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State v. Kiger

Court of Appeals of Ohio, Fifth District, Licking

February 9, 2018

STATE OF OHIO Plaintiff-Appellee
v.
EMILY H.I. KIGER Defendant-Appellant

         Appeal from the Licking County Court of Common Pleas, Case No. 16 CR 697

          For Plaintiff-Appellee HAWKEN FLANAGAN Assistant Prosecuting Attorney.

          For Defendant-Appellant STEPHEN T. WOLFE Wolfe Law Group, LLC.

          Hon. John W. Wise, P.J. Hon. William B. Hoffman, J. Hon. Craig R. Baldwin, J.

          OPINION

          HOFFMAN, J.

         {¶1} Defendant-appellant Emily H.I. Kiger appeals her convictions and sentence entered by the Licking County Court of Common Pleas, on one count of aggravated vehicular homicide, in violation of R.C. 2903.06(A)(1)(a)(B)(1)(2)(a); one count of operating a motor vehicle while under the influence, in violation of R.C. 4511.19(A)(1)(a)(G)(1)(a)(i); one count of operating a motor vehicle while under the influence, in violation of R.C. 4511.19(A)(1)(f)(G)(1)(a)(i i); and one count of failure to obey a traffic control device, in violation of R.C. 4511.12(A)(B). Plaintiff-appellee is the state of Ohio.

         STATEMENT OF THE FACTS AND CASE

         {¶2} At approximately 1:30 a.m. on May 8, 2016, officers from the Newark Police Department were dispatched to the scene of an auto accident at the intersection of Main and Union Streets in Newark, Licking County, Ohio. Upon their arrival, officers observed two disabled vehicles, a silver Lexus SUV and a black Dodge pickup truck. Appellant, who was identified as the driver and sole occupant of the Lexus, was found in the vehicle, restrained in the driver's seat. David Ehlerman, who was identified as the driver and sole occupant of the pickup truck, had been ejected from his vehicle and was found on the roadway. Ehlerman was unconscious and unresponsive when officers reached him. He was transported to the Ohio State University Medical Center in Columbus, where he died of his injuries on May 9, 2016.

         {¶3} Officer Ray Lewis arrived at the scene, and made contact with Appellant while she was still in her vehicle. Although Appellant was conscious, she was not fully aware of her surroundings. Officer Lewis detected an odor of alcohol emanating from Appellant's vehicle, but was unable to further investigate due to Appellant's condition. Emergency medical personnel arrived at the scene and assumed care of Appellant. Thereafter, Officer Lewis assisted the other officers with the accident investigation.

         {¶4} Lisa Carkin and Victoria Fitzsimmons witnessed the accident. They were together in a vehicle on Union Street, stopped at a red light at the intersection of Main and Union Streets. Ehlerman was in the vehicle next to them at the intersection. Carkin and Fitzsimmons testified Ehlerman did not pull into the intersection until after the light had turned green. As Carkin was attempting to turn left onto Main Street, she observed Appellant out of the corner of her eye. Carkin immediately slammed on the brakes. She and Fitzsimmons stated Appellant was traveling at a high rate of speed and drove into the intersection through a red light, colliding with Ehlerman's truck.

         {¶5} Based upon the conditions and locations of the vehicles, Officer Lewis believed Appellant was at fault. Officer Lewis also believed Appellant may have been under the influence of alcohol based upon the odor of alcohol coming from the vehicle, the time of the accident, and the eyewitness accounts Appellant had been traveling at a high rate of speed when she failed to stop at the red light and drove through the intersection.

         {¶6} Officer Lewis informed his supervisor of his suspicion, and received authorization to attempt to obtain a blood alcohol test from Appellant. Appellant had been transported to the Ohio State University Medical Center due to her injuries. Officer Lewis retrieved a blood test kit from the police department and proceeded to the hospital. When Officer Lewis arrived at the hospital at approximately 3:00 a.m., he located Appellant in the triage area. Appellant was not conscious; therefore, the officer was unable to obtain her consent for the blood draw. Although Officer Lewis contemplated requesting a search warrant, he determined he would not be able to obtain the warrant and complete the blood draw within the statutory three-hour window following the accident. Officer Lewis was unfamiliar with the procedures for obtaining an after-hours warrant in Columbus, and believed the evidence of Appellant's intoxication would be compromised if he pursued a search warrant rather than proceed with a warrantless blood draw.

         {¶7} Hospital personnel performed the blood draw at approximately 3:15 a.m. on May 8, 2016. The specimen was tested at the Ohio State Highway Patrol Crime Lab. The results established Appellant had a blood alcohol content of 0.210.

         {¶8} Over the course of investigating the accident, officers contacted Zachary Bell. Bell advised the officers he came into contact with Appellant outside of Hooligan's Bar in Newark, on the night of the accident. Bell observed Appellant and another individual in a heated discussion. Appellant was crying. Appellant approached Bell's vehicle. Initially, Bell thought Appellant was someone he knew, but soon realized he was mistaken. Appellant asked Bell for a ride home. After speaking with the gentleman with whom Appellant had been in the heated discussion as well as Appellant, Bell agreed. Appellant was highly intoxicated and either would not or could not provide Bell with her address. Bell drove around for 30-45 minutes without being able to find out where Appellant lived. Bell returned to Hooligan's with Appellant in hopes of finding her friends.

         {¶9} Bell and Appellant entered the establishment. While Bell was using the restroom, Appellant left the bar and returned to her vehicle. Bell found Appellant in her vehicle and informed her she was in no condition to drive, and asked her to exit the vehicle. Appellant refused and drove out of the parking lot. Bell proceeded to his own vehicle and attempted to catch up to Appellant. He flashed his lights and honked his horn, trying to get Appellant's attention. Bell followed Appellant for a short time, but ended his pursuit due to the high rate of speed at which Appellant was driving. Bell stopped following Appellant approximately ½ to 1 mile before the intersection where the accident occurred.

         {¶10} Law enforcement personnel retrieved the airbag control modules from Appellant's Lexus and Ehlerman's pickup truck. Bradley Long, an Ohio State Highway Patrol trooper, conducted an analysis of the modules. The analysis revealed Ehlerman's pickup truck was traveling at a speed of 13 mph at the time of impact and Ehlerman had just started to apply the brakes. The analysis further revealed Appellant's Lexus was traveling in excess of 70 mph 5 seconds prior to the collision, and continued at that speed until the moment of impact. There was no evidence Appellant applied her brakes.

         {¶11} On November 10, 2016, the Licking County Grand Jury indicted Appellant on one count of aggravated vehicular homicide in violation of R.C. 2903.06(A)(1)(a)(B)(1)(2)(a); one count of operating a motor vehicle while under the influence, in violation of R.C. 4511.19(A)(1)(a)(G)(1)(a)(i); one count of operating a motor vehicle while under the influence, in violation of R.C. 4511.19(A)(1)(f)(G)(1)(a)(i i); and one count of failure to obey a traffic control device, in violation or R.C. ...


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