[Cite as State v. Fetter, 2013-Ohio-4640.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               AUGLAIZE COUNTY



STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 2-13-12

        v.

BRANDON R. FETTER,                                         OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Auglaize County Common Pleas Court
                           Trial Court No. 2012-CR-141

                                       Judgment Affirmed

                             Date of Decision: October 21, 2013




APPEARANCES:

        S. Mark Weller for Appellant

        R. Andrew Augsburger for Appellee
Case No. 2-13-12


ROGERS, J.

       {¶1} Defendant-Appellant, Brandon Fetter, appeals the judgment of the

Court of Common Pleas of Auglaize County convicting him of aggravated

vehicular homicide and sentencing him to a seven-year prison term. On appeal,

Fetter argues that the trial court improperly excluded evidence that the victim,

Michael Ford, was not wearing a seatbelt at the time of the automobile accident

that took his life. For the reasons that follow, we affirm the trial court’s judgment.

       {¶2} On August 9, 2012, the Auglaize County Grand Jury indicted Fetter

with the following: (1) Count I – aggravated vehicular homicide in violation of

R.C. 2903.06(A)(1)(a), (B)(2)(a), a felony of the second degree; (2) Count II –

operating a vehicle under the influence of alcohol in violation of R.C.

4511.19(A)(1)(a), a misdemeanor of the first degree; and (3) Count III – operating

a motor vehicle under the influence of alcohol in violation of R.C.

4511.19(A)(1)(b), a misdemeanor of the first degree. The indictment arose from a

February 1, 2012 automobile accident on State Route 117 in eastern Auglaize

County. Fetter was driving his automobile northbound around 10:25 p.m. when

his car went into the southbound lane and struck Ford’s vehicle. As a result of the

accident, Ford sustained fatal injuries and subsequently died while Fetter sustained

less serious injuries.




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       {¶3} The trial of this matter commenced on January 7, 2013 and continued

through January 10, 2013. At trial, the following relevant evidence was adduced.

       {¶4} Jeb Sheidler, an off-duty trained paramedic, testified regarding his

treatment of Ford at the accident scene. Sheidler found Ford slumped over the

front seat of the vehicle. When Sheidler first arrived, he felt a carotid pulse, but

after several resuscitation attempts, Ford’s pulse was non-existent before being

placed into an ambulance.

       {¶5} On cross-examination, Sheidler discussed the placement of the

seatbelt in Ford’s automobile:

       Q: Do you know if somebody took his seatbelt off or do you know
       if he was wearing his seatbelt?

       A:    I have no idea.

       Q:    It just wasn’t in place when you got there?

       A:    Correct.

Trial Tr., p. 57.

       {¶6} Cheryl Jerew, the Wayne Township EMS chief, testified regarding her

response to the accident scene. She was involved in removing Fetter from his

automobile. In doing so, Chief Jerew asked Fetter whether he had been drinking

alcoholic beverages before the accident. According to her, Fetter “indicated that

he had been drinking and he had quite a bit to drink.” Id. at p. 67.



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       {¶7} Sergeant John Westerfield of the Ohio State Highway Patrol testified

regarding his response to the accident scene. He indicated that he interviewed

Fetter about the accident.     Sergeant Westerfield generally described Fetter’s

responses during the interview as follows:

       There were a lot of incidents where he couldn’t recall. There was
       some that he could. Basically, he left his uncle’s house, was on
       State Route 117 going to his residence on Fairmount Road. That he
       did make the left turn. He was aware there were headlights coming
       towards him, but there were other questions that I asked that he
       couldn’t recall specifics to.

Id. at p. 76. When asked about the distance of the oncoming headlights, Fetter

told Sergeant Westerfield that “[i]t was either twenty (20) to fifty feet (50’) or

thirty (30) to fifth feet (50’).” Id. at p. 77. Sergeant Westerfield also asked Fetter

whether he had consumed alcoholic beverages before the accident:

       Q:   What was his comment about consuming alcohol?

       A: That he did consume alcohol. I believe he had four (4), he said
       standard size cups of I believe eighty (80) proof rum that was mixed
       with some other Ginger Ale, some other nonalcoholic beverages.

       Q: Did he make any comments to you about being under the
       influence?

       A:   Yes, he did.

       Q:   What did he say?

       A: He said he was slightly buzzed. I don’t know exact wording
       without my statement, but basically that he was slightly buzzed or
       slightly impaired. But, he wasn’t seeing double or things weren’t
       spinning.

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Id.

       {¶8} Sergeant Westerfield explained that he took the statement when Fetter

was receiving treatment in the Lima Memorial Hospital’s emergency department.

At the time, Fetter was strapped onto a backboard with a c-collar around his neck.

Sergeant Westerfield testified that during the course of the interview, he could

smell the odor of alcoholic beverage on Fetter’s breath. After the interview and

recording Fetter’s responses to his questions, Sergeant Westerfield gave Fetter the

opportunity to review his statements. Fetter reviewed the statements and agreed

that they were accurately recorded. Sergeant Westerfield additionally indicated

that he obtained a blood sample with Fetter’s consent from hospital staff at

approximately 1:30 a.m., three hours after the accident.

       {¶9} Mark Hiatt, the laboratory supervisor for the Ohio State Highway

Patrol Crime Lab’s drug chemistry division, testified regarding the tests he

performed on the blood sample collected from Fetter. The tests revealed a blood

alcohol content of 0.155 grams by weight of alcohol per 100 milliliters of whole

blood. Dr. Robert Forney then offered his expert opinion that the results of the

blood tests indicated that Fetter was “significantly impaired by the alcohol in his

system” around the time of the accident. Id. at p. 134. Dr. Forney testified that

the alcohol would particularly affect his depth perception while driving.



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      {¶10} Dr. Thomas Freytag, the Auglaize County Coroner, testified that he

declared Ford dead at the accident scene around 10:50 p.m. He identified the

cause of death as multiple blunt force trauma occurring from the accident.

      {¶11} Sergeant Ed Magoto of the Ohio State Highway Patrol, an accident

scene reconstructionist, testified regarding his investigation of the accident scene

and resultant conclusions. He determined that the accident occurred when Fetter

was turning left onto Fairmount Road.         During the turn, Fetter’s automobile

collided with Ford’s automobile at a 29 degree angle. Sergeant Magoto estimated

that at the time of impact, Fetter’s car was traveling approximately 18 miles per

hour while Ford’s automobile was traveling approximately 43 to 48 miles per

hour. Based on these calculations and observations, Sergeant Magoto testified that

Fetter’s failure to yield the right of way when turning left caused the accident.

After Sergeant Magoto’s testimony, the State rested.

      {¶12} After the State rested, Fetter moved for an acquittal pursuant to

Crim.R. 29. During the course of arguing his position, Fetter’s defense counsel

asserted that the evidence established that Ford was not wearing a seatbelt at the

time of the accident, which broke the causal connection between Fetter’s conduct

and Ford’s death. The trial court denied Fetter’s motion.

      {¶13} The trial court subsequently heard more argument regarding the

introduction of evidence that Ford was not wearing his seatbelt at the time of the


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accident. Based on its consideration of the case, the trial court ordered “that all

evidence concerning the decedent maybe having failed to wear a seat belt restraint

is stricken.” Id. at p. 389. Subsequently, the trial court instructed the jurors as

follows:

       [I]n this case there has been some evidence that the decedent may
       have failed to wear a seatbelt restraint at the time of the crash. Ohio
       Revised Code Section 4513.263(F)(1) specifies that evidence of that
       failure shall not be admissible as evidence in a criminal action with
       one exception that does not apply here. Therefore, you are
       instructed that the court has stricken all evidence concerning that
       matter and you must treat it as though you never heard it and you
       must not consider it for any reason. You are so instructed.

Id. at p. 395-96.

       {¶14} In his defense, Fetter called his uncle, Todd Fetter (“Todd”), who

testified that he did not see Fetter drinking alcoholic beverages on the night of the

accident. Todd also indicated that he did not perceive Fetter to be under the

influence of alcohol before leaving his residence.

       {¶15} Fetter also called Bryce Adams, an expert accident scene

reconstructionist. He concluded that Ford was driving 65 miles per hour before

the accident, which meant that Ford had about 1.6 seconds to react to Fetter’s

vehicle coming into the southbound lane. Adams additionally concluded that Ford

had 38 feet to avoid the collision.

       {¶16} After presenting his evidence, Fetter rested and renewed his Crim.R.

29 motion, which was again denied. The parties then addressed jury instructions.

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Fetter again objected to a jury instruction that precluded consideration of the

evidence relating to Ford’s seatbelt.     The trial court, however, overruled the

objection.

       {¶17} The jury returned guilty verdicts on all three counts alleged in the

indictment. This matter then proceeded to sentencing. At the sentencing hearing

on February 28, 2013, the State elected to proceed with sentencing on the one

count of aggravated vehicular homicide. Meanwhile, the two OVI counts were

merged into the aggravated vehicular homicide count for the purposes of

sentencing. The trial court subsequently sentenced Fetter to a seven-year prison

term. On March 4, 2013, the trial court issued a judgment entry journalizing

Fetter’s conviction and sentence.

       {¶18} Fetter timely appealed this judgment, presenting the following

assignment of error for our review.

                               Assignment of Error

       THE APPELLANT WAS DENIED HIS RIGHT TO PRESENT
       A FULL DEFENSE WHEN THE TRIAL COURT WOULD
       NOT ALLOW HIM TO PRESENT EVIDENCE THAT THE
       VICTIM WAS NOT WEARING A SEATBELT AT THE TIME
       OF THE ACCIDENT.

       {¶19} In his sole assignment of error, Fetter argues that the trial court erred

in precluding him from introducing evidence that Ford was not wearing his seat

belt at the time of the accident. We disagree.


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       {¶20} Although this matter involves the admission of evidence, the

purported admissibility of Ford’s seat belt use is intertwined with the

interpretation and application of R.C. 4513.263(F)(1).        As such, this matter

presents a question of law that we review de novo. E.g., Washington Cty. Home v.

Ohio Dept. of Health, 178 Ohio App.3d 78, 2008-Ohio-4342, ¶ 27 (4th Dist.)

(“The interpretation of a statute involves a purely legal question.       Thus, we

conduct a de novo review of a trial court’s judgment interpreting a statute * * *.”).

When employing a de novo standard of review, we conduct an independent review

of the record and grant no deference to the trial court’s determination. Twigg v.

Trapp, 3d Dist. Seneca No. 13-05-44, 2006-Ohio-3236, ¶ 5.

       {¶21} We have previously noted that the General Assembly “has created

standards for the admissibility of evidence in many instances.” State v. Phipps, 3d

Dist. Auglaize No. 2-03-39, 2004-Ohio-4400, ¶ 12.          One such instance of a

statutorily-created evidentiary rule is found in R.C. 4513.263(F)(1). See State v.

Lucarelli, 11th Dist. Portage No. 2012-P-0065, 2013-Ohio-1606, ¶ 34, fn. 2

(identifying R.C. 4513.263(F) as an example of a legislatively-defined evidentiary

rule); Phipps at ¶ 12, fn. 4 (identifying R.C. 4513.263(F)’s prior version as an

example of a legislatively-defined evidentiary rule); Crum v. Walters, 10th Dist.

Franklin No. 02AP-818, 2003-Ohio-1789, ¶ 15 (“The admissibility of evidence

regarding the use of a seat belt is governed by R.C. 4513.263(F).”). The statute


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provides, in pertinent part, that evidence of an individual’s failure to wear a seat

belt “shall not be admissible as evidence in a criminal action involving the person

other than a prosecution for a violation of this section.” R.C. 4513.263(F)(1).

       {¶22} It is well-established that when the language of a statute is

unambiguous, we need not resort to additional rules of statutory interpretation,

State v. Siferd, 151 Ohio App.3d 103, 2002-Ohio-6801, ¶ 33 (3d Dist.), including

the rule of lenity, State v. Banks, 10th Dist. Franklin No. 11AP-69, 2011-Ohio-

4252, ¶ 15. Rather, when faced with a statute that is plain on its face, we must

merely read the words and phrases in context and give them their usual, normal,

and customary meanings. R.C. 1.42; Proctor v. Kardassilaris, 115 Ohio St.3d 71,

2007-Ohio-4838, ¶ 12.

       {¶23} R.C. 4513.263(F)(1) is plain on its face and it “bars evidence of the

failure to [wear a seatbelt], except for the limited purpose of obtaining a

conviction for [failure to wear a seatbelt].” Phipps at ¶ 12, fn. 4. This matter

involved Fetter’s prosecution for aggravated vehicular homicide and OVI, not

Ford’s prosecution for failure to wear a seatbelt. As a result, R.C. 4513.263(F)(1)

explicitly and unambiguously precludes Fetter from offering evidence that Ford

was not wearing his seatbelt before the crash.

       {¶24} Accordingly, we overrule Fetter’s sole assignment of error.




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       {¶25} Having found no error prejudicial to Fetter in the particulars assigned

and argued, we affirm the trial court’s judgment.

                                                               Judgment Affirmed

WILLAMOWSKI and SHAW, J.J., concur.

/jlr




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