[Cite as State v. Hayes, 2016-Ohio-7241.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

                                                  :
 STATE OF OHIO                                    :
                                                  :   C.A. CASE NO. 26379
         Plaintiff-Appellee                       :
                                                  :   T.C. NO. 2012-CR-2182
 v.                                               :
                                                  :   (Criminal appeal from
 RYAN M. HAYES                                    :   Common Pleas Court)
                                                  :
         Defendant-Appellant                      :

                                             ...........

                                            OPINION

               Rendered on the ___7th___ day of _____October_____, 2016.

                                             ...........

KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Assistant Prosecuting Attorney, 301
West Third Street, 5th Floor, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

DARRELL L. HECKMAN, Atty. Reg. No. 0002389, One Monument Square, Suite 200,
Urbana, Ohio 43078
     Attorney for Defendant-Appellant

                                            .............

DONOVAN, P.J.

        {¶ 1} Defendant-appellant Ryan M. Hayes appeals his conviction and sentence for

the following offenses, to wit: one count of aggravated vehicular homicide, in violation of

R.C. 2903.06(A)(1), a felony of the second degree; one count of aggravated vehicular

homicide, in violation of R.C. 2903.06(A)(2), a felony of the third degree; one count of OVI
                                                                                        -2-


(.17 or greater-whole blood), in violation of R.C. 4511.19(A)(1)(f)/(G)(1)(a), a

misdemeanor of the first degree; and OVI (under the influence), in violation of

R.C. 4511.19(A)(1)(a)/(G)(1)(a), also a misdemeanor of the first degree. Hayes filed a

timely notice of appeal with this Court on September 8, 2014.

         {¶ 2} The incident which forms the basis for the instant appeal occurred on the

night of September 17, 2011, when Hayes drove his parents’ black 1991 Lexus sedan

into a stationary track hoe at a construction site located near Hoover Avenue in Dayton,

Ohio.     While Hayes was severely injured, his passenger and girlfriend, Qadriyyah

Harvey, was killed after suffering blunt force trauma when her head hit the windshield

during the crash. The evidence adduced during the trial established that neither Hayes

nor Harvey were wearing their seatbelts at the time of the crash, which was found to have

occurred at approximately 8:50 p.m.

         {¶ 3} Hayes was removed from the vehicle by paramedics and taken to Miami

Valley Hospital (MVH) for treatment. Harvey was pronounced dead at the scene of the

crash.    Dayton Fire Department firefighter/paramedic Tyler McCoy testified that he

detected the odor of alcohol on and about Hayes’ person. McCoy testified that the odor

of alcohol persisted even after he removed Hayes from the crash site. McCoy further

testified that Hayes admitted that he had consumed alcohol prior to the crash.

         {¶ 4} Dayton Police Detective Jonathan Seiter, a crash reconstructionist in the

traffic services unit, was dispatched to the site after it was determined that the crash

involved a fatality. Upon arriving at the scene of the accident, Detective Seiter inspected

the vehicle.    Detective Seiter testified that he detected the slight of odor of alcohol

emanating from the interior of the vehicle. Detective Seiter also observed a wallet and
                                                                                          -3-


an opened can of Sparks alcoholic iced tea in the driver’s side floorboard of the vehicle.

       {¶ 5} Detective Seiter then traveled to MVH in order to interview Hayes. Upon

arriving at the hospital, Detective Seiter located Hayes in the trauma room. Detective

Seiter testified that Hayes was unconscious and smelled of alcohol.              Thereafter,

Detective Seiter directed phlebotomist Ross Melton to draw Hayes’ blood as part of an

OVI kit. Prior to drawing Hayes’ blood, both Detective Seiter and Melton attempted to

wake him up, but Hayes could not be roused. At approximately 11:20 p.m., Melton drew

two vials of Hayes’ blood for testing. Detective Seiter took possession of Hayes’ blood,

transported it to the Safety Building, and placed it in a refrigerator. Detective Seiter then

completed a form requesting that Hayes’ blood be tested at the Miami Valley Regional

Crime Lab (MVRCL).

       {¶ 6} Elizabeth Kiely, a forensic toxicologist at the MVRCL, tested Hayes’ blood

samples on September 28, 2011. Kiely testified that the tests revealed that the two

samples of Hayes’ blood had an alcohol concentration of .173 and .169 gram percent, the

average of which is .171 which is more than twice the legal limit of .08 percent. Kiely

testified that she also screened Hayes’ blood for the presence of drugs. The sample

tested positive for marijuana metabolite.      Forensic toxicologist Brian Simons tested

Hayes’ blood in order to determine the amount of marijuana metabolite present. Simons’

testing established that the amount of marijuana metabolite present in Hayes’ blood was

fourteen nanograms per milliliter.

       {¶ 7} On January 24, 2013, Hayes was indicted for one count of aggravated

vehicular homicide (OVI), one count of aggravated vehicular homicide (recklessly), one

count of OVI (.17 or greater-whole blood), and one count of OVI (under the influence).
                                                                                          -4-


At his arraignment on January 29, 2013, Hayes pled not guilty to all of the offenses

contained in the indictment. On February 13, 2013, Hayes filed a waiver of time for

speedy trial purposes.

         {¶ 8} Shortly thereafter, Hayes filed a motion to suppress the results of the blood

test administered at MVH on the night of the accident. A hearing was held on said motion

on July 8, 2013. On August 26, 2013, the trial court issued a decision overruling Hayes’

motion to suppress, finding that the results of his blood test would be admissible at trial.

         {¶ 9} On January 17, 2014, the trial court appointed new counsel to represent

Hayes. On February 3, 2014, Hayes’ new counsel filed a second motion to suppress the

results of the blood test in which he challenged the MVRCL’s compliance with the Ohio

Administrative Code provisions regarding the procedures for the handling and processing

of blood samples, as well as the destruction of blood samples. A hearing was held with

respect to Hayes’ second motion to suppress on March 6, 2014. The trial court ultimately

overruled Hayes’ second motion in a decision issued on April 30, 2014.

         {¶ 10} Hayes’ case proceeded to a three-day jury trial beginning on August 18,

2014, and ending on August 20, 2014, after which he was found guilty of all counts in the

indictment. On September 3, 2014, the trial court merged Count II, aggravated vehicular

homicide (recklessly), into Count I, aggravated vehicular homicide (OVI); and Count IV,

OVI (under the influence), into Count III, OVI (.17 or greater-whole blood). Thereafter,

the trial court sentenced Hayes to a mandatory seven years in prison for aggravated

vehicular homicide (OVI) and 180 days in prison for OVI (.17 or greater-whole blood), the

sentences to run consecutive to one another for an aggregate term of seven and one-half

years.
                                                                                       -5-


      {¶ 11} It is from this judgment that Hayes now appeals.1

      {¶ 12} Hayes’ first assignment of error is as follows:

      {¶ 13} “THE TRIAL COURT ERRED IN SENTENCING DEFENDANT FOR BOTH

AGGRAVATED VEHICULAR HOMICIDE UNDER R.C. §2903.06(A)(1)(A) AND O.V.I

UNDER R.C. §4511.19(A)(1), AS THEY WERE ALLIED OFFENSES OF SIMILAR

IMPORT.”

      {¶ 14} In his first assignment, Hayes contends that his convictions for aggravated

vehicular homicide and OVI were allied offenses. Therefore, Hayes argues that the trial

court erred when it failed to merge the two offenses for the purpose of sentencing.

Additionally, Hayes argues that the trial court erred when it imposed consecutive

sentences for those offenses in violation of R.C. 2929.41(B)(3).

      {¶ 15} ALLIED OFFENSES

      {¶ 16} R.C. 2941.25, Ohio’s allied offense statute, provides that:

      (A) Where the same conduct by defendant can be construed to constitute

      two or more allied offenses of similar import, the indictment or information

      may contain counts for all such offenses, but the defendant may be

      convicted of only one.

      (B) Where the defendant’s conduct constitutes two or more offenses of

      dissimilar import, or where his conduct results in two or more offenses of

      the same or similar kind committed separately or with a separate animus as



1
 We note that Hayes’ original appointed appellate counsel filed a brief pursuant to Anders
v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We ultimately rejected
counsel’s Anders’ brief and appointed new appellate counsel in a decision and entry filed
on June 5, 2015.
                                                                                     -6-


       to each, the indictment or information may contain counts for all such

       offenses, and the defendant may be convicted of all of them.

       {¶ 17} The Ohio Supreme Court recently clarified the applicable standard when

determining whether offenses merge as allied offenses of similar import. State v. Ruff,

143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892.

              Rather than compare the elements of two offenses to determine

       whether they are allied offenses of similar import, the analysis must focus

       on the defendant’s conduct to determine whether one or more convictions

       may result, because an offense may be committed in a variety of ways and

       the offenses committed may have different import. No bright-line rule can

       govern every situation.

              As a practical matter, when determining whether offenses are allied

       offenses of similar import within the meaning of R.C. 2941.25, courts must

       ask three questions when the defendant’s conduct supports multiple

       offenses: (1) Were the offenses dissimilar in import or significance?; (2)

       Were they committed separately?; and (3) Were they committed with

       separate animus or motivation? An affirmative answer to any of the above

       will permit separate convictions. The conduct, the animus, and the import

       must all be considered.

Ruff at ¶ 30-31.

       {¶ 18} Most recently in State v. McGail, 2015-Ohio-5384, 55 N.E.2d 513 (2d

Dist.), we stated the following:

       [T]he Ohio Supreme Court addressed the allied-offense issue again in State
                                                                                 -7-

v. Earley, [145 Ohio St.3d 281,] 2015-Ohio-4615, [49 N.E.3d 266]. There

the majority characterized the analysis in its earlier Johnson lead opinion as

“largely obsolete.” Id. at ¶ 11. The Earley court instead embraced Ruff,

which, as noted above, considers a defendant’s conduct, his animus, and

the import or significance of his offenses. Applying Ruff, the Earley court

concluded that misdemeanor OVI and felony aggravated vehicular assault

“are offenses of dissimilar import and significance that are to be punished

cumulatively.” Earley at ¶ 20. For purposes of our analysis here, we note

that a defendant bears the burden of establishing entitlement to merger, and

we review a trial court’s ruling on the issue de novo. State v. LeGrant, 2d

Dist. Miami No. 2013-CA-44, 2014-Ohio-5803, ¶ 15.

***

We reach the same conclusion under the Ruff standard, which the Ohio

Supreme Court applied in Earley. We see nothing in Ruff that alters or

undermines the foregoing analysis about McGail’s commission of murder

and aggravated robbery involving the same conduct committed with the

same animus. For the reasons set forth above, we conclude that the two

offenses were not committed separately and were not committed with a

separate animus or motivation.      These findings remain pertinent under

Ruff, which, as noted above, provides that offenses do not merge if “(1) the

offenses are dissimilar in import or significance -- in other words, each

offense caused separate, identifiable harm, (2) the offenses were

committed separately, or (3) the offenses were committed with separate
                                                                                         -8-

       animus or motivation.” Ruff at ¶ 25; see also id. at ¶ 30-31.

McGail, at ¶ 51 & 60.

       {¶ 19} Hayes argues that his aggravated vehicular homicide and OVI offenses are

allied offenses of similar import pursuant to State v. Johnson, 128 Ohio St.3d 153, 2010-

Ohio-6314, 942 N.E.2d 1061, and that the trial court committed plain error when it

sentenced him for both.

       {¶ 20} As noted above, the Ohio Supreme Court decided a similar issue in State

v. Earley, 145 Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d 266. In Earley, the defendant

pled guilty to aggravated vehicular assault and OVI. Id. at ¶ 2. The trial court sentenced

the defendant for both offenses and ordered that her sentences be served concurrently.

Id. The defendant appealed her sentences, claiming that aggravated vehicular assault

is an allied offense of OVI and that they should have merged. Id. at ¶ 3. The court of

appeals affirmed the judgment of the trial court and held that even assuming that

aggravated vehicular assault and OVI are allied offenses, R.C. 2929.41(B)(3) creates an

exception that permits a trial court to impose a sentence for both. See State v. Earley,

2014-Ohio-2643, 15 N.E.3d 357, ¶ 20-21 (8th Dist.).

       {¶ 21} Upon review, the Ohio Supreme Court held that the trial court did not err in

sentencing the defendant for both OVI and aggravated vehicular assault because the two

offenses are not allied offenses of similar import. Applying its prior decision in Ruff, the

Earley court stated the following:

              By   criminalizing     aggravated   vehicular   assault   under   R.C.

       2903.08(A)(1)(a) and classifying it as a third-degree felony with a mandatory

       prison term, the General Assembly emphasized the necessity of a strong
                                                                                         -9-


      punishment for and deterrent against individuals causing serious physical

      harm while driving under the influence. This felony offense has a different

      import and significance than merely driving under the influence, for

      aggravated vehicular assault necessarily involves causing serious physical

      harm to another person.      A first-degree misdemeanor violation of R.C.

      4511.19(A)(1)(a), on the other hand, occurs any time an individual drives

      under the influence of alcohol or drugs, and one who does so commits this

      offense regardless of any subsequent consequences that occur due to the

      impaired driver's actions. There is a legitimate justification for criminalizing

      each of these offenses separately, and R.C. 2941.25 permits separate

      convictions for both pursuant to the test set forth in Ruff.

             Thus, because the affirmative answer to the first Ruff question allows

      Earley to be separately convicted of each offense, the trial court did not

      commit plain error -- and did not err at all -- in not merging the convictions.

State v. Earley, 145 Ohio St.3d 281, at ¶¶ 15, 16.

      {¶ 22} While the instant case does not involve a conviction for aggravated

vehicular assault under R.C. 2903.08(A)(1)(a) and OVI in violation of R.C.

4511.19(A)(1)(a), the court’s rationale in Earley is clearly applicable here. Hayes was

convicted and sentenced for aggravated vehicular homicide, in violation of R.C.

2903.06(A)(1), a felony of the second degree, and OVI (.17 or greater-whole blood), in

violation of R.C. 4511.19(A)(1)(f)/(G)(1)(A), a misdemeanor of the first degree.

      {¶ 23} R.C. 2903.06(A)(1) states as follows:

      (A) No person, while operating or participating in the operation of a motor
                                                                                          -10-


       vehicle, * * * shall cause the death of another * * * in any of the following

       ways:

       (1)(a) As the proximate result of committing a violation of division (A) of

       section 4511.19 of the Revised Code or of a substantially equivalent

       municipal ordinance[.]

Moreover, R.C. 2903.06(B)(2)(a) provides that “aggravated vehicular homicide committed

in violation of division (A)(1) of this section is a felony of the second degree and the court

shall impose a mandatory prison term on the offender.”

       {¶ 24} Conversely, R.C. 4511.19(A)(1)(f) states in pertinent part:

       (A)(1) No person shall operate any vehicle * * * within this state, if, at the

       time of the operation, any of the following apply:

       ***

       (f) The person has a concentration of seventeen-hundredths of one per cent

       or more by weight per unit volume of alcohol in the person’s whole blood.

Unless otherwise specified, a violation of R.C. 4511.19(A)(1)(f) is classified as a

misdemeanor of the first degree carrying a mandatory jail term of at least three

consecutive days and a requirement that the offender attend, for three consecutive days,

a certified drivers’ intervention program. R.C. 4511.19(G)(1)(a) and (G)(1)(a)(ii).

       {¶ 25} Applying the rationale set forth in Earley, we conclude that aggravated

vehicular homicide under R.C. 2903.06(A)(1) and OVI under R.C. 4511.19(A)(1)(f) are

not allied offenses.     Rather, by criminalizing aggravated vehicular homicide and

classifying it as a felony of the second degree requiring mandatory prison time, the

legislature “emphasized the necessity of a strong punishment for and deterrent against
                                                                                        -11-

individuals causing” the death of another person while driving under the influence. Earley

at ¶ 15. Since aggravated vehicular homicide necessarily involves causing the death of

another person, the felony offense has a different import and significance than merely

driving under the influence. Id. Conversely, a first-degree misdemeanor violation of R.C.

4511.19(A)(1)(f), “occurs any time an individual drives under the influence of alcohol or

drugs, and one who does so commits this offense regardless of any subsequent

consequences that occur due to the impaired driver’s actions.” Id. Accordingly, the trial

court did not err when it failed to merge Hayes’ convictions for aggravated vehicular

homicide and OVI.

       {¶ 26} IMPOSITION OF CONSECUTIVE SENTENCES

       {¶ 27} Here, Hayes argues that the trial court erred when it ordered that his

sentences for aggravated vehicular homicide and OVI be served consecutively.

Specifically, Hayes asserts that the record suggests that the trial court was under the

mistaken belief that consecutive sentences were mandatory. We note that Hayes did

not object to the imposition of consecutive sentences, so all but plain error has been

forfeited.

       {¶ 28} For plain error to exist, the defect in the trial proceedings must be obvious

and must have affected the outcome of the trial. State v. Payne, 114 Ohio St.3d 502,

2007-Ohio-4642, 873 N.E.2d 306, ¶ 16. “Notice of plain error ‘is to be taken with the

utmost caution, under exceptional circumstances and only to prevent a manifest

miscarriage of justice.’ ” State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d

596, ¶ 108, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph

three of the syllabus.
                                                                                         -12-


       {¶ 29} R.C. 2929.41(B)(3) states in pertinent part:

       A jail term or sentence of imprisonment imposed for a misdemeanor

       violation of section * * * 4511.19 of the Revised Code shall be served

       consecutively to a prison term that is imposed for a felony violation of

       section 2903.06 * * * of the Revised Code * * * when the trial court specifies

       that it is to be served consecutively.

Thus, the language of R.C. 2929.41(B)(3) explicitly provides that a sentence for a violation

of R.C. 4511.19, OVI, can be served either consecutively or concurrently to a sentence

for a violation of R.C. 2903.06, aggravated vehicular homicide. Earley at ¶ 20.

       {¶ 30} However, Hayes argues that the record establishes that the trial court was

under the mistaken impression that consecutive sentences were mandatory. In support

of his contention, Hayes cites to the following statements made by the trial court at his

sentencing hearing:

              The Court: Mr. Hayes, in regards to Count I, the aggravated vehicular

       homicide, I am going to sentence you to seven years in the Corrections

       Reception Center.      That sentence is mandatory pursuant to [R.C.]

       2929.13.

              Regards to Count III, the OVI charge, I am going to sentence you to

       the maximum of 180 days incarceration.             And pursuant to [R.C.]

       2929.41(B)(3) the sentence is to run consecutive to Count I of this case and

       will be served after your felony conviction has ran.

       {¶ 31} The instant case is clearly distinguishable from the case cited by Hayes,

State v. Schidecker, 2d Dist. Montgomery No. 26334, 2015-Ohio-1400, wherein we found
                                                                                      -13-


that the trial court mistakenly concluded it had no choice under R.C. 2929.41(B)(3) other

than to impose the sentence consecutively. During the sentencing hearing, the trial court

stated that:

       The Court imposes a sentence of 30 consecutive days of local incarceration

       which, by law, must run consecutively to the sentence on Count I and Count

       III. I will say again that the Court believes, as a matter of law, that the

       sentence on Count VI, the OVI count, must run consecutively to the

       sentence on Count I and Count III. That’s my legal determination based

       on the authorities I’ve reviewed prior to sentencing.        The first six

       consecutive days of that sentence on Count VI are mandatory and cannot

       be reduced.

Id. at ¶ 44. Based on the above statements at sentencing, we found that the trial court

erred when it concluded that it was required to impose the misdemeanor OVI sentence

consecutively pursuant to R.C. 2929.41(B)(3). Id. at ¶ 45.

       {¶ 32} Upon review, we conclude that the trial court’s statements do not indicate

that it mistakenly believed that it was required to impose consecutive sentences pursuant

to R.C. 2929.41(B)(3). Rather, the statements indicate an acknowledgment on the part

of the trial court that it was merely imposing consecutive sentences pursuant to the

discretion afforded it by the language in R.C. 2929.41(B)(3). On this record, the trial

court merely referenced the statute which gave it discretionary authority to impose

consecutive sentences.

       {¶ 33} Hayes’ first assignment of error is overruled.

       {¶ 34} Because they are interrelated, Hayes’ second, third, and fourth
                                                                                         -14-


assignments of error will be discussed together as follows:

      {¶ 35} “THE    TRIAL     COURT      ERRED      IN   OVERRULING         DEFENDANT-

APPELLANT’S MOTION TO SUPPRESS BECAUSE THE SAMPLE WAS TAKEN IN

VIOLATION OF THE ARREST REQUIREMENTS OF THE IMPLIED CONSENT LAW.”

      {¶ 36} “THE TRIAL COURT ERRED IN OVERRULING DEFENDANT’S MOTION

TO SUPPRESS BECAUSE HE WAS NOT GIVEN A CHANCE TO WITHHOLD OR

REVOKE IMPLIED CONSENT.”

      {¶ 37} “THE TRIAL COURT ERRED IN OVERRULING DEFENDANT’S MOTION

TO SUPPRESS AS THE EVIDENCE OBTAINED WAS THE RESULT OF AN

UNCONSTITUTIONAL SEARCH AND SEIZURE.”

      {¶ 38} In his second, third, and fourth assignments, Hayes contends that the trial

court erred when it overruled his motion to suppress for the following reasons, to wit: 1)

the blood sample was taken in violation of the implied consent law because he had not

been arrested when the sample was drawn; 2) he was not given the opportunity to

withhold or revoke implied consent; and 3) the taking of the blood sample was an

unconstitutional search and seizure.

      {¶ 39} As this Court has previously noted:

      “Appellate courts give great deference to the factual findings of the trier of

      facts. (Internal citations omitted). At a suppression hearing, the trial court

      serves as the trier of fact, and must judge the credibility of witnesses and

      the weight of the evidence. (Internal citations omitted). The trial court is in

      the best position to resolve questions of fact and evaluate witness

      credibility. (Internal citations omitted). In reviewing a trial court’s decision
                                                                                        -15-


      on a motion to suppress, an appellate court accepts the trial court’s factual

      findings, relies on the trial court’s ability to assess the credibility of

      witnesses, and independently determines whether the trial court applied the

      proper legal standard to the facts as found. (Internal citations omitted). An

      appellate court is bound to accept the trial court’s factual findings as long

      as they are supported by competent, credible evidence.” State v. Hurt,

      Montgomery App. No. 21009, 2006-Ohio-990.

State v. Purser, 2d Dist. Greene No. 2006 CA 14, 2007-Ohio-192, ¶ 11.

      {¶ 40} “The Fourth Amendment to the United States Constitution and the Ohio

Constitution, Article I, Section 14, prohibit unreasonable searches and seizures.” State v.

Emerson, 134 Ohio St.3d 191, 2012-Ohio-5047, 981 N.E.2d 787, ¶ 15.                    The

constitutional provisions contain nearly identical language and have been interpreted to

afford the same protection. State v. Hoffman, 141 Ohio St.3d 428, 2014-Ohio-4795, 25

N.E.3d 993, ¶ 11.

      {¶ 41} The Fourth Amendment protects against two types of unreasonable

intrusions: 1) searches, which occur when an expectation of privacy that society is

prepared to consider reasonable is infringed upon and 2) seizures, which occur when

there is some meaningful interference with an individual's liberty or possessory interest

in property. See State v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85

(1984).

      {¶ 42} “[S]earches and seizures conducted outside the judicial process, without

prior approval by judge or magistrate, are per se unreasonable under the Fourth

Amendment ̶ subject only to a few specifically established and well-delineated
                                                                                          -16-

exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576

(1967).   “Once the defendant demonstrates that he was subjected to a warrantless

search or seizure, the burden shifts to the state to establish that the warrantless search

or seizure was constitutionally permissible.” State v. Roberts, 110 Ohio St.3d 71, 2006-

Ohio-3665, 850 N.E.2d 1168, ¶ 98.

       {¶ 43} The withdrawal of a sample of blood from the body of an individual in order

to determine its blood-alcohol content for the purpose of proving a criminal charge

constitutes a search within the meaning of the Fourth Amendment. Schmerber v.

California, 384 U.S. 757, 767, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Fourth Amendment

analysis neither permits nor forbids all such bodily intrusions; rather, “the Fourth

Amendment’s proper function is to constrain, not against all intrusions as such, but

against intrusions which are not justified in the circumstances, or which are made in an

improper manner.” Id. at 768.

       {¶ 44} R.C. 4511.19(D)(1)(b) provides that “[i]n any criminal prosecution * * * for a

violation of division (A) or (B) of this section or for an equivalent offense that is vehicle-

related, * * * [t]he court may admit evidence on the concentration of alcohol * * * when a

person submits to a blood * * * test at the request of a law enforcement officer under

section 4511.191 of the Revised Code or a blood * * * sample is obtained pursuant to a

search warrant.” A criminal prosecution for aggravated vehicular homicide under R.C.

2903.06 is a prosecution for an “equivalent offense” as defined in R.C. 4511.181(A)(4).

       {¶ 45} IMPLIED-CONSENT

       {¶ 46} Under Ohio’s implied-consent statute, R.C. 4511.191, “[a]ny person who

operates a vehicle * * * upon a highway * * * shall be deemed to have given consent to a
                                                                                          -17-


chemical test or tests of the person’s whole blood, blood serum or plasma, * * * to

determine the alcohol * * * content of the person’s whole blood, blood serum or plasma *

* * if arrested for a violation of division (A) or (B) of section 4511.19 of the Revised Code,

section 4511.194 of the Revised Code or a substantially equivalent municipal ordinance,

or a municipal OVI ordinance.” R.C. 4511.191(A)(2).            R.C. 4511.191(A)(4) further

specifies that “[a]ny person who is dead or unconscious, or who otherwise is in a condition

rendering the person incapable of refusal, shall be deemed to have consented as

provided in division (A)(2) of this section, and the test or tests may be administered

subject to sections 313.12 to 313.16 of the Revised Code.” “ ‘R.C. 4511.191 * * * was

enacted to protect innocent motorists and pedestrians from injury and death caused by

irresponsible acts of unsafe drivers on Ohio streets and highways. The broad purpose

of the implied-consent statute is to clear the highways of and to protect the public from

unsafe drivers.’ ” State v. Uskert, 85 Ohio St.3d 593, 598, 709 N.E.2d 1200 (1999),

quoting Hoban v. Rice, 25 Ohio St.2d 111, 114, 267 N.E.2d 311 (1971). Hayes argues

that the trial court should have suppressed his blood-alcohol test because: 1) no search

warrant authorized the blood draw, and 2) the implied consent statute does not apply

because he was never arrested before the sample was drawn since he was unconscious

at the time.

       {¶ 47} One of the well-delineated exceptions to the general prohibition against a

warrantless search occurs when the person consents to the search. State v. Morris, 42

Ohio St.2d 307, 318, 329 N.E.2d 85 (1975).                As previously discussed, R.C.

4511.191(A)(4) specifically deems an unconscious or incapacitated person to have

consented to a blood test if there is probable cause to believe that the person has been
                                                                                           -18-

operating a motor vehicle while intoxicated. See, generally, Weiler and Weiler, Ohio

Driving Under the Influence Law, Section 8:6 (2014 Ed.); State v. Troyer, 9th Dist. Wayne

No. 02-CA-0022, 2003-Ohio-536, ¶ 26 (“the Fourth Amendment does not require an

arrest before a blood sample may be taken from an unconscious driver believed to have

been driving under the influence of alcohol”); State v. Taylor, 2 Ohio App.3d 394, 395,

442 N.E.2d 491 (12th Dist.1982) (“We read [former] R.C. 4511.191(B) [now R.C.

4511.191(A)(4)] to authorize the withdrawal of blood from an unconscious individual by

an officer who has reasonable grounds to believe the person to have been driving a motor

vehicle upon the public highways of this state while under the influence of alcohol,

whether or not the unconscious person is actually placed under arrest”). This typically

occurs when the person has been involved in a serious accident and is unconscious or

unresponsive at the scene or shortly thereafter. Weiler and Weiler, Ohio Driving Under

the Influence Law at Section 8:6.

      * * * In the blood sample case, * * * there is no room whatsoever for the

      argument that the lack of a formal arrest may decrease somewhat the

      chances that the evidence will be destroyed, for the “evanescent” character

      of the evidence is inherent in its nature and does not depend upon any

      motive of the defendant to destroy it. * * * It is the height of formalism, to say

      the least, to suggest that a warrantless search on probable cause in order

      to meet this emergency is reasonable only if the police first declare the

      hospitalized defendant under arrest. In particular, it “would be ridiculous to

      require a police officer to perform some formal ritual of arrest over the

      unconscious body of a critically injured person who was a party to a fatal
                                                                                        -19-


       automobile accident.” The claim that the contrary position “provides some

       measure of assurance that probable cause is based upon considerations

       independent of the blood-alcohol test results” is untenable, as the need for

       a court to determine that probable cause existed prior to the test is present

       under either rule. (Citations omitted.)

3 LaFave, Search and Seizure (1996) 161-62, Section 5.4(b).

       {¶ 48} We also note that the Sixth Circuit, among several other courts, has adopted

the view that the Fourth Amendment does not require an arrest prior to administering a

blood-alcohol test to an unconscious driver believed to have been driving under the

influence of alcohol. United States v. Berry, 866 F.2d 887, 888 (6th Cir.1989); see also

State v. Oevering, 268 N.W.2d 68, 73 (Minn.1978) (requiring “arrest ritual” of unconscious

victims of alcohol-related accidents would be “absurd”); State v. Campbell, 189 Mont.

107, 115-116, 615 P.2d 190 (1980); Wilhelmi v. Director of the Dept. of Transp., 498

N.W.2d 150, 154 (N.D.1993) (formal arrest of an unconscious driver would be an “empty

gesture”); State v. Milligan, 304 Ore. 659, 671-72, 748 P.2d 130 (1988).

       {¶ 49} Hayes cites to our recent decision in State v. Rawnsley, 2d Dist.

Montgomery No. 24594, 2011-Ohio-5696, for the proposition that the implied-consent

statute, R.C. 4511.191, applies only to those individuals who have been placed under

arrest. The defendant in Rawnsley, however, was not unconscious at the time that the

police officer directed her blood to be drawn for alcohol testing. Accordingly, Rawnsley

is distinguishable from the instant case. In light of the foregoing analysis, we agree with

the trial court that the Fourth Amendment does not require an arrest before a blood

sample may be drawn from an unconscious driver who is believed to have been driving
                                                                                         -20-

under the influence of alcohol. State v. Troyer, 9th Dist. Wayne No. 02-CA-0022, 2003-

Ohio-536, ¶ 26.

       {¶ 50} PROBABLE CAUSE

       {¶ 51} We also agree with the trial court that Detective Seiter had probable cause

to believe that Hayes had been operating a motor vehicle while he was intoxicated.

Probable cause, specifically in terms of arrests for driving under the influence, is

determined by whether, at the time of arrest, the officer had sufficient information, from a

reasonably trustworthy source, of facts and circumstances that are sufficient to make a

prudent person believe the suspect was driving under the influence. State v. Sheppeard,

2d Dist. Clark No. 2012 CA 27, 2013-Ohio-812, ¶ 41. Probable cause is determined from

the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 233, 103 S.Ct. 2317, 76

L.Ed.2d 527 (1983).      A law officer’s decision to conduct a warrantless search is

evaluated first by the trial court and is reviewed by this court de novo. Ornelas v. United

States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) (determinations of

reasonable suspicion and probable cause are generally reviewed de novo).

       {¶ 52} In the instant case, we find that at the time that Detective Seiter ordered

Hayes’ blood sample taken, the totality of the circumstances was sufficient to warrant a

prudent person to believe that he had been driving under the influence of alcohol and that

a blood-alcohol test would provide evidence thereof.        Initially, we note that McCoy

testified that upon arriving at the scene of the accident, he observed one vehicle that had

been driven directly into a large, stationary, unmanned track hoe. The motor vehicle had

sustained serious front-end damage. McCoy testified that he observed that there were

two occupants in the front seats of the vehicle, a male located in the driver’s seat and an
                                                                                          -21-


unconscious female in the passenger seat. McCoy testified that the man in the driver’s

seat identified himself as Ryan Hayes. McCoy testified that he detected the strong odor

of alcohol on Hayes as he approached the vehicle. McCoy further testified that Hayes

admitted to consuming alcohol as he was being transported to the hospital.

       {¶ 53} Detective Seiter also observed the aftermath of the one-car accident.

Specifically, Detective Seiter testified that he observed that the vehicle had run directly

into the right track of the track hoe, and the front of the car was completely destroyed.

There were no other vehicles involved in the accident besides the track hoe and Hayes’

car. The construction site where the accident occurred was marked and clearly visible,

to wit: 1) there were several, reflective “road closed” signs visible when approaching the

site; 2) there was orange netting and reflective, flashing lights at the entrance of the site;

3) there was a large mound of dirt and gravel; and 4) there was a twenty-foot tall yellow

track hoe with a large scoop bucket into which Hayes drove to cause the accident.

Detective Seiter testified that he learned from some first responders to the accident that

Hayes had been found in the driver’s seat of the vehicle. Upon examination, Detective

Seiter testified that he detected a slight to moderate odor of alcohol coming from the

interior of the vehicle. Detective Seiter also testified that he detected the moderate odor

of alcohol emanating from Hayes’ body at the hospital. Accordingly, the totality of the

circumstances present when Detective Seiter directed that blood be drawn from an

unconscious Hayes supports the trial court’s finding that probable cause existed to

believe that he had been driving under the influence of alcohol when he crashed into the

track hoe.

       {¶ 54} EXIGENT CIRCUMSTANCES
                                                                                        -22-


      {¶ 55} Although not discussed by the trial court in its decision overruling Hayes’

motion to suppress, we find that exigent circumstances existed which support Detective

Seiter’s decision to administer a warrantless blood-alcohol test. Before the results of a

nonconsensual, warrantless blood-alcohol test may be admitted into evidence, there must

be a demonstration that the circumstances come within a specifically established and

well-delineated exception. See Katz, 389 U.S. at 357.          One of these exceptions,

excusing the obtaining of a warrant is the existence of an exigent circumstance. Troyer

at ¶ 27. The Schmerber court concluded that because of the rapid rate at which alcohol

diminishes in the blood, and because it would take some time for the officer to investigate

and find facts establishing probable cause, there would be no time reasonably to expect

the officer to obtain a warrant. Schmerber, 384 U.S. at 770-71. Such facts demonstrate

an exigent circumstance, excusing the obtaining of a warrant.

      {¶ 56} In Schmerber, the petitioner challenged his conviction for driving while

intoxicated upon the basis that the warrantless seizure of his blood, over his objection,

violated his Fourth Amendment rights. In rejecting his claim, the U.S. Supreme Court

held that a warrantless seizure could be justified based upon the “evanescent nature” of

the evidence, i.e., the fact that the level of alcohol in blood decreased with the passage

of time. Id. at 779. Because of the fleeting nature of the evidence, the time necessary to

obtain a warrant, and the prior establishment of probable cause to justify an arrest, the

Court upheld the warrantless seizure of the petitioner’s blood as reasonable under the

Fourth Amendment. “Although there was an arrest in Schmerber, the Court did not make

its holding dependent upon the fact that the defendant had been arrested, only that there

was probable cause for the DUI arrest.” (Emphasis added.) See State v. King, 1st Dist.
                                                                                        -23-


Hamilton No.C-010778, 2003-Ohio-1541, at ¶ 26. “[T]here now appears to be universal

agreement among the courts that have addressed the question that an arrest is not

integral to the Schmerber holding and, consequently, that a warrantless extraction of

blood from a driver lawfully suspected of DUI, does not violate the [F]ourth [A]mendment

even in the absence of an arrest or actual consent.” Id.

       {¶ 57} In the instant case, rescue units were dispatched to the scene of the

accident at approximately 8:48 p.m., but did not arrive on the scene until 9:01 p.m.

because of road closures due to construction. McCoy transported Hayes to the hospital

from the crash site, arriving at approximately 9:30 p.m. After investigating the scene of

the accident, Det. Seiter traveled to the hospital in order to interview Hayes, but was not

able to arrive until approximately two hours after the crash.

       {¶ 58} At that point, Hayes was unconscious, but the alcohol in his system was

likely still dissipating. More importantly, the three-hour window within which to obtain a

blood sample for testing had almost passed. Indeed, the record establishes that Hayes’

blood was drawn at 11:20 p.m., leaving only approximately twenty minutes before the

three-hour window expired.     By the time Detective Seiter made his probable cause

determination after observing an unconscious Hayes at the hospital, “the logistics of

preparing an application for a search warrant, possibly having to contact a prosecutor to

assist, drafting it, and then locating and obtaining a judge’s signature, would undoubtedly

[have taken] a reasonably long period of time.” State v. Roar, 4th Dist. Pike No. 13CA842,

2014-Ohio-5214, ¶ 31. During that time, the alcohol, and therefore the evidence, would

have been dissipating from Hayes’ body. Upon review, we conclude that the exigent

circumstances justified the taking of Hayes’ blood without a search warrant.
                                                                                         -24-


       {¶ 59} Hayes’ second, third, and fourth assignments of error are overruled.

       {¶ 60} Hayes’ fifth assignment of error is as follows:

       {¶ 61} “THE TRIAL COURT ERRED IN OVERRULING DEFENDANT’S MOTION

TO EXCLUDE BLOOD TEST EVIDENCE THAT WAS DESTROYED BEFORE

DEFENDANT WAS CHARGED WITH A CRIME.

       {¶ 62} Ohio Adm. Code 3701-53-06 requires laboratories to retain all positive

plasma, serum, blood, and urine specimens “for a period of not less than one year, after

which time the specimens may be discarded unless otherwise directed in writing from a

court to retain such specimen for a longer period.” In his fifth assignment, Hayes argues

that the trial court erred when it overruled his motion to suppress because the MVRCL

destroyed his blood sample in December of 2012, after storing the sample for only

fourteen months.

       {¶ 63} The Due Process Clause of the Fourteenth Amendment to the United States

Constitution protects a criminal defendant from being convicted where the state fails to

preserve materially exculpatory evidence or destroys in bad faith potentially useful

evidence. State v. Wells, 2d Dist. Greene No. 2003CA68, 2004-Ohio-1026, ¶ 49. To be

materially exculpatory, “evidence must both possess an exculpatory value that was

apparent before the evidence was destroyed, and be of such a nature that the defendant

would be unable to obtain comparable evidence by other reasonably available means.”

Id., quoting California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 81 L.Ed.2d 413

(1984) (failure to preserve breath samples did not violate due process); Illinois v. Fisher,

540 U.S. 544, 545, 124 S.Ct. 1200, 157 L.Ed.2d 1060 (2004). When evidence is only

potentially exculpatory, the destruction of such evidence does not violate due process if
                                                                                        -25-


the police act in good faith and the evidence is disposed of in accordance with normal

procedures. State v. Rains, 135 Ohio App.3d 547, 553, 735 N.E.2d 1 (6th Dist.1999),

citing Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988).

In other words, when faced “with the failure of the State to preserve evidentiary material

of which no more can be said then that it could have been subjected to tests, the results

of which might have exonerated the defendant,” due process is violated only if the state

acted in bad faith. Youngblood, 488 U.S. at 57.

      {¶ 64} In the instant case, we characterize Hayes’ blood sample as “potentially

useful” evidence. State v. Barron, 2d Dist. Greene No. 10-CA-28, 2011-Ohio-2425, ¶ 16.

Certainly, there is at least a chance that further testing may have revealed a different

blood-alcohol concentration. However, the blood sample was not exculpatory evidence

because it had already been tested three times by Kiely. Rather, the hospital testing

indicates that it was inculpatory. The first test was positive for the presence of alcohol.

The second test quantified Hayes’ blood alcohol content at .171 gram percent, more than

twice the legal limit for an adult in Ohio. The third test performed by Kiely was positive

for the presence of marijuana metabolite.

      {¶ 65} As previously stated, Ohio Adm.Code 3701-53-06 requires laboratories to

retain all positive plasma, serum, blood, and urine specimens “for a period of not less

than one year, after which time the specimens may be discarded unless otherwise

directed in writing from a court to retain such specimen for a longer period.” Kiely

testified that pursuant to its own internal procedures, MVRCL keeps its samples in storage

for fourteen months, two months longer than what is required by law. Kiely testified that

Hayes’ blood sample was kept by MVRCL for fourteen months and then destroyed
                                                                                         -26-


pursuant to its internal policy. Prior to the destruction of the blood sample, there was no

request from Hayes, the State, or the police to retain the blood sample past the fourteen

month limit. Kiely testified that had such a request been made, MVRCL would have

honored it.

       {¶ 66} On the record before us, there is no evidence that MVRCL acted outside of

its normal procedures, nor is there evidence that the State acted in bad faith in permitting

the destruction of such evidence. Accordingly, the trial court properly concluded that the

admission of the results from Hayes’ blood tests did not violate due process.

       {¶ 67} Hayes’ fifth assignment of error is overruled.

       {¶ 68} Hayes’ sixth assignment of error is as follows:

       {¶ 69} “THE TRIAL COURT ERRED IN OVERRULING DEFENDANT’S MOTION

TO EXCLUDE A GRUESOME AUTOPSY PHOTOGRAPH, SHOWING DECEDENT[’]S

OPEN SKULL AFTER AUTOPSY.”

       {¶ 70} In his sixth assignment, Hayes contends that the trial court erred when it

admitted, over his objection, State’s Exhibit 6, which depicted an interior anatomical view

of the injury to Qadriyyah Harvey’s spinal cord which occurred as a result of the car

accident which ultimately caused her death. Hayes argues that the photograph was

gruesome and repetitious and only served “to inflame the passion of the jury.” Evid.R.

403(A). The trial court concluded that the photograph was necessary to help the jury

understand the coroner’s testimony regarding medical issues and the cause of death, and

that its probative value was not substantially outweighed by the danger of unfair prejudice.

We agree.

       {¶ 71} The admission or exclusion of evidence such as photographs is left to the
                                                                                         -27-


sound discretion of the trial court and will not be disturbed on appeal absent an abuse of

that discretion. State v. Morales, 32 Ohio St.3d 252, 257, 513 N.E.2d 267 (1987); State

v. Whitfield, 2d Dist. Montgomery No. 22432, 2009-Ohio-293, ¶ 122.

       {¶ 72} “Abuse of discretion” has been defined as an attitude that is unreasonable,

arbitrary or unconscionable. Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482

N.E.2d 1248 (1985). It is to be expected that most instances of abuse of discretion will

result in decisions that are simply unreasonable, rather than decisions that are

unconscionable or arbitrary.

       {¶ 73} A decision is unreasonable if there is no sound reasoning process that

would support that decision. It is not enough that the reviewing court, were it deciding the

issue de novo, would not have found that reasoning process to be persuasive, perhaps

in view of countervailing reasoning processes that would support a contrary result. AAAA

Enterprises, Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d

157, 161, 553 N.E.2d 597 (1990).

       {¶ 74} The State had the burden to prove, beyond a reasonable doubt, that Hayes

caused the death of Harvey while operating a motor vehicle and as a proximate result of

committing an OVI. The photograph was clearly probative of such matters and was

presented during the testimony of Dr. Russell Uptegrove, who performed the autopsy on

Harvey, for the purpose of explaining to the jury his opinion concerning the cause of her

death. With respect to Harvey’s cause of death, Dr. Uptegrove provided the following

testimony:

              Dr. Uptegrove: * * * Upon removal of the skull cap, after reflecting the

       scalp, and the initial examination of the brain, [Harvey] did have a small area
                                                                                   -28-


on the base of the brain where there was a kind of focal area, a hemorrhage.

       When the brain was actually removed from the cranial vault or

removed from the skull, I was able to actually manipulate the head because

there was looseness or some laxity in-between the junction between the

base of the skull and the neck to the vertebra in the upper neck. So,

essentially, the head was sort of knocked loose, so to speak, off the vertebra

involving the neck.

       Now, in looking at that, sometimes the spinal cord can be completely

transected. In this particular case, it wasn’t transected but there was actual

compression of the spinal cord because of this laxity or looseness of the

head where it is attached to the neck. And also emanating from that, there

was a focal area of some hemorrhage located in the upper neck surrounding

the vertebral bodies of the upper neck.

***

       The State: And this compression, if you will, of the vertebral cord,

that sort of thing that’s coming up through the neck and connecting to the

head, what would that have done medically to her?

       Dr. Uptegrove: Well, the brain stem which is at the base of the brain

in this general area where this laxity developed, when it proceeds downward

it turns into the cervical spinal cord. Because the primary function of the

brain stem is to regulate autonomic functions meaning that it causes one’s

heart to continue beating without having to think about your heart beating

and it also controls the respiratory drive to breathe so when there is an injury
                                                                                               -29-


      to the brain stem or cervical spinal cord, in that high of a level, one’s

      heartbeat and the ability to breathe can be significantly compromised.

      Q: Would that be a fatal injury?

      A: It can be. * * *

      {¶ 75} When asked to explain State’s Exhibit 6, which depicted the injuries to

Harvey that he described in the previous testimony, Dr. Uptegrove stated the following:

               The State: And State’s Exhibit 6. Tell us what we’re seeing here,

      Doctor.

               Dr. Uptegrove: All right. It’s going to take just a little bit of orientation

      here. This is an internal picture of [Harvey’s] upper neck.

      ***

               But this, all this dark red area here in the neck is hemorrhage again

      which is associated with the trauma which happened with the damage of

      the ligaments and the other soft tissue between the base of the skull and

      the upper level of the vertebral body. So there’s, you know, hemorrhage

      associated in the soft tissue in this general area.

               Q: And just so we’re clear. When you say hemorrhage, you mean,

      you mean what?

               A: Bleeding.

               ***

               Q: And you mentioned that the bleeding was caused by sort of the

      damage that was happening to the vertebral cord and also the ligaments

      there?
                                                                                         -30-


               A: Yes.

               Q: What would that be consistent with? What could have caused

       that?

               A: The most common situation, seeing this type of trauma, is a blunt

       force injury to the head. And, again, there can be numerous types of

       scenarios that could cause that, but that’s the basic mechanism.

               Q: And that could mean a car crash, then?

               A: Yes.

       {¶ 76} The trial court properly admitted the autopsy photograph at issue in this

case because it helped the jury to understand the coroner's testimony regarding the cause

of Harvey’s death, and the photograph was relevant and probative of the allegation that

Defendant caused her death when he crashed the vehicle in which she was a passenger

while he was intoxicated. The photograph, which depicted the internal damage done to

Harvey which resulted in her death, depicted things the other autopsy photographs did

not. Whitfield at ¶ 125.     The probative value of the autopsy photograph was not

substantially outweighed by the danger of unfair prejudice. As we stated in State v.

Wade, 2d Dist. Montgomery No. 21530, 2007-Ohio-1060, ¶ 35:

               Autopsy photos are inherently prejudicial when they depict

       gruesome, graphic wounds, but when offered to prove elements of the

       offense that the State has the burden of proving, they are usually not unfairly

       prejudicial. That is the case here.

       {¶ 77} Accordingly, the trial court did not abuse its discretion in admitting State’s

Exhibit 6.
                                                                                              -31-


       {¶ 78} Hayes’ sixth assignment of error is overruled.

       {¶ 79} Hayes’ seventh assignment of error is as follows:

       {¶ 80} “THE      TRIAL     COURT       ERRED       IN   PERMITTING         CONTINUING

HARASSING QUESTIONS OF DEFENDANT.”

       {¶ 81} In his seventh assignment, Hayes argues that the State committed

prosecutorial misconduct when the prosecutor cross-examined him. Specifically, Hayes

asserts that through repetitive questioning permitted by the trial court, the State

“badger[ed]” him and deprived him of a fair trial.

       {¶ 82} The test for prosecutorial misconduct is whether the remarks were

improper, and if so, whether they prejudicially affected the accused’s substantial rights.

State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). The touchstone of the

analysis “is the fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips,

455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). The question is whether the

prosecutor’s misconduct so infected the accused’s trial with unfairness that the accused’s

convictions came in violation of the right to due process. Donnelly v. DeChristoforo, 416

U.S. 637, 644, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974).

       {¶ 83} All of the alleged prosecutorial misconduct identified by Hayes occurred

when he was cross-examined by the State. Hayes argues that the first instance of

misconduct occurred when the State asked him if he had used Hoover Avenue since

February of 2011, but before the crash on September 17, 2011. Hayes answered, “[n]ot

that I could remember.” The record reflects that the State then asked Hayes essentially

the same question two more times. We note that defense counsel did not object to the

State’s questioning in this regard. The first instance of alleged misconduct occurred
                                                                                         -32-


during the following exchange:

              Q: Okay. And are you telling this jury that never once did you go

       from Brookhaven to Little Richmond, to Olive, to Hoover Avenue from

       February of 2011 to the night of this crash in September of 2011.

              A: Not that I could remember. It’s alternate routes that you could

       get to that area.

              Q: And my question is did you ever take that route? We already

       heard about the route you claimed to take. But are you telling this jury that

       in all the months from February that you claim was the last time you were

       on Hoover, right – February of 2011?

              A: Correct.

              Q: That from February, 2011 to September 17, 2011 you never once

       took that route from your parents’ place here over to Olive Road to Hoover.

       Is that you testimony?

              A: Yes.

       {¶ 84} Thereafter, the State asked Hayes several times to identify the time of day

that he had his first alcoholic beverage on September 17, 2011, the day of the crash.

Defense counsel eventually objected to the State’s repetition of the question, but the trial

court overruled the objection. The exchange proceeded as follows:

              Q: Okay. Now, you told us that you drank no alcohol before what

       time on Saturday? What time did you start drinking alcohol that evening of

       that day?

              A: No time before nine in the morning or – it was in the afternoon
                                                                                   -33-


when I started drinking.

       Q: Will you tell us when –

       A: Afternoon or night. Had to be in between five and seven.

       Q: Not between four and five p.m.?

       A: Four – it might have been that. I know around five – five o’ clock,

ma’am.

       Q: Around five? Is that your answer now? That you started.

       A: I’m trying to remember back.         It’s hard.   I have a learning

disability. Around that time.

       Q: Around five p.m. then, is that right?

       A: Right – yes. It’s what –

       Q: Are you unsure about that, sir.

       A: No, I’m – I’m just thinking I don’t want to – trying to think the time

I just – I had told you previous before.

       Q: Trying to keep it consistent with what you had said on direct?

       A: I’m trying to – let me see how I can phrase this. I just want to be

clear to the jury what –

       Q: Uh-huh –

       A: -- time I said –

       Q: All right. But as we sit here now on cross-examination, you’re

telling us it was roughly five o’ clock, fair? That you started drinking that

day?

       A: Did I not say it was around four or five or five –
                                                                                          -34-


      ***

             A: -- not say it was five o’ clock?

      ***

             Q: It’s not for you to ask the questions, sir. It’s actually for me to ask

      the questions. Are you telling us that it’s five o’ clock that you started

      drinking?

             A: I’m not precise with time. It was – I know it was around that time

      – what I said before, so –

             Q: I’m not asking you to stick to the minute, okay? Just a rough

      estimate, though. You’re telling us you did not drink any alcohol prior to

      approximately five p.m. Is that what you’re telling us?

             Defense Counsel: Objection, Your Honor.           It’s been asked and

      answered.

             The Court: It has been answered. Overruled –

             The State: Sure.

      {¶ 85} The State also asked Hayes four times if had spoken with his cousin,

Rodney Hayes, after the accident. Defense counsel objected the third time the State

asked the question, but the trial court overruled the objection in the following exchange:

             Q: Now you’ve talked to Rodney Hayes since this crash – about the

      crash, haven’t you?

             A: No.

             Q: Not once?

             A: Not directly about no crash, no. I – I mean, I just – in the hospital
                                                                                       -35-


      – I got in the accident and I talked to him and said I had got in an accident.

      He came and seen me and he knew I got – it was on the news.

             Q: Sir, my question is real simple. Have you ever talked to Rodney

      Hayes about this crash? Yes or no.

             A: No, not about it.

             Q: You ever talk to Michelle Hayes about this crash?

             A: No.

             Q: So in the passage of three years and being charged with criminal

      offenses involved with that crash, you’re telling this jury you’ve never had a

      conversation about it with either one?

             Defense Counsel: Objection. Asked and answered.

             The Court: Overruled.

             ***

             The State: Are you saying with the passage of three years and the

      fact that you’ve been charged with offenses involving this crash that you

      have never talked to Michelle or Rodney Hayes about this crash?

             Hayes: No, I have never. I didn’t even know I was the one to get

      indicted or anything. * * *

      {¶ 86} Lastly, Hayes argues that the State violated Evid.R. 609 when it inquired

whether he had ever used marijuana in the past in the following exchange:

             Q: Okay. Now you smoked marijuana at some point before this

      crash, too, didn’t you?

             A: Prior to the crash I did because I was working at UPS. I was
                                                                                         -36-


       trying to quit so I knew I was trying to get on full time.

              Q: Sir, when was the last time you had smoked marijuana prior to

       this crash?

              A: Maybe a week before. Maybe three days – a week. I know I

       was quitting. I was in the period of time I had talked to many a [sic] people

       that I was quitting and I know it takes thirty to sixty days to get out of your

       system. So –

              Q: So you were trying to time it so that you could get that job with

       UPS so you could pass a clean drug test?

              A: Yes, ma’am.

       {¶ 87} Again, the standard for prosecutorial misconduct is whether the comments

and/or questions were improper, and, if so, whether they prejudiced appellant’s

substantial rights. State v. Lott, 51 Ohio St.3d 160, 165, 555 N.E.2d 293 (1990). Evid.R.

611(B) provides that cross-examination shall be permitted on all relevant matters and

matters affecting credibility. “The limitation of * * * cross-examination lies within the

sound discretion of the trial court, viewed in relation to the particular facts of the case.

Such exercise of discretion will not be disturbed in the absence of a clear showing of an

abuse of discretion.” State v. Acre, 6 Ohio St.3d 140, 145, 451 N.E.2d 802 (1983). Trial

judges may impose reasonable limits on cross-examination based on a variety of

concerns, such as harassment, prejudice, confusion of the issues, the witness’s safety,

repetitive testimony, or marginally relevant interrogation. See Delaware v. Van Arndell,

475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986).

       {¶ 88} We have reviewed the state’s cross-examination of Hayes in its entirety.
                                                                                         -37-


While it is apparent that the prosecutor occasionally repeated questions and at times

seemed unnecessarily contentious, her cross-examination of Hayes specifically

addressed his recollection of the precise sequence of events on September 17, 2011, the

day of the crash. Hayes’ entire defense at trial revolved around his contention that he

was not driving recklessly and was not driving under the influence of alcohol at the time

of the crash.

       {¶ 89} Accordingly, how much Hayes had to drink that day and his knowledge of

the construction site where the crash occurred were directly at issue. Hayes denied

driving on Hoover Avenue from February of 2011 to September 17, 2011. Thus, the

prosecutor was entitled to question him on that topic and test the credibility of that

statement.      Additionally, Hayes testified on direct that he did not start drinking until

approximately five o’ clock p.m. on September 17, 2011, and that he only consumed two

cans of Sparks alcoholic iced tea. Therefore, the prosecutor was clearly entitled to

question Hayes regarding when he started drinking that day and how much alcohol he

consumed. We also note that while he was being cross-examined regarding when he

started drinking alcohol on the day of the crash, Hayes continually gave vague answers

and kept revising his recollection. Some of his answers were simply unresponsive. It

was therefore, not improper for the State to repeat the question in order to obtain a firm

answer. Moreover, Shayna Harvey testified that she observed Hayes with a beer in his

hand when she saw him at approximately 7:45 p.m. on the night of the crash. Shayna

also testified that he was slurring his speech, mumbling his words and repeating himself

as well immediately prior to the crash. Contrary to Hayes’ claim that he did not start

drinking until 5:00 p.m., Kendall Battle testified that he and Hayes began drinking beer at
                                                                                          -38-


approximately 8:30 to 9:00 a.m. on the morning of September 17, 2011. In light of this

contradictory testimony, Hayes’ testimony regarding when he started drinking and how

much he had to drink on the day of the crash was directly at issue, and the State was

entitled to cross-examine him regarding his recollection of events.

         {¶ 90} Furthermore, the State’s decision to question Hayes regarding whether he

had spoken with his cousin, Rodney Hayes, after the crash but before he testified was

not improper. The State’s questioning in this regard was meant to test the credibility of

Hayes’ and Rodney’s testimony. Moreover, during cross-examination, Hayes was again

vague regarding whether he spoke to Rodney about the crash prior to the trial. We find

no merit to Hayes’ contention that this line of questioning denied him a fair trial.

         {¶ 91} Finally, Hayes argues that the State violated Evid.R. 609 when it inquired

whether he had ever used marijuana in the past. Hayes testified on direct that he had

not smoked marijuana or taken any other mood altering substances on the day of the

crash. However, testing of Hayes’ blood within three hours of the crash established the

presence of marijuana metabolite in his system that exceeded the lower threshold for

intoxication in Ohio.     Therefore, the State was clearly entitled to question Hayes

regarding the last time he used marijuana which was relevant to the issue of whether he

was driving under the influence at the time of the crash. We also note that defense

counsel did not object to the State’s questioning in this regard. In light of these facts, we

cannot say that the State’s inquiries during his cross-examination deprived Hayes of a

fair trial.

         {¶ 92} Hayes’ seventh assignment of error is overruled.

         {¶ 93} Hayes’ eighth assignment of error is as follows:
                                                                                          -39-


       {¶ 94} “THE TRIAL COURT ERRED IN OVERRULING DEFENDANT’S MOTION

FOR ACQUITTAL ON COUNT THREE OF THE INDICTMENT.”

       {¶ 95} In his eighth assignment, Hayes contends that the trial court erred when it

overruled his Crim.R. 29 motion for acquittal with respect to Count III of the indictment.

Specifically, Hayes asserts that the State failed to establish beyond a reasonable doubt

that his blood alcohol level was .17 or greater at the time of the crash, as required

pursuant to R.C. 4511.19(A)(1)(f).

       {¶ 96} “Reviewing the denial of a Crim.R. 29 motion * * * requires an appellate

court to use the same standard as is used to review a sufficiency of the evidence claim.”

State v. Witcher, 6th Dist. Lucas No. L-06-1039, 2007-Ohio-3960. “In reviewing a claim

of insufficient evidence, ‘[t]he relevant inquiry is whether, after reviewing 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.’ ” (Citations omitted).

State v. Crowley, 2d Dist. Clark No. 2007 CA 99, 2008-Ohio-4636, ¶ 12.

       {¶ 97} In the instant case, evidence was adduced that the crash occurred at

approximately 8:45 p.m. on September 17, 2011.          Hayes was taken to the hospital

shortly thereafter. Hayes’ blood was drawn approximately two and one-half hours later

at 11:20 p.m. At that time, it was determined that Hayes’ blood had an alcohol content

of .171, which was the average of two separate test results of .173 and .169.

       {¶ 98} Dr. Laureen Marinetti testified that she used “retrograde extrapolation” in

order to determine the estimated range of what Hayes’ blood alcohol level was at the time

of the crash. Dr. Marinetti testified that assuming that Hayes had stopped drinking and

all of the alcohol he ingested was completely absorbed into his blood, the range of his
                                                                                          -40-


blood alcohol content was .197 to .235. Dr. Marinetti further testified that assuming that

Hayes drank just prior to the crash and all of the alcohol had not yet completely absorbed

into his blood, the range of his blood alcohol content was .134 to .242.

       {¶ 99} Hayes argues that because the minimum range was .134, based on Dr.

Marinetti’s testimony, the State did not present sufficient evidence that his blood alcohol

content was .17 or more at the time of the crash. Dr. Marinetti testified, however, that

Hayes was eliminating the alcohol almost immediately from the time he ingested it.

Moreover, from the time of the crash at 8:45 p.m. until the time of the blood draw at 11:20

p.m., Hayes was obviously not drinking any more alcohol. Therefore, the level of alcohol

in his blood was steadily decreasing during that period of time while his body was

eliminating it. As previously stated, at 11:20 p.m., Hayes’ blood alcohol content was

determined to be .171 after averaging the results of the two alcohol tests that were

performed. Thus, the jury could find that his blood alcohol level was higher than .171 at

the time of the crash.

       {¶ 100} Construing the evidence presented in a light most favorable to the State,

as we must, we conclude that a rational trier of fact could find all of the essential elements

of the crime of OVI, in violation of R.C. 4511.19(A)(1)(f), to have been proven beyond a

reasonable doubt, including that Hayes’ blood alcohol content was higher than .17 at the

time of the accident. Hayes’ conviction for violating R.C. 4511.19(A)(1)(f) is therefore

supported by legally sufficient evidence.

       {¶ 101} Hayes’ eighth assignment of error is overruled.

       {¶ 102} Hayes’ ninth assignment of error is as follows:

       {¶ 103} “THE TRIAL COURT ERRED IN CONDUCTING CRITICAL STAGES OF
                                                                                          -41-


THE PROCEEDINGS IN DEFENDANT’S ABSENCE.”

       {¶ 104} In his ninth assignment, Hayes argues that the trial court committed

structural error by conducting juror challenges and discussing how to respond to a jury

question in chambers while he was not present.

       {¶ 105} “[S]tructural errors are constitutional defects that defy analysis by

harmless error standards because they affect the framework within which the trial

proceeds, rather than simply [being] an error in the trial process itself.” (Quotations

omitted.) State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 17.

Structural errors may be raised for the first time on appeal, and are cause for automatic

reversal, because “[s]uch errors permeate the entire conduct of the trial from beginning

to end so that the trial cannot reliably serve its function as a vehicle for determination of

guilt or innocence.” (Quotations omitted.) Id.

       {¶ 106} The Ohio Supreme Court and the United States Supreme Court have

cautioned against applying a structural-error analysis where, as here, the case would be

otherwise governed by Crim.R. 52(B) because the defendant did not raise the error in the

trial court. See State v. Hill, 92 Ohio St.3d 191, 199, 749 N.E.2d 274 (2001); Johnson v.

United States, 520 U.S. 461, 466, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). “This caution

is born of sound policy. For to hold that an error is structural even when the defendant

does not bring the error to the attention of the trial court would be to encourage defendants

to remain silent at trial only later to raise the error on appeal where the conviction would

be automatically reversed.” Perry at ¶ 23.

       {¶ 107} “Where a party does not object to an error at trial and the error is not a

structural error, a reviewing court ‘may notice only “[p]lain errors or defects affecting
                                                                                           -42-


substantial rights.” Crim.R. 52(B).      Inherent in the rule are three limits placed on

reviewing courts for correcting plain error. “First, there must be an error, i.e., a deviation

from the legal rule. * * * Second, the error must be plain. To be ‘plain’ within the meaning

of Crim.R. 52(B), an error must be an ‘obvious’ defect in the trial proceedings. * * * Third,

the error must have affected ‘substantial rights.’ We have interpreted this aspect of the

rule to mean that the trial court’s error must have affected the outcome of the trial.” State

v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). Courts are to notice plain

error “only to prevent a manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91,

372 N.E.2d 804 (1978), paragraph three of the syllabus.’ State v. Byrd, 2d Dist.

Montgomery No. 22406, 2008-Ohio-5515, at ¶ 37-38. The party asserting plain error

bears the burden of demonstrating it. Id.” State v. Taylor, 2d Dist. Montgomery No.

22564, 2009-Ohio-806, ¶ 20.

       {¶ 108} A criminal defendant has a fundamental right to be present at all critical

stages of his criminal trial. State v. Al-Mosawi, 2d Dist. Montgomery No. 24633, 2012-

Ohio-3385, ¶ 18, citing State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d

864, ¶ 100; Sixth and Fourteenth Amendments to the United States Constitution; Ohio

Constitution, Article I, Section 10. “However, a criminal defendant’s absence ‘does not

necessarily result in prejudicial or constitutional error.’ State v. Davis, 116 Ohio St.3d 404,

2008-Ohio-2, 880 N.E.2d 31, ¶ 90. See also State v. Reed, 10th Dist. No. 09AP-1164,

2010-Ohio-5819, ¶ 13.” State v. Morton, 10th Dist. Franklin No. 10AP-562, 2011-Ohio-

1488, ¶ 18. The presence of a defendant is a condition of due process to the extent that

a fair and just hearing would be thwarted by his absence, and to that extent only. Id.,

citing Davis at ¶ 90 and Snyder v. Massachusetts, 291 U.S. 97, 107-108, 54 S.Ct. 330,
                                                                                        -43-

78 L.Ed. 674 (1934) overruled on other grounds, Mallory v. Hogan, 378 U.S. 1, 2, 84 S.Ct.

1489, 12 L.Ed.2d 653 (1964), fn. 1; see also State v. Morris, 10th Dist. Franklin No. 10AP-

512, 2011-Ohio-5484, ¶ 15. Therefore, a defendant’s absence in violation of Crim.R.

43(A) can constitute harmless error where he suffered no prejudice, even though such

absence was improper. Al-Mosawi at ¶ 18; Morton at ¶ 18; Morris at ¶ 15.

      {¶ 109} Hayes was present in the courtroom during voir dire. However, the judge

and counsel for both parties retired to the judge’s chambers to exercise challenges to the

venire. Defense counsel expressly waived Hayes’ presence at the in-chambers meeting.

Defense counsel informed the trial court that he had discussed the procedure with Hayes,

and he did not want to participate. Thus, Hayes’ presence was properly waived. State

v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶ 144. See United

States v. Gagnon, 470 U.S. 522, 528, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985) (trial court

“need not get an express ‘on the record’ waiver from the defendant for every trial

conference which a defendant may have a right to attend”).

      {¶ 110} Additionally, the record does not affirmatively establish Hayes’ absence

when the trial judge and counsel for both parties discussed the jury question in chambers.

The record must affirmatively indicate the absence of a defendant or his counsel during

a particular stage of the trial. Frazier at ¶ 141. Thus, Hayes’ complaint in this regard

lacks merit. Moreover, the Supreme Court of Ohio has stated that a trial court's written

response to a jury question is not a critical stage of the criminal proceeding, State v.

Campbell, 90 Ohio St.3d 320, 346, 738 N.E.2d 1178 (2000), and a defendant’s

constitutional rights are not violated when he is absent during the conference regarding

the court’s response to the jury questions. Id. (defendant “had no right to be present at
                                                                                         -44-

the legal discussion of how the [jury] question should be answered”); State v. Martin, 2d

Dist. Montgomery No. 22744, 2009-Ohio-5303; State v. Williams, 2d Dist. Miami No. 2004

CA 6, 2004-Ohio-6218, at ¶ 10.

       {¶ 111} Hayes’ ninth assignment of error is overruled.

       {¶ 112} Hayes’ tenth assignment of error is as follows:

       {¶ 113} “THE TRIAL COURT ERRED IN INSTRUCTING THE JURY ON EXPERT

WITNESSES WHEN NO ONE WAS QUALIFIED AS AN EXPERT WITNESS.”

       {¶ 114} In his tenth assignment, Hayes contends that the trial court erred when it

instructed the jury on expert witnesses by failing to properly designate the State’s expert

witnesses as experts after they testified as to their qualifications.

       {¶ 115} Evid.R. 702(B) provides that a witness may qualify as an expert by reason

of his or her specialized knowledge, skill, experience, training, or education. Neither

special education nor certification is necessary to confer expert status upon a witness.

The individual offered as an expert need not have complete knowledge of the field in

question, as long as the knowledge he or she possesses will aid the trier of fact in

performing its fact-finding function. State v. Hartman, 93 Ohio St.3d 274, 285, 754 N.E.2d

1150 (2001).

       {¶ 116} Pursuant to Evid.R. 104(A), the trial court determines whether an individual

qualifies as an expert, and that determination will be overturned only for an abuse of

discretion. Id. Hayes, however, did not object to the State’s failure to formally offer some

of its witnesses as experts, nor did he object to the trial court’s failure to explicitly

determine whether they qualified as experts. Additionally, Hayes did not object to the

trial court’s decision to instruct the jury on expert witnesses. Therefore, Hayes has
                                                                                          -45-

forfeited all but plain error with respect to our review of this assignment of error. State v.

Gamble, 2d Dist. Montgomery No. 25639, 2014-Ohio-1277.

       {¶ 117} For the first time on appeal, Hayes argues that the following State’s

witnesses who testified as experts in their respective fields were neither properly qualified

nor formally tendered as experts: 1) Dr. Uptegrove, the coroner who performed the

autopsy on Harvey; 2) McCoy, as a paramedic; 3) Robert Lotz, as a paramedic; 4) Robert

Reed, as an accident reconstructionist; 5) Jason Ward, as an accident reconstructionist;

6) Ross Melton, as a phlebotomist; 7) Detective Seiter, as an accident reconstructionist;

8) Elizabeth Kiely, as a forensic toxicologist; 9) Brian Simons, as a forensic toxicologist;

10) Dr. Marinetti, as a laboratory director and as an expert on alcohol absorption rates.

       {¶ 118} Upon review, each of the witnesses indicated by Hayes as experts were

thoroughly questioned regarding their individual qualifications regarding the specialized

testimony that they were being asked to provide. Through its questions outlining each

witnesses’ specialized knowledge, skill, training, and education, the State laid a proper

foundation for the witnesses to offer expert testimony.

       {¶ 119} For example, Dr. Uptegrove testified that he had been a forensic

pathologist for approximately fifteen years.      Dr. Uptegrove further testified that he

received a bachelor’s degree from Clemson University and went to medical school at the

Medical University of South Carolina.        Dr. Uptegrove completed his residency in

anatomical and clinical pathology and then completed a fellowship in forensic pathology

at the Charleston County Medical Examiner’s Office in South Carolina. Significantly, Dr.

Uptegrove testified that he had previously testified as an expert witness between 100 and

150 times. Under Evid.R. 702(B), Dr. Uptegrove “qualified as an expert by specialized
                                                                                          -46-


knowledge, skill, experience, training, or education” to testify as a forensic pathologist

regarding Harvey’s cause of death. Based on his qualifications, the State’s failure to

tender him as an expert was of no legal consequence. See State v. Frazier, 115 Ohio

St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶ 127. The same holds true for the other

witnesses who testified at trial in their respective fields. Although it failed to formally

tender any of the other witnesses as experts, the record establishes that the State elicited

sufficient information to qualify them as experts in their respective fields. Therefore, we

find that no plain error occurred.

       {¶ 120} Finally, Hayes argues that the trial court erred when it instructed the jury

on expert witnesses because none of the witnesses were formally tendered as experts.

Specifically, Hayes asserts that “[t]he jury instructions on experts are meaningless if there

is no determination of which witness it applies to.”

       {¶ 121} With respect to expert witnesses, the trial court provided the jury with the

following instruction:

              Now one who follows a profession or special line of work may

       express his or her opinion because of his or her education, knowledge, and

       experience. Such testimony is admitted for whatever assistance it may

       provide to help you arrive at a just verdict. As with other witnesses, upon

       you alone rests the duty of deciding what weight should be given to the

       testimony of experts.

       {¶ 122} The State elicited sufficient testimony from its expert witnesses regarding

their education, knowledge, and experience for the jury to make an accurate

determination regarding which witnesses were offering specialized and technical
                                                                                         -47-


testimony and what weight to afford that testimony. Furthermore, even if the jury was

unable to determine which of the witnesses were testifying as experts, they were

instructed to weigh expert testimony as they would weigh the testimony of lay witnesses

“for whatever assistance it may provide to help [them] arrive at a just verdict.” Thus, any

error in instructing the jury on expert witnesses was harmless.

       {¶ 123} Hayes’ tenth assignment of error is overruled.

       {¶ 124} Hayes’ eleventh assignment of error is as follows:

       {¶ 125} “THE TRIAL COURT ERRED IN FINDING THAT CONSECUTIVE

SENTENCE WAS MANDATORY.”

       {¶ 126} In his eleventh assignment, Hayes argues that the trial court erred when it

ordered that his sentences for aggravated vehicular homicide and OVI be served

consecutively. Specifically, Hayes asserts that the record suggests that the trial court

was under the mistaken belief that consecutive sentences were mandatory pursuant to

R.C. 2929.41(B)(3).

       {¶ 127} In our analysis of the first assignment of error, we concluded that the trial

court’s statements at sentencing did not establish that it mistakenly believed that it was

required to impose consecutive sentences pursuant to R.C. 2929.41(B)(3).            Hayes’

argument in this regard having already been disposed of, his eleventh assignment of error

is overruled.

       {¶ 128} Hayes’ twelfth and final assignment of error is as follows:

       {¶ 129} “THE    CUMULATIVE EFFECT            OF THE        FOREGOING ERRORS

DEPRIVED DEFENDANT OF A FAIR TRIAL.”

       {¶ 130} In regard to Hayes’ cumulative error argument, “separately harmless
                                                                                         -48-


errors may violate a defendant’s right to a fair trial when the errors are considered

together. State v. Madrigal, 87 Ohio St.3d 378, 721 N.E.2d 52 (2000). In order to find

‘cumulative error’ present, we must first find that multiple errors were committed at trial.

Id. at 398, 721 N.E.2d 52. We must then find a reasonable probability that the outcome

of the trial would have been different but for the combination of the separately harmless

errors. State v. Thomas, Clark App. No. 2000-CA-43, 2001-Ohio-1353.” State v. Kelly, 2d

Dist. Greene No. 2004-CA-20, 2005-Ohio-305, ¶ 33. “Where no individual, prejudicial

error has been shown, there can be no cumulative error. State v. Blankenship (1995),

102 Ohio App.3d 534, 557, 657 N.E.2d 559.” State v. Jones, 2d Dist. Montgomery No.

20349, 2005-Ohio-1208, ¶ 66.

       {¶ 131} In light of our foregoing analysis, we have not found multiple instances of

harmless error. Therefore, we find no prejudicial, cumulative error. See State v. McGail,

2015-Ohio-5384, 55 N.E.2d 513 (2d Dist.).

       {¶ 132} Hayes’ twelfth assignment of error is overruled.

       {¶ 133} All of Hayes’ assignments of error having been overruled, the judgment of

the trial court is affirmed.

                                       ..........

HALL, J., concurs.



FROELICH, J., concurring in part and dissenting in part:

       {¶ 134} I write separately to discuss the destruction of the blood samples, the

State’s arguments regarding marijuana metabolites in the blood, and the blood alcohol

concentration evidence.
                                                                                           -49-


                         DESTRUCTION OF BLOOD SAMPLES

       {¶ 135} The blood samples generating the results for alcohol and marijuana

metabolites were destroyed 14 to 15 months after they were obtained and approximately

one month before the indictment. There is no indication in the record that, until the

Appellant was indicted and arrested approximately 16 months after the offense, he was

represented by counsel, knew of any investigation, or even that he was aware of the blood

draws (since he was unconscious at the time).

       {¶ 136} Despite the fact that, once he was charged, the Appellant was unable to

obtain and test/retest the blood samples, the destroyed samples are not “materially

exculpatory” evidence since any exculpatory value was not known or apparent before the

destruction. California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 81 L.Ed.2d 413

(1984). Pursuant to the Youngblood line of cases, the samples were only “potentially

useful,” and the Appellant was required to demonstrate bad faith.

       {¶ 137} This is not to accept the State’s argument that the blood samples were not

exculpatory because they had been tested and were conclusively inculpatory; such a

position assumes that there could have been no error (even with tests of .169 and .173

and a .17 cutoff)2 in the procedures or result and that a defendant should not be able to

“confront” the evidence against him.

       {¶ 138} In certain civil cases, Ohio law distinguishes between bad faith and the

lack of good faith and requires the latter. E.g., West v. Curtis, 7th Dist. Belmont No. 08

BE 28, 2009-Ohio-3050, ¶ 127 (party seeking prejudgment interest must show that other


2 One of the toxicologists testified that a retest of the samples would “never * * * be exactly
the same because there is some variability. But it should be relatively close to the same.”
(Tr. 486.)
                                                                                             -50-


party failed to make good faith effort to settle). Further, in certain other civil actions, there

need not be bad faith or lack of good faith, but, for example, recklessness or “deliberate

indifference.” E.g., Granato v. Davis, 2d Dist. Montgomery No. 26171, 2014-Ohio-5572.

Similarly, if evidence is destroyed when the possibility of a civil suit exists, the tort of

spoliation often shifts the burden to the party that destroyed the evidence. See, e.g.,

State v. McClain, 2016-Ohio-838, __ N.E.3d __, ¶ 25-31 (2d Dist.) (discussing

Youngblood and contrasting its burden of proof with that for spoliation of evidence).

       {¶ 139} It is puzzling why the standards seem more open and amenable to

resolving cases on the merits and all the facts in a civil context as compared to a situation

where a person’s liberty is at stake. However, this is not a question that an intermediate

appellate court can resolve.

       {¶ 140} The MVRCL destroyed the blood samples pursuant to its standard protocol

and two months beyond the minimum preservation time established by the Ohio

Administrative Code. Although it would seem technologically simple for the lab and law

enforcement to communicate regarding the evidentiary value of existing samples and the

status of investigations, there is no indication or even suggestion of bad faith. I therefore

concur in the rejection of Appellant’s assignment of error regarding this issue.

                          MARIJUANA METABOLITE EVIDENCE

       {¶ 141} In the State’s case in chief, a forensic toxicologist was asked, without

objection, about running the “confirmatory test for the presence of THC.”             (Tr. 496)

However, the expert testified that THC “was determined to not be detected,” but the

metabolite for THC was 14 nanograms per milliliter (Tr. 499). The expert also testified

without objection that 14 nanograms was above the legal 5 nanogram “threshold for
                                                                                           -51-


intoxication” in the State of Ohio (Tr. 500), but that he could not testify if that level would

cause intoxication, since “that would be outside [his] scope.” (Tr. 503).

       {¶ 142} With respect to Harvey, whose toxicology screen also revealed the

presence of marijuana metabolite, Dr. Uptegrove (the forensic pathologist who conducted

Harvey’s autopsy) testified that there was nothing to indicate that she had smoked

marijuana on the day of the crash “because the parent compound [was] not present.”

(Tr. 196.) He stated that the presence of a marijuana metabolite would indicate that the

marijuana had been “in her system for a while so I can’t say whether it had been two days

or two weeks.” (Tr. 195-196.)

       {¶ 143} The prosecutor’s opening statement said the Appellant had “marijuana in

his blood” (Tr. 169). The State’s closing, after explaining the blood alcohol level results,

more correctly stated that his “blood contained 14 nanograms of the marijuana

metabolite,” but went on to say that “now the Ohio legislature has determined that if

someone is under the influence and they register an amount of marijuana metabolite over

5 nanograms, they are per se under the influence of that drug. Yet another way this

defendant was under the influence, both alcohol and marijuana at the time of the crash.”

(Tr. 713).

       {¶ 144} The Appellant was charged with violating R.C. 4511.19(A)(1)(f) for the per

se violation of having a blood alcohol level of .17 or above; he was also charged with

violating R.C. 4511.19(A)(1)(a) for driving under the influence of alcohol and/or a drug of

abuse.       He was not charged with violating R.C. 4511.19(A)(1)(j)(vii) or R.C.

4511.19(A)(1)(j)(viii)(I), which are per se violations for marijuana metabolites; these

sections do not require that the vehicle’s operator was impaired, under the influence, or
                                                                                        -52-


intoxicated.

       {¶ 145} Evidence that a person was driving with a prohibited concentration of a

marijuana metabolite in his or her blood does not prove, or even create a presumption,

that the vehicle was being operated under the influence of marijuana, that the person was

impaired, or that the person was intoxicated. The question asked of the witness as to

the threshold for “intoxication” (a word not in the statute) and the argument that someone

who tests over 5 nanograms of the metabolites has been determined by the legislature to

be “under the influence” of marijuana are misstatements of the law.

       {¶ 146} There is insufficient evidence that the Appellant was under the influence

of a drug of abuse (i.e., marijuana), and he was not charged with operating with a

prohibited metabolite level. However, the R.C. 4511.19(A)(1)(a) violation is for operating

under the influence of alcohol and/or a drug of abuse and there was sufficient evidence

of his being under the influence of alcohol to sustain a conviction. The Appellant did not

object to the testimony concerning marijuana, and I would find it to be harmless error

beyond a reasonable doubt.

                                    BAC EVIDENCE

       {¶ 147} The State’s evidence was that two blood samples had an alcohol

concentration of .169 and .173, respectively, averaged to .171, and that there was a range

of Appellant’s blood alcohol level at the time of the crash, based on certain assumptions.

R.C. 4511.19(A)(1)(f) prohibits driving with a certain blood alcohol level, not the average

of two tests or the range of possible blood levels based on assumptions about which little,

if any, evidence was admitted.

       {¶ 148} It was proven beyond a reasonable doubt that Appellant’s blood alcohol
                                                                                       -53-


was over .08, and he could have been found guilty of that lesser offense, had either party

requested that the jury consider such a charge. See R.C. 4511.19(A)(1)(b) (prohibiting

BAC of .08 or more, but less than .17). However, no such request was made, and the

Appellant was not found guilty of violating R.C. 4511.19(A)(1)(b).

      {¶ 149} I would reverse the Appellant’s conviction and sentence for violating R.C.

4511.19(A)(1)(f).    Because the violations of R.C. 4511.19(A)(1)(f) and R.C.

4511.19(A)(1)(a) were merged for sentencing and the Appellant was sentenced on R.C.

4511.19(A)(1)(f), Appellant was not sentenced on R.C. 4511.19(A)(1)(a).          I would

remand for the trial court to sentence Appellant on the guilty verdict for R.C.

4511.19(A)(1)(a).

                                      ..........



Copies mailed to:

Kirsten A. Brandt
Andrew T. French
Darrell L. Heckman
Hon. Dennis J. Adkins
