State v. Moore

[Cite as State v. Moore, 2021-Ohio-2128.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28969
:
v. : Trial Court Case No. 2018-CR-1292
:
JOHNNIE LEE MOORE : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:

...........

OPINION

Rendered on the 25th day of June, 2021.

...........

MATHIAS H. HECK, JR. by LISA M. LIGHT, Atty. Reg. No. 0097348, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee

JOHNNIE LEE MOORE, #A768-256, P.O. Box 740, London, Ohio 43140
Defendant-Appellant, Pro Se

.............

EPLEY, J.
 -2-

{¶ 1} Johnnie Lee Moore appeals from a judgment of the Montgomery County

Court of Common Pleas, which denied his petition for postconviction relief without a

hearing. For the following reasons, the trial court’s judgment will be affirmed.

I. Facts and Procedural History

{¶ 2} In December 2019, Moore was convicted of aggravated vehicular homicide,

in violation of R.C. 2903.06(A)(1)(a) (proximate result of OVI). In his direct appeal, State

v. Moore, 2d Dist. Montgomery No. 28640, 2021-Ohio-1114, we detailed the evidence

from the suppression hearing relevant to Moore’s blood sample, and we summarize it

here.

{¶ 3} At approximately 7:14 p.m. on November 14, 2017, Moore was driving at a

speed of approximately 120 mph when he collided with the rear of another vehicle,

causing the death of the driver. His vehicle then crossed the center of the roadway, hit

a third vehicle head-on, and ended up in an embankment. Moore was seriously injured.

{¶ 4} Responding medics extricated Moore from his vehicle and placed him an

ambulance. Prior to his transport to the hospital, Officer Sherri Robinson checked on

Moore’s condition and noticed a moderate odor of alcohol emanating from him. The

officer also learned from Moore’s wife that Moore had been driving home from a bar.

Based on the collision, the odor of alcohol, and the fact that Moore had left a bar,

Robinson suspected that Moore had been driving under the influence of alcohol. She

followed the ambulance to the hospital to seek Moore’s consent for a blood sample.

{¶ 5} Robinson was unable to speak with Moore upon arrival at the hospital,

because Moore was taken for CAT scans and emergency treatment; hospital staff later
 -3-

informed Robinson that Moore had been sedated after his CAT scans due to his being

uncooperative. At 9:34 p.m., Robinson apprised her supervisor, Sergeant Joseph

McCrary, of the situation, and he told her that they needed to obtain a search warrant for

a blood sample from Moore. McCrary drove to the police station to begin preparing a

warrant. A search warrant ultimately was signed by a judge at 11:46 p.m. The warrant

permitted the drawing of Moore’s blood “any time day or night; as soon as possible (within

3 hours of operation of vehicle).”

{¶ 6} McCrary drove to the hospital with the signed warrant. While on the way,

he called Robinson and told her to inform medical staff that there was a search warrant

to obtain Moore’s blood sample. McCrary arrived at the hospital at 12:05 a.m. and gave

the search warrant to Robinson, who presented it to a phlebotomist. The phlebotomist

then used a standard “DUI kit” to obtain Moore’s blood sample. It is undisputed that

there was an approximate five-hour delay in taking Moore’s blood sample.

{¶ 7} On November 21, 2017, Brian Simons, a forensic toxicologist with the Miami

Valley Regional Crime Lab (MVRCL), performed an initial screen of Moore’s blood

sample. The screen was positive for ethanol at a concentration of .114, plus or minus

.011 gram per cent. One week later, on November 28, 2017, Simons used another

approved testing method to perform a confirmation analysis. The confirmation analysis

was positive for ethanol at a concentration of .117, plus or minus .011 gram per cent. All

of the data, including Simons’s data, was reviewed and used by forensic toxicologist

Kialee Bowles to author a report. Pursuant to MVRCL’s policy, the lower concentration

of .114, plus or minus .011 gram per cent, was reported.

{¶ 8} On April 27, 2018, Moore was indicted on two counts of aggravated vehicular
 -4-

homicide – one count in violation of R.C. 2903.06(A)(1)(a) (proximate result of OVI), a

felony of the second degree, and the other count in violation of R.C. 2903.06(A)(2)(a)

(recklessly), a felony of the third degree. Moore moved to suppress all evidence

obtained by the police, including the blood test results. He contended that the State

could not establish that his blood was drawn and tested pursuant to the requirements in

R.C. 4511.19(D) and Chapter 3701-53 of the Ohio Administrative Code. In a

supplemental motion to suppress filed on June 26, 2018, he raised three specific

violations: (1) his blood was not drawn within three hours of the automobile accident, (2)

his blood sample was not properly refrigerated, and (3) the chain of custody for the blood

sample was not maintained. Moore also claimed that the untimely drawing of his blood

was contrary to the search warrant and thus violated his Fourth Amendment rights.

{¶ 9} On June 28 and August 3, 2018, the trial court conducted hearings on

Moore’s motions to suppress related to the blood sample, during which it heard testimony

from Robinson, McCrary, the phlebotomist, and Simons. The parties submitted post-

hearing memoranda.

{¶ 10} On April 10, 2019, the trial court concluded that the approximate five-hour

delay in taking Moore’s blood did not require suppression. The court relied on State v.

Hassler, 115 Ohio St.3d 322, 2007-Ohio-4947, 875 N.E.2d 46, which held that “[a] blood

sample taken outside the time frame set out in R.C. 4511.19(D) is admissible to prove

that a person is under the influence of alcohol as proscribed by R.C. 4511.19(A)(1)(a) in

the prosecution for a violation of R.C. 2903.06, provided that the administrative

requirements of R.C. 4511.19(D) are substantially complied with and expert testimony is

offered.” Id. at syllabus (blood sample drawn approximately seven hours after accident
 -5-

was admissible).

{¶ 11} On May 23, 2019, the prosecutor sent an email to Matthew Juhascik of the

MVRCL, stating:

I have [an] Agg. Vehicular Homicide case that is set for trial in August. The

defendant is accused of driving while intoxicated and striking and killing a

lady (while she was driving) in Trotwood. Unfortunately, the police didn’t

get the search warrant until outside the 3 hour limit. We had a mts [motion

to suppress] and the Court will allow the BAC [blood alcohol concentration]

results to come into evidence but only if we have “expert” testimony to

accompany it on how it would affect the body. Kialee Bowles did the

testing on his blood. He had a 0.114 gm% bac. (her report dated 12-13-

17)[.] I know you can’t give specifics on how this level of alcohol would

effect [sic] Johnnie Moore personally but would you be willing to do a report

for us like you have in the past about generally what you would expect to

see how alcohol effects [sic] the body at this limit. We would greatly

appreciate it. This defendant has already killed one person before this

incident and we really need to get him off the streets. Let me know if you

need anything further. Thanks a lot.

(Emphasis added.) The same day, Juhascik replied that Bowles could provide an expert

report, and that he would review the report before she issued it. Juhascik copied Bowles

on his response to the prosecutor. The email response did not acknowledge the

potentially offending language.

{¶ 12} On May 31, Bowles emailed a report and her curriculum vitae to the
 -6-

prosecutor, who forwarded the email to defense counsel. The report, dated May 29,

2019, stated that she had been asked to describe “the possible effects of ethanol for a

subject with a measured blood concentration of 0.114 gm%.” Bowles reported that, “[f]or

most people, there are states of ethanol’s influence that they could be experiencing at a

blood concentration of 0.114 gm%” – euphoria and excitement, which she described.

The report did not address how alcohol would affect Moore personally.

{¶ 13} The matter then proceeded to a jury trial in November 2019, during which

Bowles testified, among several other witnesses. Bowles described her education and

experience in forensic toxicology, including the specific training she received regarding

the effects of alcohol on the human body. She testified that she authored the report

following her review of Simons’s testing, and she described how .114 grams per milliliter

of alcohol affects the average person. Bowles acknowledged that she could not offer

specifics about how that level of alcohol may have affected Moore on November 14, 2017.

Defense counsel’s cross-examination of Bowles emphasized that she did not know

whether Moore was impaired on November 14, 2017, and that alcohol could have

different effects depending on individual’s specific physical characteristics. On redirect

examination, Bowles expanded on her assessment that she would not have expected

Moore’s BAC to be lower if his blood had been drawn earlier.

{¶ 14} After deliberations, the jury found Moore guilty of both counts of aggravated

vehicular homicide. On December 12, 2019, the court merged the offenses and

sentenced Moore to a mandatory eight years in prison, suspended his driver’s license for

life, and ordered him to pay restitution of $4,337.07 and court costs. Moore appealed

from his conviction, challenging the trial court’s ruling on his motion to suppress. We
 -7-

recently held that the trial court did not err in overruling the motion to suppress and

affirmed the trial court’s judgment. Moore, 2d Dist. Montgomery No. 28640, 2021-Ohio-

1114.

{¶ 15} On October 1, 2020, while his direct appeal was pending, Moore filed a

petition for postconviction relief. Moore initially stated that his trial counsel acted

deficiently by failing to notify him of exculpatory evidence. In his supporting

memorandum, Moore asserted that the May 2019 email messages between the

prosecutor and MVRCL “show collusion by these two parties to withhold important facts

from the jury to my prejudice.” Moore asserted that the prosecutor’s May 23 email

inaccurately suggested to the crime lab that he was a “serial DUI killer” whom MVRCL

needed to help “get off the streets.” Moore emphasized that the prosecutor committed a

“serious sin of omission,” noting that the prior death involved neither an OVI, alcohol, nor

a vehicle.

{¶ 16} Moore’s petition further contended that the resultant MVRCL report and

blood test results were skewed in the State’s favor as a result, noting that the report did

not acknowledge other reasons why his BAC results may have been high and the report

provided “only a generalized evaluation as to how this BAC might have affected some

imaginary person.” Moore argued that “[d]ue process of law assumes that a trial is free

from any malfeasant act by any court officers,” and he claimed that the alleged conspiracy

between the prosecutor and MVRCL deprived him of due process.

{¶ 17} Four days after Moore filed his petition, the State moved for summary

judgment, asserting that all of Moore’s claims were barred by res judicata. The State

further asserted that Moore had provided “no affidavits or new evidence” to support his
 -8-

claim of collusion.

{¶ 18} On October 26, 2020, the trial court overruled Moore’s petition without a

hearing. Viewing Moore’s claim as one of ineffective assistance of trial counsel, the court

found that Moore could have raised his claim on direct appeal and, therefore, his claim

was barred by res judicata. Alternatively, the court found that, even if res judicata did

not apply, Moore’s argument was “utterly without merit.” The court reasoned:

First, Mr. Moore’s trial counsel cross examined the MVRCL forensic

toxicologist, Kialee Bowles (“Ms. Bowles”), at trial. It would have been

highly prejudicial to Mr. Moore had his trial attorney suggested to the jury

that he had killed someone before in an attempt to somehow prove,

somehow, that Ms. Bowles was biased against him. Further, Ms. Bowles

admitted at trial that she did not know the exact effects of ethanol on Mr.

Moore and was only testifying about the effects of ethanol on people

generally. The prosecutor’s subject e-mail is hardly exculpatory evidence

or, frankly, evidence of anything. It certainly does not even suggest

collusion between the State and Ms. Bowles, nor illustrate ineffective

assistance of trial counsel

{¶ 19} Moore appeals from the trial court’s judgment, claiming that the trial court

erred in overruling his petition for postconviction relief without a hearing.

II. Standard of Review for Petition for Postconviction Relief

{¶ 20} Under the postconviction relief statutes, any defendant who has been

convicted of a criminal offense and who claims to have experienced a denial or

infringement of his or her constitutional rights (federal or Ohio) may petition the trial court
 -9-

to vacate or set aside the judgment and sentence. R.C. 2953.21(A); e.g., State v. Martin,

2d Dist. Montgomery No. 27844, 2018-Ohio-3505, ¶ 9. A petition for postconviction relief

“is a means by which the petitioner may present constitutional issues to the court that

would otherwise be impossible to review because the evidence supporting those issues

is not contained in the record of the petitioner’s criminal conviction.” State v. Clark, 2017-

Ohio-120, 80 N.E.3d 1251, ¶ 14 (2d Dist.), quoting State v. Monroe, 2015-Ohio-844, 29

N.E.3d 391, ¶ 37 (10th Dist.). A postconviction proceeding is a “civil collateral attack on

a criminal judgment,” not an appeal from the criminal conviction. State v. Wells, 2d Dist.

Montgomery No. 22389, 2008-Ohio-4932, ¶ 11, citing State v. Calhoun, 86 Ohio St.3d

279, 281, 714 N.E.2d 905 (1999).

{¶ 21} R.C. 2953.21(D) provides that, before granting a hearing on a petition for

postconviction relief, the trial court shall determine whether there are substantive grounds

for relief. The petitioner bears the initial burden of submitting evidentiary documents with

sufficient facts to demonstrate a constitutional deprivation, such as ineffective assistance

of counsel, that would merit a hearing. State v. Jackson, 64 Ohio St.2d 107, 111, 413

N.E.2d 819 (1980), syllabus; Martin at ¶ 10. Broad conclusory allegations are

insufficient, as a matter of law, to require a hearing. Id. A petition for postconviction

relief may be properly denied without a hearing where the petition, its supporting

evidence, and the record “do not demonstrate that petitioner set forth sufficient operative

facts to establish substantive grounds for relief.” Calhoun at paragraph two of the

syllabus; State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 51;

State v. Sellars, 2d Dist. Montgomery No. 28860, 2021-Ohio-1433, ¶ 13.

{¶ 22} We review a trial court’s denial of a petition for postconviction relief without
 -10-

a hearing for an abuse of discretion. State v. Clemmons, 2d Dist. Montgomery No.

28085, 2019-Ohio-2997, ¶ 18; State v. Harden, 2d Dist. Montgomery 23617, 2010-Ohio-

3343, ¶ 10. An abuse of discretion occurs when the trial court’s decision is

unreasonable, arbitrary, or unconscionable. State v. Turner, 2d Dist. Montgomery No.

27350, 2017-Ohio-4101, ¶ 5, citing State v. Jenkins, 2d Dist. Montgomery No. 27173,

2017-Ohio-1073, ¶ 10.

III. Review of the Trial Court’s Denial of Moore’s Petition

{¶ 23} Moore’s petition for postconviction relief raised claims of ineffective

assistance of counsel and a denial of due process. He primarily claimed a due process

violation due to “collusion” between the prosecutor and the crime lab, and he asserted

that Bowles’s supplemental report improperly focused on an “imaginary” person with his

BAC result, not whether he was intoxicated. He further claimed that his counsel

rendered ineffective assistance by failing to notify him of this “exculpatory evidence.”

{¶ 24} The State asserts that Moore’s claims are barred by res judicata, as found

by the trial court. “ ‘Res judicata’ means that a final decision has previously been made;

it serves to preclude a party who had his or her day in court from seeking a second hearing

on the same issue.” Martin at ¶ 12, citing State v. Saxon, 109 Ohio St.3d 176, 2006-

Ohio-1245, 846 N.E.2d 824, ¶ 18. Under the doctrine of res judicata, “any issue that

could have been raised on direct appeal,” but was not, is “not subject to review in

subsequent proceedings.” Saxon at ¶ 16.

{¶ 25} The State focuses on the fact that the admissibility of the blood sample

results was a central issue raised in the trial court. Moore had sought to suppress the

blood sample evidence in a multi-faceted motion to suppress, and the denial of his motion
 -11-

to suppress was the focus of his direct appeal. The State emphasizes that the parties

and the trial court knew that the blood draw occurred outside of the three-hour time

window. The State contends that “Moore’s argument must be barred by res judicata, as

he had this information at the time of the motion to suppress, the time of trial, and could

have, and did argue it, on direct appeal.”

{¶ 26} It is clear, as the State asserts, that Moore was aware of the untimeliness

of the blood draw, and his counsel had received both Simons’s blood test results and

Bowles’s report and supplemental report prior to trial. To the limited extent that Moore

asserts that Bowles should not have been able to testify about how an average person

(as opposed to Moore himself) would be affected with a BAC of .114, as a matter of law,

that claim is barred by res judicata. Moore could have objected to that testimony at trial

and challenged the admission of that testimony on direct appeal. Accordingly, this

argument is barred by res judicata.

{¶ 27} Moore’s petition for postconviction relief, however, focused mainly on the

May 23, 2019 email between the prosecutor and MVRCL and Bowles’s May 29, 2019

supplemental report, which he asserts demonstrates “collusion” between the State and

MVRCL to ensure the admissibility of the blood sample evidence and his eventual

conviction. (Collusion has been defined as a “secret agreement or cooperation

especially for an illegal or deceitful purpose.” https://www.merriam-webster.com/

dictionary/collusion). The pivotal question is whether Moore could have raised this

argument on direct appeal.

{¶ 28} It is well established that when a claim relies upon information outside the

record, the issue cannot be addressed on direct appeal. See, e.g., State v. Lawson,
 -12-

2020-Ohio-6852, 164 N.E.3d 1130, ¶ 106 (where a claim of lack of communication

between a defendant and trial counsel relies upon evidence outside of the record, it is

“not an issue we can review on direct appeal”); State v. Merrick, 2d Dist. Greene No.

2019-CA-29, 2020-Ohio-3744, ¶ 25 (defendant’s claim regarding his attorney’s conduct

“relies on matters outside the record and, consequently, is not properly raised on direct

appeal”).

{¶ 29} Here, it is unclear when defense counsel received a copy of the prosecutor’s

May 23, 2019 email. Regardless, even assuming that defense counsel received it during

the pendency of Moore’s case, that email was not in the record on direct appeal. It was

not used for cross-examination or otherwise mentioned at trial. Had Moore attempted to

raise a due process/collusion claim on direct appeal, we would have been compelled to

hold that such a claim was not cognizable on direct appeal as it relied on evidence outside

the record. Accordingly, Moore’s due process/collusion claim based on the May 23,

2019 email is not barred by res judicata.

{¶ 30} Turning to the merits of Moore’s petition, the trial court focused on Moore’s

claim of ineffective assistance of trial counsel. In its appellate brief, the State similarly

discussed defense counsel’s actions at trial. The State contends that Moore’s trial

counsel reasonably failed to cross-examine Bowles with the May 23 email, arguing that

“[i]t would have been highly prejudicial to Moore had his trial attorney suggest[ed] to the

jury that Moore killed someone before to prove that the forensic toxicologist was

prejudiced against him.” The State emphasizes that the toxicologist admitted that she

did not know the effects of alcohol on Moore personally, and that she was only testifying

about the general effects of alcohol on the average person.
 -13-

{¶ 31} We agree that evidence of Moore’s involvement in a prior death would have

been prejudicial to Moore, and counsel reasonably avoided making the jury aware of that

prior conduct. To the extent that Moore’s petition for postconviction relief claims that his

counsel rendered ineffective assistance at trial, the trial court reasonably concluded that

defense counsel employed a reasonable trial strategy, which we will not second-guess.

Moreover, to the extent that Moore argues that his counsel failed to make him aware of

the email, we agree that the email was not exculpatory and that there is no evidence that

counsel failed to make him aware of the email prior to trial.

{¶ 32} Moore’s petition primarily concerned “newly discovered evidence that

reveals a conspiracy by the Montgomery County Prosecutor's Office and the Miami Valley

Regional Crime Laboratory (MVRCL) to hide from this Court the facts of how testing my

blood for alcohol content after more than 4.5 hours after this incident in question took

place ma[y] be inaccurate, and, hence, is barred by O.R.C. 4511.19.” He expressly

stated that this “conspiracy” deprived him of due process of law. In short, Moore

contended that the State improperly influenced the forensic toxicologist to produce a

report that was more favorable to the State’s position than it otherwise would have been.

{¶ 33} Moore had the initial burden of submitting evidentiary documents with

sufficient facts to demonstrate a constitutional deprivation (in this case, the denial of due

process) that would merit a hearing. Moore’s “new evidence” took the form of the May

2019 emails between the prosecutor and MVRCL.

{¶ 34} Upon review of the May 2019 emails between the prosecutor and the crime

lab, we cannot conclude that the trial court abused its discretion in denying Moore’s

petition without a hearing. While Moore asserts that the prosecutor’s statements in the
 -14-

May 23 email biased the crime lab against him and encouraged the crime lab to help get

him “off the street,” there is nothing in the record to support that the prosecutor intended

or even realized that his email could be interpreted in this manner or that MVRCL

personnel interpreted the May 23 as such a request. The email reflects that the

prosecutor had asked for similar expert reports in the past, and the crime lab’s email

response demonstrated that Bowles could provide a supplemental report. There was no

indication in the crime lab’s response that the lab personnel interpreted the prosecutor’s

statements as anything other than an expression of the importance of receiving a

supplemental report for trial.

{¶ 35} Moreover, nothing in the record suggests that Bowles’s May 29, 2019 report

and her subsequent testimony was influenced, in any respect, by the statements

regarding Moore in the prosecutor’s May 23 email. Bowles’s report provided scientific

evidence about the effect of a particular blood alcohol concentration on an average

person, and Moore provided no evidence to suggest that her report and testimony were

scientifically inaccurate. Because Bowles had no contact with Moore and was not

provided information from which she could have potentially estimated the effect of a .114

gram per cent BAC on Moore personally, we find nothing to suggest that Bowles’s

reference to the effects on an average person was the result of collusion or otherwise

improper.

{¶ 36} Moore’s assignment of error is overruled.

IV. Conclusion

{¶ 37} The trial court did not error in denying Moore’s petition for postconviction

relief without a hearing. The trial court’s judgment will be affirmed.
 -15-

.............

TUCKER, P. J. and WELBAUM, J., concur.

Copies sent to:

Mathias H. Heck, Jr.
Lisa M. Light
Johnnie Lee Moore
Hon. Steven K. Dankof