        [Cite as State v. Williams, 2020-Ohio-1367.]

                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                           HAMILTON COUNTY, OHIO




STATE OF OHIO,                                    :    APPEAL NO. C-180574
                                                       TRIAL NO. B-1600122
     Plaintiff-Appellee,                          :
                                                          O P I N I O N.
  vs.                                             :

JAMES WILLIAMS,                                   :

     Defendant-Appellant.                         :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: April 8, 2020



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant
Prosecuting Attorney, for Plaintiff-Appellee,

The Law Office of John D. Hill, LLC, and John D. Hill, for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS




MYERS, Judge.

       {¶1}    Defendant-appellant James Williams appeals the trial court’s

judgment convicting him of aggravated vehicular homicide in violation of R.C.

2903.06(A)(1)(a).

       {¶2}   In four assignments of error, Williams argues that the trial court erred

in denying his motion for a mistrial, that the trial court improperly admitted

evidence and testimony concerning the presence of alcohol and drugs in his body,

that his conviction was against the manifest weight of the evidence, and that the

cumulative effect of the errors that occurred during trial deprived him of a fair trial.

Finding no merit to Williams’s arguments, we affirm the trial court’s judgment.

                         Factual and Procedural Background


       {¶3}   On June 22, 2015, a single vehicle automobile accident occurred when

a vehicle registered to Williams traveling on Ronald Reagan Cross County Highway

entered the median, where it struck a guard rail and went airborne. The vehicle

traveled down an embankment, somersaulted across Caldwell Road, and came to rest

on its passenger side.     Jaytwan Smith was ejected from the vehicle and was

pronounced dead at the scene. Williams was found in the front passenger seat of the

vehicle, lying against the window with his back and head against the glovebox.

       {¶4}   Williams was charged with aggravated vehicular homicide in violation

of R.C. 2903.06(A)(1)(a) (for causing the death of another while operating a motor

vehicle while committing a violation of R.C. 4511.19(A)), aggravated vehicular

homicide in violation of R.C. 2903.06(A)(2)(a) (for causing the death of another

while operating a motor vehicle recklessly), operating a vehicle under the influence



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of alcohol or drugs in violation of R.C. 4511.19(A)(1)(a), and operating a vehicle with

a prohibited concentration of alcohol in his blood in violation of R.C.

4511.19(A)(1)(f).

       {¶5}    Williams filed a motion to suppress certain statements that he made

after the accident before his Miranda rights had been read to him. He also sought to

suppress a blood-alcohol test, arguing that his blood had not been drawn in

compliance with the relevant Ohio Administrative Code regulations. Following a

hearing on the motion to suppress, the trial court denied the motion with respect to

statements made by Williams after the accident, but it granted the motion with

respect to the blood-alcohol test. As a result of the trial court’s ruling, the state

dismissed the charge for operating a vehicle with a prohibited concentration of

alcohol in his blood in violation of R.C. 4511.19(A)(1)(f).

       {¶6}    Williams additionally filed a motion in limine. As relevant to this

appeal, the motion sought to prevent not only the admission of the concentration

levels of alcohol and drugs found in his urine and blood, but the admission of any

evidence that his blood and urine tests showed the presence of drugs or alcohol to

prove the remaining charges. The hearing on the motion in limine was held before a

visiting judge. Both Williams and the state agreed that, based on the trial court’s

ruling on the motion to suppress, the results of the blood-alcohol test were not

admissible to prove the per se driving under the influence violation. But the state

argued that its expert witness, who had reviewed Williams’s medical records, was

permitted under R.C. 4511.19(D)(1)(a) to testify that Williams was under the

influence and appreciably impaired based on his blood-alcohol level and the fact that

he tested presumptively positive for cocaine and a marijuana metabolite. The trial




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court ruled that it would allow the state’s expert “to testify to the fact that there was

alcohol, drugs, or whatever else, in the Defendant’s blood sample, but not the

numerical conclusion.” It further ordered that the numerical blood-alcohol test

result be redacted from Williams’s medical records.

       {¶7}   Williams was tried before a jury on the remaining charges. During

trial, the state presented testimony from several witnesses whom Williams had told

that he was driving the vehicle when the accident occurred. Springfield Township

firefighter and paramedic Alex Villanueva testified that he had responded to the

automobile accident, treated Williams on the scene, and transported him to the

hospital. Villanueva admitted that he was unaware if Williams had suffered a brain

injury, but he described Williams’s level of consciousness as “alert and oriented.”

Williams told Villanueva that he had been driving the vehicle and that he had not

been wearing a seatbelt. He also denied having consumed alcohol or taken drugs,

and Villanueva did not smell an odor of alcohol on Williams’s person.

       {¶8}   Federal Bureau of Investigation Agent Patricia Fuller testified that she

had been a Springfield Township Police Officer at the time of the accident and had

investigated the crash involving Williams. Agent Fuller spoke with Williams at the

hospital, and after initially stating that he did not remember what had happened,

Williams twice told her that he had been driving the vehicle when the crash occurred.

Williams also told Agent Fuller that Brian Harris had been the vehicle’s other

passenger. Agent Fuller detected an odor of alcohol on Williams. Williams appeared

to understand her questions, but Agent Fuller testified that she was unaware if

Williams had suffered a traumatic brain injury in the accident. Williams asked to

cease their conversation because he was groggy, but before she left the hospital,




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Agent Fuller overheard Williams verify to a female companion that he had been

driving at the time of the accident.

       {¶9}   Smith’s mother, Stephanie Frazier Taylor, spoke with Williams at the

hospital the day after the accident. Frazier Taylor asked Williams if he had driven

drunk and killed her son, and he responded “yes.” Williams then apologized and

stated that he could not remember what had actually happened during the accident.

Williams appeared alert and had answered questions appropriately.

       {¶10} Stephanie Jones Taylor, Williams’s girlfriend at the time of the

accident, testified that she visited Williams in the hospital after learning of the

accident. She stated that Williams was hysterical, and when asked if he had been

awake, stated that he was “in and out.” Williams initially told Jones Taylor that he

had been driving the vehicle during the accident, but later made inconsistent

statements to her about his role in the accident and would go “back and forth” as to

whether or not he had been driving.

       {¶11} Jones Taylor testified that less than a week after the automobile

accident, she suffered a stroke. She acknowledged that she had suffered some short-

term memory loss after the stroke, but stated that she had not experienced any

memory loss regarding Williams’s accident. During her testimony, Jones Taylor

stated that Williams’s biggest fear was that “he didn’t want to go back to the

penitentiary because he would disappoint his family.” Defense counsel immediately

objected and moved for a mistrial. The trial court denied the motion for a mistrial

and instructed the state to inform the witness not to make any reference to Williams

having been previously incarcerated.




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       {¶12} Former Springfield Township Police Officer Tom Prichard, who had

investigated the automobile accident, testified that the vehicle involved in the

accident was registered to Williams. Officer Prichard described the path that the

vehicle had traveled during the accident. He testified that Williams was found lying

on the front-passenger window of the vehicle, with his back and head up against the

glove box. He also identified for the jury where Smith’s body was found after it had

been ejected from the vehicle. Officer Prichard testified that he had spoken to

Williams at the hospital a few days after the accident.         At the time of their

conversation, Williams was in the Intensive Care Unit, but appeared to be coherent.

Williams denied driving the vehicle at the time of the accident, and told Officer

Prichard that someone named “J-Tone” had been the vehicle’s other occupant. He

also stated that he had been out at a bar with Smith prior to the accident.

       {¶13} Officer Prichard discussed the accident report that he had prepared.

The report noted that excess speed and the presence of alcohol were contributing

factors to the crash. It additionally stated that cocaine and marijuana were found in

Williams’s system, but it did not specify any specific amount of those drugs and it

noted that the results of those tests were unconfirmed.

       {¶14} DNA testing was conducted on multiple items obtained from

Williams’s car. Tracy Sundermeier, a serologist in the Hamilton County Coroner’s

Laboratory, testified that she had tested the vehicle’s driver airbag and obtained a

mixed DNA profile from it that consisted of a major profile and two minor profiles.

She determined that Williams was the source of the major DNA profile, and excluded

Smith as a donor to that profile. Sundermeier was also able to obtain a DNA profile




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from a blood stain on the front-passenger airbag. That profile also matched Williams

and excluded Smith as a donor.

       {¶15} Robert Topmiller, Chief of Toxicology in the Hamilton County

Coroner’s Laboratory, testified as an expert for the state. Topmiller had examined

Williams’s medical records, specifically looking at the toxicology testing that had

been done at the hospital. He testified that the records established that alcohol was

present in Williams’s blood serum and that Williams’s urine screen was

presumptively positive for cocaine and THC, which he explained was the main active

ingredient in marijuana. Topmiller then discussed the potential effect that these

substances can have on a person.

       {¶16} George Jerome Shaw, III, an attending physician at the University of

Cincinnati Medical Center, testified as an expert for Williams. Shaw testified that

Williams had suffered a traumatic brain injury in the accident. This diagnosis was

based on the results of a CT scan and the results of a neurobehavioral cognitive

status examination, which showed mild to moderate impairment in Williams’s

neurologic function. Shaw noted that Williams’s medical records indicated that he

was unable to provide any additional history of the incident due to intoxication, and

he testified that Williams’s inability to provide this information could have been the

result of the traumatic brain injury rather than intoxication. He further questioned

the reliability of Williams’s memory of the accident.

       {¶17} The jury returned guilty verdicts on all counts. At sentencing, the trial

court merged the offenses of aggravated vehicular homicide in violation of R.C.

2903.06(A)(2)(a) and operating a motor vehicle under the influence of alcohol or

drugs in violation of R.C. 4511.19(A)(1)(a) into the offense of aggravated vehicular




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homicide in violation of R.C. 2903.06(A)(1)(a), and it imposed a sentence of 8 years

in prison.

                                Motion for a Mistrial


       {¶18} In his first assignment of error, Williams argues that the trial court

erred in denying his motion for a mistrial after Jones Taylor testified that he had

previously been to the penitentiary.

       {¶19} We review the trial court’s ruling on a motion for a mistrial for an

abuse of discretion. State v. Jones, 1st Dist. Hamilton No. C-180091, 2019-Ohio-

4862, ¶ 74. A mistrial should only be granted when a fair trial is no longer possible,

and not solely because an error or irregularity in the proceeding has occurred. Id.

An abuse of discretion connotes more than an error of law or of judgment, and

indicates an unreasonable, arbitrary, or unconscionable attitude by the trial court.

Pembaur v. Leis, 1 Ohio St.3d 89, 91, 437 N.E.2d 1199 (1982).

       {¶20} In response to a question from the prosecutor as to whether she and

Williams had any additional conversations about the accident after a certain point in

time, Jones Taylor testified that Williams had stated that his biggest fear was that

“he didn’t want to go back to the penitentiary because he would disappoint his

family.” Defense counsel immediately objected and moved for a mistrial, arguing

that Williams could not be rehabilitated in the eyes of the jury, which would now

presume that he had a criminal record.

       {¶21} Testimony that Williams had previously served time in a penitentiary

would be impermissible other-acts evidence under Evid.R. 404(B). But the state did

not directly ask Jones Taylor a question about Williams’s criminal history or prior

incarceration. Rather, the testimony was volunteered by the witness in response to



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                     OHIO FIRST DISTRICT COURT OF APPEALS



the state’s question regarding conversations between Jones Taylor and Williams

about the accident. Other than this brief reference from Jones Taylor, the jury heard

no testimony about Williams’s prior record and was unaware of what offense he had

committed. We cannot find that this isolated, vague statement from Jones Taylor

deprived Williams of a fair trial. See State v. Daniels, 1st Dist. Hamilton Nos. C-

950347 and C-950348, 1996 WL 72277, *2 (Feb. 21, 1996).

       {¶22} The trial court did not abuse its discretion in denying Williams’s

motion for a mistrial. The first assignment of error is overruled.

              Admission of Evidence Concerning Alcohol and Drugs


       {¶23} In his second assignment of error, Williams argues that the trial court

erred in admitting testimony and evidence concerning the presence of alcohol,

cocaine, and THC in his blood and urine. We review the trial court’s admission of

evidence for an abuse of discretion. State v. Jones, 1st Dist. Hamilton No. C-170647,

2020-Ohio-281, ¶ 30; State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987),

paragraph two of the syllabus.

       {¶24} Williams     acknowledges     that   the   trial   court   prohibited   the

concentration levels found in his urine and blood from being admitted into evidence,

but argues that it was error to allow Officer Prichard and Topmiller to testify that

alcohol, cocaine, and marijuana had been in his system because the chemical tests of

his bodily substances were not conducted in compliance with the relevant Ohio

Administrative Code regulations.

       {¶25} In support of his argument, Williams relies on State v. Mayl, 106 Ohio

St.3d 207, 2005-Ohio-4629, 833 N.E.2d 1216 (2005). In Mayl, the Ohio Supreme

Court held that “[w]hen results of blood-alcohol tests are challenged in an



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aggravated-vehicular-homicide prosecution that depends upon proof of an R.C.

4511.19(A) violation, the state must show substantial compliance with R.C.

4511.19(D)(1) and Ohio Adm.Code Chapter 3701-53 before the test results are

admissible.” Id. at paragraph one of the syllabus. Williams argues that under Mayl,

any testimony that alcohol and drugs were found in his system was not admissible

because the state never demonstrated that the blood and urine tests were conducted

in substantial compliance with the Ohio Revised and Administrative Code

provisions.

       {¶26} In Mayl, the court relied on R.C. 4511.19(D)(1) to reach its

determination.   R.C. 4511.19(D)(1) has been amended subsequent to the Mayl

decision. It now includes the following language:

       In any criminal prosecution or juvenile court proceeding for a violation

       of division (A)(1)(a) of this section or for an equivalent offense that is

       vehicle-related, the result of any test of any blood or urine withdrawn

       and analyzed at any health care provider, as defined in section 2317.02

       of the Revised Code, may be admitted with expert testimony to be

       considered with any other relevant and competent evidence in

       determining the guilt or innocence of the defendant.

R.C. 4511.19(D)(1)(a).

       {¶27} In State v. Davenport, 12th Dist. Fayette No. CA208-01-011, 2009-

Ohio-557, the court analyzed amended R.C. 4511.19(D)(1)(a). It considered whether

the results of a blood-alcohol test that had not been conducted in substantial

compliance with the relevant Ohio Administrative Code regulations were admissible

in a prosecution for operating a vehicle under the influence of alcohol in violation of




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R.C. 4511.19(A)(1)(a) and for aggravated vehicular homicide in violation of R.C.

2903.06(A)(1)(a). The Davenport court held that:

      [T]he General Assembly, by passing Am.Sub.H.B. No. 461 which

      enacted R.C. 4511.19(D)(1)(a), chose to create a distinction between

      prosecutions for “per se” and “under the influence” violations in regard

      to the use of blood-alcohol test results. Therefore, we find that the

      General Assembly’s passage of Am.Sub. H.B. No. 461 was made in

      direct response to Mayl and created a distinction between “per se”

      violations and the general “under the influence” violation not found in

      the former R.C. 4511.19(D)(1).

                                       *    *   *

      By applying the plain language of R.C. 4511.19(D)(1)(a), we hold that

      the results of “any test of any blood ” may be admitted with expert

      testimony and considered with any other relevant and competent

      evidence in order to determine the guilt or innocence of the defendant

      for   purposes    of   establishing       a    violation   of   division R.C.

      4511.19(A)(1)(a), or “an equivalent offense,” including aggravated

      vehicular homicide in violation of R.C. 2903.06(A)(1)(a), so long as the

      blood was withdrawn and analyzed at a “health care provider” as

      defined by R.C. 2317.12. (Emphasis added.) Accordingly, appellant’s

      arguments, pursuant to R.C. 4511.19(D)(1)(b), and in regard to the

      state’s failure to demonstrate substantial compliance with ODH

      regulations due to the lack of an established chain of custody and the




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       preservation and labeling of his blood sample, are no longer

       applicable.

Id. at ¶ 15-16.

       {¶28} Several of our other sister districts have reached similar conclusions.

In State v. Bugg, 9th Dist. Medina No. 17CA0087-M, 2018-Ohio-2544, ¶ 12, which

involved a prosecution for aggravated vehicular homicide, the court held that under

amended R.C. 4511.19(D)(1)(a), “substantial compliance with Ohio Adm.Code

Chapter 3701-53 is no longer required for admissibility purposes if the defendant’s

blood is drawn and analyzed by a health care provider, and is accompanied by expert

testimony.” And in State v. Persinger, 2016-Ohio-858, 60 N.E.3d 831, ¶ 18 (3d

Dist.), the court determined that R.C. 4511.19(D)(1)(a) was enacted in response to the

Ohio Supreme Court’s decision in Mayl. The defendant in Persinger had been

charged with multiple offenses, including aggravated vehicular homicide and

operating a vehicle while under the influence. The court held that the state did not

need to demonstrate substantial compliance with Ohio Administrative Code

regulations before admitting the defendant’s blood-alcohol content to establish a

violation of R.C. 4511.19(A)(1)(a). Id. at ¶ 19.

       {¶29} We agree with our sister districts’ interpretation of amended R.C.

4511.19(D)(1)(a).    Williams was charged with aggravated vehicular homicide in

violation of R.C. 2903.06(A)(1)(a) and operating a vehicle under the influence of

alcohol or drugs in violation of R.C. 4511.19(A)(1)(a). Under the plain language of

R.C. 4511.19(D)(1)(a), the state was not required to show substantial compliance with

the Administrative Code regulations before the results of Williams’s blood and urine

tests could be admitted as evidence of his guilt to prove these offenses, as long as the




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other requirements in R.C. 4511.19(D)(1)(a) were met. See Bugg at ¶ 12. And here,

the concentration levels of alcohol and drugs found in Williams’s blood and urine

were never even admitted into evidence. The trial court only allowed evidence that

alcohol, cocaine, and THC had been found in Williams’s system, and this was

accompanied by expert testimony.

          {¶30} The trial court did not abuse its discretion in allowing testimony and

evidence concerning the presence of alcohol, cocaine, and THC in Williams’s bodily

substances. Williams’s second assignment of error is overruled.

                            Manifest Weight of the Evidence


          {¶31} In his third assignment of error, Williams argues that his convictions

for aggravated vehicular homicide and driving under the influence of alcohol or

drugs were contrary to the manifest weight of the evidence.

          {¶32} The charges for aggravated vehicular homicide in violation of R.C.

2903.06(A)(2)(a) and driving under the influence of alcohol or drugs in violation of

R.C. 4511.19(A)(1)(a) were merged at sentencing with the charge for aggravated

vehicular homicide in violation of R.C. 2903.06(A)(1)(a). No sentence was imposed

for either offense, and Williams was not convicted of those offenses. Because no

judgment of conviction was entered, we do not consider a challenge to the weight of

the evidence for the offenses of aggravated vehicular homicide in violation of R.C.

2903.06(A)(2)(a) and driving under the influence of alcohol or drugs. See State v.

Cooper, 1st Dist. Hamilton No. C-180401, 2019-Ohio-2813, ¶ 15.

          {¶33} In reviewing a challenge to the weight of the evidence, we sit as a

“thirteenth juror.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541

(1997).     We must review the entire record, weigh the evidence, consider the



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credibility of the witnesses, and determine whether the trier of fact clearly lost its

way and created a manifest miscarriage of justice. Id.

       {¶34} Williams was convicted of aggravated vehicular homicide in violation

of R.C. 2903.06(A)(1)(a), which provides that “[n]o person, while operating or

participating in the operation of a motor vehicle * * * shall cause the death of another

* * * [a]s the proximate result of committing a violation of division (A) of section

4511.19 of the Revised Code or of a substantially equivalent municipal ordinance.”

Williams specifically contends that the weight of the evidence did not establish that

he had been driving the vehicle at the time of the accident.

       {¶35} The evidence presented at trial established that Williams told four

separate persons that he had been driving the vehicle when the automobile accident

occurred. While being transported to the hospital, Williams told paramedic Alex

Villanueva that he had been the driver of the vehicle. He made the same admission

to both Agent Fuller and to Smith’s mother when they spoke with him at the hospital.

And finally, Williams admitted to his then-girlfriend Stephanie Jones Taylor that he

had been driving the vehicle during the accident.

       {¶36} Contradicting these admissions, the jury heard further testimony from

Jones Taylor that Williams had begun to go “back and forth” as to whether he had

been the driver or the passenger of the vehicle, and that he had denied driving the

vehicle to Officer Prichard. The jury additionally was able to consider the testimony

from Williams’s expert that Williams had suffered a traumatic brain injury and that

his memory of the accident was not reliable. The jury was in the best position to

judge the credibility of the witnesses. See State v. DeHass, 10 Ohio St.2d 230, 227

N.E.2d 212 (1967), paragraph one of the syllabus. It was entitled to weigh this




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evidence, consider Williams’s motivation at the time that the statements were made,

and elect to believe some, all, or none of the testimony offered.

       {¶37} In addition to Williams’s admissions that he had been driving at the

time of the accident, the state presented evidence that the vehicle involved in the

accident was registered to Williams and that Williams’s DNA was the source of the

major DNA profile found on the driver’s airbag.         The jury’s determination that

Williams had been driving the vehicle at the time of the accident was not against the

weight of the evidence.

       {¶38} This was not the rare case in which the jury lost its way and committed

such a manifest miscarriage of justice in finding Williams guilty that his conviction

must be reversed. See Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541. We hold

that Williams’s conviction for aggravated vehicular homicide was not against the

manifest weight of the evidence. The third assignment of error is overruled.

                                   Cumulative Error


       {¶39} In his fourth assignment of error, Williams argues that the cumulative

effect of the errors that occurred at trial deprived him of a fair trial. Having rejected

Williams’s assignments of error and found the presence of no error, harmless or

otherwise, we reject Williams’s cumulative error argument.

       {¶40} The fourth assignment of error is overruled, and the judgment of the

trial court is accordingly affirmed.

                                                                    Judgment affirmed.



MOCK, P.J., and WINKLER, J., concur.




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Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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