State v. Moore

[Cite as State v. Moore, 2019-Ohio-3705.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY

State of Ohio Court of Appeals No. WD-18-030

Appellee Trial Court No. 2016CR0553

v.

Carolyn Rose Moore DECISION AND JUDGMENT

Appellant Decided: September 13, 2019

*****

Paul A. Dobson, Wood County Prosecuting Attorney, and
David T. Harold, Assistant Prosecuting Attorney, for appellee.

Michael H. Stahl, for appellant.

*****
SINGER, J.

{¶ 1} Appellant, Carolyn Rose Moore, appeals the March 14, 2018 judgment

entered in the Wood County Court of Common Pleas, after she was found guilty of six

offenses and sentenced to five years in prison. For the reasons that follow, we affirm the

judgment of the trial court, in part, and reverse, in part.
 {¶ 2} Appellant sets forth eight assignments of error:

First Assignment of Error: The Trial Court erred when it denied

Moore’s Motion to Suppress evidence obtained from her blood which was

seized pursuant to a search warrant that lacked any indicia of probable

cause and from which the affiant omitted material facts.

Second Assignment of Error: Ms. Moore was denied due process of

law and a fair trial under the Ohio and United States Constitutions when the

State failed to present sufficient evidence, or any evidence at all, that any

culpable act or mental state of Carolyn Moore was the proximate cause of

the accident, an element of all [of] the homicide charges against her.

Third Assignment of Error: The Trial Court erred when it failed to

dismiss Count [Four] by operation of law after it dismissed the predicate

charge of possession of drugs.

Fourth Assignment of Error: The Trial Court erred when it denied

Ms. Moore’s Motion to Suppress the results of the testing done on her

blood because the State failed to prove substantial compliance with

required Ohio Department of Health regulations.

Fifth Assignment of Error: Ms. Moore was denied due process of

law and a fair trial under the Ohio and United States Constitutions when the

State failed to present sufficient evidence of a violation of R.C. 4511.19.

Sixth Assignment of Error: Ms. Moore was denied her rights to due

process of law and a trial before a fair and impartial jury under the Ohio

2.
 and United States Constitutions when the State engaged in prejudicial

behavior of such severity that it cumulatively and specifically resulted in

Plain Error by the Trial Judge in not declaring an immediate mistrial.

Seventh Assignment of Error: The cumulative effective of errors by

the Trial Court, prejudicial evidence admitted over objection, and ongoing

animosity between the Trial Judge and defense counsel denied Ms. Moore

due process of law and a fair trial under the Ohio and United States

Constitutions[.]

Eighth Assignment of Error: Ms. Moore’s conviction on all charges

was against the manifest weight of the evidence[.]

Background

{¶ 3} On the evening of August 3, 2016, appellant was driving a vehicle, owned

by her mother, with her boyfriend, John Etzinger, as a front-seat passenger, when they

were involved in a single vehicle accident in Bowling Green, Wood County, Ohio. A

woman who lived near the scene of the accident called 911. A police officer arrived in

the vicinity of the accident at approximately 9:15 p.m., and he encountered appellant,

who was hysterical and repeatedly asking “is he dead” and “who was driving.” The

officer located the vehicle in a small wooded area and discovered Etzinger, deceased, in

the driver’s seat. Emergency medical technicians (“EMTs”) responded to the scene and

transported appellant to the hospital for treatment.

{¶ 4} Following an investigation, appellant was indicted, on November 3, 2016,

on seven counts: (1) driving under financial responsibility law suspension or cancellation

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(“DUS”), in violation of R.C. 4510.16(A) and (D)(1), an unclassified misdemeanor, (2)

operating a vehicle under the influence (“OVI”) of a listed controlled substance or a listed

metabolite, in violation of R.C. 4511.19(A)(1)(j)(ii) and (G)(1)(a), a first degree

misdemeanor, (3) possession of drugs, in violation of R.C. 2925.11(C)(4)(a), a fifth

degree felony, (4) involuntary manslaughter, in violation of R.C. 2903.04(A) and (C), a

first degree felony, (5) involuntary manslaughter, in violation of R.C. 2903.04(B) and

(C), a third degree felony, (6) reckless homicide, in violation of R.C. 2903.041(A) and

(B), a third degree felony, and (7) aggravated vehicular homicide, in violation of R.C.

2903.06(A)(1)(a) and (B)(2)(b)(i), a first degree felony. Appellant pled not guilty.

{¶ 5} Appellant filed numerous pretrial motions, including three motions to

suppress regarding evidence seized pursuant to a number of search warrants.

Suppression hearings were held on October 5 and November 20, 2017. On January 4,

2018, the trial court denied the motions to suppress which are the subject of this appeal.1

{¶ 6} A five-day jury trial began on January 8, 2018, and ended on January 12,

2018. At the close of the state’s case, the court granted appellant’s Crim.R. 29 motion as

to Count 3 of the indictment. Thereafter, the jury found appellant guilty of the remaining

counts in the indictment.

{¶ 7} A sentencing hearing was held on March 13, 2018. The court, without

objection, merged Counts 4 through 7. The state elected for appellant to be sentenced on

1
Appellant argues, in her first and fourth assignments of error, that the trial court erred in
denying her first and third motions to suppress, filed September 12 and 22, 2017,
respectively. We will limit our analysis accordingly.

4.
Count 7, and the court imposed a mandatory five-year prison term. With respect to

Counts 1 and 2, the court imposed a $1,000 fine and a 180-day jail sentence, respectively,

with the sentence to run concurrently with the prison term imposed in Count 7. Appellant

also received a lifetime driver’s license suspension. Appellant timely appealed.

First Assignment of Error

{¶ 8} Appellant argues the trial court erred in denying her third motion to suppress

evidence obtained from her blood, which was seized pursuant to a search warrant that

lacked probable cause, and from which the affiant omitted material facts. Appellant

notes her blood was drawn at the hospital for medical purposes.

{¶ 9} In the August 4, 2016 affidavit for search warrant, Bowling Green Police

Officer Andy Mulinix averred, inter alia, the following: (1) upon his arrival at the

accident scene, he observed appellant near the street, covered in blood and talking about

her boyfriend; (2) upon finding the crashed vehicle behind a tree line, “[i]t was evident

from impact marks, damage to the vehicle and blood splatter[,] the vehicle had struck a

large tree * * * [and] it was clear the point of impact to the tree was the passenger side

door area. The roof and the front passenger side door were collapsed in toward the

passenger side seat”; (3) on the tree there “appeared to be a large blood stain and what

also appeared to be brain matter from [Etzinger]. At the base of the tree was also an

almost completely intact human brain * * *. It was evident from the injury [suffered by

Etzinger] the human brain next to the tree was [Etzinger’s]”; (4) Etzinger was in the

driver’s seat but had broken blood vessels on his upper right shoulder which is consistent

with a seatbelt injury, and the passenger’s side seat belt was pulled out a significant

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amount “which led me to believe [Etzinger] was in the front passenger side seat during

the crash with his seatbelt on”; (5) there was an empty case of beer in the back seat of the

vehicle but no open beer cans; (6) there was a small amount of marijuana in a bag on the

passenger side of the vehicle; (7) there was a can of computer duster (“duster”) on the

driver’s floor and “[f]rom my training and experience I know that * * * duster * * * is

used as a drug and is a highly abused inhalant”; (8) at the hospital, appellant had a

seatbelt injury on her left collarbone and shoulder and she “admitted to being the driver

of the vehicle but also stated [Etzinger] had been choking her around the neck prior to the

crash* * * [and] she may have passed out as a result. * * * [She] denied she was

intoxicated but she admitted [Etzinger] had been smoking marijuana in the vehicle prior

to the crash”; and, (9) “[b]ased on my training, experience, and information collected

during the course of the investigation, I believe there maybe [sic] additional evidence of

Aggravated Vehicular Homicide * * * and [OVI], Drug Abuse * * *[at the hospital in

blood samples taken from appellant].”

{¶ 10} Appellant submits the search warrant affidavit did not articulate probable

cause to seize her blood, and likewise, the court, in denying her motion to suppress, did

not articulate probable cause of intoxication or any other probable cause to seize her

blood. Appellant further claims “[t]he affidavit fails to answer the key question of

probable cause, why [the officer] had cause to believe he would find incriminating

evidence.” Appellant observes the affidavit averred that she denied being intoxicated,

rather than stating that “none of the police officers involved in the accident made any

statement that Ms. Moore was under the influence of anything.” Appellant contends the

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presence of innocuous items, like duster, “‘used by many innocent people-cannot,

without more, transform a “bare bones” affidavit into one with a “substantial basis” for

probable cause.’ [State v. Riley, 6th Dist. Lucas No. L-07-1379, 2009-Ohio-3493] at ¶

31.”

{¶ 11} The state counters the evidence in appellant’s vehicle that suggested

substance abuse was enough to create probable cause for the warrant to secure appellant’s

blood and urine, which was drawn by the hospital following the accident. The state

asserts the affidavit for search warrant to test appellant’s blood indicated that the officer,

based upon his investigation, had probable cause to believe appellant had committed

aggravated vehicular homicide, OVI or drug abuse. The state notes the officer stated in

the affidavit that he observed an empty case of beer, marijuana and can of duster in the

vehicle. The state further contends it aroused the officer’s suspicions that appellant

moved Etzinger’s dead body to the driver’s seat as Etzinger’s injuries and the damage to

the vehicle confirmed that Etzinger was the passenger, not the driver.

{¶ 12} The Fourth Amendment to the United States Constitution protects against

unreasonable searches and seizures. State v. Brown, 183 Ohio App.3d 337, 2009-Ohio-

3804, 916 N.E.2d 1138, ¶ 9 (6th Dist.). A person has a legitimate expectation of privacy

in his or her bodily fluids. Schmerber v. California, 384 U.S. 757, 770, 86 S.Ct. 1826, 16

L.Ed.2d 908 (1966). A search warrant may only be issued upon a showing of probable

cause. Illinois v. Gates, 462 U.S. 213, 238-239, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

Probable cause for a search warrant exists when there is a “fair probability that

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contraband or evidence of a crime will be found in a particular place.” Id. at 238. Courts

view the totality of the circumstances in making probable cause determinations. Id.

{¶ 13} A court reviewing the sufficiency of probable cause in an affidavit in

support of a search warrant, should not substitute its judgment for that of the judge who

issued the search warrant. State v. George, 45 Ohio St.3d 325, 544 N.E.2d 640 (1989),

paragraph two of the syllabus. The task of the reviewing court is to determine whether

the issuing judge “had a substantial basis for concluding that probable cause existed.” Id.

Trial courts and appellate courts should give great deference to the issuing judge’s

probable cause determination. Id.

{¶ 14} Appellate review of a motion to suppress presents a mixed question of law

and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.

With respect to factual matters, the trial court occupies the best position to evaluate the

credibility of witnesses and weigh the evidence. State v. Roberts, 110 Ohio St.3d 71,

2006-Ohio-3665, 850 N.E.2d 1168, ¶ 100. Therefore, on appeal, we must accept the trial

court’s findings of facts so long as they are supported by competent, credible evidence.

Id. We must then undertake a de novo review to determine whether the facts satisfy the

applicable legal standard. Burnside at ¶ 8.

{¶ 15} Here, a review of the record shows the trial court did not err in denying

appellant’s motion to suppress evidence obtained from her blood. In its January 4, 2018

order on motions, the court referenced State v. George and Illinois v. Gates, for the

proposition that the reviewing court’s duty is to ensure the issuing judge had a substantial

8.
basis for concluding that probable cause existed. The court then determined the search

warrant for appellant’s blood was issued upon probable cause.

{¶ 16} Upon review, the August 4, 2016 search warrant for appellant’s blood

sample and urine sample, stated it sought evidence “which [is] in violation of * * *

Aggravated Vehicular Homicide * * * and [OVI].” The search warrant affidavit

identified certain objects and circumstances found in the vehicle following the accident,

some of which were incriminating in nature. We find, considering the facts in the search

warrant affidavit, as a whole, there is competent, credible evidence to support the trial

court’s determination that the search warrant seeking evidence in appellant’s blood was

issued upon probable cause. Accordingly, appellant’s first assignment of error is not

well-taken.

Second Assignment of Error

{¶ 17} Appellant contends “[a]ll of the homicide charges against [her] require the

State to prove that some sort of culpable conduct, or the mens rea of recklessness[,] was

the proximate cause of the death,” but the state did not present sufficient evidence, or any

evidence, as to what caused the accident. Appellant claims there was no testimony that

she was under the influence of anything at the time of the accident which would impair

her ability to operate a vehicle.

{¶ 18} The state counters that since R.C. 4511.19(A)(1)(a) is a strict liability

statute, the state only had to prove that appellant was under the influence while operating

a vehicle. The state further contends since appellant’s OVI conviction is a strict liability

offense, her conviction for aggravated vehicular homicide, which is predicated on her

9.
violation of R.C. 4511.19(A)(1), is a strict liability offense as well. The state references

the trial testimony of Dr. Robert Forney, chief toxicologist at the Lucas County Coroner’s

(“coroner”) Office, who stated appellant’s blood tested positive for, inter alia,

“cocaine/metabolites * * * and we identified benzoylecgonine, which is inactive - that

does not produce the effect of cocaine - and we found it at .052 milligrams per liter.”

{¶ 19} “A sufficiency of the evidence argument challenges whether the State has

presented adequate evidence on each element of the offense to allow the case to go to the

jury or to sustain the verdict as a matter of law.” State v. Shaw, 2d Dist. Montgomery

No. 21880, 2008-Ohio-1317, ¶ 28, citing State v. Thompkins, 78 Ohio St.3d 380, 387,

678 N.E.2d 541 (1997). During a sufficiency of the evidence review, an appellate court’s

function is determine “whether, after viewing the evidence in a light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of the

crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d

492 (1991), paragraph two of the syllabus.

{¶ 20} Here, appellant was found guilty of the homicide crimes of involuntary

manslaughter (Counts 4 and 5), reckless homicide (Count 6) and aggravated vehicular

homicide (Count 7). The court merged Counts 4 through 7, and appellant was sentenced

on Count 7. We will consider the sufficiency of the evidence as to Count 7 first.

Aggravated Vehicular Homicide
Count 7

{¶ 21} The crime of aggravated vehicular homicide is defined in R.C.

2903.06(A)(1)(a) as “[n]o person, while operating * * * a motor vehicle, shall cause the

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death of another * * * [a]s the proximate result of committing a violation of [R.C.

4511.19(A)].” R.C. 2903.06(A)(1) is a strict liability offense which requires no culpable

mental state. See State v. Gagnon, 6th Dist. Lucas No. L-08-1235, 2009-Ohio-5185, ¶

17.

{¶ 22} Appellant was charged with and convicted of a violation of R.C.

4511.19(A)(1)(j)(ii), which provides that no person shall drive if “[t]he person * * * has a

concentration of cocaine in the person’s whole blood or blood serum or plasma of at least

fifty nanograms of cocaine per milliliter of the person’s whole blood or blood serum or

plasma.” R.C. 4511.19(A)(1)(j)(ii) is a strict liability statute. See City of Defiance v.

Kretz, 60 Ohio St.3d 1, 3, 573 N.E.2d 32 (1991). When determining whether a defendant

committed this strict liability offense, the trier of fact is not required to find the defendant

operated a motor vehicle while under the influence of drugs. Id. Rather, the trier of fact

must only find the defendant’s chemical test result was at the proscribed level and the

defendant operated a motor vehicle within the state. Id.

{¶ 23} Here, appellant notes R.C. 4511.19 provides for a per se violation, and

argues “it is possible for a per se violation of R.C. 4511.19 to constitute the predicate

offense for a violation [of] R.C. 2903.06 and or R.C. 2903.04, the State must still prove

that the predicate offense was the proximate cause of the accident.” Appellant contends

the predicate offense is based on a per se violation involving cocaine metabolite, which

the state’s expert, Dr. Forney, acknowledged was inactive. Appellant asserts the state did

not ask Dr. Forney whether or not anything in her blood would have affected her ability

to operate a vehicle.

11.
 {¶ 24} Since appellant challenges the proximate cause or result element of the

offense of aggravated vehicular homicide, we will limit our analysis accordingly.

{¶ 25} In State v. Filchock, 166 Ohio App.3d 611, 2006-Ohio-2242, 852 N.E.2d

759 (11th Dist.), Filchock argued the evidence was not sufficient to sustain the conviction

of aggravated vehicular homicide because the victim’s death “was not caused by * * *

impaired driving, but from some other cause.” Id. at ¶ 76. The appellate court held “‘the

definition of “cause” in criminal cases is identical to the definition of “proximate cause”

in civil cases * * * [and] [t]he general rule is that a defendant’s conduct is the proximate

cause of * * * death to another if the defendant’s conduct is a “substantial factor” in

bringing about the harm.’” (Citation omitted.) Id. at ¶ 77. The court noted that the trial

testimony revealed there could have been several causes of the victim’s death, including

Filchock operating a motor vehicle under the influence of alcohol; Filchock’s reckless or

negligent operation of a motor vehicle; the victim’s slow speed; or Filchock’s “monkey

business” with another vehicle. Id. at ¶ 56.

{¶ 26} The court observed “the question for the jury was whether there was

evidence beyond a reasonable doubt that Filchock’s act of [operating] of a motor vehicle

under the influence of alcohol was the direct cause of [the victim’s] death, and without

which [the death] would not have happened.” Id. at ¶ 56. The court noted the evidence

revealed Filchock “was observed to be swerving in and out of traffic, * * * was driving at

a high rate of speed, * * * fled the scene without calling the police, * * * had a strong

odor of alcohol on his person, * * * had bloodshot eyes * * * refused field-sobriety tests,

and * * * [had a] blood-alcohol content * * * above the legal limit.” Id. at ¶ 80. The

12.
court found the evidence, when viewed in the light most favorable to the prosecution,

showed that “reasonable minds could conclude beyond a reasonable doubt that Filchock’s

operation of his motor vehicle under the influence of alcohol was the cause of [the

victim’s] death.” Id. at ¶ 81. See also State v. Lennox, 11th Dist. Lake No. 2010-L-104,

2011-Ohio-5103.

{¶ 27} Here, a review of the record shows there is no evidence that appellant’s act

of driving with a prohibited concentration of cocaine in her blood was the direct cause of

Etzinger’s death, and without which, his death would not have occurred. The state

furnished no evidence regarding the potential effects that a prohibited concentration of

cocaine in a person’s blood would have on a person, or on a person’s ability to operate a

vehicle. Without such evidence, the state failed to prove that as the proximate result of

appellant driving with a prohibited concentration of cocaine in her blood, appellant

caused Etzinger’s death. As such, there was insufficient evidence to prove each element

of the crime of aggravated vehicular homicide. Accordingly, appellant’s second

assignment of error with respect to Count 7 is well-taken.

{¶ 28} We will next consider the sufficiency of the evidence with respect to

Counts 4 and 5, the involuntary manslaughter offenses.

Involuntary Manslaughter
Count 4

{¶ 29} Appellant was charged with and convicted of violating R.C. 2903.04(A)

and (C), which states “[n]o person shall cause the death of another * * * as a proximate

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result of the offender’s committing or attempting to commit a felony. * * * [A]

[v]iolation * * * is a felony of the first degree.”

{¶ 30} Appellant was initially charged with involuntary manslaughter while

possessing cocaine in her system. The charge was later amended to indicate appellant

was in possession of drugs, a violation of R.C. 2925.11(A), which states “[n]o person

shall knowingly obtain, possess, or use a controlled substance or a controlled substance

analog.”

{¶ 31} In State v. Hamrick, 6th Dist. Lucas No. L-96-059, 1997 WL 796455, *4

(Dec. 19, 1997), we analyzed a former version of R.C. 2903.04(A)2 and found “we must

construe ‘proximate result’ to include a direct nexus between a defendant’s unlawful act

and someone’s death.” We further found:

The ‘proximate result’ phrase in R.C. 2903.04(A) means that, in

order to commit involuntary manslaughter under this section, the

defendant’s felonious acts not only resulted in the death of another but that

the criminal act was a proximate cause of the death. * * * Jackson v. State

(1920), 101 Ohio St. 152, 127 N.E. 870, paragraph one of the syllabus;

State v. Schaeffer (1917), 96 Ohio St. 215, 117 N.E. 220, paragraph seven

of the syllabus.

2
For purposes of this appeal, there is no meaningful difference between the former and
current versions of R.C. 2903.04(A).

14.
 {¶ 32} Here, the record shows appellant was driving a vehicle on the evening of

August 3, 2016, with Etzinger as the passenger, when the vehicle crashed into a tree and

Etzinger was killed. Testimony was presented that appellant may have been speeding,

about ten m.p.h. over the speed limit, prior to the crash. After the accident, police found

an empty case of beer in the back seat of the vehicle, a small amount of marijuana in a

bag on the passenger side, and a can of duster on the driver’s floor.

{¶ 33} The state produced the test result report for appellant’s blood and urine

samples, which revealed the presence of several controlled substances. Appellant

admitted using illegal drugs several days prior to the accident, but denied using any

illegal drugs on the day of the accident. Texts messages sent by appellant hours before

the accident indicate she was seeking to buy pills from someone. Dr. Forney testified

regarding the particular controlled substances found in appellant’s blood and urine

samples and specifically noted Xanax, or alprazolam, was found in appellant’s system,

which has a tranquilizing, calming result and it was “still having its effect” even though it

had “been awhile since the Xanax or the generic alprazolam was ingested.”

{¶ 34} The state also presented evidence that the can of duster found in the vehicle

was missing its safety tab and was approximately 20 percent lighter by weight than a full

can of duster. Dr. Forney was shown the test result report for appellant’s blood and urine

samples, which showed a positive finding in the blood for diflouroethane. The doctor

testified diflouroethane is a chemical, in particular a propellant, found in products like

duster. In addition, Officer Darin Reinhart testified that duster is a well-known abused

15.
inhalant which causes an instant high, lasting for a short period of time, and huffing, or

abusing an inhalant, can also cause a person to pass out and lose consciousness.

{¶ 35} A review of the evidence, in a light most favorable to the state, shows any

rational trier of fact could have found appellant caused Etzinger’s death as a proximate

result of knowingly using alprazolam (Xanax) and/or diflouroethane (duster chemical).

We therefore find the state presented sufficient evidence to prove each element of Count

4, involuntary manslaughter, in violation of R.C. 2903.04(A) and (C). Accordingly,

appellant’s second assignment of error with respect to Count 4 is not well-taken.

Count 5

{¶ 36} Appellant was charged with and convicted of violations of R.C. 2903.04(B)

and (C), which state “[n]o person shall cause the death of another * * * as a proximate

result of the offender’s committing or attempting to commit a misdemeanor of any

degree, a regulatory offense, or a minor misdemeanor * * *. [A] [v]iolation * * * is a

felony of the third degree.”

{¶ 37} Appellant was initially charged with involuntary manslaughter while DUS,

as well as involuntary manslaughter while OVI, in violation of R.C. 4511.19(A)(1)(j) and

(G). The charge was later amended to indicate a violation of R.C. 4511.19(A)(1)(a),

which states ‘[n]o person shall operate any vehicle * * * within this state, if, at the time of

the operation * * * [t]he person is under the influence of * * * a drug of abuse.”

Involuntary Manslaughter - OVI

{¶ 38} A person is under the influence as a “result of a consumption of a substance

which tends to deprive one of the clearness of intellect and control that he or she would

16.
otherwise possess. State v. Hardy (1971), 28 Ohio St.2d 89, 276 N.E.2d 247.” State v.

Smith, 6th Dist. Ottawa No. OT-97-037, 1998 WL 102143, *3 (Feb. 27, 1998). A “drug

of abuse” is defined in R.C. 4506.01(M) as “any controlled substance, dangerous drug as

defined in section 4729.01 of the Revised Code, or over-the-counter medication that,

when taken in quantities exceeding the recommended dosage, can result in impairment of

judgment or reflexes.” A person can be under the influence of a drug of abuse if the drug

or medication “impairs the person’s ability to operate a motor vehicle.” Smith at *3.

{¶ 39} Here, a review of the record shows the state produced test results of

appellant’s blood and urine samples which revealed the presence of controlled substances

or drugs of abuse. In addition, the state presented the testimony of Dr. Forney and

Officer Reinhart regarding certain effects that drugs like alprazolam and diflouroethane

can have on a person. We find after viewing this evidence in a light most favorable to the

state, any rational trier of fact could have found appellant caused Etzinger’s death as a

proximate result of operating a vehicle within this state under the influence of a drug of

abuse (alprazolam and/or diflouroethane). We therefore find the state offered sufficient

evidence to prove each element of Count 5, involuntary manslaughter OVI.

Involuntary Manslaughter - DUS

{¶ 40} Driving a vehicle under financial responsibility law suspension is a

violation of R.C. 4510.16(A) and (D)(1), which is an unclassified misdemeanor. A

review of the record shows appellant admitted her driver’s license was suspended at the

time of the accident.

17.
 {¶ 41} In order for appellant to be found guilty of the crime of involuntary

manslaughter DUS, the state had to prove that appellant caused Etzinger’s death as a

proximate result of appellant driving with a suspended driver’s license.

{¶ 42} In Hamrick, 6th Dist. Lucas No. L-96-059, 1997 WL 796455, *4, we held

“when a defendant’s unlawful act is driving under suspension * * * [that act] cannot

constitute the basis for an involuntary manslaughter conviction when there is no causative

connection between the criminal act and the death of another.”

{¶ 43} Here, a review of the record shows there is no evidence that Etzinger’s

death was a proximate result of appellant’s status of driving while under a license

suspension. We therefore find the state’s evidence was insufficient to prove each element

of Count 5, involuntary manslaughter while driving under suspension, in violation of

R.C. 2903.04(A) and (C). Accordingly, appellant’s second assignment of error with

respect to Count 5, involuntary manslaughter DUS, is well-taken.

{¶ 44} Last, we will consider the sufficiency of the evidence with respect to Count

6, reckless homicide.

Reckless Homicide
Count 6

{¶ 45} Appellant was charged with and convicted of violations of R.C.

2903.041(A) and (B), which state “[n]o person shall recklessly cause the death of another

* * *. [A] [v]iolation * * * is a felony of the third degree.”

A person acts recklessly when, with heedless indifference to the

consequences, the person disregards a substantial and unjustifiable risk that

18.
 the person’s conduct is likely to cause a certain result or is likely to be of a

certain nature. A person is reckless with respect to circumstances when,

with heedless indifference to the consequences, the person disregards a

substantial and unjustifiable risk that such circumstances are likely to exist.

R.C. 2901.22(C).

{¶ 46} Here, the record shows appellant and Etzinger were arguing on the evening

of August 3, 2016, prior to getting into the vehicle. In fact, they were told to leave

appellant’s parents’ home because they were “very loud * * * [v]ery aggressive * * *

there was screaming.” Appellant testified she and Etzinger got into the vehicle and she

was driving because he was mad. The arguing continued and Etzinger hit appellant,

which caused her to swerve and hit a garbage can. She stated, “[a]fter I hit it, I remember

being pissed off. * * * I just bought the car and I was mad because I hit the trash can.”

Appellant testified Etzinger then started choking her and grabbing her by the throat.

Appellant did not remember going off of the road or striking the tree.

{¶ 47} The record also reveals appellant may have been speeding before she lost

control of the vehicle crashed into the tree, and controlled substances were found in blood

and urine samples taken from appellant shortly after the accident.

{¶ 48} Evidence establishing recklessness when operating a vehicle includes the

consumption of an excessive amount of a controlled substance, speeding and having

toxicology test results consistent with impairment. See State v. Yates, 6th Dist. Lucas No.

L-13-1266, 2015-Ohio-708, ¶ 16.

19.
 {¶ 49} Here, there was sufficient evidence that appellant acted recklessly prior to

the accident, as she was driving while arguing with Etzinger, she was mad at him, she

had controlled substances in her system, she may have been speeding and she lost control

of the vehicle. We therefore find the state presented sufficient evidence to prove

appellant recklessly caused Etzinger’s death. Accordingly, appellant’s second

assignment of error with respect to Count 6 is not well-taken.

Third Assignment of Error

{¶ 50} Appellant argues the trial court erred when it failed to dismiss Count 4 of the

indictment, involuntary manslaughter, in violation of R.C. 2903.04(A) and (C), by

operation of law, after dismissing Count 3, the predicate charge of possession of drugs.

{¶ 51} Count 3 charged appellant with possession of cocaine, in violation of R.C.

2925.11(C)(4)(a). This charge was dismissed by the trial court on appellant’s Crim.R. 29

motion. The court found State v. Lowe, 86 Ohio App.3d 749, 621 N.E.2d 1244 (4th

Dist.1993), controlling. The issue presented in Lowe was “whether the presence of cocaine

metabolites in a person’s urine constitutes sufficient circumstantial evidence to prove

beyond a reasonable doubt that the person knowingly obtained, possessed, or used a

controlled substance in violation of R.C. 2925.11(A).” Id. at 753. The Lowe court found

“the fact that a person’s urine contains cocaine metabolites does not, standing alone,

constitute sufficient evidence that the person knowingly ingested the controlled substance.”

Id. at 756.

{¶ 52} Here, although Count 3, possession of cocaine, was dismissed, its dismissal

had no impact on the involuntary manslaughter offense in Count 4, which charged

20.
appellant with violating R.C. 2903.04(A) That statute provides “[n]o person shall cause

the death of another * * * as a proximate result of the offender’s committing or

attempting to commit a felony.” Appellant was initially charged with involuntary

manslaughter while possessing cocaine in her system but the charge was amended to

possession of drugs, a violation of R.C. 2925.11(A), which states “[n]o person shall

knowingly obtain, possess, or use a controlled substance or a controlled substance

analog.” As we found above, there was sufficient evidence to prove each element of the

involuntary manslaughter offense in Count 4. Accordingly, appellant’s third assignment

of error is not well-taken.

Fourth Assignment of Error

{¶ 53} Appellant argues her first motion to suppress should have been granted and

the test results on her blood should have been suppressed because the state failed to prove

substantial compliance with required Ohio Department of Health (“DOH”) regulations, as

required by R.C. 3701.143. Appellant contends substantial compliance requires that

there be, at most, de minimus deviations, but in this case there were serious deviations,

including (1) no evidence that any procedures existed to prevent tampering with blood

samples; (2) no testimony that the samples were sealed so that tampering would be

indicated; (3) no chain of custody proven for the unsecured blood from the time it was

drawn until Det. Mulinix seized it; (4) no testimony to verify there was no tampering with

the blood samples while they were in the refrigerator in police custody from August 4

until August 9, 2016; and (5) insufficient testimony to determine what type of

21.
anticoagulant was used. Appellant also claims during the suppression hearing defense

counsel was not permitted to question Dr. Forney about “the margin of error, or the

reliability of the test at those specific levels.”

{¶ 54} When the validity of a drug test is challenged by the defendant, the state

has the burden of establishing the testing procedures substantially complied with DOH

regulations. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71 at ¶ 24. The

substantial compliance standard is limited “to excusing only errors that are clearly de

minimis,” which include irregularities amounting to “‘minor procedural deviations.’” Id.

at ¶ 34, quoting State v. Homan, 89 Ohio St.3d 421, 426, 732 N.E.2d 952 (2000). If the

state shows substantial compliance with the regulations, the test result is presumptively

admissible, and the burden shifts to the defendant to show prejudice resulting from

“anything less than strict compliance.” Burnside at ¶ 24.

{¶ 55} As set forth above, appellate review of a motion to suppress presents a

mixed question of law and fact. Id. at ¶ 8. We must then undertake a de novo review to

determine whether the facts satisfy the applicable legal standard. Id.

{¶ 56} Here, we must determine whether or not there was substantial compliance

with R.C. 4511.19(D)(1)(b), which states in relevant part:

In any criminal prosecution * * * for a violation of division (A) * * *

of this section * * * that is vehicle-related, the court may admit evidence on

the concentration of * * * drugs of abuse, controlled substances,

metabolites of a controlled substance, or a combination of them in the

defendant’s whole blood, blood serum or plasma * * * at the time of the

22.
 alleged violation as shown by chemical analysis of the substance withdrawn

within three hours of the time of the alleged violation. * * * The court may

admit evidence on the concentration of * * * drugs of abuse * * * when * *

* a blood or urine sample is obtained pursuant to a search warrant. * * *

The bodily substance withdrawn under division (D)(1)(b) of this

section shall be analyzed in accordance with methods approved by the

director of health by an individual possessing a valid permit issued by the

director pursuant to section 3701.143 of the Revised Code.

{¶ 57} R.C. 3701.143 requires the director of health to “determine, or cause to be

determined, techniques or methods for chemically analyzing a person’s whole blood.”

Then, the director must “approve satisfactory techniques or methods, ascertain the

qualifications of individuals to conduct such analyses, and issue permits to qualified

persons authorizing them to perform such analyses.” DOH, pursuant to this mandate,

promulgated regulations which are set forth in Ohio Adm.Code 3701-53-01 et seq.

{¶ 58} At the suppression hearings, several witnesses were called to testify. The

relevant testimony follows.

{¶ 59} Dalibor Tomljenovic testified he is a registered nurse and worked at the

Wood County Hospital (“hospital”) emergency room (“ER”). He stated the hospital has

policies and procedures in effect for obtaining venipuncture specimen, and he received

training on them when he was hired.

{¶ 60} On the evening of August 3, 2016, Tomljenovic was working at the

hospital and assigned to the trauma rooms when appellant became his patient. At

23.
approximately 9:55 p.m., shortly after appellant’s arrival, he obtained a blood sample

from appellant, which was standard hospital procedure.

{¶ 61} Tomljenovic testified he used an IV start kit, which is a prepackaged,

sterile unit, and a non-alcohol type swab to obtain the blood sample. The blood was

collected in vials, which were properly sealed. There were five or six vials, some had

solid anticoagulant and some had liquid anticoagulant. Tomljenovic put the time of the

blood draw and his initials on the patient identifying labels, which have the patient’s

name, date of birth and medical record number. He placed the vials in a Ziplock-type bag

and passed the bag to his charge nurse or a fellow employee to take to the lab, as he did

not want to leave appellant unattended. Tomljenovic testified the manner in which he

obtained the blood was in accordance with the hospital’s policies and procedures.

{¶ 62} Judy Ubben testified that she is a medical technologist and is the Outreach

and Phlebotomy Supervisor in the laboratory at the hospital. She started working at the

hospital in 1995 and has worked in the lab the entire time. The lab has a permit to

operate from the Ohio director of health. Ubben stated the hospital has written policies

and procedures for blood testing and urine samples. Specimens are drawn for testing and

brought to the lab by a member of the ER, where the specimens are prepared for testing

and tested on analyzers. After testing, the samples are placed in racks and the racks are

placed in the refrigerator at the end of the third shift, which is midnight. Ubben was not

personally involved in appellant’s case.

{¶ 63} Bowling Green Police Department Detective Andy Mulinix testified he was

called into work on August 3, 2016, in reference to a fatal crash. He assisted Officer

24.
Reinhart in creating the search warrant for appellant’s blood and urine samples at the

hospital. Detective Mulinix executed the search warrant at the hospital, obtained the

evidence and took it to “our property officer.” The detective was shown a property

control form from the coroner for the property he picked up at the hospital, which

ultimately was relayed to the coroner’s office.

{¶ 64} Dr. Robert Forney testified he is the chief toxicologist in the coroner’s

office, and appellant’s blood samples were received in vials which, to his knowledge,

were sterile and vacuum sealed when the blood was collected. The doctor explained the

internal and external chains of custody of the specimen, which included examining the

material for its integrity, to ensure it was being properly sealed and labeled. The doctor

had no personal knowledge of the chain of custody at the hospital or police department.

{¶ 65} Dr. Forney testified the vials of appellant’s blood, which contained a solid

anticoagulant, were properly sealed and labeled and also refrigerated when not under

examination. He stated refrigeration slows down bacterial growth, although “[w]e are not

really that worried about bacterial growth, but it’s a standard laboratory practice” to

refrigerate blood samples, although the vials of blood have a preservative in them. The

doctor maintained records of refrigerant control and monitored temperatures at the lab,

but he had no personal knowledge of the refrigerant conditions of the samples prior to

receiving them.

{¶ 66} Dr. Forney noted blood or blood serum tests in the lab are conducted per

DOH standards, which is his responsibility to oversee. He stated he is certified, as are the

laboratory personnel, which means they have valid permits issued by the director of

25.
health pursuant to R.C. 3701.143. The doctor testified the coroner’s office maintains a

chain of custody of test results on samples for not less than three years, and with respect

to positive blood and urine samples, they are retained for not less than one year, in

accordance with Ohio Adm.Code 3701-53-05. He also stated the lab successfully

completes a national proficiency testing program using techniques or methods for which

the laboratory personnel obtain permits under Ohio Adm.Code 3701-53-09. The

coroner’s office has a written procedure manual, which is updated periodically, for

techniques or methods used for testing for alcohol or drugs of abuse in bodily substances,

which is in compliance with Ohio Adm.Code 3701-53-06. Dr. Forney, as lab director,

also ensures certain procedures are followed, including maintaining documents, and

supervising and monitoring laboratory technicians, who are adequately trained and

experienced to perform testing on bodily substances for alcohol and drugs of abuse.

{¶ 67} Dr. Forney testified on October 21, 2016, he signed a report of the analyses

for Bowling Green Police on appellant’s specimens, to certify the results.

{¶ 68} Megan Meyer testified she works at the coroner’s office forensic

toxicology lab. Meyer signed for appellant’s blood vials and samples when they were

received into the lab on August 9, 2016. She was shown the property control form which

showed two vials of appellant’s blood were received. She conducted the screening on

appellant’s blood, in accordance with the methods and techniques used the procedural

manual for the coroner’s office. Ms. Meyer was shown and identified the lab report

containing the results of the tests of appellant’s blood.

26.
 {¶ 69} In its January 4, 2018 order, the trial court found appellant’s blood was

drawn as a matter of medical treatment, within three hours of the alleged violation, as

required by R.C. 4511.19(D)(1)(b), and the blood sample was obtained pursuant to a

search warrant.

{¶ 70} The court noted it was argued that the blood was not collected and handled

as required by DOH, which is set forth in Ohio Adm.Code 3701-53-05. The court

explained the circumstances under which the nurse drew appellant’s blood using

Betadine, which is a non-volative antiseptic. The court then addressed the argument that

the laboratory that analyzed the blood failed to comply with DOH requirements as set

forth in Ohio Adm.Code 3701-53-06. The court stated ‘[t]he blood that was tested in this

case went from the Wood County Hospital to The Lucas County Coroner then to a

reference lab. All properly credentialed facilities, as discussed above.” The court denied

the motion to suppress.

{¶ 71} Ohio Adm.Code 3701-53-05 states the requirements for the collection and

handling of blood and urine specimens, as follows:

(A) All samples shall be collected in accordance with section

4511.19 * * *.

(B) When collecting a blood sample, an aqueous solution of a non-

volatile antiseptic shall be used on the skin. No alcohols shall be used as a

skin antiseptic.

(C) Blood shall be drawn with a sterile dry needle into a vacuum

container with a solid anticoagulant * * *.

27.
 ***

(E) Blood and urine containers shall be sealed in a manner such that

tampering can be detected and have a label which contains at least the

following information:

(1) Name of suspect;

(2) Date and time of collection;

(3) Name or initials of person collecting the sample; and

(4) Name or initials of person sealing the sample.

(F) While not in transit or under examination, all blood and urine

specimens shall be refrigerated.

{¶ 72} Ohio Adm.Code 3701-53-06 sets forth the requirements for laboratories.

{¶ 73} Here, appellant raises no arguments that the state did not comply with Ohio

Adm.Code 3701-53-06. Therefore, we will limit our analysis to appellant’s assertion that

the state failed to prove substantial compliance with DOH regulations, and violated Ohio

Adm.Code 3701-53-05.

{¶ 74} A review of the record shows the state presented the testimony of several

witnesses to establish its compliance with the regulations for obtaining, handling and

testing appellant’s blood sample. The state also submitted exhibits in support of its

position.

{¶ 75} We find the state offered evidence that the nurse drew appellant’s blood,

using a non-alcohol swab, within three hours of the accident. The blood was collected in

vials, which were properly sealed and labeled, and some of which contained a solid

28.
anticoagulant. The vials were obtained by police, pursuant to a search warrant, and

forwarded to the coroner’s office for testing. When the vials of appellant’s blood were

received by the coroner’s office, the vials were examined for their integrity, and were

found to be properly sealed and labeled, and containing a solid anticoagulant.

{¶ 76} While there was no testimony that the vials were sealed in a manner that

tampering would be indicated, there was also no testimony that any tampering had

occurred or been attempted with the vials. Rather, the testimony that was presented

clearly indicates the vials received by the coroner’s office for testing were properly

sealed and labeled. We therefore find the state demonstrated it substantially complied

with Ohio Adm.Code 3701-53-05(A), (B), (C) and (D).

{¶ 77} With respect to the refrigeration of appellant’s blood specimen, we find the

state did not present evidence that appellant’s blood was always refrigerated while not in

transit or under examination, as required by Ohio Adm.Code 3701-53-05(F). However,

the state did offer testimony that the blood was refrigerated a considerable portion of the

time when it was not in transit or being tested. In addition, Dr. Forney’s testimony

indicated refrigeration slows down bacterial growth, but “[w]e are not really that worried

about bacterial growth.” The doctor also noted the vials of blood had a preservative in

them. We find, based on the foregoing, the state’s failure to meet the refrigeration of

blood requirement is de minimis. We therefore find the state substantially complied with

Ohio Adm.Code 3701-53-05(F).

{¶ 78} Since the state demonstrated substantial compliance with the regulations,

the test results were presumptively admissible, so the burden shifted to appellant to show

29.
she was prejudiced by the state’s less than strict compliance. Appellant failed to sustain

this burden as she offered no evidence that she was adversely affected. We therefore find

the trial court did not err in denying appellant’s motion to suppress. Accordingly,

appellant’s fourth assignment of error is not well-taken.

Fifth Assignment of Error

{¶ 79} Appellant contends the state failed to present sufficient evidence of a

violation of R.C. 4511.19, the general OVI statute. As we found in appellant’s second

assignment of error, there was sufficient evidence to prove each element of involuntary

manslaughter while operating a vehicle under the influence, in Count 5, as amended.

Accordingly, appellant’s fifth assignment of error is not well-taken.

Sixth Assignment of Error

{¶ 80} Appellant asserts the state engaged in severe prejudicial behavior which

“cumulatively and specifically resulted in Plain Error by the Trial Judge in not declaring

an immediate mistrial.” Appellant contends the state referred to the jury as “John’s jury”

when introducing Etzinger’s mother and the mother of his children to the jury, which

appellant claims, “is unacceptable.” In addition, during closing argument, appellant

argues the state: repeatedly referenced facts not in evidence (that appellant was stoned

while driving even though there was no testimony appellant was under the influence);

presumed the testimony of witnesses who did not testify (ER doctor, Dr. Ashraf, and

EMTs); denigrated the defense and its expert witnesses; told the jury recklessness should

be a foregone conclusion; asked the jury to imagine what the deceased would say and

envision his hands rising from the grave; and misrepresented reasonable doubt.

30.
Appellant observes defense counsel did not object to these remarks nor did the judge

comment on them. Appellant submits “[t]aken as a whole, and when weighed against the

weak evidence presented by the State, [appellant] was deprived of a fair trial, and the

outcome would have been different but for these statements.”

{¶ 81} The test for prosecutorial misconduct is whether the statements complained

of deprived the defendant of a fair trial. State v. Apanovitch, 33 Ohio St.3d 19, 24, 514

N.E.2d 394 (1987); State v. Roughton, 132 Ohio App.3d 268, 286, 724 N.E.2d 1193 (6th

Dist.1999). The prosecutor’s remarks must be considered in the context of the entire

trial. State v. Keenan, 66 Ohio St.3d 402, 410, 613 N.E.2d 203 (1993). Since appellant

failed to object to the prosecutor’s statements throughout the trial and during closing

argument, she forfeited of all but plain error on appeal. See State v. Jackson, 92 Ohio

St.3d 436, 438, 751 N.E.2d 946 (2001).

{¶ 82} Crim.R. 52(B), plain error, states “[p]lain errors or defects affecting

substantial rights may be noticed although they were not brought to the attention of the

court.”

By its very terms, the rule places three limitations on a reviewing

court’s decision to correct an error despite the absence of a timely objection

at trial. First, there must be an error, i.e., a deviation from a legal rule. * *

* Second, the error must be plain * * * within the meaning of Crim.R.

52(B), an error must be an “obvious” defect in the trial proceedings. * * *

Third, the error must have affected “substantial rights.” We have

interpreted this aspect of the rule to mean that the trial court's error must

31.
 have affected the outcome of the trial. State v. Barnes, 94 Ohio St.3d 21,

27, 759 N.E.2d 1240 (2002).

{¶ 83} The standard of review under plain error “is a strict one.” State v.

Murphy, 91 Ohio St.3d 516, 532, 747 N.E.2d 765 (2001). Under the plain error

standard, “the defendant bears the burden of demonstrating that a plain error

affected his substantial rights.” State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-

297, 802 N.E.2d 643, ¶ 14.

{¶ 84} Here, appellant did not cite to any authority in support of her position that

the prosecutor’s statements were improper or that the prosecutor engaged in severely

prejudicial behavior or misconduct by making the statements. “It is the duty of the

appellant, not this court, to demonstrate his assigned error through an argument that is

supported by citations to legal authority and facts in the record.” State v. Taylor, 9th

Dist. Medina No. 2783-M, 1999 WL 61619, * 3 (Feb. 9, 1999). An appellant has the

burden of demonstrating error on appeal. See App.R. 16(A)(7), which states “[t]he

appellant shall include in its brief * * *[a]n argument containing the contentions of the

appellant with respect to each assignment of error presented for review and the reasons in

support of the contentions, with citations to the authorities, statutes, and parts of the

record on which appellant relies.” This basis alone is sufficient to dispose of appellant’s

assignment of error. Nevertheless, we will address the assigned error.

{¶ 85} Upon review of the over 1,400 pages of the trial transcript, and paying

particular attention to the challenged prejudicial behavior of the prosecutor, we find the

prosecutor’s statements did not deprive appellant of a fair trial. Although we find some

32.
of the prosecutor’s comments were inappropriate, when we consider the comments in the

context of the entire trial, as we are required to do, and in light of the plain-error standard,

we cannot say that but for the prosecutor’s comments, appellant would have been

acquitted. We therefore we find appellant has not demonstrated plain error in the trial

court’s decision to not immediately declare a mistrial based on the prosecutor’s behavior.

Accordingly, appellant’s sixth assignment of error is not well-taken.

Seventh Assignment of Error

{¶ 86} Appellant contends she was denied due process of law and a fair trial due

to the cumulative effect of errors by the trial court. Appellant argues the errors included

the admission of prejudicial evidence over objection, repeated testimony about the

gruesome nature of Etzinger’s injuries over objection and irrelevant testimony, as well as

animosity between the trial court and defense counsel and the timing of when the case

was given to the jury.

{¶ 87} The cumulative error doctrine provides that, “a conviction will be reversed

when the cumulative effect of errors in a trial deprives a defendant of a fair trial even

though each of the numerous instances of trial court error does not individually constitute

cause for reversal.” State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987),

paragraph two of the syllabus. Thus, “[s]eparately harmless errors may violate a

defendant’s right to a fair trial when the errors are considered together.” State v.

Madrigal, 87 Ohio St.3d 378, 397, 721 N.E.2d 52 (2000). In order to determine whether

the cumulative error doctrine applies, there must first be a finding that multiple errors

were committed at trial. Id. Then, there must be a finding that there is a reasonable

33.
probability the outcome of the trial would have been different but for the combination of

the separately harmless errors. State v. Moreland, 50 Ohio St.3d 58, 69, 552 N.E.2d 894

(1990).

{¶ 88} Here, other than the standard for the cumulative error doctrine, appellant

cites to no legal authority in support of her position. As noted above, appellant has the

burden of demonstrating error on appeal. App.R. 16(A)(7). This basis alone is sufficient

to dispose of appellant’s assignment of error. However, we will consider the assigned

error.

{¶ 89} Appellant references the following two instances of Etzinger’s mother’s

testimony in support of her argument that the trial court erroneously allowed repeated

testimony about the gruesome nature of Etzinger’s injuries: Etzinger’s mother was not

permitted to see her son’s body due to his head injury and a closed casket was required.

{¶ 90} “The admission or exclusion of relevant evidence rests within the sound

discretion of the trial court.” State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987),

paragraph two of the syllabus. An abuse of discretion constitutes more than an error of

law or judgment, it implies the trial court acted unreasonably, arbitrarily, or

unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983). Relevant evidence is generally admissible under Evid.R. 402, if it has “any

tendency to make the existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without the evidence.”

Evid.R. 401. Yet, evidence must be excluded when its “probative value is substantially

outweighed by the danger of unfair prejudice.” Evid.R. 403(A).

34.
 {¶ 91} Here, upon review, we find nothing gruesome, unfairly repetitive or

prejudicial in Etzinger’s mother’s testimony. Thus, the court did not abuse its discretion

in allowing this testimony.

{¶ 92} Appellant further claims the court allowed testimony which had no

relevance to whether appellant’s having inactive cocaine metabolite in her system at the

time of the crash was the proximate cause of the accident. In particular, appellant cites to

Etzinger’s mother’s testimony that a closed casket was required and that appellant did not

attend the funeral.

{¶ 93} Upon review, we find the court acted within its discretion in allowing the

challenged testimony, as the testimony concerning the closed casket was relevant and

probative as to the nature, in general, of Etzinger’s injuries, and appellant’s failure to

attend Etzinger’s funeral was arguably relevant to indicate consciousness of guilt.

{¶ 94} Appellant also asserts there was obvious animosity between the trial court

and defense counsel “that was on display to the Jury,” including the court making a joke

at defense counsel’s expense. Appellant claims there were “many examples of this sort

of bickering and hostility.”

{¶ 95} The only instance of animosity between the trial court and defense counsel

mentioned by appellant was a comment uttered by the judge, which appellant describes as

a joke made at defense counsel’s expense. Upon review, the challenged statement was

the judge’s attempt at humor, and was neither nasty nor hostile. We do not find this one

comment establishes obvious animosity between the judge and defense counsel, nor do

we find this comment prejudicial to appellant.

35.
 {¶ 96} With respect to the timing of when the case was given to the jury, appellant

notes the court charged the jury at 5:00 p.m. on Friday, before a three day weekend, in

the midst of a snowstorm, with no indication how long the jury would be held. Appellant

submits “[u]nsurprisingly, the Jury returned a verdict by 7:16 following 5 days of trial.”

{¶ 97} Upon review, appellant has not demonstrated how the trial court committed

error by submitting the case to the jury when it did. The court had no control over the

weather and had limited control over when the trial ended. Moreover, appellant has not

shown how she was prejudiced by the timing of the case going to the jury.

{¶ 98} In light of the foregoing, the record does not support a finding that there

were multiple errors at appellant’s trial such that the cumulative error doctrine would be

applicable. Accordingly, appellant’s seventh assignment of error is not well-taken.

Eighth Assignment of Error

{¶ 99} Appellant asserts her convictions are against the manifest weight of the

evidence. The standard of review for manifest weight is the same in a criminal case as

in a civil case, and an appellate court’s function is to determine whether the greater

amount of credible evidence supports the verdict. Eastley v. Volkman, 132 Ohio St.3d

328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 12; State v. Thompkins, 78 Ohio St.3d at 387,

678 N.E.2d 541. “A manifest weight of the evidence challenge contests the believability

of the evidence presented.” (Citation omitted.) State v. Wynder, 11th Dist. Ashtabula

No. 2001-A-0063, 2003-Ohio-5978, ¶ 23. When determining whether a conviction is

against the manifest weight, the appellate court must review the record, weigh the

evidence and all reasonable inferences drawn from it, consider the witnesses' credibility

36.
and decide, in resolving any conflicts in the evidence, whether the trier of fact “clearly

lost its way and created such a manifest miscarriage of justice that the conviction must be

reversed and a new trial ordered.” State v. Prescott, 190 Ohio App.3d 702, 2010-Ohio

6048, 943 N.E.2d 1092, ¶ 48 (6th Dist.), citing Thompkins at 387.

{¶ 100} It has long been held that the weight to be given to the evidence and the

credibility of the witnesses is primarily for the trier of fact to decide. State v. Thomas, 70

Ohio St.2d 79, 80, 434 N.E.2d 1356 (1982). When reviewing a manifest weight of the

evidence challenge, an appellate court sits as the “thirteenth juror.” Prescott at ¶ 48,

citing Thompkins at 387.

{¶ 101} Here, appellant argues that she offered a credible reason for the accident:

she was attacked by Etzinger, who had a history of domestic violence. Appellant

maintains the state never presented a good reason why her version of the accident was

unacceptable. Appellant submits the jury lost its way and forgot that they needed facts to

convict, not outrage by the prosecutor.

{¶ 102} Since we have already determined there was insufficient evidence to

support appellant’s convictions with respect to Count 5, involuntary manslaughter DUS

(“5-IM-DUS”) and Count 7, aggravated vehicular homicide, we will undertake a manifest

weight of the evidence analysis as to her remaining convictions: Counts 1; 2; 4; 5,

involuntary manslaughter OVI (“5-IM-OVI”); and 6.

{¶ 103} A review of the record shows appellant testified that while she was

driving prior to the accident, Etzinger hit her, grabbed her throat and choked her. The

next thing appellant recalled was that it was really dark, she looked to the right and

37.
Etzinger was leaning on her. Appellant described where on her face and throat she was

hit, grabbed and choked, and she explained how and with what hand Etzinger attacked

her. Appellant also offered evidence of Etzinger’s violent past with his ex-girlfriend.

{¶ 104} The state presented evidence that prior to the accident, appellant was

driving, she and Etzinger were arguing, she was mad at Etzinger, she had controlled

substances in her system and she may have been speeding when she lost control of the

vehicle. The state provided evidence that after the accident, several items were found in

the vehicle, including: an empty case of beer, in the back seat, but no open beer cans; a

small amount of marijuana in a bag on the passenger side; and a can of duster on the

driver’s side floor. The state also offered evidence that appellant: moved Etzinger’s dead

body to the driver’s seat of the vehicle and placed his hand on the gear shift; told lies on

several occasions concerning being pregnant and using drugs; and gave a number of

inconsistent accounts and explanations regarding where Etzinger hit or punched her

before the accident, whether Etzinger was a violent person, and for what purpose the

duster was purchased.

{¶ 105} The state further offered testimony that appellant was a drug addict, yet

she denied using drugs on the day of the accident. The state presented evidence as to the

particular controlled substances found in appellant’s blood and urine samples, as well as

the effects that drugs like alprazolam and diflouroethane can have on a person. In

addition, the stated provided evidence that the can of duster found in the vehicle after the

accident was missing its safety tab and was approximately 20 percent lighter by weight

38.
than a full can of duster, which indicated that it had been used from the time it was

purchased, which was immediately before the accident.

{¶ 106} After reviewing the entire record and weighing the evidence and all

reasonable inferences, we cannot say the jury lost its way and created a manifest

miscarriage of justice, with respect to Counts 1, 2, 4, 5-IM-OVI and 6. The jury was able

to view the witnesses and observe their demeanors, consider the witnesses’ credibility

and resolve conflicts in the evidence, as to Counts 1, 2, 4, 5-IM-OVI and 6. Appellant’s

convictions as to Counts 1, 2, 4, 5-IM-OVI and 6 are not against the manifest weight of

the evidence. Accordingly, appellant’s eighth assignment of error is not well-taken as to

Counts 1, 2, 4, 5-IM-OVI and 6.

Summary

{¶ 107} We find appellant’s first, third, fourth, fifth, six and seventh assignments

of error not well-taken.

{¶ 108} We find appellant’s second assignment of error not well-taken as to

Counts 1, 2, 4, 5-IM-OVI and 6, but we find appellant’s second assignment of error well-

taken as to Count 5-IM-DUS and Count 7.

{¶ 109} We find appellant’s eighth assignment of error not well-taken as to Counts

1, 2, 4, 5-IM-OVI and 6, but we find appellant’s eighth assignment of error well-taken as

to Count 5-IM-DUS and Count 7.

{¶ 110} We affirm appellant’s convictions as to Counts 1, 2, 4, 5-IM-OVI and 6.

{¶ 111} We reverse and vacate appellant’s convictions as to Count 5-IM-DUS and

Count 7.

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 Conclusion

{¶ 112} On consideration whereof, the judgment of the Wood County Common

Pleas Court is affirmed, in part, and reversed, in part. We reverse and vacate appellant’s

convictions for involuntary manslaughter while driving under suspension, and for

aggravated vehicular homicide. We affirm the remainder of appellant’s convictions. The

bail granted to appellant pending appeal is ordered terminated. This matter is remanded

for further proceedings consistent with this opinion. The parties are ordered to split the

costs of this appeal pursuant to App.R. 24.

{¶ 113} Judgment affirmed, in part, and reversed and vacated, in part.

Judgment affirmed, in part,
and reversed, in part.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

Arlene Singer, J. _______________________________
JUDGE
Christine E. Mayle, P.J.
_______________________________
Gene A. Zmuda, J. JUDGE
CONCUR.
_______________________________
JUDGE

This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.

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