RENDERED: FEBRUARY 12, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1855-DG
REBECCA CARDWELL APPELLANT
ON DISCRETIONARY REVIEW FROM HARDIN CIRCUIT COURT
v. HONORABLE KELLY MARK EASTON, JUDGE
ACTION NO. 19-XX-00006
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, MCNEILL, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: Rebecca Cardwell appeals from her conviction of
driving under the influence (DUI), first offense.1 She argues on appeal that the
district court should have suppressed the results of her breath test, that the district
court erred in bifurcating her misdemeanor trial, and that the district court erred
1
Kentucky Revised Statute (KRS) 189A.010(5)(a).
when it limited her ability to challenge the validity of the breath test during trial.
We find no error and affirm.
FACTS AND PROCEDURAL HISTORY
Just after midnight on June 17, 2018, Officer Michael Mertz pulled
over Appellant for speeding. During the traffic stop, Officer Mertz suspected
Appellant might have been drinking. He administered a portable breath test which
indicated the presence of alcohol. Officer Mertz then had Appellant exit the
vehicle and perform field sobriety tests. After the tests, Officer Mertz arrested
Appellant on suspicion of DUI. Appellant was then transferred to the local jail
where an Intoxilyzer breath test was administered. The results indicated Appellant
had a measured breath-alcohol concentration of 0.095, which is above the 0.08
measurement allowed by statute. Appellant was then charged with DUI, first
offense.
Appellant later moved to suppress the Intoxilyzer results on account
of Officer Mertz’s not following the statutory rules set forth in KRS 189A.103.
Specifically, she argued that Officer Mertz did not observe her for 20 minutes prior
to administering the Intoxilyzer test as required by KRS 189A.103(3)(a). A
suppression hearing was held where Officer Mertz testified to observing Appellant
for the required 20 minutes. Notations on the Intoxilyzer test results printout
supported this testimony. The defense introduced documentation in the form of
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transcribed radio calls that contained timestamps showing when Officer Mertz
called into dispatch. The timestamps for the radio calls indicated Officer Mertz did
not observe Appellant for the required 20-minute period. Officer Mertz testified
that because the radio calls were transcribed by a person, there could be a
discrepancy in the times listed. Officer Mertz testified that he was one hundred
percent certain that he utilized the clock on the Intoxilyzer when noting the time he
began observing Appellant. The district court ultimately found that Officer Mertz
did observe Appellant for the required duration and denied the motion to suppress.
A trial was held on April 24, 2019. Officer Mertz was the only
witness to testify. Officer Mertz testified as to the circumstances surrounding the
traffic stop and administration of the Intoxilyzer, among other things. The jury
was given the option of finding Appellant guilty of operating a motor vehicle with
a breath-alcohol concentration of .08 or higher or operating a motor vehicle while
under the influence of alcohol. The jury found Appellant guilty of the latter.
Appellant then appealed her conviction to the circuit court. She again
argued the suppression issue as well as other issues that will be discussed later in
this opinion. The circuit court affirmed her conviction, and this appeal followed.
ANALYSIS
The first issue we will discuss is Appellant’s motion to suppress. As
previously stated, this argument revolves around the 20-minute observation period
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required under KRS 189A.103(3)(a). Officer Mertz testified that he observed her
for 20 minutes prior to administering the Intoxilyzer test, but defense counsel
introduced evidence that contradicted his testimony. The district court found, and
circuit court agreed, that Officer Mertz observed Appellant for the required time.
Our standard of review of a circuit court’s decision on
a suppression motion following a hearing is twofold.
First, the factual findings of the court are conclusive if
they are supported by substantial evidence. The second
prong involves a de novo review to determine whether
the court’s decision is correct as a matter of law.
Stewart v. Commonwealth, 44 S.W.3d 376, 380 (Ky. App. 2000) (footnotes and
citations omitted).
“[S]ubstantial evidence” is “[e]vidence that a reasonable
mind would accept as adequate to support a conclusion”
and evidence that, when “taken alone or in the light of all
the evidence, . . . has sufficient probative value to induce
conviction in the minds of reasonable men.” Regardless
of conflicting evidence, the weight of the evidence, or the
fact that the reviewing court would have reached a
contrary finding, “due regard shall be given to the
opportunity of the trial court to judge the credibility of
the witnesses” because judging the credibility of
witnesses and weighing evidence are tasks within the
exclusive province of the trial court. Thus, “[m]ere doubt
as to the correctness of [a] finding [will] not justify [its]
reversal,” and appellate courts should not disturb trial
court findings that are supported by substantial evidence.
Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (footnotes and citations
omitted).
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We find no error here. Officer Mertz testified that he observed
Appellant for the required 20 minutes, and notations on the Intoxilyzer test results
printout supported this testimony. While there was other evidence that
contradicted it, we cannot say that the district court’s findings were clearly
erroneous. See Greene v. Commonwealth, 244 S.W.3d 128, 136 (Ky. App. 2008),
and Eldridge v. Commonwealth, 68 S.W.3d 388, 390-91 (Ky. App. 2001), for other
instances where a police officer testified that he observed a defendant for 20
minutes, but the record contained contradicting evidence.
We now move on to Appellant’s argument that the district court
erroneously bifurcated her trial. The district court held a guilt phase and a penalty
phase for this misdemeanor trial. As the circuit court pointed out, this was
erroneous and in violation of Kentucky Rule of Criminal Procedure (RCr) 9.84 and
Newton v. Commonwealth, 760 S.W.2d 100 (Ky. App. 1988). Appellant and the
circuit court are correct that misdemeanor trials should not be bifurcated. When a
jury finds guilt in a misdemeanor trial, they are to immediately fix a sentence. The
circuit court, however, found this error to be harmless. We agree.
No error in either the admission or the exclusion of
evidence and no error or defect in any ruling or order, or
in anything done or omitted by the court or by any of the
parties, is ground for granting a new trial or for setting
aside a verdict or for vacating, modifying or otherwise
disturbing a judgment or order unless it appears to the
court that the denial of such relief would be inconsistent
with substantial justice. The court at every stage of the
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proceeding must disregard any error or defect in the
proceeding that does not affect the substantial rights of
the parties.
RCr 9.24.
A non-constitutional evidentiary error may be deemed
harmless, the United States Supreme Court has
explained, if the reviewing court can say with fair
assurance that the judgment was not substantially swayed
by the error. Kotteakos v. United States, 328 U.S. 750,
66 S.Ct. 1239, 90 L.Ed. 1557 (1946). The inquiry is not
simply “whether there was enough [evidence] to support
the result, apart from the phase affected by the error. It is
rather, even so, whether the error itself had substantial
influence. If so, or if one is left in grave doubt, the
conviction cannot stand.” Id. at 765, 66 S.Ct. 1239.
Winstead v. Commonwealth, 283 S.W.3d 678, 688-89 (Ky. 2009) (footnote
omitted).
The circuit court held that because the Commonwealth put forth no
additional evidence during the erroneous sentencing phase of the trial, the error
was harmless. On review, the circuit court also found significant that Appellant
was given the minimum sentence. We agree that the error was harmless for these
reasons. See Partin v. Commonwealth, No. 2003-CA-001999-MR, 2004 WL
2484328 (Ky. App. Nov. 5, 2004), and Nelson v. Commonwealth, No. 2002-CA-
001519-MR, 2003 WL 21475890 (Ky. App. Jun. 27, 2003), where previous panels
of this Court ruled similarly.
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Citing Marcum v. Commonwealth, 583 S.W.3d 24 (Ky. App. 2019),
Appellant raises the argument that this was a structural error and not subject to
harmless error review. “Structural errors are defects affecting the entire framework
of the trial and necessarily render the trial fundamentally unfair. Such errors
preclude application of the harmless error rule and warrant automatic reversal
under that standard.” Id. at 29 (citation and internal quotation marks omitted). We
find that this issue was not preserved for our review. The structural error argument
was not raised in either the district court or the circuit court. “The Court of
Appeals is without authority to review issues not raised in or decided by the trial
court.” Regional Jail Authority v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989); see
also Shelton v. Commonwealth, 928 S.W.2d 817, 818 (Ky. App. 1996). “[E]rrors
to be considered for appellate review must be precisely preserved and identified in
the lower court.” Skaggs v. Assad, by and through Assad, 712 S.W.2d 947, 950
(Ky. 1986) (citation omitted). Furthermore, the structural error argument was not
mentioned in Appellant’s motion for discretionary review filed with this Court.
This is in violation of Kentucky Rule of Civil Procedure (CR) 76.20(3)(d) which
requires “[a] clear and concise statement of (i) the material facts, (ii) the questions
of law involved, and (iii) the specific reason or reasons why the judgment should
be reviewed[.]” Failure to include this argument in the motion for discretionary
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review precludes our review. Ellison v. R & B Contracting, Inc., 32 S.W.3d 66,
71-72 (Ky. 2000).
Appellant’s final argument on appeal is that the district court erred in
limiting her questioning of Officer Mertz during trial. Specifically, the district
court would not allow defense counsel to question the officer regarding the validity
of the Intoxilyzer test as it pertained to the 20-minute observation period. The
court reasoned that since it had found the 20-minute period was observed, then
using it to attack the validity of the test was inappropriate. The court did allow
defense counsel to question Officer Mertz regarding the documents that
contradicted his testimony that he followed the 20-minute rule because it went to
the credibility of the witness.
The circuit court, citing Commonwealth v. Mattingly, 98 S.W.3d 865
(Ky. App. 2002), held that a “jury is entitled to evaluate all the circumstances,
including the dispute about the twenty-minute observation period, in deciding
whether to accept the test result.” The circuit court ultimately held that there was
no error because the defense was allowed to question Officer Mertz about the issue
in order to call into question his credibility and the trial judge did not give the jury
a limiting instruction as to how it was to use this evidence. The court also held that
even if this was error, it was harmless because Appellant was not convicted of
operating a motor vehicle with a breath-alcohol concentration of .08 “or higher”
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but rather doing so “[w]hile under the influence of alcohol[.]” KRS
189A.010(1)(b).
Every criminal defendant has a “fundamental
constitutional right to a fair opportunity to present a
defense,” Crane v. Kentucky, 476 U.S. 683, 687, 106
S.Ct. 2142, 90 L.Ed.2d 636 (1986), and certainly the
exclusion of some evidence may “significantly
undermine fundamental elements of the defendant’s
defense,” United States v. Scheffer, 523 U.S. 303, 315,
118 S.Ct. 1261, 140 L.Ed.2d 413 (1998). Trial courts
must ensure that this fundamental right to a fair
opportunity to present a defense is guaranteed in every
case.
That said, the right to present a defense is not
unlimited. Like the Commonwealth, “the accused . . .
must comply with established rules of procedure and
evidence designed to assure both fairness and reliability
in the ascertainment of guilt and innocence.” Chambers
v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35
L.Ed.2d 297 (1973).
Commonwealth v. Bell, 400 S.W.3d 278, 284 (Ky. 2013).
Appellant relies on Mattingly to support her argument. In Mattingly,
Joseph Mattingly
was arrested and charged with DUI, first offense. Prior
to the scheduled trial in Marion District Court, the
Commonwealth announced that it was electing to
prosecute Mattingly under KRS 189A.010(1)(a)—the so-
called “DUI per se” provision. The Commonwealth
stated that it intended to produce only evidence that
Mattingly was operating a motor vehicle on February 18,
2000, and at that time he had blood- or breath-alcohol
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concentration of .10 or higher.[2] Based upon this
election, the Commonwealth filed a motion in
limine, seeking to exclude the introduction of any
evidence concerning whether Mattingly was under the
influence of alcohol on February, 18, 2000, including
evidence of the field sobriety test conducted by the
arresting officer. Mattingly opposed the motion,
contending that such evidence was relevant to challenge
the results of his breathalyzer test.
The district court ultimately granted the
Commonwealth’s motion. The court recognized that field
sobriety tests have long been used to prove or disprove
that an accused was driving under the influence.
However, because impaired driving is not at issue to
prove DUI per se, the court reasoned that in this case
such evidence is irrelevant. Thereafter, Mattingly
entered a conditional plea of guilty, reserving the right to
appeal the district court’s evidentiary ruling.
On appeal, the Marion Circuit Court reversed,
determining that field sobriety tests and evidence which
may show that a defendant was not under the influence
would be relevant to challenge the accuracy of the
breathalyzer test. The court concluded that excluding
this evidence would violate an accused’s constitutional
rights to present a defense. Accordingly, the court set
aside the guilty plea and remanded the matter to district
court for further proceedings.
Mattingly, 98 S.W.3d at 866-67 (footnotes and citations omitted).
The Commonwealth obtained discretionary review before a panel of
this Court. The Court agreed with the circuit court and held “that Mattingly was
entitled to present any evidence which tended to impugn the results of the breath-
2
The breath-alcohol concentration limit has since been lowered to .08.
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and blood-alcohol concentration test, including evidence of his performance on
field sobriety tests.” Id. at 866. Further, the Court stated
that evidence concerning alcohol intoxication can
constitute circumstantial proof impugning the accuracy
of the blood and breath-alcohol concentration tests.
Since a jury is entitled to draw reasonable inferences
from circumstantial evidence, such evidence is relevant
because it makes less probable a material element of
DUI per se—whether the accused’s blood- or breath-
alcohol concentration was .10 or higher. Therefore, the
circuit court properly set aside the district court’s holding
excluding the evidence of Mattingly’s performance on
the field sobriety tests.
Id. at 870 (footnote omitted).
We believe Mattingly is distinguishable from the case sub judice;
therefore, we conclude that the district court made no error and Appellant was able
to present a full defense. In Mattingly, although it is not clearly described, it
appears Mr. Mattingly wanted to introduce evidence that he passed the field
sobriety tests administered by the officer in order to challenge the accuracy of the
breath test he later failed. In other words, if he was able to pass the field sobriety
tests, he must have been sober, and the breath test must have malfunctioned or
returned an erroneous result. The trial court refused to let Mr. Mattingly put on a
defense that the breath test results were inaccurate. That ruling is what the
appellate courts found to be erroneous.
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Here, Appellant does not appear to be challenging the results of the
test. There is no argument that the results were wrong or unreliable. Appellant
does not argue that because Officer Mertz failed to adhere to the pre-test
observation period, the results were inaccurate. Appellant’s argument is simply
that if Officer Mertz did not follow the 20-minute observation period, then the
results should be ignored. This is essentially a rehash of the admissibility issue
decided pre-trial and is not an actual attack on the accuracy of the results of the
Intoxilyzer test.
“[T]he purpose of the observation period is so the operator can testify
positively that during this twenty-minute observation period defendant had nothing
to eat or drink, did not regurgitate or smoke.” Eldridge, 68 S.W.3d at 391 (citation
and internal quotation marks omitted). Stated differently, the observation period is
to ensure that “the subject did not have oral or nasal intake of substances which
will affect the test.” Commonwealth v. Roberts, 122 S.W.3d 524, 528 (Ky. 2003).
Appellant does not allege that Officer Mertz’s failure to observe her for 20 minutes
caused him to miss seeing her ingest anything during the 20-minute period that
could have skewed the test results. Simply put, there is no argument that if Officer
Mertz failed to observe her for 20 minutes, then the Intoxilyzer results were
inaccurate. Unlike in Mattingly, Appellant here was not trying to introduce
evidence that impugned the accuracy of the test.
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The district court did not err in this instance. Appellant litigated the
admissibility of the Intoxilyzer test results pre-trial and the adequacy of the 20-
minute observation period was ruled upon. At trial, Appellant was able to question
Officer Mertz about the 20-minute period and question his credibility by
introducing conflicting evidence. This was appropriate and allowed Appellant to
present a full defense.
CONCLUSION
Based on the foregoing, we affirm the judgment of the circuit court.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
F. Todd Lewis Daniel Cameron
Louisville, Kentucky Attorney General of Kentucky
Melanie Goff Biggers
Special Assistant Attorney General
Elizabethtown, Kentucky
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