State v. Baird , 2015 Ohio 4539 ( 2015 )

[Cite as State v. Baird, 2015-Ohio-4539.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2014-L-098
- vs - :
DENNIS I. BAIRD, :
Defendant-Appellant. :
Criminal Appeal from the Willoughby Municipal Court, Case No. 14 TRC 00727.
Judgment: Reversed, sentence vacated, and remanded.
Judson J. Hawkins, City of Eastlake Prosecutor, 37811 Lake Shore Boulevard,
Eastlake, OH 44095 (For Plaintiff-Appellee).
Judith M. Kowalski, 333 Babbitt Road, #323, Euclid, OH 44123 (For Defendant-
Appellant).
COLLEEN MARY O’TOOLE, J.
{¶1} Dennis Baird appeals from the judgment of the Willoughby Municipal
Court, entered on a jury verdict, convicting him of driving under the influence of alcohol
in violation of R.C. 4511.19(A)(1)(a), and failing to submit to chemical testing, having
been previously convicted of driving under the influence in the past 20 years, in violation
of R.C. 4511.19(A)(2)(a) and (b). We reverse, vacate the sentence, and remand.
{¶2} Shortly after 8:30 p.m. on February 1, 2014, Officer Richard Isabella of the
Eastlake Police Department was parked in his cruiser in a commercial lot off Lakeshore
Boulevard in Eastlake, when he received a message from dispatch. Dispatch told him
an anonymous tipster had called to say that Dennis Baird, possibly drunk, and driving a
green pickup truck, had left a bar in the City of Willoughby, and was headed eastbound
on Lakeshore. Dispatch further advised that Mr. Baird was driving under license
suspension. Moments later, Officer Isabella saw the green pickup, and recognized Mr.
Baird, with whom the officer had previous encounters. Mr. Baird was not speeding.
Officer Isabella began following. He saw Mr. Baird drift over the white line into an
adjoining bicycle path. He saw Mr. Baird twice cross the center line. After a minute or
two, Officer Isabella stopped Mr. Baird on a side street.
{¶3} Officer Isabella approached the truck. He testified that Mr. Baird had
slurred speech, red, glassy eyes, and smelled of alcohol. On cross examination, the
officer admitted that a smell of alcohol emanating from a person cannot help identify
how much, or when, a person drank. Officer Isabella testified Mr. Baird stated, “I almost
made it home – I think I was set up.” Officer Isabella also testified he asked Mr. Baird to
recite the alphabet twice, and Mr. Baird made mistakes each time. Mr. Baird admitted
to having two drinks, and driving under suspension. Officer Isabella asked Mr. Baird the
time of day, which was actually about 8:40 p.m. Mr. Baird replied it was 1:30 p.m.
{¶4} Officer Isabella had Mr. Baird exit the truck. The driver’s door does not
function: Mr. Baird had to leave through the passenger’s door. Officer Isabella admitted
Mr. Baird had no difficulty in doing this, nor in standing when he got out. Officer Isabella
asked Mr. Baird to perform field sobriety tests, to which Mr. Baird replied he could not,
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due to medical issues. Mr. Baird was badly beaten by his father when young, and
suffered a fractured skull. He has a problem with his balance, due to damage to his
inner ear. He takes several medications, including a muscle relaxer, and blood thinner.
{¶5} Nevertheless, Officer Isabella administered the horizontal gaze nystagmus
test, which Mr. Baird failed completely.
{¶6} There is no dash cam video of this encounter, since the camera in Officer
Isabella’s cruiser was disabled.
{¶7} Mr. Baird was arrested, and taken to the police station for booking. Over
defense objection, the CD of the booking was entered into evidence at trial. The
objection stemmed from the quality of the CD. There are numerous glitches; frequently,
the audio and visual do not match at all.
{¶8} Mr. Baird refused to take a breathalyzer test. He was asked twice again to
recite the alphabet. Each time, he ran through it very quickly, and seemed to miss the
letter “w.” The second time, he added it immediately after “z.” Generally, he sat quietly
on a bench. Several times, however, he became agitated, and gesticulated, raising his
voice. Twice he clapped, evidently when accusing the officers of persecuting a severely
disabled man such as himself. When asked if he would like to try the field sobriety
tests, he replied he could not do them sober. He stated he had three drinks over
several hours. He was non-cooperative when his mug shots were taken, sticking out
his tongue. Interestingly, his eyes do not appear at all red in the mug shots. He
answered most questions quickly and without difficulty, and participated intelligently, if
somewhat vigorously, in a discussion of the effect of two prior OVI convictions he had
sustained.
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{¶9} Mr. Baird’s gait is somewhat shambling. His voice is very gruff, and his
speech pattern sometimes moves from fast to slow without warning or apparent reason.
At the trial in this matter, his mother Judy Baird, with whom he lives, testified. She
stated this was his normal manner of speech. She also testified that on the day of
arrest, she returned home at 4:00 p.m., and left again at 7:30 p.m., an hour before the
arrest, and that Mr. Baird drank nothing during that time.
{¶10} Mr. Baird was charged with the two aforementioned violations. April 17,
2014, he filed a motion to suppress, which was denied by the trial court after hearing.
Jury trial was held August 1, 2014. Defense counsel offered to stipulate that Mr. Baird
had a prior OVI conviction. The state refused the stipulation, and the judgments against
him for two prior OVI convictions were entered into evidence.
{¶11} The jury found Mr. Baird guilty of both charges. The trial court merged the
convictions for sentencing purposes, sentencing Mr. Baird to 365 days in jail, 215 being
suspended, credit for time served, and two years probation. His driver’s license was
suspended for five years.
{¶12} This appeal timely ensued, Mr. Baird assigning five errors:
{¶13} “[1.] Appellant’s right to be free from unreasonable searches and seizures
under the Fourth Amendment to the U.S. Constitution and Article I, Section 14 of the
Ohio Constitution was violated when the police conducted an investigatory stop based
on an anonymous tip without first corroborating the allegations of criminal conduct.
{¶14} “[2.] The trial court abused its discretion to the prejudice of the appellant
by admitting into evidence the appellant’s booking video, as the recording’s probative
value is substantially outweighed by the danger of unfair prejudice.
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{¶15} “[3.] The trial court erred to the prejudice of the appellant in admitting
evidence of the appellant’s two prior convictions, in that the evidence’[s] probative value
was outweighed by unfair prejudice.
{¶16} “[4.] The verdict of guilty is against the manifest weight of the evidence.
{¶17} “[5.] The trial court erred to the prejudice of the appellant in denying the
motion for dismissal pursuant to Rule 29 of the Ohio Rules of Criminal Procedure, in
that the evidence presented was insufficient as a matter of law.”
{¶18} We commence with assignment of error three, finding it dispositive of this
appeal.
{¶19} In October 2008, Mr. Baird pled guilty to two counts of OVI, in separate
cases, in the trial court. In this case, he refused a breathalyzer test, and was charged
not merely with OVI, but with violating R.C. 4511.19(A)(2)(a) and (b), which provides, in
pertinent part:
{¶20} “(2) No person who, within twenty years of the conduct described in
division (A)(2)(a) of this section, previously has been convicted of or pleaded guilty to a
violation of this division, a violation of division (A)(1) or (B) of this section, or any other
equivalent offense shall do both of the following:
{¶21} “(a) Operate any vehicle * * * within this state while under the influence of
alcohol, a drug of abuse, or a combination of them;
{¶22} “(b) Subsequent to being arrested for operating the vehicle * * * as
described in division (A)(2)(a) of this section, being asked by a law enforcement officer
to submit to a chemical test or tests under section 4511.191 of the Revised Code, and
being advised by the officer in accordance with section 4511.192 of the Revised Code
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of the consequences of the person’s refusal or submission to the test or tests, refuse to
submit to the test or tests.”
{¶23} Defense counsel offered to stipulate that Mr. Baird had a prior OVI
conviction. The state refused the offer, and both judgment entries of his prior
convictions came into evidence. Mr. Baird argued then, as now, that this violated
Evid.R. 403(A) which provides, in pertinent part: “Although relevant, evidence is not
admissible if its probative value is substantially outweighed by the danger of unfair
prejudice * * *.” Mr. Baird asserts the evidence he had two prior OVI convictions was
not necessary for the state to prove its case, since he was willing to stipulate to one. He
argues it was prejudicial, as it tended to show not merely that he is a repeat offender,
but an habitual, chronic offender. We agree.
{¶24} We review a trial court’s evidentiary rulings for abuse of discretion.
Musson v. Musson, 11th Dist. Trumbull No. 2013-T-0113, 2014-Ohio-5381, ¶34.
Regarding this standard, we recall the term “abuse of discretion” is one of art, connoting
judgment exercised by a court which neither comports with reason, nor the record.
State v. Ferranto, 112 Ohio St. 667, 676-678 (1925). An abuse of discretion may be
found when the trial court “applies the wrong legal standard, misapplies the correct legal
standard, or relies on clearly erroneous findings of fact.” Thomas v. Cleveland, 176
Ohio App. 3d 401, 2008-Ohio-1720, ¶15 (8th Dist.)
{¶25} “With regard to the risk of prejudice [under Evid.R. 403(A)], it must be
shown that the prejudicial effect was unfair because it might have provided the jury with
an improper basis for rendering its decision.” State v. Comstock, 11th Dist. Ashtabula
No. 96-A-0058, 1997 Ohio App. LEXIS 3670, *30 (Aug. 15, 1997).
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{¶26} We find this assignment of error is controlled by Old Chief v. United
States, 519 U.S. 172 (1997). In that case, Old Chief was willing to stipulate he had
previously been convicted of a crime requiring imprisonment for more than one year,
which was an element of one of the crimes with which he was newly charged. Id. at
174. The United States refused the stipulation, and the district court agreed, allowing in
the judgment entry regarding the prior conviction. Id. at 177. The Ninth Circuit Court of
Appeals affirmed. Id. The U.S. Supreme Court granted Old Chief’s petition for a writ of
certiorari, and reversed. Id. at 178. Analyzing the case under Fed.R.Evid. 403, the
court concluded that when the sole issue pertaining to a prior conviction is a defendant’s
legal status – i.e., whether a defendant is subject to prosecution and conviction for the
presently charged crime due to a prior conviction – then, the government is required to
accept a defendant’s stipulation regarding the prior conviction, to avoid unfair prejudice.
Old Chief at 190-192. We have previously applied Old Chief in interpreting Ohio Evid.R.
403. See, e.g., State v. Hatfield, 11th Dist. Ashtabula No. 2006-A-0033, 2007-Ohio-
7130, ¶142-148.
{¶27} Pursuant to Old Chief, the admission into evidence of Mr. Baird’s prior OVI
conviction, when he was willing to stipulate he had a prior conviction, was unfairly
prejudicial, as it gave the jury an improper basis for the instant verdict.
{¶28} The third assignment of error has merit. We decline to reach the
remaining assignments of error, finding them moot. App.R. 12(A)(1)(c).
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{¶29} The judgment of the Willoughby Municipal Court is reversed, Mr. Baird’s
sentence is vacated, and this matter is remanded for further proceedings consistent with
this opinion.
THOMAS R. WRIGHT, J., concurs,
CYNTHIA WESTCOTT RICE, J., dissents with a Dissenting Opinion.
_____________________
CYNTHIA WESTCOTT RICE, J., dissents with a Dissenting Opinion.
{¶30} Because I disagree with the majority’s analysis and disposition with
respect to the third assignment of error, which is the only assigned error the majority
addresses in its opinion, I respectfully dissent.
{¶31} I agree with the majority that the trial court erred by admitting evidence of
appellant's prior OVI convictions, on the basis that admission of said evidence violated
Evid.R. 403(A) and Old Chief, supra. However, even an Old Chief violation does not
automatically warrant reversal of an otherwise valid conviction where the error
committed by the trial court is otherwise harmless beyond a reasonable doubt. See
State v. Riffle, 5th Dist. Muskingum No. 2007-0013, 2007-Ohio-5299, ¶32-35, citing Old
Chief. In Old Chief, the United States Supreme Court did not remand the case to the
trial court for a new trial; rather the Court remanded the case to the Ninth Circuit Court
of Appeals. Id. at 192. In a footnote, the United States Supreme Court stated, “[i]n
remanding, we imply no opinion on the possibility of harmless error, an issue not
passed upon below.” Id. at n. 11. On remand, the Ninth Circuit held: “[t]he judgment of
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this court has been reversed * * *, and this case is remanded to the district court for
further proceedings in light of the Supreme Court’s opinion in Old Chief[, supra.] The
district court may consider whether any error found by the Supreme Court was
harmless.” 121 F.3d 448.
{¶32} Error is harmless unless the defendant’s substantial rights are affected.
Crim.R. 52(A); State v. Hicks, 6th Dist. Ottawa No. L-83-074, 1991 Ohio App. LEXIS
3856, *13 (Aug. 16, 1991).
{¶33} Ohio courts have discussed two standards for harmless error in criminal
cases, depending on whether the rights affected by the error are constitutional or non-
constitutional rights. For non-constitutional errors in the admission of evidence, the test
is whether “there is substantial other evidence to support the guilty verdict.” State v.
Webb, 70 Ohio St. 3d 325, 335 (1994).
{¶34} The Ohio test * * * for determining whether the admission of
inflammatory and otherwise erroneous evidence is harmless 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. If there is
substantial evidence, the conviction should be affirmed, but if there is not
other substantial evidence, then the error is not harmless and a reversal is
mandated. State v. Davis, 44 Ohio App. 2d 335, 347 (8th Dist.1975).
{¶35} In contrast, “[w]here constitutional error in the admission of evidence is
extant, such error is harmless beyond a reasonable doubt if the remaining evidence,
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standing alone, constitutes overwhelming proof of the defendant’s guilt.” State v.
Williams 6 Ohio St. 3d 281 (1983), paragraph six of the syllabus.
{¶36} Here, there was only one error committed by the court -- the admission of
appellant's prior OVI convictions. In addition, the state presented ample evidence that
appellant was under the influence before he was booked. Officer Isabella testified that
appellant: (1) crossed the center line twice; (2) had slurred speech, glassy eyes, and
smelled of alcohol; (3) admitted he had had two drinks that evening; (4) said it was 1:30
p.m. when in fact it was 8:40 p.m., in responding to the officer’s question asking him the
time; (5) failed the one field sobriety test he agreed to take, the horizontal gaze
nystagmus test; and (6) was unable to correctly recite the alphabet twice. A review of
the record reveals that, after leaving out the disputed evidence, the remaining evidence
presented by the state satisfied both standards for harmless error. I would therefore
affirm the trial court’s judgment.
{¶37} For the foregoing reasons, I respectfully dissent.
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