[Cite as State v. Smith,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2019-CA-16 : v. : Trial Court Case No. 2018-CR-472 : KATHY J. SMITH : (Criminal Appeal from : Common Pleas Court ) Defendant-Appellant : :

...........

OPINION

Rendered on the 15th day of November, 2019.

...........

DAVID M. MORRISON, Atty. Reg. No. 0087487, 61 Greene Street, Suite 200, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee

PETER R. CERTO, Atty. Reg. No. 0018880 and STEVEN E. BACON, Atty. Reg. No. 0059926, One South Main Street, Suite 1590, Dayton, Ohio 45402 Attorney for Defendant-Appellant

.............

HALL, J. -2-

{¶ 1} Kathy Smith appeals from her conviction on charges of aggravated vehicular

homicide, aggravated vehicular assault, and operating a vehicle under the influence of

alcohol.

{¶ 2} Smith advances three assignments of error. First, she contends the trial court

erred in partially overruling a motion to suppress and allowing the State (1) to present

testimony from EMT personnel about her admission to consuming alcohol prior to a fatal

traffic accident and (2) to introduce medical records and related testimony concerning her

blood-ethanol1 level at the time of her hospital admission following the accident. Second,

she claims the trial court erred in allowing the records concerning her blood-ethanol level

to be introduced into evidence without proper authentication. Third, she asserts that the

trial court erred in allowing rebuttal testimony from a pharmacologist as to whether

administering Ativan upon her admission to the hospital was equivalent to initiating a

medical protocol for alcohol withdrawal. Smith contends this testimony exceeded the

scope of the pharmacologist’s expertise.

{¶ 3} The record reflects that Smith was involved in a fatal traffic accident on

August 27, 2016. The accident occurred when the vehicle she was driving crossed the

center line on Hussey Road in Greene County and collided head-on with another vehicle,

killing the other driver and seriously injuring a passenger in the other car. Smith also

1 Ohio criminal statutes generally use the term “alcohol” when prohibiting driving under the influence and for procedures for testing the volume of “alcohol” in one’s system. In the Revised Code, “ ‘Alcohol’ means ethyl alcohol” (except denatured or wood alcohol.) R.C. 4301.01(B)(1.) Ethyl alcohol is also known as ethanol. In medical circles, “ethanol,” often abbreviated as EtOH, is the preferred term. Because the blood-ethanol test in this case was a hospital test performed for medical diagnostic purposes, for clarity we have tried to use the term “ethanol” when referring to the hospital test or testimony about it. Nevertheless, the terms are interchangeable. -3-

sustained serious injuries. While being assisted by paramedics, Smith told one of them

that she had consumed alcohol. She told another paramedic that she had consumed

wine. Smith was transported to Miami Valley Hospital (MVH), where her blood-ethanol

level was tested.

{¶ 4} Following the accident, Ohio State Highway Patrol trooper Jaysen Kelly

began an investigation and created an accident report. (11/3/2017 Suppression Tr. at 30.)

His report included Smith’s blood-ethanol level of 343 mg/dl from the test performed at

MVH. (Id. at 31; see also State’s Exhibit 33.) The trooper obtained this information from

the hospital via R.C. 2317.022, which authorizes a law-enforcement officer conducting a

criminal investigation to obtain a copy of test results showing the level of alcohol in a

suspect’s blood, breath, or urine.

{¶ 5} Investigator Fred Meadows, an employee of the Greene County prosecutor’s

office, commenced his own investigation in November 2016. (Id. at 14.) In so doing, he

obtained the trooper’s accident report. (Id. at 15.) In addition to containing information

about Smith's blood-ethanol level, the trooper’s accident report also reflected that the

Xenia Fire Department had responded to the crash. (Id. at 16.) Meadows subsequently

received a grand jury subpoena and court order to obtain the fire department’s “run sheet”

for the accident involving Smith. (Id. at 18-20.) That run sheet identified the two

paramedics involved. It also included Smith’s statements to them about consuming

alcohol. (Id. at 21.) Meadows then spoke with the paramedics and obtained written

statements from them. (Id. at 22.) According to the statements, one of the paramedics

asked Smith whether she had consumed any alcohol that day, and she responded that

she had done so. The other paramedic asked whether she had been drinking. She -4-

responded affirmatively and specified that she had been drinking wine. (Id. at 22-23.)

{¶ 6} Based on the information he had received, Meadows prepared an affidavit

for a search warrant to obtain Smith’s medical records from MVH, including her blood-

ethanol test results. Although Trooper Kelly already had obtained those results through

the process set forth in R.C. 2317.022, the prosecutor’s office had concerns about the

admissibility of medical records obtained under the statute but without a search warrant.

In his affidavit, Meadows averred that Smith had driven left of center, striking another car

and killing the driver and seriously injuring a passenger. He further averred that Smith

had suffered incapacitating injuries and had been transported to the hospital by the Xenia

Fire Department. Meadows then averred:

4. Affiant has reviewed the crash report, witness statements, autopsy

report and coroner’s verdict. Affiant also has personally interviewed the

paramedics who responded to the crash.

5. Affiant was advised that Kathy Smith told the treating paramedic

in the back of the ambulance that she had consumed alcohol prior to the

crash; she also told a paramedic who assisted in extracting her from the

vehicle that she consumed wine prior to the crash.

(Id. at 24; see also State’s Exh. 2 to suppression hearing.)

{¶ 7} Finally, Meadows averred that he believed information contained within

medical records maintained by MVH would aid law enforcement. Based on Meadows’

affidavit, a search warrant was issued for Smith’s hospital records in January 2017. (Id.

at 25.) Meadows received the records, including the blood-ethanol test results, shortly

thereafter. (Id. at 26.) -5-

{¶ 8} In March 2017, Smith was indicted on charges including aggravated

vehicular homicide and aggravated vehicular assault. She subsequently filed a motion to

suppress, and the trial court held a multi-day suppression hearing. After the hearing but

before the trial court ruled on the suppression motion, the parties agreed to proceed by a

bill of information, and the indictment was dismissed. The June 25, 2018 bill of information

charged Smith with two counts of aggravated vehicular homicide, two counts of

aggravated vehicular assault, and one count of operating a vehicle under the influence of

alcohol.2 (Doc. #1.)

{¶ 9} With regard to the suppression issue, the State conceded during the

suppression hearing that the hospital records and blood-ethanol test results obtained by

Trooper Kelly were not admissible at trial because the trooper obtained them without a

search warrant.3 Smith argued that a search warrant also was required to obtain the

paramedics’ “run sheet” and that a grand jury subpoena was insufficient. Smith

additionally asserted that the hospital records and blood-ethanol test results obtained with

2 Although there was one victim of the aggravated vehicular homicide (the deceased driver) and one victim of the aggravated vehicular assault (the injured passenger), the bill of information charged the offenses in alternative ways. It charged aggravated vehicular homicide by causing the death of another as a proximate result of committing a violation of R.C. 4511.19(A) and by recklessly causing the death of another while operating a motor vehicle. The bill of information similarly charged aggravated vehicular assault by causing serious physical harm to another as a proximate result of committing a violation of R.C. 4511.19(A) and by recklessly causing serious physical harm to another while operating a motor vehicle. At sentencing, the trial court correctly applied merger and imposed only one sentence for aggravated vehicular homicide and one sentence for aggravated vehicular assault. 3 We are not required to accept the State’s concession that a search warrant is required for records of alcohol or drug testing performed by a hospital solely for medical reasons. We note that our district, and several others, have not voiced an opinion on this issue, and this opinion is neither an endorsement nor a rejection of the concession. -6-

a search warrant were inadmissible because Meadows’ affidavit contained tainted

information from the EMS run sheet. (11/3/17 Suppression Tr. at 8.) Smith further argued

that Meadows’ affidavit was deficient on its face. (Id.) She also maintained that the identity

of the two paramedics and their knowledge of her statements about drinking alcohol were

discovered through the improperly obtained run sheet. (2/9/18 Suppression Tr. at 11-12,

14-16.)

{¶ 10} The trial court resolved the foregoing issues in a December 11, 2018 entry

(incorrectly captioned “Judgment Entry Re: Motion to Dismiss”.) It held that the two

paramedics could testify at trial about Smith’s admission to drinking alcohol. The trial court

determined that Smith was not in the custody of law enforcement when she made the

statements, that they were voluntary responses to the paramedics’ questions, that no

waiver of constitutional rights was required, and that Smith’s statements about drinking

alcohol were not protected by any statutory privilege. (Doc. # 31 at 1-2.) With regard to

the paramedics’ run sheet, the trial court determined that it constituted a “medical record”

in which Smith maintained an “expectation of privacy.”4 It refused to allow the run sheet

to be admitted at trial but allowed the paramedics to testify regarding their own

observations at the scene and Smith’s statements to them about drinking alcohol. (Id. at

2.) As for the search warrant, the trial court reasoned:

The affidavit revealed the Defendant was involved in a head on

collision by crossing the centerline resulting in the serious and mortal injury

to passengers in the other vehicle. The paramedics advised that the

Defendant said she had been drinking wine prior to the crash. The affidavit

4 The State does not challenge these conclusions so they are not before us. -7-

requested the hospital maintain[ed] medical records of the Defendant, who

had been removed to the hospital for treatment, for blood testing for ethanol.

Based upon these facts, the Court finds there was sufficient probable

cause before the issuing judge to order the search for records relating to

the ethanol value of the Defendant taken at Miami Valley Hospital between

August 27, 2016 and September 6, 2016. In this regard, the following

medical records, identified by page number (as given by the State to the

Court) will be admitted as to the yellowed portions of the attached

documents: 17, 34, 290, 2754.

The remainder of the 3,500 medical records will not be admitted as

not relating to the alcohol testing.

The State may have testimony regarding the processing and testing

of the blood by hospital personnel consistent with R.C. 4511.19.

(Id. at 3-4.)

{¶ 11} The case proceeded to a jury trial in which Smith was found guilty of all

charges against her. The trial court merged the two counts of aggravated vehicular

homicide. It also merged the two counts of aggravated vehicular assault. It then

sentenced Smith to seven years in prison for aggravated vehicular homicide, five years

in prison for aggravated vehicular assault, and six months in jail for operating a vehicle

under the influence of alcohol. It ordered these sentences to be served concurrently.

{¶ 12} In her first assignment of error, Smith challenges the trial court’s

suppression ruling. Specifically, she contends the trial court erred in allowing the two

paramedics to testify at trial regarding her statements about consuming alcohol. She also -8-

claims the trial court erred in allowing the State to introduce MVH medical records

pertaining to her blood-ethanol level. She asserts that the paramedics’ testimony and the

blood-ethanol test results were obtained through “a series of acts which violated [her]

Fourth Amendment rights.” (Appellant’s brief at 10.) According to Smith, “[t]hese acts

include: 1) obtaining [her] medical/hospital records, including her ethanol levels, from

Miami Valley Hospital without a warrant, via R.C. 2317.022; 2) obtaining the EMS Run

Sheet for [her] treatment at the accident scene, without a warrant, via Grand Jury

Subpoena; and 3) using information learned from these acts in an affidavit in support of

a warrant to require Miami Valley Hospital to produce [her] confidential medical records,

including lab results as to her ethanol levels, i.e., the same records the State already

had.” (Id.)

{¶ 13} “Appellate review of a ruling on a motion to suppress presents a mixed

question of law and fact. An appellate court must accept the trial court’s findings of fact if

they are supported by competent, credible evidence. But the appellate court must decide

the legal questions independently, without deference to the trial court’s decision.”

(Citations omitted) State v. Banks-Harvey,

,

,

.

{¶ 14} As set forth above, Smith argues that obtaining her hospital medical records

via R.C. 2317.022 and obtaining the EMS run sheet via a grand jury subpoena violated

the Fourth Amendment. She asserts that a warrant was required for the medical records

and the run sheet. She also contends this improperly-obtained information tainted the

subsequent search-warrant affidavit. In response, the State claims Smith “expressly

waived any argument that Inv. Meadows’ investigation was tainted by Trp. Kelly’s first -9-

obtaining Appellant’s records through R.C. 2317.022.” (Appellee’s brief at 10.) In any

event, the State contends Meadows’ investigation and search-warrant affidavit were

independent of the trooper’s investigation and did not depend on the medical records

obtained by the trooper. With regard to the EMS run sheet, the State asserts that a

warrant was not required to obtain the run sheet or the names of the paramedics involved.

The State further asserts that a warrant was not required for Meadows to speak to the

paramedics as part of a criminal investigation. For these reasons, the State argues that

the information contained in the search-warrant affidavit was not tainted by any prior

illegality. Smith and the State also disagree about whether Meadows’ affidavit was facially

sufficient to establish probable cause even if the information it contained was not tainted

by illegality. Finally, the State argues that Meadows acted in good faith in relying on a

subpoena rather than a warrant to obtain the EMS run sheet and that he acted in good

faith in relying on the facially-valid appearance of the warrant he obtained.

{¶ 15} Upon review, we turn first to the State’s claim that Smith expressly waived

her argument about Trooper Kelly’s use of R.C. 2317.022 tainting Meadows’ subsequent

investigation and affidavit. We find no waiver of this issue. In the suppression

proceedings, Smith focused primarily on the information contained in the EMS run sheet.

It appears that she did so, however, because the State conceded that Trooper Kelly’s use

of R.C. 2317.022 to obtain her MVH records was improper and that a warrant was

required. (11/3/2017 Suppression Tr. at 6.) Moreover, the State was aware that the

trooper allegedly “tainting” Meadows’ investigation was an issue in the case. During the

suppression hearing, the prosecutor asked Meadows whether he knew at the outset of

his investigation that the trooper already had obtained Smith’s hospital records. (Id. at -10-

26.) Meadows responded that he was aware of that fact and that he had seen those

records before undertaking his own investigation and obtaining a search warrant. (Id. at

26-27.) The prosecutor then asked Meadows whether he had relied on the information

obtained from the trooper when he sought a search warrant and whether his investigation

would have proceeded the same way if he had not seen the medical records the trooper

previously obtained under R.C. 2317.022. (Id. at 27.) The only conceivable purpose for

this line of questioning was to refute Smith’s assertion that the trooper’s reliance on the

statute to obtain her medical records had tainted Meadows’ subsequent investigation and

search-warrant affidavit. Therefore, we decline to find the issue waived below.

{¶ 16} As for the merits of Smith’s argument about a warrant being required for

Trooper Kelly to obtain her medical records from MVH, we will assume arguendo that she

is correct. We will do so because the State conceded the issue during the suppression

hearing based on case law from other appellate districts.5 For present purposes, we also

will assume arguendo that investigator Meadows could not rely on a subpoena to obtain

the EMS paramedics’ “run sheet” and that a warrant was required for it too. The trial court

reached this same conclusion, finding that the run sheet constituted a “medical record” in

which Smith had an “expectation of privacy.” Therefore, it excluded the run sheet from

5 Other Ohio appellate districts have recognized that hospital patients have a reasonable expectation of privacy in records of test results concerning alcohol in their blood, breath, or urine and that law enforcement must comply with the Fourth Amendment’s warrant requirement before obtaining those records. These courts have held that the use of R.C. 2317.022 to obtain the records without a warrant violates the constitutional protection against an unreasonable search and seizure. See, e.g., State v. Saunders, 5th Dist. Morrow No. 17CA0001,

, citing State v. Clark,

,

, ¶ 42, 45 (3d Dist.) and State v. Little,

,

, ¶ 40, 43. Our acceptance of Smith’s argument about a warrant being required is neither an endorsement nor a rejection of the analyses of those cases. -11-

trial while allowing the paramedics to testify about their own observations at the scene

and Smith’s statements to them about drinking alcohol. (Doc. # 31 at 2.) But even if we

assume that the blood-alcohol test results obtained by Trooper Kelly and the EMS run

sheet obtained by investigator Meadows were inadmissible, the record persuades us that

the information contained in Meadows’ search-warrant affidavit was not tainted by any

prior illegality.

{¶ 17} Smith argues that the run sheet contained the paramedics’ names and a

notation that she had admitted to consuming alcohol. (Appellant’s brief at 14.) She

maintains that this notation about consuming alcohol itself constituted a protected

“medical record” in which she had an expectation of privacy. 6 (Id.) Smith contends

Meadows used the foregoing information, which had been obtained improperly via a

subpoena, to locate the paramedics, interview them, and obtain statements from them

about her admission to consuming alcohol. According to Smith, this tainted information

then served as the basis for Meadows’ search-warrant affidavit. (Appellant’s reply brief at

7.)

{¶ 18} We find Smith’s argument to be unpersuasive. As a threshold matter, we

are unpersuaded that the identity of the paramedics who responded to the scene was a

protected “medical record” in which Smith maintained an expectation of privacy.

6 Smith notes that under R.C. 3701.74(A)(8) a “medical record” includes “data in any form that pertains to a patient’s medical history, diagnosis, prognosis, or medical condition and that is generated and maintained by a health care provider in the process of the patient's health care treatment.” In turn, R.C. 3701.74(A)(5) defines a “health care provider” to include a “health care practitioner.” Finally, R.C. 3701.74(A)(4)(r) defines a “health care practitioner” to include “[a]n emergency medical technician-basic, emergency medical technician-intermediate, or emergency medical technician-paramedic certified under Chapter 4765. of the Revised Code.” -12-

Therefore, we see no reason why Meadows would be required to obtain a warrant for that

information. And once he knew the identity of the paramedics, Meadows explained that

he normally would proceed to interview them, which is what he did. (11/3/2017

Suppression Tr. at 16-17, 21.) In our view, the fact that the paramedics were named in

the EMS run sheet did not insulate them from being interviewed or taint the legality of

Meadows’ interview. Once Meadows decided to interview the paramedics, his discovery

of Smith’s admission to drinking alcohol was inevitable. As the trial court explained:

* * * I’m also going to find the potential of inevitable discovery here. I

mean, it doesn’t take much for an investigating officer to go to the Xenia

Fire Department and say, which firehouse handles crash scenes at a certain

location?

You go to that firehouse, and you say, on a certain date at a certain

time, did any of the units go there? They say, yes. Who are they? And they

name them. Then they go and talk to them.

So I’m going to find on that basis without the need for the records,

[the paramedics] would be permitted to testify.

(2/9/2018 Suppression Tr. at 15.)

{¶ 19} Under the inevitable discovery doctrine, evidence obtained

unconstitutionally is admissible if it “would have been ultimately or inevitably discovered

during the course of a lawful investigation.” State v. Perkins,

,

(1985.) “[T]he burden is on the prosecution to demonstrate, within a

reasonable probability, that law enforcement would have discovered the evidence in

question apart from the unlawful conduct.” State v. Coston,

, 2006- -13-

Ohio-3961,

(10th Dist.), citing

.

{¶ 20} Here Meadows lawfully discovered the identity of the two paramedics.

Armed with that information, he proceeded to interview them in the course of his

investigation. During those interviews, the paramedics told Meadows about Smith’s

admission to consuming alcohol. Therefore, even if we accept arguendo that the run

sheet and its notation about Smith drinking constituted a protected “medical record,” the

trial court correctly determined that Meadows independently obtained the same

information and that the inevitable-discovery doctrine applied to what Smith told the

paramedics. That being so, Meadows properly included Smith’s statements to the

paramedics about drinking in his search-warrant affidavit to obtain her MVH medical

records, including test results revealing her alcohol level.

{¶ 21} On appeal, Smith argues that her statements to the paramedics about

drinking were analogous to the written record of those statements in the EMS run sheet.

But regardless of whether the run sheet itself might or might not qualify by statute as a

“medical record,” we are unpersuaded that the Fourth Amendment precluded Meadows

from speaking to the paramedics without a warrant and hearing what Smith told them

about consuming alcohol. The trial court correctly found that Smith was not in law-

enforcement custody when she made her voluntary statements in response to the

paramedics’ questions. We note too that Smith’s statements were not entitled to a

statutory privilege. State v. Wetta, 12th Dist. Butler No. CA2001-08-184,

,

¶ 16 (noting that “[p]aramedics are not specifically listed in R.C. 2317.02(B)(1) as covered

by the physician-patient privilege” and holding “that information obtained by a paramedic

when giving emergency care to an individual is not a privileged communication falling -14-

within the protection of the physician-patient privilege”); State v. Barrett, 12th Dist. Butler

No. CA2003-10-261,

(applying Wetta.) We see no basis for

suppressing what Smith told the paramedics at the scene on the basis of any Fourth

Amendment violation. We are unconvinced that interviewing the paramedics constituted

a search to which the Fourth Amendment’s warrant requirement applied.

{¶ 22} In his search-warrant affidavit, Meadows averred that Smith had caused a

fatal traffic accident by driving left of center and had been transported to the hospital for

treatment and testing. He requested hospital medical records for Smith. In support,

Meadows averred:

4. Affiant has reviewed the crash report, witness statements, autopsy

report and coroner’s verdict. Affiant has also personally interviewed the

paramedics who responded to the crash.

5. Affiant was advised that Kathy Smith told the treating paramedic

in the back of the ambulance that she had consumed alcohol prior to the

crash; she also told a paramedic who assisted in extracting her from the

vehicle that she consumed wine prior to the crash.

6. Affiant is aware, through his training and experience, that Miami

Valley Hospital generates and maintains records of the results of medical

tests performed on the patients they see; they similarly document all

medical treatment provided, medications dispensed and pertinent patient

statements made.

7. The Affiant believes that the information contained within the

records maintained by Miami Valley Hospital * * * will aid law enforcement -15-

in their efforts.

(11/3/2017 Suppression Tr. at 24; see also State’s Exh. 2 to suppression hearing.)

{¶ 23} Smith argues that Meadows’ affidavit was tainted by Fourth Amendment

violations. The first alleged taint involved his statement that Smith told paramedics she

had consumed wine. The second alleged taint involved his reference to the hospital

maintaining pertinent medical records. Smith contends Meadows’ knowledge of these

facts was a direct product of Fourth Amendment violations. We disagree. We already

have determined above that Meadows properly included Smith’s statements to the

paramedics about drinking in his affidavit. As for the request to obtain hospital-maintained

medical records, Trooper Kelly’s accident report revealed that Smith had been involved

in a head-on crash and had been taken to the hospital. Meadows also knew that Smith

had admitted consuming alcohol prior to the crash. Even if we set aside Meadows’ prior

awareness that test results existed, it would be expected for Meadows, an experienced

investigator, to believe some medical records would exist and to seek those records after

learning that Smith had consumed alcohol before going left of center and causing a fatal

traffic accident. Indeed, Meadows testified that he would have proceeded exactly the

same way without the information from Trooper Kelly about the test results. (11/3/2017

Suppression Tr. at 27, 31.) We are persuaded that Meadows’ prior knowledge about Kelly

obtaining blood-alcohol test results did not taint his affidavit.

{¶ 24} Finally, Smith asserts that on its face Meadows’ affidavit failed to establish

probable cause justifying a search warrant for her medical records. In support, she

contends Meadows averred (1) that he interviewed the paramedics and (2) that he was

advised Smith told the paramedics she had consumed alcohol or wine. Smith argues that -16-

these averments are “unsourced hearsay” because Meadows did not explicitly say it was

the paramedics who advised him about her drinking. We disagree. Meadows first averred:

“Affiant also has personally interviewed the paramedics who responded to the crash.” In

the next sentence, he averred: “Affiant was advised that Kathy Smith told the treating

paramedic in the back of the ambulance that she had consumed alcohol prior to the crash;

she also told a paramedic who assisted in extracting her from the vehicle that she

consumed wine prior to the crash.” When Meadows’ affidavit is read in context, we believe

it is reasonable to infer that the paramedics advised him about Smith’s alcohol

consumption. The trial court was not required to treat Meadows’ averments as unsourced

hearsay that failed to establish probable cause.

{¶ 25} Smith also characterizes Meadows’ affidavit as being too “bare bones” to

support a finding of probable cause. She argues:

The only information as to Smith’s conduct was a statement that she

had consumed some sort of alcohol or wine at some point prior to a motor

vehicle accident, and that Smith was determined to have travelled left of

center by on-scene Ohio State Patrol Troopers. The act of consuming

alcohol is not, in and of itself, illegal, nor is the act of driving after consuming

alcohol. Even when the totality of the affidavit is considered, it is apparent

that these facts were insufficient to allow a neutral magistrate to believe

there was probable cause a crime was committed. In the absence of such

a showing, the search warrant was not justified and the evidence produced

from the warrant, Smith’s medical records, should have been suppressed.

(Appellant’s brief at 21.) -17-

{¶ 26} Smith’s admission about “alcohol” and “wine” consumption “prior to the

crash” supports an inference that she meant relatively recently and not in the distant past.

In addition, although it is not per se illegal to drive after consuming alcohol, Meadows’

affidavit establishes that Smith consumed alcohol and then drove left of center, resulting

in a fatal traffic accident. On their face, these facts support a fair inference that Smith’s

alcohol consumption caused impaired driving, which is illegal. When assessing the

sufficiency of probable cause in a search-warrant affidavit, the issuing judge must

determine whether there is a fair probability that contraband or evidence of a crime will

be found in a particular place. State v. Hale, 2d Dist. Montgomery No. 23582, 2010-Ohio-

2389, ¶ 16. Our duty is simply to assure that the issuing judge had a “substantial basis”

for finding probable cause. Id. at ¶ 18. Based on Meadows’ affidavit, we believe the

issuing judge had a substantial basis for finding a fair probability that Smith’s hospital

records would contain evidence of alcohol-impaired driving. The first assignment of error

is overruled.

{¶ 27} In her second assignment of error, Smith contends the MVH test results

showing her blood-ethanol level should not have been admitted at trial because they were

not properly authenticated. Smith asserts that the State attempted to authenticate the test

results through Taulinah Knox, who served as Smith’s “documenting nurse” at MVH.

Smith argues that Knox was neither a custodian of the records nor a person who prepared

or supervised preparation of the records. Therefore, Smith maintains that Knox was not

qualified to authenticate them under Evid.R. 803(6.)

{¶ 28} Upon review, we find Smith’s assignment of error to be unpersuasive.

Evid.R. 803(6) provides that certain materials are not excluded by the hearsay rule, -18-

including:

Records of Regularly Conducted Activity. A memorandum, report,

record, or data compilation, in any form, of acts, events, or conditions, made

at or near the time by, or from information transmitted by, a person with

knowledge, if kept in the course of a regularly conducted business activity,

and if it was the regular practice of that business activity to make the

memorandum, report, record, or data compilation, all as shown by the

testimony of the custodian or other qualified witness or as provided by Rule

901(B)(10), unless the source of information or the method or

circumstances of preparation indicate lack of trustworthiness. The term

“business” as used in this paragraph includes business, institution,

association, profession, occupation, and calling of every kind, whether or

not conducted for profit.

{¶ 29} Knox testified that she was employed by MVH as a registered nurse. (Trial

Tr. at 463.) Her job was to document everything that happened to Smith in the emergency

room. (Id. at 465, 484.) She identified State’s Exhibits 31, 32, 33, and 34 as medical

records showing that Smith’s ethanol level based on a single blood test was “343,” which

was “abnormal” and indicated intoxication. (Id. at 471-474, 490-491.) Knox testified that

after a patient’s blood was drawn it went to a lab directly across from the trauma rooms

for testing. (Id. at 482.) She explained that the lab was operated by CompuNet, a private

contractor within MVH. (Id. at 489.) Knox testified that the records at issue were “fair and

accurate” representations of Smith’s records from the day in question. (Id. at 471-474.)

Knox acknowledged that she did not create Exhibit 31 (Id. at 470), and she did not profess -19-

to have created the other three exhibits. She testified that she was not the custodian of

records for MVH and did not “maintain” those records. (Id. at 489.) She stated, however,

that all registered nurses follow the same procedure, that the records they create are

stored electronically, that information is recorded in real time, and that the records are

kept in the ordinary course of business at MVH. (Id. at 467-46.)

{¶ 30} In addition to Knox, the State presented testimony from Dr. Daniel Hood.

He testified that he was the medical director of the lab at MVH at the time of Smith’s

hospital admission. (Id. at 494-495.) He explained that for a blood-alcohol test, a patient’s

blood would be drawn in the emergency room and transferred to the lab through a

“pneumatic tube” system. (Id. at 499, 501.) The sample then would be tested by

automated instruments and the results would be transmitted via the hospital’s “information

system.” (Id. at 501-502.) Hood stated that he oversaw and was responsible for all testing

in the lab. (Id. at 502.) With regard to blood-alcohol testing, he identified the type of

machine that was used and explained how it worked. (Id. at 502-510.) Hood explained

that each test tube of blood had a bar code containing the patient’s identifying information

and instructing the machine what test to run. (Id. at 509-510.) After blood is tested, “the

results are electronically transported from computer to computer to the medical record for

the patient.” (Id. at 511.) That “medical record,” which in the present case indicated that

Smith had an ethanol level of 343 mg/dl, appears to be what Knox identified and

discussed in her testimony about State’s Exhibits 31, 32, 33, and 34.

{¶ 31} With regard to Smith’s case, Hood testified his lab received a blood sample

from her to be tested for blood-alcohol content and other things. (Id. at 541.) He then

again stated that the results from such testing “are electronically transmitted into the -20-

medical records.” (Id. at 542.) More specifically, the result “drops into a data field in the

patient’s medical record that corresponds to the test that was ordered.” (Id.) To retrieve

that result, Hood explained: “So you would go into what’s known as the Epic system,

which is the hospital’s electronic medical record system. You would identify the test. You

would just click on it with your mouse, and the result would show up.” (Id. at 543.) He then

examined State’s Exhibit 33 and testified that he was familiar with the formatting and

information it contained. (Id.) He noted that under the Epic system, the “basic numeric

format” of State’s Exhibit 33 was “correct” insofar as it contained “the test name, the result,

[and] what’s known as the reference range, which would be the expected value.” (Id. at

544.) With regard to Smith’s ethanol level of “343,” Hood characterized it as a “high level”

and explained that the testing instrument designated it as “abnormal” because it was

outside of the reference range. (Id. at 548.)

{¶ 32} In our view, the testimony of Knox and Hood was sufficient to support a

finding that Evid.R. 803(6) had been satisfied. It is true that neither Knox nor Hood was a

custodian of Smith’s medical records. Knox also did not prepare or supervise preparation

of the records showing Smith’s blood-alcohol level. Hood explained, however, that blood

testing was automated and that test results were created and maintained electronically.

He explained how the results were transmitted and retrieved through “the hospital’s

electronic medical record system.” As noted above, he then examined State’s Exhibit 33

and testified that it looked like and appeared to be a blood-alcohol test result stored in the

hospital’s electronic medical records system. Although Hood may not have been the

“custodian” of Smith’s records, Evid.R. 803(6) also permits authentication by an “other

qualified witness,” which simply means “someone with ‘enough familiarity with the record- -21-

keeping system of the business in question to explain how the record came into existence

in the ordinary course of business.’ ” State v. Hood,

,

,

. A qualified witness must “ ‘demonstrate that he or she is

sufficiently familiar with the operation of the business and with the circumstances of the

preparation, maintenance, and retrieval of the record in order to reasonably testify on the

basis of this knowledge that the record is what it purports to be, and was made in the

ordinary course of business.’ ” State v. Myers,

,

,

(10th Dist.), quoting Keeva J. Kekst Architects, Inc. v. George, 8th

Dist. Cuyahoga No. 70835,

, *5 (May 15, 1997.) We believe Hood’s

testimony in particular satisfied this requirement. The trial court did not abuse its

discretion in finding Evid.R. 803(6) satisfied. (Trial Tr. at 673-675.)

{¶ 33} Smith points out in her reply brief that, unlike Knox, Hood only specifically

identified one of the four exhibits at issue, namely State’s Exhibit 33. We note, however,

that State’s Exhibits 31 through 34 were single pages from Smith’s medical records

related to her blood-ethanol testing. Each page contained similar information, and, most

importantly, each page stated that the ethanol level in her blood was “343.” (Trial Tr. at

470-474.) Therefore, if even one of those pages properly was admitted into evidence,

admission of the others could not have been more than harmless error, assuming,

arguendo, that there was error at all. Smith’s second assignment of error is overruled.

{¶ 34} In her third assignment of error, Smith contends the trial court erred in

allowing rebuttal testimony from a pharmacologist as to whether administering Ativan

upon her admission to the hospital was equivalent to initiating a medical protocol for

alcohol withdrawal. -22-

{¶ 35} The record reflects that Dr. Steven Wunder testified as a defense witness

at trial via a video recording. (Trial Tr. at 728.) He stated that he had reviewed “several

thousand pages” of Smith’s hospital records pertaining to her traffic accident. (Wunder

perpetuation depo. at 11.) The crux of Wunder’s testimony was that Smith’s blood-alcohol

test result of 343 mg/dl was inaccurate. He characterized it as a “false positive” and gave

several reasons for his opinion. Among other things, he stated that a person with a blood-

alcohol level that high would lose consciousness or would have obvious symptoms of

intoxication. (Id. at 18-19.) Based on his review of Smith’s medical records, however,

Wunder saw no clinical indications of intoxication. (Id. at 14, 22, 27, 34-36.) At several

points in his testimony, Wunder also opined that no “alcohol withdrawal protocol” was

started for Smith upon or shortly after her admission to the hospital. (Id. at 14, 24-25, 61-

62, 69.) He noted that the protocol was initiated four days later, for a completely different

purpose, in connection with Smith being intubated. (Id.) Wunder suggested that the

protocol involved or at least included giving a patient Ativan, which was helpful in

connection with intubation. (Id. at 25, 61.) Wunder testified that, in addition to being useful

in cases of alcohol withdrawal, Ativan calms a patient down when on a respirator. (Id. at

40.)

{¶ 36} In its rebuttal case, the State called pharmacologist Eljorn Nelson to refute

Wunder’s testimony. He stated that Ativan is a fast-acting sedative. (Trial Tr. at 734.)

According to Nelson, his review of Smith’s medical records showed that she was

administered Ativan upon admission to the hospital and for the next few days. (Id. at 735.)

Defense counsel then objected when the prosecutor asked Nelson to explain an “alcohol

withdrawal protocol.” (Id. at 735-736.) Defense counsel asserted that this was beyond the -23-

scope of Nelson’s expertise. (Id. at 736.) In response, the prosecutor argued that an

alcohol withdrawal protocol simply involved administering a sedative to reduce blood

pressure and that the protocol was documented in Smith’s records. (Id. at 737.) The trial

court indicated that it was “a little uncomfortable” “having a non-doctor testify about what

a medical procedure is.” (Id. at 751.) The trial court concluded, however, that Nelson could

testify as to whether the record did reflect an alcohol withdrawal protocol being initiated

upon or shortly after Smith’s admission to the hospital, without explaining or interpreting

that process. (Id. at 751-756.)

{¶ 37} Nelson then testified as follows in response to questioning from the

prosecutor:

Q. All right. Dr. Nelson, so if I were to tell you that this courtroom and

these Jurors have heard prior testimony that Kathy Smith was, in fact, not

placed on an alcohol withdrawal protocol, would that be correct or incorrect?

A. That’s incorrect.

Q. And what is the basis for your statement?

A. Well, there’s multiple pages in the medical record that say she

was.

Q. Okay. Thank You. If there was prior testimony in this courtroom

that no doctor noted alcohol, would that be correct or incorrect?

A. That’s wrong.

Q. Is that also in the records?

A. It is.

(Id. at 758.) -24-

{¶ 38} On cross-examination, the following exchange occurred with defense

counsel:

Q. * * * As you said, Ativan is used for lots of circumstances; is that

correct?

A. It has multiple purposes.

Q. Okay.

A. It’s a sedative, hypnotic, rapid acting—

Q. Okay.

A. –drug.

Q. And it’s also commonly used in trauma and intensive care patients

which Kathy Smith was; correct?

A. Yes.

Q. Okay. So the fact that she received Ativan would be normal?

A. Yes.

Q. Now, you differ with Dr. Wunder on a withdrawal protocol. You

say it was in effect, and he said it was not. So you’re saying Dr. Wunder is

wrong?

A. Yes page—

Q. And—

A. –page—

Q. –with regard to any—

A. Let me finish answering the question.

Q. No, I just asked you if that’s what you were saying. -25-

A. I’m giving the basis for my statement.

Q. Well, I asked you a one-word answer. Next question. That there

was no doctor who noted alcohol in the records, you said that was wrong?

A. Yes.

Q. Okay. Dr. Wunder said, no, there were no noted—no doctors

noted any alcohol. So, again, Dr. Wunder is wrong?

A. Yeah. Look on page three.

(Id. at 761-762.)

{¶ 39} On redirect examination, the following exchange occurred with the

prosecutor:

Q. All right. Dr. Nelson, you were just asked about the different

purposes for Ativan; correct?

A. Yes.

Q. Would one of those purposes be for an alcohol withdrawal

protocol?

A. It would be, yes.

Q. Okay. And, I believe you were trying to answer, do you recall

where the records indicate there was an alcohol withdrawal protocol?

A. Page 10, 115, 123, 130, 2,849, 2,859, 2,872, 2,873, possible

alcohol withdrawal.

Q. That’s the only ones? All right. Do you recall which pages where

a doctor noted possible alcohol use?

A. Page 3. -26-

(Id. at 763-764.)

{¶ 40} Upon review, we see no abuse of discretion in the trial court allowing Nelson

to testify as he did. In his own testimony, Dr. Wunder linked the administration of Ativan

to an “alcohol withdrawal protocol.” He opined, however, that no alcohol withdrawal

protocol was started for Smith upon or shortly after her hospital admission and that she

was given Ativan days later for a different purpose. In rebuttal, Nelson did not

impermissibly explain an alcohol withdrawal protocol. Rather, he asserted that multiple

pages in Smith’s medical records showed she was placed on one. On cross-examination,

he then agreed with defense counsel that Ativan had multiple uses, it was commonly used

in trauma for intensive care patients, and Smith receiving Ativan would be “normal.”

Although Nelson’s statement about the administration of Ativan being “normal” was

perhaps something a medical doctor should answer, defense counsel asked the question

and the response was favorable to the defense case. Defense counsel then asked Nelson

whether he believed Dr. Wunder was “wrong” about an alcohol withdrawal protocol being

in effect for Smith. Nelson responded affirmatively, and on redirect examination Nelson

cited pages of the medical record that purportedly showed an alcohol withdrawal protocol

being in effect. In essence, then, Nelson disputed Dr. Wunder’s claim about what the

record showed. The record either did or did not reflect the existence of an alcohol

withdrawal protocol at any given time during Smith’s hospital stay. We do not believe the

trial court abused its discretion in allowing Nelson to opine on that issue, which ultimately

was one for the jury to resolve. Finally, Nelson stated on redirect examination that treating

alcohol withdrawal was one of the potential uses of Ativan. We note, however, that Dr.

Wunder stated the same thing during his testimony (Wunder perpetuation depo. at 40), -27-

and defense counsel inquired about the potential uses of Ativan when cross examining

Nelson. Therefore, we see nothing objectionable about this aspect of Nelson’s testimony

either. The third assignment of error is overruled.

{¶ 41} Having overruled each assignment of error, we affirm the judgment of the

Greene County Common Pleas Court.

.............

DONOVAN, J. and FROELICH, J., concur.

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David M. Morrison Peter R. Certo Steven E. Bacon Hon. Stephen A. Wolaver