{¶ 2} On September 11, 2007, appellant was visiting with a friend when he called Jeremy Wells, his half-brother, for a ride. Wells agreed, and picked appellant up from his *2 friend's apartment at approximately 11:00 p.m. However, before appellant could be dropped off at his own apartment, Officer Matthew Weithofer, an officer with the Lebanon Police Department, stopped the vehicle for having only one working headlight.
{¶ 3} After making the stop, Officer Weithofer approached Wells, the driver, but became suspicious after Wells appeared extremely nervous and failed to make eye contact with him. A short time later, Officer Joshua Holbrook, another officer from the Lebanon Police Department, stopped to assist Officer Weithofer. Officer Holbrook, after approaching the passenger side of the vehicle, also became suspicious when appellant appeared nervous, made no eye contact with him, and continuously stared at a plastic grocery bag sticking out from underneath his seat. After they denied having anything illegal in the vehicle, Officer Weithofer called for a canine unit to conduct a canine sniff, and, pursuant to police protocol, removed Wells and appellant from the vehicle.
{¶ 4} Shortly after being removed from the vehicle, but before the canine unit arrived, appellant informed Officer Holbrook that the car contained a "little bit" of marijuana. After being asked to get the drugs out of the car, appellant went back to the car, reached underneath the passenger seat, and removed the plastic grocery bag containing over 200 grams of marijuana. Wells and appellant were arrested and subsequently indicted on one count of Possession of Marijuana in violation of R.C.
{¶ 5} Appellant now appeals the trial court's ruling denying his motion to suppress and his subsequent conviction, raising seven assignments of error.
{¶ 6} Assignment of Error No. 1:
{¶ 7} "THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY DENYING THE APPELLANT'S MOTION TO EXCLUDE EVIDENCE." *3
{¶ 8} In his first assignment of error, appellant argues that the trial court erred by denying his motion to suppress because the arresting officers violated his
{¶ 9} Appellate review of a trial court's ruling on a motion to suppress evidence presents a mixed question of law and fact. State v.Long (1998),
{¶ 10} A "non-investigatory stop," one of two traffic stops recognized in Ohio, is reasonable for
{¶ 11} In this case, and based on the facts offered at the suppression hearing, Officer Weithofer and Officer Holbrook had probable cause to believe a traffic violation occurred, and therefore, could stop the vehicle and detain Wells and appellant for the length of time necessary to run background checks and issue a citation or warning. See, e.g.,State v. Johnson, Lucas App. No. L-06-1035,
{¶ 12} Furthermore, the duration of the stop was not of such a length to impermissibly expand the detention. Here, according to Officer Weithofer, the entire encounter took "less than five minutes," and, as the trial court found, it was "very quick" and done even before the permissible background checks were completed. In fact, the canine sniff never even occurred prior to appellant's admission that there was a "little bit" of marijuana in the vehicle, which he *5 then retrieved and turned over to Officer Holbrook. Accordingly, in viewing the entire stop under the totality of the circumstances, we conclude that the trial court did not err in denying appellant's motion to suppress, and therefore, appellant's first assignment of error overruled.
{¶ 13} Assignment of Error No. 2:
{¶ 14} "THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT WHEN IT ALLOWED THE STATE TO PRESENT SUBSTANTIVE EVIDENCE OF GUILT BY WAY OF TESTIMONY AS TO APPELLANT'S PRE-ARREST SILENCE."
{¶ 15} In his second assignment of error, appellant argues that the trial court erred by permitting the state to use appellant's pre-arrest silence as substantive evidence in violation of his rights
{¶ 16} In Jenkins v. Anderson (1980),
{¶ 17} In this case, the state introduced evidence during its direct examination of Officer Holbrook, over appellant's objection, that he never denied ownership of the marijuana hidden underneath the passenger seat. Here, the state claims that the evidence of appellant's pre-arrest, pre-Miranda silence was used to impeach him, and therefore, admissible. However, appellant never testified at his trial, so the introduction of his pre-arrest *6
silence was not used to impeach his testimony. See, e.g., Leach
at ¶ 29. As a result, the state violated appellant's
{¶ 18} Accordingly, based on our review of the record, we find that the references to appellant's pre-arrest silence in the state's case-in-chief was improper, clearly prejudicial, and denied appellant a fair trial. State v. Riffle, Medina App. No. 07CA0114-M,
{¶ 19} Assignment of Error No. 3:
{¶ 20} "THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT WHEN IT ALLOWED THE STATE TO PRESENT TESTIMONY THAT WAS IN VIOLATION OF THE RULES OF EVIDENCE."
{¶ 21} In his third assignment of error, appellant argues that the trial court erred by admitting a portion of Officer Holbrook's testimony due to its speculative nature. We agree.
{¶ 22} A trial court's decision to admit or exclude evidence will not be reversed by a reviewing court absent an abuse of discretion.State v. Craft, Butler App. No. CA2006-06-145,
{¶ 23} Pursuant to Evid. R. 701, a lay witness may testify in the form of opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of his testimony or determination of a fact in issue. If the opinion is not "rationally based on the perception of the witness, then the opinion is speculation, and as such, cannot be "helpful to a * * * determination of a fact in issue." State v. Hall, Montgomery App. No. 19671,
{¶ 24} In this case, Officer Holbrook's testified that the marijuana hidden under the *7 passenger seat was purchased for appellant's own personal use. However, based on our review of the record, we find that Officer Holbrook's testimony was not "rationally based on [his] perception," and therefore, was purely speculative. As a result, because his testimony did not meet the requirements of Evid. R. 701, we find that the trial court erred by admitting Officer Holbrook's testimony that the marijuana was purchased for appellant's own personal use. Therefore, appellant's third assignment of error is sustained.
{¶ 25} Assignment of Error No. 4:
{¶ 26} "THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY ISSUING THE ACCOMPLICE JURY INSTRUCTION."
{¶ 27} In his fourth assignment of error, appellant argues that the trial court erred by instructing the jury pursuant to R.C.
{¶ 28} RC.
{¶ 29} "If an alleged accomplice of the defendant testifiesagainst the defendant in a case in which the defendant is charged with complicity in the commission of or an attempt to commit an offense, an attempt to commit an offense, or an offense, the court, when it charges the jury, shall state substantially the following:
{¶ 30} "The testimony of an accomplice does not become inadmissible because of his complicity, moral turpitude, or self-interest, but the admitted or claimed complicity of a witness may affect his credibility and make his testimony subject to grave suspicion, and require that it be weighed with great caution.
{¶ 31} "It is for you, as jurors, in the light of all the facts presented to you from the witness stand, to evaluate such testimony and to determine its quality and worth or its lack of quality and worth." (Emphasis added.)
{¶ 32} Based on the clear meaning of the statute, R.C.
{¶ 33} In this case, Wells, the driver of the vehicle and appellant's alleged accomplice, did not testify against appellant. Instead, Wells, after being called as a witness by appellant, testified that the he purchased the marijuana hidden underneath the passenger seat, that the marijuana belonged to him, that appellant did not pay for it or expect to use any of it, and that appellant did not even know the marijuana was in the vehicle until after Officer Weithofer pulled the vehicle over. As a result, it is clear that Wells was not testifying against appellant as is required under R.C.
{¶ 34} Assignment of Error No. 5:
{¶ 35} "THE TRIAL COURT ERRED BY ALLOWING THE STATE TO COMMENT ON THE APPELLANT'S FAILURE TO TESTIFY."
{¶ 36} In his fifth assignment of error, appellant argues that the trial court erred by allowing the state to comment on appellant's failure to testify in violation of his
{¶ 37} Parties are accorded great latitude during closing arguments.State v. Adkins (2001),
{¶ 38} In this case, the prosecutor made several comments during closing argument, which appellant now complains violated his
{¶ 39} Initially, the prosecutor stated:
{¶ 40} "Do we hear anything about protesting of — oh, that's not my marijuana, that's his, he just told me about it. * * * We didn't hear any of that. We didn't hear anything like that."
{¶ 41} It is well settled that the prosecution may comment upon the evidence and upon the failure of the defense to offer evidence in support of its case. State v. Clemons,
{¶ 42} Next, the prosecutor stated:
{¶ 43} "So, what is this case about? It's about owning up to responsibility. Owning up to what you did. We heard the testimony of [Wells] who owned up to what he did. He owned up to possessing the marijuana in this case."
{¶ 44} Further, during rebuttal, the prosecutor stated: *10
{¶ 45} "Ladies and gentlemen, all we have is testimony here. We don't have the guesses of what the defendant's response is * * * You don't have the luxury of having [that] to be able to guess at that."
{¶ 46} Here, unlike the prosecutor's first comment discussed above, these statements are not simply commenting on the evidence presented, or upon the failure of the defense to offer evidence in support of its case. Instead, the prosecutor is commenting on appellant's failure to testify and appellant's refusal to, according to the state, "own up to what he did," like Wells, his alleged accomplice, who had previously pled guilty. Accordingly, we find that appellant's
{¶ 47} Assignment of Error No. 6:
{¶ 48} "THE APPELLANT'S CONVICTION WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE."
{¶ 49} Assignment of Error No. 7:
{¶ 50} "THE MANIFEST WEIGHT OF THE EVIDENCE DOES NOT SUPPORT APPELLANT'S CONVICTION."
{¶ 51} In appellant's sixth and seventh assignments of error, he argues that his conviction was not supported by the sufficiency of the evidence, or by the manifest weight of the evidence. In light of our holding on appellant's second, third, fourth, and fifth assignments of error, appellant's sixth and seventh assignments of error are moot. App. R. 12(A)(1)(c).
{¶ 52} Accordingly, based on the foregoing, we find that the trial court did not err in denying appellant's motion to suppress. However, we find that the trial court did err by permitting the state to use appellant's pre-arrest, pre-Miranda silence as substantive evidence, by admitting evidence from Officer Holbrook that amounts to pure speculation, by *11
instructing the jury in accordance with R.C.
{¶ 53} Judgment affirmed in part, reversed in part and remanded.
WALSH, P.J., and BRESSLER, J., concur.
Notes
"The testimony of a person who you find to be an accomplice, should be viewed with grave suspicion and weighed with great caution. The testimony of an accomplice, that is supported by other evidence, does not become inadmissible because of his complicity, moral turpitude, or self-interest, but the admitted or claimed complicity of a witness, may affect his credibility and may make his testimony subject to grave suspicion and require that it be weighed with great caution. It is for you, as jurors, in the light of all of the facts presented to you and from the witness stand, to evaluate such testimony to determine its quality and worth or its lack of quality and worth." *1