        [Cite as State v. Rice, 2017-Ohio-9114.]
                IN THE COURT OF APPEALS
            FIRST APPELLATE DISTRICT OF OHIO
                 HAMILTON COUNTY, OHIO



STATE OF OHIO,                                     :   APPEAL NOS. C-160668
                                                                   C-160669
       Plaintiff-Appellant,                        :               C-160670

 vs.                                               :   TRIAL NOS. 15TRC-45123A
                                                                  15TRC-45123B
ANTHONY RICE,                                      :              15TRC-45123D

    Defendant-Appellee.                            :
                                                           O P I N I O N.




Criminal Appeals From: Hamilton County Municipal Court

Judgments Appealed From Are: Affirmed in C-160669 and C-160670; Reversed
                             and Cause Remanded in C-160668

Date of Judgment Entry on Appeal: December 20, 2017


Paula Boggs Muething, City Solicitor, Natalia Harris, City Prosecutor, and
Christopher Lui, Appellate Director, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Joshua A. Thompson,
Assistant Public Defender, for Defendant-Appellant.
                       OHIO FIRST DISTRICT COURT OF APPEALS



M ILLER , Judge.

       {¶1}       Defendant-appellant Anthony Rice appeals the judgments of the

Hamilton County Municipal Court convicting him, after a jury trial, of operating a

vehicle while under the influence of alcohol or drugs (“OVI”), operating a vehicle

with a high-tier prohibited level of alcohol in his breath (“OVI per se breath high tier”

or “OVI per se”), and the reckless operation of a vehicle. In four assignments of

error, Rice argues that the trial court committed prejudicial error by denying his

motion to dismiss the charges based on a due process violation, by denying his

motion to suppress the evidence because the police lacked probable cause to arrest

him for OVI, and by admitting hearsay evidence at trial, and that his convictions

were against the manifest weight of the evidence.

       {¶2}       We find no merit to the assigned errors, but the trial court imposed a

void sentence for the OVI offense. Therefore, we vacate that sentence and remand

the cause in the appeal numbered C-160668 for the trial court to correct the

judgment of conviction. In all other respects, we affirm.

                       I. Background Facts and Procedure

       {¶3}       Rice was involved in a two-car collision on Reading Road in the

Avondale area of Cincinnati on the evening of October 29, 2015. Rice claimed that he

had been driving down the road when another driver, later identified as Jamese

Davis, pulled out in front of him. The investigation by Cincinnati Police Officer

Corey Jones at the scene included the administration of two standardized field

sobriety tests.     Although Rice denied consuming any alcohol, the results of the

investigation indicated that Rice had been impaired by alcohol or drugs at the time of

the crash. Officer Jones arrested Rice for OVI and discovered 28 grams of marijuana

in Rice’s pocket.



                                            2
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶4}    After transporting Rice to the safety of the District Four police station,

Officer Jones administered the standardized horizontal-gaze-nystagmus test. Rice

exhibited four of the six signs of impairment during that test. Officer Jones next

obtained a urine sample from Rice, but later discarded it without testing it after

another officer had administered a timely breathalyzer test.         Rice’s breath test

demonstrated a breath alcohol concentration of more than two times the legal limit

for alcohol. As relevant to these appeals, Officer Jones subsequently charged Rice

with OVI, “OVI per se breath high tier,” and the reckless operation of a vehicle.

       {¶5}    Prior to trial, Rice moved to dismiss the charges on due process

grounds because Officer Jones had discarded the urine sample. Rice also moved to

suppress certain evidence, claiming in part that Officer Jones had lacked probable

cause to arrest him. The trial court denied both motions after a combined pretrial

hearing.

       {¶6}    At trial, the state presented evidence from Rodney White, another

driver who had called 911 to report the accident. Consistent with his 911 call, White

testified that Rice’s black Jaguar had passed him at a very high rate of speed and had

been weaving through traffic and had “fishtailed” before speeding through an

intersection and colliding with the other vehicle. He estimated that when Rice

passed him just before the collision, Rice had been driving more than 80 m.p.h. in a

25 m.p.h. zone. While White saw the impact, he did not see the location of the other

vehicle before the impact.

       {¶7}    Officer Jones testified to his investigation and the signs of alcohol or

drug impairment that he had observed both before and after the arrest.               He

acknowledged that he had not smelled any alcohol on or about Rice until he placed

him in his cruiser. Officer Jones’s testimony was corroborated by the video captured



                                           3
                     OHIO FIRST DISTRICT COURT OF APPEALS



by the camera on his police cruiser. Police Officer James Pike authenticated the

breath-test result that showed Rice’s breath-alcohol content was .171 grams of

alcohol per 210 liters of breath, .001 grams above the high-tier prohibited alcohol

level for breath.

       {¶8}     Although Davis, the other driver involved in the collusion, did not

testify, Officer Jones was permitted to testify, over Rice’s objection, to what she had

told him at the scene. Davis implicated Rice in the accident and speculated that he

had been impaired.

       {¶9}     Rice, testifying in his defense, stated that Davis caused the accident

when she pulled her vehicle out of the Family Dollar parking lot and struck the

passenger side of his vehicle as he drove north on Reading Road. Rice claimed he

had just passed through the light at the intersection and was moving into the passing

lane. The collision pushed his vehicle into the lane of oncoming traffic, causing him

to steer his vehicle across the sidewalk and into a tree. He denied consuming any

alcohol or smoking any marijuana on the day of the accident, and contended that he

was not driving faster than 35 m.p.h. on Reading Road. Further, he claimed that the

collisions deployed his airbags, totaled his vehicle, and left him “discombobulated.”

       {¶10}    The jury found Rice guilty of all charges. The trial court determined

that the OVI offense and OVI per se offense were allied offenses of similar import

that merged under R.C. 2945.25.       The state elected the OVI per se offense for

sentencing, but the trial court imposed sentences on all offenses, including the OVI

offense.




                                          4
                       OHIO FIRST DISTRICT COURT OF APPEALS



                                      II. Analysis

                  A. Motion to Dismiss for Due Process Violation

          {¶11}   In his first assignment of error, Rice contends that the trial court

erred in denying his motion to dismiss the OVI-related charges because the state’s

failure to preserve his urine sample denied him due process of law. Rice argues that

the urine sample was (1) materially exculpatory evidence or, alternatively, (2)

potentially useful evidence.

          {¶12}   The destruction of evidence by officers or agents of the state may

result in a due process violation. Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct.

333, 102 L.Ed.2d 281 (1988); California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528,

81 L.Ed.2d 413 (1984). The test for determining any due process violation depends

on the character of the evidence. State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-

2577, 971 N.E.2d 865, ¶ 73. If the evidence is materially exculpatory, the state’s

destruction of that evidence constitutes a violation of the defendant’s right to due

process. Id. at ¶ 74, citing Trombetta. Evidence is materially exculpatory when it

possesses “ ‘an exculpatory value that was apparent before the evidence was

destroyed, and [is] of such a nature that the defendant would be unable to obtain

comparable evidence by other reasonably available means.’ ” Id., quoting Trombetta

at 489.

          {¶13}   In contrast to circumstances involving materially exculpatory

evidence, the destruction of “potentially useful evidence does not constitute a denial

of due process of law” unless a criminal defendant can show “bad faith on the part of

the police.” Youngblood at 58, cited in Powell at ¶ 76. See Illinois v. Fisher, 540 U.S.

544, 545, 124 S.Ct. 1200, 157 L.Ed.2d 1060 (2004).




                                            5
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶14}    “The defendant bears the burden to show that the evidence was

materially exculpatory.” Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d

865, at ¶ 74. Rice argued below that the urine sample was materially exculpatory,

relying on Officer Jones’s testimony concerning the odor of alcohol and Rice’s denial

of drinking. But Rice has abandoned that argument. He now argues that the urine

sample was materially exculpatory because his breath-test result subjected him to a

higher penalty because it was barely over the high-tier prohibited limit for breath,

the difference between his result and the tier threshold was less than the margin of

error, and a test of his urine may have indicated a result below the high-tier

prohibited limit for alcohol in his urine.

       {¶15}    Rice’s current argument is based on his understanding (but not any

expert testimony) that there is a proportional and evidentiary-relevant relationship

existing between a breath-test result and a urine-test result, both of which are

designed to estimate the blood-alcohol content of a driver. But Rice’s argument fails

for at least two reasons. First, evidence is not materially exculpatory if “no more can

be said [of the evidence than it] could have been subject to tests, the results of which

might have exonerated the defendant.” Youngblood, 488 U.S. at 57, 109 S.Ct. 333,

102 L.Ed.2d 281. At best, the untested urine sample Officer Jones discarded after

obtaining a breath-test result showing a per se violation from a properly functioning

breath-test machine falls within this category. See State v. Doup, 5th District Knox

No. 08CA13, 2009-Ohio-117, ¶ 12. See also Trombetta, 467 U.S. at 489, 104 S.Ct.

2528, 81 L.Ed.2d 413. More likely, the urine sample would have inculpated Rice in

another high-tier drunk driving offense and in driving under the influence of drugs,

as Officer Jones found a quantity of marijuana on him.




                                             6
                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶16}    Second, even assuming that the breath-test result was inaccurate and

the urine sample might have been exculpatory, Rice could have impeached his

breath-test result at trial by raising the margin of error argument without resorting

to any urine-test result. Thus, Rice had an effective and reasonably available

alternative means to demonstrate his innocence. See Trombetta at 490.

       {¶17}    Rice has failed to meet his burden to show that the untested urine

sample was materially exculpatory. Therefore, Officer Jones’s destruction of the

urine sample could not rise to the level of a due process violation absent evidence of

bad faith.

       {¶18}    Courts have held that bad faith in connection with destruction of

potentially useful evidence involves “something more than bad judgment or

negligence,” State v. Acosta, 1st Dist. Hamilton Nos. C-020767, C-020768, C-

020769, C-020770 and C-020771, 2003-Ohio-6503, ¶ 9. Requiring a defendant to

demonstrate bad faith in support of the due process violation “limits the extent of the

police’s obligation to preserve evidence to reasonable bounds and confines it to that

class of cases where the interests of justice most clearly require it, i.e., those cases in

which the police themselves by their conduct indicate that the evidence could form a

basis for exonerating the defendant.” Youngblood, 488 U.S. at 58, 109 S.Ct. 333, 102

L.Ed.2d 281.

       {¶19}    Here, Officer Jones testified to the facts concerning the discarded

urine sample at the hearing on the pretrial motions. He stated that when he arrested

Rice for OVI and transported him to Cincinnati’s District Four police station, no one

was available to administer a breath test at that station. His supervisor then advised

him to obtain a urine sample. Although he was not familiar with the urine sample

collection procedures, Officer Jones obtained the urine sample before learning that



                                            7
                     OHIO FIRST DISTRICT COURT OF APPEALS



he was to transport Rice to the District Five station for a breath test. At the District

Five station, another officer successfully administered a breath test with a result of

.171 grams per 210 liters of breath.

       {¶20}   After returning to the District Four station, Officer Jones discarded

the urine sample without testing it. He stated that he disposed of the urine sample

because he believed it was appropriate to do so after obtaining a breath-test result,

and he was not confident that he had followed the proper procedures in collecting

the urine sample in the first place.

       {¶21}    In his motion to dismiss, Rice did not allege that Officer Jones had

acted in bad faith. But the trial court addressed the issue after rejecting Rice’s claim

that the urine sample was materially exculpatory. After considering the testimony at

the hearing, the trial court found no evidence of bad faith.

       {¶22}   Rice now argues that Officer Jones’s testimony demonstrates bad

faith, but with this record Rice cannot place this case in “that class of cases in which

the police themselves by their conduct indicate that the evidence could form a basis

for exonerating the defendant.” Youngblood, 488 U.S. at 58, 109 S.Ct. 333, 102

L.Ed.2d 281.

       {¶23}   The evidence showed only that Officer Jones did not know what to do

with the untested sample that likely would have further incriminated Rice. Thus, we

conclude that Officer Jones did not act in bad faith when he discarded the urine, and

that the government did not violate Rice’s due process rights.

       {¶24}   In sum, Rice has failed to demonstrate that the trial court erred in

denying his motion to dismiss the OVI-related charges. Accordingly, we overrule the

first assignment of error.




                                           8
                     OHIO FIRST DISTRICT COURT OF APPEALS



            B. Motion to Suppress for Lack of Probable Cause

       {¶25}   In his second assignment of error, Rice contends the trial court erred

in denying his motion to suppress. He maintains that Officer Jones lacked probable

cause to arrest him for OVI. Our review of a motion to suppress presents a mixed

question of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,

797 N.E.2d 71, ¶ 8. First, we must accept the trial court’s findings of fact if they are

supported by competent, credible evidence.        Id.   Next, we must independently

determine whether those facts meet the constitutional standard as a matter of law.

Id.

       {¶26}   The standard for determining if a law enforcement officer had

probable cause to arrest an individual for OVI is whether “at the moment of the

arrest, the police had sufficient information, derived from a reasonably trustworthy

source of facts and circumstances, sufficient to cause a prudent person to believe that

the suspect was driving under the influence.” State v. Homan, 89 Ohio St.3d 421,

427, 732 N.E.2d 952 (2000), quoted in State v. Bryant, 1st Dist. Hamilton No. C-

090546, 2010-Ohio-4474, ¶ 15. This test is objective. Bryant at ¶ 15.

       {¶27}   At the suppression hearing, Officer Jones testified that when he

arrived on the scene of the accident, Rice’s vehicle was crashed into a tree and Rice

was standing outside of it lighting a cigar. He noticed a cut on Rice’s hand that

firefighters had treated. He asked Rice if he wanted to go to the hospital, but Rice

declined. Officer Jones also noticed that Rice, who had admitted to operating his

vehicle, was acting “weird” and “confused,” had bloodshot eyes, was slurring his

speech, and had difficulty producing his driver’s license.       These facts plus the

circumstances of the wreck that left both vehicles “totaled out” led him to suspect

that alcohol may have been involved. He asked Rice to perform two standardized



                                           9
                     OHIO FIRST DISTRICT COURT OF APPEALS



field sobriety tests and administered them in compliance with the National Highway

Transportation and Safety Association (“NHTSA”) requirements. Rice swayed and

lost his balance throughout the walk-and-turn test, including when the officer read

the instructions to him. Rice could not even perform the one-leg-stand test because

he kept dropping his foot. And during the testing, Rice exhibited “crazy behavior”

including “[j]ust not following directions, just doing the same thing over and over

and over again. Real sporatic behavior.” Rice was also fixated on obtaining two

unopened containers of alcohol from his vehicle before it was towed.

       {¶28}   All these facts led Officer Jones to believe that Rice “was very much so

impaired” and to arrest him for OVI, even though Rice denied drinking. Officer

Jones’s testimony was corroborated by the dash cam recording that was admitted

into evidence at the suppression hearing.

       {¶29}   When determining the facts, the trial court accepted Officer Jones’s

testimony, which Rice does not challenge. Instead, Rice argues that probable cause

was lacking because Officer Jones did not observe any overt signs of alcohol or drug

abuse at the time of the arrest, such as the odor of alcohol or drugs, open containers,

or the admission of alcohol consumption. And Rice claims the factors Officer Jones

relied upon were merely indicative of Rice’s involvement in a “severe car accident.”

       {¶30}   The test for determining probable cause to arrest for OVI examines

the collective “facts and circumstances surrounding the arrest,” Homan, 89 Ohio

St.3d at 427, 732 N.E.2d 952, and there is no requirement that an officer smell

alcohol or drugs on or about the person, find an open container of alcohol, or obtain

an admission of consumption. Those are just a few of the many potential facts that,

when considered as a whole, would cause a “prudent person” to believe an OVI

offense has occurred. Here, Officer Jones noted that he had not smelled alcohol or



                                            10
                      OHIO FIRST DISTRICT COURT OF APPEALS



drugs before the arrest, but concluded that probable cause existed in light of the

other circumstances, including the presence of the masking odor from Rice’s cigar.

         {¶31}   Further, Rice’s claim that probable cause could not be based on

symptoms he claims are consistent with his involvement in a car accident is

unfounded. The record demonstrates that Rice’s only injury from the accident was a

hand injury, and Rice declined the officer’s offer to transport him to the hospital.

Thus, there is no basis for us to conclude that Officer Jones should have attributed

Rice’s condition to the collision.     Under the totality of the circumstances, a

reasonably prudent person would believe that Rice’s slurred speech, impaired motor

skills, and erratic behavior were due to intoxication from alcohol or drugs.

         {¶32}   Since there was sufficient evidence for a reasonable belief that Rice

was impaired, the trial court properly determined that Officer Jones had probable

cause to arrest Rice for OVI. Accordingly, we overrule the second assignment of

error.

                  C. Manifest Weight of the Evidence Claim

         {¶33}   Next we address Rice’s fourth assignment of error challenging his

convictions as contrary to the manifest weight of the evidence. Rice was convicted of

OVI in violation of R.C. 4511.19(A)(1)(a) for driving while impaired, OVI per se in

violation of R.C. 4511.19(A)(1)(h) for driving with a breath concentration above .170

grams of alcohol per 210 liters of breath, and reckless operation of a vehicle, in

violation of Cincinnati Municipal Code 506-6, for driving without due regard for the

safety of other persons or property.     As we have already noted, the trial court

imposed a sentence for the OVI offense after determining that the OVI offense and

the OVI per se offense were allied offenses of similar import subject to merger under

R.C. 2941.25. Because the state elected to proceed to sentencing on the OVI per se



                                          11
                     OHIO FIRST DISTRICT COURT OF APPEALS



offense, the sentence for the OVI offense is void, and Rice does not have a valid

conviction for OVI in violation of R.C. 4511.19(A)(1)(a). We tailor our weight of the

evidence review, therefore, to Rice’s two valid convictions.

       {¶34}   To reverse a conviction on the manifest weight of the evidence, a

reviewing court must review the entire record, weigh the evidence and all reasonable

inferences, consider the credibility of witnesses, and conclude that, in resolving the

conflicts in the evidence, the trier of fact clearly lost its way and created a manifest

miscarriage of justice in finding the defendant guilty. State v. Thompkins, 78 Ohio

St.3d 380, 387, 678 N.E.2d 541 (1997).

                        A. OVI Per Se Breath High Tier

       {¶35}   R.C. 4511.19(A)(1)(h) prohibits the operation of a vehicle by an

individual “with a concentration of seventeen-hundredths of one gram or more by

weight of alcohol per two hundred ten liters of the person’s breath.” Rice relies on

Officer Fox’s testimony from the suppression hearing to challenge the guilty verdict

on this count, contending that when the testing deviations are considered, the more

credible evidence supported a finding that he tested no higher than 0.166 grams of

alcohol per 210 liters of breath.      But Officer Fox’s testimony relating to the

calibration testing of the breathalyzer machine was not presented to the jury at trial.

Instead, to diminish the weight of Rice’s high-tier breath-test result, Rice relied on

his testimony that he had not consumed any alcohol before operating his vehicle and

Officer Jones’s testimony acknowledging that the urine sample was discarded. Upon

review, we cannot say that the jury lost its way when it accepted the state’s evidence

demonstrating Rice’s violation of R.C. 4511.19(A)(1)(h).




                                          12
                     OHIO FIRST DISTRICT COURT OF APPEALS



                      B. Reckless Operation of Vehicle

       {¶36}   Cincinnati Municipal Code 506-6, the city’s reckless operation of

vehicle ordinance, prohibits the operation of “a vehicle on any street or highway

without due regard for the safety of persons or property.” Although Cincinnati

Municipal Code 506-6 is titled “Reckless Operation,” the phrase “without due

regard” sets forth a “negligence standard” that requires the operator of a motor

vehicle “to exercise the same degree of care as would a reasonably prudent person

under similar circumstances.” State v. Scully, 1st Dist. Hamilton No. C-990547,

2000 WL 353152 (Apr. 7, 2000).

       {¶37}   White testified that Rice was driving at an excessive speed and in a

dangerous manner just before the collision.     Rice contends that White’s testimony

was not credible and that the evidence demonstrated that the other driver was at

fault for the accident. However, White’s testimony was corroborated by his 911 call.

Moreover, any fault on the part of the other driver did not excuse Rice’s operation of

his vehicle without due regard for the safety of persons or property.

       {¶38}   Ultimately, the weight to be given the evidence and the credibility of

the witnesses are issues primarily for the trier of fact. State v. DeHass, 10 Ohio St.2d

230, 227 N.E.2d 212 (1967), paragraph two of the syllabus. The jury was in the best

position to judge the credibility of the witnesses, and, as with the OVI per se offense,

Rice has not demonstrated that the trier of fact clearly lost its way and created a

manifest miscarriage of justice in finding Rice guilty of the reckless operation

offense. Accordingly, we overrule the fourth assignment of error.




                                          13
                    OHIO FIRST DISTRICT COURT OF APPEALS



                  D. Admission of Challenged Testimony

       {¶39}   Rice’s third assignment of error relates to the trial court’s admission

of Officer Jones’s testimony about what Davis had told him at the scene of the

accident. Rice maintains that this testimony was inadmissible hearsay under Evid.R.

802, and he contends that the admission of this testimony was not harmless.

       {¶40}   Officer Jones was permitted to testify over Rice’s objection that Davis

had told him upon his arrival at the scene that she was already in her lane and that

“the other driver [Rice] must have been either on some drugs or drunk.” Ordinarily,

the hearsay statement of a nontestifying declarant offered to prove the truth of the

matter assert is inadmissible as evidence at trial. See Evid.R. 801(C). The state

argues that Davis’s statements were not offered for the truth of the matter asserted

or, if admitted for the truth, they were admissible under the hearsay exception for

excited utterances. The state argues also that any error in the admission of this

testimony was harmless because it had no effect on the outcome of this case.

       {¶41}   Under the harmless error doctrine, this court may grant a new trial

only upon evidentiary errors that affect a substantial right.    See Crim.R. 52(A).

When engaging in harmless error review, this court “must ascertain (1) whether the

defendant was prejudiced by the error, i.e., whether the error had an impact on the

verdict, (2) whether the error was not harmless beyond a reasonable doubt, and (3)

whether, after the prejudicial evidence is excised, the remaining evidence establishes

the defendant’s guilt beyond a reasonable doubt.” State v. Arnold, 147 Ohio St.3d

138, 2016-Ohio-1595, 62 N.E.3d 153, ¶ 50, citing State v. Harris, 142 Ohio St.3d 211,

2015-Ohio-166, 28 N.E.3d 1256, ¶ 37.

       {¶42}   Assuming the trial court erred as Rice contends, we conclude beyond

any reasonable doubt that Rice was not prejudice by the admission of Officer Jones’s



                                         14
                     OHIO FIRST DISTRICT COURT OF APPEALS



challenged testimony, and the admission of the testimony, even if in error, had no

impact on the verdicts. We also conclude that the remaining evidence admitted at

trial established Rice’s guilt beyond any reasonable doubt. As the state contends, to

find reversible error here would rely upon the untenable suggestion that absent the

challenged testimony, the jury, in finding Rice guilty of the charged offenses, would

have disregarded the high-tier result of a valid breath test, the testimony of

eyewitness White that was corroborated by his 911 call, and Officer Jones’s testimony

that was corroborated by the dash cam video of his investigation.

       {¶43}   Because Rice has failed to demonstrate that the trial court’s

admission of Officer Jones’s testimony resulted in reversible error, we overrule the

third assignment of error.

                                  III. Conclusion

       {¶44}   Upon our review, we affirm Rice’s convictions for the OVI per se

breath offense in the appeal numbered C-160669, and for the reckless operation of a

vehicle offense in the appeal numbered C-160670. Because the trial court imposed a

void sentence for the OVI offense, we vacate that sentence and remand the cause in

the appeal numbered C-160668 for the trial court to correct that judgment of

conviction.
                                                              Judgment accordingly.


M OCK , P.J., and D ETERS , J., concur.


Please note:
       The court has recorded its own entry this date.




                                           15
