Columbus v. Burgess
2021 Ohio 2197
| Ohio Ct. App. | 2021Background
- On June 3, 2018 Burgess was stopped after failing to stop at a red light and committing marked-lane violations; she was charged with OVI (first-degree misdemeanor) and two minor traffic offenses.
- Pretrial, the municipal court suppressed non-scientific field sobriety tests but denied exclusion of volunteered statements about a prior OVI arrest; a motion in limine to bar references to the prior OVI was partially granted and partially denied.
- Officer Nogay observed odor of alcohol, slow/deliberate responses, and an unfocused gaze; Burgess admitted consuming a beer at a bar and drank a Red Bull during the stop.
- Officer Nogay administered HGN (6/6 clues), vertical nystagmus, walk-and-turn (3 clues), and one-leg-stand (2 clues); Burgess refused breath testing and was arrested.
- At trial defense cross-examination elicited that Burgess had a prior OVI arrest about 30 days earlier; cruiser video also contained her remarks about the prior arrest; no contemporaneous objection was made to the officer’s testimony and the court instructed the jury limiting use of the evidence.
- The jury convicted Burgess on all counts; the municipal court sentenced her. On appeal the Tenth District affirmed, holding admission of testimony about the prior arrest was not plain error given the overwhelming evidence and the limiting instruction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of testimony about defendant's prior OVI arrest | Testimony was permissible to explain officer observations and context of stop | Prior arrest evidence was prejudicial and should have been excluded (motion in limine) | Admission was not plain error; evidence did not affect outcome given overwhelming proof and limiting instruction |
| Standard of review when motion in limine partially denied and no contemporaneous objection | Evidence admitted lawfully; any error was waived by failure to renew objection | Court should have allowed proof that prior charge resulted in acquittal; failure to admit that was erroneous | Review under Crim.R. 52(B) plain-error standard; no plain error found because outcome would not have differed |
Key Cases Cited
- State v. Diar, 120 Ohio St.3d 460 (Ohio 2008) (failure to renew objection after motion in limine denial waives all but plain error)
- Gable v. Gates Mills, 103 Ohio St.3d 449 (Ohio 2004) (motion-in-limine waiver principles)
- State v. Barnes, 94 Ohio St.3d 21 (Ohio 2002) (plain-error standard under Crim.R. 52(B))
- State v. Lindsey, 87 Ohio St.3d 479 (Ohio 2000) (plain error and Rule 52(B) discussion)
- State v. Tench, 156 Ohio St.3d 85 (Ohio 2018) (overwhelming evidence can negate plain-error claim for admission of other-acts evidence)
- State v. Long, 53 Ohio St.2d 91 (Ohio 1978) (plain-error relief is narrow and applied with utmost caution)