Case Information
*1
[This decision has been published in
Ohio Official Reports
at
T HE S TATE OF , A PPELLANT ,
v.
M C K EE , A PPELLEE . [Cite as
State v. McKee
,
Evidence—Witnesses—Experience and knowledge of a drug user lay witness can
establish competence to express an opinion on the identity of a controlled substance, when.
(Nos. 00-523 and 00-953—Submitted December 12, 2000—Decided April 11,
2001.)
A PPEAL from and C ERTIFIED by the Court of Appeals for Marion County, No. 9-99-57.
__________________ S YLLABUS OF THE OURT The experience and knowledge of a drug user lay witness can establish his or her
competence to express an opinion on the identity of a controlled substance if a foundation for this testimony is first established.
__________________
F RANCIS E. WEENEY , S R ., J. Defendant-appellee, Cassandra N. McKee, was indicted on two counts of corrupting another with drugs, in violation of R.C. 2925.02. At her trial, two girls, Tiffany Friar and Melissa Austin, ages thirteen and fourteen at the time of the alleged crime, testified that appellee, the girlfriend of Tiffany’s father, shared a marijuana joint with them while they were traveling in appellee’s car. The incident was discovered when Tiffany wrote a note to another friend, Stacy Cole, and mentioned that she might obtain marijuana from appellee. Stacy’s mother found this note in Stacy’s bookbag and gave it to Tiffany’s mother. Tiffany’s mother contacted the sheriff’s department. An investigation ensued, and these charges were brought against appellee. Based upon this evidence, the jury convicted appellee as charged.
{¶ 3}
Upon appeal, the court of appeals reversed appellee’s convictions,
finding no evidence that the substance involved was marijuana after excluding the
girls’ testimony identifying it. However, finding its judgment in conflict with that
of the Fifth District Court of Appeals in
State v. Coffey
(Oct. 16, 1995), Delaware
App. No. 94CAA11036, unreported,
resolution: “Is there insufficient evidence as a matter of law to convict a defendant for corrupting another with drugs in violation of R.C. 2925.02, when the alleged drug in question is marihuana, and at trial there is no expert witness or laboratory analysis presented to identify the substance alleged to be marihuana, and the only identification of the substance is the testimony of the juveniles who allegedly smoked the substance?” While we affirm the court of appeals’ decision reversing appellee’s convictions, we do not believe the issue as framed is dispositive of the case. Because we believe that lay opinion testimony, if properly qualified, may be sufficient to sustain a conviction, we necessarily answer the certified question in the negative. Appellee was convicted of two counts of corrupting another with
drugs in violation of R.C. 2925.02(A)(4)(a), which provides, “No person shall knowingly * * * [f]urnish or administer a controlled substance to a juvenile who is at least two years the offender’s junior, when the offender knows the age of the juvenile or is reckless in that regard.” Of these elements, the only one in dispute is that the substance in issue was marijuana, a controlled substance according to R.C. 3719.41 Schedule I, (C)(17). The state offered the testimony of the girls to prove this еlement of the offense.
{¶ 6} Appellant, the state of Ohio, initially contends that this issue was not preserved for appeal because the defense failed to object to the girls’ testimony at trial or to raise the issue before the court of appeals. Errors that arise during a trial that are not brought to the attention of the court are ordinarily waived and may not be raised on appeal unless there is plain error, i.e., but for the error, the outcome of thе trial clearly would have been otherwise. Crim.R. 52(B); State v. Johnson (2000), 88 Ohio St.3d 95, 111, 723 N.E.2d 1054, 1069. We find this case appropriate for a plain-error review. Because there was no additional evidence concerning the identification of the substance, the result of the trial would have been different if the girls’ testimony had been excluded.
{¶ 7}
Having determined that the issue is properly before us pursuant to the
plain-error rule, we must decide whether a person can be convicted for corrupting
another with drugs, in violation of R.C. 2925.02, based on identification of the
controlled substance solely by the person to whom the substance was given.
The state argues that under either Evid.R. 701 or Evid.R. 702, the
girls’ testimony was properly admitted. Appellee, however, maintains that
according to
State v. Maupin
(1975),
asked to decide whether scientific analysis is required for the identification of the
substance. In concluding that it is not, the court first determined that a drug may
be identified by circumstantial evidence. ,
146 (lay witness’s identificаtion of drugs is common);
Swain v. State
(Okla.Crim.App.1991),
“If the witness is not testifying as an expert, his testimony in the form of
opinions or inferences is limited to those 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 the determination of a fact in issue.”
At common law, lay witnesses were required to testify to facts rather
than opinions. However, the practical possibility of distinguishing between fact and
opinion proved to be elusive, if not impossible to draw, and led to extensive
litigation and pervasive criticism by commentators. Blanchard & Chin, Identifying
the Enemy in the War on Drugs: A Critique of the Developing Rule Permitting
Visual Identification of Indescript White Powder in Narcotics Prosecutions (1998)
,
47 Am.U.L.Rev. 557, 575;
Asplundh Mfg. Div. of Asplundh Tree Expert Co. v.
Benton Harbor Eng.
(C.A.3, 1995), 57 F.3d 1190, 1195. Consequently, former
Fed.Evid.R. 701, upon which Ohio Evid.R. 701 is based, was adopted, and it
“obviated the common law requirement for rigid compartmentalization of lay
witness testimony into fact or opinion.” 47 Am.U.L.Rev. at 575. Although at first
Evid.R. 701 contemplated testimony about such ordinary things as the color, speed,
type of vehicle, identity of a person, a person’s health, age, or appearance, or even
testimony regarding a person’s sanity or intoxication under controlled situations,
Weissenberger, Ohio Evidence 2001 Courtroom Manual (2000)
,
275, as case law
developed, the rule was interpreted to allow for “ ‘ “shorthand renditions” of a total
situation, or [for] statements of collective facts.’ ”
Asplundh Mfg.,
have permitted lay witnesses to express their opinions in areas in which it would ordinarily be expected that an expert must be qualified under Evid.R. 702. The situation presented in this case fits into this classification. Although these cases are of a technical nature in that they allow lay opinion testimony on a subject outside the realm of common knowledge, they still fall within thе ambit of the rule’s requirement that a lay witness’s opinion be rationally based on firsthand observations and helpful in determining a fact in issue. These cases are not based on specialized knowledge within the scope of Evid.R. 702, [2] but rather are based upon a layperson’s personal knowledge and experience. We follow this line of cases and hold that the experience and
knowledge of a drug user lay witness can establish his or her competence tо express an opinion on the identity of a controlled substance if a foundation for this testimony is first established. This meets the requirements of Evid.R. 701. It is testimony rationally based on a person’s perceptions and helpful to a clear understanding of a fact in issue. Applying our holding to the facts of this case, we find that the
evidence was insufficient to show that the girls were qualified to testify as lay witnesses. Their testimony was sketchy and conclusory. Melissa testified that she “assumed it was” marijuanа without explaining in detail how she arrived at this conclusion. There was no evidence as to how many prior experiences the girls had 2. Evid.R. 702 provides:
“A witness may testify as an expert if all of the following apply: “(A) The witness’ testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons;
“(B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;
“(C) The witness’ testimony is based on reliable scientific, technical, or other specialized information. To the extent that the testimony reports the result of a procedure, test, or experiment, the testimony is reliable only if all of the following apply:
“(1) The theory upon which the procedure, test, or experiment is based is objectively verifiable or is validly derived from widely accepted knowledge, facts, or principles;
“(2) The design of the procedure, test, or experiment reliably implements the theory; “(3) The particular procedure, test, or experiment was conducted in a way that will yield an accurate result.”
In contrast to Evid.R. 701, Evid.R. 702 authorizes expert testimony. Weissenberger
,
Ohio
Evidence 2001 Courtroom Manual (2000) 281. It establishes standards to be applied in determining
whether expert testimony should be admitted, and it provides criteria for determining whether a
witness should be accorded expert status by the trial court.
Id.
“[T]he Rule also sets forth the
general standard that expert testimony must be reliable, and then narrows this broad standard by
applying specific criteria to be used in ascertaining the reliability of expert testimony concerning
the results of tests, studies and scientific procedures.”
Id.
The distinction between lay and expert
witness opinion testimony is that lay testimony “results from a process of reasoning familiar in
everyday life,” while expert testimony “results from a process of reasoning which can be mastered
only by specialists in the field.”
State v. Brown
(Tenn.1992),
S C had with the drug. While the girls testified that the marijuana was in a “joint” form, neither girl testified as to the actual appearance of the drug itself. Moreover, while Melissa testified in general terms as to the effects of marijuana, she did not explicitly say whether she experienced those effects this time. We conclude that there was an insufficient foundation of experience or knowledge to support their opinions. Without a proper foundation, this evidence should have been excluded. The trial court abused its discretion in permitting this lay opinion testimony. Once the evidence is excluded, there is no remaining evidence of this element of the crime. When evidence of an element of the crime is deemed insufficient on appeal, the conviction must be reversed. Plain error requires us to affirm the court of aрpeals’ judgment reversing appellant’s convictions.
Judgment affirmed. M OYER , C.J., D OUGLAS , R ESNICK , P FEIFER and L UNDBERG TRATTON , JJ., concur.
C OOK , J., dissents.
__________________ OOK , J., dissenting. I am in substantial agreement with the rule that the majority
announces today. Under Evid.R. 701, a properly qualified lay witness may render an opinion on the identity of a controlled substance. And properly admitted lay opinion testimony may provide sufficient evidence of a substance’s identity to support a conviction for corrupting another with drugs. Despite my agreement with these principles, however, I am unable to concur in the ultimate decision to reverse McKee’s conviction on the ground that the trial court committed plain error in allowing lay opinion testimony lacking the requisite foundation. I would find no plain error in this case and take this opportunity to clarify the contours of the plain- error doctrine. Ordinarily, the failure to lodge a timely objection to the admission
of testimony results in the forfeiture of any claimed error. See,
e.g.
,
State v. Allen
(1995),
3. We have often referred to the failure to object as a waiver of any error. A failure to оbject,
however, is more accurately characterized as a forfeiture. See
United States v. Olano
(1993), 507
U.S. 725, 733,
{¶ 18}
Today, the majority finds an outcome-determinative error in the
admission of lay opinion testimony and decides that the plain-error doctrine
“requires us to” uphold the court of appeals’ reversal of McKee’s conviction. But
the outcome-determinative nature of an error is not the оnly factor to consider in
deciding whether to notice the error under Crim.R. 52(B). To the contrary, the
prejudicial nature of the forfeited error is only one element to be satisfied before
the appellate court may correct the error.
In
United States v. Olano
(1993),
L.Ed.2d 508, the United States Supreme Court clarified the standard for plain-error
review under Fed.R.Crim.P. 52(b). The court explained that three limitations
circumscribe an appellate court’s decision whether to correct an еrror absent a
timely objection by the defendant at trial. First and most fundamentally, there must
be error,
i.e.,
a deviation from a legal rule.
Id.
at 732-733,
appellate court need not correct it. By its very terms, Crim.R. 52(B) is
discretionary; a reviewing court “may” notice plain errors but is not obliged to do
so.
Id.
at 735,
error under Crim.R. 52(B).
Olano
’s framework is true to the text of the rule, which
by its very terms circumscribes the authority of an appellate court to cоrrect plain
error.
Olano
,
“If the contemporaneous objection requirement is to have any real force,
presumably an objection would be required * * * in the circumstance where the law
at the time of trial is unclear as to whether the [trial] court’s proposed course would
constitute error. A timely objection in such a circumstance would provide the court
an opportunity to consider the question, possibly avoid the commission of an error,
and thereby prevent the need for retrial upon appellate reversal—the very purposes
of the contemporaneous objection rule.” (Footnote omitted.) at 643.
In this case, it was not clear either at the timе of trial or by the time
of the direct appeal that the girls’ testimony identifying marijuana was
inadmissible.
[4]
I therefore cannot join in the majority’s determination that the trial
4. The
David
court distinguished the situation where the law was clear at the time of trial (and
contrary to the defendant’s position on appeal), but changed by the time of appeal by a supervening
decision. In that instance, the
David
court held that an error would be deemed plain “where an
objection at trial would have been indefensible because of existing law, but a supervening decision
prior to appeal reverses that well-settled law, rendering the defendant’s claim clearly meritorious.”
Crim.R. 52(B) and find that any error committed by the trial court in this case was not plain.
__________________
Jim Slagle, Marion County Prosecuting Attorney, for appellant. Daniel E. Shifflet & Co., L.P.A., and Kevin P. Collins, for appellee.
__________________
United States
,