State v. Bernard L. Webb

• Decision Date: 24 November 1993
• Docket Number: 671,93-LW-4527
• Parties: STATE OF OHIO, Plaintiff-Appellee, v. BERNARD L. WEBB, Defendant-Appellant. Case
• Court: United States Court of Appeals (Ohio)

STATE OF OHIO, Plaintiff-Appellee, v. BERNARD L. WEBB, Defendant-Appellant.

No. 671

93-LW-4527 (4th)

Court of Appeals of Ohio, Fourth District Jackson

November 24, 1993

COUNSEL FOR APPELLANT:^[1] Stephen C. Rodeheffer, 622 Sixth Street, Portsmouth, Ohio 45662.

COUNSEL FOR APPELLEE: Susan E. Ashbrook, Assistant Attorney General Environmental Enforcement Section, 30 East Broad Street Columbus, Ohio 43266-0410.

DECISION

ABELE J.

This is an appeal from a judgment of conviction and sentence entered by the Jackson County Common Pleas Court. The jury found Bernard L. Webb, defendant below and appellant herein guilty of ten counts of open burning in violation of R.C. 3734.03 and ten counts of criminal endangering in violation of R.C. 2909.06.

Appellant assigns the following errors:

FIRST ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN ALLOWING THE STATE'S EXPERT WITNESS, WILLIAM HAYES, TO GIVE AN OPINION REGARDING ULTIMATE LEGAL ISSUES IN THE CASE."

SECOND ASSIGNMENT OF ERROR:

"THE TRIAL COURT COMMITTED ERROR IN FAILING TO FULLY INSTRUCT THE JURY ON THE DEFINITION OF DEMOLITION DEBRIS AND, CONSEQUENTLY, FAILED TO ACCURATELY DEFINE THE TERM 'SOLID WASTE' FOR THE JURY."

THIRD ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN PERMITTING THE PROSECUTION TO READ THE GRAND JURY TRANSCRIPT OF A CO-DEFENDANT WHO DID NOT TAKE THE WITNESS STAND CONTRARY TO BRUTON V. UNITED STATES AND EVIDENCE RULE 802."

FOURTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN PERMITTING THE STATE'S TOXICOLOGIST TO EXPRESS AN OPINION THAT WAS NOT SUPPORTED BY FACTS IN EVIDENCE OR KNOWN TO HIM, AND THAT WAS NOT EXPRESSED TO WITHIN AN ADEQUATE DEGREE OF SCIENTIFIC PROBABILITY OR CERTAINTY."

FIFTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTION TO INTRODUCE EXHIBIT 29 INTO EVIDENCE."

SIXTH ASSIGNMENT OF ERROR:

"THE TRIAL COURT ERRED IN FAILING TO GRANT THE APPELLANT'S MOTION FOR JUDGMENT OF ACQUITTAL AS TO THE CRIMINAL ENDANGERING COUNTS."

During the fall of 1988 through the summer of 1989, appellant conducted a copper recovery business by openly burning insulated copper wire at a remote site on Mohawk Coal Road in rural Jackson County. Appellant and his employees drove to various scrap companies in the Cleveland area, purchased insulated copper wire and brought it back to the Mohawk Coal Road property. During the day, appellant's employees sorted the wire into piles according to the thickness of the copper. At approximately 11:00 p.m., the employees returned to the sites and doused the piles with a lighting accelerant and set the wire afire. The fire burned the insulation off the wire, yielding bare copper. After the copper cooled, the employees collected the copper and appellant sold it to scrap companies at a higher price than the original purchase price. Appellant regularly repeated this process.

On August 18, 1989, the Jackson County Grand Jury returned indictments against both appellant and a codefendant, Billy J. Simmonds, for ten counts of open burning and ten counts of criminal endangering. The court conducted a jury trial on January 7 through January 14, 1991. The court granted Simmonds's Crim.R. 29 motion for acquittal. At the conclusion of the trial, the jury found appellant guilty of the ten counts of open burning and the ten counts of criminal endangering.

Appellant filed a timely notice of appeal.

I

In his first assignment of error, appellant asserts the trial court erred by admitting into evidence the expect opinion of William Hayes, an attorney with the Ohio Environmental Protection Agency (EPA), on whether the copper wire burned by appellant was solid waste or demolition debris. Appellant argues that because R.C. 3734.01(E) exempts demolition debris from the solid waste disposal regulations, the characterization of the wire is an ultimate issue in the case. Appellant argues that: (1) an expert witness may not give an opinion on an ultimate issue; and (2) the expert witness's testimony usurped the court's role in providing the law to the fact-finder.

Initially, we note the admission or exclusion of relevant evidence is within the sound discretion of the trial court and its decision to admit or exclude such evidence cannot be reversed absent a showing of an abuse of that discretion. State v. Combs (1991), 62 Ohio St.3d 278, 581 N.E.2d 1071; State v. Finnerty (1989), 45 Ohio St.3d 104, 543 N.E.2d 1233; State v. Sage (1987), 31 Ohio St.3d 173, 510 N.E.2d 343. In State v. Montgomery (1991), 61 Ohio St.3d 410, 413, 575 N.E.2d 167, 171, the court followed established law on what constitutes an abuse of discretion:

"The term `abuse of discretion' `* * * connotes more than an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. * * *' State v. Adams (1980), 62 Ohio St.2d 151 [16 O.O.3d 169, 404 N.E.2d 144] * * *."

See, also, State v. Xie (1992), 62 Ohio St.3d 521, 584 N.E.2d 715. When applying the abuse of discretion standards a reviewing court is not free to substitute its judgment for that of the trial court. In re Jane Doe 1 (1991), 57 Ohio St.3d 135, 566 N.E.2d 1181, citing Berk v. Matthews (1990), 53 Ohio St.3d 161, 359 N.E.2d 1301.

Evid.R. 702 provides:

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 an opinion or otherwise.

Testimony in the form of an opinion or inference otherwise admissible is not objectionable solely because it embraces an ultimate issue to be decided by the trier of fact.

Thus, in Ohio, testimony on an ultimate issue is not per se inadmissible. Bostic v. Connor (1988), 37 Ohio St.3d 144, 524 N.E.2d 881; State v. Stirnkorb (1990), 63 Ohio App.3d 778, 580 N.E.2d 69. In Cleveland v. Cleveland Electric Illuminating Co. (1983) 4 Ohio St.3d 184, 448 N.E.2d 130, paragraph three of the syllabus, the Ohio Supreme Court held:

"The testimony of air pollution inspectors, as expert witnesses, may include the ultimate issue of fact in the form of a conclusory opinion concerning the existence or non-existence of an element Of the criminal offense to be proven beyond a reasonable doubt."

To be admissible, expert testimony must be relevant and must assist the trier of fact in determining a fact in issue. Evid.R. 702. Generally, an expert witness's interpretation of the law should not be permitted, as that is within the sole province of the court. Wagenheim v. Alexander Grant & Co. (1983), 19 Ohio App.3d 7, 19, 482 N.E.2d 955, 969. However, conclusory testimony is admissible where the court finds that the trier of fact cannot be sufficiently familiar with the facts and therefore cannot use them to draw inferences. In Stirnkorb at 787, 580 N.E.2d at 75, the court wrote:

"For his fifth assignment of error, appellant argues that the trial court erred in admitting and relying upon inadmissible opinion testimony. Appellant refers to the trial court's admission and adoption of testimony by EPA 'Administrator Richard Shank that rainwater which contacts hazardous waste becomes itself hazardous' waste and that water appellant ordered to be pumped was therefore hazardous. Appellant argues that this testimony asserts matters of law which were the province of the court to determine.

The Supreme Court has determined that decisions regarding the admissibility of expert testimony must be left in the hands of the trial court, which must decide on a case-by-case basis whether expert testimony is relevant and will assist the trier of fact. State v. Williams (1983), 4 Ohio St.3d 53, 4 OBR 144, 446 N.E.2d 444, syllabus. In so doing, the trial court is guided by the Rules of Evidence, which merely stipulate that expert testimony must be relevant and must assist the trier of fact in determining a fact in issue. Id. at 58, 4 OBR at 148, 446 N.E.2d at 447.

We believe that Shank's testimony reasonably met this criterion. Moreover, testimony on an ultimate issue is not inadmissible in Ohio, and the decision whether to admit is within the sound discretion of the trial court. Bostic v. Connor (1988), 37 Ohio St.3d 144, 148, 524 N.E.2d 881, 885. Where the trier of fact cannot be said to be sufficiently familiar with the facts so as to be able to draw inferences from them, conclusory testimony is admissible."

See, also, State Auto. Mut. Ins. Co, v. Chrysler Corp. (1973), 36 Ohio St.2d 151, 304 N.E.2d 891.

We must give due deference to an administrative interpretation formulated by an executive agency when the Ohio General Assembly has delegated the responsibility of implementing the legislative command to the agency and the agency has accumulated substantial expertise. See State ex rel. Kroger Co. v. Stover (1987), 31 Ohio St.3d 229, 510 N.E.2d 356; Swallow v. Industrial Comm. of Ohio (1988), 36 Ohio St.3d 55, 521 N.E.2d 778.

In the case sub judice, we find no abuse of discretion. Hayes's testimony included the Ohio EPA's interpretation of the terms "solid waste," "demolition debris," "junk yard," "scrap metal processing facility," and "hazardous waste" from R.C. Chapter 3734 and Ohio Adm.Code Chapter 3745. Hayes also offered his opinion on how these terms would be applied to various hypothetical situations similar to the facts of the instant case. The definitions of the terms contained in these statutes and regulations are quite complicated and confusing and, thus Hayes's testimony was relevant, assisted the trier of fact in determining a fact in issue, and explained "the meaning of technical terms, phrases or words of art." See State v. Walsh (1979), 66 Ohio App.2d 85, 420 N.E.2d 1013.Appellant further asserts that the trial court's cautionary...