IN THE SUPREME COURT OF OHIO

DANA ALBANESE 06-2031Appellant, On Appeal from the Court of Appeals,

Eleventh Appellate District, Portage CountyV.

STATE OF OHIO

APpellee.

Court of Appeals Case no. 2005-P-0054

MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT DANA ALBANESE

EDWARD A. HEFFERNAN (0000421) COUNSEL OF RECORDSkylight Office Tower1660 West 2"" Street, Suite 410Cleveland, Ohio 44113(216) 241-0040Fax No. 216/241-4804COUNSEL FOR APPELLANT, DANA ALBANESE

VICTOR V. VIGLUICCI ( 0012579) COUNSEL OF RECORDPortage County Prosecuting Attorney466 S. Chestnut StreetRavenna, OH 44266(330) 297-3856Fax No. 330/297-4594COUNSEL FOR APPELLEE

TABLE OF CONTENTS

PaeeEXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC ORGREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIALCONSTITUTIONAL QUESTION -- ------------------------------------------------ 1

STATEMENT OF THE CASE AND FACTS ------------------------------------- 3

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW ------------------ 4

Proposition of Law No. I: ----------------------------------------------- 4The appellant was denied a fair and inipartial trial as guaranteed by theSixth and Fourteenth Amendments ofthe United States Constitution andArticle 1, Section 10 ofthe Ohio Constitution where the trial court erredin denying the appeIlant due process of law by suppressing the admissionof the NHTSA manual and liniiting the cross examination of the State'sonly witness, the police officer, but allowed the State's only witness totestify as an expert as to those same standards without properlyqualifying the witness and admitting improper opinions and hearsay tothe prejudice of the appellant.

Proposition of Law No. II: --------- -------- ----------------------- 9The appellant was denied a fair and impartial trial as guaranteed by theSixth and Fourteenth Arnendments of the United States Constitution andArticle 1, Section 10 of the Ohio Constitution where the trial court erredin denying the appellant due process of law by the State's &ilure todisclose exculpatory evidence, specifically the booking videotape and/orthe booking photograph again denied Appellant Albanese the right to afair trial.

CONCLUSION ------------------------------------------------------------------------- 12

PROOF OF SERVICE ----------------------------------------------------------------- 13

APPENDIX Appx. Page

Opinion of Court of Appeals Eleventh Appellate District, Portage County

(September 18, 2006) ---------------------------------------------------------- 1

Judgment Entry of the Court of Appeals Eleventh Appellate District,Portage County (Septeuilber 18, 2006) ------------------------------------- 20

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EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERALINTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL OUESTION

This cause presents two critical issues for appeal that directly effect the basic procedural

due process rights of defendants who are charged with DUI and their ability to adequately try

their case in a matter consistent with the constitutional protections afforded therein. The first

issue is the admission of expert testimony by the police, specifically in regard to the National

Highway Traffic Safety Administration ("NHTSA") manual, but more importantly, the officer's

ability to testify to and interpret NHTSA standards and the manual as an expert when the trial

judge had suppressed the manual and held that the police officer is not an expert capable of

recognizing and authenticating the very document from which he garners all of his expert opinion

and testimony. The very same officer is the sole witness for the prosecution. The prosecution was

allowed to direct the officer's testimony using the NHTSA manual and the requisite standards but

the Defense was precluded from cross exaro;r,;ng him or utilizing the document. The dissent in the

opinion of this appeal, stated the case of public or great concern very succinctly.

Per O'Neill J., "At trial, the arresting officer went directly to the issue at hand when he

testified, over objection, that based upon his field sobriety tests the driver `will blow over a point

one,' thus, there is no question that Officer Sackett was testifying as an expert with not even a

minimal attempt by anyone to qualify him as such. He cannot testify as an expert unless and until

he has been established as an expert by the court. State v. Boston (1989), 46 Ohio St.3d 108, 118.

The record clearly demonstrates that the officer was not an expert on the NHTSA Standards. The

trial court had already ruled that the NHTSA manual could not be admitted because no one had

been qualified as an expert on the standards. You cannot have it both ways. Either he was an

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expert, and the manual is admissible through his testimony; or he is not an expert, and both his

testimony and the manual are excluded."

O'Neill, J. further opined, "[H]is testimony was clearly hearsay. Evid.R. 801(C). As the

trial court noted, `[w]e], of course, everything the officer leamed could be identified as hearsay

because he didn't *** come to those conclusions on his own. What he learned and has put into

practice could be identified as hearsay.' The trial court permitted Officer Sackett to state the

opinion of an unidentified source who, at some unknown point in tinie, arrived at the speculative

conclusion that a certain percentage of individuals who exhibit a certain number of clues on a

particular field sobriety test will have a breath-alcohol level in excess of point one. Presumably,

this infonnation was published in the NHTSA manual, but the record does not inform us for

certain."

The court of appeals in a 2/1 decision upheld the trial court, but in doing so, it has

irreparably shifted the burden to the Defense to provide a NHTSA expert, yet allowed the police

to testify freely on behalf of the State as its expert denying the Defense his right to effectively

cross examine. Furthennore, the trial court did not require the police officer to satisfy the basic

evidentiary requirements to qualify himself to testify as an expert and did not properly qualify the

police officer.

The decision of the court of appeals sets a precedent that disregards proper evidentiary

standards for police testimony and expert testimony in criminal proceedings and sets an impossible

standard for admission of expert police testimony of NHTSA materials. In essence, the Court

would require the production of the author of the NHTSA manuals in this case for the defendant

only allows the prosecutor to lead freely involves a substantial constitutional question.

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The second issue of pubfic or great general interest is that the appellant was denied a fair

and impartial trial as guaranteed by the Sixth and Fourteenth Amendments of the United States

Constitution and Article 1, Section 10 of the Ohio Constitution where the trial court erred in

denying the appellant due process of law by the State's failure to disclose exculpatory evidence,

specifically the booking videotape and/or the booking photograph again denied appellant

Albanese the right to a fair trial. The decision of the court of appeals as to this issue needs to be

clarified so as to give guidance as to the responsibility to the appellant to produce evidence clearly

technologically available. This issue is also of great public interest and concern as well as going to

the Constitutional issue of due process and a fair triaL

Thus, this court must grant jurisdiction to hear this case and review the erroneous decision

of the court of appeals that involves a constitutional as well as a case of great public interest.

STATEMENT OF THE CASE AND FACTS

This case arises from appellant Dana Albanese being charged with operation of a

motor vehicle while intoxicated (OMVI), a violation of R.C. 4511.19(A)(1), and with speeding, a

violation ofR.C. 4511.21, by the Streetsboro City Police Department. On May 24, 2004, a

suppression hearing was held before Judge Barbara R. Watson regarding appellant's motion to

suppress. The sole witness for the prosecutor was Officer Sackett. The trial court held that there

was reasonable cause for stop and probable cause for arrest; therefore the motion to suppress was

ovenuled by Judge Barbara R. Watson. On September 7, 2004, appeDant filed a jury demand.

On May 5, 2005, a jury trial was held before Judge Barbara R. Watson in which the jury

returned a verdict against the appellant as guilty of the offense R.C. 4511.21. On May 20, 2005,

the court sentenced the appellant. That sentence is now stayed pending appeal. The appellant's

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sentence was stayed on May 5, 2005.

The appellant appealed to the Court of Appeals, Eleventh District. The court of

appeals affirmed the judgment of the Portage County Municipal Court and found that: (1) the trial

court did not err nor abused its discretion to the prejudice of the defendant-appellant due to the

misconduct of the prosecuting attorney that prejudicially affected the substantial rights of the

appellant to receive a fair trial; (2) that defendant-appellant was not denied a fair and impartial

trial as guaranteed by the Sixth and Fourteenth Aimndments of the United States Constitution

and Article 1, Section 10 of the Ohio Constitution nor did the trial court err in violating the

defendant-appellant's right to cross examination; (3) that the trial court did not err by allowing the

admission of irrelevant evidence, nor was the appellant denied her right to a fair trial and the court

in its action showed support or bias toward the prosecution; and (4) the defendant was not denied

a fair trial because of the cumulative prejudicial errors that occurred at trial.

The Appellant appeals from two (2) of these assignments and in support of its position,

the appellant presents the following argument.

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

Propositions of Law No. I: The appellant was denied a fair and impartial trial as

guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution

and Article 1, Section 10 of the Ohio Constitution where the trial court erred in denying

the appellant due process of law by suppressing the admission of the NHTSA manual and

limiting the cross examination of the State's only witness, the police officer, but allowed the

State's only witness to testify as an expert as to those same standards without properly

qualifying the witness and admitting improper opinions and hearsay to the prejudice of the

appellant.

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The Fourteenth Amendment of the United States Constitution states that it is

unconstitutional to "deprive any person of *** flberty *** without due process of law."

The Sixth Arnendment to the United States Constitution guarantees the right of a criminal

defendant to confront the witnesses against him for the biases they may hold. However, the trial

court retains wide latitude to impose reasonable limits on cross-examination based on concerns

about, among other things, harassment, prejudice, confusion of the issues, or relevance of the

inquiry. (See State v. McIntosh (2001), 145 Ohio App.3d 567, 578).

A more detailed explanation of this standard of review is provided by the Seventh Circuit

in United States v. Nelson (C.A.7, 1994), 39 F.3d 705, 708), wherein the Court provided an

appellate standard of review for the limitation of cross-examination. Therein, the court explained,

where limitations directly implicate the Sixth Aniendment right of confrontation, the appellate

court must review the limitation de novo. Thus, when deciding whether limitations of cross-

examination are permissible, "courts have striven to distinguish between the core values of the

confrontation right and more peripheral concerns which remain within the ambit of trial judge's

discretion." (See Id., quoting United States v. Saunders (C.A.7, 1993), 973 F.2d 1354, 1358.)

Linutations on cross-examination that deny a defendant "the opportunity to establish that the

witnesses may have had a motive to lie" infringe on core Sixth Amendment rights, not merely the

denial to counsel of the "opportunity to add extra detail to that motive." (See Id., quoting United

States v. Saunders (C.A.7, 1993), 973 F.2d 1354, 1358).

In the case at bar, the trial court's refusal to permit the appellant virtually any cross-

exarnination of the officer because the issues were already argued in a prior suppression hearing

was clearly an abuse of discretion violating the appellant's Sixth Amendment Rights.

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Consequently, the trial court's decision must be reversed and the matter remanded for a new trial

where the appellant may cross examine the officer as to his qualifications, procedures used and all

other relevant issues regarding the administration of the field sobriety tests.

The trial court continually allowed the prosecution to interrupt the cross-exanunation of

the State's only witness and then ruled that his objection should be sustained. Then the court

restricted the cross-examination of the State's only witness, Officer Sackett, and refused to allow

the defense attorney to impeach police officer's improper adnrinistration of the field sobriety tests

as set forth in the NHTSA manual. The following are some of the examples of how the defense

attorney Weisenburger's cross examination of the prosecution's only witness was restricted and

limited by the court which seriously violated appellant's constitutional rights to effectively cross

examine her accuser:

(T.p.154-155)

BY MR. WEISENBURGER:

Q Now, did Dana lean against her car for support while she exited?

A I don't be&eve she leaned against it, no.

Q But you didn't write that down in the report I take it?

A No.

Q And that's a conmion symptom of being intoxicated; is it not?

A That is one ofthem.

Q Alright. The fact is in your report you only write down the incriminating faets;

isn't that accurate?

MR FINNEGAN: Objection. I'm not sure where he's going with this.

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MR. WEISENBURGER: It's cross-examination.

THE COURT: Yeah I'm going to sustain as to the form of the questiorL

(T.p.176)

BY MR. WEISENBURGER:

Q Do you know what the decision point on the one-leg stand is?

A I observed two clues on that test.

Q Do you know what the decision point on that test is?

A Not offhand.

Q So you're telling us that you're grading her based upon the standards that you

don't know what the pass/fail line is?

MR FINNEGAN: Objection.

THE COURT: Sustained.

BY MR. WELSENBURGER:

Q So you were grading her on your own subjective interpretation then?

MR FINNEGAN: Objection.

THE COURT: Sustained.

(T.p.190-191)

BY MR. WEISENBURGER:

Q When was the last time that you had your accuracy checked for -- for the 45

degree angle?

MR. FINNEG AN: Objection, relevance. There was a suppression hearing on this issue.

THE COURT: Yeah Ahight. I'm going to sustain. Colmsel want to approach the bench...

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MR. WEISENBURGF,R: We do have the transcript of that hearing.

THE COURT: You do have it?

MR. WEISENBURGER: We do have the transcript of that. The burden of proof isn't

substantial conipliance here m the triaL The burden of proof is beyond a reasonable doubt. I think it's a

little bit different than on a suppression hearing.

THE COURT: It's already been admitted. O.K. Objection sustained.

(T. p. 194)

MR. WEISENBURGER: Alright. When you took Dana back to the booking room there,

that's basically an enclosed room inside the pofice department?

A Yes, it is.

Q Level floor covering, fluorescent lights, well-lighted, everything hlce that?

A Yes.

Q O.K. And in other words, good environmental conditions which you could

have conducted sonie field sobriety tests there?

MR. FINNEGAN: Objection.

THE COURT: Sustained.

(T.p.201)

BY MR. WEISENBURGER:

Q Do you have the booking photographs with you that you took of Dana?

A No, I do not.

Q Those would be clear enough to show that she had red and glassy eyes; is that

correct?

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MR FINNEGAN: Objection He's testified he doesn't have the pichnes, so how could he know.

THE COURT: I'll sustam.

Appellant argues that she was denied due process by the trial court. The trial court denied her

the right to cross-examine the Police Officer Sackett. The trial court in a pretrial hearing ruled that

neither party could utilize the NHTSA manual unless they produced an expert. However, the

prosecution in violation of the court order, continually referenced the national standards set forth in the

NHTSA manual through their only witness, Officer Sackett. Only after the prosecution open the door

did Defense counsel attempted to impeach the State's witness not only with the manual but also his

prior testimony at the suppression hearing. That during the suppression hearing no information or the

use of the documents to cross-exanruie Police Officer Sackett would not be adnv.tted into trial unless

the appellant brought sonaebody in from the NHTSA organiration. However, the trial court allowed

the prosecution to utilize the NI ITSA manual and had their police officer testify pursuant to the

NHTSA's regulations. The appellant requested a mistrial based upon the prosecution violation of the

judge's pre-trial order. Thereby, the appellant was not allowed her due process right to cross-examine

the Police Officer Sackett admiuistering the FST for impeachnient purpose.

The trial court abused its power by allowing the prosecutor to interrupt the examinal.ion of the

police officer with improper objections and limited the appellant's constitutional right to cross examine

the officer to expose that he was inept and subjective in his evaluation of the appellant's performance

on the field sobriety tests.

Propositious of Law No. II: The second issue of public or great general interest is that the

appellant was denied a fair and impartial trial as guaranteed by the Sixth and Fourteenth

Amendments of the United States Constitution and Article 1, Section 10 of the Ohio

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Constitution where the trial court erred in denying the appellant due process of law by the

State's failure to disclose exculpatory evidence, specifically the booking videotape and/or the

booking photograph again denied Appellant Albanese the right to a fair triaL

The decision of the court of appeals as to this issue needs to be clardied so as to give guidance

as to the responsbility to the appellant to produce evidence clearly technologicaiy available. This issue

is also of great pub&c interest and concem as well as going to the constitutional issue of due process

and a fair triaL In State v. Davis, 11th Dist. No. 2003-P-0077, 2004 Ohio 6684, at P23-25, this court

stated that:

"in Brady v. Maryland (1963), 373 U.S. 83, 87, 10 L. Ed. 2d 215, 83 S. Ct. 1194 ***, the

United States Supreme Court held that'suppression by the prosecution of evidence favorable

to an accused upon request violates due process where the evidence is material eitlw to guilt

or to punishment, irrespective of the good faith or bad faith of the prosecution.'

"To prove the prosecution violated Brady, a defendant must show that: '(1) the prosecution

failed to disclose evidence upon request; (2) the evidence was favorable to the defense; and (3) the

evidence was material.' State v. West (Oct. 27, 2000), 11 th Dist. No. 98-P-0132, 2000 Ohio App.

LEX[S 5014 at *3 ***, citing Moore v. Illinois (1972), 408 U.S. 786, 33 L. Ed. 2d 706, 92 S. Ct.

2562 ***. The withholding of exculpatory or inqxachment evidence constitutes a Brady violation only

if it is 'materiaL' West, supra, citing United States v. Bagley (1985), 473 U.S. 667, 87 L. Ed. 2d 481,

105 S. Ct. 3375 ***. With respect to the materiality prong, the United States Supreme Court has noted

that "'Bagley's touchstone of materiality is a'reasonable probability' of a different result, and the

adjective is important. The question is not whether the defendant would more lilcely than not have

received a different verdict with the evidence, but whether in its absence he received a fair trial,

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understood as a trial resulting in a verdict worthy of confidence. A 'reasonable probabRy of a different

result is accordingly shown when the government's evidentiary suppression'undennines the confidence

in the outcome of the trial."" (Citations omitted.) West, supra, quoting Kyles v. I3'hitley (1995), 514

U.S. 419, 434, 131 L. Ed. 2d 490, 115 S. Ct. 1555 ***.

"The Supreme Court of Ohio has recognized that due process is violated when material

evidence, favorable to the accused, is suppressed. State v. Jackson (1991), 57 Ohio St.3d 29, 33, 565

N.E.2d 549 ***. However, undisclosed information that might have affected the outcome of the trial

or helped the defense does not establish'materiality' in the constitutional sense. Id. 'Brady requires a

"reasonable probability" of a different outconie with the exculpatory evidence, that is, an undennined

confidence in the trial result obtained without the exculpatory evidence.' Id. The defense must also

prove a Brady violation and the subsequent denial of due process. Id. FinaIly, any undisclosed

informuation must be evaluated in the context of the entire record in order to detemrine if there would

be a reasonable doubt about the guilt of a defendant if the additional evidence was considered. Id. at

34." (ParaIlel citations omitted.)

Prior to trial in the instant case, appellant filed a motion or request for discovery requesting the

prosecuting attomey to disclose all evidence, known or which might become known to him, that was

favorable to the defendant and niaterial either to guilt or punishment, as required by Crim.R

16(B)(1)(1). In responding to the discovery request, the State failed to produce the police station

videotape to the defendant. Further, the State failed to preserve evidence that is required by Crirn.R 16.

During the trial, Officer Sackett testified that there was a video camera in the police station on the date

that the defendant was arrested and that Scott Harmon, the police department dispatcher, was

watching, via the monitor. Further, there was a booking photograph taken of the Defendant in which

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the prosecution willfttlly withheld from the defense counsel. The police station videotape and/or the

booking photograph certainly w-ould have been able to impeach the Police Officer Sackett's opinion in

which it would have proven that Ms. Albanese did not have glassy red eyes and that the movement of

Ms. Albanese through the videotape would have assisted the jury in evaluating her motor skills. Thus,

appellant was denied exculpatory evidence and the prosecution failed to disclose evidence upon request

that was favorable to the defense and the evidence was material.

Appeiant Albanese's right to a fair trial was substantially violated by the State concealing the

alleged fact that Police Officer Sackett had contact with the appellant rionths before the June 24, 2003

arrest.

Once again, in the case at bar, the prosecution failed to disclose all evidence to the

appeiant and violated the appellant's due process. The prosecution willfully withheld the infonnation

from the defense counsel that Officer Sackett had seen the appellant before. Officer Sackett made no

indication that he knew the appellant. The withholding of exculpatory or impeachment evidence

constitutes another Brady violation by the prosecution thus violating the appellant's right to due

process.

CONCLUSION

For the reasons discussed above, this case involves matters ofpublic and great general interest

and a substantial constitutional question The appellant requests that this court accept jurisdiction in

this case so that the important issues presented will be reviewed on the rnerits.

TDW4gD A ERNAN (00004COUNSEL OF RE

. F^EVFCQ^RD

Skylight Office Tow1660 West 2' Stree^Suite 410Cleveland, Ohio 44113(216) 241-0040Fax No. 216/241-4804Counsel for Appellant, Dana. Albanese

CERTIFICATE OF SERVICE

I certify that a copy of this Memorandum in Support was sent by ordinazy U.S. mail to

counsel for appellee, Victor V. Vigluicci, 466 S. Chestnut Street, Ravema, Ohio 44266 on this 1sT

day ofNoveniber, 2006.

THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

PORTAGE COUNTY, OHIO

STATEOFOHIO, FILED OPINION

Plaintiff-Appellee, COURTOF APPEALS

SEP 18 2006 CASE NO. 2005-P-0054-vs- :

UNDAK. FANKHAUSER, CLERKDANA ALBANESE, PORTAGECOUNTY OHIO

Defendant-Appellant.

Criminal Appeal from the Portage County Municipal Court, Ravenna Division, Case No.R 03 TRC 14501.

Judgment: Affirmed.,

Victor V. Vigluicci, Portage County Prosecutor, and Jennifer E. Redman, AssistantProsecutor, 466 South Chestnut Street, Ravenna, OH 44266 ( For Plaintiff-Appellee).

Edward A. Heffeman, Heffernan & Kuenzi, 410 Skylight Office Tower, 1660 WestSecond Street, Cleveland, OH 44113-1454 (For Defendant-Appellant).

DONALD R. FORD, P.J.

{¶1} Appellant, Dana Albanese, appeals from the May 20, 2005 judgment entry of

the Portage County Municipal Court, Ravenna Division, in which she was sentenced for

speeding and driving under the influence of alcohol ("DUI").

{¶2} On June 24, 2003, a complaint was filed against appellant charging her with

one count of speeding, a minor misdemeanor, in violation of R.C. 4511.21(C), and one

count of DUI, a misdemeanor of the first degree, in violation of R.C. 4511.19(A)(1). On

June 24, 2003, appellant entered a plea of not guilty at her initial appearance.

t

{¶3} On December 15, 2003, appellant filed a motion to suppress.1 A

suppression hea(ng was held on May 24, 2004.

{¶4} At that hearing, Officer Jason Sackett ("Officer Sackett"), with the Streetsboro

City Police Department, was the sole witness to testify. He testified for appellee, the state

of Ohio, that he was on duty on June 24, 2003, and came in contact with appellant shortly

after 3:00 a.m. Officer Sackett was traveling in his marked cruiser, and observed appellant

driving eastbound on State Route 14 in Streetsboro, Portage County, Ohio. He visually

estimated that her vehicle was traveling in excess of the speed limit, which was confirmed

by radar. Appellant was clocked at fifty-five m.p.h., fifteen miles over the posted forty

m.p.h. speed limit. At that time, he initiated a traffic stop of appellant's vehicle.

{1[5} Upon approaching appellant's car, Officer Sackett noticed a strong odor of

alcohol, and indicated that appellant's eyes were glassy and bloodshot. Appellant's

speech appeared to be normal. He asked appellant whether she had consumed any

alcoholic beverages. Officer Sackett indicated that appellant replied that she had a couple

of drinks. He ordered appellant out of her vehicle, and administered three field sobriety

tests, including the Horizontal Gaze Nystagmus ("HGN"), the one-legged stand, and the

walk and turn. Officer Sackett testified that appellant failed all three tests. He then

arrested appellant for DUI, and transported her to the station. At the station, she declined

B.A.C. testing and signed Form 2255.

1. In her motion to suppress, appellant moved the trial court to suppress any and all evidence, includingstatements, opinions, observations, and field sobriety tests, on the grounds that the evidence was obtainedillegally for the following reasons: (1) there was no reasonable suspicion to detain her, nor to believe that shewas operating a motor vehicle while under the influence; (2) probable cause did not exist to arrest her; (3)the field sobriety tests were not conducted in accordance with established standards; (4) she was notproperly advised of her Miranda rights; and (5) false and misleading information was given regarding theconsequences of a refusal to submit to a test.

2

{¶6} Pursuant to its May 24, 2004 judgment entry, the trial court denied

appellant's motion to suppress, concluding that reasonable cause existed for the stop, and

probable cause existed for appellant's arrest.

{¶7} On September 7, 2004, appellant filed a demand for trial by jury pursuant to

Crim.R. 23. A jury trial commenced on May 5, 2005.

{¶8} At the trial, Officer Sackett testified for appellee to the same sequence of

events as he did at the hearing on appellant's motion to suppress. In addition, Officer

Sackett indicated that the traffic stop was not recorded on video, since at that time, the

cruisers were not equipped with cameras. He established the standardized manner of

conducting field sobriety tests as required by the National Highway Traffic Safety

Administration ("NHTSA"), and maintained that he administered the tests in substantial

compliance with the'testing standards.z

{¶9} On cross-examination, Officer Sackett stated that he fills out police reports

generally a couple hours after an arrest. He said that the only reason that he stopped

appellant's vehicle was due to her speeding. Officer Sackett testified that appellant was

slightly off-balance when she exited her car. Officer Sackett was asked by defense

counsel whether he had ever seen appellant before, and he replied that he had.3 He

indicated that when grading the field sobriety tests, they are based on the NHTSA training.

According to Officer Sackett, the booking room at the station contains a video camera. He

stated that a tape should have been in evidence if the camera was functioning. Officer

Sackett did not have the booking photographs of appellant at the trial.

2. We note that amended R.C. 4511.19, effective April 9, 2003, no longer requires an arresting officer toadminister field sobriety tests in strict compliance with testing standards for the test results to be admissible.Rather, substantial compliance is required. State v. Delarosa, 11th Dist. No. 2003-P-0129, 2005-Ohio-3399,at ¶45, fn. 4; State v. Boczar, 11th Dist. No. 2004-A-0063, 2005-Ohio-6910, at 131-36.

3. Appellant's counsel did not further inquire how Officer Sackett knew appellant.

3

{¶10} On re-direct examination, Officer Sackett testified that he had come in

contact with appellant about three months prior to the incident at issue on a routine traffic

stop, but indicated that no citation was issued.

{¶11} At the end of appellee's case, appellant's counsel moved for an acquittal

pursuant to Crim.R. 29, which was overruled by the trial court.

{¶12} According to appellant, when asked by Officer Sackett during the stop

whether she had consumed any alcohol, she replied that she had two glasses of wine.

Appellant testified that Officer Sackett's demeanor was aggressive and intimidating. With

respect to the field sobriety tests, appellant stated that Officer Sackett never informed her

that there were points given or that she was being graded. Appellant said that she had

back problems. At the station, she refused the breathalyzer test and requested an

attorney.

{¶13} On cross-examination, appellant admitted that she was traveling in excess of

the posted speed limit. She said that she would have followed Officer Sackett's

instructions whether he had told her it was a "test" or not. Appellant never volunteered to

Officer Sackett that she had back problems.

{¶14} At the close of the defense's case, appellant's counsel renewed the Crim.R.

29 motion, which was overruled by the trial court.

{¶15} Following the jury trial, on May 6, 2005, the jury found appellant guilty of DUI.

In addition, appellant was found guilty of speeding by the trial court.

{¶16} Pursuant to its May 20, 2005 judgment entry the trial court sentenced

appellant to one hundred eighty days in jail, with one hundred seventy days conditionally

suspended; ordered her to pay a $350 fine; and suspended her driver's license for two

4

years. Appellant's sentence was stayed pending appeal. It is from that judgment that

appellant filed a timely notice of appeal and makes the following assignments of error:°

{4g17} "[1.] The trial court committed error and abused its discretion to the prejudice

of [appellant] due to the misconduct of the prosecuting attorney that prejudicially affected

the substantial rights of [appellant] to receive a fair trial.

{¶18} "[2.] [Appellant] was denied a fair and impartial trial as guaranteed by the

Sixth and Fourteenth Amendments of the United States Constitution and Article I, Section

10 of the Ohio Constitution where the trial court erred in violating [appellant's] right to cross

examination.

{¶19} "[3.] The trial court erred allowing the admission of irrelevant evidence, and

as a result of this abuse, appellant was denied her right to a fair trial and the court in its

action showed support or bias toward the prosecution.

{¶20} "[4.] [Appellant] was denied a fair trial because of the cumulative prejudicial

errors that occurred at trial."

{¶21} In her first assignment of error, appellant argues that the trial court erred in

denying her motion for a mistrial due to the misconduct of the prosecutor which

prejudicially affected her substantial rights to receive a fair trial.5 Specifically, appellant

contends that the prosecutor made improper statements during closing argument;

referenced previously excluded evidence; failed to disclose potentially exculpatory

evidence to the defense; and concealed prior contact between Officer Sackett and

appellant.

4. The subject of appellant's appeal focuses on her conviction for DUI. She does not take issue with thespeeding charge.

5. Appellant's counsel orally moved for a mistrial during the trial.

5

{¶22} The granting or denying of a mistrial under Crim.R. 33 rests within the sound

discretion of the trial court and will not be disturbed on appeal absent an abuse of

discretion. State v. Witliams (1975), 43 Ohio St.2d 88, paragraph two of the syllabus. An

abuse of discretion "connotes more than an error of law or of judgment; it impfies that the

court's attitude is unreasonable, arbitrary or unconscionable." State v. Adams (1980), 62

Ohio St.2d 151, 157.

{¶23} This court stated in State v. Johnson (Sept. 24, 1999), 11th Dist. No. 97-T-

0227, 1999 Ohio App. LEXIS 4469, at 12-14:

{¶24} "[t]he Supreme Court of Ohio has made the following observation regarding

mistrials:

{1[25} "'[i]n evaluating whether the declaration of a mistrial was proper in a

particular case, this court has declined to apply inflexible standards, due to the infinite

variety of circumstances in which a mistrial may arise. (***) This court has instead adopted

an approach which grants great deference to the trial court's discretion in this area, in

recognition of the fact that the trial judge is in the best position to determine whether the

situation in his courtroom warrants the declaration of a mistrial.' (Citations omitted.) State

v. Glover(1988), 35 Ohio St.3d 18, 19

{¶26} "Thus, the decision whether to grant or deny a mistrial under Crim.R. 33 rests

within the sound discretion of the trial court. Id.; State v. Sage (1987), 31 Ohio St.3d 173,

182 ***; State v. Widner (1981), 68 Ohio St.2d 188, 190 ***; State v. Patterson (May 22,

1998), 11th Dist. No. 96-T-5439, 1998 Ohio App. LEXIS 2289, at 19 ***. Mistrials should

only be declared when the ends of justice so require and a fair trial is no longer possible.

State v. Franklin (1991), 62 Ohio St.3d 118, 127 ***; Patterson, [supra], at 6." (Parallel

citations omitted.)

6

{127} With respect to prosecutorial misconduct, the Supreme Court in State v.

Slagle (1992), 65 Ohio St.3d 597, 607, stated: "[w]hen we review a prosecutor's closing

argument we ask two questions: 'whether the remarks were improper and, if so, whether

they prejudicially affected substantial rights of the defendant.' State v. Smith (1984), 14

Ohio St.3d 13, 14 *'*. The closing argument is considered in its entirety to determine

whether it was prejudicial. State v. Moritz (1980), 63 Ohio St.2d 150, 157 (Parallel

citations omitted.)

{¶28} "Counsel is generally given latitude during closing arguments to state what

the evidence has shown and what inferences can be made by the jury." State v. Heams,

11th Dist. No. 2002-P-0050, 2004-Ohio-385, at ¶15, citing State v. Davis (1996), 76 Ohio

St.3d 107, 117. In determining whether the prosecutor's statements affected a substantial

right of the defendant, an appellate court should consider the following factors: "(1) the

nature of the remarks; (2) whether an objection was made by defense counsel; (3) whether

the court gave any corrective instructions; and (4) the strength of the evidence presented

against the defendant." I-(earns, supra, at ¶15, citing State v. Braxton (1995), 102 Ohio

App.3d 28, 41.

{¶29) In the case at bar, we do not agree with appellant that the trial court erred

and abused its discretion in denying her motion for a mistrial based on alleged misconduct

by the prosecution:

{¶30} First, appellant contends that the trial court erred in denying a mistrial based

on the prosecutors reference to "divided attention skills tests" during closing argument.

Specifically, the prosecutor stated: "[now], the fact that they aren't called tests and they

don't sit there and say, 'O.K. You got a C on that one, a D on that one.' There's a reason

for it. If people think they're being tested on something they start getting more agitated.

7

They start being a little more leery. These are referred to as divided attention skills tests.

They're testing more than one thing at a time." Appellant's counsel objected. The trial

court sustained the objection based on the fact that Officer Sackett did not testify using the

particular words, "divided attention skills tests." The prosecutor continued his closing,

referencing the substance of Officer Sackett's testimony, but without using the phrase,

"divided attention skills tests." The trial court instructed the jury that opening statements

and closing arguments of counsel are not evidence, but rather are only designed to assist.

Appellant's counsel ultimately moved for a mistrial. The trial court properly overruled

appellant's motion, stating: "** I gave the jury an instruction that there had been no

testimony regarding divided attention skills, and that they were to disregard that statement

by the prosecutor."

{¶31} We note that the prosecutor's remark actually addressed inferences from

appellant's own testimony on direct examination at trial.

{¶32} "Q After [the HGN] exercise did you know that it was a test?

{¶33} "A No. I didn't know that there were points there or anything like that.

{4g34} "Q And he never told you that you were being graded, and if you failed this

test that you would be arrested for driving under the influence?

(¶35} "A No, he didn't."

{¶36} Again, the foregoing was brought up by appellant's counsel. The fact that

the prosecutor later made reference to "divided attention skills tests" does not lead us to

conclude that the trial court abused its discretion in denying appellant's motion for mistrial.

{¶37} Second, appellant argues that the prosecutor referenced previously excluded

evidence. Appellant contends that a mistrial should have been granted when the

prosecutor referenced the NHTSA manual during the direct examination of Officer Sackett.

8

We note that the trial court limited the admissibility of the NHTSA manual itself, unless an

expert was produced.

{¶38} At trial, the court stated:

{¶39} "[t]he actual manual I said could not be admitted because it is a document

and *' there's nobody here to identify it as having put if together.

{¶40} "The officer is permitted to testify as to what he observed based on what he

was taught in the certain course. And that - - that has been permitted ever since I can

remember."

{¶41} The transcript reveals that both appellee as well as appellant made

references to the NHTSA standards and manual. Again, Officer Sackett testified for

appellee. On direct examination, he referenced his basic duties as a patrolman, the

training he received; and indicated that he was a certified peace officer in the state of Ohio.

Officer Sackett stated that he uses the standards in the NHTSA manual when he performs

field sobriety tests. He explained the three field sobriety tests, including the HGN, the one-

legged stand, and the walk and turn. The prosecutor asked Officer Sackett what four or

more clues represent in the HGN test, and he replied "a 77 percent chance that the person

will blow over a point one." There was no objection made by the defense. With respect to

the one-legged stand, the prosecutor asked Officer Sackett what two or more clues

indicated, and he responded that "[t]here's a 65 percent chance that the defendant will

blow over a point one." Defense counsel objected, and the trial court overruled the

objection. Regarding the walk and turn, the prosecutor asked Officer Sackett what

standards were used to perform that test. He replied that the NHTSA standards were

used. There was no objection made by defense counsel. We do not believe that Officer

9

Sackett testified as an expert with respect to the NHTSA manual. Rather, he testified as to

what he observed based on his training.

{¶42} The trial transc(pt also reveals numerous references to the NHTSA

standards and manual made by appellant. Specifically, defense counsel asked Officer

Sackett twice on cross-examination if his grading of the field sobriety tests was based on

the NHTSA manual and training. Appellant's counsel asked Officer Sackett if the NHTSA

manual indicates whether contact lenses can limit lateral eye movement. Defense counsel

inquired whether it was accurate that the NHTSA standards indicate a certain gap

allowance in walking in the heel-to-toe test. In addition, defense counsel made references

to the NHTSA standards and manual in his closing argument.

{¶43} After thoroughly reviewing the trial transcript, this court does not see any

improper remarks by the prosecutor which would have denied appellant a fair trial.

{144} Third, appellant alleges that appellee failed to disclose potentially exculpatory

evidence to the defense. Specifically, appellant contends that the absence of the booking

videotape and/or the booking photograph denied her the right to a fair trial. We disagree.

{¶45} "Exculpatory evidence" is defined as evidence favorable to the accused,

which "if disclosed and used effectively, *** may make the difference between conviction

and acquittal." U.S. v. Bagley (1985), 473 U.S. 667, 676.

{146} Failure to disclose exculpatory evidence, when discovered during trial, is

governed by Crim.R. 16 rather than Brady v. Maryland (1963), 373 U.S. 83. State v.

Wickline (1990), 50 Ohio St.3d 114, 116, citing United States v. Agurs (1976), 427 U.S. 97,

103. Brady involves the discovery of information after trial which had been known to the

prosecution but unknown to the defense. Id.

10

{¶47} The Supreme Court of Ohio in State v. Joseph (1995), 73 Ohio St.3d 450,

458, stated: "[p]rosecutorial violations of Crim.R. 16 are reversible only when there is a

showing that (1) the prosecution's failure to disclose was a willful violation of the rule, (2)

foreknowledge of the information would have benefited the accused in the preparation of

his defense, and (3) the accused suffered some prejudicial effect. State v. Parson (1983),

6 Ohio St.3d 442, 445 *"." (Parallel citation omitted.)

{¶48} In the instant matter, the record shows that the alleged exculpatory material

was presented during trial. In fact, a review of the trial transcript reveals that appellant's

counsel first referenced the station videotape and the booking photograph during his

cross-examination of Officer Sackett. As such, defense counsel had actual knowledge of

the items at issue. Thus, the element of surprise is totally absent. As such, there exists no

Brady violation requiring a new trial. Wicktine, supra, at 116.

{¶49} Although appellant specifically requested copies of the videotape and

photograph in her July 3, 2003 demand for discovery, she fails to show that the evidence

at issue would have made the difference between conviction and acquittal. Appellant's

glassy and bloodshot eyes and her motor skills were brought to the attention of the jury

through Officer Sackett's testimony, who witnessed appellant when she was stopped. In

addition, appellant's counsel failed to request a continuance regarding the videotape and

photograph. Based on the facts presented, we do not believe that appellant suffered

prejudice.

{¶50} Lastly, appellant stresses that the triai court should have declared a mistrial

due to appellee's alleged failure to disclose prior contact between Officer Sackett and

appellant. However, appellant brought up the subject on cross-examination, which shows

her knowledge. Thus, there was no element of surprise. Again, on cross-examination,

11

appellant's counsel asked Officer Sackett if he had ever seen appellant previously, to

which he replied that he had. After that brief question, defense counsel continued with his

cross-examination. On re-direct examination, the prosecutor asked Officer Sackett if he

had in fact ever seen appellant before, to which he responded in the affirmative. Defense

counsel objected. Following sidebar, the trial court ultimately sustained the objection,

limiting questioning to the fact of the prior contact, not the underlying circumstances or

prior acts of appellant. There is no evidence that the prosecutor willfully withheld the fact

that Officer Sackett and appellant had prior contact with each other. This issue will be

addressed more specifically under appellant's third assignment of error.

{151} Appellant's first assignment of error is without merit.

{¶52} In her second assignment of error, appellant maintains that she was denied a

fair and impartial trial because the trial court erred in violating her right to cross-

examination. Appellant stresses that the trial court improperly limited the scope of cross-

examination of Officer Sackett by allowing the prosecutor to disrupt the flow through

objections and by sustaining objections. Also, appellant alleges that the trial court's refusal

to permit any cross-examination of Officer Sackett, since the issues were already argued

in the prior suppression hearing, was an abuse of discretion. Appellant contends that

appellee continually improperly referenced the national standards set forth in the NHTSA

manual through the testimony of Officer Sackett.

{¶53} The trial court has broad discretion in the admission and exclusion of

evidence. State v. Hymore (1967), 9 Ohio St.2d 122, 128. An appellate court shall not

disturb evidentiary rulings absent an abuse of discretion. Id.

{¶54} This court stated in State v. Norwood (Mar. 22, 2002), 11th Dist. No. 2000-L-

146, 2002 Ohio App. LEXIS 1325, at 6-7, that:

12

{¶55} "[tjhe Sixth Amendment to the U.S. Constitution and the Ohio Rules of

Evidence guarantee the right of a criminal defendant to confront the wftnesses against him

for the biases they may hold. State v. Minier (Sept. 28, 2001), [11th Dist.] No. 2000-P-

0025, 2001 WL 1149461, at 1.

{¶56} "A criminal defendant's right to confront and cross-examine a witness is not

unlimited. Delaware v. Van Arsdall (1986), 475 U.S. 673, 679 '**. A trial court retains

'wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits

on such cross-examination based on concerns about, among other things, harassment,

prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or

only marginally relevant.' Id. Thus, "'the Confrontation Clause guarantees an opportunity

for effective cross-examination, not cross-examination that is effective in whatever way,

and to whatever extent, the defense might wish."' Id., quoting Delaware v. Fensterer

(1985), 474 U.S. 15, 20 ***. Furthermore, the 'constitutional right to cross-examine

adverse witnesses does not authorize defense counsel to disregard sound evidentiary

rules.' State v. Amburgey (1987), 33 Ohio St.3d 115, 117 "**. While cross-examination

itself is a matter of right, the extent of cross-examination with respect to an appropriate

subject of inquiry is within the sound discretion of the trial court. State v. Green (1993), 66

Ohio St.3d 141, 147 ***, citing Alford v. United States (1931), 282 U.S. 687, 691 ***."

(Emphasis sic.) (Parallel citations omitted.)

{¶57} In the case sub judice, the prosecutor objected to the relevancy of questions

defense counsel asked Officer Sackett on cross-examination, relating to compliance with

the NHTSA standards. The trial court sustained the objection, indicating that the

admissibility issue was already determined in the motion to suppress hearing. We do not

agree with appellant that the trial court's limitation of cross-examination in this respect was

13

an abuse of discretion. The trial court did not err by permitting the prosecutor to make

well-founded objections during the cross-examination of Officer Sackett by appellant's

counsel. The record does not support appellant's assertion that the trial court refused to

permit the defense any cross-examination of Officer Sackett. In fact, the transcript reveals

that appellant's counsel cross-examined Officer Sackett at length.

{¶58} Appellant's second assignment of error is without merit.

{¶59} In her third assignment of error, appellant argues that the trial court erred and

abused its discretion by admitting irrelevant evidence, which denied her the right to a fair

trial.

{1160} Evid.R. 401 defines relevant evidence as "evidence having any tendency to

make the existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence."

{¶61} "The admission or exclusion of relevant evidence rests within the sound

discretion of the trial court." State v. Sage (1987), 31 Ohio St.3d 173, 180. "Evidentiary

rulings are within the discretion of the trial court and will not be overturned absent a clear

abuse of discretion whereby the defendant has suffered material prejudice." State v.

Bennett, 11th Dist. No. 2002-A-0020, 2005-Ohio-1567, at ¶39, citing State v. Long (1978),

53 Ohio St.2d 91, 98.

{¶62} in the instant matter, appellant contends that the prosecutor elicited

testimony about a prior contact between appeliant and Officer Sackett, which unfairly

prejudiced her defense because it cast doubt on her character. She stresses that the

prosecutor's intent was to show that appellant was a habitual traffic offender and that she

had been stopped for a prior DUI by Officer Sackett. We disagree.

14

{163} During the direct examination of Officer Sackett, the following exchange took

place:

{¶64} "Q Now, specifically, I'm going to jump ahead a little bit. But, Officer, based

on your training and experience and your observations of [appellant], [appellant's] driving,

her performance on the filed sobriety tests, were you able to form an opinion specifically as

to her overall condition?

{165} "A Yes. I feel she was intoxicated.

{¶66} "Q O.K. And based upon that opinion, what exactly did you do then?

{¶67} "A She was placed under arrest.

{¶68} "Q Now, have you ever had a subject perform field sobriety tests and not

arrested them for [DUI]?

{¶69} "[Appellant's counsel]: Objection.

{¶70} "The Court: Overruled.

{¶71} "A Yes, I have."

{¶72} The prosecutor did not continue any further with this general line of

questioning on direct examination.

{¶73} Again, on cross-examination, appellant's counsel asked Officer Sackett if he

had ever seen appellant before in his life, and he responded that he had.

{¶74} On re-direct examination, the prosecutor asked Officer Sackett if he in fact

ever saw appellant before, and he replied in the affirmative. Appellant's counsel objected,

which the trial court overruled. Officer Sackett testified that he had come into contact with

appellant about three months prior to the incident at issue on a routine traffic stop, but

indicated that no citation was issued. The prosecutor inquired whether Officer Sackett was

able to make a determination between the two stops as to her overall condition, and

15

appellant's counsel objected. The trial court sustained the objection. The prosecutor also

asked Officer Sackett what inquires he made on the evening of the prior stop. Appellant's

counsel objected, which the trial court sustained.

{¶75} Here, appellant's substantial rights were not prejudicially affected. The

prosecutor elicited relevant testimony from Officer Sackett on direct examination. On re-

direct examination, although the prosecutor asked improper questions regarding the prior

contact between Officer Sackett and appellant, the trial court sustained timely objections to

these particular interrogatories. Thus, this exercise by the prosecutor did not amount to

error. We note that appellant "opened the door" on cross-examination when her counsel

asked Officer Sackett if he had ever seen appellant before. Therefore, she cannot be

heard on appeal to complain about the admission of the testimony. State v. Whitted (Dec.

13, 1996), 11th Dist: No. 96-A-0032, 1996 Ohio App. LEXIS 5646, at 15-16. Again, in any

event, the trial court sustained appellant's objections and permitted only minimal re-direct

examination on the point at issue.

{¶76} Appellant's third assignment of error is without merit.

{¶77} In her fourth assignment of error, appellant maintains that she was denied a

fair trial because of the cumulative prejudicial errors that occurred at trial.

{¶78} This court declines to accept appellant's invitation to revisit the foregoing

assignments of error which we have determined are without merit. As we previously

noted, appellant has not shown that any errors of law occurred during trial which may have

affected the outcome of the proceedings or prejudiced her right to a fair trial. As such, we

do not see how the absence of prejudicial error can rise to the level of cumulative error.

State v. Blankenship (1995), 102 Ohio App.3d 534, 557, citing State v. Moreland (1990),

50 Ohio St. 3d 58, 69; State v. Vinson (1990), 70 Ohio App. 3d 391, 402.

16

{¶79} Appellant's fourth assignment of error is without merit.

{¶80} For the foregoing reasons, appellant's assignments of error are not well-

taken. The judgment of the Portage County Municipal Court, Ravenna Division, is

affirmed.

CYNTHIA WESTCOTT RICE, J., concurs in judgment only,

WILLIAM M. O'NEILL, J., dissents with Dissenting Opinion.

WILLIAM M. O'NEILL, J., dissenting.

{¶81} I must respectfully dissent, for there has been a wholesale violation of the

Ohio Rules of Evidence in this matter. Appellant was charged with operating a motor

vehicle under the influence of alcohol. At the time of arrest, appellant refused to submit to

a breath test, and, therefore, at trial there was no scientific evidence of her level of

intoxication.

{182} At trial, the arresting officer went directly to the issue at hand when he

testified, over objection, that based upon his field sobriety tests the driver "will blow over a

point one." Thus, there is no question that Officer Sackett was testifying as an expert with

not even a minimal attempt by anyone to qualify him as such. He cannot testify as an

expert unless and until he has been established as an expert by the court6 The record

clearly demonstrates that the officer was NOT an expert on the NHTSA Standards. The

trial court had already ruled that the NHTSA manual could not be admitted because no

one had been qualified as an expert on the standards. You cannot have it both ways.

6. See, e.g., State v. Boston (1989), 46 Ohio St.3d 108, 118.

17

Either he was an expert, and the manual is admissible through his testimony; or he is not

an expert, and both his testimony and the manual are excluded.

{¶83} Further, his testimony was clearly hearsay.' As the trial court noted, "[w]ell,

of course, everything the officer learned could be identified as hearsay because he didn't

*** come to those conclusions on his own. What he learned and has put into practice

could be identified as hearsay." The trial court permitted Officer Sackett to state the

opinion of an unidentified source who, at some unknown point in time, arrived at the

speculative conclusion that a certain percentage of individuals who exhibit a certain

number of clues on a particular field sobriety test will have a breath-alcohol level in excess

of point one. Presumably, this information was published in the NHTSA manual, but the

record does not inform us for certain.

{¶84} In add`ition, the reliability of Officer Sackett's testimony is extremely troubling

due to the fact it is entirely based upon speculation. Officer Sackett testified that when four

clues are present on the horizontal gaze nystagmus test, there is "a 77 percent chance the

person will blow over a point one." Similarly, he testified that when two or more clues are

present on the one-leg stand test, there is "a 65 percent chance that the defendant will

blow over a point one." Such testimony is equivalent to a police officer testifying, in a

murder case, "a homicide book says there is a 70 percent chance the killer is related to the

victim," when a husband is on trial for his wife's murder. The point is, even assuming the

veracity of the statistics Officer Sackett testified to, what is to preclude appellant from

being in the 23rd or 35th percentile - who would not blow over point one? Convictions

should not be based on statistical probabilities.

7. Evid.R.801(C).

18

{185} Finally, perhaps the greatest problem with this testimony is that it permitted

the jury to blur the distinction between driving a motor vehicle under the influence of

alcohol ("DUI") offenses. In Ohio, there are two ways to violate the DUI statute. One is a

"per se" violation and occurs if a person is operating a motor vehicle and the alcohol

content of the person's breath, blood, or urine is above a certain limit.8 The second

violation occurs when an individual is operating a motor vehicle "under the influence" of

alcohol.9 In this matter, there was no evidence regarding the alcohol concentration in any

of appellant's bodily fluids. To sustain a conviction, the state was permitted to use Officer

Sackett's observations, including those from the field sobriety tests, to demonstrate that

appellant was "under the influence" of alcohol.10 That was the only violation of the DUI

statute that appellant was charged with. She was not charged with a "per se" violation for

having a prohibited alcohol content. Accordingly, Officer Sackett's speculative testimony

regarding appellant's possible breath-alcohol content was entirely improper, as it could

only confuse the jury regarding the two, distinct DUI offenses in Ohio.

{¶86} In this case, the police officer served as a walking scientific-testing machine

and jury all in one. He looked at the driver, gave field sobriety tests, and pronounced her

"over a point one." The Ohio Rules of Evidence require greater precision than this officer

was able to afford.

{1187} Appellant's convictions should be reversed, and this matter should be

remanded for a new trial.

8. R.C. 4511.19(A)(2)-(7). (This statute has since been renumbered.)9. R.C. 4511.19(A)(1). (This statute has since been renumbered.)10.See State v. Schmitt, 101 Ohio St.3d 79, 2004-Ohio-37, syllabus.

19

STATE OF OHIO ) IN THE COURT OF APPEALS)SS.

COUNTY OF PORTAGE ) FILE® ELEVENTH DISTRICT

COURT OF APPEALS

STATE OF OHIO , SEP 18 2006

Plaintiff-Ap FAMOiAdSER, CLEFiKft AGECOUNTY OH10 JUDGMENT ENTRY

-vs -CASE NO. 2005-P-0054

DANA ALBANESE,

Defend a nt-Appel lant.

For the reasons stated in the opinion of this court, appellant's assignments of

error are not well-taken. It is the judgment and order of this court that the

judgment of the Portage County Municipal Court, Ravenna Division, is

affirmed.

hrn,-- gd QZ- 7 a"qPRESIDING JUDGE DONALD R. FORD

CYNTHIA WESTCOTT RICE, J., concurs in judgment only,

WILLIAM M. O'NEILL, J., dissents with Dissenting Opinion.

ao