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State v. Barger

Court of Appeals of Ohio, Second District, Montgomery

May 26, 2017

STATE OF OHIO Plaintiff-Appellee
v.
BRENT E. BARGER Defendant-Appellant

         Criminal Appeal from Common Pleas Court Trial Court Case No. 2014-CR-3711

          MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor's Office, Appellate Division, Montgomery County Courts Building, Attorney for Plaintiff-Appellee

          THOMAS KOLLIN, Atty. Reg. No. 0066964, Attorney for Defendant-Appellant

          OPINION

          WELBAUM, J.

         {¶ 1} Defendant-appellant, Brent Barger, appeals from his conviction and sentence, following a no-contest plea, on one count of Operating a Motor Vehicle while Under the Influence of Alcohol and one count of Aggravated Vehicular Homicide.

         {¶ 2} In support of his appeal, Barger contends that the trial court erred in failing to grant his motion to suppress. According to Barger, the arresting officer lacked probable cause to arrest Barger, the blood samples obtained from Barger after his arrest were not taken and stored in substantial compliance with the Ohio Administrative Code, and the blood samples were drawn as part of an unreasonable search and seizure conducted outside of the three-hour period provided in the search warrant.

         {¶ 3} After considering the record, we conclude that the trial court did not err in overruling the motion to suppress. Accordingly, the judgment of the trial court will be affirmed.

         I. Facts and Course of Proceedings

         {¶ 4} At approximately 9:39 P.M. on June 25, 2014, Officer Day of the West Carrollton Police Department was dispatched to the scene of a crash involving a motor vehicle driven by Brent Barger and a motorcycle at the intersection of Alex Bell Road and Kimberly Lane in West Carrollton. Upon arriving at the scene, Officer Day assisted Officer Flaute in performing C.P.R. on the motorcyclist. Shortly thereafter, members of the West Carrollton Fire and Paramedic Squad arrived at the accident scene and relieved the police officers in the first aid administration.

         {¶ 5} Officer Day then spoke with Dana Combs, an eyewitness to the accident. Ms. Combs explained that Barger's car turned left in front of the motorcyclist. The motorcycle crashed into the passenger side of Barger's vehicle. Tr. 9-11. Officer Day noticed Barger's silver car was parked on Kimberly Lane and had sustained damage on the passenger side front. Officer Day also noticed dents in the car and shattered headlight and headlight lenses.

         {¶ 6} Officer Day then spoke with Barger, who was sitting on the sidewalk. According to Officer Day, Barger was somewhat quiet and when he spoke to the officer, Barger looked down and away. Id. at 13. While Barger was speaking and looking away, Officer Day noticed the odor of alcohol coming from Barger. Id. at 14. The odor became stronger when Barger stood up. At that point, Officer Day noticed that Barger's eyes were glassy, bloodshot, and dilated. Id. at 15. When Officer Day asked Barger if he had consumed any alcoholic beverages that evening, Barger replied "no" in a "[v]ery stringent, very militarized type of stance, very stiff, very uncharacteristic of talking to somebody about, asking them normal questions." Id. Officer Day asked Barger to perform field sobriety tests, but Barger refused.

         {¶ 7} At about 10:30 P.M., Barger was placed under arrest by Officer Day. Id. at 16. Barger was placed in the rear of the police car for the purpose of being transported to the West Carrollton Police Department. Officer Day intended to photograph Barger at the police department and also acquire his fingerprints. Officer Day began to drive from the scene of the accident to the West Carrollton Police Department when he received a message from his supervisor. The officer was rerouted to go to Sycamore Hospital for the possible administration of a blood test. Barger was transported to Sycamore Hospital and secured in a room.

          {¶ 8} At 12:24 A.M., Sargent Flynn obtained the signature of a municipal judge on a search warrant. He then drove directly from the judge's house to Sycamore Hospital to obtain blood samples from Barger. The search warrant was executed and blood was drawn at 1:05 A.M.

         {¶ 9} The motorcyclist involved in the accident with Barger died. Subsequently, Barger was indicted by the Montgomery County Grand Jury on one count of Operating a Motor Vehicle while Under the Influence of Alcohol in violation of R.C. 4511.19(A)(1)(a), a misdemeanor of the first degree, and one count of Aggravated Vehicular Homicide in violation of R.C. 2903.06(A)(2), a felony of the third degree. Barger filed a motion to suppress evidence obtained from him after the June 25, 2014 accident. Dkt. 24, 48. The trial court overruled Barger's motion. Dkt. 32, 57, 74.

         {¶ 10} On July 6, 2016, Barger pled no contest as charged. The trial court found Barger guilty of both charges and sentenced him to concurrent terms of 180 days in jail for the Operating a Motor Vehicle while Under the Influence of Alcohol offense and 18 months in prison for the Aggravated Vehicular Homicide offence. Dkt. 93. Barger now appeals from his conviction and sentence.

         II. The Trial Court Did Not Err in Denying the Motion to Suppress

         {¶ 11} Barger's sole Assignment of Error states that:

         The Trial Court Erred When It Overruled Appellant's Motion to Suppress.

         {¶ 12} "Appellate review of a motion to suppress presents a mixed question of law and fact. When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses." (Citation omitted.) State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. "Consequently, an appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence. * * * Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard." (Citations omitted.) Id.

         {¶ 13} Based on our review of the record, we conclude that the factual findings made by the trial court are supported by competent, credible evidence. We will now determine whether these factual findings support the trial ...


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