Lead Opinion
{¶ 3} The first individual, identified as Dean Caynor, admitted to Trooper Buxton that both he and Gerald Massie, the driver of the second ATV, had been drinking. His alcohol test came back at .120. At this time, the Appellant got off his bike and started to walk over to the Trooper. (T. at 15). The Trooper noted that the Appellant had no coordination or balance. The Trooper also detected a strong odor of alcohol on the Appellant and that the Appellant's speech was slow and slurred. (T. at 16). Trooper Buxton suspected that he had two intoxicated individuals and was therеfore concerned for his safety. Therefore, he did not perform field sobriety tests at the scene. (T. at 171-8). Instead, Trooper Buxton transported both the Appellant and Mr. Caynоr to the Highway Patrol post for alcohol testing. The Appellant refused the breath test. He was cited for OVI and misuse of an ATV.
{¶ 4} On September 25, 2004, Appellant was arrested and chargеd with driving while under the influence of alcohol or drugs (hereinafter "OVI"), under §
{¶ 5} On April 13, 2005, Appellant waived his right to a jury trial. A bench trial was held on April 28, 2005. At the bench trial, Appellаnt was found guilty of driving while under the influence; a felony in the third degree.
{¶ 6} A mandatory sentence of four years was the result as certain evidence was admitted indicating prior D.U.I. convictiоns which occurred in Summit and Medina Counties on May 21, 2002, and November 21, 2003, respectively.
{¶ 7} Certified copies of the judgment entries in such cases were provided to the court.
{¶ 8} Identity of Appellant was provided by testimony of the contents of information the arresting officer obtained from a printout from the Law Enforcement Automated Data System (LEADS). Such printout was offеred but not accepted into evidence. (State's "Ex. E"). Such printout contained a color photograph of appellant. (T. at 62-63).
{¶ 9} The two Assignments of Error are:
{¶ 11} "II. THE TRIAL COURT ERRED IN OVERRULING DEFENDANT'S MOTION FOR ACQUITTAL AT THE CLOSE OF THE STATE'S CASE."
{¶ 13} The essential issue involved in this case is whether the identity of the Appellant has been established as that person convicted in Summit and Medina counties as indicated by the certified copies of the judgments therefrom resulting in the application of R.C. §
{¶ 14} The introduction of such certified copies of the entries is not questioned as such Statute provides:
{¶ 15} "Whenever in any case it is necessary to prove a prior conviction, a certified copy of the entry of judgment in such prior conviction together with evidence sufficient to identify the defendant named in the entry as the offender in the case at bar, is sufficient to prove such prior conviction."
{¶ 16} Also, evidence other than certified copies could have established prior convictions under our decision in State v.Ansley (Feb. 6, 2006), Ohio 5th Dist. Delaware App. No. 05CAA080050, 05CAA070045, but identity by some method other than reliance solely on hearsay evidence is necessary.
{¶ 17} Normally, evidentiary rulings lie within the broad discretion of the trial court and will form the basis for reversal, on appeal, only upon an abuse of discretion which amounts to prejudicial error. State v. Graham (1979),
{¶ 18} In order to find an abuse of discretion, we must determine that the trial court's decision was unreasonable, arbitrary оr unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore (1983),
{¶ 19} This Court has previously ruled in State v. Straits (Oct. 1, 1999), Stark App. No. 99CA7, that printouts from LEADS constitute hearsay as they do not fall within Evid. Rule 803(8) and that information therefrom is only admissible to establish the state of mind of the officer in his investigative actions, not to prove the truth of matters contained therein.
{¶ 20} In State v. Huscusson, 5th Dist. No. 2004AP050040,
{¶ 21} The testimony of Trooper Buxton in the case at bar was properly admitted for non-hearsay purposes, including demonstrating Trooper Buxton's process and reasoning in verifying appellant's identity.
{¶ 22} Appellant next contends that because the evidence of appellant's identity as the person convicted of prior OVI offenses was not proven, the trial court erred in not granting appellant's Crim. R. 29 Motion for Acquittal. We disagree.
{¶ 23} "The purpose of a motion for judgment of acquittal is to test the sufficiency of the evidence and, where the evidence is insufficient, to take the case from the jury. In the non-jury trial, howevеr, the defendant's plea of not guilty serves as a motion for judgment of acquittal, and obviates the necessity of renewing a Crim.R. 29 motion at the close of all the evidence. Seе the following cases decided under the analogous Fed.R.Crim.P.
{¶ 24} Appellant waived his right to a jury trial and was tried befоre the bench.
{¶ 25} Accordingly, Appellant's first and second assignments of error are overruled.
Gwin, P.J., and Farmer, J., concur; Boggins, J., dissents.
Dissenting Opinion
{¶ 26} I respectfully dissent, would sustain the First Assignment of Error, remand for a new trial and dismiss the Second Assignment оf Error because of the admission into evidence of testimony by Trooper Buxton of the contents of the LEADS information without such printout being accepted into evidence.
{¶ 27} In State v. Williams (1983),
{¶ 28} The test for determining whether the admission of inflammatory or otherwise erroneous evidence is harmless and non-constitutional error requires the reviewing court to look at the whole record, leaving out the disputed evidence, and then to decide whether there is other substantial evidence to support the guilty verdict. State v. Davis (1975),
{¶ 29} This Court has previously ruled in State v. Straits (Oct. 1, 1999), Stark App. No. 99CA7, that printouts from LEADS constitutes hearsay as they do not fall within Evid. Rule 803(8) and that information therefrom is only admissible to establish the state of mind of the officer in his investigative actions, not to prove the truth of matters contained therein.
{¶ 30} I do not agree that this Court's opinion in State v.Huscusson, supra, as relied upon by the majority, supports the admission of hearsay statements by the officer аs in State v.Huscusson, supra, the LEADS data was admitted, while in the case sub judice, it was not accepted into evidence.
{¶ 31} Identity came from the LEADS data and other evidence as to the identity of Aрpellant in relation to the prior convictions was offered and, as stated, the LEADS printout was not admitted.
{¶ 32} While I am reluctant to state an abuse of discretion occurred, we must find that the officer's reliance on the hearsay evidence of the LEADS information as to identity of Appellant in relation to the prior convictions was erroneous heаrsay and, as there was no other evidence offered as to his identity, his Constitutional right to confrontation was denied.