Court of Appeals of Ohio, Second District, Montgomery
Appeal from Common Pleas Court Trial Court Case No.
MATHIAS H. HECK, JR., by HEATHER N. JANS, Attorney for
SCHOENLEIN, Attorney for Defendant-Appellant
1} Defendant-appellant, Paul P. Ivkovich, appeals
from his convictions for two counts of aggravated vehicular
homicide under R.C. 2903.06(A). In four assignments of error,
Ivkovich argues that the trial court erred by overruling his
motion to suppress the results of a chemical analysis of his
blood; by failing to comply fully with Crim.R. 11(C) when it
accepted his pleas of no contest; and by improperly
sentencing him to a term of imprisonment greater than the
mandatory minimum in reliance on findings of fact that were
irrelevant or unsupported by the record. We find that the
trial court did not err, and we therefore affirm.
Facts and Procedural History
2} Early in the morning of April 30, 2015, Ivkovich
was driving in the vicinity of the intersection of East Third
Street and McDonough Street in Dayton, accompanied by Sharon
M. Crawford. See Tr. of Proceedings 185-186;
Appellant's Br. 3. At approximately 2:25 a.m.,
Ivkovich's vehicle collided with one of the pillars
supporting the railroad overpass spanning Third Street.
See Tr. of Proceedings 185-186; Pl.'s Mem. in
Opp'n to Def.'s Mot. to Suppress 3, Apr. 18, 2016;
see also Def's Mot. to Suppress 3, Nov. 30,
2015. Ivkovich and Crawford were taken to Miami Valley
Hospital, where Crawford was pronounced dead. Appellant's
Br. 3; Appellee's Br. 2.
3} A uniformed officer with the Dayton Police
Department reported to the hospital's trauma center
between 2:45 and 3:00 a.m. to speak with Ivkovich. Tr. of
Proceedings 64-65. In response to the officer's inquiry,
Ivkovich acknowledged that he was driving when his vehicle
struck the pillar and told the officer that he and Crawford
had left a bar shortly beforehand. Id. at 68.
Prompted by an odor of alcohol, the officer asked Ivkovich
whether he had been drinking at the bar. Ivkovich answered
that he had had six or seven beers and two or three shots,
and the officer requested Ivkovich's consent to a blood
draw for toxicological analysis. Id. at 68-72.
Ivkovich consented. Id. at 71-72. The analysis of
Ivkovich's blood revealed an alcohol content well in
excess of the legal limit for the operator of a motor
vehicle. Id. at 165-168 and 235; R.C.
4511.19(A)(1)(b) and (f).
4} On October 20, 2015, a Montgomery County grand
jury issued a two-count indictment charging Ivkovich with:
(1) aggravated vehicular homicide under R.C. 2903.06(A)(1)(a)
for causing the death of Sharon Crawford as a proximate
result of his operation of a motor vehicle in violation of
R.C. 4511.19(A); and (2) aggravated vehicular homicide under
R.C. 2903.06(A)(2)(a) for causing Crawford's death by
operating a motor vehicle recklessly. Ivkovich appeared for
arraignment on November 3, 2015, and pleaded not guilty.
5} On November 30, 2015, Ivkovich moved to suppress
the results of the analysis of his blood as well as the
statements he made while in Miami Valley Hospital. Following
a hearing, the court overruled Ivkovich's motion with
respect to this evidence in a decision docketed on May 16,
2016, and on December 12, 2016, Ivkovich pleaded no contest
to both of the charges set forth in the indictment. The State
did not agree to make a sentencing recommendation in exchange
for Ivkovich's pleas. Tr. of Proceedings 226.
6} At Ivkovich's sentencing hearing on January
17, 2017, the court merged the two counts of the indictment,
and the State elected to proceed on Count 1 (aggravated
vehicular homicide under R.C. 2903.06(A)(1)(a) for causing
the death of another as a proximate result of the operation
of a motor vehicle in violation of R.C. 4511.19(A)). The
court ordered that Ivkovich serve a mandatory term of
imprisonment of four years and advised him that he would be
subject to mandatory post-release control for a period of
three years after his release from prison. On January 19,
2017, the court docketed a termination entry, and Ivkovich
timely filed a notice of appeal on February 16, 2017.
7} Ivkovich's first and second assignments of
error relate to the trial court's ruling on his motion to
suppress. Appellate "review of a motion to
suppress presents a mixed question of law and fact."
State v. Burnside, 100 Ohio St.3d 152,
2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. As the trier of
fact, a trial court "is in the best position to weigh *
* * evidence * * * and evaluate [the credibility of]
witnesses], " so an "appellate court must accept
the trial court's findings of fact if they are supported
by competent, credible evidence." Id., citing
State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583
(1982); State v. Graves, 12th Dist. Clermont No.
CA2015-03-022, 2015-Ohio-3936, ¶ 9, citing State v.
Cruz, 12th Dist. Preble No. CA2013-10-008,
2014-Ohio-4280, ¶ 12. Accepting the trial court's
findings of fact as true, "the appellate court must then
independently determine, without deference to the [trial
court's legal] conclusion[s], " whether the
"facts satisfy the applicable * * * standard."
Burnside, 2003-Ohio-5372, ¶ 8, citing
Fanning, 1 Ohio St.3d 19, and State v.
McNamara, 124 Ohio App.3d 706, 707 N.E.2d 539 (4th
8} For his first assignment of error, Ivkovich
THE TRIAL COURT ERRED IN DETERMINING THAT THE BLOOD DRAW WAS
CONDUCTED IN SUBSTANTIAL COMPLIANCE WITH THE OHIO
9} Ivkovich presents a quadripartite argument that
the trial court should have suppressed the results of the
analysis of his blood. First, he posits that because the
State did not establish the expiration date of the test kit
used to obtain specimens, it failed to demonstrate that the
results of the analysis were reliable. Second, he challenges
the authenticity of the specimens introduced into evidence by
the State at the hearing on his motion to suppress. Third, he
insists the State failed to prove that the analysis of his
blood comported with the requirements of Ohio Adm.Code
3701-53-03 and 3701-53-04, and fourth, he maintains similarly
that the State failed to demonstrate that it retained the
specimens of his blood for one year after completion of
testing as required by Ohio Adm.Code 3701-53-06(A).
10} Regarding the first part of Ivkovich's
argument, when a defendant moves to suppress the results of a
blood test "in an aggravated vehicular homicide
prosecution that depends upon proof of driving under the
influence in violation of R.C. 4511.19(A), the [prosecution]
must show substantial compliance with R.C. 4511.19(D)(1) and
Ohio Adm.Code Chapter 3701-53 before the test results [may
be] admi[tted]." State v. Bruce, 2d Dist.
Montgomery No. 22612, 2008-Ohio-5514, ¶ 8, citing
State v. Mayl, 106 Ohio St.3d 207, 2005-Ohio-4629,
833 N.E.2d 1216, ¶ 48. The defendant, however, must
" 'state with particularity the legal and factual
issues to be resolved.' " State v. Tyner,
2d Dist. Montgomery No. 25405, 2014-Ohio-2809, ¶ 13,
quoting State v. Shindler, 70 Ohio St.3d 54, 58, 636
N.E.2d 319 (1994); see also State v. Bissaillon, 2d
Dist. Greene No. 06-CA-130, 2007-Ohio-2349, ¶ 11. If the
defendant provides a sufficiently particular statement, then
"the burden shifts to the [prosecution] to show that it
substantially complied" with the relevant regulations.
Bissaillon, 2007-Ohio-2349, ¶ 12, citing
State v. Plummer, 22 Ohio St.3d 292, 490 N.E.2d 902
(1986), syllabus. The weight of the prosecution's
"burden to establish substantial compliance, " in
other words, is directly proportional to the extent of the
defendant's specificity; a motion to suppress that raises
merely a generalized claim of non-compliance imposes only a
"fairly slight" burden on the prosecution.
(Citations omitted.) See id.
11} In his motion to suppress, Ivkovich argued that
the "manner of the blood draw, and the handling and
[the] testing of the blood, was done in violation of the
regulations [appearing in Ohio Adm.Code] 3701-53-01, et
seq." Def's Mot. to Suppress 1 and 3. The motion
made no mention of the test kit or of the expiration date of
any of the kit's components, although during the hearing
on the motion, Ivkovich's counsel referred to the
kit's expiration date in the following exchange with the
phlebotomist who drew Ivkovich's blood:
DEFENSE COUNSEL: This expiration [date] on the [test kit] is
a sticker, is that correct?
DEFENSE COUNSEL: Is there any way to tell when that was
WITNESS: I would have no clue.
Tr. of Proceedings 58-59. Ivkovich nevertheless offered no
argument related to the test kit's expiration date in his
subsequent memoranda in support of suppression, which focused
on lack of consent, the mechanics of the blood draw itself,
the storage of the samples and unrelated Fourth Amendment
issues. See Def.'s Post-Hearing Mem. in Supp. of
Mot. to Suppress 2-6, Apr. 4, 2016; Def.'s Post-Hearing
Reply Mem. in Supp. of Mot. to Suppress 1-2, Apr. 25, 2016.
Thus, Ivkovich did not provide the State with notice that he
intended to seek suppression of the analysis of his blood
based upon the possible expiration of the test kit, and he
thereby forfeited this issue for review on appeal. See
State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034,
19 N.E.3d 900, ¶ 15; State v. Tyner, 2d Dist.
Montgomery No. 25405, 2014-Ohio-2809, ¶ 12-16; State
v. Bissaillon, 2d Dist. Greene No. 06-CA-130,
2007-Ohio-2349, ¶ 11-15.
12} Even if the issue had been raised in the trial
court, Ivkovich suggested only in the most general terms that
the test kit might have been expired, meaning that the State
would have had only a "fairly slight" burden to
"establish substantial compliance" with the
applicable regulations. Bissaillon, 2007-Ohio-2349,
¶ 12; see also State v. Johnson, 137 Ohio
App.3d 847, 851-853, 739 N.E.2d 1249 (12th Dist.2000). In
this respect, the phlebotomist testified on direct
examination that checking the expiration date of a test kit
is standard procedure, and when shown the kit he used to
obtain a specimen from Ivkovich, he verified that the
kit's expiration date had not yet passed at the time he
used it. Tr. of Proceedings 19-23 and 29-34. The State
accordingly demonstrated that the analysis of Ivkovich's
blood substantially complied with regulatory requirements to
the extent of the test kit's expiration date.
13} Regarding the second part of Ivkovich's
argument, Ivkovich notes that the Dayton Police officer
tasked with transporting his blood samples from Miami Valley
Hospital to the Miami Valley Regional Crime Laboratory made
revisions to the documentation attached to the samples.
Appellant's Br. 6-7. Ivkovich contends that "[t]hese
changes * * * raise significant questions about the
authenticity of the * * * blood sample[s]" introduced at
the hearing on his motion to suppress. Id. at 7.
Like the expiration date of the test kit, Ivkovich did not
address the authentication of the blood samples in his motion
to suppress or in his subsequent memoranda in support, and he
has accordingly also forfeited this issue for appellate
review. Quarterman, 2014-Ohio-4034, ¶ 15;
Tyner, 2014-Ohio-2809, ¶ 12-16;
Bissaillon, 2007-Ohio-2349, ¶ 11-16; Def.'s
Mot. to Suppress 3-4; Def.'s Post-Hearing Mem. in Supp.
of Mot. to Suppress 2-5; Def.'s Post-Hearing Reply Mem.
in Supp. of Mot. to Suppress 1-2.
14} Assuming for sake of analysis that Ivkovich did
raise the issue in the trial court, thereby preserving it for
appeal, the testimony adduced by the State at the hearing on
his motion to suppress sufficed to establish the authenticity
of the samples. The phlebotomist testified that the sample
vials entered into evidence by the State were the same vials
he had used to draw Ivkovich's blood, and the officer who
revised the attached documentation indicated that he simply
"corrected" a "couple of items, "
including changing the "offense location" from the
hospital's address to the address at which the accident
occurred, and adding the name of the Dayton Police officer in
charge of the investigation of the accident. Tr. of
Proceedings 29-32 and 111-116. As well, the officer who asked
Ivkovich to consent to the blood draw testified that he
personally witnessed the phlebotomist fill and label the
sample vials, and while on the stand, he authenticated the
vials-among other ...