City of Columbus v. Taylor

• Decision Date: 26 October 1988
• Docket Number: No. 87-1151,87-1151
• Citation: 529 N.E.2d 1382,39 Ohio St.3d 162
• Parties: CITY OF COLUMBUS, Appellant, v. TAYLOR, Appellee.
• Court: Ohio Supreme Court

Page 162

39 Ohio St.3d 162

529 N.E.2d 1382

CITY OF COLUMBUS, Appellant, v. TAYLOR, Appellee.

No. 87-1151.

Supreme Court of Ohio.

Submitted April 5, 1988.

Decided Oct. 26, 1988.

Syllabus by the Court

The admission or rejection of evidence concerning out-of-court experiments is a matter peculiarly within the discretion of the trial court, and reviewing courts will not interfere absent an abuse of discretion. (St. Paul Fire & Marine Ins. Co. v. Baltimore & Ohio RR. Co. [1935], 129 Ohio St. 401, 2 O.O. 396, 195 N.E. 861, paragraph two of the syllabus, approved and followed.)

In the early morning hours of January 12, 1986, appellee, Lawrence Taylor, was driving westbound on East 15th Avenue in Columbus, Ohio. He approached another vehicle which was stopped at the unmarked intersection of East 15th Avenue and Pearl Alley waiting to turn left into Pearl Alley. Appellee drove his car to the right of this vehicle and struck two pedestrians as they stepped out from in front of the stopped vehicle while walking northbound across East 15th Avenue.

Two Columbus police officers witnessed the accident from their vehicle in Pearl Alley and were on the scene immediately. Appellee was placed in the back of a police cruiser. Subsequently, he was requested to perform field sobriety tests. Upon completion of the tests, appellee was placed under arrest. He was then taken to the county jail where he was given a breath-alcohol test (BAC Verifier) which registered a reading of .118. Appellee was charged, inter alia, with: (1) operating a motor vehicle while under the influence of alcohol and/or drugs in violation of Section 2133.01(a) of the Columbus City Code; and (2) operating a motor vehicle while under the influence of alcohol and/or drugs in violation of Section 2133.01(b)(2) of the Columbus City Code. ¹

A jury found appellee guilty on both counts of operating a motor vehicle while under the influence of alcohol. Appellee was sentenced for violating Section 2133.01(b)(2) of the Columbus City Code. The court of appeals reversed the judgment of the trial court and remanded the cause for a new trial.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Ronald J. O'Brien, City Atty., Lisa L. Sadler, Columbus, Dana M. Peters and Maria Juskiw, Louisville, for appellant.

Max Kravitz, Jon Gonzales and Steve Nolder, Columbus, for appellee.

LOCHER, Justice.

The primary issue presented in this action is whether appellee's conviction for violating Section 2133.01(b)(2) of the Columbus City Code was proper. We hold that he was properly convicted and, accordingly, reverse the judgment of the court of appeals and reinstate the judgment of the trial court.

By final judgment entry of the trial court, appellee was convicted and sentenced for violating Section 2133.01(b)(2). ² Under this per se offense, the prosecution in order to sustain a conviction must prove beyond a reasonable doubt that the defendant was operating a vehicle within the city and that at the time of operation had a concentration of ten-hundredths of one gram or more by weight of alcohol per two hundred ten liters of his breath. ³ See, e.g., State v. Boyd (1985), 18 Ohio St.3d 30, 18 OBR 68, 479 N.E.2d 850. It is well-established that a defendant may challenge the accuracy of his specific test results. State v. Tanner (1984), 15 Ohio St.3d 1, 15 OBR 1, 472 N.E.2d 689. See, also, State v. Vega (1984), 12 Ohio St.3d 185, 12 OBR 251, 465 N.E.2d 1303. In the cause sub judice, appellee's test on the BAC Verifier registered a reading of .118, which is beyond the legal limit established by the General Assembly and by the Columbus City Council.

The main issue upon which the court of appeals based its judgment of reversal concerned the exclusion of the report and testimony of an expert and his simulated testing of appellee on a BAC Verifier machine. This simulated testing took place approximately three months after the incident in question. ⁴ The trial court initially excluded the testimony and report of the expert due to appellee's failure to provide the prosecution with a timely copy of the expert's report. However, the trial court later modified that ruling and excluded the testimony concerning the simulated testing on grounds of irrelevance and possible misleading effect.

Evid.R. 402 provides:

"All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by the Constitution of the State of Ohio, by statute enacted by the General Assembly not in conflict with a rule of the Supreme Court of Ohio, by these rules, or by other rules prescribed by the Supreme Court of Ohio. Evidence which is not relevant is not admissible."

Evid.R. 702 specifically refers to admissibility of scientific testimony:

"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of opinion or otherwise."

In a case decided before the adoption of the Evidence Rules, this court held:

"1. Evidence of experiments performed out of court, tending to prove or disprove a contention in issue, is admissible if there is a substantial similarity between conditions existing when the experiments are made and those existing at the time of the occurrence in dispute; dissimilarities, when not so marked as to confuse and mislead the jury, go to the weight rather than the admissibility of the evidence.

"2. The admission or rejection of evidence as to such experiments is a matter peculiarly within the discretion of the trial judge, and when such discretion has not been palpably abused reviewing courts will not interfere." (Emphasis added.) St. Paul Fire & Marine Ins. Co. v. Baltimore & Ohio RR. Co. (1935), 129 Ohio St. 401, 2 O.O. 396, 195 N.E. 861, paragraphs one and two of the syllabus.

It is axiomatic that a determination as to the admissibility of evidence is a matter within the sound discretion of the trial court. See Calderon v. Sharkey (1982), 70 Ohio St.2d 218, 24 O.O.3d 322, 436 N.E.2d 1008. The issue of whether testimony is relevant or irrelevant, confusing or misleading, is best decided by the trial judge who is in a significantly better position to analyze the impact of the evidence on the jury. Although Evid.R. 702 expressly allows for the admission of scientific testimony, it does not mandate such admission.

In the instant case, the trial court determined that the conditions affecting appellee's breath-alcohol content on the morning of January 12, 1986, could not be reliably duplicated by the simulated testing and that any such evidence would mislead the jury and be unfairly prejudicial. We do not disagree with this determination. It is clear that a number of factors or conditions can influence the human body and the effects of alcohol within it. See, generally, Erwin, Defense of Drunk Driving Cases (3 Ed.1988). These factors or conditions can affect the test results at any time. Furthermore, the conditions on the night in question were duplicated for the test solely on the basis of appellee's recollection. Also, it was argued that a great deal of the testing may have occurred without the expert's direct supervision.

Additionally, we find it particularly significant that the expert witness was permitted to testify as to other matters within his expertise concerning the BAC Verifier test. The expert was not entirely precluded from testifying. Included in his testimony was his analysis of the effects of burping or belching on a BAC Verifier reading. Appellee had testified earlier in the trial that his stomach was "acting up" and that he was burping on the night of the test. In the excluded simulated test report the expert found that the " * * * influence of Mr. Taylor's burping and belching would have a very pronounced elevating effect on the measured BAC reading." The report concludes that " * * * the particular BAC test result * * * is highly questionable based upon the influence of the contamination of the stomach contents due to the burping and belching." We fail to see how appellee was prejudiced by the exclusion of the expert's report. The combined effect of appellee's testimony concerning his upset stomach and the expert's testimony as to the effects of burping and belching on the BAC Verifier presented essentially the same facts to the jury on the question of appellee's specific test result as the excluded report would have presented.

In any event, the question before us is not whether the trial court ruled as we would have ruled if we had been confronted with such evidence, but whether the trial court abused its discretion so as to prejudice appellee. We follow our decision in St. Paul Fire & Marine Ins. Co., supra, and hold that the admission or rejection of evidence concerning out-of-court experiments is a matter peculiarly within the discretion of the trial court, and that reviewing courts will not interfere absent an abuse of discretion. It is well-established in the law of this state that a trial court must have made a decision implying an attitude that was unreasonable, arbitrary, or unconscionable to constitute an abuse of discretion. Ojalvo v. Bd. of Trustees of Ohio State Univ. (1984), 12 Ohio St.3d 230, 232, 12 OBR 313, 315, 466 N.E.2d 875, 877.

Upon a thorough examination of the record in this case, we cannot find that the trial court committed an abuse of discretion in excluding the expert's report and testimony concerning the simulated test. Therefore, we reverse the judgment of the court of appeals on the issue of the exclusion of the report and expert testimony concerning such report.

The court of appeals also reversed the judgment of the trial court on two other issues: (1) the trial court erred by permitting the prosecution to impeach appellee with the use of a...