Court of Appeals of Ohio, First District, Hamilton
Appeals From: Hamilton County Municipal Court Nos.
15TRC-45123A 15TRC-45123B 15TRC-45123D
Boggs Muething, City Solicitor, Natalia Harris, City
Prosecutor, and Christopher Lui, Appellate Director, for
Raymond T. Faller, Hamilton County Public Defender, and
Joshua A. Thompson, Assistant Public Defender, for
Defendant-appellant Anthony Rice appeals the judgments of the
Hamilton County Municipal Court convicting him, after a jury
trial, of operating a vehicle while under the influence of
alcohol or drugs ("OVI"), operating a vehicle with
a high-tier prohibited level of alcohol in his breath
("OVI per se breath high tier" or "OVI per
se"), and the reckless operation of a vehicle. In four
assignments of error, Rice argues that the trial court
committed prejudicial error by denying his motion to dismiss
the charges based on a due process violation, by denying his
motion to suppress the evidence because the police lacked
probable cause to arrest him for OVI, and by admitting
hearsay evidence at trial, and that his convictions were
against the manifest weight of the evidence.
We find no merit to the assigned errors, but the trial court
imposed a void sentence for the OVI offense. Therefore, we
vacate that sentence and remand the cause in the appeal
numbered C-160668 for the trial court to correct the judgment
of conviction. In all other respects, we affirm.
Background Facts and Procedure
Rice was involved in a two-car collision on Reading Road in
the Avondale area of Cincinnati on the evening of October 29,
2015. Rice claimed that he had been driving down the road
when another driver, later identified as Jamese Davis, pulled
out in front of him. The investigation by Cincinnati Police
Officer Corey Jones at the scene included the administration
of two standardized field sobriety tests. Although Rice
denied consuming any alcohol, the results of the
investigation indicated that Rice had been impaired by
alcohol or drugs at the time of the crash. Officer Jones
arrested Rice for OVI and discovered 28 grams of marijuana in
After transporting Rice to the safety of the District Four
police station, Officer Jones administered the standardized
horizontal-gaze-nystagmus test. Rice exhibited four of the
six signs of impairment during that test. Officer Jones next
obtained a urine sample from Rice, but later discarded it
without testing it after another officer had administered a
timely breathalyzer test. Rice's breath test demonstrated
a breath alcohol concentration of more than two times the
legal limit for alcohol. As relevant to these appeals,
Officer Jones subsequently charged Rice with OVI, "OVI
per se breath high tier, " and the reckless operation of
Prior to trial, Rice moved to dismiss the charges on due
process grounds because Officer Jones had discarded the urine
sample. Rice also moved to suppress certain evidence,
claiming in part that Officer Jones had lacked probable cause
to arrest him. The trial court denied both motions after a
combined pretrial hearing.
At trial, the state presented evidence from Rodney White,
another driver who had called 911 to report the accident.
Consistent with his 911 call, White testified that Rice's
black Jaguar had passed him at a very high rate of speed and
had been weaving through traffic and had
"fishtailed" before speeding through an
intersection and colliding with the other vehicle. He
estimated that when Rice passed him just before the
collision, Rice had been driving more than 80 m.p.h. in a 25
m.p.h. zone. While White saw the impact, he did not see the
location of the other vehicle before the impact.
Officer Jones testified to his investigation and the signs of
alcohol or drug impairment that he had observed both before
and after the arrest. He acknowledged that he had not smelled
any alcohol on or about Rice until he placed him in his
cruiser. Officer Jones's testimony was corroborated by
the video captured by the camera on his police cruiser.
Police Officer James Pike authenticated the breath-test
result that showed Rice's breath-alcohol content was .171
grams of alcohol per 210 liters of breath, .001 grams above
the high-tier prohibited alcohol level for breath.
Although Davis, the other driver involved in the collusion,
did not testify, Officer Jones was permitted to testify, over
Rice's objection, to what she had told him at the scene.
Davis implicated Rice in the accident and speculated that he
had been impaired.
Rice, testifying in his defense, stated that Davis caused the
accident when she pulled her vehicle out of the Family Dollar
parking lot and struck the passenger side of his vehicle as
he drove north on Reading Road. Rice claimed he had just
passed through the light at the intersection and was moving
into the passing lane. The collision pushed his vehicle into
the lane of oncoming traffic, causing him to steer his
vehicle across the sidewalk and into a tree. He denied
consuming any alcohol or smoking any marijuana on the day of
the accident, and contended that he was not driving faster
than 35 m.p.h. on Reading Road. Further, he claimed that the
collisions deployed his airbags, totaled his vehicle, and
left him "discombobulated."
The jury found Rice guilty of all charges. The trial court
determined that the OVI offense and OVI per se offense were
allied offenses of similar import that merged under R.C.
2945.25. The state elected the OVI per se offense for
sentencing, but the trial court imposed sentences on all
offenses, including the OVI offense.
Analysis A. Motion to Dismiss for Due Process
In his first assignment of error, Rice contends that the
trial court erred in denying his motion to dismiss the
OVI-related charges because the state's failure to
preserve his urine sample denied him due process of law. Rice
argues that the urine sample was (1) ...