[Cite as State v. Holzapfel, 2014-Ohio-955.]




                IN THE COURT OF APPEALS FOR DARKE COUNTY, OHIO

STATE OF OHIO                                          :

        Plaintiff-Appellee                             :            C.A. CASE NO.     2013 CA 8

v.                                                     :            T.C. NO.    13 TRC 001 492

TYLER L. HOLZAPFEL                                     :            (Criminal appeal from
                                                                     Municipal Court)
        Defendant-Appellant                            :

                                                       :

                                               ..........

                                               OPINION

                          Rendered on the       14th       day of       March        , 2014.

                                               ..........

ERIC BRAND, Atty. Reg. No. 0004986, Greenville City Law Director, 100 Public Square,
Greenville, Ohio 45331 and 100 Washington Avenue, P. O. Box 158, Greenville, Ohio
45331
      Attorney for Plaintiff-Appellee

JON PAUL RION, Atty. Reg. No. 0067020 and NICOLE RUTTER-HIRTH, Atty. Reg. No.
0081004, 130 W. Second Street, Suite 2150, P. O. Box 1262, Dayton, Ohio 45402
      Attorneys for Defendant-Appellant

                                               ..........

DONOVAN, J.

        {¶ 1}     Defendant-appellant Tyler L. Holzapfel appeals his conviction and sentence
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for one count of operating a vehicle while under the influence of alcohol, in violation of R.C.

4511.19(A)(1)(a), a misdemeanor of the first degree. Holzapfel filed a timely notice of

appeal with this Court on June 26, 2013.

       {¶ 2}    On February 23, 2013, at approximately 3:00 a.m., Greenville Police

Sergeant Matt Roll was on routine patrol when he observed a single-car accident involving a

pickup truck that had crashed near a traffic island located in the 300 block of South

Broadway Street in Greenville, Ohio. After exiting his cruiser at the scene of the accident,

Sgt. Roll approached the wrecked vehicle and came into contact with the driver, later

identified as Holzapfel. Sgt. Roll tesitifed that Holzapfel stated that he was driving down

the street when he became preoccupied with his car stereo and did not realize that he drifted

over the center line. After crossing over the center line, Holzapfel jumped the curb on a

traffic island located at the intersection of South Broadway and Main Street, striking a light

post and a memorial plaque mounted in the cement. The light post was destroyed and the

cement was broken around the mounted plaque. Holzapfel was uninjured, but his truck was

heavily damaged and had to be towed from the scene.

       {¶ 3}    While speaking with Holzapfel about the accident, Sgt. Roll testified that he

noticed the strong odor of alcohol emanating from the appellant. Holzapfel, however,

denied that he had consumed any alcohol prior to the accident. Sgt. Roll asked Holzapfel to

submit to a series of field sobriety tests. Holzapfel complied but performed poorly on the

tests. Sgt. Roll placed Holzapfel under arrest and transported him to the police station.

Once at the station, Holzapfel consented to an intoxilyzer test which registered a

concentration of fifteen hundredths (.15) of one gram by weight of alcohol per 210 liters of
                                                                                            3

breath, almost twice the legal limit.

       {¶ 4}    Holzapfel was subsequently charged with one count of failure to maintain

reasonable control, in violation of R.C. 4511.201(A), a minor misdemeanor; and two counts

of OVI, in violation of R.C. 4511.19(A)(1)(a) and 4511.19(A)(1)(d) respectively, both

misdemeanors of the first degree. At his arraignment on February 26, 2013, Holzapfel

plead not guilty to the charged offenses.

       {¶ 5}    On March 14, 2013, Holzapfel filed a motion to suppress the results of his

field sobriety tests and the results of the breath test. Holzapfel also sought to suppress any

incriminating statements he may have made to Sgt. Roll after the accident. A hearing was

held on Holzapfel’s motion on April 22, 2013. In a judgment entry issued the same day, the

trial court overruled Holzapfel’s motion to suppress, and the case was set for jury trial on

June 4, 2013, at 3:30 p.m.

       {¶ 6}    Ultimately, on June 6, 2013, Holzapfel entered a plea of no contest to one

count of OVI, a violation of R.C. 4511.19(A)(1)(a), in return for dismissal of the remaining

charges. We note that Holzapfel waived the reading of the facts by the State at the plea

hearing. The trial court found Holzapfel guilty and sentenced him to ninety days in jail,

sixty days suspended. Holzapfel was ordered to pay a fine in the amount of $850.00 and

court costs of $225.00. Holzapfel was placed on probation for two years and ordered to

report for an alcohol evaluation.

       {¶ 7}    It is from this judgment that Holzapfel now appeals.

       {¶ 8}    Holzapfel’s first assignment of error is as follows:

       {¶ 9}    “THE TRIAL COURT ERRED IN ADMITTING THE BREATH TEST
                                                                                             4

RESULTS BECAUSE THE STATE FAILED TO MEET ITS BURDEN THAT THE TEST

WAS ADMINISTERED IN SUBSTANTIAL COMPLIANCE WITH STATUTORY

REGULATIONS.”

       {¶ 10} In his first assignment, Holzapfel contends that the trial court erred when it

refused to suppress the results of his breath test. Specifically, Holzapfel argues that the

State failed to adduce any evidence regarding whether the breath test which was performed

by Sgt. Roll was done in substantial compliance with the statutory requirements.

       {¶ 11} Initially, we note that R.C. 4511.19(A)(1)(d) states in pertinent part:

               (A)(1) No person shall operate any vehicle *** within this state, if, at

       the time of the operation, any of the following apply:

               (d) The person has a concentration of eight-hundredths of one gram or

       more but less than seventeen hundredths of one gram by weight of alcohol per

       two hundred ten liters of the person’s breath.

       {¶ 12} Thus, a conviction under R.C. 4511.19(A)(1)(d) requires the State to adduce

evidence that a properly conducted intoxilyzer test indicates that the concentration of alcohol

in a defendant’s breath sample is higher than eight-hundredths (.08) of a gram but less than

seventeen hundredths (.17) of one gram. Conversely, the charge to which Holzapfel pled, a

violation of R.C. 4511.19(A)(1)(a), is the general OVI statute that is not dependent upon any

level of chemical testing. As part of the plea negotiations, Holzapfel’s OVI charge pursuant

to R.C. 4511.19(A)(1)(d) was dismissed. Accordingly, Holzapfel’s appeal of any findings

related to the administration of the breath test and the results thereof is rendered moot.

       {¶ 13} Holzapfel’s second and final assignment of error is as follows:
[Cite as State v. Holzapfel, 2014-Ohio-955.]
        {¶ 14} “THE TRIAL COURT ERRED IN OVERRULING THE MOTION TO

SUPPRESS BASED UPON THE OFFICER’S TESTIMONY WHEREIN HE ADMITTED

HE HAD NO RECOLLECTION OF THE TESTING.”

        {¶ 15} In his second and final assignment, Holzapfel argues that Sgt. Roll’s

testimony regarding his memory of the specifics of the accident and implementation of the

field sobriety tests was based on hearsay evidence and therefore, inadmissible. Specifically,

Holzapfel asserts that Sgt. Roll lacked any independent recollection of the investigation and

relied entirely upon his report to testify. Holzapfel argues that because the State failed to

lay a proper foundation for the admission of the contents of his police report, neither the

requirements for refreshed recollection under Evid. R. 612, nor for recorded recollection

under Evid. R. 803(5) were met; thus, Sgt. Roll’s testimony should have been excluded.

        {¶ 16}     As this Court has previously noted:

                 “Appellate courts give great deference to the factual findings of the

        trier of facts. (Internal citations omitted) . At a suppression hearing, the trial

        court serves as the trier of fact, and must judge the credibility of witnesses

        and the weight of the evidence. (Internal citations omitted). The trial court is

        in the best position to resolve questions of fact and evaluate witness

        credibility. (Internal citations omitted). In reviewing a trial court’s decision

        on a motion to suppress, an appellate court accepts the trial court’s factual

        findings, relies on the trial court’s ability to assess the credibility of

        witnesses, and independently determines whether the trial court applied the

        proper legal standard to the facts as found. (Internal citations omitted). An

        appellate court is bound to accept the trial court’s factual findings as long as
                                                                                            6

       they are supported by competent, credible evidence.”           State v. Hurt,

       Montgomery App. No. 21009, 2006-Ohio-990. State v. Purser, 2d Dist.

       Greene No. 2006 CA 14, 2007-Ohio-192, ¶ 11.

       {¶ 17} Initially, we note that the only witness who testified at the hearing held on

Holzapfel’s motion to suppress was Sgt. Roll. The trial court found his testimony credible

and adopted it as the court’s factual findings.

       {¶ 18} When using a statement under Evid.R. 612 to refresh recollection, “a party

may not read the statement aloud, have the witness read it aloud, or otherwise place it before

the jury.” State v. Ballew, 76 Ohio St.3d 244, 254, 667 N.E.2d 369 (1996). Under Ohio

Evid. R. 612, the witness's memory must have been exhausted after ordinary direct or

cross-examination to use the technique of refreshing that witness's memory. Finally, the

witness’s recollection must be refreshed; that is, after reviewing the prior statement, the

witness must presently recollect the events recited therein. State v. Scott, 31 Ohio St.2d 1,

5-6, 285 N.E.2d 344 (1972); Dellenbach v. Robinson, 95 Ohio App.3d 358, 368, 642 N.E.2d

638 (10th Dist.1993), motion allowed, 67 Ohio St.3d 1471, 619 N.E.2d 1027, appeal

dismissed as improvidently allowed, 70 Ohio St.3d 1219, 640 N.E.2d 840 (1994).

       {¶ 19}    We agree with Holzapfel that Sgt. Roll acknowledged, in part, that his

police report did not refresh his recollection to the point that he had any independent

recollection of events. Sgt. Roll testified without aid regarding his initial observations of

the accident and his interactions with Holzapfel.      Specifically, Sgt. Roll testified that

Holzapfel was at the site of the accident when he arrived. Sgt. Roll further testified that

Holzapfel stated that he was the driver of the wrecked pickup truck and that he had lost
                                                                                            7

control of the vehicle due to inattention. Sgt. Roll testified that he noticed the strong odor

of alcohol emanating from Holzapfel during their conversation.

       {¶ 20} At this point, Sgt. Roll testified that he decided to conduct a series of field

sobriety tests upon Holzapfel. However, Sgt. Roll testified on cross-examination that he did

not independently recall the details surrounding his administration of the sobriety tests, nor

did he independently recall Holzapfel’s performance of the tests. The record indicates that

Sgt. Roll repeatedly referred to the police report in order to answer defense counsel’s

questions regarding the field sobriety tests that were administered, as well as Holzapfel’s

performance on the tests.

       {¶ 21} In State v. Kissinger, 2d Dist. Montgomery No. 23636, 2010-Ohio-2840, ¶

32, we held “that full compliance with the Ohio Rules of Evidence is not required in

connection with a hearing conducted on the issue of the admissibility of evidence. State v.

Edwards, 107 Ohio St.3d 169, 2005-Ohio-6180.          Evid. R. 104(A).      A trial court has

discretion to determine the admissibility of evidence at a suppression hearing. State v.

Adams (1980), 62 Ohio St.2d 151.” Id.

       {¶ 22} In Kissinger, which also involved a conviction under R.C. 4511.19(A)(1)(a),

we stated in pertinent part:

               *** A police report is not a casual document. A police officer can

       expect that his report may have significance in legal proceedings. In the

       absence of any indication to the contrary, a trial court can reasonably

       conclude that a police officer has made an effort to prepare an accurate report.

        Consequently, we conclude that a trial court, in the absence of any indication
                                                                                             8

        that a police report is inaccurate, does not abuse its discretion in allowing

        testimony concerning the contents of the report at a suppression hearing, even

        though neither the requirements for refreshed recollection, under Evid. R.

        612, nor for recorded recollection, under Evid. R. 803(5), have been satisfied.

         This holding should not be taken to mean that in a proceeding where the

        requirements of the Ohio Rules of Evidence are fully applicable – in a

        criminal trial, for example – the contents of a police report can be admitted in

        evidence without compliance with the applicable Rules.

Id., at ¶ 33.

        {¶ 23} In the instant case, there was no evidence adduced that cast any doubt on the

accuracy of the police report referred to by Sgt. Roll when he testified regarding the details

surrounding his administration of the field sobriety tests and Holzapfel’s subsequent poor

performance. Sgt. Roll testified that he conducted the horizontal gaze nystagmus test, the

walk and turn test, and the one-leg stand test in accordance with his training. Sgt. Roll

testified that, based on his observations, Holzapfel failed all three field sobriety tests.1 On

cross-examination, Sgt. Roll testified that he did not independently recall conducting the

tests, nor did he independently recall the specifics of Holzapfel’s performance on the tests,

only that the appellant did poorly. Nevertheless, absent such evidence that the police report

was inaccurate, the trial court did not abuse its discretion in admitting Sgt. Roll’s testimony

concerning the contents of the report at the suppression hearing. Kissinger, 2010-Ohio-2840,

¶ 33. Accordingly, the trial court did not err when it overruled Holzapfel’s motion to


   1
    We note that there was no objection to Sgt. Roll’s direct testimony.
                                                                                    9

suppress.

{¶ 24} Holzapfel’s second and final assignment of error is overruled.

{¶ 25} Holzapfel’s first assignment of error having been rendered moot, and his second

assignment having been overruled, the judgment of the trial court is affirmed.

                                        ..........

FROELICH, P.J. and HALL, J., concur.

Copies mailed to:

Eric Brand
Jon Paul Rion
Nicole Rutter-Hirth
Hon. Julie L. Monnin
