CITY OF EAST CLEVELAND v. ANITA M. HARRIS
No. 109404
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
March 25, 2021
2021-Ohio-952
MARY J. BOYLE, A.J.
Criminal Appeal from the East Cleveland Municipal Court Case No. 18 TRC 021592
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 25, 2021
Appearances:
Willa Hemmons, City of East Cleveland Director of Law, and Heather McCollough, Assistant Director of Law, for appellee.
Christopher R. Fortunato, for appellant.
MARY J. BOYLE, A.J.:
{¶ 1} Defendant-appellant, Anita M. Harris, appeals her convictions. She raises four assignments of error for our review:
- The trial court committed plain error when it failed to swear in [Sergeant] Kaleal to give his testimony during trial.
The trial court‘s verdict was against the sufficiency of the evidence. - Appellant‘s trial counsel was ineffective for failing to object to unsworn testimony.
- The trial court erred when it did not grant appellant‘s motion for judgment of acquittal in toto at the close of appellee‘s case.
{¶ 2} Finding no merit to her assignments of error, we affirm Harris‘s convictions.
I. Procedural History and Factual Background
{¶ 3} In July 2018, plaintiff-appellee, the city of East Cleveland, charged Harris with the following: (1) driving under the influence (“DUI“) in violation of East Cleveland Codified Ordinances (“E.C.O.“)
{¶ 5} On remand, in September 2019, Harris filed a motion to dismiss the seatbelt charge and the DUI charge alleging that her blood-alcohol concentration exceeded 0.10 percent. She also filed a motion to suppress all evidence arising from her traffic stop, arguing that the police had no probable cause to stop her.
{¶ 6} On December 6, 2019, the trial court held a hearing on Harris‘s motion to dismiss and motion to suppress. Harris first argued her motion to dismiss, and the trial court denied it. The trial court then heard testimony regarding Harris‘s motion to suppress.
{¶ 7} The trial court administered the oath to Sergeant Steven Kaleal, an investigator with the East Cleveland Police Department. He testified that on July 15, 2018, he received a radio call that a car was driving on the wrong side of Euclid Avenue near Lakeview Road in East Cleveland and that the car had struck another vehicle. As Sergeant Kaleal approached that intersection minutes later, he observed a car traveling “at a slow speed” on Euclid Avenue, going only 10 m.p.h. and heading east in the westbound lane. He drove behind the car and turned on his overhead lights and sirens. In response, the car veered to the right, crossed the double yellow lines, and stopped in the eastbound curb lane. Sergeant Kaleal approached the car,
{¶ 8} Sergeant Kaleal testified that Harris‘s breath had a “strong odor of alcohol,” and she told him she had just left Tucker‘s Casino. He observed that she was not wearing her seatbelt, and he asked her to exit the car. He said that she could not walk without holding his arm, and he “felt like she was unable to do the [field sobriety] tests.” He asked her if she had any medical issues that would impact her ability to complete the field sobriety tests, and she said she did not. Sergeant Kaleal described Harris as “uncooperative” and explained that she kept yelling that she had been at Tucker‘s celebrating with her mother. He testified that he put her in the back of his police car for both of their safety. He told her she was under arrest, read her the Miranda rights, and took her to a hospital for a urine test. He explained that at the hospital, Harris yelled profanities at him and the hospital staff, and she refused to take the urine test. Sergeant Kaleal said he read the BMV-2255 form to her, so she understood the penalties for refusing the urine test, and Harris refused to sign the form.
{¶ 9} On cross-examination, Sergeant Kaleal agreed that Harris‘s car did not appear to be damaged, despite the radio call that her car was on the wrong side of the road and had hit another vehicle. He confirmed that his police report differed from his testimony because the report (1) states he did not ask Harris if she had any medical issues until after he arrested her, (2) does not specify that Harris was driving
{¶ 10} The trial court also administered the oath to Investigator Beeman, who testified that he worked for the East Cleveland Police Department. On July 15, 2018, he arrived at the intersection of Euclid Avenue and Lakeview Road in East Cleveland where Sergeant Kaleal had stopped Harris. When Investigator Beeman arrived on the scene, Harris was in the back of Sergeant Kaleal‘s police car “for her safety,” and she was screaming, “Tucker‘s.” He recognized “Tucker‘s” as the name of a bar in East Cleveland. Investigator Beeman confirmed that he arrived after Sergeant Kaleal had completed the traffic stop, and he had no other observations regarding Harris.
{¶ 11} The prosecutor and Harris‘s counsel made closing arguments regarding the suppression motion, and the trial court denied the motion.
{¶ 12} The trial court then immediately proceeded to trial on the charges against Harris. The prosecutor called Sergeant Kaleal to testify, and the parties stipulated to the location of the traffic stop and that Sergeant Kaleal had already identified Harris. Sergeant Kaleal repeated his prior testimony regarding the traffic stop. He added that he had asked Harris how many drinks she had and the last time she ate, and she would not answer his questions. He explained that he issued her a
{¶ 13} At the end of the state‘s case, Harris moved for a
{¶ 14} After closing arguments, the trial court found Harris guilty of driving on the wrong side of the road, not wearing her seatbelt, and DUI. The trial court imposed a fine of $100.00 for driving on the wrong side of the road, $30.00 for not wearing a seatbelt, and $1,000.00 for DUI, with $325.00 suspended. The trial court imposed court costs, 12 months of probation with a drug and alcohol assessment, Alcoholics Anonymous classes with treatment if necessary, and 180 days in jail with 174 days suspended. The trial court also imposed a one-year driver‘s license suspension beginning July 15, 2018, but found that Harris had already completed the suspension during the course of this case. Harris requested a stay of execution of the sanctions pending appeal, which the trial court granted.
{¶ 15} Harris timely appealed her convictions.
{¶ 16} In her first assignment of error, Harris argues that the trial court committed plain error when it failed to administer the oath to Sergeant Kaleal before he testified at trial, and we therefore cannot consider his testimony. The trial court administered the oath to Sergeant Kaleal when he testified at the suppression hearing, but it did not administer the oath to him again when he testified at trial.
{¶ 17}
{¶ 18} Harris relies on Arcaro Bros. Builders, Inc. v. Zoning Bd. of Appeals, 7 Ohio St.2d 32, 218 N.E.2d 179 (1966), and Cleveland v. Cuyahoga Metro. Hous. Auth., 8th Dist. Cuyahoga Nos. 57954, 57955, 57956, and 57957, 1991 Ohio App. LEXIS 317 (Jan. 24, 1991), to argue that a trial court commits reversible error when it relies on unsworn testimony to reach its decision. Although these cases stand for what Harris claims, the Ohio Supreme Court held in Stores Realty Co. v. Cleveland, 41 Ohio St.2d 41, 322 N.E.2d 629 (1975), that “Arcaro does not apply where no objection is raised to the omission of the oath of a witness.” Id. at 43.
{¶ 20} Here, neither party objected to the trial court not administering the oath to Sergeant Kaleal at trial. However, Harris raises a claim of plain error on appeal. Under
{¶ 21} The city maintains that the trial court did not need to administer the oath to Sergeant Kaleal at trial because it administered the oath to him at the suppression hearing, which immediately preceded the trial. However, we need not
{¶ 22} Accordingly, we overrule Harris‘s first assignment of error.
III. Sufficiency of the Evidence
{¶ 23} In her second assignment of error, Harris argues that the city did not present sufficient evidence of impairment to support her DUI conviction because the city did not explicitly ask Sergeant Kaleal his opinion of whether Harris was impaired. In her fourth assignment of error, Harris raises essentially the same argument, namely, that the trial court should have granted her motion for a
{¶ 24}
{¶ 25} E.C.O.
{¶ 26} We find that the city presented sufficient circumstantial evidence that Harris operated a vehicle while under the influence of alcohol in violation of E.C.O.
{¶ 27} Moreover, it is well established that a factfinder may infer that a defendant‘s refusal to take an approved chemical breath test, without explaining the refusal, indicates the defendant‘s fear of the test result and a consciousness of guilt. State v. Hrytsyak, 8th Dist. Cuyahoga No. 108506, 2020-Ohio-920 ¶ 90, citing Maumee v. Anistik, 69 Ohio St.3d 339, 344, 632 N.E.2d 497 (1994); see also Westerville v. Cunningham, 15 Ohio St.2d 121, 239 N.E.2d 40 (1968), paragraph one of the syllabus (“The refusal of one accused of intoxication to take a reasonably reliable chemical test for intoxication may have probative value on the question as to whether he was intoxicated at the time of such refusal.“). Thus, the trial court, as the factfinder in this case, was free to consider the fact that Harris refused to submit to a urine test at the hospital as probative evidence of her intoxication.
{¶ 28} Harris argues, however, that under
{¶ 29} “At common law, lay witnesses were required to testify to facts rather than opinions.” State v. McKee, 91 Ohio St.3d 292, 296, 744 N.E.2d 737 (2001). Under
{¶ 30} Additionally, courts have long held that “‘[a]n opinion with reference to intoxication is probably one of the most familiar subjects of nonexpert evidence, and almost any lay witness, without having any special qualifications, can testify as to whether a person was intoxicated.‘” State v. Clark, 8th Dist. Cuyahoga No. 88731, 2007-Ohio-3777, ¶ 13, quoting Columbus v. Mullins, 162 Ohio St. 419, 421, 123 N.E.2d 422 (1954). Sergeant Kaleal, an experienced police officer who had been involved in 40 or 50 prior DUI cases over a period of 16 years, had personal knowledge of the traffic stop and could testify regarding his observations of Harris‘s behavior and give opinion testimony that she was intoxicated.
{¶ 31} Accordingly, we overrule Harris‘s second and fourth assignments of error.
IV. Ineffective Assistance of Counsel
{¶ 32} In her third assignment of error, Harris argues that her trial counsel was ineffective for failing to object to Sergeant Kaleal‘s unsworn testimony.
{¶ 33} The defendant carries the burden of establishing a claim of ineffective assistance of counsel on appeal. State v. Corrothers, 8th Dist. Cuyahoga No. 72064, 1998 Ohio App. LEXIS 491, 19 (Feb. 12, 1998). To gain reversal on a claim of ineffective assistance of counsel, a defendant must show that (1) his or her “counsel‘s performance was deficient,” and (2) “the deficient performance prejudiced the
{¶ 34} Even if we assume for the sake of argument that Harris‘s defense counsel‘s performance was deficient because she did not object to Sergeant Kaleal‘s unsworn testimony, there is nothing in the record to show that the result of the proceeding would have been different had she objected. As previously discussed, the record shows that Sergeant Kaleal‘s unsworn testimony at trial was consistent with his sworn testimony at the suppression hearing. Harris has simply not shown that her counsel‘s failure to object to Sergeant Kaleal‘s unsworn testimony prejudiced her defense. Accordingly, Harris is unable to establish her claim of ineffective assistance of counsel.
{¶ 35} We therefore overrule Harris‘s third assignment of error.
{¶ 36} Judgment affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the municipal court to carry this judgment into execution. The defendant‘s conviction
A certified copy of this entry shall constitute the mandate pursuant to
MARY J. BOYLE, ADMINISTRATIVE JUDGE
MARY EILEEN KILBANE, J., and
EILEEN T. GALLAGHER, J., CONCUR