State v. May

• Decision Date: 16 December 2011
• Docket Number: No. 10 CO 23.,10 CO 23.
• Citation: 2011 -Ohio- 6637,970 N.E.2d 1029
• Parties: The STATE of Ohio, Appellee, v. MAY, Appellant.
• Court: Ohio Court of Appeals

970 N.E.2d 1029

2011 -Ohio- 6637

The STATE of Ohio, Appellee,

v.MAY, Appellant.

No. 10 CO 23.

Court of Appeals of Ohio, Seventh District, Columbiana County.

Dec. 16, 2011.

Robert L. Herron, Columbiana Prosecuting Attorney, and Virginia Barborak, Assistant Prosecuting Attorney, for appellee.

Douglas A. King, for appellant.

Mary DeGenaro, Gene Donofrio, Joseph J. Vukovich, JJ.

OPINION

DeGENARO, Judge.

{¶ 1} Defendant-appellant, Terrance L. May Jr., appeals the June 16, 2010 judgment of the Columbiana County Municipal Court convicting him of one count of operating a vehicle under the influence of alcohol (“OVI”) following a jury trial. May raises six arguments. First, he claims that the trooper lacked probable cause to arrest him, and therefore the trial court erred in denying his motion to suppress. Second, he contends that the trial court improperly considered his refusal to take the field sobriety and breathalyzer tests as part of its probable-cause determination. Third, he claims that the trial court improperly admitted hearsay and prior-bad-acts evidence during trial. Fourth, he contends that he received an unfair trial due to misconduct by the prosecutor. Fifth, he claims that his conviction was against the sufficiency and the weight of the evidence. Finally, he asserts that even if some of these errors are nonreversible individually, this court should reverse pursuant to the cumulative-error doctrine.

{¶ 2} Upon review, there was ample evidence of probable cause, and the trial court's consideration of May's refusal to take the breathalyzer tests as part of its probable-cause determination is harmless error. However, the trial court erred by improperly admitting hearsay evidence in violation of May's right to confront the witnesses against him, and we cannot conclude that this error is harmless beyond a reasonable doubt. This resolution moots the balance of May's assignments of error. But because May's conviction is supported by sufficient evidence, both admissible and not, double jeopardy does not attach and May can be retried. Accordingly, the judgment of the trial court is reversed and the cause remanded for a new trial.

Facts and Procedural History

{¶ 3} On September 12, 2009, May was driving on State Route 558 in Columbiana County. The weather was clear, it was daylight, and there were no adverse road conditions. May lost control of his vehicle, crossed the center lane, hit a utility pole, and ultimately smashed into a garage. The Highway Patrol received a report of the crash and dispatched Trooper Barry Thompson, who arrived approximately 18 minutes later to find May standing on private property, drinking a beer. The trooper ordered May to stop drinking the beer, which he did. However, at a later point during the encounter, May picked up the beer and began consuming again, resulting in an admonition from the trooper. May maintained that he did not drink any alcohol before the crash, but consumed three to four beers afterwards. May refused to take the field sobriety tests, but based upon the trooper's observations, which included May's red, glassy eyes, slurred speech, demeanor, inability to follow directions, and the circumstances of the accident, May was arrested for OVI. Once at the trooper post, May refused a breathalyzer test.

{¶ 4} May was charged with a first-offense OVI (R.C. 4511.19(A)(1)), a first-degree misdemeanor, and failure to control (R.C. 4511.02), a minor misdemeanor. An additional charge of obstruction of justice was subsequently dismissed without prejudice by the state because it had been brought under the wrong statute.

{¶ 5} May filed a motion to suppress, alleging that the trooper lacked probable cause to arrest him. During a suppression hearing, the following evidence was adduced. Trooper Thompson, a 12–year veteran of the Highway Patrol, testified that on September 12, 2009, at 6:44 p.m., he was dispatched to a crash and arrived at the scene at 7:02 p.m., 18 minutes after receiving the call. Fire department and EMS personnel were already there.

{¶ 6} Trooper Thompson noticed a vehicle that had been travelling east on State Route 558 that had gone off the left side of the road and slid sideways into a garage, striking a van that was inside. The road conditions were dry and clear, and the point where the crash occurred followed a bend and slight downgrade in the road. The trooper determined that the driver was May and his passenger was Marcie McManis.

{¶ 7} The trooper saw May standing in the driveway of the adjoining property, drinking a Busch beer. He ordered May to stop drinking, and May complied at that time. Upon speaking with May, the trooper noted an “apparent” odor of alcohol, which he characterized as “moderate” and “very evident,” on May's breath. He also noticed that May's eyes were red and glassy and that at times May's speech was difficult to understand, i.e., “it was slurred and it was very slow.” He said it was “very apparent just by looking at the gentleman and speaking with him that he was intoxicated, his demeanor and the way he carried himself.”

{¶ 8} May asked to use the restroom of the property owner and when he returned outside he picked up his beer and began drinking again. The trooper ordered May to cease, brought him back to his cruiser, and resumed the interview. At that point, May's beer was approximately half empty. The trooper further testified: “In speaking with witnesses at the scene, [they] said that when I arrived he was on his second beer.” By contrast, May told the trooper that he was on his third or fourth beer since the crash and denied drinking any alcohol beforehand. The trooper observed a 12–pack of Busch beer inside of May's car, but there was no testimony regarding how many were empty or full.

{¶ 9} May's explanation for the loss of control of the vehicle was that he “was tired.” He told Trooper Thompson that he was “probably” going the speed limit. However, the trooper opined that May was likely speeding, going too fast to maintain control around the curve in the road.

{¶ 10} According to the trooper, May refused the field sobriety tests that were offered. May was then placed under arrest for OVI due to “the crash, the inability to operate the vehicle with reasonable control, [ ] the red, glassy eyes, his speech, [and] his demeanor.”

{¶ 11} On cross, Trooper Thompson admitted that he did not determine how many cans of beer inside of May's car were empty or full. He testified that May was polite and cooperative throughout the encounter, except when he resumed drinking the beer after being ordered to stop. Although May did not have major difficulty walking, the trooper noted that May did “stumble a little bit.”

{¶ 12} He said the witnesses at the scene declined to make written statements and that he did not take their names. May's passenger also declined to give a statement. There were no injuries to either May or his passenger.

{¶ 13} Trooper Thompson testified that he had received training in alcohol detection and apprehension, including observing for problems with divided attention skills and answering questions. He noted that May filled out a form improperly after being given directions; specifically, May signed his name where he was supposed to print it and failed to fill out his address.

{¶ 14} McManis, May's passenger at the time of the accident, testified that she was with May for most of the day prior to the accident and that May had not been drinking. She maintained that she never would have gotten into a car with him had he been drinking. She stated that they crashed because May was going too fast around the bend. She testified that EMT and fire personnel arrived on the scene first and told May to stop drinking but he continued anyways.

{¶ 15} The trial court denied the suppression motion and the case proceeded to a jury trial. The following evidence was adduced at trial.

{¶ 16} Trooper Thompson's testimony at trial largely mirrored that from the suppression hearing. However, when he started to testify about what the witnesses at the scene told him about May's postaccident alcohol consumption, defense counsel lodged an objection on hearsay grounds that was overruled by the trial court.

{¶ 17} In addition, Trooper Thompson testified more extensively about his experience handling “thousands” of traffic accidents, along with his training in alcohol detection and prosecution, which included controlled-drinking trials where a volunteer drinks a controlled amount of alcohol during a period of time and the class observes that person and performs field sobriety tests on him. From this training, for which he had a certificate, the trooper learned that when someone drinks alcohol, it does not affect the person immediately. Rather, the alcohol takes time to absorb into the bloodstream. The trooper stated: “It's going to take a little bit of time to fully get in your blood system, to start seeing the glassy eyes, the divided attention skills * * *, or the slurred speech or the other things that we're looking for.” Trooper Thompson testified that based on his training, May's behavior after the crash was inconsistent with someone who had just consumed “a drink or two” in the past 20 minutes. He testified that the time of the crash as 6:45 p.m. was confirmed by May at the scene. Trooper Thompson stated on cross-examination that although he could not tell the exact level that was in May's system, he could say “for sure that [May] was consuming prior to the crash.”

{¶ 18} Further, Trooper Thompson elaborated on the condition of the road, stating that the curve was not a particularly tough one to negotiate. And he noted that it was highly unusual behavior for someone to begin drinking after a traffic accident. A dash-camera video of the scene was played for the jury and admitted into evidence. The audio quality was poor, but the video did show May drinking a beer when Trooper Thompson arrived. In addition, Trooper Thompson's...