[Cite as State v. Kilbarger, 2014-Ohio-4949.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. William B. Hoffman, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. 13-CA-64
:
ANTHONY L. KILBARGER :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County Court
of Common Pleas Case No. 2012-CR-
0223
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: November 4, 2014
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
GREGG MARX JAMES R. KINGSLEY
FAIRFIELD CO. PROSECUTOR 157 West Main St.
239 W. Main St., Ste. 101 Circleville, OH 43113
Lancaster, OH 43130
Fairfield County, Case No. 13-CA-64 2
Delaney, J.
{¶1} Appellant Anthony L. Kilbarger appeals from the judgment entry of
conviction and sentence entered in the Fairfield County Court of Common Pleas on
September 6, 2013. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
Evidence of Appellant’s Poor Driving
{¶2} This case arose on March 22, 2012 around 8:30 p.m. as Gordon Lutz
drove on U.S. Route 33 in Fairfield County, Ohio. Lutz was headed toward Lancaster
from Columbus. The roadway had two lanes of travel in Lutz’ direction; Lutz was in the
passing lane and a semi truck was in the right lane. Suddenly Lutz became aware of a
white pickup truck splitting the lanes, or attempting to drive in the space between Lutz
and the semi, straddling both lanes. Alarmed, Lutz slowed and fell in behind the semi in
the right lane; the white pickup truck got in front of the semi. Both Lutz and the semi
slammed on their brakes because the white pickup truck slowed considerably.
{¶3} Lutz observed the white pickup truck weaving and dropping to speeds as
low as 35 m.p.h. before speeding up to 70 m.p.h. and cutting off other drivers. Lutz
called 911 because he thought the driver might be drunk or sick. He spoke with an
Ohio State Highway Patrol (OSP) dispatcher who asked for a description of the white
pickup truck and instructed Lutz to try to stay with the truck until troopers could reach
him.
{¶4} At the exit ramp for State Route 188, Lutz saw an OSP cruiser sitting in
wait. The white pickup truck exited the ramp with Lutz behind, and the cruiser fell in
Fairfield County, Case No. 13-CA-64 3
behind the white pickup truck. The dispatcher asked Lutz to confirm the trooper was
behind the right vehicle and Lutz said yes.
The Traffic Stop
{¶5} OSP Trooper Laurie Dixon was at the Lancaster post when Lutz’ call
came in. She parked on State Route 188 to intercept the vehicle reported to be driving
recklessly and observed a white pickup truck exit from U.S. Route 33. She confirmed
with dispatch this was the reported vehicle and began to follow it.
{¶6} Dixon manually activated the video camera in her patrol car as she
followed the white pickup truck for approximately half a mile. The truck signaled and
turned right onto Wiley Road then turned into a residential driveway without signaling.
Dixon activated her overhead lights and approached the driver’s side of the vehicle
containing one occupant, identified as appellant.
{¶7} Dixon asked appellant for his operator’s license, registration, and proof of
insurance. Upon speaking with him through the driver’s-side window she immediately
smelled a strong odor of an alcoholic beverage on his breath. Appellant provided his
operator’s license and registration but had to be told by Dixon his proof of insurance
was in his lap. Appellant’s speech was slurred. Dixon asked appellant if he knew the
homeowner at the driveway he pulled into and she could not understand his reply.
Appellant said he was on his way to Logan, Ohio.
{¶8} Very shortly after Dixon initiated contact with appellant, Sgt. Lanning of
the OSP arrived on the scene in a separate cruiser. From that point forward, Lanning
primarily dealt with appellant while Dixon ran his registration and inventoried his vehicle.
Fairfield County, Case No. 13-CA-64 4
{¶9} The stop and investigation occurred in the driveway of a house. During
the stop a woman came out of the house and asked what was going on. Dixon asked
her whether any of the residents knew appellant and she said no.
The Investigation: Evidence of Impairment
{¶10} Lanning observed an “extremely strong” odor of an alcoholic beverage
emanating from appellant, in addition to reddened, glassy eyes, a flushed face, and
slurred speech. Appellant denied, though, that he had been drinking. Appellant
submitted to three standardized field sobriety tests and Lanning deemed each failed or
abandoned. Lanning asked appellant if he had any medical conditions which would
prevent him from performing the tests and he said no.
{¶11} Lanning determined appellant was “without a doubt, noticeably impaired”
due to a number of factors: Lanning’s years of experience on road patrol and as an
“ADAP instructor;” the strong odor of an alcoholic beverage on appellant’s breath;
appellant’s slurred speech, glassy, red eyes and flushed cheeks; appellant’s “lethargic
maneuvers;” appellant’s untruthful statements about his alcohol consumption; his
extremely poor performance on the standardized field sobriety tests; and appellant’s
unsteadiness on his feet. Lanning testified, in layman’s terms, “[appellant] was
hammered.”
Arrest and Breath Alcohol Test: .201 g/210 L of Breath
{¶12} Appellant was arrested, Mirandized, and transported to the Lancaster
OSP Post for a breath alcohol test. Lanning read appellant the Ohio Bureau of Motor
Vehicles 2255 form and appellant asked to contact counsel by telephone. After doing
Fairfield County, Case No. 13-CA-64 5
so, appellant submitted to a breath test on the BAC Datamaster and the result was .201
grams of alcohol per 210 liters of breath.
{¶13} During the vehicle inventory, two bottles of mouthwash were found.
Trooper Dixon indicated on the inventory and testified that two “mostly empty” bottles of
“Listerine” brand mouthwash were found. She did not recall finding a bottle of “Scope”
brand mouthwash.
Appellant’s Testimony
{¶14} Appellant testified on his own behalf at trial, admitting he has prior O.V.I.
convictions and describing himself as an alcoholic. He stated on March 22, 2012, he
was with a customer most of the day; the pair drove around on work errands drinking
beer in the customer’s vehicle. Appellant stated he drank about 11-12 cans of beer
during the day and left his customer around 7:30 p.m. He then drove his own white
Toyota Tundra pickup truck to an O’Charley’s restaurant in Canal Winchester, Ohio
where he consumed “a couple vodka and 7-Ups.” He left O’Charley’s around 8:15 p.m.
Appellant specified from noon until 8:15 p.m., he consumed 11-12 beers and two vodka
drinks, evenly spaced. At the time he was 5’11 and weighed 210 lbs.; he further
claimed he had nothing to eat the entire day.
{¶15} Appellant recalled the traffic stop. He testified that after he was stopped in
the driveway, but before any trooper reached his vehicle, he drank and swallowed
approximately 9 ounces of mouthwash from a full bottle of “Scope” in the console of his
vehicle. He testified there was also one bottle of Listerine in the console. Appellant
said Dixon was mistaken in her notations on the vehicle inventory: there were not two
bottles of Listerine in the truck, but one bottle of Listerine and one bottle of Scope.
Fairfield County, Case No. 13-CA-64 6
When he retrieved the truck from impound several days after the arrest, appellant
testified the bottle of Scope was still in the truck and he brought it to defense counsel’s
office as evidence.
{¶16} Appellant stated he had a brain aneurysm in December 2005 resulting in
the placement of a titanium coil in his head. The coil causes him sometimes to be “not
functional” in that he falls down and has difficulty thinking, reasoning, and reacting. He
further testified his medical problems include heart trouble and GERD
(gastroesophageal reflux disease) .
{¶17} Appellant testified his alcohol consumption played no role in the physical
difficulties readily apparent in the videotape of the stop. He said his driving was not as
erratic as Lutz described and blamed it on his use of a Bluetooth while driving.
Appellant stated he did not stumble, fall, or have to hold onto anything for support
during the traffic stop. Regarding his performance on the field sobriety tests, he was
“confused” about the trooper’s instructions.
Appellant’s Expert: Voir Dire and Testimony
{¶18} The trial court voir dired appellant’s expert, Dr. Alfred Staubus, regarding
his report dated January 14, 2013. Staubus testified that based upon appellant’s height
and weight, the brain coil, the GERD, the aneurysm, appellant’s self-reported 11 beers
and 2 vodkas, plus 9 ounces of Scope mouthwash, at the time of appellant’s breath test
his result should have been less than .020 to “as high as” .133, and 9 ounces of Scope
would elevate the result to .149. Under no circumstances could appellant have tested a
.201 at 9:56 p.m. Staubus opined the BAC Datamaster is a reliable testing instrument if
Fairfield County, Case No. 13-CA-64 7
used properly, which should include dual testing. Staubus describes his method of
arriving at a breath alcohol concentration “retrograde extrapolation.”
{¶19} The trial court ruled Staubus would not be permitted to testify regarding
retrograde extrapolation and the general reliability of the breath testing instrument, but
could testify as to the effect of GERD, consumption of Scope, and what appellant would
have to consume to reach a .201 breath result. Appellant asked whether Staubus could
be asked if breath testing would be more reliable with a second test because without a
second test result, there’s no way to tell whether GERD affected the test result at all.
The trial court denied appellant’s request to question Staubus about a second test.
{¶20} Staubus then testified on behalf of appellant and opined appellant should
have tested at a .08 or below and to get to .201, appellant would have had to consume
14.6 to 21.4 light beers. The effect of GERD on a breath test can produce an artificially
high result.
Appellant’s Prior Convictions
{¶21} The parties stipulated appellant has five prior O.V.I. convictions relevant to
this appeal:
A) Fairfield County Common Pleas Court case no. 2007-CR-484
(September 29, 2008)
B) Franklin County case no. 1103572 (January 17, 2001)
C) Fairfield County Municipal Court case no. 97-C-6502 (April 27,
1999)
D) Hocking County case no. 4C02337A (June 13, 1995)
Fairfield County, Case No. 13-CA-64 8
E) Fairfield County Municipal Court case no. 93C00446 (April 28,
1993)
Indictments, Pretrial Litigation, and Trial
{¶22} On June 1, 2012 appellant was charged by indictment with one count of
O.V.I. pursuant to R.C. 4511.19(A)(1)(a) and (G)(1)(d)(i), a felony of the fourth degree;
and one count of O.V.I. pursuant to R.C. 4511.19(A)(1)(h), also a felony of the fourth
degree (case number 2012-CR-0223). Specifications to each count alleged appellant
had five or more O.V.I. convictions within the last twenty years.
{¶23} On June 18, 2013, appellee received the opinion letter authored by
appellant’s expert, Staubus, stating appellant consumed 9 ounces of Scope mouthwash
after operation of the vehicle but prior to the breath test, concluding appellant’s breath-
alcohol concentration at the time of the test was less than 0.020 g/210 L to 0.133g/210
L. In other words, the mouthwash elevated the breath test result.
{¶24} In a separate case (case number 2013-CR-0119), appellant was then
charged by indictment with one count of O.V.I. pursuant to R.C. 4511.19(A)(1)(d),
arising from the same incident, premised upon Staubus’ report.
{¶25} On August 2, 2012, appellant filed an 11-“branch” motion, arguing, e.g.,
no mention should be made of his prior O.V.I. convictions. Appellant argued he was
willing to stipulate to the prior convictions but they should not be revealed to the
factfinder as prior convictions of O.V.I.
{¶26} A two-part suppression hearing was held. The trial court overruled the
motion to suppress in part and sustained it in part on March 7, 2013.
Fairfield County, Case No. 13-CA-64 9
{¶27} On March 15, 2013, appellee filed a “Motion for Joinder of Cases, “asking
that case numbers 2012-CR-0223 and 2013-CR-0119 “be consolidated and tried
jointly.” Appellant did not respond. The trial court scheduled appellee’s motion for a
non-oral hearing on March 22, 2013 and granted appellee’s motion by Entry dated
March 26, 2013.
{¶28} On April 2, 2013, appellant filed a Motion with two “branches,” the first
moving the trial court to consolidate the cases and the second moving for dismissal on
the grounds of speedy trial. The motion to dismiss was overruled on April 3, 2013.
{¶29} The case proceeded to trial by jury and appellant was found guilty as
charged upon all three O.V.I. counts and specifications. The trial court found the three
counts merged for purposes of sentencing and appellee elected to sentence upon
Count I. The trial court sentenced appellant to a prison term of 30 months consecutive
to a term of 1 year for the specification in Count I. Appellant’s operator’s license was
suspended for his lifetime.
{¶30} Appellant now appeals from the trial court’s Judgment Entry of Sentence
entered on September 5, 2013.
{¶31} Appellant raises three assignments of error:
ASSIGNMENTS OF ERROR
{¶32} “I. WAS PREJUDICIAL ERROR COMMITTED IN THE INTRODUCTION
OF EVIDENCE IN THE JOINED CASES?”
{¶33} “II. WAS DEFENDANT DENIED HIS CONSTITUTIONAL RIGHT TO
PRESENT A DEFENSE?”
Fairfield County, Case No. 13-CA-64 10
{¶34} “III. DOES DUE PROCESS OF LAW PREVENT A JURY FROM
HEARING 5 PRIOR CONVICTIONS THAT ARE ELEMENTS OF THE OFFENSE?
ANALYSIS
I.
{¶35} In his first assignment of error, appellant argues the trial court erred in
admitting “prejudicial evidence.” We disagree.
Trial of Multiple Counts of OVI
{¶36} Appellant first asserts the trial court improperly permitted the three counts
of O.V.I. to be tried together: R.C. 4511.19(A)(1)(a) [Count A], the “impaired driving”
count, R.C. 4511.19(A)(1)(h) [Count B], the “per se high-tier test result” count, and R.C.
4511.19(A)(1)(d) [Count C], the “per se low-tier test result” count.1 Counts A and B
were contained in the first indictment, and appellee moved to consolidate those counts
with Count C, which had been indicted later.
{¶37} It is well-established appellee may try per se and impaired counts
together. R.C. 4511.19(C) states: “In any proceeding arising out of one incident, a
person may be charged with a violation of division (A)(1)(a) or (A)(2) and a violation of
division (B)(1), (2), or (3) of this section, but the person may not be convicted of more
than one violation of these divisions.” Further, “the state may present evidence on both
offenses in a single trial, and cannot be forced to elect between the two charges unless
the defendant affirmatively demonstrates the existence of prejudice.” State v. Ryan, 17
1
The low-tier offenses, found at RC 4511.19(A)(1)(b) to (e), prohibit alcohol levels of .08
or more but less than .17 in a driver's blood or breath and .11 or more but less than.238
in a driver's urine. The high-tier offenses, found at RC 4511.19(A)(1)(f) to (i), prohibit
alcohol levels of .17 or above in a driver's blood and breath and .238 or above in a
driver's urine.
Fairfield County, Case No. 13-CA-64 11
Ohio App.3d 150, 152, 478 N.E.2d 257 (1st Dist.1984). The counts are allied offense of
similar import which must merge for sentencing and appellant may be sentenced upon
one count elected by appellee. Columbus v. Aleshire, 187 Ohio App.3d 660, 2010-
Ohio-2773, 933 N.E.2d 317 (10th Dist.).
{¶38} We note appellant did not claim prejudicial joinder prior to trial and in fact
filed a “motion to consolidate” both indictments with his motion to dismiss, after he failed
to respond to appellee’s motion to consolidate. Now he alleges prejudice after the fact,
stating “[t]his counsel was of the opinion that, prior to trial, he would not be successful in
a claim of prejudicial joinder.”2 Appellant argues evidence of impairment should not
have been admitted to establish the per se violations and evidence of the per se
violations should not have been admitted to establish impairment; specifically, the
evidence of the high test result, appellant’s demeanor, and Forney’s testimony were
unduly prejudicial.
{¶39} We find the evidence of the test result and appellant’s demeanor to be
fully relevant and admissible. All evidence is prejudicial to the opposing party in the
sense that all evidence is unfavorable to the party against whom it is introduced. Evid.R.
403(A) requires more than a demonstration of prejudice but, rather, requires a showing
of unfair prejudice. In addition, evidence about a party's own actions or language can
rarely be considered unfairly prejudicial so long as the evidence is relevant. Vitti v. LTV
Steel Co., 8th Dist. Cuyahoga No. 66686, 1995 WL 57195 (Feb. 9, 1995), citing State v.
Greasley, 85 Ohio App.3d 360 (1993).
2
Defense appellate counsel is also defense trial counsel.
Fairfield County, Case No. 13-CA-64 12
{¶40} Appellant further argues the testimony of appellee’s expert, Dr. Forney,
was inadmissible. Appellee called Forney as part of its case on direct, proffered as an
expert in the field of forensic toxicology and specifically alcohol and its effect on driving.
Forney testified generally that many factors affect how an individual is affected by
alcohol consumption, including size, health, time period, and intake of other drugs. The
concentration at which impairment begins for most people, Forney opined, is .08.
{¶41} Over objection, Forney testified taking into account appellant’s brain stent
and purported acid reflux or GERD, appellant was significantly impaired and the
troopers’ investigation is consistent with the breath-alcohol concentration of .201.
{¶42} Appellant argues Forney should not have been permitted to discuss
appellant’s test result. We apply an abuse-of-discretion standard in reviewing a court's
decision to admit or exclude expert testimony. State v. Bracone, 5th Dist. Tuscarawas
No. 2013 AP 11 0046, 2014-Ohio-4058, ¶ 84 citing Gen. Elec. Co. v. Joiner, 522 U.S.
136, 144–146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). Because we find the test result
was relevant and admissible, Forney’s opinion is not inadmissible on that basis.
{¶43} Appellant further points out, however, “[Forney] was permitted to testify
that 0.04 is impaired for 50% of the people and 0.08 is impaired for 100% of drivers.”
(Appellant’s Brief, 10). The record indicates appellant objected during Forney’s
testimony, arguing he was not permitted to testify to the correlation between a flunked
field sobriety test and a breath alcohol test result. The trial court advised appellee not to
elicit any further testimony along those lines. The following statements were then
made:
[Prosecutor:] Understand that impairment may be different for
different faculties, for coordination versus perception. Broadly, at
Fairfield County, Case No. 13-CA-64 13
what BAC levels are most individuals, according to your research
and your familiarity in the field, at what BAC levels are most of the
population beginning to suffer impairment?
[Appellant raises an ongoing objection and the trial court permits
Forney to answer.]
[Forney:] Okay. Well, if you say most of the population, at about
.04, 50 percent are significantly impaired in---
[Prosecutor:] Significantly?
[Forney:] Yeah.
[Prosecutor:] Go ahead.
[Forney:] ---in perception, judgment, reaction time in terms of being
able to safely operate a vehicle.
By .08, all are significantly impaired.
[Prosecutor:] All?
[Forney:] And this was the basis for the standard being set at .08
was the fact that all individuals are significantly impaired in those
skills judged to be relevant to operating a motor vehicle safely.
* * * *.
[Prosecutor:] But for most people, you’re saying, impairment starts
significantly lower, about half the population of so, around 04.
[Forney:] Yeah. Half the population would be significantly impaired
in terms of driving skills at 04, all at 08, probably the most sensitive
at 02.
And this doesn’t mean that everybody is equally impaired—
[Prosecutor:] Of course.
[Forney:] ---at 08. But they’re all significantly impaired.
* * * *.
T. 572-576.
Fairfield County, Case No. 13-CA-64 14
{¶44} Appellant argues this testimony was irrelevant and unduly prejudicial
because Forney discussed impairment at .04. We find this to be harmless error in the
context of Forney’s entire testimony. Moreover, assuming arguendo Forney should not
have testified as to levels of impairment in the general population, the admission of
improper evidence is harmless because substantial other evidence supports the guilty
verdict. State v. Webb, 70 Ohio St.3d 325, 335, 638 N.E.2d 1023 (1994)
[”Nonconstitutional error is harmless if there is substantial other evidence to support the
guilty verdict.”] Such is the case here.
{¶45} Appellant also argues Forney’s testimony was prejudicial because he
admitted he did not view the dash cam video. This argument goes to the weight of the
testimony, however, and not its admissibility.
{¶46} Appellant’s first assignment of error is overruled.
II.
{¶47} In his second assignment of error, appellant argues the trial court
improperly prevented his expert from testifying about retrograde extrapolation as it
relates to the time of driving. We disagree.
{¶48} The admissibility of evidence, including expert testimony, is a matter within
the sound discretion of the trial court. Columbus v. Taylor, 39 Ohio St.3d 162, 164, 529
N.E.2d 1382 (1988). “Although Evid.R. 702 expressly allows for the admission of
scientific testimony, it does not mandate such admission.” Id. Further, a reviewing
court shall not disturb evidentiary decisions in the absence of an abuse of discretion
resulting in material prejudice. State v. Noling, 98 Ohio St.3d 44, 2002-Ohio7044, 781
N.E.2d 88. In order to find an abuse of discretion, the reviewing court must determine
Fairfield County, Case No. 13-CA-64 15
that the trial court’s decision was unreasonable, arbitrary, or unconscionable and not
merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219,
450 N.E.2d 1140 (1983).
{¶49} Appellant claims a due-process violation, however, alleging he was
essentially prevented from presenting a defense; specifically, “Dr. Staubus was not
permitted a fourth opinion a fourth time as to time of driving which would have been the
lower end of 0.020 to 0.150.” (Brief, 12). In the record, appellant directs us to the
parties’ motions and Staubus’ testimony on page 820, wherein he merely defines
retrograde extrapolation. Appellant also directs us to his expert report which was
proffered but not admitted, in which Staubus opines in pertinent part:
* * * *.
2) Pharmacokinetic calculations of [appellant’s] blood-alcohol
concentration based upon his body size and his consumption of
eleven (11) Busch Light beers and three (3) ounces of 80 proof
vodka on March 22, 2012 indicate that his blood-alcohol
concentration at the time of the traffic stop (8:32 p.m.) should
have been within a range of .020 g/dL to 0.150 g/dL (corresponding
to a breath-alcohol concentration range of 0.020g/210 L to
0.150 g/210 L), depending upon his rates of alcohol absorption and
elimination. As an alcoholic, it is likely that he has a faster average
rate of alcohol elimination and, consequently, he would be
expected to have a blood-alcohol concentration nearer the lower
values of these ranges. (Emphasis added.)
Fairfield County, Case No. 13-CA-64 16
3) Pharmacokinetic calculations of [appellant’s] breath-alcohol
concentration based upon the reported single breath-test result of
0.201 g/210 L at 9:56 p.m. and subtracting the elevation (0.052
g/210 L) due to the post-driving consumption of Scope mouthwash
indicate that his breath-alcohol concentration at the time of the
traffic stop (8:32 p.m.) should have been within a range of 0.120
g/210 L to 0.170 g/210 L, depending upon his rates of alcohol
consumption and elimination.
* * * *.
{¶50} Appellant was not deprived of the right to present a defense. In fact, we
find in the trial record Staubus did testify exhaustively as to his opinion appellant’s blood
and breath alcohol content was considerably lower than the test indicated, based upon
his calculations which include appellant’s reported alcohol consumption absent the
Scope he supposedly consumed after operation of his vehicle. We note Staubus’
testimony before the jury:
* * * *.
[Staubus:] * * * *.
In this case, the time period is from the start of drinking at
12:00 o’clock noon to a time of the test at 9:56 p.m. So it’s 9.93
hours, or almost ten hours, of elimination has occurred.
So what has not been eliminated has to be, by mass
balance, still in his body at the time of the test. So you take the
dose, minus the amount that’s been eliminated, and that equals the
amount of alcohol in his body at the time of the test. And you have
then a low amount and a high amount of alcohol in his body,
depending on whether he’s a fast or slow eliminator. If he’s a fast
eliminator, then he’s got less alcohol in his body than a person
that’s a slow eliminator.
Fairfield County, Case No. 13-CA-64 17
And then you divide the amount of alcohol by the volume to
get the blood concentration. So I can then calculate a
concentration of blood, a range of values, that would represent
[appellant] and he’d be somewhere within that range. And because
he’s an alcoholic, he’d be at the lower end of that range, most
likely, because he’s metabolizing alcohol faster than the average
person.
[Defense trial counsel:] So what is the range you calculated?
[Staubus:] For the amount of alcohol that was consumed, the 11
light beers, which are 4.2 percent volume volume (sic), and the
three ounces of vodka from the two drinks, an ounce and a half of
vodka each, just based upon that, without the consumption of the
Scope mouthwash, his level would be somewhere between less
than .020 to a possible high of .133. (Emphasis added.)
* * * *. [The witness moves to a light board in the
courtroom.]
[Staubus:] OK. So for the 11 light beers, plus the three ounces of
vodka, from 12:00 noon to 8:15, the time of the test was 9:56, so
it’s almost ten hours, you get a blood-alcohol concentration of
somewhere less than .020. Because of the rate of decay, the low
point 02, you can’t extrapolate it. It’s not a linear facet below .02.
So we just say less than .02, to a high of .133.
So this would be if he was at the slow end of the population
rates of elimination, and this would be the expected concentration
for a person that had a high rate that was an alcoholic.
So he’s probably towards this lower end, but I don’t know
how close.
[Defense trial counsel:] Do you have an explanation as to how your
private calculations can be no higher than .133, but the test result is
0.21?
[Staubus:] Well, there’s two potential factors. One, at the time of
the stop, he saw the officer approaching his vehicle, he grabbed the
Scope. He opened it up—it was a brand new bottle—and he took
two large gulps, he said. And we got the bottle and it was
measured how much was left in the bottle. Knowing the full volume
of the bottle, the difference corresponds to nine ounces of Scope---
Fairfield County, Case No. 13-CA-64 18
[Defense trial counsel:] Now, let me stop you right there.
Look at Exhibit A [bottle of Scope] right here. That’s the
bottle that we are dealing with.
[Staubus:] Yes, sir.
[Defense trial counsel:] All right. Go ahead.
[Staubus:] There’s about nine ounces missing from here that he
says he drank immediately after he was stopped by the officer, the
trooper.
So that would add an additional amount of alcohol to the
blood level that was measured at 9:56, because the stop was at
8:32 p.m.
So we can—we have to increase my calculation here by the
factor of the nine ounces of Scope. And if we do that, then this
goes from a low of .057 to a high of .186 grams per deciliter.
So now, again, this lower level would be more likely for
somebody that’s an alcoholic, and this upper level would be for
somebody that’s a very slow eliminator.
But we still have a low test result of .201 grams per 210 liters
of breath. Okay? So there’s got to be another factor involved. And
that other factor involved is the GERD component.
[Defense trial counsel:] We’re going to discuss that later, so just
mention the factor and we’ll come back and explain later why that
gets in here.
Go ahead and have a seat. I’m going to go ahead and ask
you now: Do you have an opinion, to a reasonable degree of
scientific certainty, assuming my client is an alcoholic, whether or
not he would have tested below an 08?
[Staubus:] Yes, sir, I do have an opinion.
[Defense trial counsel:] And what is that opinion?
[Staubus:] It is my opinion, to a reasonable degree of scientific
certainty, that based upon his body size, timeframe of drinking, the
amount the drinking consumed, and even with the Scope and being
an alcoholic, he’d be most likely below or around .08.
Fairfield County, Case No. 13-CA-64 19
* * * *.
[Defense trial counsel:] * * * *.
Now you understand this issue we call—what I call gap
drinking, consumption of alcohol at the very end of driving or after
the driving stopped. Now, is there any way that Scope
consumed—if he was pulling in the driveway and drinking the
Scope, would that ever have affected his driving?
[Prosecutor:] Objection. * * * *.
* * * *. [Sidebar discussion.]
[Defense trial counsel:] Did you understand the question, Dr.
Staubus?
[Staubus:] If you could repeat it to make it clear to myself and the
rest of us.
[Defense trial counsel:] All right. We all understand here the
Defendant was charged with impaired driving; that the alcohol he
consumed affected his ability to drive. And he’s charged with this
per se, that the test result in and of itself is a crime. You and I
understand that. The jury will be instructed properly on that.
The issue becomes, if you talk about impaired driving, we
need to know what alcohol impaired him at the time of driving.
[Staubus:] Correct.
[Defense trial counsel:] And if he consumed nine ounces of Scope,
stopped within seconds, is there any way scientifically that Scope
had any bearing on his driving?
[Staubus:] No, sir, it does not.
[Defense trial counsel:] And why not?
[Staubus:] To a reasonable degree of scientific certainty, if you
consume an amount of alcohol like was described, within a few
seconds or a few minutes, that’s going to be still sitting in your
stomach. It will not yet be absorbed.
Fairfield County, Case No. 13-CA-64 20
So it would therefore have no affect (sic) on the brain
function or, therefore, the driving function. That’s just sitting in the
stomach.
* * * *.
T. 901-914.
{¶51} And later, with respect to the effect of GERD on the test result:
[Staubus:] It is my opinion, to a reasonable degree of scientific
certainty, that the GERD condition in [appellant] can explain the
discrepancy between the test result and the amount of alcohol
consumed.
T. 941.
{¶52} We fail to perceive, and appellant does not reveal, what more Staubus
could have told the jury pertinent to his breath alcohol content at the time of operation.
Appellant complains the trial court excluded this evidence, but we find copious evidence
in the record, supra, that Staubus testified appellant’s breath alcohol result would have
been less than “.08” at the time of driving and before the alleged consumption of Scope.
Further, absent the consumption of the Scope, “his level would be somewhere between
less than .020 to a possible high of .133,” which is even more favorable than the likely
test result Staubus arrived at in his report (ranging from 0.020g/210 L to 0.150 g/210 L).
{¶53} Appellant argues this case requires us to reevaluate our decision in State
v. Sommer, upon which the trial court based its preliminary ruling on the admissibility of
the expert testimony. 5th Dist. Fairfield No. 04CA36, 2005-Ohio-1707. We find, though,
the relevant authority is Columbus v. Taylor, supra, because the combination of
appellant’s testimony about consumption of Scope and GERD, and Staubus’
calculations regarding the alleged effects thereof, “presented essentially the same facts
to the jury on the question of [defendant’s] specific test result” as any excluded
Fairfield County, Case No. 13-CA-64 21
testimony would have presented. City of Columbus v. Taylor, supra, 39 Ohio St.3d at
164-65. We find no prejudice to appellant and no abuse of discretion by the trial court
with regard to the content of Staubus’ testimony.
{¶54} Appellant’s second assignment of error is therefore overruled.
III.
{¶55} In his third assignment of error, appellant argues the evidence of his five
prior convictions within 20 years is prejudicial and should not have been submitted to
the jury. We disagree.
{¶56} Appellee must prove all essential elements of an offense beyond a
reasonable doubt. R.C. 2901.05(A); State v. Day, 99 Ohio App.3d 514, 517 (12th
Dist.1994) citing State v. Henderson, 58 Ohio St.2d 171, 173 (1979). “[W]here the
existence of a prior offense is an element of a subsequent crime, the State must prove
the prior conviction beyond a reasonable doubt * * *. The jury must find that the previous
conviction has been established in order to find the defendant guilty on the second
offense.” Day, supra, 99 Ohio App.3d at 517.
{¶57} We note appellant stipulated to the existence of five prior O.V.I.
convictions within twenty years. He insists, nevertheless, it remains an “open question”
whether a defendant may somehow waive introduction of the prior convictions in
appellee’s direct case. In fact, this question has been definitively answered in a number
of contexts by the Ohio Supreme Court.
{¶58} Reviewing courts are of course well aware of the potential for prejudice to
attach to a defendant upon the introduction of prior offenses. “The existence of a prior
offense is such an inflammatory fact that ordinarily it should not be revealed to the jury
Fairfield County, Case No. 13-CA-64 22
unless specifically permitted under statute or rule. The undeniable effect of such
information is to incite the jury to convict based on past misconduct rather than restrict
their attention to the offense at hand.” State v. Allen, 29 Ohio St.3d 53, 55, 506 N.E.2d
199 (1987). The Court found, though, where the fact of a prior conviction does not
simply enhance the penalty but “transforms” the crime itself by increasing its degree, the
prior conviction is an essential element of the crime and must be proved by appellee
beyond a reasonable doubt. Id., 29 Ohio St.3d at 54.
{¶59} Appellant’s history of O.V.I. convictions is thus relevant and admissible,
and his third assignment of error is overruled.
CONCLUSION
{¶60} Appellant’s three assignments of error are overruled and the judgment of
the Fairfield County Court of Common Pleas is affirmed.
By: Delaney, J. and
Hoffman, P.J.
Baldwin, J., concur.