State v. Love

2014 Ohio 4287

Opinion

[Cite as State v. Love, 2014-Ohio-4287.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

ASHTABULA COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, : CASE NO. 2013-A-0062 - vs - :

KARIN L. LOVE, :

Defendant-Appellant. :

Criminal Appeal from the Ashtabula County Court of Common Pleas. Case No. 2011 CR 131.

Judgment: Affirmed.

Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH 44047-1092 (For Plaintiff-Appellee).

Michael A. Hiener, P.O. Box 1, Jefferson, OH 44047 (For Defendant-Appellant).

TIMOTHY P. CANNON, P.J.

{¶1} Appellant, Karin L. Love, appeals the judgment entered by the Ashtabula

County Court of Common Pleas. The trial court sentenced Love to a prison term of six

years for aggravated vehicular homicide.

{¶2} On April 3, 2011, Michael Totora and his two sons were returning from an

evening with family and friends celebrating his parents’ 50th wedding anniversary. On

their drive home, the car they were driving broke down along U.S. Route 20 in Ashtabula County, near the Geneva City line. While waiting for assistance, Mr. Totora

was struck by a vehicle operated by Love. Mr. Totora died at the scene.

{¶3} On May 6, 2011, Love was indicted by the Ashtabula County Grand Jury

on three counts. The charges consisted of: Count 1, aggravated vehicular homicide in

violation of R.C. 2903.06(A)(1)(a); Count 2, operating a vehicle while under the

influence (“OVI”) in violation of R.C. 4511.19(A)(1)(a); and Count 3, OVI in violation of

R.C. 4511.19(A)(1)(d). Love initially pled not guilty to these charges.

{¶4} On June 1, 2011, Love filed a motion to suppress the results from her

breath test. Appellee, the state of Ohio, responded to Love’s motion to suppress on

October 5, 2011. Love then filed a supplemental motion to suppress, and multiple

responses and replies were subsequently filed through July 24, 2012.

{¶5} On February 19, 2013, the trial court indicated in a judgment entry that it

would not permit Love to challenge the general reliability of the Intoxilyzer 8000

breathalyzer machine. The trial court found that the issue of the Intoxilyzer 8000’s

general reliability had already been decided by this court and that allowing a general

challenge would be inappropriate given existing precedent.

{¶6} On March 15, 2013, following the trial court’s judgment entry prohibiting a

general challenge to the reliability of Love’s breath test, Love filed a motion listing seven

specific challenges to her breath test. Appellee responded in opposition to Love’s

specific challenges on April 26, 2013.

{¶7} On May 22, 2013, the trial court, in a 12-page judgment entry, overruled

Love’s motion to suppress. Distilling the trial court’s judgment entry to its essence, the

2 trial court found no reason to suppress the evidence from the breath test administered

at the Ohio State Highway Patrol Post following the crash.

{¶8} On May 28, 2013, Love withdrew her not guilty plea and pled no contest to

the three charged counts.

{¶9} On September 26, 2013, the trial court filed its judgment entry of

sentence. The trial court found Counts 2 and 3 to be of similar import to Count 1, the

aggravated vehicular homicide count and, for the purposes of sentencing, merged

Counts 2 and 3 into Count 1. Love was sentenced to a mandatory prison term of six

years for aggravated vehicular homicide. The trial court also sentenced Love to three

years of post-release control, a lifetime driver’s license suspension, and restitution to

Mr. Totora’s family for his funeral expenses.

{¶10} Love timely appeals, setting forth two assignments of error.

{¶11} In her first assignment of error, Love argues:

{¶12} “The trial court erred when it denied Appellant’s motion to suppress.”

{¶13} Appellate review of a trial court’s ruling on a motion to suppress evidence

presents a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152,

2003-Ohio-5372, ¶8. We accept the trial court’s findings of fact when they are

supported by competent, credible evidence. State v. Guysinger, 86 Ohio App.3d 592,

594 (4th Dist.1993). If the trial court’s findings of fact are supported by the record, we

review the trial court’s application of the law to those facts de novo. State v. Djisheff,

11th Dist. Trumbull No. 2005-T-0001, 2006-Ohio-6201, ¶19.

{¶14} Under this assignment of error, Love sets forth three issues for review. In

her first issue for review, Love asserts the trial court improperly overruled her motion to

3 suppress because the requirements of Ohio Adm.Code 3701-53-04(B) were not

“substantially complied with when a dry gas control test was not run between the two

samples taken from appellant.” Under this issue, Love asks us to revisit our decision in

State v. Jones, 11th Dist. Portage No. 2012-P-0107, 2013-Ohio-4114, ¶36. We decline

to do so and, instead, choose to follow the precedent of this court.

{¶15} The version of Ohio Adm.Code 3701-53-04(B) in effect at the time of

Love’s arrest required that the Intoxilyzer 8000 automatically perform a dry gas control

test before and after each subject test. Specifically, “[i]nstruments listed under

paragraph (A)(3) of rule 3701-53-02 of the Administrative Code [i.e., the Intoxilyzer

8000] shall automatically perform a dry gas control test before and after every subject

test * * * using a dry gas standard traceable to the national institute of standards and

technology (NIST).” Ohio Adm.Code 3701-53-04(B) (emphasis added).

{¶16} “Calibration is the process by which a breathalyzer machine is tested for

its range of accuracy.” State v. Booth, 151 Ohio App.3d 635, 638 (9th Dist.2003). The

calibration sequence for the Intoxilyzer 8000 is documented in a form called “Subject

Test Report.” As of the date of Love’s test, the report set forth the actual calibration

procedure as follows:

[1.] Air Blank [2.] Diagnostic [3.] Air Blank [4.] Dry Gas Control [5.] Air Blank [6.] Subject Test 1 [7.] Air Blank [8.] Air Blank [9.] Subject Test 2 [10.] Air Blank [11.] Dry Gas Control [12.] Air Blank

4 {¶17} “Air Blanks” ensure that the previous sample has been fully purged from

the machine. “Subject Test 1” and “Subject Test 2” indicate each time an individual

blows into the machine. “Dry Gas Control” tests check the calibration of the instrument

to ensure its results are accurate. Jones, supra, at ¶51.

{¶18} Love asserts that, because the Subject Test Report refers to the breath

samples as “Subject Test 1” and “Subject Test 2,” a subject test occurs each time an

accused blows into the machine. She further argues that because Ohio Adm.Code

3701-53-04(B) requires a dry gas control test before and after every subject test, a dry

gas control had to be performed before and after each blow into the machine. She

argues that because the Intoxilyzer 8000 used to test her breath samples did not run a

dry gas control before and after each time she blew into the instrument, as required by

Ohio Adm.Code 3701-53-04(B), the results are inadmissible.

{¶19} This court faced the same issue and the same type of “Subject Test

Report” form in Jones, supra. In that case, we determined that each breath sample is

simply a component part of a single test procedure. Id. at ¶60. Other appellate districts

have also reached the same result. For example, the Twelfth Appellate District

determined that the plain language of Ohio Adm.Code 3701-53-04(B) required a dry gas

control before “Subject Test 1” and after “Subject Test 2,” as those terms were used on

the “Subject Test Form,” but that no dry gas control was required between them. State

v. Kormos, 12th Dist. Clermont No. CA2011-08-059, 2012-Ohio-3128, ¶16. Likewise,

the First Appellate District reached the same conclusion, holding that the plain language

of Ohio Adm.Code 3701-53-04(B) requires a dry gas control test before a subject’s first

breath sample and after the subject’s second breath sample, but not between the two

5 samples. Cincinnati v. Nicholson, 1st Dist. Hamilton No. C-120332, 2013-Ohio-708,

¶11.

{¶20} Accordingly, we decline to revisit our holding in Jones and find that Love’s

first issue for review, under her first assignment of error, is without merit.

{¶21} In her second issue for review, Love asserts that Trooper Emery was not

properly authorized to operate the Intoxilyzer 8000 because he possessed a permit

instead of an operator card.

{¶22} At the time of Love’s arrest, Ohio Adm.Code 3701-53-09(D) stated that

“[i]ndividuals desiring to function as operators using [the Intoxilyzer 8000] shall apply to

the director of health for operator access cards on forms prescribed and provided by the

director of health.” The same provision now reads: “Individuals desiring to function as

operators using [the Intoxilyzer 8000] shall apply to the director of health for a permit,

which shall be in the form of an operator access card, on forms prescribed and provided

by the director of health.”

{¶23} Under this issue for review, Love asks us to revisit our decision in State v.

Walsky, 11th Dist. Portage No. 2012-P-0109, 2013-Ohio-4115. In Walsky, we held that

“the difference between an ‘access card’ and a ‘permit,’ for operator certification

purposes, is merely nominal.” Id. at ¶27. We decline to revisit that decision and instead

choose to follow the precedent of this court as set forth in Walsky. Love’s second issue

for review is without merit.

{¶24} In her third issue for review, Love asserts the trial court erred when it ruled

that it would not allow a general challenge to the Intoxilyzer 8000. The trial court’s

6 ruling prohibiting a general challenge was based on this court’s decision in State v.

Bergman, 11th Dist. Portage 2012-P-0124, 2013-Ohio-5811.

{¶25} In Bergman, this court stated that, “[w]here the breath testing device at

issue has been approved by the Director of the Ohio Department of Health, there is no

need for the state to prove the general reliability of the device itself.” Id. at ¶3. In this

case, the trial court properly prohibited general challenges to the reliability of the

Intoxilyzer 8000. Love does not make any argument as to why this court should change

its position. Accordingly, appellant’s third issue for review under her first assignment of

error is without merit.

{¶26} As each of the three issues presented for review within Love’s first

assignment of error are without merit, Love’s first assignment of error is not well taken.

{¶27} In her second assignment of error, Love argues:

{¶28} “Appellant’s trial counsel was ineffective.”

{¶29} Specifically, Love argues her trial counsel was ineffective when he refused

to complete the suppression hearing. In order to prevail on an ineffective assistance of

counsel claim, the appellant must demonstrate from the record that trial counsel’s

performance fell below an objective standard of reasonable representation and that

there is a reasonable probability that, but for counsel’s error, the result of the

proceeding would have been different. State v. Bradley, 42 Ohio St.3d 136 (1989),

paragraph two of the syllabus, applying the test set forth in Strickland v. Washington,

466 U.S. 668 (1984). If a claim of ineffective assistance can be disposed of by showing

a lack of sufficient prejudice, there is no need to consider the first prong, i.e., whether

trial counsel’s performance was deficient. Bradley at 143, citing Strickland at 697.

7 There is a general presumption that trial counsel’s conduct is within the broad range of

competent professional assistance. Id. at 142.

{¶30} Furthermore, decisions on strategy and trial tactics are generally granted

wide latitude in professional judgment, and it is not the duty of a reviewing court to

analyze trial counsel’s legal tactics and maneuvers. State v. Gau, 11th Dist. Ashtabula

No. 2005-A-0082, 2006-Ohio-6531, ¶35, citing Strickland at 689. Debatable trial tactics

and strategies do not constitute ineffective assistance of counsel. State v. Phillips, 74

Ohio St.3d 72, 85 (1995), citing State v. Clayton, 62 Ohio St.2d 45, 49 (1980).

{¶31} First, Love argues that trial counsel was ineffective for declining to cross-

examine Mary Martin, Program Administrator for Alcohol and Drug Testing for the Ohio

Department of Health. Love fails to demonstrate how she was prejudiced by her trial

counsel’s failure to cross-examine Martin. Indeed, at the hearing on Love’s motion to

suppress, her trial attorney explained that he had “cross-examined Mary Martin many

times. I don’t believe that she will enter into evidence anything additional that is

important to my motion to suppress. So for those reasons, Your Honor, I am going to

not cross-examine Ms. Martin.” There is nothing in the record to indicate how cross-

examination of Martin would have benefitted the arguments raised in the motion to

suppress. Accordingly, Love fails to establish prejudice for her trial counsel’s failure to

cross-examine Martin.

{¶32} Next, Love states that trial counsel failed to “point out deficiencies in the

regulations or the operation of the machine in question.” However, Love fails to state

what these deficiencies were and how they prejudiced her. Indeed, appellant’s trial

8 counsel made seven specific challenges to her breath test. Each of these was

overruled.

{¶33} Finally, Love claims her trial counsel was ineffective for failing to preserve

a general challenge to the Intoxilyzer 8000. Love argues that the issue of whether the

state needs to prove the general scientific reliability of a breath testing device that has

been approved by the Director of the Ohio Department of Health is not yet settled. This

court has held in an en banc proceeding that “[w]here the breath testing device at issue

has been approved by the Director of the Ohio Department of Health, there is no need

for the state to prove the general reliability of the device itself.” State v. Bergman, 11th

Dist. Portage No. 2012-P-0124, 2013-Ohio-5811, ¶3. Our decision in Bergman

comports with that of other Ohio appellate districts that have considered the issue. See,

e.g., State v. Dugan, 12th Dist. Butler No. CA2012-04-081, 2013-Ohio-447, ¶22. Love

argues that until the Ohio Supreme Court rules on this issue, it was ineffective

assistance of trial counsel not to preserve the issue for appeal. We disagree.

{¶34} At the hearing on Love’s motion to suppress, Love’s trial attorney stated:

“I did have two witnesses available or who were prepared to testify to the scientific

reliability and the workings of the Intoxilyzer 8000; specifically, the Intoxilyzer 8000 and

specifically this machine here in question.” Love’s counsel did not call these witnesses

because the trial court’s February 19, 2013 docket entry prohibited an attack on the

general reliability of the Intoxilyzer 8000. However, the testimony of these two possible

witnesses is not in the record. As a result, we cannot definitively say whether Love’s

trial counsel was ineffective for not calling them to testify. These claims are often better

suited for postconviction proceedings. Addressing them in a postconviction proceeding

9 would allow testimony in the record as to what the witnesses would have testified, and

also allow the state to explore whether the failure to request suppression was legitimate

trial strategy. See State v. Cooperrider, 4 Ohio St.3d 226, 228 (1983).

{¶35} Accordingly, Love’s second assignment of error is without merit.

{¶36} For the reasons stated above, the judgment of the Ashtabula County

Court of Common Pleas is hereby affirmed.

CYNTHIA WESTCOTT RICE, J., concurs,

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

____________________

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

{¶37} Finding merit in appellant’s first issue presented under the first assignment

of error, I would reverse and remand. I agree with appellant that former Ohio

Adm.Code 3701-53-04(B) was ambiguous, and would decline to apply this court’s prior

decision in Jones, 11th Dist. Portage No. 2012-P-0107, 2013-Ohio-4114.

{¶38} As the majority recounts, in Jones appellant raised essentially the same

argument: that former Ohio Adm.Code 3701-53-04(B) required dry gas control tests be

run before and after each subject test; that the protocol for the machine indicates two

subject tests must be run on each person being tested; and, that the procedure actually

used was to run dry gas controls at the beginning and end of the entire session – but

not between the two individual tests comprising the whole test.

{¶39} In Jones, this court concluded the term “subject test” as used in former

Ohio Adm.Code 3701-53-04(B) referred to the whole testing procedure, not the taking of

10 the individual breath samples, even though the protocol for the machine terms these

subject tests. Jones at ¶34-62. The majority correctly points out the same conclusion

has been reached by the Twelfth and First Districts. Kormos, 12th Dist. Clermont No.

CA2011-08-059, 2012-Ohio-3128; Nicholson, 1st Dist. Hamilton No. C-120332, 2013-

Ohio-708. However, as appellant points out, Ohio Adm.Code 3701-53-04(B) has been

amended to add the phrase, “a subject test shall include the collection of two breath

samples.” Presumably, the Director of Health has done this to bring the regulation in

line with the decisions.

{¶40} Statutes – and administrative regulations having the force of statutes – are

ambiguous “‘if the language is susceptible of more than one reasonable interpretation.’”

State v. Swidas, 11th Dist. Lake No. 2009-L-104, 2010-Ohio-6436, ¶17, quoting State v.

Evankovich, 7th Dist. Mahoning No. 09 MA 168, 2010-Ohio-3157, ¶8.

{¶41} I agree with appellant that amendment of the regulation would have been

superfluous if the former version had been clear and unambiguous. That it was not is

indicated by the fact the issue was presented to at least three Ohio appellate courts.

Consequently, I would find former Ohio Adm.Code 3701-53-04(B) was ambiguous, and

would reverse and remand on that basis.

{¶42} I respectfully dissent.