospital personnel performed a blood-alcohol screen as part
of his blood work. The results established appellant’s blood-alcohol level at more than
twice the legal limit.
{¶5} Six months following the accident, the grand jury returned an eight-count
indictment against appellant. The indictment sets forth three counts of aggravated
vehicular assault and three counts of vehicular assault. The three aggravated vehicular
assault counts assert an alcohol specification. The indictment also alleges two separate
counts of driving while intoxicated, the first under R.C. 4511.19(A)(1)(a) and the second
under R.C. 4511.19(A)(1)(f).
{¶6} One month after arraignment, appellant moved to suppress the results of
the blood test performed at the hospital. As one basis for the motion, he maintained
that the hospital and its personnel were not properly licensed to conduct the test. At the
outset of the motion hearing, the state conceded this point, and the trial court granted
2 the motion to suppress. Consequently, the court also granted the state’s motion to
dismiss the second driving while intoxicated charge under R.C. 4511.19(A)(1)(f).
However, the state gave the defense notice that it intended to introduce the blood test
results at trial, along with accompanying expert testimony so the trier of fact could
consider the results in regard to the sole remaining charge of driving while intoxicated
and alcohol specifications.
{¶7} Over the next nine months, appellant filed two motions in limine, seeking
an order prohibiting the state from referencing his blood test results at trial. Both
motions assert inadmissibility in light of the trial court’s suppression decision. Appellant
further contended that, since the blood test was not performed in compliance with the
Ohio Administrative Code, the results were unreliable and the state’s proposed expert
could not remedy this problem. In response, the state asserted that the test results and
expert testimony were admissible under R.C. 4511.19(D)(1)(a). The trial court denied
both motions in limine.
{¶8} Following the denial of the second motion, appellant pleaded no contest to
all remaining charges. Thereafter, the trial court found him guilty of all seven charges.
After the presentencing investigation report was completed, a sentencing hearing was
held. Two of the crash victims provided impact statements. The trial court merged the
vehicular assault counts with three accompanying aggravated vehicular assault counts,
and imposed a thirty-six month prison term on each, consecutively for an aggregate
term of nine years. For the separate count of driving while intoxicated, a concurrent ten-
day term was imposed.
{¶9} Appellant appeals, assigning the following as error:
{¶10} “[1.] The trial court erred when it effectively denied Mr. Guth’s motion to
3 suppress by denying Mr. Guth’s motion in limine and ruling that the previously
suppressed blood test results would be admissible.
{¶11} “[2.] The trial court’s imposition of consecutive sentences was contrary to
law.”
{¶12} Under his first assignment, appellant contends that his motions in limine
should have been granted based on the trial court’s suppression ruling. In response,
the state submits appellant’s no contest plea bars review.
{¶13} “It is well-settled under Ohio law that the initial ruling of the trial court
before granting a motion in limine is not a final appealable order because such order
does not determine the ultimate admissibility of the evidence. State v. Armstrong, 11th
Dist. Nos 2001-T-0120 and 2002-T-0071, 2004-Ohio-5634, at ¶43. Thus, ‘at trial it is
incumbent upon a defendant, who has been temporarily restricted from introducing
evidence by virtue of a motion in limine, to seek the introduction of the evidence by
proffer or otherwise in order to enable the court to make a final determination as to its
admissibility and to preserve any objection on the record for purposes of appeal.’ State
v. Grubb (1986), 28 Ohio St.3d 199, 28 Ohio B. 285, 503 N.E.2d 142, paragraph two of
the syllabus.
{¶14} “The Grubb court further noted that ‘a motion in limine, if granted, is a
tentative, interlocutory, precautionary ruling by the trial court reflecting its anticipatory
treatment of the evidentiary issue. In virtually all circumstances finality does not attach
when the motion is granted. Therefore, should circumstances subsequently develop at
trial, the trial court is certainly at liberty “(***) to consider the admissibility of the disputed
evidence in its actual context.” State v. White (1982), 6 Ohio App.3d 1, at 4, 6 Ohio B.
23, 451 N.E.2d 533.’ Grubb at 201-202.” State v. Wojtkiewicz, 11th Dist. Portage No.
4 2005-P-0098, 2006-Ohio-6094, ¶19-20.
{¶15} Although the foregoing quote refers to the granting of the motion in limine
prior to trial, this court has applied the identical legal analysis to the pretrial denial of a
defendant’s motion in limine. See State v. Delarosa, 11th Dist. Portage No. 2003-P-
0129, 2005-Ohio-3399, ¶62. That is, a trial court’s pretrial denial of a motion in limine is
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[Cite as State v. Guth, 2016-Ohio-8221.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, : CASE NO. 2015-P-0083 - vs - :
BRANDON J. GUTH, :
Defendant-Appellant. :
Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2014 CR 0233.
Judgment: Affirmed.
Victor V. Vigluicci, Portage County Prosecutor, and Kristina Reilly, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266. (For Plaintiff-Appellee).
Benjamin R. Sorber, and Thomas M. DiCaudo, DiCaudo, Pritchard & Yoder, LLC, 209 South Main Street, Third Floor, Akron, OH 44308 (For Defendant-Appellant).
THOMAS R. WRIGHT, J.
{¶1} Appellant, Brandon J. Guth, appeals his conviction and sentence on three
counts of aggravated vehicular assault, three counts of vehicular assault, and one count
of operating a motor vehicle while intoxicated. He challenges the denial of his motions
in limine regarding the admissibility of “blood test” evidence and imposition of
consecutive prison terms. We affirm.
{¶2} On September 30, 2013, appellant was involved in a two-car accident on Mogadore Road in Brimfield Township, Portage County, Ohio. While travelling south,
appellant drove into the northbound lane to pass a semi tractor-trailer. Before
completion, he hit a northbound car head-on pushing it off the side of the road.
{¶3} A mother and her two adult daughters were in the northbound vehicle.
The daughter driving suffered broken ribs. The other passengers sustained more
serious injuries. Besides fracturing her back, both legs, and each of her ribs, the mother
suffered a stroke leaving her unable to care for herself. The injuries to the passenger
daughter were so severe that she was unable to care for her newborn child for a year.
{¶4} Appellant also suffered serious injuries and was immediately transported
to the Akron General Medical Center for treatment. Since appellant had to be taken into
surgery soon after his arrival, no police officer was able to test him for his blood-alcohol
concentration. However, hospital personnel performed a blood-alcohol screen as part
of his blood work. The results established appellant’s blood-alcohol level at more than
twice the legal limit.
{¶5} Six months following the accident, the grand jury returned an eight-count
indictment against appellant. The indictment sets forth three counts of aggravated
vehicular assault and three counts of vehicular assault. The three aggravated vehicular
assault counts assert an alcohol specification. The indictment also alleges two separate
counts of driving while intoxicated, the first under R.C. 4511.19(A)(1)(a) and the second
under R.C. 4511.19(A)(1)(f).
{¶6} One month after arraignment, appellant moved to suppress the results of
the blood test performed at the hospital. As one basis for the motion, he maintained
that the hospital and its personnel were not properly licensed to conduct the test. At the
outset of the motion hearing, the state conceded this point, and the trial court granted
2 the motion to suppress. Consequently, the court also granted the state’s motion to
dismiss the second driving while intoxicated charge under R.C. 4511.19(A)(1)(f).
However, the state gave the defense notice that it intended to introduce the blood test
results at trial, along with accompanying expert testimony so the trier of fact could
consider the results in regard to the sole remaining charge of driving while intoxicated
and alcohol specifications.
{¶7} Over the next nine months, appellant filed two motions in limine, seeking
an order prohibiting the state from referencing his blood test results at trial. Both
motions assert inadmissibility in light of the trial court’s suppression decision. Appellant
further contended that, since the blood test was not performed in compliance with the
Ohio Administrative Code, the results were unreliable and the state’s proposed expert
could not remedy this problem. In response, the state asserted that the test results and
expert testimony were admissible under R.C. 4511.19(D)(1)(a). The trial court denied
both motions in limine.
{¶8} Following the denial of the second motion, appellant pleaded no contest to
all remaining charges. Thereafter, the trial court found him guilty of all seven charges.
After the presentencing investigation report was completed, a sentencing hearing was
held. Two of the crash victims provided impact statements. The trial court merged the
vehicular assault counts with three accompanying aggravated vehicular assault counts,
and imposed a thirty-six month prison term on each, consecutively for an aggregate
term of nine years. For the separate count of driving while intoxicated, a concurrent ten-
day term was imposed.
{¶9} Appellant appeals, assigning the following as error:
{¶10} “[1.] The trial court erred when it effectively denied Mr. Guth’s motion to
3 suppress by denying Mr. Guth’s motion in limine and ruling that the previously
suppressed blood test results would be admissible.
{¶11} “[2.] The trial court’s imposition of consecutive sentences was contrary to
law.”
{¶12} Under his first assignment, appellant contends that his motions in limine
should have been granted based on the trial court’s suppression ruling. In response,
the state submits appellant’s no contest plea bars review.
{¶13} “It is well-settled under Ohio law that the initial ruling of the trial court
before granting a motion in limine is not a final appealable order because such order
does not determine the ultimate admissibility of the evidence. State v. Armstrong, 11th
Dist. Nos 2001-T-0120 and 2002-T-0071, 2004-Ohio-5634, at ¶43. Thus, ‘at trial it is
incumbent upon a defendant, who has been temporarily restricted from introducing
evidence by virtue of a motion in limine, to seek the introduction of the evidence by
proffer or otherwise in order to enable the court to make a final determination as to its
admissibility and to preserve any objection on the record for purposes of appeal.’ State
v. Grubb (1986), 28 Ohio St.3d 199, 28 Ohio B. 285, 503 N.E.2d 142, paragraph two of
the syllabus.
{¶14} “The Grubb court further noted that ‘a motion in limine, if granted, is a
tentative, interlocutory, precautionary ruling by the trial court reflecting its anticipatory
treatment of the evidentiary issue. In virtually all circumstances finality does not attach
when the motion is granted. Therefore, should circumstances subsequently develop at
trial, the trial court is certainly at liberty “(***) to consider the admissibility of the disputed
evidence in its actual context.” State v. White (1982), 6 Ohio App.3d 1, at 4, 6 Ohio B.
23, 451 N.E.2d 533.’ Grubb at 201-202.” State v. Wojtkiewicz, 11th Dist. Portage No.
4 2005-P-0098, 2006-Ohio-6094, ¶19-20.
{¶15} Although the foregoing quote refers to the granting of the motion in limine
prior to trial, this court has applied the identical legal analysis to the pretrial denial of a
defendant’s motion in limine. See State v. Delarosa, 11th Dist. Portage No. 2003-P-
0129, 2005-Ohio-3399, ¶62. That is, a trial court’s pretrial denial of a motion in limine is
reviewable, and a defendant must raise his objection again during the trial in order to
correctly preserve the issue for appeal. Given this, a no contest plea bars appellate
review.
{¶16} Under his second assignment, appellant raises two sentencing
challenges. First, he argues that the information before the trial court at sentencing
hearing was insufficient to warrant consecutive sentences.
{¶17} Our consideration of a felony sentence begins with R.C. 2953.08(G)(2).
State v. Grega, 11th Dist. Ashtabula No. 2014-A-0002, 2014-Ohio-5179, ¶10. That
provision states:
{¶18} “The court hearing an appeal under division (A), (B), or (C) of this section
shall review the record, including the findings underlying the sentence or modification
given by the sentencing court.
{¶19} “The appellate court may increase, reduce, or otherwise modify a
sentence that is appealed under this section or may vacate the sentence and remand
the matter to the sentencing court for resentencing. The appellate court’s standard for
review is not whether the sentencing court abused its discretion. The appellate court
may take any action authorized by this division if it clearly and convincingly finds either
of the following:
{¶20} “(a) That the record does not support the sentencing court’s findings under
5 division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or
division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
{¶21} “(b) That the sentence is otherwise contrary to law.”
{¶22} The imposition of consecutive prison terms for multiple felony offenses is
governed by R.C. 2929.14(C)(4), one of the five statutory provisions referenced in R.C.
2953.08(G)(2)(a). Accordingly, a trial court’s imposition of consecutive terms will be
affirmed unless this court clearly and convincingly finds that the record fails to support
the trial court’s findings under R.C. 2929.14(C)(4).
{¶23} “It is important to note ‘that the clear and convincing standard used by
R.C. 2953.08(G)(2) is written in the negative. It does not say that the trial judge must
have clear and convincing evidence to support its findings. Instead, it is the court of
appeals that must clearly and convincingly find that the record does not support the
court’s findings.’ [State v.] Venes, 2013-Ohio-1891, 992 N.E.2d 453, at ¶21. ‘In other
words, the restriction is on the appellate court, not the trial judge. This is an extremely
deferential standard of review.’ Id.” State v. Rodeffer, 2nd Dist. Montgomery Nos.
25574, 25575, and 25576, 2013-Ohio-5759, ¶31.
{¶24} Pursuant to R.C. 2929.14(C)(4), a trial court “may” sentence the offender
to consecutive prison terms if it finds that: (1) such terms are “necessary to protect the
public from future crime or to punish the offender”; (2) such terms “are not
disproportionate to the seriousness of the offender’s conduct and to the danger the
offender poses to the public”; and (3) one of three enumerated alternatives exist. As to
the third required finding, the trial court in our case found that the last of the three listed
alternatives, as stated in R.C. 2929.14(C)(4)(c), was applicable:
{¶25} “(c) The offender’s history of criminal conduct demonstrates that
6 consecutive sentences are necessary to protect the public from future crime by the
offender.”
{¶26} In contesting the trial court’s finding on this point, appellant claims there
was nothing before the court showing that he had a history of criminal conduct.
However, the presentence investigation report shows that appellant had four prior
criminal convictions as an adult and one as a juvenile. His adult record included one
third-degree felony for possession of a drug manufacturing chemical, one first-degree
misdemeanor for assault, and two separate misdemeanors for disorderly conduct
involving alcohol. This list is readily sufficient to support the trial court’s finding that the
nature of appellant’s criminal history is such that the imposition of consecutive
sentences is needed to protect society from future crimes. Therefore, appellant’s first
challenge to the propriety of his sentence is not well-taken.
{¶27} Under his second challenge, appellant argues that his nine-year sentence
cannot stand because the record does not establish that the trial court considered the
purposes and principles of felony sentencing, as delineated in R.C. 2929.11, and the
sentencing factors for seriousness and recidivism, as stated in R.C. 2929.12.
{¶28} In its final sentencing judgment, the trial court expressly stated that it had
considered the statutory purposes of felony sentencing prior to making its decision. As
to the consideration of the sentencing factors under R.C. 2929.12, this court has noted
recently:
{¶29} “The Ohio Supreme Court has held that ‘[a] silent record raises the
presumption that a trial court considered the factors contained in R.C. 2929.12.’ State
v. Adams, 37 Ohio St.3d 295, 525 N.E.2d 1361 (1988), paragraph three of the syllabus;
State v. Greitzer, 11th Dist. Portage No. 2006-P-0090, 2007-Ohio-6721, ¶28. The
7 defendant has the burden to present evidence to rebut the presumption that the court
considered the sentencing criteria. State v. Cyrus, 63 Ohio St.3d 164, 166, 586 N.E.2d
94 (1992). Further, in order to rebut this presumption, ‘a defendant must either
affirmatively show that that the court failed to [consider the statutory factors], or that the
sentence the court imposed is “strikingly inconsistent” with the statutory factors as they
apply to his case.’ [State v. Bigley, 9th Dist. Medina No. 08CA0085, 2009-Ohio-2943],
at ¶14, quoting State v. Rutherford, 2d Dist. Champaign No. 08CA11, 2009-Ohio-2071,
¶34.” State v. Williams, 11th Dist. Lake No. 2014-L-105, 2015-Ohio-5335, ¶20.
{¶30} In this case, there is nothing in the record to show that the trial court did
not consider the sentencing factors under R.C. 2929.12. Appellant has not raised any
type of argument on that point. Furthermore, the thirty-six month sentence on each of
the aggravated vehicular assault counts is not so strikingly inconsistent with the
statutory factors that the sentence is contrary to law. Any remorse exhibited by
appellant was readily outweighed by the seriousness of the offenses.
{¶31} As appellant has failed to demonstrate any error in the trial court’s
sentencing analysis, his second assignment lacks merit.
{¶32} The judgment of the Portage County Court of Common Pleas is affirmed.
TIMOTHY P. CANNON, J.,
COLLEEN MARY O’TOOLE, J.,
concur.