State v. Hayes

• Decision Date: 07 October 2016
• Docket Number: C.A. CASE NO. 26379
• Citation: 2016 Ohio 7241
• Parties: STATE OF OHIO Plaintiff-Appellee v. RYAN M. HAYES Defendant-Appellant
• Court: Ohio Court of Appeals

2016 Ohio 7241

STATE OF OHIO Plaintiff-Appellee v. RYAN M. HAYES Defendant-Appellant

C.A. CASE NO. 26379

COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

October 7, 2016

T.C. NO. 2012-CR-2182

(Criminal appeal from Common Pleas Court)

OPINION

KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Assistant Prosecuting Attorney, 301 West Third Street, 5^th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

DARRELL L. HECKMAN, Atty. Reg. No. 0002389, One Monument Square, Suite 200, Urbana, Ohio 43078 Attorney for Defendant-Appellant

DONOVAN, P.J.

{¶ 1} Defendant-appellant Ryan M. Hayes appeals his conviction and sentence for the following offenses, to wit: one count of aggravated vehicular homicide, in violation of R.C. 2903.06(A)(1), a felony of the second degree; one count of aggravated vehicular homicide, in violation of R.C. 2903.06(A)(2), a felony of the third degree; one count of OVI (.17 or greater-whole blood), in violation of R.C. 4511.19(A)(1)(f)/(G)(1)(a), a misdemeanor of the first degree; and OVI (under the influence), in violation of R.C. 4511.19(A)(1)(a)/(G)(1)(a), also a misdemeanor of the first degree. Hayes filed a timely notice of appeal with this Court on September 8, 2014.

{¶ 2} The incident which forms the basis for the instant appeal occurred on the night of September 17, 2011, when Hayes drove his parents' black 1991 Lexus sedan into a stationary track hoe at a construction site located near Hoover Avenue in Dayton, Ohio. While Hayes was severely injured, his passenger and girlfriend, Qadriyyah Harvey, was killed after suffering blunt force trauma when her head hit the windshield during the crash. The evidence adduced during the trial established that neither Hayes nor Harvey were wearing their seatbelts at the time of the crash, which was found to have occurred at approximately 8:50 p.m.

{¶ 3} Hayes was removed from the vehicle by paramedics and taken to Miami Valley Hospital (MVH) for treatment. Harvey was pronounced dead at the scene of the crash. Dayton Fire Department firefighter/paramedic Tyler McCoy testified that he detected the odor of alcohol on and about Hayes' person. McCoy testified that the odor of alcohol persisted even after he removed Hayes from the crash site. McCoy further testified that Hayes admitted that he had consumed alcohol prior to the crash.

{¶ 4} Dayton Police Detective Jonathan Seiter, a crash reconstructionist in the traffic services unit, was dispatched to the site after it was determined that the crash involved a fatality. Upon arriving at the scene of the accident, Detective Seiter inspected the vehicle. Detective Seiter testified that he detected the slight of odor of alcohol emanating from the interior of the vehicle. Detective Seiter also observed a wallet and an opened can of Sparks alcoholic iced tea in the driver's side floorboard of the vehicle.

{¶ 5} Detective Seiter then traveled to MVH in order to interview Hayes. Upon arriving at the hospital, Detective Seiter located Hayes in the trauma room. Detective Seiter testified that Hayes was unconscious and smelled of alcohol. Thereafter, Detective Seiter directed phlebotomist Ross Melton to draw Hayes' blood as part of an OVI kit. Prior to drawing Hayes' blood, both Detective Seiter and Melton attempted to wake him up, but Hayes could not be roused. At approximately 11:20 p.m., Melton drew two vials of Hayes' blood for testing. Detective Seiter took possession of Hayes' blood, transported it to the Safety Building, and placed it in a refrigerator. Detective Seiter then completed a form requesting that Hayes' blood be tested at the Miami Valley Regional Crime Lab (MVRCL).

{¶ 6} Elizabeth Kiely, a forensic toxicologist at the MVRCL, tested Hayes' blood samples on September 28, 2011. Kiely testified that the tests revealed that the two samples of Hayes' blood had an alcohol concentration of .173 and .169 gram percent, the average of which is .171 which is more than twice the legal limit of .08 percent. Kiely testified that she also screened Hayes' blood for the presence of drugs. The sample tested positive for marijuana metabolite. Forensic toxicologist Brian Simons tested Hayes' blood in order to determine the amount of marijuana metabolite present. Simons' testing established that the amount of marijuana metabolite present in Hayes' blood was fourteen nanograms per milliliter.

{¶ 7} On January 24, 2013, Hayes was indicted for one count of aggravated vehicular homicide (OVI), one count of aggravated vehicular homicide (recklessly), one count of OVI (.17 or greater-whole blood), and one count of OVI (under the influence). At his arraignment on January 29, 2013, Hayes pled not guilty to all of the offenses contained in the indictment. On February 13, 2013, Hayes filed a waiver of time for speedy trial purposes.

{¶ 8} Shortly thereafter, Hayes filed a motion to suppress the results of the blood test administered at MVH on the night of the accident. A hearing was held on said motion on July 8, 2013. On August 26, 2013, the trial court issued a decision overruling Hayes' motion to suppress, finding that the results of his blood test would be admissible at trial.

{¶ 9} On January 17, 2014, the trial court appointed new counsel to represent Hayes. On February 3, 2014, Hayes' new counsel filed a second motion to suppress the results of the blood test in which he challenged the MVRCL's compliance with the Ohio Administrative Code provisions regarding the procedures for the handling and processing of blood samples, as well as the destruction of blood samples. A hearing was held with respect to Hayes' second motion to suppress on March 6, 2014. The trial court ultimately overruled Hayes' second motion in a decision issued on April 30, 2014.

{¶ 10} Hayes' case proceeded to a three-day jury trial beginning on August 18, 2014, and ending on August 20, 2014, after which he was found guilty of all counts in the indictment. On September 3, 2014, the trial court merged Count II, aggravated vehicular homicide (recklessly), into Count I, aggravated vehicular homicide (OVI); and Count IV, OVI (under the influence), into Count III, OVI (.17 or greater-whole blood). Thereafter, the trial court sentenced Hayes to a mandatory seven years in prison for aggravated vehicular homicide (OVI) and 180 days in prison for OVI (.17 or greater-whole blood), the sentences to run consecutive to one another for an aggregate term of seven and one-half years.

{¶ 11} It is from this judgment that Hayes now appeals.¹

{¶ 12} Hayes' first assignment of error is as follows:

{¶ 13} "THE TRIAL COURT ERRED IN SENTENCING DEFENDANT FOR BOTH AGGRAVATED VEHICULAR HOMICIDE UNDER R.C. §2903.06(A)(1)(A) AND O.V.I UNDER R.C. §4511.19(A)(1), AS THEY WERE ALLIED OFFENSES OF SIMILAR IMPORT."

{¶ 14} In his first assignment, Hayes contends that his convictions for aggravated vehicular homicide and OVI were allied offenses. Therefore, Hayes argues that the trial court erred when it failed to merge the two offenses for the purpose of sentencing. Additionally, Hayes argues that the trial court erred when it imposed consecutive sentences for those offenses in violation of R.C. 2929.41(B)(3).

{¶ 15} ALLIED OFFENSES

{¶ 16} R.C. 2941.25, Ohio's allied offense statute, provides that:

(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.

(B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus asto each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.

{¶ 17} The Ohio Supreme Court recently clarified the applicable standard when determining whether offenses merge as allied offenses of similar import. State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892.

Rather than compare the elements of two offenses to determine whether they are allied offenses of similar import, the analysis must focus on the defendant's conduct to determine whether one or more convictions may result, because an offense may be committed in a variety of ways and the offenses committed may have different import. No bright-line rule can govern every situation.

As a practical matter, when determining whether offenses are allied offenses of similar import within the meaning of R.C. 2941.25, courts must ask three questions when the defendant's conduct supports multiple offenses: (1) Were the offenses dissimilar in import or significance?; (2) Were they committed separately?; and (3) Were they committed with separate animus or motivation? An affirmative answer to any of the above will permit separate convictions. The conduct, the animus, and the import must all be considered.

Ruff at ¶ 30-31.

{¶ 18} Most recently in State v. McGail, 2015-Ohio-5384, 55 N.E.2d 513 (2d Dist.), we stated the following:

[T]he Ohio Supreme Court addressed the allied-offense issue again in State v. Earley, 2015-Ohio-4615, . There the majority characterized the analysis in its earlier Johnson lead opinion as "largely obsolete." Id. at ¶ 11. The Earley court instead embraced Ruff, which, as noted above, considers a defendant's conduct, his animus, and the import or significance of his offenses. Applying Ruff, the Earley court concluded that misdemeanor OVI and felony aggravated vehicular assault "are offenses of dissimilar import and significance that are to be punished cumulatively." Earley at ¶ 20. For purposes of our analysis here, we note that a defendant bears the burden of establishing entitlement to merger, and we review a trial court's ruling on the issue de novo. State v. LeGrant, 2d Dist. Miami No. 2013-CA-44, 2014-Ohio-5803, ¶ 15.

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We reach the same conclusion under the Ruff standard, which

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