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State v. Rice

Court of Appeals of Ohio, First District, Hamilton

December 20, 2017

STATE OF OHIO, Plaintiff-Appellant,
ANTHONY RICE, Defendant-Appellee.

         Criminal Appeals From: Hamilton County Municipal Court Nos. 15TRC-45123A 15TRC-45123B 15TRC-45123D

          Paula Boggs Muething, City Solicitor, Natalia Harris, City Prosecutor, and Christopher Lui, Appellate Director, for Plaintiff-Appellee

          Raymond T. Faller, Hamilton County Public Defender, and Joshua A. Thompson, Assistant Public Defender, for Defendant-Appellant.


          Miller, Judge.

         {¶1} 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.

         {¶2} 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.

         I. Background Facts and Procedure

         {¶3} 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 Rice's pocket.

         {¶4} 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 a vehicle.

         {¶5} 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.

         {¶6} 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.

         {¶7} 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.

         {¶8} 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.

         {¶9} 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."

         {¶10} 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.

         II. Analysis A. Motion to Dismiss for Due Process Violation

         {¶11} 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) ...

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