State v. Sanders , 130 Ohio App. 3d 789 ( 1998 )

I respectfully dissent from the majority's analysis and conclusion in reference to the second and fourth assignments of error.

As to the second assignment of error, the issue of the admission of appellant's signature on her driver's license, I would agree that the trial court's blanket rejection of the offer of the signature is incorrect. Certainly, when a proper foundation had been laid, a signature analysis could indeed have been relevant to show the degree of physical impairment of the signature's author. However, the record in the instant case did not show that any such foundation was laid. There was no proffer of the opinion of an expert; there was no comparative signature offered; in other words, there was no evidence put forth or proffered which would support the claims of appellant as to relevancy.

I disagree strongly with the majority that the jury would be qualified to draw a conclusion that, because a single signature appeared to be neat and legible, ergo, the writer was sober. It would require an inference on an inference; i.e., the signature was the writer's normal signature, and a neat and legible signature could only be produced if the writer was sober. Without a foundation or a proffer of such a foundation, I believe the trial court was correct in disallowing the signature from evidence. The end result was therefore the right conclusion, albeit for the wrong reason. I would therefore affirm as to the second assignment.

As to the fourth assignment, I concur with the majority's conclusion that the admission of the report was error. However, I would find it to be harmless error because all of the relevant material in the report was, in fact, testified to by Trooper March. Thus, there were no prejudicial revelations beyond those to which he had already testified.

Initially, I would note the pertinent provisions of Ohio Rules of Evidence discussed herein. Evid. R. 612 reads in part:

"Writing Used to Refresh Memory. Except as otherwise provided in criminal proceedings by Rule 16(B)(1)(g) and 16(C)(1)(d) of Ohio Rules of Criminal Procedure, if a witness uses a writing to refresh his memory for the purpose of testifying, either: (1) while testifying; or (2) before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing. He is also entitled to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. * * *"

Evid. R. 803(8) reads:

"Hearsay Exceptions; Availability of the Declarant Immaterial. The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

"* * *

"(8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (a) the activities of the office or agency, or (b) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, unless offered by defendant, unless the sources of information or other circumstances indicate lack of trustworthiness."

In the case at bar, during the state's direct examination of Trooper March, the state first utilized the report to refresh his memory. The report was entitled "Ohio State Highway Patrol Impaired Driver Report" and was marked "State's Exhibit C." Pursuant to Evid. R. 612, appellant's counsel was then given the opportunity to inspect the report and to utilize it in the defense's cross-examination of Trooper March. No party has disputed the propriety of these actions.

During cross-examination, the defense attempted to attack the accuracy of Trooper March's observations of appellant, thereby calling into question the trooper's credibility. During this process, the defense made several references to Trooper March's report. When defense counsel was referring to the contents of the report, Trooper March again admitted that he could not presently recollect all of his prior observations without the assistance of the report. Defense counsel thereafter showed Trooper March portions of the report and repeated the questions. The state did not object when defense counsel used the report in this fashion.

At the close of the state's case, the state offered State's Exhibit C, the report, into evidence. Defense counsel objected on the grounds that Evid. R. 803(8) permitted the introduction of the report only when the defense was the party offering it into evidence. The trial court rejected this argument and overruled defense counsel's objections on two grounds. First, the trial court stated that because defense counsel also used the report to refresh Trooper March's memory, the opportunity to introduce the report shifted back to the state. Under this interpretation of the rule, the state then became the adverse party referenced in Evid. R. 612. Second, the trial court characterized the report as a test outcome or a test score rather than an investigative report, thereby holding that it was admissible pursuant to Evid. R. 803(8).

At the outset, I believe that the trial court misapplied Evid. R. 612 in this case. Here, the adverse party referenced in the rule is the defense. The state was the original party whose witness needed to have his memory refreshed on direct examination with the report. In accordance with Evid. R. 612, the adverse party was then the defense. As indicated above, the defense was then entitled to inspect the report and to utilize the report in cross-examination.¹ The defense did so. If the defense had thereafter desired to move the court to introduce the report into evidence, it could have done so. However, the defense did not.

Nevertheless, the trial court determined that the provision of Evid. R. 612 regarding the opportunity to introduce evidence somehow shifted when the defense allowed Trooper March to review the report to refresh his memory during cross-examination.

Irrespective of the fact that I find no authority for such an interpretation, I do not perceive that the defense's use of the report resulted in a shift of who was considered the adverse party. Instead, the defense simply used the report to cross-examine the witness as it was permitted to do under Evid. R. 612.² Indeed, the defense's primary objective was to call into question the witness' credibility; the fact that Trooper March could not recall presently his prior observations in the report did not change that objective.

The purpose of the rule would not be well-served if the state could prevent the original adverse party from thoroughly cross-examining a witness out of concern that such an inquiry might result in the state being able to admit the report.

Thus, as the report was first used to refresh the state's witness on the state's direct examination of that witness, the defense remained the adverse party, the only one who was entitled to move the court to introduce the report into evidence. Because the defense did not do so, the report should not have come in under Evid. R. 612.

Moreover, when a document which has been used to refresh a witness' recollection is submitted to the jury pursuant to Evid. R. 612, the document is not being offered as substantive evidence. Weissenberger, Ohio Evidence (1998) 285-286, Section 612.4. Daytonv. Combs (1993), 94 Ohio App.3d 291, 298. Instead, it is being offered as a basis to evaluate the testimony of the witness. Thus, unless the document had some other basis for admissibility as substantive evidence, the trial court should have instructed the jury to consider the document only for the limited purpose of assessing credibility. Weissenberger. No such charge was given to the jury in the case at bar.

I also believe that the trial court erred when it held, in the alternative, that the report was admissible as a test score under Evid. R. 803(8). In this regard, the Supreme Court of Ohio has held that Evid. R. 803(8) "prohibits the introduction of reports which recite an officer's observations of criminal activities or observations made as part of an investigation of criminal activities. * * * [It] does not prohibit introduction of records of a routine, intra-police, or machine maintenance nature, such as intoxilyzer calibration logs." State v. Ward (1984), 15 Ohio St.3d 355,358.

By characterizing the report as a test score, the trial court was attempting to classify the report in the second admissible category of records, such as intoxilyzer calibration logs. However, it is obvious that the report contains Trooper March's observations of criminal activities made during his investigation in the case. For example, Trooper March indicated on the report that appellant had a moderate odor of alcoholic beverage about her person, that her speech was slow, and that she failed various field sobriety tests. This report is not a record of a routine, intra-police, or machine maintenance nature. It is, rather, a document containing the individual observations Trooper March made during his criminal investigation of appellant.

Other Ohio appellate courts have also found the "Ohio State Highway Patrol Impaired Driver Report" to be inadmissible under Evid. R. 803(8). State v. Joyce (June 12, 1998), Hamilton App. No. C-970642, unreported, 1998 Ohio App. LEXIS 2566; State v. McDaniel (Feb. 21, 1995), Meigs App. No. 94CA08, unreported, 1995 Ohio App. LEXIS 716.

If the trial court erred by admitting State's Exhibit C into evidence, the query turns to whether the error was harmless beyond a reasonable doubt. I believe it was harmless error because it was merely cumulative of the officer's testimony. As previously indicated, there were no additional prejudicial revelations for which there had not already been testimony. Thus, there is no merit to this assignment.

Based upon my analysis concerning the second and fourth assignments of error, I would affirm the trial court's judgment in this matter. ____________________________________ PRESIDING JUDGE JUDITH A. CHRISTLEY

¹ Here, I note that the state made no objection to the defense inspecting the report.

² It would appear from State v. Goff (1998), 82 Ohio St.3d 123,136-137, that the defense could be the first party to use a document to refresh a witness' memory on cross-examination.