[Cite as State v. Thompson, 2018-Ohio-5308.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                 :   JUDGES:
                                               :
                                               :   Hon. John W. Wise, P.J.
        Plaintiff-Appellee                     :   Hon. Patricia A. Delaney, J.
                                               :   Hon. Earle E. Wise, Jr., J.
 -vs-                                          :
                                               :   Case No. 18CA9
                                               :
 JOHN PAUL THOMPSON                            :
                                               :
                                               :
        Defendant-Appellant                    :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Richland County Court
                                                   of Common Pleas, Case No. 2016 CR
                                                   0534 D



JUDGMENT:                                          AFFIRMED




DATE OF JUDGMENT ENTRY:                            December 24, 2018




APPEARANCES:

 For Plaintiff-Appellee:                           For Defendant-Appellant:

 GARY BISHOP                                       RANDALL E. FRY
 RICHLAND CO. PROSECUTOR                           10 West Newlon Place
 JOSEPH C. SNYDER                                  Mansfield, OH 44902
 38 South Park St.
 Mansfield, OH 44902
Richland County, Case No. 18CA9                                                        2

Delaney, J.

       {¶1} Appellant John Paul Thompson appeals from the January 22, 2018

Sentencing Entry of the Richland County Court of Common Pleas. Appellee is the state

of Ohio.

                         FACTS AND PROCEDURAL HISTORY

       {¶2} On August 23, 2015, Ross Wind had relationship problems with his

girlfriend and called to ask appellant, a long-time friend, to come over to commiserate.

Appellant drove to Wind’s house in his white Silverado pickup truck. The two proceeded

to sit in Wind’s backyard and drink beer. At some point, they left Wind’s house in the

truck to go to a restaurant, where they ordered a pitcher of margaritas.

       {¶3} Ordering the margaritas is Wind’s last memory of that day.

       {¶4} In the meantime, Kelly Potoczny was on her way home from a work event

on Route 13 South in Mansfield. She was driving a Kia Sportage and speaking to her

son on a Bluetooth hands-free speaker. Kelly’s brother, who worked at the same event,

followed her in his own vehicle, a few cars behind in traffic.

       {¶5} Kelly was proceeding on her way after stopping at a light when she became

alarmed to see a white truck “barreling” toward her from the opposite direction. She knew

the truck was about to hit her. Kelly doesn’t remember anything more about the crash,

but awakened to her son screaming “Mom” over the Bluetooth. Her airbags had deployed

and the air was filled with gray smoke. She was trapped in her vehicle by the impact and

responding firefighters and EMTs had to extract her with the “jaws of life.” Kelly was

distraught because she couldn’t feel her legs and panicked when firefighters started
Richland County, Case No. 18CA9                                                            3


breaking the glass of her vehicle to get to her. The first responders allowed her brother

to stay with her on the scene to keep her calm as she was extracted from the vehicle.

       {¶6} Joan Schoenfelt is a home health aide and was driving on South Main on

her way back to her office. She was disturbed to notice a white truck behind her in her

rearview mirror, traveling at a very high rate of speed. Joan stopped and let the truck

pass her. She watched the truck drive by, still at a high rate of speed, and saw it bump

and skid along the road. Joan estimated the truck was traveling 90 m.p.h. She followed

the vehicle from a distance, afraid there would be a fatality because the truck was

proceeding recklessly in a residential area. Joan testified that she was not able to identify

the driver of the white truck; “all [she] saw was black hair.”

       {¶7} Joan made it as far as a BP gas station when she saw smoke and a crash

scene. The white truck was in the middle of the road in front of a pizza shop. A Kia

Sportage was off to the side and people were tending to a woman inside the vehicle.

Joan was the first witness to approach the white truck to check if there was anyone she

could help. She did not see a driver inside the vehicle, and briefly wondered if the driver

had exited the vehicle and fled. She could see a passenger seated inside the vehicle,

head back, not moving.

       {¶8} Joan came around the truck to approach the passenger door but there was

a body lying in the road, by the door, blocking her access. Bystanders came up to move

the person on the ground, but Joan told them not to touch him in case he had a spinal

injury. She didn’t attend further to the person laying in the street but saw the passenger

move his head a little so she knew he was still alive.
Richland County, Case No. 18CA9                                                            4


       {¶9} Kari Gonzalez was sitting on her front porch on South Main Street when

she heard a loud roaring noise approaching from the south, as though a vehicle was

approaching really fast. Kari was concerned because her teenage daughter was walking

home from a nearby Dairy Queen. A white truck came into view, “barreling” past the BP

station and past Kari’s house. The speed limit is 35 m.p.h. but Kari estimated the truck

was traveling 90 m.p.h. She watched as the truck went out of control, swerving to the

right as if to go up over a curb. The driver overcorrected and the truck went left of center,

crashing into the oncoming SUV driven by Kelly Potoczny. Kari called 911 and went to

the scene to offer assistance.

       {¶10} Oliver Cline was driving on South Main and was close to the pizza shop

when he saw a white truck come “flying” around the BP station. Cline saw the truck lose

control and go left of center, striking the Kia SUV and spinning toward Oliver’s vehicle.

Oliver was able to jump the curb and drive his own vehicle onto the sidewalk to avoid a

collision, and the white truck spun past him. Debris from the crash struck Oliver’s vehicle

and he saw a large toolbox fly out of the back of the truck. The flying toolbox struck a

post on a nearby house, splintering it.

       {¶11} When Oliver got out of his car, he saw a man lying beside the passenger

side of the truck within seconds of the impact. Oliver could not identify the driver of the

truck and he could not see inside the truck.

       {¶12} Ptl. Thayne Telquist was the first police officer on the scene of the crash.

He described the scene as “looking like a bomb went off,” chaotic and spread over two

city blocks, with debris and glass scattered everywhere. The debris field included a cooler

and empty beer cans. Bystanders approached him and said people were picking up tools
Richland County, Case No. 18CA9                                                          5


from the street and running off with them, so Telquist secured the scene in preparation

for arrival of crash reconstructionists. The people injured in the crash were being treated

and Telquist did not interfere with treatment. He observed a body lying beside the

passenger side of the truck and noted the rear window of the pickup truck was shattered

and completely broken out.

       {¶13} EMTs advised Telquist that the driver “reeked” of alcohol. Once the crash

scene was secure, Telquist went to the hospital. Appellant was still unconscious and

Telquist could not immediately make contact with him. Ross Wind was in a separate

room in the E.R., also being treated, but he was conscious and alert.

       {¶14} Telquist brought an Ohio State Highway Patrol (OSHP) blood draw kit with

him to the hospital, intending to obtain a sample of appellant’s blood for testing. Daren

Jones, a registered nurse in the emergency room, performed the blood draw in front of

Telquist. Jones drew a smaller sample than usual because appellant had lost blood due

to treatment. Telquist secured the sample and mailed it to the OSHP Crime Lab, where

it was tested by a toxicologist. Appellant’s blood alcohol level was determined to be .182

grams by weight per 100 milliliters of whole blood.

       {¶15} Sgt. Paul Lamadue is a crash reconstructionist with the Mansfield Police

Department. He testified that the driver was ejected from the vehicle through the rear

window. Appellant was the individual found lying beside the truck and he was the only

occupant of the vehicle with lacerations to his head.      Lamadue surmised appellant

sustained these when he was ejected out the rear window of the truck. Lamadue also

testified appellant was not wearing his seat belt.
Richland County, Case No. 18CA9                                                           6


       {¶16} Trooper Adam Topp of the OSHP also investigated the crash. Based upon

his investigation, he determined that the truck was traveling fast on South Main Street.

The truck started to rotate counterclockwise as appellant lost control; the truck was almost

sideways when it struck the Kia Sportage. The truck came up on two wheels during the

crash although it did not roll over. The passenger side of the Silverado struck the Kia,

and the Kia rotated counterclockwise, coming to rest against a curb. Topp testified that

the skid marks left by the Silverado were 235.07 feet, indicating the truck was traveling

extremely fast and made an enormous impact. Topp extracted the “black box” from the

Silverado, which revealed that 5 seconds before the crash, the truck was traveling 82

m.p.h. and the driver was not braking at all; 4 seconds before the crash, the truck traveled

at 81 m.p.h. with no braking; and 3 seconds before the crash, the truck was traveling 66

m.p.h. and the driver activated the brake. The black box also confirmed that the driver

was not restrained, i.e., was not wearing a seat belt. Topp testified that the speed of the

vehicle alone constituted recklessness which created a “substantial risk of death.”

       {¶17} Kelly Potoczny was seriously injured in the crash. Her injuries required

knee surgery and she sustained a fractured spine which could not be surgically corrected.

She missed 16 weeks of work and was still on medication and in physical therapy at the

time of trial. She lost a job that required her to be active because her mobility is limited

as a result of the crash.

       {¶18} Ross Wind was also seriously injured. He awoke in the hospital with a

broken jaw, broken clavicle, and broken ribs. His injuries required surgery on his jaw,

and he has a plate and screw in his jaw and a plate and screw in his shoulder.
Richland County, Case No. 18CA9                                                          7


       {¶19} Appellant was charged by indictment as follows:         Count I, aggravated

vehicular assault pursuant to R.C. 2903.08(A)(1)(a), a felony of the third degree [victim

Kelly Potoczny]; Count II, vehicular assault pursuant to R.C. 2903.08(A)(1)(a), a felony of

the third degree [victim Ross Wind]; Count III, O.V.I. pursuant to R.C. 4511.19(A)(1)(a)

and (G)(1)(a), a misdemeanor of the first degree; and County V, aggravated vehicular

assault pursuant to R.C. 2903.08(A)(2)(b), a felony of the fourth degree [victim Kelly

Potoczny].1

       {¶20} Appellant initially entered pleas of not guilty, but on November 16, 2016, he

changed his pleas to guilty upon Counts I and II, and the remaining counts were

dismissed. The matter was scheduled for sentencing on January 4, 2017.

       {¶21} On December 20, 2016, however, appellant filed a motion to: 1) continue

the sentencing date; 2) “appoint an independent medical examination” (sic); and 3) “to

request to have victim Kelly Jo Potoczny observe the residence of [appellant].”2 Appellee

filed a response in opposition.

       {¶22} On December 29, 2016, a substitution of defense counsel was filed. Also

on that date, new defense counsel filed a motion to withdraw appellant’s guilty pleas. On

January 4, 2017, the trial court overruled appellant’s motion of December 20, 2016.

       {¶23} On February 13, 2017, the trial court granted appellant’s motion to withdraw

his guilty pleas and scheduled the matter for trial by jury. Appellant moved for, and the

trial court granted, a forensic examination of his mental state.



1Count IV, a second count of O.V.I., was dismissed.
2Although not stated in appellant’s motion, appellee’s response and the ruling of the trial
court note this motion was an attempt to obtain mitigating evidence for the sentencing
hearing about appellant’s severe medical conditions and the victim’s position that she
wanted him sentenced to a prison term.
Richland County, Case No. 18CA9                                                              8


       {¶24} On March 16, 2017, by leave of court, appellant filed a motion to suppress

challenging the warrantless blood draw and the procedures used to analyze the blood.

Appellant also argued summarily that there was no reasonable suspicion to investigate

the matter as an O.V.I. An evidentiary hearing was held on May 30, 2017 and July 28,

2017. The hearing largely focused on the blood test and included the testimony of an

O.S.P. Crime Lab criminalist and a defense forensic toxicologist who challenged the

criminalist’s results.

       {¶25} On August 11, 2017, the trial court overruled appellant’s motion to

suppress.

       {¶26} The matter proceeded to trial by jury and appellant was found guilty as

charged upon Counts I, II, III, and V.

       {¶27} On January 2, 2018, appellant filed a motion for new trial pursuant to

Crim.R. 33(A)(2).         Defense trial counsel attached his own affidavit attesting to

circumstances of witness misconduct exacerbated by ex parte communication between

the trial court and the prosecutor. The affidavit stated that an expert witness (Dr. Forney)

testified at trial on December 19, 2017, that he had reviewed appellant’s medical records.

The trial court judge called defense trial counsel the next day, a day on which the trial

was not taking place, regarding a subpoena for medical records. During a telephone

conversation, the trial court told defense trial counsel that the prosecutor spoke to the trial

court about signing a subpoena for appellant’s medical records and this contact was ex

parte with no prior notice to defense trial counsel. Defense trial counsel was provided

with the medical records on December 21, 2017. The affidavit further avers:

                         * * * *.
Richland County, Case No. 18CA9                                                          9


                        10. After discussions off the record, it was agreed that the

             medical records of [appellant] would not be utilized by [appellee] or

             admitted into evidence;

                        11. The actions of [appellee] in obtaining the medical records

             of [appellant] after the expert witness had testified, appeared to be a

             clear indication that [appellee] did not have the record prior to Dr.

             Forney’s testimony and Dr. Forney did not, in fact, review the medical

             records of [appellant] as testified.

                        12.        [Appellee], knowing Dr. Forney’s testimony to be

             untruthful, allowed the testimony of Dr. Forney to go forward.

                        * * * *.

       {¶28} Appellee filed a response in opposition, arguing the issue of requesting the

subpoena from the trial court was administerial and further stating:

             * * * *.

             With respect to [appellant’s] allegation that Dr. Forney’s testimony

             was untruthful, prior to trial, Dr. Forney prepared a report regarding

             [appellant’s] blood alcohol level at the time of the crash. On the cover

             page of that report was a list of items he reviewed in preparing that

             report. That report and cover page were given to [appellant].

             During cross examination, Dr. Forney was asked a series of rapid-

             fire questions requiring him to affirm he reviewed those items. When

             asked if he reviewed defendant’s medical records, though it was not

             on the list, Dr. Forney stated that he had reviewed them. Though
Richland County, Case No. 18CA9                                                         10


              opposing counsel had the report and cover page in hand and a full

              opportunity to inquire further on the matter, he chose not to do so.

              * * * *.

       {¶29} A substitute trial judge heard the argument on the motion for new trial and

sentenced appellant.      Pursuant to Judgment Entry dated January 22, 2018, the

(substitute) trial court overruled the motion for new trial.

       {¶30} Also on January 22, 2018, appellant was sentenced to, e.g., an aggregate

prison term of four years.

       {¶31} Appellant now appeals from the judgment entry of his convictions and

sentence, and from the trial court’s decision overruling his motion for new trial.

       {¶32} Appellant raises two assignments of error:

                                ASSIGNMENTS OF ERROR

       {¶33} “I. THE TRIAL COURT ERRED IN NOT GRANTING THE APPELLANT’S

MOTION FOR A NEW TRIAL PURSUANT TO OHIO CRIMINAL RULE 32(A)(2).”

       {¶34} “II. THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT’S

MOTION TO SUPPRESS.”

                                         ANALYSIS

                                               I.

       {¶35} In his first assignment of error, appellant argues the trial court should have

granted his motion for new trial. We disagree.

       {¶36} Crim.R. 33 governs new trials. A motion for a new trial made pursuant to

Crim.R. 33 is addressed to the sound discretion of the trial court and may not be reversed

unless we find an abuse of discretion. State v. Schiebel, 55 Ohio St.3d 71, 75, 564 N.E.2d
Richland County, Case No. 18CA9                                                            11


54 (1990). An abuse of discretion implies that the trial court's judgment is arbitrary,

unreasonable, or unconscionable. State v. Sage, 31 Ohio St.3d 173, 182, 510 N.E.2d 343

(1987). A new trial should not be granted unless it affirmatively appears from the record

that a defendant was prejudiced by one of the grounds stated in the rule or was thereby

prevented from having a fair trial. State v. Samatar, 152 Ohio App.3d 311, 2003-Ohio-

1639, 787 N.E.2d 691, ¶ 35 (10th Dist.).

       {¶37} In the instant case, appellant moved for a new trial pursuant to Ohio Crim.

R. 33(A)(2), which states, “A new trial may be granted on motion of the defendant for any

of the following causes affecting materially his substantial rights: [m]isconduct of the jury,

prosecuting attorney, or the witnesses for the state[.]” Specifically, the motion was

premised upon 1) an allegation by defense trial counsel that the trial court had an

improper ex parte communication with the prosecutor, and 2) an allegation that one of

appellee’s experts testified untruthfully that he had reviewed appellant’s medical records

when in fact he had not.

       {¶38} Appellant’s argument implies appellee subpoenaed his medical records

mid-trial to “protect” Forney, who had already testified he reviewed the medical records

but (allegedly) could not have done so because appellee had not yet received the medical

records. Further, the trial court was a party to this subterfuge in signing appellee’s

requested subpoena without defense trial counsel’s knowledge.

       {¶39} We note this premise is based entirely upon speculation and is not

supported by any evidence in the record.         Speculation does not establish ex parte

communication has occurred where there is no evidence thereof. See, State v. Johnson,

2nd Dist. No. 04-CA-126, 164 Ohio App.3d 792, 2005-Ohio-6826, 844 N.E.2d 372, ¶ 32;
Richland County, Case No. 18CA9                                                             12

see also, State v. Ismail, 9th Dist. Summit No. 15007, 1991 WL 161351, *2, appeal not

allowed, 62 Ohio St.3d 1494, 583 N.E.2d 966 (1992). The motion for new trial was argued

before a different judge, but no evidence was admitted. The parties agree upon the

essential facts. Forney testified at trial on December 19. On December 20, the prosecutor

asked the trial judge to sign a subpoena for “medical records;” the trial judge called

defense trial counsel but counsel was unavailable; defense trial counsel and the trial

judge later spoke (without the prosecutor), the trial court advised counsel of the

subpoena, and defense trial counsel argued the statute appellee relied upon was

unconstitutional. Ultimately the “medical records” were obtained and disclosed to defense

trial counsel, but were not entered as evidence at trial. Neither the subpoena nor the

medical records obtained are before us. The description of “medical records” is broad

and it is not evident in either party’s argument what “medical records” specifically were at

issue.

         {¶40} Nor is it apparent to us that Forney “testified untruthfully” about reviewing

the “medical records” prior to formulating his expert opinion. Our review of the record

indicates Forney’s testimony was ambiguous about “medical records” and does not

support appellant’s premise that he lied. The ambiguity arises from the same lack of

specificity about what “records” the parties are referring to. When asked on cross

examination whether he reviewed the “records” of appellant, Forney responded, “What I

reviewed is listed here. If there’s something not listed here, then I didn’t review it.” T. IV,

461.     The trial court interjected, asking defense counsel, “Are you talking medical

records?” and counsel responded, “Medical records.” Forney then answered, “No, I
Richland County, Case No. 18CA9                                                            13


received MedCentral Health System records.” He “believed” the records to be appellant’s

but he didn’t recall anything about the content of the records.3 T. IV, 461-462.

       {¶41} Appellant had the opportunity to further challenge Forney’s credibility on

this point and did so. In closing argument, defense trial counsel stated:

                     * * * *. And [Dr. Forney] says yes, John Thompson was under the

              influence. No. The person whosever blood was tested was under the

              influence (sic). That would be fair and impartial and unbiased and non-

              prejudicial. If it was, in fact, Mr. Thompson’s blood that was tested, then

              Mr. Thompson was under the influence.           Okay.    He doesn’t give that

              opinion. So I throw out the question, “Did you review Mr. Thompson’s

              medical records?

                     “Well, yes, I did.”

                     Bull. His report’s in there. It says what records he reviewed. He

              made this whole expert report without reviewing the records. It’s in the

              exhibit. His report’s in here. And his report indicates that he reviewed

              medical records of Kelly Potoczny and Ross Wind, but he didn’t review any

              medical records of John Thompson, yet he told you he did. That’s the length

              that these hired guns will go to so that they can get hired again on more

              cases to come in and testify the way they do. * * * *.

                     T.(V.), 587-588.


3 Forney’s response that he “believed” the records to be those of appellant arose in the
context of the defense theory of misidentification of the driver of the truck, and appellant’s
insinuations that not only was Wind the driver but perhaps the blood sample was drawn
from Wind in the E.R. because of an error Telquist made in his report about the driver
wearing khaki shorts.
Richland County, Case No. 18CA9                                                           14


       {¶42} Whether or not Forney reviewed “records” is not apparent from our review,

but in the context of appellant’s assignment of error, this matter is not the basis for a new

trial. Improper ex parte communications between a party and the trial court potentially

create an appearance of impropriety and partiality that violates the Code of Judicial

Conduct and a criminal defendant's due process rights. State v. Johnson, 164 Ohio

App.3d 792, 2005-Ohio-6826, 844 N.E.2d 372, ¶ 27 (2nd Dist.), citing Disciplinary

Counsel v. O'Neill, 103 Ohio St.3d 204, 2004-Ohio-4704, 815 N.E.2d 286. In State v.

Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, at ¶ 161, the Ohio

Supreme Court noted that the Code of Judicial Conduct, Canon 3(B)(7) specifies, “A

judge shall not initiate, receive, permit, or consider communications made to the judge

outside the presence of the parties or their representatives concerning a pending or

impending proceeding * * *.” Therefore, a trial judge and prosecutor should have known

that ex parte assistance in the preparation of the court's sentencing opinion was “wholly

inconsistent with these vital ethical constraints.” Id., citing Disciplinary Rule 7–110(B)(2)

and (3).

       {¶43} Counsel is also forbidden to communicate ex parte with the trial judge:

                     * * *.

                     (B) In an adversary proceeding, a lawyer shall not communicate, or

              cause another to communicate, as to the merits of the cause with a judge

              or an official before whom the proceeding is pending, except:

                     (1) In the course of official proceedings in the cause.

                     (2) In writing if he promptly delivers a copy of the writing to opposing

              counsel or to the adverse party if he is not represented by a lawyer.
Richland County, Case No. 18CA9                                                       15


                    (3) Orally upon adequate notice to opposing counsel or to the

             adverse party if he is not represented by a lawyer.

                    (4) As otherwise authorized by law.

                    DR 7–110.

      {¶44} In the instant case, appellee argues the conversation with the trial court

about signing a subpoena for “medical records” did not go to the merits of the case.

Based on the record before us, we agree with that characterization and note further that

the trial court called defense trial counsel during the communication, although counsel

was not available for conversation until after the subpoena was signed. We find counsel

was given notice of the communication. In State v. Sanders, 188 Ohio App.3d 452, 2010-

Ohio-3433, 935 N.E.2d 905, at ¶ 19 (10th Dist.), the Tenth District Court of Appeals

examined the nature of an “ex parte communication:”

                    * * * *. When a party complains that his due-process rights

             were violated due to the other party's communication with the trial

             court, the complaining party must first produce some evidence that

             the communication was actually ex parte. See State v. Jenkins, [15

             Ohio St.3d 164, 236-37, 473 N.E.2d 264 (1984)]. An ex parte

             communication has been defined by some courts as an act done

             without notice to an adversely interested party. See Keller v.

             Keller, [4th Dist. Jackson No. 02CA19, 2003-Ohio-6462, ¶ 27, fn. 3],

             citing Black's Law Dictionary (5th Ed.1979); State v. Boddie , [3d

             Dist. Allen No. 1-2000-72, 2001 WL 1023107 (Sept. 6, 2001)], citing

             Black's Law Dictionary (6th Ed.1990) (an action is ex parte when it is
Richland County, Case No. 18CA9                                                         16


             taken or granted at the instance and for the benefit of one party only,

             and without notice to, or contestation by, any person adversely

             interested); Metzger v. Thurman, [4th Dist. Scioto No. 92 CA 2106,

             1993 WL 278495, fn. 5 (July 27, 1993)], citing D'Acquisto v.

             Washington, [640 F.Supp. 594, 621 (N.D.Ill.1986)] (an ex parte

             communication is a communication about a case that an adversary

             makes to the decision maker without notice to an affected party).

             Here, the prosecutor sent a contemporaneous copy of the e-mail it

             sent to the court to appellant's counsel as well. Thus, appellant had

             notice of the communication. Accordingly, pursuant to the definitions

             used in cases like Keller, Boddie, and Metzger, the e-mail sent by

             the prosecutor to the trial court would not be considered ex parte.

             See Keller at ¶ 27, fn. 3 (letter sent from counsel to magistrate was

             not an ex parte communication because counsel gave notice to the

             other party by forwarding a copy to the other party's counsel).

       {¶45} In the instant case, the trial court called defense trial counsel to advise of

the signing of the subpoena. We will not further speculate on the merits of the subpoena

or the purpose for which it was sought. It is undisputed that the records obtained via the

subpoena were provided to appellant, were not used at trial, and were not entered into

evidence by either party.

       {¶46} Appellant has therefore failed to show any prejudicial impact. “Even if an

ex parte communication occurs, the complaining party must still show some prejudicial

impact from the ex parte communication.” Sanders, supra, 2010-Ohio-3433 at ¶ 20, citing
Richland County, Case No. 18CA9                                                         17

State v. Lyons, 11th Dist. Ashtabula No. 2001-A-0056, 2003-Ohio-3494, ¶ 28, reversed

on other grounds in State v. Lyons, 101 Ohio St.3d 94, 2004-Ohio-27, 801 N.E.2d 458

(even if prosecutor's letter to judge was ex parte, the defendant failed to show that any

prejudice occurred as a result of the letter); State v. Hall , 9th Dist. Medina No. 2770-M,

1999 WL 157427 (Mar. 3, 1999), citing Smith v. Flesher , 12 Ohio St.2d 107, 233 N.E.2d

137 (1967), paragraph one of the syllabus (it is fundamental that to demonstrate

reversible error on appeal, one must show not only that an error was committed but also

that the error resulted in prejudice); State v. Mira , 6th Dist. No. H-97-032, 1998 WL

422278    (July   24,   1998)   (appellant   did   not   show any   prejudice   from   the

alleged ex parte communications between the trial judge and her former landlord).

       {¶47} We do not discern, and appellant does not point out, how appellant was

prejudiced by the alleged ex parte communication. The point that appellant wanted to

make—that Forney purportedly did not review his “medical records” before preparing his

report—was made before the jury upon cross examination and in closing argument. We

are unable to find that the communication resulting in the subpoena had any prejudicial

impact. State v. Schillinger, 5th Dist. Stark No. 9492, 1994 WL 728649, *3 [“Our review

of the record leads us to conclude that although there was apparently an ex

parte communication between the prosecutor and the trial court, nevertheless, Appellant

has not demonstrated how that regrettable incident had affected his ability to present an

effective defense.”]; see also, State v. Warwick, 12th Dist. Preble No. CA2017-01-001,

2018-Ohio-139; State v. Brown, 8th Dist. Cuyahoga No. 52757, unreported, 1987 WL

18253.
Richland County, Case No. 18CA9                                                          18


       {¶48} Considering the totality of the circumstances and the entire record, the trial

court's decision overruling the motion for new trial is neither unreasonable, arbitrary, nor

unconscionable, and the trial court did not abuse its discretion.

       {¶49} Appellant’s first assignment of error is therefore overruled.

                                                II.

       {¶50} In his second assignment of error, appellant argues the trial court should

have sustained his motion to suppress on the basis of probable cause to arrest. We

disagree.

       {¶51} Appellate      review    of    a    trial   court's    decision     to   deny

a motion to suppress involves a mixed question of law and fact. State v. Long, 127 Ohio

App.3d 328, 332, 713 N.E.2d 1 (4th Dist.1998). During a suppression hearing, the trial

court assumes the role of trier of fact and, as such, is in the best position to resolve

questions of fact and to evaluate witness credibility. State v. Brooks, 75 Ohio St.3d 148,

154, 661 N.E.2d 1030 (1996). A reviewing court is bound to accept the trial court's findings

of fact if they are supported by competent, credible evidence. State v. Medcalf, 111 Ohio

App.3d 142, 145, 675 N.E.2d 1268 (4th Dist.1996). Accepting these facts as true, the

appellate court must independently determine as a matter of law, without deference to

the trial court's conclusion, whether the trial court's decision meets the applicable legal

standard. State v. Williams, 86 Ohio App.3d 37, 42, 619 N.E.2d 1141 (4th Dist.1993),

overruled on other grounds.

       {¶52} There are three methods of challenging a trial court's ruling on

a motion to suppress on appeal. First, an appellant may challenge the trial court's finding

of fact. In reviewing a challenge of this nature, an appellate court must determine whether
Richland County, Case No. 18CA9                                                            19

the trial court's findings of fact are against the manifest weight of the evidence. See, State

v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486,

597 N.E.2d 1141 (1991). Second, an appellant may argue the trial court failed to apply

the appropriate test or correct law to the findings of fact. In that case, an appellate court

can reverse the trial court for committing an error of law. See, Williams, supra.

       {¶53} Finally, an appellant may argue the trial court has incorrectly decided the

ultimate or final issues raised in a motion to suppress. When reviewing this type of claim,

an appellate court must independently determine, without deference to the trial court's

conclusion, whether the facts meet the appropriate legal standard in any given

case. State v. Curry, 95 Ohio App.3d 93, 96,620 N.E.2d 906 (8th Dist.1994).

       {¶54} In     the     instant    case,     appellant     contends      Telquist    had

no probable cause to arrest him for O.V.I. and further argues summarily that he was not

the subject of a valid arrest which would trigger the provisions of implied consent. We

note that we reviewed a similar argument in State v. Hollis, 5th Dist. Richland No.

12CA34, 2013-Ohio-2586. We will therefore review appellant’s two arguments in reverse.

       {¶55} Appellant implies the blood draw was improper because he was not

“arrested” as he lay unconscious in the emergency room. The Fourth Amendment to the

United States Constitution and Section 14, Article I of the Ohio Constitution prohibit the

government from conducting unreasonable searches and seizures of persons or their

property. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Specifically,

the Fourth Amendment protects persons against unjustified or improper intrusions into a

person's privacy, including bodily intrusion. See State v. Gross, 5th Dist. No. CT 96–055
Richland County, Case No. 18CA9                                                            20

(May 24, 1999), citing Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d

908 (1966).

       {¶56} It is well-established that “searches 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

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

(1967). The United States Supreme Court has recognized that 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.” Winston v. Lee, 470 U.S. 753, 760, 105 S.Ct. 1611, 84 L.Ed.2d 662(1985),

quoting Schmerber, supra, at 768. However, “a suspect, upon request of a police officer,

may voluntarily consent to submit to a blood test to determine the concentration of alcohol

in his or her blood. Such consent constitutes actual consent* * *.” Fairfield v. Regner, 23

Ohio App.3d 79, 85, 491 N.E.2d 333 (12th Dist.1985).

       {¶57} Ohio's statutory implied consent law is found in R.C. 4511.191(A)(2), which

states in pertinent part:

                      Any person who operates a vehicle * * * upon a highway or any

              public or private property used by the public for vehicular travel or

              parking within this state or who is in physical control of a vehicle * * *

              shall be deemed to have given consent to a chemical test or tests of

              the person's whole blood, blood serum or plasma, breath, or urine to

              determine the alcohol, drug of abuse, controlled substance,

              metabolite of a controlled substance, or combination content of the
Richland County, Case No. 18CA9                                                           21

              person's whole blood, blood serum or plasma, breath, or urine 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. (Emphasis added).

       {¶58} Appellant summarily argues in the instant case that he was not “arrested,”

implying that the “implied consent to testing” provisions of R.C. 4511.191 are therefore

not applicable. In State v. Whitt, we reiterated the principle that an arrest occurs when

four elements are present: (1) an intent to arrest, (2) under real or pretended authority,

(3) accompanied by actual or constructive seizure or detention of the person, and (4)

which is so understood by the person arrested. 5th Dist. Licking No. 10–CA–3, 2010–

Ohio–3761 at ¶ 14, citing State v. Darrah, 64 Ohio St.2d 22, 412 N.E.2d 1328 (1980). We

also referenced our decision in State v. Kirschner, 5th Dist. Stark No. 2001 CA00107,

2001–Ohio–1915, for the proposition that “‘a valid arrest must precede the seizure of a

bodily substance, including a blood draw, and must precede an implied consent given

based upon Form 2255.’” Id. at ¶ 18, quoting State v. Rice, 129 Ohio App.3d 91, 98, 717

N.E.2d 351 (7th Dist.1998).

       {¶59} We have also recognized, however, the reality of constructive arrest,

particularly in cases such as the one sub judice in which the subject of the drunken driving

investigation is hospitalized or undergoing treatment and arrest per se is not feasible.

Hollis, supra, at ¶ 25.   That doesn't mean the investigation stops. Id.         In State v.

Groves, 5th Dist. Fairfield No. 10CA18, 2010–Ohio–5089, the driver was hospitalized

when he was questioned by the officer and read the BMV 2255; the driver was never
Richland County, Case No. 18CA9                                                       22


taken into “custody” as such because he was undergoing medical treatment and there

was no time for a citation to be issued. Nevertheless, we found as follows:

                    Despite this court's holding in State v. Kirschner, [5th Dist.]

             No.2001CA00107, 2001–Ohio–1915, the administrative regulations

             in the case sub judice were fulfilled. Appellant was told he was under

             arrest. A citation would have been issued at the hospital but for

             appellant's medical emergency. To disallow the results of the blood

             draw because of the intervening urgent circumstances would place

             form over substance. The purpose of the mandatory language of the

             implied consent law is to inform the suspect of his various rights

             under 4511.191 and the administrative license provisions for non-

             consent. The language contained in the BMV 2250 form was

             sufficient to establish an “arrest.”

                    State v. Groves, 5th Dist. Fairfield No. 10CA18, 2010–Ohio–

             5089, ¶ 19.

      {¶60} We find Telquist’s request for the blood draw in the E.R. contemporaneous

with appellant’s constructive arrest complied with R.C. 4511.191(A)(2) and is reasonable

under the Fourth Amendment. See, Hollis, supra, at ¶ 28; State v. May, 5th Dist. Morrow

No.2010CA1, 2010–Ohio–4594, ¶ 22, appeal not allowed, 127 Ohio St.3d 1547, 2011–

Ohio–647, 941 N.E.2d 803.

      {¶61} Appellant further argues, though, that no probable cause existed to arrest

him for O.V.I., and we disagree. A police officer has probable cause for an arrest if the

facts and circumstances within his knowledge are sufficient to cause a reasonably
Richland County, Case No. 18CA9                                                         23

prudent person to believe that the defendant has committed the offense. State v.

Cummings, 5th Dist. Stark No.2005–CA–00295, 2006–Ohio–2431, ¶ 15, citing State v.

Heston, 29 Ohio St.2d 152, 280 N.E.2d 376 (1972). In making this determination, the trial

court must examine the totality of facts and circumstances surrounding the arrest.

See State v. Miller, 117 Ohio App.3d 750, 761, 691 N.E.2d 703 (11th Dist.1997); State v.

Brandenburg, 41 Ohio App.3d 109, 111, 534 N.E.2d 906 (2nd Dist.1987). When

evaluating probable cause to arrest for OVI, the totality of the facts and circumstances

can support a finding of probable cause to arrest even where no field sobriety tests were

administered. See State v. Homan, 89 Ohio St.3d 421, 427, 732 N.E.2d 952 (2000).

Furthermore, a police officer does not have to observe poor driving performance in order

to effect an arrest for driving under the influence of alcohol if all the facts and

circumstances lead to the conclusion that the driver was impaired. See State v.

Harrop, 5th Dist. Muskingum No. CT2000–0026, 2001 WL 815538 (July 2, 2001),

citing Atwell v. State, 35 Ohio App.2d 221, 301 N.E.2d 709 (8th Dist.1973).

       {¶62} As in Hollis, the egregious facts and circumstances of the instant case are

replete with probable cause for appellant's constructive arrest for O.V.I. The

uncontroverted evidence established appellant and Wind drank together for hours. The

circumstances of the crash, which include appellant losing control at a high rate of speed,

combined with the alcoholic beverage containers and a cooler scattered throughout the

scene, plus appellant “reeking” of the odor of alcohol when he was treated by EMTs,

constitute probable cause.

       {¶63} Appellant’s second assignment of error is overruled.

                                     CONCLUSION
Richland County, Case No. 18CA9                                                     24


       {¶64} Appellant’s two assignments of error are overruled and the judgment of the

Richland County Court of Common Pleas is affirmed.

By: Delaney, J.,

Wise, John, P.J. and

Wise, Earle, J., concur.
