[Cite as State v. Guth, 2016-Ohio-8221.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


STATE OF OHIO,                                  :       OPINION

                 Plaintiff-Appellee,            :
                                                        CASE NO. 2015-P-0083
        - vs -                                  :

BRANDON J. GUTH,                                :

                 Defendant-Appellant.           :


Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2014 CR
0233.

Judgment: Affirmed.


Victor V. Vigluicci, Portage County Prosecutor, and Kristina Reilly, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266. (For Plaintiff-Appellee).

Benjamin R. Sorber, and Thomas M. DiCaudo, DiCaudo, Pritchard & Yoder, LLC, 209
South Main Street, Third Floor, Akron, OH 44308 (For Defendant-Appellant).



THOMAS R. WRIGHT, J.


        {¶1}     Appellant, Brandon J. Guth, appeals his conviction and sentence on three

counts of aggravated vehicular assault, three counts of vehicular assault, and one count

of operating a motor vehicle while intoxicated. He challenges the denial of his motions

in limine regarding the admissibility of “blood test” evidence and imposition of

consecutive prison terms. We affirm.

        {¶2}     On September 30, 2013, appellant was involved in a two-car accident on
Mogadore Road in Brimfield Township, Portage County, Ohio. While travelling south,

appellant drove into the northbound lane to pass a semi tractor-trailer.             Before

completion, he hit a northbound car head-on pushing it off the side of the road.

       {¶3}    A mother and her two adult daughters were in the northbound vehicle.

The daughter driving suffered broken ribs.       The other passengers sustained more

serious injuries. Besides fracturing her back, both legs, and each of her ribs, the mother

suffered a stroke leaving her unable to care for herself. The injuries to the passenger

daughter were so severe that she was unable to care for her newborn child for a year.

       {¶4}    Appellant also suffered serious injuries and was immediately transported

to the Akron General Medical Center for treatment. Since appellant had to be taken into

surgery soon after his arrival, no police officer was able to test him for his blood-alcohol

concentration. However, hospital personnel performed a blood-alcohol screen as part

of his blood work. The results established appellant’s blood-alcohol level at more than

twice the legal limit.

       {¶5}    Six months following the accident, the grand jury returned an eight-count

indictment against appellant.    The indictment sets forth three counts of aggravated

vehicular assault and three counts of vehicular assault. The three aggravated vehicular

assault counts assert an alcohol specification. The indictment also alleges two separate

counts of driving while intoxicated, the first under R.C. 4511.19(A)(1)(a) and the second

under R.C. 4511.19(A)(1)(f).

       {¶6}    One month after arraignment, appellant moved to suppress the results of

the blood test performed at the hospital. As one basis for the motion, he maintained

that the hospital and its personnel were not properly licensed to conduct the test. At the

outset of the motion hearing, the state conceded this point, and the trial court granted

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the motion to suppress. Consequently, the court also granted the state’s motion to

dismiss the second driving while intoxicated charge under R.C. 4511.19(A)(1)(f).

However, the state gave the defense notice that it intended to introduce the blood test

results at trial, along with accompanying expert testimony so the trier of fact could

consider the results in regard to the sole remaining charge of driving while intoxicated

and alcohol specifications.

       {¶7}   Over the next nine months, appellant filed two motions in limine, seeking

an order prohibiting the state from referencing his blood test results at trial.       Both

motions assert inadmissibility in light of the trial court’s suppression decision. Appellant

further contended that, since the blood test was not performed in compliance with the

Ohio Administrative Code, the results were unreliable and the state’s proposed expert

could not remedy this problem. In response, the state asserted that the test results and

expert testimony were admissible under R.C. 4511.19(D)(1)(a). The trial court denied

both motions in limine.

       {¶8}   Following the denial of the second motion, appellant pleaded no contest to

all remaining charges. Thereafter, the trial court found him guilty of all seven charges.

After the presentencing investigation report was completed, a sentencing hearing was

held. Two of the crash victims provided impact statements. The trial court merged the

vehicular assault counts with three accompanying aggravated vehicular assault counts,

and imposed a thirty-six month prison term on each, consecutively for an aggregate

term of nine years. For the separate count of driving while intoxicated, a concurrent ten-

day term was imposed.

       {¶9}   Appellant appeals, assigning the following as error:

       {¶10} “[1.] The trial court erred when it effectively denied Mr. Guth’s motion to

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suppress by denying Mr. Guth’s motion in limine and ruling that the previously

suppressed blood test results would be admissible.

        {¶11} “[2.] The trial court’s imposition of consecutive sentences was contrary to

law.”

        {¶12} Under his first assignment, appellant contends that his motions in limine

should have been granted based on the trial court’s suppression ruling. In response,

the state submits appellant’s no contest plea bars review.

        {¶13} “It is well-settled under Ohio law that the initial ruling of the trial court

before granting a motion in limine is not a final appealable order because such order

does not determine the ultimate admissibility of the evidence. State v. Armstrong, 11th

Dist. Nos 2001-T-0120 and 2002-T-0071, 2004-Ohio-5634, at ¶43. Thus, ‘at trial it is

incumbent upon a defendant, who has been temporarily restricted from introducing

evidence by virtue of a motion in limine, to seek the introduction of the evidence by

proffer or otherwise in order to enable the court to make a final determination as to its

admissibility and to preserve any objection on the record for purposes of appeal.’ State

v. Grubb (1986), 28 Ohio St.3d 199, 28 Ohio B. 285, 503 N.E.2d 142, paragraph two of

the syllabus.

        {¶14} “The Grubb court further noted that ‘a motion in limine, if granted, is a

tentative, interlocutory, precautionary ruling by the trial court reflecting its anticipatory

treatment of the evidentiary issue. In virtually all circumstances finality does not attach

when the motion is granted. Therefore, should circumstances subsequently develop at

trial, the trial court is certainly at liberty “(***) to consider the admissibility of the disputed

evidence in its actual context.” State v. White (1982), 6 Ohio App.3d 1, at 4, 6 Ohio B.

23, 451 N.E.2d 533.’ Grubb at 201-202.” State v. Wojtkiewicz, 11th Dist. Portage No.

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2005-P-0098, 2006-Ohio-6094, ¶19-20.

       {¶15} Although the foregoing quote refers to the granting of the motion in limine

prior to trial, this court has applied the identical legal analysis to the pretrial denial of a

defendant’s motion in limine. See State v. Delarosa, 11th Dist. Portage No. 2003-P-

0129, 2005-Ohio-3399, ¶62. That is, a trial court’s pretrial denial of a motion in limine is

reviewable, and a defendant must raise his objection again during the trial in order to

correctly preserve the issue for appeal. Given this, a no contest plea bars appellate

review.

       {¶16} Under     his   second    assignment,     appellant   raises   two    sentencing

challenges. First, he argues that the information before the trial court at sentencing

hearing was insufficient to warrant consecutive sentences.

       {¶17}    Our consideration of a felony sentence begins with R.C. 2953.08(G)(2).

State v. Grega, 11th Dist. Ashtabula No. 2014-A-0002, 2014-Ohio-5179, ¶10. That

provision states:

       {¶18} “The court hearing an appeal under division (A), (B), or (C) of this section

shall review the record, including the findings underlying the sentence or modification

given by the sentencing court.

       {¶19} “The appellate court may increase, reduce, or otherwise modify a

sentence that is appealed under this section or may vacate the sentence and remand

the matter to the sentencing court for resentencing. The appellate court’s standard for

review is not whether the sentencing court abused its discretion. The appellate court

may take any action authorized by this division if it clearly and convincingly finds either

of the following:

       {¶20} “(a) That the record does not support the sentencing court’s findings under

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division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or

division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;

       {¶21} “(b) That the sentence is otherwise contrary to law.”

       {¶22} The imposition of consecutive prison terms for multiple felony offenses is

governed by R.C. 2929.14(C)(4), one of the five statutory provisions referenced in R.C.

2953.08(G)(2)(a). Accordingly, a trial court’s imposition of consecutive terms will be

affirmed unless this court clearly and convincingly finds that the record fails to support

the trial court’s findings under R.C. 2929.14(C)(4).

       {¶23} “It is important to note ‘that the clear and convincing standard used by

R.C. 2953.08(G)(2) is written in the negative. It does not say that the trial judge must

have clear and convincing evidence to support its findings. Instead, it is the court of

appeals that must clearly and convincingly find that the record does not support the

court’s findings.’ [State v.] Venes, 2013-Ohio-1891, 992 N.E.2d 453, at ¶21. ‘In other

words, the restriction is on the appellate court, not the trial judge. This is an extremely

deferential standard of review.’ Id.” State v. Rodeffer, 2nd Dist. Montgomery Nos.

25574, 25575, and 25576, 2013-Ohio-5759, ¶31.

       {¶24} Pursuant to R.C. 2929.14(C)(4), a trial court “may” sentence the offender

to consecutive prison terms if it finds that: (1) such terms are “necessary to protect the

public from future crime or to punish the offender”; (2) such terms “are not

disproportionate to the seriousness of the offender’s conduct and to the danger the

offender poses to the public”; and (3) one of three enumerated alternatives exist. As to

the third required finding, the trial court in our case found that the last of the three listed

alternatives, as stated in R.C. 2929.14(C)(4)(c), was applicable:

       {¶25} “(c) The offender’s history of criminal conduct demonstrates that

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consecutive sentences are necessary to protect the public from future crime by the

offender.”

       {¶26} In contesting the trial court’s finding on this point, appellant claims there

was nothing before the court showing that he had a history of criminal conduct.

However, the presentence investigation report shows that appellant had four prior

criminal convictions as an adult and one as a juvenile. His adult record included one

third-degree felony for possession of a drug manufacturing chemical, one first-degree

misdemeanor for assault, and two separate misdemeanors for disorderly conduct

involving alcohol. This list is readily sufficient to support the trial court’s finding that the

nature of appellant’s criminal history is such that the imposition of consecutive

sentences is needed to protect society from future crimes. Therefore, appellant’s first

challenge to the propriety of his sentence is not well-taken.

       {¶27} Under his second challenge, appellant argues that his nine-year sentence

cannot stand because the record does not establish that the trial court considered the

purposes and principles of felony sentencing, as delineated in R.C. 2929.11, and the

sentencing factors for seriousness and recidivism, as stated in R.C. 2929.12.

       {¶28} In its final sentencing judgment, the trial court expressly stated that it had

considered the statutory purposes of felony sentencing prior to making its decision. As

to the consideration of the sentencing factors under R.C. 2929.12, this court has noted

recently:

       {¶29} “The Ohio Supreme Court has held that ‘[a] silent record raises the

presumption that a trial court considered the factors contained in R.C. 2929.12.’ State

v. Adams, 37 Ohio St.3d 295, 525 N.E.2d 1361 (1988), paragraph three of the syllabus;

State v. Greitzer, 11th Dist. Portage No. 2006-P-0090, 2007-Ohio-6721, ¶28.                The

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defendant has the burden to present evidence to rebut the presumption that the court

considered the sentencing criteria. State v. Cyrus, 63 Ohio St.3d 164, 166, 586 N.E.2d

94 (1992).    Further, in order to rebut this presumption, ‘a defendant must either

affirmatively show that that the court failed to [consider the statutory factors], or that the

sentence the court imposed is “strikingly inconsistent” with the statutory factors as they

apply to his case.’ [State v. Bigley, 9th Dist. Medina No. 08CA0085, 2009-Ohio-2943],

at ¶14, quoting State v. Rutherford, 2d Dist. Champaign No. 08CA11, 2009-Ohio-2071,

¶34.” State v. Williams, 11th Dist. Lake No. 2014-L-105, 2015-Ohio-5335, ¶20.

       {¶30} In this case, there is nothing in the record to show that the trial court did

not consider the sentencing factors under R.C. 2929.12. Appellant has not raised any

type of argument on that point. Furthermore, the thirty-six month sentence on each of

the aggravated vehicular assault counts is not so strikingly inconsistent with the

statutory factors that the sentence is contrary to law.         Any remorse exhibited by

appellant was readily outweighed by the seriousness of the offenses.

       {¶31} As appellant has failed to demonstrate any error in the trial court’s

sentencing analysis, his second assignment lacks merit.

       {¶32} The judgment of the Portage County Court of Common Pleas is affirmed.



TIMOTHY P. CANNON, J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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