City of Columbus, Plaintiff-Appellee, v. Victoya Swanson, Defendant-Appellant.
No. 18AP-524 (M.C. No. 17TRC-116943)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
February 4, 2020
2020-Ohio-357
BRUNNER, J.
(REGULAR CALENDAR)
Rendered on February 4, 2020
On brief: Zach Klein, City Attorney, Bill R. Hedrick, and Orly Ahroni, for appellee. Argued: Orly Ahroni.
On brief: Jeremy A. Roth, for appellant. Argued: Jeremy A. Roth.
APPEAL from the Franklin County Municipal Court
BRUNNER, J.
{1} Defendant-appellant, Victoya Swanson, appeals from a judgment of the Franklin County Municipal Court entered on June 4, 2018 following a jury verdict, convicting Swanson of OVI according to
{2} It is undisputed that, on March 5, 2017, at approximately 2:30 a.m., a Franklin County Sheriff‘s Office patrol vehicle (an SUV) collided with the driver‘s side rear of a sedan driven by Swanson at the intersection of Cleveland Avenue and East Weber Road. Following an admission that Swanson had consumed some alcohol earlier in the evening, officers on the scene requested that she perform field sobriety tests and she agreed to do so. Following completion of the field sobriety tests, she was arrested and transported to the headquarters of the Columbus Police where she submitted to a breath test. The breath test result was 0.118.
{3} As a consequence of these undisputed facts, Swanson was issued a ticket charging that she ran a red light and operated a vehicle while under the influence of alcohol or with a forbidden concentration of alcohol in her system, in violation of
{4} On January 28, 2018, the prosecution sought a Daubert1 hearing to limit or entirely exclude the testimony of Swanson‘s proposed expert, Dr. Robert Belloto. (Jan. 26, 2018 Daubert Mot.) Swanson opposed the exclusion. (Feb. 4, 2018 Memo. in Opp.) On February 12, the trial court held a hearing on the matter. (Feb. 12, 2018 Hearing Tr., filed Aug. 17, 2018.)
{5} At the Daubert hearing, Dr. Belloto testified to his numerous degrees, considerable experience, publications, and presentations that qualified him to offer opinions on drugs (including alcohol) and the science of pharmacokinetics. Id. at 5-11; see
{6} Although Dr. Belloto offered some opinions in his report about the field sobriety tests administered to Swanson, whether or not she appeared drunk, and the reliability of breath testing in general, the defense conceded that it was not attempting to offer an expert opinion on those topics. Id. at 85-86. Even with that limitation, the trial court excluded Dr. Belloto as a witness entirely. It found that Dr. Belloto could qualify as an expert witness but stated that it found his testimony confusing and self-contradictory. Id. at 91-93. The trial court accordingly excluded the testimony under
{7} Approximately one month later, on March 20, 2018, Swanson filed a motion for leave to file another motion to suppress.4 (Mar. 20, 2018 Mot. for Leave.) By entry
{8} At trial, eight witnesses testified: the sheriff‘s deputy who hit Swanson‘s car; the officer who administered the field sobriety tests and transported Swanson; the officer who administered the breath test; an officer who first spoke to Swanson at the scene of the crash; Swanson‘s daughter; the prisoner being transported in the police vehicle involved in the collision; a new expert witness on Swanson‘s behalf; and Swanson herself. Because Swanson presents a number of assignments of error, including sufficiency of the evidence and manifest weight, a brief review of the testimony at trial is necessary.
{9} Deputy Daniel Adkins testified that he was traveling West on Weber Road on March 5, 2017, when a vehicle traveling South on Cleveland Avenue collided with him. (Tr. at 144-45.)5 He insisted that he had a green light and related that allegation to officers who arrived on the scene. (Tr. at 156, 159-60.) However, he admitted that the damage to his vehicle was on the front while the damage to Swanson‘s was on the rear driver‘s side. (Tr. at 156-57.) According to Adkins, a system-wide fault in the video recording service for the Sheriff‘s Office resulted in the accident not being recorded by the camera in his cruiser. (Tr. at 152-53.)
{10} Officer Harry “Brian” Dorsey, testified that he was working as a Driving Impaired Criminal Enforcement (“DICE“) officer on March 5, 2017 for the Columbus Police Department and that he was called to the scene. (Tr. at 164-66, 169-72.) He testified that Swanson smelled slightly of alcohol and had bloodshot glassy eyes when he encountered her. (Tr. at 172.) Dorsey said she was cooperative in taking the tests but admitted that she disclosed some problems with one eye and that, despite the cold conditions, she elected to take the tests barefoot (rather than in her high-heeled boots). (Tr. at 172, 183, 191.) He testified that he observed enough clues on all three standardized tests (Horizontal Gaze Nystagmus (“HGN“), One Leg Stand (“OLS“), and Walk and Turn (“WAT“)) to develop probable cause that Swanson was intoxicated. (Tr. at 185-208.) A video of the tests was also played for the jury. (Tr. at 175-77; City‘s Ex. 8 at 03:16:45-03:26:20.) Based on the poor performance on the tests and other circumstances, Officer Dorsey placed Swanson
{11} Dorsey testified that, after waiting 20 minutes and observing Swanson, another officer conducted the breath test. (Tr. at 216-17, 246-47, 258.) Swanson‘s result was 0.118. (Tr. at 253.) Swanson expressed surprise at the result and indicated that she was going to go to the hospital to request a blood draw with which to dispute the breath result. (Tr. at 254-255.) Dorsey offered to transport her to the hospital, but Swanson indicated that she would have a family member take her. Id.
{12} Officer Alan Doerfler testified next. He verified that he was a Columbus Police Officer, and certified to do breath testing at the relevant time. (Tr. at 262-64; City‘s Ex. 10.) He said he checked Swanson‘s mouth prior to the test and did not notice anything amiss. (Tr. at 275-76.) Had he seen any foreign object in her mouth he would have started the observation time over and not proceeded immediately with the test. (Tr. at 276-77.) He admitted that, before having Swanson take the test, the testing machine reported radio frequency interference, which, he said, happens if an officer forgets to turn his radio off before approaching the machine. (Tr. at 269, 277-78.) He also admitted that he did not personally observe Swanson for 20 minutes prior to the test and relied on Dorsey‘s observations to meet that criterion. (Tr. at 294-95.) But in the end, he said, everything appeared to work properly and a valid test result of 0.118 was obtained from Swanson. (Tr. at 278-80; City‘s Ex. 12.)
{13} The final officer to testify was Officer Edward Prime, of the Columbus Police. (Tr. at 308.) Prime testified that he interviewed Swanson at the scene and noted glassy bloodshot eyes as well as an odor of alcohol. (Tr. at 312.) He said she admitted to having consumed a “few” drinks and consented to perform field sobriety tests. Id. He agreed that he asked her about whether she was injured but indicated that he did not remember her response. (Tr. at 321-22.)
{14} Swanson‘s daughter was the first witness to testify for the defense. (Tr. at 330.) She testified that she was with her mother on the night of the collision and that they
{15} The next witness to testify for the defense was Jamal Yusuf, the prisoner being transported by Deputy Adkins at the time of the collision. (Tr. at 348.) Yusuf testified that he was handcuffed in the back seat of the sheriff‘s SUV at the time of the accident. (Tr. at 353-54.) He said that he could see the traffic signal through the mesh divider between the front and rear seats and the light was red in their direction when they entered the intersection. (Tr. at 358, 363-64.) After the accident, the police took him to the hospital, but no one asked him what happened. (Tr. at 359.) Yusuf admitted that he was recently released from prison where he had been incarcerated for a parole violation in connection with a prior conviction for robbery. (Tr. at 351-52.)
{16} Swanson testified next. (Tr. at 373.) Swanson testified that she had approximately eight ounces of wine with some fruit in it at around 9 p.m. and then fell asleep watching television. (Tr. at 379-84.) She woke up some time later and decided to go out dancing, ultimately leaving the house at approximately 2:30 a.m. (Tr. at 384.) Swanson said that as she drove through a green light, Adkins’ cruiser, not running lights or siren, hit her on the driver‘s side near the back bumper, totaling her car. (Tr. at 413-15.) She said that she told officers and medics that her back and knee hurt but declined to be transported to the hospital because she was concerned about the cost of the ambulance ride and preferred to have her boyfriend drive her (which he later did). (Tr. at 416-19.)
{17} Swanson testified that she sometimes wears decorative covers on her lower teeth known as “grillz,” and wore them when she drank the glass of wine. (Tr. at 388, 392.) She also testified that she suffers from reflux and belching, that she spit up a bit shortly after the accident, and that she then chewed gum to get the taste out of her mouth. (Tr. at 405-07, 422-23.) While she was talking to the medics, she removed her grillz but later put them back in after being patted down incident to arrest and left them in for the remainder of the night, including during the breath test. (Tr. at 423-24, 429-30, 437-38.) She testified that Officer Doerfler did not check her mouth before administering the test. (Tr. at 436-37.) She also related that she was having reflux and burping problems that evening,
{18} She stated that she was surprised by the breath test result and went to the hospital to request a blood draw test to dispute the breath test. (Tr. at 438.) However, the personnel at the hospital refused to do the testing because she had not been brought in by an officer and they did not see signs that she was intoxicated. (Tr. at 439.)
{19} Before the final witness testified, the parties stipulated that, at the time of the incident, Swanson weighed 162 pounds. (Tr. at 495.) Based on that stipulation, and a lengthy hypothetical posed to him, an expert witness, Dr. Harry Plotnick, testified for the defense. (Tr. at 502, 508-10.) Dr. Plotnick, who was qualified as an expert on the effects of alcohol on the human body and the measurement and prediction thereof, computed a blood alcohol level based on Swanson‘s weight, sex, age, and the supposition that she had an 8-ounce glass of wine at approximately 9:40 p.m. (Tr. at 510-11.) In reviewing his computation for the jury, Dr. Plotnick realized that he erroneously assumed that Swanson was tested about two hours earlier than the actual test time. (Tr. at 511-15.) However, he said the only impact that error would have had is that Swanson‘s calculated alcohol level would have been even lower two hours later. Id. In short, the expert testified that the amount measured by the breath testing equipment was substantially higher than you would expect to see in a 164-pound6 female who had a single 8-ounce glass of wine more than 6 hours before. (Tr. at 510-15.)
{20} Assuming the testing machine was working properly, there were, he said, two possible explanations for the high reading: either there was some source of alcohol entering the breath machine other than the person‘s lung air or the person lied about how much she had to drink. (Tr. at 515-16.) Initially, Dr. Plotnick indicated that alcohol trapped in the mouth through the presence of a foreign object could be such a source and so too could air burped from the stomach to comingle with lung air. (Tr. at 516.) However, after cross-examination, he admitted that if the grillz were removed at some point between drinking and the test, his opinion as to one of those causes would be altered. (Tr. at 525.) He then admitted on redirect that he did not think that belching or burping up stomach air, would
{21} Ultimately, based on this and the evidence en toto introduced and admitted at trial, the jury found Swanson “not guilty” of driving while under the influence of alcohol under
{22} Swanson now appeals.
II. ASSIGNMENTS OF ERROR
{23} Swanson assigns four errors for our review:
- The trial court abused its discretion when it sustained the [City]‘s Motion in Limine to exclude Appellant‘s defense expert testimony from Dr. Belloto pursuant to
Evid. R. 403(a) . - The trial court abused its discretion when it overruled Appellant‘s March 20, 2018 motion for leave to file motion to suppress.
- Appellant did not receive effective assistance of counsel in violation of her rights under the Ohio Constitution and the 14th and 6[th] amendments to the United States Constitution.
- The trial court erred when it entered judgment against Appellant when the evidence was insufficient to sustain the convictions and was against the manifest weight of the evidence.
III. DISCUSSION
A. First Assignment of Error – Whether the Trial Court Erred in Excluding the Testimony of Dr. Belloto
{24} Generally, “[t]he admission of evidence is within the discretion of the trial court.” Brown v. Dept. of Rehab. & Corr., 10th Dist. No. 13AP-804, 2014-Ohio-1810, ¶ 36, citing Banford v. Aldrich Chem. Co., 126 Ohio St.3d 210, 2010-Ohio-2470, ¶ 38. “Trial courts have broad discretion in determining the admissibility of expert testimony, subject to review for an abuse of discretion.” Terry v. Caputo, 115 Ohio St.3d 351, 2007-Ohio-5023,
{25} In this case, the trial court properly referenced
{26} As did the trial court, we reviewed Dr. Belloto‘s testimony and written report and we recognize bases for concern: Dr. Belloto did not disclose his data, his assumptions, or his methodology in either his testimony or his report. (Feb. 12, 2018 Hearing Tr. at 23-24, 27-30, 31-34, 36-37, 40; City‘s Hearing Ex. 1.) Instead, he testified multiple times that such were merely “impl[ied]” by his conclusions. (Feb. 12, 2018 Hearing Tr. at 24-26, 28-31.) We are unable to make the implications Dr. Belloto suggests and apparently neither was the trial court. Id. at 91-93. We hold that the trial court did not abuse its discretion in factually finding that Dr. Belloto‘s testimony posed a substantial danger of confusion of the issues. Given that circumstance, the trial court did not err as a matter of law in applying or interpreting
{27} We overrule Swanson‘s first assignment of error.
{28} The Ohio Rules of Criminal Procedure recognize that a defendant may raise suppression as an issue before trial.
(D) Motion date. All pretrial motions * * * shall be made within thirty-five days after arraignment or seven days before trial, whichever is earlier. The court in the interest of justice may extend the time for making pretrial motions.
{29} As to the second motion to suppress, no argument was made that it could not have been filed sooner (and one was filed previously but was withdrawn). (Mar. 20, 2018 Mot. for Leave at 2; Apr. 27, 2017 Mot. to Suppress.) Rather, in the second motion to suppress, successor counsel had reviewed the case and essentially reconsidered predecessor counsel‘s decision to withdraw the motion to suppress. (Mar. 20, 2018 Mot. for Leave at 2.) The second motion contained no explanation of what the particular issue was that revived the desire to file a motion to suppress. Id. Nor was there argument in support of the motion for leave that the issue was not or could not have been asserted in the previous but withdrawn motion to suppress. Id. In short, the motion for leave to file the second motion to suppress did not provide a basis for the trial court to conclude that extending the time in which to file a motion to suppress would have been in the “interest[s] of justice.”
{30} We overrule Swanson‘s second assignment of error.
C. Third Assignment of Error – Whether Swanson Received Constitutionally Effective Assistance of Counsel
{31} Ineffective assistance of counsel claims are assessed using the two-pronged approach set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). “First, the defendant must show that counsel‘s performance was deficient. *** Second, the defendant must show that the deficient performance prejudiced the defense.” Id. at 687. “In evaluating counsel‘s performance, ‘a court must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” ’ ” State v. Roush, 10th Dist. No. 12AP-201, 2013-Ohio-3162, ¶ 37, quoting Strickland at 689, quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955). ” ‘To show that a defendant has been prejudiced by counsel‘s deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel‘s errors, the result of the trial would have been different.’ ” State v. Griffin, 10th Dist. No. 10AP-902, 2011-Ohio-4250, ¶ 42, quoting State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph three of the syllabus; see also Strickland at 694.
{32} Swanson argues that this standard is met in this case by her first counsel‘s decision to file and then withdraw the first motion to suppress. (Swanson‘s Brief at 22-23.) Essentially, Swanson argues that she was only convicted of driving with a forbidden level of alcohol on her breath and, thus, withdrawing a motion that might have resulted in the exclusion of the breath test was surely prejudicial and strategically unjustifiable. Id. However, those arguments are premised on the assumption that a motion to suppress the breath test would likely have been successful. The appellate record does not justify this premise.
{33} The initial suppression motion asserted unspecified general failures to comply with administrative code provisions governing the administration of breath tests and successor trial counsel did not file (even to preserve it for the appellate record) an updated motion. (Apr. 27, 2017 Mot. to Suppress at 3-5; Mar. 20, 2018 Mot. for Leave.)
{34} Finding no basis on which to find that counsel was ineffective, we overrule Swanson‘s third assignment of error.
D. Fourth Assignment of Error – Whether Swanson‘s Conviction was Insufficiently Supported or Against the Manifest Weight of the Evidence
{35} In her fourth assignment of error, Swanson alleges that her conviction was not supported by sufficient evidence and was against the manifest weight of the evidence. The Supreme Court of Ohio has “carefully distinguished the terms ‘sufficiency’ and ‘weight’ ***, declaring that ‘manifest weight’ and ‘legal sufficiency’ are ‘both quantitatively and qualitatively different.’ ” Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 10, quoting State v. Thompkins, 78 Ohio St.3d 380 (1997), paragraph two of the syllabus.
Weight of the evidence concerns “the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. * * * Weight is not a question of mathematics, but depends on its effect in inducing belief.”
(Emphasis sic.) Eastley at ¶ 12, quoting Thompkins, 78 Ohio St.3d at 387; Black‘s Law Dictionary 1594 (6th Ed.1990). In manifest weight analysis, “the appellate court sits as a ‘thirteenth juror’ and disagrees with the jury‘s resolution of the conflicting testimony.” Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982). ” ‘The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the
{36} In contrast, sufficiency is:
“[A] term of art meaning that legal standard which is applied to determine whether the case may go to the jury or whether the evidence is legally sufficient to support the jury verdict as a matter of law.” * * * In essence, sufficiency is a test of adequacy. Whether the evidence is legally sufficient to sustain a verdict is a question of law.
Eastley at ¶ 11, quoting Thompkins at 386, quoting Black‘s at 1433. “In reviewing a record for sufficiency, ‘[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.’ ” State v. Monroe, 105 Ohio St.3d 384, 2005-Ohio-2282, ¶ 47, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
{37} The City of Columbus’ OVI ordinance provides, in relevant part:
(A) (1) No person shall operate any vehicle, streetcar, or trackless trolley within this City, if, at the time of the operation, any of the following apply:
* * *
(d) The person has a concentration of eight-hundredths (0.08) of one (1) gram or more but less than seventeen-hundredths (0.17) of one (1) gram by weight of alcohol per two hundred ten (210) liters of the person‘s breath.
{38} In this case, although there was a radio frequency interference readout on the breath test machine, no evidence at trial raised any serious question as to the reliability of the machine itself and it ultimately produced a facially valid result. (Tr. at 269, 277-78; City Ex. 12.) The officers testified that they waited the requisite interval and checked Swanson‘s
{39} Given the facts as related here, Swanson‘s conviction under
IV. CONCLUSION
{40} We do not find that the trial court erred legally or abused its discretion in excluding the testimony of Dr. Belloto or in refusing to permit a successive motion to suppress to be filed after the first was withdrawn. We also do not find the record sufficient to conclude that trial counsel rendered ineffective assistance in withdrawing the first motion to suppress. Finally, based on the evidence introduced at trial, Swanson‘s conviction was sufficiently supported and not against the manifest weight of the evidence. We therefore overrule all of Swanson‘s assignments of error and affirm the judgment of the Franklin County Municipal Court.
BEATTY BLUNT and NELSON, JJ., concur.
Judgment affirmed.