State v. Urbina

[Cite as State v. Urbina, 2016-Ohio-7009.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, : No. 15AP-978
(M.C. No. 2015 TRC 113155)
v. :
(REGULAR CALENDAR)
Walter O. Figueroa Urbina, :

Defendant-Appellant. :

D E C I S I O N

Rendered on September 27, 2016

On brief: Richard C. Pfeiffer, Jr., City Attorney, Laura N.
Baker, Melanie R. Tobias, and Orly Ahroni, for appellee.
Argued: Orly Ahroni.

On brief: Yeura R. Venters, Public Defender, and John W.
Keeling, for appellant. Argued: John W. Keeling.

APPEAL from the Franklin County Municipal Court

LUPER SCHUSTER, J.
{¶ 1} Defendant-appellant, Walter O. Figueroa Urbina, appeals from a judgment
entry of the Franklin County Municipal Court finding him guilty of operating a vehicle
while under the influence of alcohol ("OVI") and driving under an OVI suspension. For
the following reasons, we affirm in part and reverse in part.
I. Facts and Procedural History
{¶ 2} On February 21, 2015, Urbina received a citation and summons for one
count of OVI, in violation of R.C. 4511.19(A)(1)(a); one count of OVI per se, in violation of
R.C. 4511.19(A)(1)(d); and one count of driving under OVI suspension, in violation of R.C.
4510.14. Urbina appeared with counsel and entered a plea of not guilty, and the trial
court ordered the appointment of an interpreter for Urbina, who does not speak English.
No. 15AP-978 2

{¶ 3} At a jury trial commencing August 11, 2015, Ishmael Dabo, a trooper with
the Ohio State Highway Patrol, testified that he encountered Urbina during the early
morning hours of February 21, 2015 as Urbina sat inside a two-door Honda Civic that had
slid off the roadway and down an embankment during a snowstorm. The vehicle's engine
was running, the lights were turned on, and Urbina was seated in the driver's seat with
another occupant seated in the front passenger's seat. Trooper Dabo testified he could see
tire skid marks in the snow, and he estimated, over defense counsel's objection, that the
vehicle had skidded off the road "less than ten minutes before [he] got there." (Tr. at 53.)
{¶ 4} Trooper Dabo testified that when he knocked on the vehicle's window,
Urbina rolled the window down and Trooper Dabo tried to ask him what was going on
and how the vehicle had ended up off the roadway, but Trooper Dabo had "difficulty
communicating" with Urbina because he was speaking Spanish and did not speak English
"at all." (Tr. at 54.) Trooper Dabo stated Urbina was using hand gestures to communicate
and, through those hand gestures, Urbina indicated that he was driving and came down
the embankment. Urbina did not provide a driver's license to Trooper Dabo.
{¶ 5} Trooper Dabo stated he observed a strong odor of alcohol and that Urbina
had bloodshot, glassy eyes and exhibited slurred speech. He ordered Urbina out of the
vehicle, and a paramedic with the Columbus Division of Fire who had arrived on the scene
and "could understand a little bit of Spanish" helped Trooper Dabo communicate with
Urbina. (Tr. at 61.) Trooper Dabo performed two field sobriety tests, the horizontal gaze
nystagmus ("HGN") test and the vertical gaze nystagmus ("VGN") test, both of which
yielded signs that Urbina was impaired. Trooper Dabo stated he did not perform
additional field sobriety tests because "it was snowing and weather conditions wouldn't
permit it." (Tr. at 67.) Based on all of his observations of Urbina, including that Urbina
had difficulty standing, the strong odor of alcohol, the glassy and bloodshot eyes, and
Urbina's performance on the HGN and VGN tests, Trooper Dabo placed Urbina under
arrest.
{¶ 6} Once Trooper Dabo had placed Urbina under arrest, he ran a records check
and ascertained that Urbina's driving privileges were under suspension for a prior OVI
conviction. After providing Urbina with a copy of the Bureau of Motor Vehicles
consequences of test refusal form, which the other occupant of the vehicle read to Urbina
No. 15AP-978 3

in Spanish, Trooper Dabo stated Urbina agreed to submit to a chemical breath test.
Trooper Dabo administered the chemical breath test on a BAC DataMaster, and the test
result showed a breath alcohol concentration of .206 grams per 210 liters of breath, above
the legal limit of .08. Trooper Dabo stated that during his entire interaction with Urbina,
Urbina never communicated to him that he was not driving the vehicle.
{¶ 7} The state played for the jury the video recording of Trooper Dabo's cruiser
dash camera showing Trooper Dabo's interaction with Urbina. In the video, Trooper
Dabo is heard asking Urbina if he speaks any English, and then Trooper Dabo states
"[y]ou're going to learn how to speak some English today." (Tr. at 114; State's Ex. 3 at
03:46.) Trooper Dabo stated Urbina appeared to understand some English based on
some of his responses to Trooper Dabo's questions. The video also recorded Urbina's
communications with the trooper. At one point, Urbina speaks to the trooper. Defense
counsel contends the video recording shows Urbina saying "Yo no iba manejando," which
translates to "I wasn't driving." (Tr. at 161; State's Ex. 3 at 04:03.) The state characterizes
the video as depicting Urbina as saying "Yo iba manejando," which translates to "I was
driving." However, due to the quality of the video recording, we cannot discern with any
accuracy what Urbina was saying.
{¶ 8} On cross-examination, Trooper Dabo agreed he was not there to witness the
vehicle getting stuck in the embankment. He testified that by the time he arrived on the
scene, the vehicle was immovable and needed to be towed. Additionally, Trooper Dabo
stated he did not know the other occupant of the vehicle's name and he did not perform
any field sobriety tests on the other occupant, although the other occupant also had an
odor of alcohol about him. Trooper Dabo stated it was his belief the other occupant of the
vehicle was in the vehicle at the time it slid down the embankment because Trooper Dabo
did not see any footprints in the snow leading up to the vehicle. He agreed that he did not
mention anything about looking for footprints or observing footprints when he wrote the
report of the incident. Trooper Dabo also agreed he did not include anything in his report
about his opinion as to how long he thought the vehicle had been in that position based on
the tire tracks in the snow.
{¶ 9} Defense counsel attempted to ask Trooper Dabo about his administration of
the field sobriety tests, but the trial court sustained the state's objection that defense
No. 15AP-978 4

counsel could not ask questions regarding the validity of the tests because Urbina did not
file a timely motion to suppress in this case.
{¶ 10} Aaron Shonkwiler, a lieutenant paramedic for the Columbus Division of
Fire, testified he arrived at the scene of the accident with Trooper Dabo and attempted to
communicate with Urbina in English but "it was pretty clear that he was confused on
some of the things that [Lieutenant Shonkwiler] was saying," so he instead started asking
"some very simple questions in Spanish." (Tr. at 155.) Lieutenant Shonkwiler said he
asked Urbina some questions to determine whether he was injured, but he did not ask
Urbina whether he had been driving the vehicle. Later on in the interaction, Lieutenant
Shonkwiler stated Urbina made an "[u]p and down in a semi-circular fashion" motion
with his hands that Lieutenant Shonkwiler stated he understood to mean Urbina was
indicating he had been driving the vehicle. (Tr. at 156.) He testified, though, that the
gesture was not made in response to a question from him about whether Urbina had been
driving. Further, Lieutenant Shonkwiler stated he looked for things like footprints in the
snow or blood in the vehicle but that he "found no other indication that anyone else may
have been present, other than [Urbina] and the other gentleman in the vehicle." (Tr. at
158.)
{¶ 11} Lieutenant Shonkwiler testified that his Spanish "is not perfect" and that he
was having trouble understanding Urbina's responses when spoken in Spanish. (Tr. at
159.) Lieutenant Shonkwiler attempted to ask Urbina where he had been going that night,
but he could not understand Urbina's response. Lieutenant Shonkwiler then said
"[t]rabajo, work," and Urbina replied "[s]i." (Tr. at 159.)
{¶ 12} After the state rested its case, Urbina called Tamara Moreno as a witness.
Prior to Moreno's testimony, the trial court granted the state's motion in limine with
regard to Moreno mentioning anything specific about her suffering a miscarriage the
night of the accident or that she was currently undergoing treatment for cancer.
Specifically, the trial court ruled Moreno was to make no mention of "pregnancies,
cancers[,] bleeding, nausea, vomiting or any of that." (Tr. at 179.) The trial court
instructed Moreno that her testimony was to be limited to "I left to go get help; and while
gone, I didn't return because I had a medical condition, and I sought medical treatment."
(Tr. at 180.)
No. 15AP-978 5

{¶ 13} Moreno testified that Urbina is the father of two of her children and that she
has known Urbina for 16 or 17 years. She stated Urbina does not speak English and does
"not really" understand English. (Tr. at 188.) Moreno testified she was with Urbina on
the night of February 21, 2015, and that she was the one driving the vehicle when it
skidded off the road. She testified that Urbina called her that night asking for a ride home
from his boss's house. Moreno said she told Urbina she would ask her neighbor to drive
them because she "didn't feel good" because she "had a medical problem." (Tr. at 189,
190.) Her friend, identified as Maria, agreed to give her a ride to pick up Urbina at the La
Vista apartment complex off Shrock Road. Moreno testified Maria drives an Astro van
with three rows of seats, and two of Moreno's children and three of Maria's children rode
in the van with them to pick up Urbina.
{¶ 14} When they arrived at the La Vista apartments, Moreno testified Urbina and
his friend both met them and needed rides. Because there was not enough room in the
van for all of them, and because they needed to move the Civic from the apartment
complex, Moreno got out of the van and drove the Civic with Urbina in the passenger seat
and Urbina's friend in the back seat. As she was driving, Moreno stated she "hit a slick
spot," and the vehicle slid off the road and went down the embankment, where it got stuck
in a snowbank. (Tr. at 197.) Moreno stated she hit her head and her stomach in the
accident. Maria stopped the van and "rushed down to help [Moreno] out of the car." (Tr.
at 198.) Moreno stated they tried to get the vehicle out of the snow, but it was stuck.
Moreno testified that the group decided that she should return home and get her Dodge
Durango, a four-wheel drive vehicle, to tow the Civic out of the snow and back onto the
road. At that point, Moreno stated she left Urbina and his friend sitting in the Civic while
she drove with Maria in the van to go get the four-wheel drive vehicle. However, Moreno
stated she did not make it back to the scene of the accident that night because "a medical
issue happened where they had to rush [her] to the hospital." (Tr. at 199.)
{¶ 15} Moreno testified she never talked to Trooper Dabo in relation to this case.
She stated she called the highway patrol and tried to explain that she had been the driver
of the Civic, "but they told [her] that [she] would have to go to court." (Tr. at 199.)
{¶ 16} On cross-examination, Moreno stated Urbina did not say he needed a ride
that night because he had been drinking, and she further testified Urbina has asked her
No. 15AP-978 6

for rides on various occasions because she drives and Urbina does not. Moreno agreed
that Urbina owned the Civic. When asked whether Maria was in court that day, Moreno
replied, "[n]o, she got deported." (Tr. at 208.) Moreno also agreed that on February 21,
2015, she did not have a valid driver's license. When asked if it was her "choice" not to
take the Durango initially, Moreno said it was "[b]ecause of medical." (Tr. at 213.)
{¶ 17} Following deliberations, the jury returned guilty verdicts to the OVI charge,
the OVI per se charge, and the operating a vehicle while under an OVI suspension charge.
The trial court sentenced Urbina to 180 days in jail with 120 days suspended and 2 years
of community control; an 18-month class five driving rights suspension with a $500 fine;
and a 180-day suspended jail term with an additional $500 fine on the operating a vehicle
while under suspension conviction. Urbina timely appeals.
II. Assignments of Error
{¶ 18} Urbina assigns the following errors for our review:
[1.] The trial court and the state improperly prevented the
defense witness from testifying about relevant and probative
facts when she was admonished that she could not testify
about the details of her medical issues that prevented her
from returning to the scene.

[2.] The trial court and the state improperly prevented the
defendant from placing his witness in a proper setting for the
jurors to properly assess her credibility when they prevented
the jurors from hearing that the defense witness was suffering
from and being treated for throat cancer.

[3.] The trial court and the state violated the defendant's right
to present a defense when they unfairly intimidated the
defense witness with threats of perjury and threats of
prosecution on other charges right before she testified and the
trial court further erred when it stated, in front of the jurors,
that the defense witness was very nervous and then
admonished the witness to tell the truth and not to make stuff
up before she even had an opportunity to testify about any
material facts.

[4.] The trial court, over objection, improperly allowed the
state to impeach the defense witness with inadmissible other
act evidence in an attempt to improperly portray the defense
witness as a scofflaw or bad person and the prosecutor
No. 15AP-978 7

improperly impeached the witness by accusing her of making
inconsistent out-of-court statements to the prosecutor when
there as no evidence of such inconsistent statements
presented to the jurors.

[5.] The trial court erred when it sustained the state's
objection to any cross-examination by the defendant on the
manner or the validity of the way the trooper administered the
horizontal gaze nystagmus test.

[6.] The trial court erred when it allowed the trooper to testify
as an expert witness, over objection, that the tire tracks had
been left in the snow less than ten minutes before the trooper
had arrived at the scene without first establishing that the
trooper had the requisite knowledge and training to render
such an opinion.

III. First Assignment of Error – Medical Condition Testimony
{¶ 19} In his first assignment of error, Urbina argues the trial court erred when it
admonished Moreno she could not testify about any of the details of the medical condition
she suffered the night of the accident. Generally, the admission or exclusion of evidence
lies in the sound discretion of the trial court, and we will not disturb that decision absent
an abuse of discretion. State v. Darazim, 10th Dist. No. 14AP-203, 2014-Ohio-5304, ¶ 33,
citing State v. Bartolomeo, 10th Dist. No. 08AP-969, 2009-Ohio-3086, ¶ 24. An abuse of
discretion connotes a decision that was unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶ 20} At trial, the state argued as part of a motion in limine that Moreno should
not be allowed to testify regarding any specific details of the medical condition she
suffered shortly after the accident. Specifically, Moreno had been pregnant. The state
and defense counsel represented to the trial court that Moreno's testimony would be that
she left the scene of the accident to go get her Durango to tow the Civic out of the
embankment but when she left the scene, she began having a miscarriage and went
immediately to the hospital to seek medical attention. Because she suffered a miscarriage
that night and needed medical attention, Moreno would have testified she was unable to
return to the scene of the accident in a timely fashion. The state argued this testimony,
though relevant, would have been unfairly prejudicial. The trial court granted the state's
No. 15AP-978 8

motion and admonished Moreno before her testimony that she was not to mention
"pregnancies, cancers[,] bleeding, nausea, vomiting or any of that." (Tr. at 179.) Further,
the trial court specifically instructed Moreno that her testimony was to be limited to "I left
to go get help; and while gone, I didn't return because I had a medical condition, and I
sought medical treatment." (Tr. at 180.) Urbina now argues the trial court abused its
discretion in excluding this testimony.
{¶ 21} 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." There is no
dispute here that Moreno's proposed testimony regarding her pregnancy and injuries
leading to a miscarriage constitute relevant evidence, offering an explanation as to why
Moreno did not return to the scene as she had planned. However, Urbina argues the trial
court abused its discretion when it ruled that Moreno could not testify regarding her
miscarriage. Evid.R. 403(A) provides that "[a]lthough relevant, evidence is not
admissible if its probative value is substantially outweighed by the danger of unfair
prejudice, of confusion of the issues, or of misleading the jury."
{¶ 22} " 'If unfair prejudice simply meant prejudice, anything adverse to a litigant's
case would be excludable under Rule 403. Emphasis must be placed on the word
"unfair." ' " State v. Crotts, 104 Ohio St.3d 432, 2004-Ohio-6550, ¶ 24, quoting Oberlin v.
Akron Gen. Med. Ctr., 91 Ohio St.3d 169, 172 (2001). Thus, " '[u]nfair prejudice is that
quality of evidence which might result in an improper basis for a jury decision.' " Id.,
quoting Oberlin at 172. Evidence may be unfairly prejudicial if it " 'arouses the jury's
emotional sympathies, evokes a sense of horror, or appeals to an instinct to punish.' " Id.,
quoting Oberlin at 172. Often, though not always, evidence is unfairly prejudicial if it
appeals to the jury's emotions rather than the jury's intellect. Id.
{¶ 23} Fairness is subjective and thus the determination whether evidence is
unfairly prejudicial is left to the sound discretion of the trial court. Crotts at ¶ 25, citing
State v. Robb, 88 Ohio St.3d 59, 69 (2000). The state argues the trial court appropriately
limited Moreno's testimony regarding her miscarriage because that testimony could have
aroused the juror's sympathy for Moreno and then shifted that sympathy to Urbina.
Here, however, we agree with Urbina that the trial court abused its discretion in
No. 15AP-978 9

determining the danger of unfair prejudice from Moreno's proposed testimony regarding
having suffered a miscarriage shortly after the accident would outweigh the relevant and
highly probative nature of the evidence.
{¶ 24} Urbina's entire defense was that he was not driving the vehicle at the time of
the accident, and Moreno was Urbina's only witness. Thus, Urbina's ability to present a
defense depended on Moreno's ability to testify as to her account of what happened on
February 21, 2015. Due to the trial court's ruling that Moreno was not to mention her
pregnancy in any way, Moreno's testimony was limited and somewhat disjointed.
Further, the details of her story about why she did not return to the scene of the accident
as planned would have helped the jury assess her credibility. As the United States
Supreme Court has noted, presenting evidence "tells a colorful story with descriptive
richness" and "as its pieces come together a narrative gains momentum, with power not
only to support conclusions but to sustain the willingness of jurors to draw the inferences,
whatever they may be, necessary to reach an honest verdict." Old Chief v. United States,
519 U.S. 172, 187 (1997) (also noting "[p]eople who hear a story interrupted by gaps of
abstraction may be puzzled at the missing chapters, and jurors asked to rest a momentous
decision on the story's truth can feel put upon at being asked to take responsibility
knowing that more could be said than they have heard").
{¶ 25} Because the trial court limited Moreno's testimony to only mentioning she
had a "medical condition," Moreno was unable to testify to key details about her behavior
that night. Additionally, having been instructed she could not mention the fact that she
was pregnant, Moreno testified she asked her neighbor to drive her to pick up Urbina but
was then subject to a rigid cross-examination from the state in which the state accused her
of "ma[king] a choice" of driving the van instead of taking her four-wheel drive Durango,
to which Moreno could only offer up the explanation that she opted to take the van
"[b]ecause of medical." (Tr. at 213.) Without being able to explain that she asked her
friend to drive her because she was pregnant and had a high-risk pregnancy, the state was
able to use cross-examination almost as an impeachment of her story, highlighting the
areas that did not make sense without a more complete, descriptive picture of what
happened that evening.
No. 15AP-978 10

{¶ 26} Moreno also could not testify that she failed to return to the scene after
leaving because she suffered a miscarriage. Instead, as instructed by the trial court, she
could only mention that "a medical issue happened" preventing her from returning.
(Tr. at 199.) Had Moreno been able to testify that she planned to return but began
bleeding and would learn she was suffering a miscarriage, a jury would have had more
details to understand her motivations for not returning to the scene as she had planned.
Instead, the jury was left with a vague description of a "medical condition" without any
details for the jury to assess whether or not Moreno was telling the truth. Though
evidence that Moreno suffered a miscarriage may engender some sympathy from the jury
toward Moreno, the danger of any unfair prejudice from that evidence is especially low
given the highly probative nature of Moreno's testimony regarding why she was not
initially driving her four-wheel drive vehicle and why she did not return to the scene after
the accident.
{¶ 27} The state additionally argues that the trial court properly excluded Moreno's
testimony regarding a miscarriage because Moreno was not an expert witness and only an
expert witness could testify regarding the causation of a miscarriage. However, the
relevant issue was not whether the accident caused the miscarriage, but the fact that
Moreno had the miscarriage at that particular time, explaining her failure to return to the
accident scene. Moreno was not expressing an expert opinion about what caused her
miscarriage, and, thus, the state's argument is misplaced.
{¶ 28} We conclude, therefore, that the trial court abused its discretion in
precluding Moreno from testifying about being pregnant or about suffering a miscarriage
immediately after the accident. Moreno's descriptive, robust testimony of her actions the
night of the accident would have aided the jury in assessing her credibility, and the danger
of unfair prejudice of this testimony would not have outweighed its probative value.
Accordingly, we sustain Urbina's first assignment of error.
IV. Second Assignment of Error – Cancer Diagnosis
{¶ 29} In his second assignment of error, Urbina argues the trial court abused its
discretion when it ruled Moreno could not mention her cancer diagnosis during her
testimony. We again note that we review a trial court's evidentiary rulings for an abuse of
discretion. Darazim at ¶ 33.
No. 15AP-978 11

{¶ 30} In the discussion of the motion in limine, defense counsel stated he planned
to question Moreno about her cancer diagnosis and:
[t]he fact that she is currently being treated, and that counts
for her appearance and her speech, the fact that she was in the
hospital prior and left the hospital against medical advice to
come to court to testify. That is relevant to her credibility, and
it's relevant to her motivations.

(Tr. at 170.) The trial court sustained the state's motion and ruled Moreno "is not to
discuss anything relating to medical conditions." (Tr. at 170.)
{¶ 31} The state argues the evidence regarding Moreno's cancer diagnosis has very
limited relevance because it does not tend to show whether or not Urbina was driving the
vehicle when it went off the road. Urbina responds, however, that the evidence would
have helped the jury in assessing Moreno's credibility.
{¶ 32} Though we agree with Urbina that the evidence of Moreno's cancer
diagnosis was relevant to the jury's assessment of her credibility, we also agree with the
state that this information was not highly probative and carried the risk of unfair
prejudice. Moreover, though Urbina argues this evidence would have explained Moreno's
appearance and her speech, there is nothing in the record indicating her appearance was
poor or her speech was difficult to understand. Without something in the record from
which we can glean prejudice, we cannot say the trial court abused its discretion in
excluding this evidence. Thus, we overrule Urbina's second assignment of error.
V. Third Assignment of Error – Witness Intimidation
{¶ 33} In his third assignment of error, Urbina argues the trial court erred when it
unfairly intimidated Moreno. More specifically, Urbina argues the trial court threatened
Moreno right before she testified with perjury charges and prosecution on other charges.
{¶ 34} Initially, the state argues that because Urbina did not object to the trial
court's statements to Moreno, Urbina has waived all but plain error. State v. Jackson, 92
Ohio St.3d 436, 444 (2001), citing State v. Underwood, 3 Ohio St.3d 12 (1983), syllabus;
Crim.R. 52(B). However, the United States Supreme Court has held that a defendant does
not subject himself to a plain-error analysis on appeal when he does not object to a trial
court's warning to a witness, noting "[t]he suggestion that the petitioner or his counsel
should have interrupted the judge in the middle of his remarks to object is * * * not a basis
No. 15AP-978 12

to ground a waiver of the petitioner's rights." Webb v. Texas, 409 U.S. 95, 97 (1972). In
Webb, the Supreme Court held that a "[t]rial court's extended admonition to petitioner's
only witness to refrain from lying, coupled with threats of dire consequences if witness did
lie, effectively discouraged the witness from testifying at all and deprived petitioner of due
process of law by denying him the opportunity to present witnesses in his own defense."
Id. at syllabus. Additionally, "[c]ourts have recognized that it is within the sound
discretion of the court to warn a witness about the possibility of incriminating herself * * *
just so long as the court does not abuse that discretion by so actively encouraging a
witness' silence that advice becomes intimidation." (Internal quotations omitted.) State
v. Hamilton, 10th Dist. No. 10AP-543, 2011-Ohio-3305, ¶ 42.
{¶ 35} At trial, the following exchange occurred between the trial court and
Moreno, outside the hearing of the jury:
THE COURT: Okay. So here is the situation: It has been
shared with me that you are prepared to get on the witness
stand under oath and testify that on the night in question that
you were operating the vehicle as it slid off the highway.

MS. MORENO: Yes.

THE COURT: Okay. I want you to understand that by doing
so, you run the risk of possibly incriminating yourself for both
criminal and -- I'll say criminal possible penalties.

MS. MORENO: Yeah, I understand.

THE COURT: Do you understand what is meant by perjury?
MS. MORENO: Yes.

THE COURT: That's - -

MS. MORENO: When you lie.

THE COURT: - - when you lie under oath.

MS. MORENO: Yeah.

THE COURT: So I want to make sure you understand that,
and perjury is a felony in the State of Ohio - -

MS. MORENO: Yes.
No. 15AP-978 13

THE COURT: - - for which you could be indicted and
prosecuted.

MS. MORENO: Yes.

THE COURT: There's several charges that could arise from
what I anticipate your testimony is going to be.

MS. MORENO: Uh-huh.

THE COURT: I don't know if you had a valid driver's license
at the time, and I'm not asking you that.

MS. MORENO: Okay.

THE COURT: In fact, if you admit to driving, and it's
determined that you were not a validly licensed driver, you
could be charged with driving without a license or perhaps
driving under a suspended license. And if you're charged
under the Columbus City Code rather than the State Code,
that charge could be a first-degree misdemeanor; and you
could be jailed for up to six months and fined up to $1,000.
Do you understand that?

MS. MORENO: Yeah.

THE COURT: If it is determined from your testimony that you
were involved in an accident as a driver and you failed to
remain behind and left the scene of the accident, you could be
charged with a hit/skip - -

MS. MORENO: Hit/skip, yeah.

THE COURT: - - which is a first-degree misdemeanor; and
you could also separately be prosecuted, convicted and
sentenced to another six months and a possible $1,000 fine
on that charge for leaving the scene of the accident. Do you
understand that?

MS. MORENO: Yes, I do.

THE COURT: And I'm just throwing out there the charges
that I think could possibly be evaluated by the Government.

MS. MORENO: Yeah.
No. 15AP-978 14

THE COURT: You have a right to have an attorney present to
represent you before or during your testimony.

MS. MORENO: Yes.

THE COURT: Do you wish to have an attorney present, or do
you wish to waive your right to have an attorney present?

MS. MORENO: Waive my right.

THE COURT: Okay. With that, from either the defense or the
prosecution, is there anything else you think I might need to
advise her of in terms of making sure she understands the
rights that she has and the rights she'll be giving up or
waiving?
(Tr. at 175-78.)
{¶ 36} Urbina characterizes these statements from the trial court as unfair
intimidation. However, when read in context, it does not appear the trial court is
attempting to intimidate Moreno, only attempting to be sure she understands the possible
consequences of her testimony, including possible perjury charges or other criminal
charges related to admissions she may make about driving without a license and leaving
the scene of an accident. This court has previously noted that "it may not be improper for
the court or even a prosecutor to warn a witness of the penalties of perjury and his right
against self-incrimination out of the hearing of the jury," as was done here. State v.
Halley, 93 Ohio App.3d 71, 79 (10th Dist.1994). Furthermore, "the warning reaches the
level of intimidation" and amounts to "reversible error" when it "interferes with a
defendant's right to present witnesses." Id., citing Webb. Here, Moreno testified, and the
trial court's perjury warning, when read in context, did not reach the level of intimidation.
Thus, we conclude the trial court's statements to Moreno before she testified did not
interfere with Urbina's right to present a defense.
{¶ 37} Additionally under this assignment of error, Urbina argues the trial court
unfairly intimidated Moreno in the presence of the jury when it remarked on her apparent
nervousness and again reminded her to testify truthfully. More specifically, after Moreno
took the stand in front of the jury, the following exchange occurred between the trial court
and Moreno:
No. 15AP-978 15

Q. * * * Now, a couple things. Have you ever testified in court
before?

A. No.

Q. This is the first time?

A. Yes.

Q. Are you a little bit nervous?

A. (Indicating.)

Q. A lot nervous. I'm going to help you out here. A couple
things and you'll be just fine. First of all, tell the truth in
response to the questions that are asked of you.

If you're asked a question and you don't know the answer to
the questions, simply say you don't know. If it's something
you don't understand, then you might appropriately say - -

A. I don't understand.

Q. If there's something you don't remember. . .

A. I don't remember.

Q. You're doing so well. So just don't make up stuff. Okay?

A. Okay.

(Tr. at 182-83.) Again, when read in context, these statements from the trial court do not
amount to intimidation of the witness. Moreover, to the extent Urbina argues Moreno's
nervousness was a result of the trial court's prior perjury warning outside the hearing of
the jury, there is nothing in the record to support that conclusion, nor does the record
demonstrate that Moreno's nervousness interfered with her ability to present her
testimony. Because we conclude the trial court did not improperly intimidate Moreno, we
overrule Urbina's third assignment of error.
No. 15AP-978 16

VI. Fourth Assignment of Error – Improper Impeachment
{¶ 38} In his fourth assignment of error, Urbina argues the trial court erred in
allowing the state to impeach Moreno's character by asking her questions about whether
she had a valid driver's license at the time of the accident. Additionally, Urbina argues the
trial court erred in permitting the state to impermissibly cross-examine Moreno about her
prior out-of-court statements. We address each of these arguments separately.
1. Questions About Moreno's Driver's License
{¶ 39} Urbina first argues under this assignment of error that the trial court erred
in allowing the state to question Moreno on cross-examination about whether she had a
valid driver's license. Because this argument challenges an evidentiary ruling of the trial
court, we again note we review for an abuse of discretion. Darazim at ¶ 33.
{¶ 40} Prior to Moreno's testimony, the state represented to the trial court its
intention to question Moreno on cross-examination about the status of her driver's
license. Defense counsel objected, arguing that the status of Moreno's driver's license may
be relevant evidence but potential unfair prejudice outweighs any relevance. The trial
court overruled the objection and noted the state could ask Moreno about her status as a
licensed driver but could not "get[ ] into her entire driving record." (Tr. at 181.)
{¶ 41} Here, we find no abuse of discretion in the trial court's determination that
questions related to whether Moreno had a valid driver's license at the time of the
accident were not unfairly prejudicial. Urbina's defense was that he was not driving and
that he asked Moreno to drive him that evening, and evidence related to whether Moreno
maintained a valid driver's license is relevant to the plausibility of that story as well
Moreno's overall credibility. Thus, we agree with the state that the trial court did not
abuse its discretion in permitting this line of questioning.
2. Questions About Prior Out-Of-Court Statements
{¶ 42} Urbina next argues under this assignment of error that the trial court erred
in permitting the state to improperly cross-examine Moreno on her prior out-of-court
statements. As the state notes, Urbina did not object to this line of questioning at trial
and thus has waived all but plain error. Jackson at 444. An appellate court recognizes
plain error with the utmost caution, under exceptional circumstances, and only to prevent
No. 15AP-978 17

a miscarriage of justice. State v. Pilgrim, 184 Ohio App.3d 675, 2009-Ohio-5357, ¶ 58
(10th Dist.), citing State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, ¶ 139.
{¶ 43} For an error to be a "plain error" under Crim.R. 52(B), it must satisfy three
prongs: (1) there must be an error, meaning a deviation from a legal rule, (2) the error
must be "plain," meaning an "obvious" defect in the trial proceedings, and (3) the error
must have affected "substantial rights," meaning the error must have affected the
outcome of the trial. State v. Barnes, 94 Ohio St.3d 21, 27 (2002).
{¶ 44} During the state's cross-examination of Moreno, the state asked Moreno
about whether Urbina ever turned the vehicle on when he sat in the driver's seat after the
vehicle slid off the road. Moreno responded she did not recall Urbina turning the vehicle
on but that he just pushed on the clutch and moved the gear shifter. The following
exchange then took place:
Q. * * * But the car was in neutral when it was stopped, so he
didn't have to engage the clutch unless the car was on?

A. The car wasn't on. The only thing he did was push the
clutch; and, I mean, I can't say what he was doing. He was in
the driver's seat and I was - -

Q. And the car rocked when he was in the driver's seat?

A. No, it didn't move nowhere.

Q. It didn't rock at all?

A. It wouldn't move. It was stuck in the snow.

Q. So you remember when we were talking to you on Monday,
and you told us that the car rocked?

A. No, I told you we were trying to move it; and it kept going
more down and more down and more down in the snow.

Q. So your story is different from what you told us on
Monday?

A. I don't recall telling you it rocked. I'm sorry.

Q. Your testimony is different now from what it was
previously, that it rocked. Just so we're clear, it did not rock?
No. 15AP-978 18

A. It did not rock.

Q. And it wasn't on?

A. And it was not on.

Q. And that car - - Your testimony would also be that that car
wasn't capable of being turned on at that point; was it?

A. It wasn't capable of what?

Q. Being turned on at that point. It wouldn't turn on?

A. It could have turned on, but it was not on.

Q. So you didn't turn it on to try to get it out of the - -

A. We tried to push it up. It wouldn't go. It wouldn't move.

Q. You didn't turn it on and try to drive it out of the ditch.
That's your testimony?

A. I tried to drive it the first time. Like, I kept putting it in
reverse, trying to get it, and driving it in reverse; and every
time I did it, it just went deeper and deeper in the snow.

Q. But your testimony is that when he was in the car, it wasn't
actually on; right?

A. No, it wasn't actually on.

Q. Do you understand that's different from what you told us
the other day?

A. I don't recall what I said.

Q. I understand you don't recall, but do you understand that
that's different?

A. No, I don't understand.
(Tr. at 219-21.)
{¶ 45} Urbina argues this colloquy amounts to the state improperly impeaching
Moreno's credibility by erroneously attempting to introduce into evidence Moreno's
alleged prior unsworn statements. In State v. Hunt, 97 Ohio App.3d 372 (10th Dist.1994),
No. 15AP-978 19

we reversed a defendant's conviction of felonious assault where "the prosecuting attorney
presented damaging facts to the jury under the guise of asking appellant a question." Id.
at 375. In so doing, we stated " '[i]t is highly improper for any lawyer in the trial of any
jury case, civil or criminal, to make what amounts to testimonial assertions under the
pretext that he is merely "asking a question." ' " Id., quoting State v. Daugherty, 41 Ohio
App.3d 91, 92 (5th Dist.1987). See also State v. Davis, 10th Dist. No. 01AP-579 (Apr. 18,
2002) (finding prejudicial plain error from the prosecutor's line of questioning to the
defendant insinuating that the defendant confessed to his cousin "when either there
existed no factual predicate for that information and/or no testimony of such confession
was put into evidence").
{¶ 46} We are mindful that the state's conduct on cross-examination is not
grounds for reversal unless the defendant has been denied a fair trial. State v. Ndiaye,
10th Dist. No. 13AP-964, 2014-Ohio-3206, ¶ 14, citing State v. Maurer, 15 Ohio St.3d 239,
266 (1984); Davis. Additionally, " 'it must be clear beyond a reasonable doubt that absent
the conduct of the prosecution, the jury would have found the defendant guilty.' " Davis,
quoting State v. Vrona, 47 Ohio App.3d 145, 154 (9th Dist.1988), citing Maurer at 266-
68.
{¶ 47} In Hunt, we found the prosecutor's line of questions affected the
defendant's substantial rights and deprived the defendant of a fair trial because "the
questions posed went to the very heart of the case because the entire case hinged on the
credibility of the witnesses." Hunt at 376 (noting "[t]he entire case turned on the
credibility of the witnesses and who the jurors believed"). The same is true here. Urbina's
entire defense was that he was not driving the vehicle at the time of the accident, and his
only witness in support of his defense was Moreno. By allowing the state to insinuate
through cross-examination that Moreno had previously told prosecutors a different
version of events, the state was able to effectively undermine Moreno's credibility and
therefore deprive Urbina of his right to a fair trial.
{¶ 48} In sum, the trial court did not abuse its discretion in permitting the state to
cross-examine Moreno about the status of her driver's license. However, because the
state's line of questions about Moreno's pre-trial, unsworn statements served to
No. 15AP-978 20

undermine Moreno's credibility and deprive Urbina of a fair trial, we overrule in part and
sustain in part Urbina's fourth assignment of error.
VII. Sixth Assignment of Error – Trooper Dabo's Opinion Testimony
{¶ 49} For ease of discussion, we address Urbina's final two assignments of error
out of order. In his sixth assignment of error, Urbina argues the trial court abused its
discretion by permitting Trooper Dabo to give opinion testimony about the length of time
that had elapsed from when the vehicle skidded off the road to when Trooper Dabo
arrived on the scene.
{¶ 50} On direct examination, the state asked Trooper Dabo about his observations
as he approached the vehicle at the scene of the accident. Trooper Dabo stated it was
snowing outside and had been snowing for three or four hours before the accident. He
further testified that he saw skid marks in the snow as he approached the Civic. The
following exchange then occurred:
Q. Now, I'm not asking you to play weatherman; but based
upon how hard it was snowing that day, you made an estimate
of how long that motor vehicle had been there?

[DEFENSE COUNSEL]: Objection, Your Honor.

THE COURT: Basis?

[DEFENSE COUNSEL]: Calls for expert testimony.

[THE STATE]: I'm asking - -

THE COURT: The question was about how long the snow - -

Would you repeat that?

[THE STATE]: Your Honor, I'm asking for a personal
observation about how long it would take for the snow to
cover the tire tracks. The trooper was there. He made a
personal observation.

[DEFENSE COUNSEL]: Your Honor, that calls for a
conclusion as to a scientific finding that there's been no
demonstration on how the trooper is qualified to make that.
No. 15AP-978 21

THE COURT: I'm going to overrule the motion for now. I'll
hear the answer, and we'll see if it's something that we need to
address further from there.

Would you repeat the question?

[THE STATE]: I'm going to break this up in pieces.

Q. It's snowing when you arrive?

A. That is correct.

Q. And you were able to see tire tread tracks?

A. That's correct.

Q. Did it continue to snow during your contact with the
defendant?

A. Yes, that is correct.

Q. Okay. Were you able to make any observations about the
tire treads after a period of time?

A. Yeah. I mean, I could tell that he was probably there less
than ten minutes before I got there.

Q. And this is based upon what?

A. Based upon the tire tread markings. I mean, they hadn't
covered up because it was still snowing; and, I mean, you
could clearly see the impression of the tire marks right on the
snow.
(Tr. at 52-53.) Urbina argues this is impermissible lay opinion testimony and the
question of the age of a tire track in the snow is a question for an expert witness.
{¶ 51} Pursuant to Evid.R. 701, opinion testimony by a lay witness is admissible
regarding those opinions or inferences which are "(1) rationally based on the perception of
the witness and (2) helpful to a clear understanding of the witness' testimony or the
determination of a fact in issue." In contrast, Evid.R. 702 provides a witness may testify
as an expert if all of the following apply:
No. 15AP-978 22

(A) The witness' testimony either relates to matters beyond
the knowledge or experience possessed by lay persons or
dispels a misconception common among lay persons;

(B) The witness is qualified as an expert by specialized
knowledge, skill, experience, training, or education regarding
the subject matter of the testimony;

(C) The witness' testimony is based on reliable scientific,
technical, or other specialized information. To the extent that
the testimony reports the result of a procedure, test, or
experiment, the testimony is reliable only if all of the
following apply:

(1) The theory upon which the procedure, test, or experiment
is based is objectively verifiable or is validly derived from
widely accepted knowledge, facts, or principles;

(2) The design of the procedure, test, or experiment reliably
implements the theory;

(3) The particular procedure, test, or experiment was
conducted in a way that will yield an accurate result.
{¶ 52} Generally, lay witnesses may give their opinions on matters they have
actually observed "such as the speed that an automobile was traveling, the weather
conditions observed, or the apparent drunkenness of a person." Urbana ex rel. Newlin v.
Downing, 43 Ohio St.3d 109 (1989), fn. 2. Thus, Trooper Dabo was able to testify that it
was snowing and could render a lay opinion on whether the snow was falling quickly or
slowly based on his observations. However, we disagree with the trial court that the
amount of time it would take for snow falling at a certain rate to cover up tire tracks is a
matter that would be rationally based on the perception of the witness. Trooper Dabo
testified specifically that the tire tracks were in the snow no more than ten minutes. This
is a matter "beyond the knowledge or experience possessed by lay persons" and would
require "specialized knowledge, skill, experience, training, or education" or "reliable
scientific, technical, or other specialized information" in order to be able to determine
with reliability. Evid.R. 702. See also Wise v. Meyer, 2d Dist. No. 2005 CA 113, 2006-
Ohio-4654, ¶ 44 (noting "[a]ccident reconstruction is a highly technical area" requiring
expert testimony); State v. Minor, 47 Ohio App.3d 22, 24 (10th Dist.1988) (explaining the
No. 15AP-978 23

two-step process outlined in Evid.R. 702 and 703 that a trial court must first determine
whether "the scientific, technical or specialized opinion be reliable" in determining
"whether the witness is qualified to give an expert opinion").
{¶ 53} There was no foundation testimony establishing Trooper Dabo as an expert
in the rate of snowfall, snow accumulation, or determining the precise age of tire tracks in
fallen snow. Trooper Dabo testified to a specific amount of time the tire tracks had been
in the snow, opining the tracks had been there "less than ten minutes," without the proper
foundational support of an expert witness. Accordingly, we conclude the trial court
abused its discretion in allowing Trooper Dabo to render an impermissible lay opinion on
the amount of time the tire tracks had been in the snow. We sustain Urbina's sixth
assignment of error.
VIII. Fifth Assignment of Error – HGN Test
{¶ 54} In his fifth assignment of error, Urbina argues the trial court erred when it
refused to let defense counsel cross-examine Trooper Dabo on the manner in which
Trooper Dabo administered the HGN test.
{¶ 55} On direct examination, the state questioned Trooper Dabo extensively
regarding the manner in which he administered the HGN test and the signs of
intoxication Trooper Dabo observed from that test. When defense counsel attempted to
cross-examine Trooper Dabo regarding the HGN test, the trial court sustained the state's
objection that Urbina could not question Trooper Dabo about the HGN test because
Urbina did not file a timely motion to suppress.
{¶ 56} The state concedes it was error for the trial court to prevent Urbina from
cross-examining Trooper Dabo regarding his administration of the HGN test. State v.
Boczar, 113 Ohio St.3d 148, 2007-Ohio-1251, ¶ 23 (noting the General Assembly has
determined field sobriety tests are admissible when an officer substantially complies with
the National Highway Traffic Safety Administration standards, and that "[t]he potential
compromise of reliability caused by the lack of strict compliance can be shown by the
defense on cross-examination"). Nonetheless, the state argues the trial court's ruling in
this matter was harmless error because Urbina was convicted of both OVI and OVI per se,
and the results of the HGN test are irrelevant to the OVI per se conviction. See State v.
Green, 66 Ohio St.3d 141, 148 (1993) (stating "[l]ack of an opportunity to fully cross-
No. 15AP-978 24

examine is harmless error when there is overwhelming, untainted evidence supporting a
conviction"). Given the other errors at trial requiring reversal, we need not decide
whether the trial court's error in refusing cross-examination on the HGN test was
harmless. Accordingly, we render moot Urbina's fifth assignment of error.
IX. Disposition
{¶ 57} Based on the foregoing reasons, the trial court did not abuse its discretion in
precluding Moreno's testimony regarding her cancer diagnosis, did not abuse its
discretion in allowing the state to question Moreno about the status of her driver's license,
and did not improperly intimidate Moreno by reminding her of her right against self-
incrimination and in explaining perjury to her. However, the trial court abused its
discretion in not allowing Moreno to testify specifically regarding suffering a miscarriage
immediately following the accident and abused its discretion in allowing Trooper Dabo to
render an impermissible lay opinion. Additionally, the state's questions to Moreno on
cross-examination regarding statements she had made out of court operated to deprive
Urbina of a fair trial. Because these errors require reversal, we need not determine
whether Urbina suffered any prejudice as a result of the trial court's error in refusing to
allow him to cross-examine Trooper Dabo on the administration of the HGN test. Having
overruled Urbina's second and third assignments of error, overruled in part and sustained
in part Urbina's fourth assignment of error, sustained Urbina's first and sixth assignments
of error, and rendered moot Urbina's fifth assignment of error, we reverse the judgment
entry of the Franklin County Municipal Court and remand the matter to that court for
further proceedings consistent with this decision.
Judgment affirmed in part and reversed in part;
cause remanded.

BROWN, J., concurs.
DORRIAN, P.J., concurs in part and concurs in judgment.

DORRIAN, P.J., concurring part and concurring in judgment.
{¶ 58} I concur with the majority in its resolution of all assignments of error, with
the exception that I would also sustain the second assignment of error. I concur with the
majority and would reverse the judgment of the trial court.